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1986 DIGILAW 257 (CAL)

Dhanapati Dutta v. Gita Dutta

1986-06-24

ANANDAMOY BHATTACHARJEE, SANKARI PRASAD DAS GHOSH

body1986
JUDGMENT Bhattacharjee, J. In the suit for ejectment against the tenants-respondents, giving rise to this appeal, the landlord-appellant urged several grounds but his learned counsel Mr. Bhaskar Bhattacharjee, has urged before us only one ground, namely, the tenants-respondents having erected permanent structures on the premises in violation of the provisions of clause (p) of section 108 of the Transfer of Property Act have rendered themselves liable to be evicted under clause (b) of section 13(1) of the West Bengal Premises Tenancy Act, 1956. 2. Though the learned trial Judge has dismissed the suit, he has nevertheless found that "admittedly'' and "undisputably" some constructions by way of additions and alterations were made in the suits premises. But on the evidence on record and in view of the suggestions put forward on behalf of the plaintiff-landlord to the defendant No. 3, the learned Judge was inclined to hold that those additions and alterations were made, not by the present defendants, but by their predecessor-in-interest who was the original tenant and the learned Judge had concluded that "that being the position, the landlord ought to have sued the original tenant". We are afraid that the learned Judge has made an entirely erroneous approach. If a tenant violates the provisions of clause (p) of section 108 of the Transfer of Property Act by constructing permanent structures and thereby incurs eject-ability under clause (b) of section 13(1) of the West Bengal Premises Tenancy Act, his heirs on his death, while acquiring the right to the tenancy by inheritance, would inherit the liability to ejectment also. The right to sue a tenant, arising under section 13(1)(b) of the Premises Tenancy Act for violation of section 108(p) of the Transfer of Property Act is not a bare personal cause of action de hors the premises which is to die with the death of the tenant, but is a cause which would continue to be actionable against the heirs who inherit the tenancy. If the ratio of the decision of the learned trial Judge is to be accepted, then a landlord would be without any remedy if a tenant dies soon after committing the default in payment of rents or after sub-letting the premises without the consent of landlord or after constructing permanent structures without such consent. That is, however, not the position in law. That is, however, not the position in law. But even though in our view the defendants would have been liable for the constructions, if any, made by their predecessor-in-interest we do not think that there are materials on record to prove that the defendants or their predecessor constructed structures which are to be regarded as permanent within the meaning of section 108(p), Transfer of Property Act to come within the mischief of section 13(1)(b) of the Premises Tenancy Act. 3. The Plaintiff in paragraph 7 of the plaint has come out with a definite case that the defendants "have raised pucca structures... thereby causing serious damage to a large extent and damaged the main wall of the said shop-room by removing the main wall and thereby changed the character of the property". In the deposition of the plaintiff, figuring as PW-1, the only evidence about the erection of any structure is that "they have also erected a platform" have erected an additional room by partitioning the suit room". There is, however, no evidence that the platform or the partition was pucca. A Commissioner was appointed in this case for local investigation, but there is also nothing in his deposition or Report to show that any of the structures alleged to have been made by the original tenant or the present tenants was pucca. The plaintiff, therefore, must be taken to have failed to prove the case made out in the plaint that pucca structures have been constructed by the tenants or their predecessor without the consent of the landlord. 4. Mr. Bhattacharjee has however, urged that even if the plaintiff has failed to prove the case made out in the plaint, if the evidence on record including the admission of the defendants makes out a case for a decree, the court should grant him a decree without driving him to another suit. To our knowledge, the two old Full Bench decisions of the Allahabad High. Court in (1) Abdul Ghani v. Mt. To our knowledge, the two old Full Bench decisions of the Allahabad High. Court in (1) Abdul Ghani v. Mt. Babai, 1903 ILR 25 Allahabad 256 and in (2) Balmukund v. Dalu, 1903 ILR 25 Allahabad 498 were clear authorities for the proposition that a plaintiff may be granted a decree of ejectment on the evidence on record even though the specific case pleaded by him is not proved and these two Allahabad decisions having now been approved by the Supreme Court in (3) Bhagawati v. Chandramaul, AIR 1966 SC 735 at 739, this must now betaken to be the settled law on the point. As we read this decision, we find that the entire question is of surprise and prejudice and if there is no question of the defendant being taken by surprise and being prejudiced thereby, the plaintiff should be awarded all the reliefs which he may be found entitled to on the evidence on record, even though the plaintiff in his plaint has not pleaded a particular case or prayed a particular relief. The Supreme Court in Bhagawati v. Chandramaul (Supra) has relied on its own earlier decision in (4) Srihivas Ban v. Mahabir Prasad, AIR 1951 SC 177 , to which our attention has been drawn by Mr. Bhattacharjee, where the Supreme Court allowed a decree in favour of the plaintiff on a case not made out in the plaint as the same was admitted in the written statement. 