Yashoda Nandan, J. - (1.) WHEN this second appeal came up for hearing before a learned single Judge, he felt disinclined to agree with the views of this Court expressed in Dr. Kundan Lal v. Shamshad Ahmad (1964 All LJ 1120) : (AIR 1966 All 225) and Rahim Bux v. Mohammad Shafi (AIR 1971 All 16) and consequently referred the following two questions for consideration by a large Bench: "1. Whether on the facts and the circumstances of the case doctrine of frustration as contained in S. 56 of the Contract Act will apply and whether the tenancy was automatically terminated after the building had fallen down?
(2.) WHETHER on the facts and circumstances of the case relationship of landlord and tenant subsists even with regard to newly constructed shops and the plaintiffs can claim possession of the same?" That is how this appeal which should have been decided by a learned single Judge happens to be before this Bench. 2. The material facts giving rise to this appeal are that admittedly Radhey Kishan alias Chillar, the predecessor-in-interest of the appellants before us, was the tenant of a shop constructed of mud-walls and Khaprail roofing situate in the town of Azamgarh since 30 years or more before the institution of the suit giving rise to this appeal. The shop was in a state of complete disrepair and consequently the Khaprail roof as also some of the walls fell down. Radhey Kishun consequently on the 10th Oct., 1960 applied under S. 7-E of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, in the court of the learned Munsif City, Azamgarh. On the 18th March, 1961, the learned Munsif inspected the shop that was in the tenancy of Radhey Kishun in the presence of the parties and their counsel. On the 22nd Mar., 1961, he recorded an Inspection Note, the material part of which was to the following effect: "It was found that the entire accommodation has fallen down and the first sight view of the Commissioner was correct. On two sides there were no independent walls but the other two walls north and west had fallen down and another wall in the accommodation was for a few cubits standing in a dilapidated condition and thus practically the accommodation has to be reconstructed and more than major repairs were needed meaning that the accommodation has substantially fallen down." As a consequence of the inspection made by him, the learned Munsif dismissed the application under S. 7-E of U. P. Act No. 3 of 1947 on the 22nd Mar., 1961 itself. An application under S. 151 of the Code of Civil Procedure was also rejected by the learned Munsif. Radhey Kishan consequently on the 20th Sept., 1961 instituted the suit giving rise to this appeal alleging that the respondent in his capacity as Mutawalli of a Masjid was the landlord of the shop of which he was the tenant on a monthly rent of Rs. 8/-. The shop was of Khaprail and its Chhajan fell down as also some of the walls. The application made by the plaintiff under S. 7-E of U. P. Act of 1947 had been dismissed by the learned Munsif. When the plaintiff's application under S. 7-E of U. P. Act No. 3 of 1947 was dismissed, on the night intervening the 19th and 20th Sept., 1961 the defendant with the aid of some accomplices forcibly removed two doors fixed by the plaintiff himself as well as the old wood for Chhajan stored by him. It was averred that the defendant was preventing the plaintiff from using his shop by covering the demised premises with Tripal and threatened to occupy forcibly the site of the shop of which the plaintiff was the tenant. It was prayed that by means of a permanent injunction the defendant be prohibited from interfering with the plaintiff's possession as tenant of the site of the shop and the surviving constructions. An application was also made for an interim order of injunction. Initially the trial court passed an order that status quo be maintained. Ultimately after hearing the parties, the learned Munsif vacated the interim order. The injunction order having, been vacated, the defendant constructed three pucca shops on the site of the old shop of which the plaintiff was the tenant. Thereupon the plaintiff on the 16th Mar., 1962 applied for amendment of the plaint and prayed for possession over the site as also the three new shops constructed by the defendant. The defendant resisted the claim on the allegations that nearly four years ago due to heavy rains, contributed by the wrongful omission of the plaintiff to get repairs done of the shop, it fell down and the tenancy of the plaintiff came to an end. According to the defence, the defendant being in possession of the site of the old shop as Mutwalli had full right to reconstruct it. It was pleaded that tenancy of the plaintiff terminated on the date of the destruction of the shop and with unfair motives the plaintiff had made the application under S. 7-E of U. P. Act No. 3 of 1947, which was rightly rejected in view of the absence of the accommodation sought to be repaired. The suit was claimed to be barred by time and estoppel and it was pleaded that it was not maintainable. On the pleadings of the parties, the following issues were framed by the trial court: "1. WHETHER the plaintiff is lessee of the shop in suit? 2. WHETHER the tenancy of the plaintiff continues or came to an end? 3. WHETHER the suit is barred by Ss. 42, 54 and 56, Specific Relief Act? 4. WHETHER the suit is barred by time? 5. To what relief, if any, is the plaintiff entitled? 6. WHETHER the suit is bad due to nonjoinder of necessary parties? 