JUDGMENT 1. THIS appeal is at the instance of the defendant in a suit for eviction. 2. THE plaintiff, who is the wife of Chandi Charan Bose, since deceased instituted the suit against the defendant: for his eviction. Her case was that under an agreement for lease dated pous 20, 1327 B.S. corresponding to january 5, 1968, entered into by and between the defendant and the plaintiff's husband, the said Chandi Charan bose, the defendant was granted a tenancy in respect of premises no. 10, kailash Bose Street which is a two storied building, excluding two rooms on the second floor and the roof of that floor, at a rent of Rs. 475/- per month payable according to the Bengali calendar month. It was agreed between the parties that a formal lease would be executed, but before the execution of such a lease Chandi Charan Bose died. Under the agreement, the plaintiff was to use the first floor for his business purpose and the second floor, excluding the two rooms and the roof, for residential purpose. It was alleged by the plaintiff that the defendant without the consent of the plaintiff and/or her husband installed three printing machines on the ground floor of the suit premises and made additions and alteratins to the premises and started doing job printing works. The running of the printing machines had been causing damage to the suit premises and noise and annoyance to the people of the locality. One of the said printing machines was installed, by the plaintiff in a ground floor room by digging up and destroying the costly mosaic floor. Further, if was alleged that the defendant was "a habitual defaulter in payment of rent. He had also sublet a portion of the suit premises to one gobardhan Pakray without the consent in writing of the landlord. The plaintiff, by a notice to quit, determined the tenancy of the defendant, but the defendant not having vacated the suit premises, she instituted the suit for his eviction. The plaintiff also claimed damages of Rs. 1,000/- for the damage caused by the defendant to the suit premises. The plaintiff, by a notice to quit, determined the tenancy of the defendant, but the defendant not having vacated the suit premises, she instituted the suit for his eviction. The plaintiff also claimed damages of Rs. 1,000/- for the damage caused by the defendant to the suit premises. During the pendency of the suit, the plaint was amended at the instance of the plaintiff by incorporating therein a statement to the effect that the defendant had without the consent of the plaintiff converted the open court-yard into a room by covering the same permanently and also converted one room into two by partition and constructed a mezzanine floor therein. The defendant had also dismantled one iron door of the strong room and caused damage. It was contended that these acts of the defendant contravened the provisions of clauses (m), (o) and (p) of section 108 of the Transfer of Property act. 3. THE defendant entered appearance in the suit and contested the same by filing a written statement. He denied that he had installed the printing machines in the suit premises without the consent of the landlord. He also denied that he had caused any damage to the suit premises or that he had sublet a portion of the same to the said gobardhan Pakray. He asserted that he had made the constructions with the consent of the landlord. He denied that his acts contravened the provision of clauses (m), (o) or (p) of section 108 of the Transfer of Property Act, as alleged. 4. THE learned Judge, 11th Bench, city Civil Court, Calcutta came to the finding that as the defendant had complied with the provision of section 17 (1) of the West Bengal Premises Tenancy act, 1956 by depositing all arrears of rent together with statutory interest, he was protected against eviction on the ground of default in payment of rent under the provision of section 17 (4) of the said Act. The learned Judge disbelieved the case of the plaintiff that the defendant had sublet a portion of the suit premises to the said Gobardhan pakray. He, however, held that the defendant had no right to install the printing machines in the suit premises under the terms of the agreement. The learned Judge disbelieved the case of the plaintiff that the defendant had sublet a portion of the suit premises to the said Gobardhan pakray. He, however, held that the defendant had no right to install the printing machines in the suit premises under the terms of the agreement. Further, he held that the defendant was guilty of violation of clauses (o) and (p) of section 108 of the Transfer of Property Act and, as such, the plaintiff was entitled to a decree for ejectment. As to the plaintiff's claim for damages, the learned Judge held that the plaintiff failed to prove any damage. Moreover, he found that it was admitted that the defendant lad repaired the cracks that appeared due to the installation of the said-machines. Upon the said findings, the learned judge decreed the suit for recovery of possession of the suit premises by evicting the defendant there from. He, however, disallowed the plaintiff's claim for damages. Hence this appeal by the defendant. The pain tiff has also filed a cross-objection, to the decree in so far as it disallowed her claim for damages. It is also directed against the finding of the learned Judge that the plaintiff had failed to prove sub-letting of the suit premises by the defendant. It is the plaintiff's case that the defendant' was inducted into the suit premises under the said agreement for lease which was proved and marked as Exhibit 2. P.W.2, the plaintiff's son, who proved Exhibit 2 stated in his evidence that it was agreed between the defendant and his father that a date was to be fixed for execution of a formal document of lease, but before that document could be executed his father died. Accordingly, no formal lease was executed. Exhibit 2, however, is a formal lease and not an agreement for lease. By Exhibit 2 there was a present