ORDER : P.B. Majmudar, J. 1. This Revision Application has been filed by the original defendant against whom the respondent-landlord had filed the Regular Civil Suit No. 23 of 1977 in the Court of the learned Civil Judge (JD), Balasinor. 2. The facts leading to the present litigation are as under : That the respondent herein is the owner of the suit premises situated in Balasinor town. The suit premises were let out to the defendant for storing tobacco at an yearly rent of Rs. 425/-. However, the rent was required to be paid every month. According to the plaintiff the defendant had failed to pay the rent after 31.1.1975 and, therefore, a notice of demand was served on the defendant on 11.9.1975 yet the rent was not paid. Thereafter the defendant had sent the arrears of rent of Rs. 247.90 on 3.10.1975. However, according to the plaintiff, on the date of filing of the suit, he was in arrears of rent from 1.9.1974 and according to the plaintiff, the defendant had not paid the taxes. According to the plaintiff, the defendant is not using the suit premises for the purpose for which it was let and that he had made permanent construction without the consent of the plaintiff and that he has constructed a kitchen, latrine and bathroom and has also fixed windows and doors and partition walls. The defendant, therefore, has carried out permanent construction in the suit premises and that he has converted the use of the suit premises from non-residential to residential purpose without any legal right. On the aforesaid ground the suit for possession was filed by the plaintiff against the defendant. The defendant appeared in the suit and filed written statement resisting the suit on various grounds. It was contended by the defendant in the written statement that he had paid the entire rent and he was not in arrears of rent. That he made construction with the consent of the plaintiff. It was also stated that the construction in question is not of permanent nature. It was his further case that at the time of letting the suit premises, the same was in a dilapidated condition and, therefore, with the consent of the plaintiff the aforesaid construction was carried out. That he made construction with the consent of the plaintiff. It was also stated that the construction in question is not of permanent nature. It was his further case that at the time of letting the suit premises, the same was in a dilapidated condition and, therefore, with the consent of the plaintiff the aforesaid construction was carried out. It was further stated that the construction is in the nature of improvements and, therefore, there was no question of passing any decree on the aforesaid ground. The case of the plaintiff about the change of user of the suit premises was also denied by the defendant. On these and other grounds the defendant prayed for the dismissal of the suit. 3. From the above pleadings of the parties the learned trial Judge framed various issues at Exh. 15 and after recording the evidence of the parties, the learned trial Judge came to the conclusion that the defendant had carried out the construction which is of a permanent nature. The learned trial Judge, ultimately by his judgment and order dated 17.8.1981 decreed the suit of the plaintiff on the ground of arrears of rent as well as on the ground of permanent construction. The trial Court fixed the standard rent at Rs. 35.41 plus taxes. Aforesaid decree of the trial Court was challenged by the tenant by way of Civil Appeal No. 100 of 1981 before the learned District Judge, Khada at Nadiad. Said appeal was heard by the learned Extra Assistant Judge, Khada at Nadiad and ultimately the learned Appellate Judge by his judgment and order dated 4.5.1984 confirmed the decree of the trial Court under Section 13(1)(b) of the Bombay Rent Act and dismissed the appeal of the appellant-tenant. 4. The order of the learned Appellate Judge is impugned in the present Revision Application. In view of the aforesaid facts and circumstances, this Court is required to decide whether the tenant is required to be evicted under Section 13(1)(b) of the Bombay Rent Act or not. 5. Mr. A.J. Patel, learned Advocate for the petitioner pointed out that the construction in the premises is carried out with the consent of the landlord and, therefore, there was no question of passing a decree under Section 13(1)(b) of the Bombay Rent Act. 5. Mr. A.J. Patel, learned Advocate for the petitioner pointed out that the construction in the premises is carried out with the consent of the landlord and, therefore, there was no question of passing a decree under Section 13(1)(b) of the Bombay Rent Act. He also submitted that it is in the evidence that though since long the landlord was aware of the aforesaid construction, he had waited for a very long time and that proves that the construction was carried out with his consent. It was further submitted that even otherwise so as to attract Section 13(1)(b) of the Bombay Rent. It was also submitted that assuming that the construction was of permanent nature, there is nothing on record to show that it cannot be removed without any serious damage to the suit premises and, therefore also the decree under Section 13(1)(b) of the Bombay Rent Act could not have been passed. As against that Mr. R.N. Shah, learned Advocate for the respondent-landlord has argued that looking to the nature of the construction, it can be presumed that the construction is of a permanent nature. He submitted that there are structural alterations of the premises by the aforesaid construction and, therefore, the case would squarely fall under Section 13(1)(b) of the Bombay Rent Act. He also submitted that no doubt, there is no positive evidence on record to show that any serious damage can be caused to the suit property at the time of removal of the construction, the Court should presume that looking to the nature of construction in question, it cannot be removed without serious damage to the suit property. He also submitted that since there is a finding of fact recorded by both the Courts below that there is permanent construction erected by the defendant, this Court while exercising revisional powers may not entertain this revision application. 