7. WHETHER the plaintiff is entitled to possession over the plot in suit? 8. WHETHER the suit has been undervalued and the court-fee paid is insufficient?" Issues Nos. 1, 2 and 7 as framed were decided together. It was held that the shop which was in the tenancy of the plaintiff had met with its "natural fate and died of its own death." It was neither the act of God nor any unforeseen event, nor the wrongful act of the lessor which contributed to its rotten condition. Soon after the application under S. 7-E of U. P. Act No. III of 1947 was made, the learned Munsif made a local inspection and he had given a detailed description that the entire accommodation had fallen down and there were no independent walls standing on the site. Under the circumstances if at all any one is to be blamed, it was the plaintiff himself who was occupying the house and had taken no care for its repairs. The trial court held that "it is quite possible that the destruction to the accommodation took place any time before 1958 and as such the probable year seems to be 1955-56 as alleged by the defendant, and not the year 1961 as alleged by the plaintiff." The learned Munsif further held that:- "It is well-settled law, almost commonly acceptable to all that the tenancy terminates with the accommodation. Where there is no accommodation at all, there can be no tenancy. It would be very hard and also unknown to the established principles of equity, that the lessee be allowed to remain a lessee in perpetuity for all the buildings proposed to be erected over the site of the old accommodation and also over the site of the land of the accommodation itself. I think there is no provision of law" under which a lessee is allowed to remain in possession river the site of the land after the demolition of the accommodation, not only this, but it is even against the provisions of law." The trial court disbelieved the assertion of the plaintiff that after the shop had fallen down, he continue to be in possession of the site by carrying on his jewellery business under a canopy. The learned Munsif further held that the plea of S. 108 (e) of the Transfer of Property Act-hereinafter referred to as the Act- would have been available to the plaintiff if he had continued in possession upto the date of the event. But in this particular case the lease as well as the accommodation ceased to exist much before the act which the plaintiff alleged. The learned Munsif referred to the definition of "accommodation" as given in Section 2 of U. P. Act No. III of 1947 and took the view that when the constructions of which the plaintiff was the tenant fell down, it ceased to be "accommodation" within the meaning of U. P. Act No. III of 1947 and the tenancy of the plaintiff expired with the accommodation. While deciding issues Nos. 1, 2 and 7, the learned Munsif concluded that the plaintiff was not the lessee of the site in suit and his tenancy terminated and he was not entitled to the possession of the shop in dispute. In view of the findings on issues Nos. 1 and 2, the learned Munsif considered it redundant to decide issues Nos. 3 and 4. Issues Nos. 6 and 8 had already been decided by the predecessor of the learned Munsif who dismissed the suit ultimately. The lower appellate court on appeal by the appellants dismissed the appeal and upheld the decree of the trial court. The sole question, according to the learned Additional Civil Judge, was as to whether the plaintiff is still the tenant of the shops in suit and he is entitled to get the same. He observed that "it is admitted case of the parties that the plaintiff was tenant of the previous shop in suit on behalf of the defendant and that that shop no longer exists now and new shops have been constructed in its place." It was observed that the plaintiff was not entitled to the benefit of S. 108 (e) of the Act since "the above provisions show that the option of the lessee for rendering a tenancy void arises in case of fire, tempest or flood, or violence of army or a mob or other irresistible force. In the instant case I find that there is no allegation in the plaint at all about such contingency pointed above." Referring to para 3 of the written statement and the admission made by the defendant, it was held that the premises in question fell down due to excessive rain. In the view of the learned Additional Civil Judge excessive rain does not mean flood within the meaning of S. 108 (e) of the Act. The court of first appeal went on to hold that the plaintiff himself had contributed towards the factors which led to the falling down of the shop since he had not taken timely steps to get the Kachcha shop repaired. The decision of this Court in Dr. Kundan Lal, 1964 All LJ 1120 : (AIR 1966 All 225) (supra) was distinguished by the court of first appeal. It was held that the plaintiff was not entitled to the benefit of S. 108 (e) of the Act in respect of the newly constructed shops. The court below observed that:- "There is no allegation of the plaintiff that he was tenant of the site also and naturally after falling down of the previous shops in question the tenancy of the plaintiff automatically came to an end." In the view of the court of first appeal, the plaintiff could not claim tenancy in respect of the new shops in question constructed in the year 1961-62. Aggrieved by the decree of the court below, the appellants, who are the heirs and legal representatives of Radhey Kishun, appealed to this Court.
(3.) WHEN the appeal came up for hearing, learned counsel for the appellants placed reliance on S. 108 (e) of the Act in support of his contention that the plaintiff-appellants continued to be the tenants of the site of the old shop and the newly constructed shops thereon since they have not exercised the option of surrendering their tenancy and it was urged that, therefore, the relationship of landlord and tenant between the respondent and the appellants continued not only in respect of the site of the shop that originally stood but also the newly constructed shops. In support of the contention, reliance was placed on a single Judge decision of this Court in D. Kundan Lal v. Shamshad Ahmad (AIR 1966 All 225) (supra). Learned counsel for the respondent, on the other hand, contended that the case was not covered by S. 108 (e) of the Act since the building fell down on account of rains and natural decay. He based his arguments mainly on S. 56 of the Contract Act and urged that the contract of tenancy had become impossible of performance and as such became void after the building had fallen down. He contended that the lease stood automatically terminated when the structure ceased to exist and the corpus of the lease disappeared. According to the learned counsel for the respondent, S. 108 (e) of the Act has no application to a case in which the building has fallen down due to natural causes. The learned single Judge was inclined to agree with this contention, but was prevented from doing so in view of the decision of this Court in Rahim Bux v. Mohammad Shafi (AIR 1971 All 16) (supra) in which it was held that section 56 of the Contract Act cannot apply to a lease which is a contract creating an estate in land. In these circumstance, the two questions quoted in an earlier part were referred for the opinion of a larger Bench.;