demise. Mr. Hirendra Chandra ghose, learned Advocate appearing on behalf of the plaintiff "respondent has frankly admitted that Exhibit 2 is a lease and not an agreement for lease, although the document has been described as an agreement for lease. The learned Judge does not appear to have applied his mind to this aspect of the matter. Now there is no dispute between the parties that Exhibit 2 is a lease executed by both the parties, but the same is not registered. The learned Judge does not appear to have applied his mind to this aspect of the matter. Now there is no dispute between the parties that Exhibit 2 is a lease executed by both the parties, but the same is not registered. The lease is for a term of 21 years commencing from the 1st day of Magh, 1374 B. S. The lease was, therefore, not admissible in evidence for want of registration. The plaintiff, however based her case on the terms of Exhibit 2 treating it as an agreement for lease not required to be registered. 5. MR. Ranjit Kumar Baneijee, learned Advocate appearing on behalf of the defendant appellant, submits at the outset that the defendant is entitled to rely on the doctrine of part performance as embodied in section 53a of the Transfer of Property Act in resisting the plaintiff's claim for possession of the suit premises. The question naturally arises whether the defendant who has not pleaded section 53a in his written statement should be permitted to rely on the same for the first time in the appeal. Mr. Banerjee has placed reliance on a Full Bench decision of this court in Piru Charan Pal-vs-Minor sunilmoy Neme and another, A.I.R. 1975 Cal. 1 F.B., where it has been held that the defendants having stated all ingredient facts for the purpose of section 53a, were entitled to raise the defence under section 53a, even though there has been no mention of that section in the written statement. The decision of the Full Bench is binding upon us. The question, however, is whether the defendant has stated all ingredient facts in support of his defence under section 53a. It has been already noticed that in the written statement, no such defence was taken by the defendant and that for the first time it has been taken before us. The decision of the Full Bench is binding upon us. The question, however, is whether the defendant has stated all ingredient facts in support of his defence under section 53a. It has been already noticed that in the written statement, no such defence was taken by the defendant and that for the first time it has been taken before us. The ingredient facts are those mentioned in section 53a itself, namely, (1) there is a contract to transfer for consideration, (2) the terms necessary to constitute the transfer can be ascertained with reasonable certainty, (3) the transferee has, in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and (4) the transferee has performed and is willing to perform his part of the contract. There is no dispute that the lease was signed by the said chandi Charan Bose and the defendant. The defendant has in part performance of the contract taken possession of the suit premises and, by the admitted fact of the payment of a sure of Rs. 3,000/- as advance rent, he has done some act in furtherance of the contract. There is no dispute between, the parties as to the above facts, but the dispute is whether the transferee, that is, the defendant, has performed or is willing to perform his part of the contract. It is contended on behalf of the plaintiff respondent that the defendant not having paid the arrears of rent and having violated the terms of the contract by installing the printing machines and by making additions and alterations to the suit premises, it should be held that he has not performed and is not willing to perform his part of the contract. It is, accordingly, submitted on behalf of the plaintiff that the defendant is not entitled to invoke the equitable doctrine of part performance under section 53a of the Transfer of property Act. 6. It is, accordingly, submitted on behalf of the plaintiff that the defendant is not entitled to invoke the equitable doctrine of part performance under section 53a of the Transfer of property Act. 6. SO far as the non-payment of arrears of rent is concerned, it has been already found that after entering appearance in the suit, the defendant had deposited all arrears of rent together with statutory interest under the provision of section 17 (1) of the West bengal Premises Tenancy Act, 1956 and, accordingly, the plaintiff's claim for eviction on the ground of default in payment of rent failed. So it cannot be said that the defendant has not performed his part of the contract by not paying the arrears of rent, nor can it be said that he is not willing tot perform his part of the contract so far as the payment of rent by him is concerned, for the defendant has been regularly going on deposit ting rent in the court below ever since the institution of the suit. The other point, namely, whether the defendant has acted in violation of the terms of the lease requires some consideration. There can be no doubt that if a transferee acts contrary to the terms of the contract, he cannot avail himself of the equitable doctrine of part performance. The first allegation of the plaintiff is that the defendant has without the consent of the landlord and in violation of the terms of the lease installed in the suit premises three printing machines. It has been found by the learned judge that the defendant had no right to install the printing machines under the terms of the agreement for lease. Exhibit 2 which is the unregistered lease provides that the defendant undertakes not to use the ground floor of the demised: premises other than for business purpose and the second floor excluding, however, the two rooms thereof, for residential purpose. There is no dispute that the defendant has been using the second floor for residential purpose. The lease dose not specify