6. I have heard the arguments of both the sides in detail. I have also perused the judgments of both the Courts as well as pleadings of the parties and evidence on record. 7. So far as the nature of construction is concerned the landlord has stated in the plaint that without this consent the tenant has made permanent construction in the nature of latrine, bath room, kitchen, windows and doors, partition walls etc. So far as the argument of Mr. 7. So far as the nature of construction is concerned the landlord has stated in the plaint that without this consent the tenant has made permanent construction in the nature of latrine, bath room, kitchen, windows and doors, partition walls etc. So far as the argument of Mr. Patel about the consent of the landlord is concerned, he has stated in para 5 of his evidence that whatever changes are effected are without his consent. According to the plaintiff-landlord, originally his mother was managing the suit property. He has stated in cross-examination in para 2 of his deposition that alterations were made about 7-8 years back. He came to know about this construction when he went to visit the adjoining property which also belongs to him. The learned Appellate Judge has also found in para 19 of his judgment that the defendant has not produced any written consent of the plaintiff for carrying out such alterations. The Appellate Court is the last Court so far as the finding of fact is concerned and the Appellate Court has not believed the say of the defendant that the construction was carried out with the consent of the plaintiff. Section 13(1)(b) of the Bombay Rent Act clearly provides for written consent of the landlord if the tenant has to erect any permanent construction and when the defendant has not obtained the written consent of the landlord, then aforesaid provision is attracted. Since the learned Appellate Judge has given very cogent reasons for coming to the conclusion that there is nothing on record to show that any such consent was given by the landlord, I do not find any substance in the argument of Mr. Patel that aforesaid construction was carried out with the consent of the landlord. Said contention, therefore, is rejected. Similarly there is no substance in the argument of Mr. Patel that the landlord had waited for many years even though the landlord had knowledge about such construction long back, cannot approach the Court at a belated stage complaining about such construction and that he has waived his right for evicting the tenant on the aforesaid ground of permanent construction. The landlord has stated in his evidence that he came to know about said construction when he visited his property adjoining to the suit property and, therefore, the fact about the said construction was not within his personal knowledge. The landlord has stated in his evidence that he came to know about said construction when he visited his property adjoining to the suit property and, therefore, the fact about the said construction was not within his personal knowledge. No doubt, according to him the alleged construction was carried out about 7 years before. However, it cannot be said that he was aware about the same since about 7 years. Therefore, aforesaid finding about the knowledge of the landlord etc. is a finding of fact and, therefore, this Court in revision cannot reappreciate the entire evidence and come to a different conclusion than the one arrived at by the Courts below. Aforesaid contention of Mr. Patel, therefore, has no substance and the same is accordingly rejected. 8. So far as the next contention of Mr. Patel that the construction in question is not of permanent nature is concerned, the landlord in his plaint has stated that without his written permission permanent construction such as latrine, bathroom, kitchen, windows, partition wall etc. was made. Looking to the particulars given by the plaintiff in the plaint, it cannot be said that the construction can be of permanent nature. However, the plaintiff in his evidence has stated that out of one room, the tenant has constructed five rooms and has put windows and doors. However, the learned Appellate Judge on appreciation of the evidence both oral and documentary has come to the conclusion that the construction in question can be said to be of permanent nature. Therefore, aforesaid finding is also based on the evidence on record and is not required to be interfered with by this Court. 