Manindra Nath Mitra v. Ajit Kumar Ghosh — 1989 DIGILAW 252 (CAL)

JUDGMENT This appeal arises out of a suit instituted by the plaintiff respondent for ejectment of the defendant/appellant from the disputed premises and for recovery of arrears of rent and for damages. 2. The plaintiff's case was that the defendant was a monthly tenant in respect of the suit premises at a rental of Rs. 40/- per month payable according to English calendar month. The defendant defaulted in payment of rent since October 1968. The defendant made additions and alterations in the suit premises by fixing a wooden partition and constructing a pucca partition in the suit premises without knowledge and consent of the landlord. A combined notice under s. 106 of the Transfer of Property Act and s. 13(6) of the West Bengal Premises Tenancy Act was served on the defendant. 3. The defendant contested the suit by filing a written statement contending inter alia that he was not a defaulter as alleged and that he had deposited rent since January to April, 1969 with the Rent Controller and filed a petition under s. 17(2A) of the West Bengal Premises Tenancy Act in respect of the arrears of rent from October, 1968 to December, 1968. It was alleged that the defendant constructed a wooden partition for the sake of convenience and security and for facility of his business long ago with the knowledge and consent of the plaintiff/landlord. It was denied that he made any pucca construction in the suit premises as alleged. The legality, validity and sufficiency of the notice was challenged. 4. The learned Munsif found that the notice to quit and to sue was served upon the defendant and it was legal, valid and sufficient. He further found that the defendant complied with the provisions of s. 17 and as such no decree for ejectment could be passed on the ground of default. He, however, found that the defendant made additions and alterations in the suit premises without the consent of the plaintiff/landlord and was therefore liable to be evicted under s. 13(1)(b) of the West Bengal Premises Tenancy Act and as such he passed a decree in favour of the plaintiff. 5. The defendant preferred an appeal which was dismissed. He, however, found that the defendant made additions and alterations in the suit premises without the consent of the plaintiff/landlord and was therefore liable to be evicted under s. 13(1)(b) of the West Bengal Premises Tenancy Act and as such he passed a decree in favour of the plaintiff. 5. The defendant preferred an appeal which was dismissed. The learned Additional District Judge who heard and disposed of the appeal found that the defendant constructed permanent structure by diminution of the existing partition wall and by raising a pillar to support the upper portion of the wall without the landlord's consent violating Clause (p) of s. 108 of the Transfer of Property Act. He accordingly affirmed the decree for ejectment passed by the learned Munsif. 6. Mr. Mukherjee, learned Counsel appearing on behalf of the appellant, has contended that the lower appellate court did not properly consider the question whether the brick built pillar is a permanent structure within the meaning of Clause (p) of s. 108 of the Transfer of Property Act. It has been urged that the lower Appellate court did not apply the tests and merely assumed that it was a permanent structure and his finding cannot, therefore, be legally sustained. 7. The question whether a particular construction is a permanent structure within the meaning of Clause (p) of s. 108 of the Transfer of Property Act depends upon facts and circumstances of each case and no hard and fast rules can be laid down with regard to this matter. This question arose for consideration in Surya Properties Private Limited v. Bimalendu Nath Sarkar, AIR 1964 Cat. 1 (SB). The Special Bench held that the question whether a particular construction is a permanent structure or not, depends on the facts of each case and no hard and fast rules can be laid down with regard to this matter. At page 5 Bachawat, J. has observed as follows: "..................no hard and fast test can be laid down for determining whether a particular structure is a permanent structure for purposes of Clause (p) of s. 108 of the Transfer of Property Act. At page 5 Bachawat, J. has observed as follows: "..................no hard and fast test can be laid down for determining whether a particular structure is a permanent structure for purposes of Clause (p) of s. 108 of the Transfer of Property Act. The nature and situs of the structure, its mode of annexation, the intention of the tenant and the surrounding circumstances must all be taken into account for the purpose of determining whether or not a particular structure including a room with 3 inches thick brick-built walls and corrugated iron sheet roof is a permanent structure for the purposes aforesaid". At page, 14 P.N. Mukherjee, J. similarly formulated the broad tests. The relevant portion is a follows: "the same structure may be well held to be permanent in one case and non-permanent in another. Indeed, no hard and fast rule can be laid down in the matter, although certain broad tests may be formulated, which may conveniently guide the determination and facilitate the correct approach. 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 determinate elements." 