5. Mr. Bhattacharjee has submitted, and in our view rightly, that the admission of the defendant No. 3 (figuring as DW-1) in his deposition read along with the Commissioner's Report and Notes (Ext. 4) would clearly go to show that a mezanine floor has been constructed by the tenants or their predecessor in the suit premises without the consent of the landlord. And Mr. Bhattacharjee has submitted further that this mezanine floor, though a wooden one, is a permanent structure within the meaning of section 108(p) of the Transfer of Property Act and that the tenants are liable to be evicted for constructing the same under section 13(1)(b) of the Premises Tenancy Act. Mr. And Mr. Bhattacharjee has submitted further that this mezanine floor, though a wooden one, is a permanent structure within the meaning of section 108(p) of the Transfer of Property Act and that the tenants are liable to be evicted for constructing the same under section 13(1)(b) of the Premises Tenancy Act. Mr. Bhattacharjee has referred us to the Special Bench decision of this Court in (5) Surya Properties, AIR 1964 Calcutta 1 and also to the later Division Bench decision in Surya Properties, AIR 1965 Calcutta 408 to impress upon us that even a wooden structure may be a permanent structure within the meaning of section 108(p) of the Transfer of Property Act. It is true that a pucca structure, by which is generally meant a structure constructed mainly of brick, stone or concrete or any combination of these materials (See, for example, section 2(7), West Bengal Non-Agricultural Tenancy Act, 1949), may not necessarily be a "permanent structure", while a non-pucca structure may in given circumstances amount to a "permanent structure". The question as to what is a "permanent structure" within the meaning of section 108(p) of the Transfer of Property Act was referred to the Special Bench in Surya Properties (Supra, AIR 1964 Calcutta 1), but it appears that the five learned Judges constituting the Bench did not, in their five separate but concurring judgments, return a positive answer for the obvious reason that there cannot be a straight-jacket formula in the matter. The answer of Bose, C.J., was that "no hard and fast rule can be laid down with regard to this matter" and that "in the absence of relevant materials, no answer can be given to the question...". All the other learned Judges delivering separate judgments agreed with the learned Chief Justice and while they proceeded to formulate some tests or criteria for the purpose they substantially agreed that (to quote from the judgment of Mookerjee, J., (Supra, at 14) "relevant from this point of view would be, inter alia, the nature of the structure or construction in question and the intention with which it is made and, almost in every case, they would be of primary and prime importance, the situs, the mode of annexation and the surrounding circumstances being all appropriate matters for consideration on the above two basic and usually determinant elements". It would thus appear that in order to decide whether a structure is permanent or not within the meaning of section 108(p) of the Transfer of Property Act, the nature of the construction and the intention with which it has been constructed are of primary and prime importance and while the former is to be ascertained from the structure, its situs and its mode of annexation, the latter is to be derived from an investigation of the surrounding circumstances. The observations in the Single, Judge Patna decision in (6) Leena v. Indumati, AIR 1980 Patna 120 at 125, to which our attention has been drawn by Mr. Bhattacharjee, are also to similar effect and the same has in fact followed the Special Bench decision and the later Division Bench decision of this Court in Surya Properties (Supra, AIR 1964 Calcutta 1 and AIR 1965 Calcutta 408). 6. It is not the law, that a tenant cannot construct any structure on the tenanted premises. Under clause (o) of section 108 of the Transfer of Property Act, a tenant, who is to use the tenanted property as a person of ordinary prudence would use it if it were his own, has been commanded not to pull down or damage buildings belonging to the landlord or commit any other act which is destrictive or permanently injurious thereto and under clause (p), the tenant has been mandated not to erect on the property any permanent structure, except for agricultural purposes. As pointed out by Mitter, J., in Surya Properties (Supra, AIR 1964 Calcutta 1 at 27) "within the limits specified by clauses (e) and (p), the tenant could add to the premises and make alterations thereto to suit his needs". The tenant, therefore, can erect structures on the tenanted premises, but in view of clause (p) of the Transfer of Property Act having been made applicable to premises tenants by section 13(1)(b) of the Premises Tenancy Act, a premises tenant cannot erect permanent structures and would be liable to be evicted under section 13(1)(b) if, he does so. The tenant, therefore, can erect structures on the tenanted premises, but in view of clause (p) of the Transfer of Property Act having been made applicable to premises tenants by section 13(1)(b) of the Premises Tenancy Act, a premises tenant cannot erect permanent structures and would be liable to be evicted under section 13(1)(b) if, he does so. But as already indicated, whether a structure has amounted to a permanent structure or not would primarily depend on the nature of the construction and the intention of the party who has raised it and while to ascertain the former we would have to look to the construction itself, its situs and the mode of its annexation, the letter would have to be ascertained from the surrounding circumstances if no direct evidence is available. 7. But the evidence on record on these points in this case is very much meagre and scanty and entirely unsatisfactory. There is no proper evidence as to the nature of the construction, its situs and mode of annexation save and except that it is a wooden mezanine floor covering about one-third of the shop-room. There is also no evidence as to the purpose for which and the intention with which the same was constructed nor any evidence as to the surrounding circumstances from which such intention or purpose could be satisfactorily ascertained. We are inclined to think that the failure on the part of the trial court to frame an appropriate Issue very much contributed to this state of affair as the trial court, instead of framing an Issue as to the nature of the construction, framed an Issue only as to whether the structure were authorised or unauthorised. We are of opinion that consideration of the question as to whether the, structures have amounted to permanent structures or not is essential to the right decision of this case and we are, therefore, of the view that in the interest of justice and in order to shorten litigation, we should, instead of driving the plaintiff to some other suit, reframe the Issue No. 3 as hereunder, namely :- "Have the defendants constructed any permanent structure on the suit premises ?" and refer the same for trial to the court below which we hereby do. The court below would take such additional evidence as may be required and would return the evidence with its findings thereon and the reasons therefor within six months from the date of the arrival of the record of the case in the said Court. We further direct that the parties shall appear before the court below on 14th July, 1986 for receiving directions of the court as to further proceeding in the suit. The record of the case along with a copy of our judgment to go down at once. Das Ghosh, J. : I agree.