9. The last contention of Mr. Patel is based on explanation of Section 13(1)(b) of the Bombay Rent Act. It is argued by Mr. Patel that the construction of partition wall or such other alterations made in the premises can be removed without any serious damage to the suit premises and, therefore, as per the Explanation to Section 13(1)(b) of the Bombay Rent Act, no decree on the said ground could have been passed. Section 13(1)(b) of the Bombay Rent Act reads as under : "13. When landlord may recover possession. Section 13(1)(b) of the Bombay Rent Act reads as under : "13. When landlord may recover possession. - (1) Notwithstanding anything contained in this Act but subject to the provisions of Section 15 a landlord shall be entitled to recover possession of any premises if the Court is satisfied - (b) that save as otherwise provided in Section 23-A, the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structures; or Explanation. - For the purposes of clause (b), no permanent structure shall deemed to be erected on any premises merely by reason of the construction of a partition wall, door or latrine work or the filling of kitchen-stand or such other alterations made in the premises as can be removed without serious damage to the premises." So far as the aforesaid point is concerned, it is true that there is no evidence on record to show that the construction in question is such that it can or cannot be removed without serious damage to the suit premises. Mr. Patel has relied upon a judgment of this Court in the case of Ramji Virji v. Kadarbhai Esufali, reported in 1972(13) GLR 81 : 1972 RCR(Rent) 503 (Gujarat). According to Mr. Patel, erection of the wall which is in the nature of partitioning of the big room, is not from the foundation and, therefore, without any damage to the foundation or damaging the rented premises, it can be easily removed and, therefore, as per the Explanation to Section 13(1)(b), no decree for eviction should have been passed. In the aforesaid judgment, this Court has considered the explanation and it has been pointed out in para 6 as under : "Mr. Shah next argued that, on any event, the Explanation would have to be read Noscitur-a-socis or on its corollary on the doctrine of Ejusdem Generis. Therefore, the expression such other alterations must be only different species of the same genus or the type of alterations mentioned in the Explanation, namely, a partition wall, door, latrine work, filling of kitchen stand, etc. They would give colour to the entire genus of these alterations which could be removed without serious damage to the premises. Therefore, the expression such other alterations must be only different species of the same genus or the type of alterations mentioned in the Explanation, namely, a partition wall, door, latrine work, filling of kitchen stand, etc. They would give colour to the entire genus of these alterations which could be removed without serious damage to the premises. This construction of the Explanation was rightly accepted by our brother M.U. Shah, J. in Ishwarbhai v. Parshottam, 1967(8) GLR 665 at p. 673, by holding that the Explanation has reference to minor alterations in an existing structure for more beneficial enjoyment thereof and not to major alterations. This limited construction must be implied because of the expression "such other alterations". Therefore, the Explanation only provided that construction of a partition wall, door or attics work or the filling of kitchen-stand or such other minor alterations made in the premises as can be removed without serious damage to the premises shall not be considered to be a permanent structure. In Manmohan Das Shah v. Bisun Das, AIR 1867 Supreme Court 643 at p. 646, the context was of U.P. (Temporary) Control of Rent and Eviction Act, where the relevant ground of eviction was the construction by the tenant without the landlord's written permission which materially altered the accommodation or which was likely to diminish its value. Their Lordships stated that the expression "material alterations" in its ordinary meaning would mean important alterations, such as those which materially or substantially change the front of the structure of the premises. Their Lordships considered certain English decisions and approved the construction as laid down in Bockmore v. Dimer, 1903(1) Ch 158, where a distinction was made between alterations intended for the proper user of leased premises and material alterations observing that some limitation must be put on the word 'alteration' and that it could not be applied to a change in the wall paper of a room or to the putting up of a gas bracket, or the fixing of an electric bell, though in fixing it some holes might have to be made in the wall and the covenant should be limited to something which alters the form or structure of the building. In that context, their Lordships observed that lowering the level of the ground floor by about 13 ft. In that context, their Lordships observed that lowering the level of the ground floor by about 13 ft. by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger door lowering correspondingly the height of the Chabutra so as to bring it on the level of the new door step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinth hand on which the door originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations which are such as to give a new face to the form and structure of the premises. On a parity of reasoning in the present case also the Explanation would have to be read as taking within its scope those minor alterations which are of no importance and which would not materially alter the premises. I would, therefore, agree with the interpretation of our brother M.U. Shah, J. as regards the Explanation. The entire genus is not of material alterations but of only those minor alterations of the like nature like the partition wall, a door or lattice work or to filling of kitchen-stand which could be removed without serious damage to the landlord's premises. The test of easy removability has now, therefore, received statutory recognition, while interpreting as to what is a permanent structure which would deprive a tenant of the statutory protection. The legislature has expressly made this declaration, by way of a curative measure, so as to