8. In Ramji Virji v. Kedarbhai Esuffali, AIR 1973, Gujarat 110 relying on the Special Bench decision referred to above it was held that the permanent nature of the structure would have to be found out by looking to the nature of the construction by applying the objective tests where the intention of the tenant would also be a relevant factor whether he intended to put up a lasting structure by looking to the very nature of the construction, the materials used, the mode of annexation, the situs and the removability of the structure. If from the materials used by a tenant in making the structure and from the way in which it is annexed to the main structure, it is proved that the structure is easily removable then it can never be said that that it is a lasting structure so as to offend the provision of the section. If from the materials used by a tenant in making the structure and from the way in which it is annexed to the main structure, it is proved that the structure is easily removable then it can never be said that that it is a lasting structure so as to offend the provision of the section. Alterations made by a tenant like constructing a loft, wooden bath-room, and putting up of a new drain being minor alterations which are easily removable without causing any serious damage to the premises do not fall within the meaning of a lasting or permanent structure. 9. In Pilambar Das Kalyanji Bakotiwa v. Dattatraya Krishnaji AIR 1981, Bombay 388, it has been held that the question as to whether a particular construction is a permanent structure must be decided with reference to the nature and the situs of the structure, the mode of annexation, the intention of the tenant and all the surrounding circumstances. It is not possible to reject the test of purpose of annexation. The fact that the annexation is intended for a short duration or that the annexation is made for the better enjoyment of the demised premises cannot be completely overlooked. The intention can be gathered from the mode and degree of annexation, the nature of the structure and the surrounding circumstances. The test of removability is not a conclusive test. If the structure can be removed without any irreparable damage to the demised premises, then that would be certainly one of the circumstances to be considered for deciding the question of intention. If the object and purpose of annexation was only for better or more complete enjoyment of the demised premises, such a structure cannot be treated as a permanent structure. It is also necessary to consider in this connection whether the structure brings about a substantial change in the character of the demised premises. It was held that construction of a kitchen platform with bricks, cement and sahabath floor on the wooden plank of the premises below was not a permanent structure. 10. Reference may be made to a recent Division Bench decision of this court in Debaki Nandan Boobna v. Harasundar Sarkar, 1988 (1) CHN 180 . It was held that construction of a kitchen platform with bricks, cement and sahabath floor on the wooden plank of the premises below was not a permanent structure. 10. Reference may be made to a recent Division Bench decision of this court in Debaki Nandan Boobna v. Harasundar Sarkar, 1988 (1) CHN 180 . A.M. Bhattacharjee, J. who delivered the judgment of the Bench has observed at page-188 as follows : "Under clause (o) of s. 108 of the Transfer of Property Act, a tenant has been directed to use the tenanted property as a person of ordinary prudence would use it if it were his own and the tenant has been commanded not to pull down or damage the building belonging to the landlord or to commit any other act which is destructive 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 one of us in the Division Bench decision of this court in Dhanapati v. Gita, 1986 (2) Calcutta High Court Notes 292 at 296 it is not the law that a tenant cannot in any event construct any structure or make any addition to or alteration of the tenanted premises without the consent of the landlord. A combined reading of these two clauses would rather indicate that while the tenant can not put up any construction by way of addition or alteration, which is a permanent structure or which is destructive or permanently injurious to the tenanted premises, he can, within the limits of clause (o) and (p), add to the premises and make alterations thereto to suit his need". In that case the fixation of air-conditioners in the premises was held to be not offending clause (p) of s. 108 of the Transfer of Property Act. It has been held that if improvements are made by the tenant on the property, the tenant is entitled to remove the improvement and if after such removal is made, the tenanted premises can be and is restored to the original condition, the landlord cannot have any cause of action. 11. The same view was taken by the same Division Bench in Ratnamala Dashi & Ors. v. Ratan Singh Bawa, 1988(1) CLJ 468 . 