JUDGMENT - P.B. SAVANT, J.:---By this petition under Article 227 of the Constitution, the petitioners seek to challenge the order dated 9-8-1974 passed by the District Judge, Ahmednagar in Appeal No. 76 of 1973 in the proceedings under the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). 2. The petitioners were the tenants in respect of the suit premises consisting of two rooms on the ground floor of the building bearing Municipal House No. 1003 situate in Ward No. 4, C.T.S. No. 814 at Shrirampur, District Ahmednagar. Respondent No. 1 is the landlord of the suit premises. The landlord terminated the tenancy of the petitioners on the ground that the tenants had without his consent erected on the suit premises a permanent structure. The permanent structures complained of were three in number and they were an ota, a mori and a water cistern built in bricks, mortar and cement of the size of 3-1/4 long, 2-1/2 in width and 3 high. The landlord called upon tenants to quit and vacate the suit premises. The tenants having failed to comply with said requisition the landlord filed a suit being regular Civil Suit No. 111 of 1969 in the Court of Civil Judge, Junior Division, Rahuri. Before the trial Court the grievance about the first structure viz. the ota was not pressed. The trial Court however held that the second structure complained of viz. the mori was not a permanent structure, but held that the water cistern i.e. the third structure was a permanent structure within the meaning of section 13(1)(b) of the said Act, and it was constructed without the consent of the landlord and decreed the suit of the plaintiff. In appeal filed by the tenants the only question before the lower Appellate Court was whether the water cistern which was held to a permanent structure by the trial Court was so within the meaning of section 13(1)(b) of the said Act and whether it was constructed without the consent of the landlord. In appeal filed by the tenants the only question before the lower Appellate Court was whether the water cistern which was held to a permanent structure by the trial Court was so within the meaning of section 13(1)(b) of the said Act and whether it was constructed without the consent of the landlord. The lower Appellate Court after going through the evidence on record and considering the contentions raised on behalf of both the sides came to the conclusion that the said water cistern was a permanent structure within the meaning of the said provisions and there was no evidence to show that the tenants had taken any consent of the learned for constructing the same. In the result the Appellate Court dismissed the appeal filed by the tenants by confirming the finding of the lower Court. It is against this order dated 9-8-1974 passed by the Appellate Court that the present petition is filed. 3. Mr. Bhatia appearing for the petitioners-tenants relied upon several authorities in support of his contention that the conclusion that the conclusion of the Courts below that the said water cistern was a permanent structure was erroneous in law. He cited before me the following decision :- (1) 1943(2) All England Law Reports, 587, (2) A.I.R. 1964 Cal. 1, (3) 1931(2) Chenchery Division, 183, (4) 74 Bom.L.R. 220, (5) A.I.R. 1965 Cal. 408, (6) A.I.R. 1940 Mad 527, and (7) an unreported decision of Justice V.A. Naik in C.R.A. No. 1706 of 1962 decided on 22nd/23rd July, 1963. The decision reported (South Wales Aluminium Co. v. Assessment Committee for the North Assessment Area)1, 1943(2) A.E.L.R. 587, is on the interpretation of the words "buildings or structures" under the Plant and Machinery (Valuation for Rating) Order, 1927 issued under the Rating and Valuation Act, 1925 and the decision reported (S.P.K.N. Subramanian Firm, Trichinapolly by Managing Partner S.P.K.N. Subramanian Chettar v. M. Chidambaram Servai)2, A.I.R. 1940 Mad. 527 is on the construction of the words "immovable property" under section 3 of the Transfer of Property Act, 1882. These decisions have obviously no relevance for the purposes of construction of the expression "permanent structure" in section 13(1)(b) of the said Act. 4. As regards the decision (Spyer v. Phillipson)3, 1931(2) C.D. 183, the same relates to the construction of certain clauses in a deed of transfer by which the landlord had leased out the property to the tenant. These decisions have obviously no relevance for the purposes of construction of the expression "permanent structure" in section 13(1)(b) of the said Act. 4. As regards the decision (Spyer v. Phillipson)3, 1931(2) C.D. 183, the same relates to the construction of certain clauses in a deed of transfer by which the landlord had leased out the property to the tenant. The dispute entered round the right of the defendants to remove out of the flat demised certain valuable antique