wp2638.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.2638/2011 Madhukar Papaji Petpulliwar -vs- P. Narayan Ambadas Naidu (Mudliar) thr. L.Rs. ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri A. K. Choube, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : 14.09.2011. By this petition, the petitioner impugns the judgment passed by the trial Court on 18/12/2007 as also the judgment passed in Appeal on 17/01/2011 confirming the judgment passed by the trial Court dismissing the suit filed by the plaintiff for permanent injunction against the respondent- defendant restraining him from forcibly dispossessing the petitioner from the suit shop block. A permanent injunction was also claimed by the petitioner restraining the respondent from interfering with the repair work carried out by the plaintiff. The petitioner had sought a decree for possession of the two shop blocks after reconstruction of the same by the respondent. It was the case of the petitioner that the respondent had taken forcible possession of the suit land on which the shop blocks were constructed after they collapsed wp2638.11.odt 2/3 due to heavy rain, in the last week of December, 2003. Since the shop blocks had collapsed due to heavy rain, the petitioner sought a direction to the respondent for reconstruction and the possession of reconstructed premises. The trial Court by the judgment dated 18th December, 2007 held that the relationship between the landlord and the tenant came to an end after the suit premises collapsed due to natural calamity. The trial Court held that the petitioner was not in possession of the land on which the premises were standing before they had collapsed as the petitioner had abandoned the same fearing that they would collapse due to heavy rain. The trial Court observed that the petitioner had also not paid any rent after 27/09/2003. In such circumstances, the trial Court held that the relief sought by the petitioner could not have been granted to the petitioner and the suit was liable to be dismissed. The first appellate Court confirmed the findings recorded by the trial Court by relying on the judgments rendered by the Hon’ble Supreme Court and this Court. The first appellate Court held that on the destruction of the shops the petitioner has ceased to occupy the shop premises and he was not carrying on any business therein. On an appreciation of the provisions of Section 108(B)(e) of the Transfer of Property Act, 1882, it was observed by the first appellate Court that the tenancy stood extinguished with the destruction of the suit premises by the natural calamity. The appellate Court wp2638.11.odt 3/3 observed that on destruction of the shops the tenancy cannot be said to have been continued since the tenancy of a shop presupposes the existence of a property and there cannot be subsistence of tenancy where the property is not in existence. Both the Courts were justified in holding that the petitioner was not entitled to seek the reliefs sought in the suit. The judgment reported in 2000 AIR SCW 4592 and relied on by the counsel for the petitioner does not support the case of the petitioner and in fact supports the case of the respondent. Since the judgments passed by the trial and the first appellate Courts are just and proper, the writ petition is dismissed with no order as to costs. JUDGE KHUNTE