what sort of business the defendant is entitled to carry on in the demised premises. In the absence of any specification the defendant, in our opinion, is entitled to carry on any lawful business in the ground floor of the suit premises. The lease dose not specify what sort of business the defendant is entitled to carry on in the demised premises. In the absence of any specification the defendant, in our opinion, is entitled to carry on any lawful business in the ground floor of the suit premises. The evidence of the defendant, however, is that he took the tenancy from the husband of the plaintiff for two fold purposes, firstly, for running a printing press and secondly, for residential purpose. In his cross-examination, he said that he wanted to incorporate in the agreement that he would run a printing press, but at the request of the landlord that was not incorporated in the agreement. The fact, however, remains that the defendant after he occupied the suit premises, installed the printing press therein. The suit has been instituted about six years after the creation of the lease in favour of the defendant. It does not appear that any objection in writing was made by the landlord to the installation and running of the printing press in the suit premises. If the defendant had no right to run a printing press, it is not understandable why no step was taken by the landlord to prevent the defendant from carrying on the business of printing in the suit premises. The learned Judge has taken the view that as the defendant's request to incorporate into Exhibit 2, the carrying on of the business of a printing press was lot acceded to by the landlord, the landlord had no intention to allow the defendant to install the printing, machines. We are unable to subscribe to the view of the learned Judges If the landlord had come to know about the particular type of business the defendant would carry in the suit premises and if he was unwilling to permit him to carry oh such a business, he would have surely included a clause in the lease precluding the defendant from installing any printing machine in the suit premises. On the contrary, the land lord did not specify the business the defendant was permitted to carry on in the suit premises. We believe the evidence of the defendant that he took the tenancy for the purpose of running a printing press by installing printing machines in the suit premises. On the contrary, the land lord did not specify the business the defendant was permitted to carry on in the suit premises. We believe the evidence of the defendant that he took the tenancy for the purpose of running a printing press by installing printing machines in the suit premises. The fact that no steps was taken by the landlord for about six years supports the case of the defendant. It has been observed already, that in the absence of any specification of the business, the. defendant was entitled to carry on the business of printing in the suit premises. 7. A significant fact may be noticed in this connection. It transpires from the evidence of the defendant that a commercial meter was arranged for in the suit premises by the plaintiff's son, R W. 2, and that the meter stands in the name of the plaintiff's father Chandi Charan Bose. The commercial meter was necessary for the running of the printing press. We do not find any reason to disbelieve the defendant that it was P. W. 2 who arranged for the commercial meter in the suit premises on behalf of the defendant. We, therefore, hold that the defendant was permitted to run the printing press by installing the printing machines in the ground floor of the suit premises. 8. LET us now consider whether the defendant has violated the terms of the lease by making additions and. alterations to the suit premises and thereby caused damage to the same. It is the plaintiff's case that the defendant has converted the open court-yard into a room by covering the same, constructed a mazenine floor inside a room and has converted the said room into two rooms by a partition. The evidence of the defendant is that in the month of February 1968 he purchased one printing machine and subsequently he purchased two other machines. He has covered the courtyard with asbestos sheds, but he took verbal permission of the landlord before erecting the same. He has affixed a printing machine to the floor of a room in the ground floor and for that purpose he had to open a portion of the mosaic floor. He, however, did not take any permission of the landlord for the same. He has affixed a printing machine to the floor of a room in the ground floor and for that purpose he had to open a portion of the mosaic floor. He, however, did not take any permission of the landlord for the same. Further, he admits that he had erected a wooden mezzanine floor in that room and for that purpose he had to fix wooden beams on the wall. He did not also take the permission of the landlord for the same. In our view, the defendant has not suppressed any fact from the court, for he has frankly admitted that he did not take any permission of the landlord for the installation of a machine in the room with mosaic floor or for the construction of the wooden mezzanine floor in that room. In these circumstances, we believe that he covered the court-yard with asbestos sheds after taking verbal permission of the landlord. It has been alleged by the plain tiff that she was not aware of the acts of the defendant, but she came to know of the same for the first time from the report of the Commissioner for local inspection and thereafter made the application for the amendment of the plaint. We are unable to believe that the plaintiff was not aware of the construction of the asbestos shed in the court-yard or the installation of a printing machine in the mosaic floor or the construction of a mezzanine floor. The plaintiff has been in possession of two rooms in the second floor and resides in the adjacent house which is separated