oak and pine panelling, chimney pieces and fire places, which had been installed in some of the rooms in the flat by the tenant and which were claimed by the landlord, as his fixtures and therefore his property and not removable by the defendants. It is in this context that it was held in that decision that in determining whether a particular chattel was a tenants or a landlords fixture the Court had to consider what were the object and purpose of the annexation, and what would happen if the annexed chattel were removed. It was also observed further that so long as the chattel could be removed without doing irreparable damage to the demised premises, neither the method of attachment nor the decree or annexation, nor the quantum of damage that would be done either to the chattel itself or to the demised premises by the removal, had any hearing on the right of the tenant to remove it, except in so far as it threw a light upon the question of the intention with which the tenant affixed the chattel to the demised premises. The said observation in the said decision on which Mr. Bhatia tried to rely for the purpose of advancing his contention have obviously no bearing on the issue involved in the present case. 5. In (Suka Ishram Chaudhari v. Ranchhoddas Manakchand Shet Gujarathi)4, 74 Bom.L.R. 220 what was leased out was an open plot of land the tenant had constructed a temporary shed on it and had put up a wall in brick an mortar on one side of the shed to protect his goods from theft and had also put a partition wall dividing the shed into two portions. It was held by a Single Judge of this Court in that case that in the circumstances of the case the walls could not be said to be permanent structure within the meaning of section 13(1)(b) of the said Act. 6. In (Messrs Suraya Properties Pvt. Ltd. v. Bimalendu Nath Sarkar)5, A.I.R. 1965 Cal. 408, the question was whether a reservoir was permanent structure within the meaning of section 108(p) of the Transfer of Property Act, 1882. Justice Chatterjee in his separate judgment in paragraph 7 on page 412 (on which Mr. Bhatia relied) has stated that he would not be inclined to accept that reservoir would be a permanent structure for purpose of section 108(p) of the Transfer of Property Act and expressed his difference of opinion from the views expressed by the Allahabad High Court reported in (Kamal Kant v. Kishan Lal)6, 1956 All. L.J. 871. 7. In (Surya Properties Pvt. Ltd. v. Bimalendu Nath Sarkar and others)7, A.I.R. 1964 Cal. 1, it has been held that the question whether a particular construction is a permanent structure or not for the purpose of Clause (p) of section 108 of the Transfer of Property Act depends upon the facts of each case and no hard and fast rule can be laid down with regard to this matter. In the absence of relevant materials, no answer can be given to the question whether a room with two inches brick built walls and a corrugated iron roof, is a permanent structure within the meaning of the provisions of the said section. 8. In (C.R.A. No. 1706 of 1962 referred)8, to above, Justice V.A. Naik had stated that the construction of a well cannot be said to fall within the mischief of Clause (b) of section 13(1) of the said Act. But these observations on which Mr. Bhatia relies have to be taken in the context of the other facts present in that case. In the lease deed the construction of which was an issue in the said case, there was a provision permitting the tenant to put up a new structure if and when he liked. Admittedly further, in that case, there was already a tank in which water was stored and all that was done by the tenant was to deepen it and construct a well. Admittedly further, in that case, there was already a tank in which water was stored and all that was done by the tenant was to deepen it and construct a well. There was further an agreement in the lease deed whereby the lessee had agreed to restore the land to such condition as would be useful for agriculture purposes. The learned Judge held that the well would be more useful for agricultural purposes. The said statement therefore has to be read in the aforesaid context. These all the decisions which were cited before me by Mr. Bhatia. It will thus be obvious from a ratio of the said decisions that whether a structure is a permanent structure or not will depend upon the facts and circumstances of each case. I did not call upon Mr. Pendse appearing for respondent No. 1 - landlord to reply to the contentions advanced by Mr. Bhatia, for according to me, there are other decisions which admittedly take a view that even a partition wall or a mori is a permanent structure within the meaning of the said Act. The position in law as it obtain at present is that whether a construction is a permanent structure or not will depend upon the