Lease of building with site not frustrated by superstructure collapse; unauthorised tenant construction can still be removed.

Where a lease of a building includes the site and the site remains intact, destruction of the superstructure does not by itself frustrate the lease under Section 108(e) of the Transfer of Property Act. The tenancy continues if the building is treated as a composite unit with the appurtenant land, and the landlord cannot seek eviction or recovery of possession solely on that basis. However, a tenant has no right to raise fresh unauthorised construction after the original structure collapses, so a mandatory injunction may be granted to remove the unlawful construction.

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Issues: (i) Whether destruction of the superstructure terminated the lease by frustration under Section 108(e) of the Transfer of Property Act when the site formed part of the lease; (ii) whether the landlord was entitled to eviction and recovery of possession or only to a mandatory injunction against the tenant's unauthorised construction.

Issue (i): Whether destruction of the superstructure terminated the lease by frustration under Section 108(e) of the Transfer of Property Act when the site formed part of the lease?

Analysis: The expression "building" was held to include the site unless the site was specifically excluded. The Rent Control Act definition also treated a part of a building and appurtenant land as included within the tenancy unit. On the facts, the lease was of the building as a composite unit and not of the superstructure alone. Since the site remained and the building was not totally destroyed, the statutory rule of frustration did not operate and the landlord-tenant relationship continued.

Conclusion: The lease did not automatically terminate on destruction of the superstructure, and this issue was decided against the contention that the tenancy had ended.

Issue (ii): Whether the landlord was entitled to eviction and recovery of possession or only to a mandatory injunction against the tenant's unauthorised construction?

Analysis: Although the tenancy continued and recovery of possession was not available on the footing of frustration, the tenant had no right to erect fresh constructions after the collapse of the original structure. The unauthorised construction could therefore be directed to be removed, while the claim for recovery of the property itself could not be granted.

Conclusion: The prayer for recovery of possession was refused, but a decree for mandatory injunction to remove the unauthorised construction was granted.

Final Conclusion: The appeal succeeded only to the extent that eviction and recovery were declined, while the tenant was bound to remove the unauthorised structure and the landlord could enforce that relief through execution.

Ratio Decidendi: Where a lease of a building includes the site and the site remains intact, destruction of the superstructure does not by itself frustrate the lease; the tenancy continues, though unauthorised constructions by the tenant may still be restrained and removed.

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