from the suit premises by a common wall. We believe that the defendant has constructed the asbestos shed in the court-yard with the permission of the landlord and that was the reason why the plaintiff did not initially allege in the plaint that fact as one of the violations of the terms of the lease committed by the defendant. The question; however, is whether by constructing the mezzanine floor and by installing a printing machine on the mosaic floor of the room, the defendant has violated the terms of the lease or the provisions of clauses (o) and (p) of section 108 of the Transfer of Property Act. According to the Commissioner for local inspection, the main office room of the defendant has a wooden platform overhead. According to the Commissioner for local inspection, the main office room of the defendant has a wooden platform overhead. This platform has been described by the plaintiff and the defendant as the mezzanine floor. Further, the Commissioner has found that the main office room has been divided into two rooms by a wooden partition and a door, and one of the printing; machines has been installed there. The learned Commissioner has not, however stated whether the wooden platform covers the entire length and breadth of the room concerned. Under clause (p) of section 108 of the Transfer of Property Act, the lessee must not, without the lessors consent erect on the property any permanent structure. The wooden platform as stated in the Commissioner's report does not, in our opinion, seem to be a permanent structure, nor is the wooden partition dividing the room, a permanent structure. The wooden partition can easily be removed and so it is a temporary structure. The construction of these structures, therefore do not offend the provision of clause (p). 9. IN this connection, it remains to be considered whether any damage has been done by the defendant to the suit premises by the installation of the machine in the room having a mosaic floor. Clause (3) of the terms of the lease inter alia provides that the "lessee tenant" further undertakes to repair damages if any occurring during his tenancy for business purposes. It is apparent from clause (3) that the lessor was quite conscious of the fact that there would be damage to the suit: premises by the use of the same by the defendant for the purpose of his business, that is, for the purpose of running a printing press by the installation of printing machines. In case any damage is made to the suit premises, the defendant: is obliged to repair the same under the terms of 116 lease. If the defendant was only permitted to use the ground floor of the suit premises for the purpose of his office is alleged by the plaintiff In the plaint, there was no question of any damage being done to the suit premises and insertion of a clause in the lease in that regard. If the defendant was only permitted to use the ground floor of the suit premises for the purpose of his office is alleged by the plaintiff In the plaint, there was no question of any damage being done to the suit premises and insertion of a clause in the lease in that regard. It has been already held by us that the defendant was permitted to in-stall the printing machines and to in a printing press in the suit premises, and that in any event, he was entitled to do so under the terms of the lease. It is not disputed that the printing machines 'have to be affixed to the ground and some damage would be done to tie floor. Under the terms of the lease, the defendant was impliedly permitted to do that much of damage to the suit promises. But it was his duty to repair the damage. It is the evidence of P. W. 2 that because of the running of the machines, cracks have appeared on the walls and water percolates through the cracks during rainy season,. Indeed, the commissioner for local inspection found that the running of the machines causes a good amount of vibration of all the surrounding walls as well as the floors, that the vibration has definitely got; some effect on the foundation of the structures, and that there is every possibility of the structures to undergo unequal settlement forming cracks on the walls. He has, however, found that the vibration caused due to the running of the printing machines is not the only cause for the formation of the cracks and they are also due to the fact that the building is an old one and not properly maintained for a long period resulting in the gradual deterioration of the condition of the structures. In our opinion, when the lease is for the running of the printing press, vibration caused due to the operation of the machines are unavoidable. The cracks appearing on the walls may due to vibrations, but that cannot be helped in the facts and circumstances of the case. All that the defendant is required to do is to repair the damage that may be caused due to the running of the printing machines. 10. THE plaintiff resides in the adjacent house being premises no. The cracks appearing on the walls may due to vibrations, but that cannot be helped in the facts and circumstances of the case. All that the defendant is required to do is to repair the damage that may be caused due to the running of the printing machines. 