various factors including the nature of the premises let, the purpose for which they are let, the nature of the construction, the mode and the manner in which and the material of which they are made, the intention with which they are made and the consequences of the said construction, so far as concerns the leased property at the time it was constructed and at the time when it might have to be dismantled, etc. Thus, it will depend upon the facts and circumstances of each case as to whether a construction made will fall within the purview of the provisions of section 13(1)(b) of the said Act. Admittedly, in the present case, the tenant leased is a two room tenement. The construction complained of is a water cistern of 3-1/4, long, 2-1/2, wide 3 high i.e. of the size of about 24 cubic feet. Its capacity to store water is between 400 to 500 litres. It is constructed in cement and bricks and is intended to be a permanent accompaniment of the tenement. It cannot be removed except by demolishing it and on demolition its identity and utility will admittedly disappear. Its capacity to store water is between 400 to 500 litres. It is constructed in cement and bricks and is intended to be a permanent accompaniment of the tenement. It cannot be removed except by demolishing it and on demolition its identity and utility will admittedly disappear. The lower Court had also inspected the side structure and after finding the aforesaid facts relating to the said construction, given its conclusion that the said masonry work was a permanent structure within the meaning of the said section. The Appellate Court for the same reasons came to the same conclusion. In the circumstances of the case therefore, it cannot be said that the conclusion drawn by the lower courts disclose any error apparent on the face of the record. It is a finding of fact and the said finding cannot be said to be either unreasonable or perverse. It is only if it is shown that the said finding is unreasonable and perverse or discloses any apparent error of law that this Court will be entitled to interfere with the same. All that Mr. Bhatia argued before me is that on the basis of the authorities which were cited by him it was also possible to come to the conclusion that the said cistern was not a permanent structure, that as I have already observed earlier, whether a particular structure, is a permanent structure or not will depend upon the facts and circumstances of each case and there are also other decisions which have taken the view which will support the view taken by the lower courts in the present case. Therefore it cannot be said that the decision of the lower courts is vitiated by any error and the same requires to be corrected by this Court. I therefore decline to interfere with the concurrent findings of fact given by the lower courts on that issue. 9. Mr. Bhatia then contended that after the decision of the lower Appellate Court, there was a conversation between the plaintiff and the defendants and in that conversation the plaintiff had in terms admitted that he had given consent to the construction of the said cistern. 9. Mr. Bhatia then contended that after the decision of the lower Appellate Court, there was a conversation between the plaintiff and the defendants and in that conversation the plaintiff had in terms admitted that he had given consent to the construction of the said cistern. He therefore argued that although there was no evidence besides the statement of the tenants that there was an oral consent for constructing the said cistern, the said conversation which was tape recorded and which is annexed as Exhibit A to the petition should be taken into consideration for giving a finding that in fact there was such consent. He further urged that respondent No. 1- landlord had not filed any affidavit denying the said conversation. I am afraid I cannot take into consideration the so-called tape-recorded conversation which is at Ex A to the petition, which was admittedly after the decision of the Appellate Court. There is no provision of law for taking into consideration such conversation, assuming that it was a genuine conversation, truly and correctly recorded as contended by Mr. Bhatia. As regards the failure of the landlord to file his affidavit denying the said conversation, it has only to be stated that unless the landlord was called upon to file his affidavit denying the said conversation, there was no obligation on the landlord to do so in proceedings under Article 227 challenging the decision of the lower courts. The matter has to be decided in this Court on the basis of the record as it obtained before the lower Courts. In this view of the matter I find that there is no substance in this argument as well. In the result the petition fails and the rule is discharged with costs. -----