11. The same view was taken by the same Division Bench in Ratnamala Dashi & Ors. v. Ratan Singh Bawa, 1988(1) CLJ 468 . It has been held that that a combined reading of clauses (o) and (p) of s. 108 of the Transfer of Property Act indicates that though the tenant cannot make any construction by way of addition of alteration which is a permanent structure of which is destructive of permanently injurious to the tenanted premises, he can within the limits of clauses (o) and (p) add to the premises and make alteration there to suit his necessities. To decide whether or not a structure is permanent the following tests without being exhaustive are relevant, namely : (1) intention of the party who put up the structure, (2) this intention was to be gathered from the mode and degree of annexation, (3) if the structure cannot be removed without doing irreparable damage to the demised premises then that would be certainly one of the circumstances to be considered while deciding the question of intention. Likewise the dimensions of the structure and (4) its removability had to be taken in to consideration. Affixation of collapsible gate at the entrance of the tenanted premises would not amount to erection of permanent structure. 12. Now, there is no dispute that the tenant/appellant has made the following constructions : (1) a paration wall of masonite with wooden frame which according to the report of the learned Pleader Commissioner is easily removable; (2) a brick built pillar to give support to the existing partition wall after demolition of the lower part thereby creating a gap of 4 feet 5 inches. The trial court did not at all consider whether these structures were permanent or not. According to it as these additions and alterations to the suit premises were made without the knowledge and consent of the plaintiff, the defendant was liable to eviction under s. 13(1)(b) of the West Bengal Premises Tenancy Act. It appears that the lower appellate court did not consider the first structure mentioned above as a permanent structure. The second structure was according to the lower appellate court a permanent structure. The lower appellate court did not, however, apply the tests mentioned above, It was simply assumed that it was a permanent structure. No reason has been given. It appears that the lower appellate court did not consider the first structure mentioned above as a permanent structure. The second structure was according to the lower appellate court a permanent structure. The lower appellate court did not, however, apply the tests mentioned above, It was simply assumed that it was a permanent structure. No reason has been given. The finding of the lower appellate court is, therefore, bad in law. 13. Bearing in mind the principles and the tests as laid down in the decisions cited above, I am of the opinion that none of the two structures is permanent within the meaning of clause (p) of s. 108 of the Transfer of Property Act. The first structure is of masonite with wooden frame serving as a partition wall made for more convenient use and enjoyment of the demised premises. It is easily removable. After removal the room would be restored to the original condition in which it was let out. There cannot, therefore, be any doubt that the structure is not permanent. Regarding the second structure, the brick pillar 7 feet 10 inches in length was constructed in order to give support to the upper part of the wall lower part of which was removed creating a gap of 4 feet and odd. The tenant/appellant has a gold smith shop in the suit premises and the tenancy was for business purposes. Creation of that small gap in the existing partition wall was felt necessary for the purpose of manufacture of gold ornaments and convenience of business. There was an existing brick built partition wall because of a removal of a portion of the wall in order to create a gap, construction of the brick pillar was necessary. Now, the Commissioner's report does not show that this pillar has been embedded in the floor or that it is fixed to the ceiling Considering the nature of the affixation it may be said that the pillar may be removed and the gap created in the existing partition wall may by filled up without causing serious damage to the partition wall or the floor. The construction has not made any structural change in the suit premises and is not of a substantial nature. It is neither destructive nor permanently injurious to the tenanted premises. The construction has not made any structural change in the suit premises and is not of a substantial nature. It is neither destructive nor permanently injurious to the tenanted premises. The partition wall may be restored to its original condition without causing any substantial damage to the suit premises. In these circumstances, I am of the opinion that this is not a permanent structure. 14. It may be pointed out that both the courts have overlooked one important piece of evidence. It was the specific case of the tenant/defendant that part of the partition wall was removed and the supporting pillar was erected with the consent and at the instance of the plaintiff's father in presence of the plaintiff. The defendant deposed in support of the same plea neither plaintiff's father nor the plaintiff was examined. Plaintiff's brother has admitted in the cross-examination that the structure was made with their knowledge. The structure was made long before the institution of the suit. Though the plaintiff had knowledge of the construction from the beginning, he never protested or put any steps against the defendant and kept quiet. Tacit consent or acquiescence may reasonably be inferred in the circumstances. 15. In the result, I allow the appeal and set aside the judgments and decrees of the courts below. The suit stands dismissed with costs. I make no order as to costs in the appeal. Appeal allowed.