10. THE plaintiff resides in the adjacent house being premises no. 8, kailas Bose Street, which is separated from the suit premises by a common wall. It transpires from the cross-examination of P- W. 2 that there is a printing press called "nabagranthana press" in their residential house, that is, at premises no. 8", Kailas Bose Street. It is not known how much the running of the press in the plaintiff's house has contributed to the formation of the cracks in the walls of the suit premises. P. W. 2 has also admitted that there is a printing press at premises no. 40, Sibnarayan Lane. He has, however, denied that the said premises is adjacent to the suit premises. The defendant has categorically stated in his evidence that there are a number of printing presses in and around the suit premises, and that all the printing presses in that locality are run with the help of electricity. The defendant was not cross-examined on that statement. Be that as it may, we do not find any reason to disbelieve the evidence of the defendant that there are a number of printing presses in and around the suit premises. The plaintiff has failed to prove that the defendant has sublet a portion of the suit. premises to the said Gobardhan Pakray. It is the defendant's evidence that the said, Gobardhan Pakray, a resident of Burdwan, is a member of the Legislative Assembly and is personally known to him. Whenever he comes to Calcutta, he stays in the defendant's house. The telephone installed in the defendant's house stands in the name of the said Gobardhan Pakray. The defendant has categorically stated that the said Gobardhan Pakray is not his sub-tenant. Besides alleging that the defendant has sublet a portion of the suit premises to the said Gobardhan pakray, the plaintiff has not adduced any evidence in support of that. The learned Judge has not accepted the plaintiff's case of subletting a portion of the suit premises by the defendant to Gobardhan Pakray. Besides alleging that the defendant has sublet a portion of the suit premises to the said Gobardhan pakray, the plaintiff has not adduced any evidence in support of that. The learned Judge has not accepted the plaintiff's case of subletting a portion of the suit premises by the defendant to Gobardhan Pakray. We are also unable to accept the case of the plaintiff in this regard. 11. THE learned Judge has not also found that any damage has been caused by the defendant in the suit premises. He has, accordingly, refused the plaintiffs claim for damages. The defendant has also repaired the cracks appeared on the walls of the suit premises. This fact has not been disputed before us at the hearing of the appeal by the learned Advocate appearing on behalf of the plaintiff. The learned judge was, therefore, justified in not allowing the claim of the plaintiff for damages. 12. AFTER considering the facts and circumstances of the case and the evidence adduced on behalf o the parties, we are of the view that the defendant has not acted in breach of the terms and covenants of the lease. All the ingredient facts necessary for the purpose of a defence under section 53 A are on record and no new fact is required to be proved for that purpose. In our opinion, it will be inequitable that the plaintiff will be permitted t0 rely on the terms of the lease which, so far as the plaintiff is concerned, is inadmissible in evidence. The lease is, however, admissible in evidence under the proviso to section 49 of the Indian registration Act for the purpose of the defence under section 53a of the Transfer of Property Act The lease has already been proved by the plaintiff and it is on record. In these circumstances, although the defendant has not pleaded in the written statement any defence in the line of section 53a of the Transfer of Property Act, in view of the decision of the Full Bench referred, to above, we have allowed the defendant, to take the plea at the hearing of the appeal. In these circumstances, although the defendant has not pleaded in the written statement any defence in the line of section 53a of the Transfer of Property Act, in view of the decision of the Full Bench referred, to above, we have allowed the defendant, to take the plea at the hearing of the appeal. Even assuming that the defendant has committed any breach, the plaintiff was not entitled to file a suit praying for eviction of the defendant on the grounds as mentioned in section 13 (1) of the West Bengal Premises tenancy Act, 1966, which is not applicable to a lease for 21 years. In this connection, we may refer to the contention of the plaintiff respondent that even though the unregistered lease is for 21 years, yet the provisions of the West Bengal Premises tenancy Act, 1956 will apply to it in view of the proviso to section 3 (2) of the said Act. Under the proviso, if the lease is for a period of not less than 20-20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in the Act, other than the provisions relating to rent and the provisions of sections 31 and 36, shall apply to any premises held under such lease. It is contended that as under clause 9 (b) of. the terms of the lease, the lessee has been given an option to terminate the lease upon giving six months' notice in writing to the lessor, the proviso to section 3 (2) is attracted and, accordingly, the West Bengal Premises tenancy Act, 1956 applies to the lease. This argument in: our opinion, is not available to the plaintiff. The lease referred to in the proviso to section 3 (2) must be a valid, lease. An unregistered lease which is invalid and cannot be relied on by the plaintiff landlord is not a lease within the meaning of the proviso. In these circumstances, the contention of the pain tiff fails. Even assuming that the West Bengal Premises Tenancy Act, 1956, applies, still the plaintiff cannot succeed, for it has been found by us that the plaintiff has failed to establish any ground for ejectment as provided by section 13 (1) of the Act. In these circumstances, the contention of the pain tiff fails. Even assuming that the West Bengal Premises Tenancy Act, 1956, applies, still the plaintiff cannot succeed, for it has been found by us that the plaintiff has failed to establish any ground for ejectment as provided by section 13 (1) of the Act. No other point has been, argued on behalf of either party in this appeal. 13. IN the result, the judgment and decree of the learned Judge are set aside and the suit is dismissed. The appeal is allowed, but the cross objection his dismissed. In view of the peculiar facts and circumstances of the case, we direct each party to bear his or her own costs both in this Court and in the Court below. Appeal and cross-objection dismissed. Parities to bear their own cost.