avoid any ambiguity as to the proper test to be applied for finding out what is a permanent structure, which deprives the tenant of his statutory protection. Such a curative or declaratory measure would always have a retrospective effect in the limited sense so as to be applicable whenever a question arose before the Court. In the face of this statutory provision, no Court could now decree a landlord's claim, if the alteration is not a material alteration and which is easily removable without serious damage to the landlord's premises. In that view of the matter Mr. Zaveri's alternative consideration would also succeed. In the face of this statutory provision, no Court could now decree a landlord's claim, if the alteration is not a material alteration and which is easily removable without serious damage to the landlord's premises. In that view of the matter Mr. Zaveri's alternative consideration would also succeed. In the present case, all the alterations like the loft, the wooden bathroom frame and putting up a new drain for that purpose are only minor alterations which are easily removable as one whole without any serious damage whatsoever to the premises. Even the plaintiff's carpenter admitted this fact. Therefore, even if such a construction was considered, by any stretch of imagination as falling within the definition of a permanent structure, the Explanation would clearly save the tenant because in any event it was such a minor alteration which was easily removable without any serious damage to the landlord's premises. Therefore, the lower Appellate Court has wrongly decreed the plaintiff's suit. In the result, this appeal must be allowed. Accordingly, I allow this appeal and restore the trial Court's decree insofar as it dismissed the plaintiff's suit for eviction. There shall be no order as to costs in the circumstances of the case. Order accordingly." Relying on the aforesaid observations, it was stated by Mr. Patel that even if such construction was considered as permanent construction, then also the defendant is saved by the Explanation as according to him, it can be removable without any serious damage to the suit premises. Mr. Patel has also relied upon a judgment of this Court reported in 1975(16) GLR 481 : 1975 RCR(Rent) 460 (Gujarat) in the case of Patel Chunibhai Dhanjibhai v. Patel Vallabhbhai Ambalal, wherein this Court has taken the view that the construction of partition wall, door, lattice work or the filling of kitchen- stand are not permanent structures. They have been legislatively excepted from the connotation of permanent structure used in Section 13(1)(b) of the Bombay Rent Control Act. They do not contemplate the construction of any independent additional structure. The construction of a room which was the subject-matter of that case was found to be an independent structure on the suit land and, therefore, said structure was not found to have been excepted by any of the specific expressions used in the Explanation. According to Mr. They do not contemplate the construction of any independent additional structure. The construction of a room which was the subject-matter of that case was found to be an independent structure on the suit land and, therefore, said structure was not found to have been excepted by any of the specific expressions used in the Explanation. According to Mr. Patel the defendant-tenant had carried out the construction in the premises which was let out to him and this is an alteration in the existing building itself. The tenant had only partitioned a big room and made 6 rooms by putting partition walls. But, according to him, these were alterations in the existing premises and, therefore, eviction decree could not have been passed against the defendant-tenant. Mr. R.N. Shah, learned Advocate for the plaintiff has also relied upon the said judgment on the ground that the construction of an independent room altogether cannot be said to be any alteration in the existing building and that this may amount to independent additional structure. Mr. Patel learned Advocate for the petitioner has relied upon the judgment of the Supreme Court reported in 1987(1) SCC 458 : 1987(1) RCR(Rent) 326 (SC) in the case of Om Parkash v. Amar Singh. In this judgment the Supreme Court has stated that whether the construction so made materially altered the accommodation is a mixed question of law and fact. It was found by the Supreme Court that the construction of partition wall in the hall as well as extension to the tin shed does not make any structural change of substantial character either in the form or structure of the accommodation and as such did not materially alter the accommodation. It was found by the Apex Court that the expression 'materially altered' means a substantial change in the character, form and the structure of the building without destroying its identity. Therefore, according to Mr. Patel, even if a partition wall is constructed by consent or otherwise but if it can be removed easily without any damage to the suit premises, eviction decree should not have been passed under Section 13(1)(b) of the Bombay Rent Act. Mr. R.N. Shah, learned Advocate for the respondent has argued that looking to the nature of the construction, the Court can even presume that such construction cannot be removed without any damage to the suit premises. Mr. R.N. Shah, learned Advocate for the respondent has argued that looking to the nature of the construction, the Court can even presume that such construction cannot be removed without any damage to the suit premises. He also argued that even there may be damage to the foundation also. He also relied upon the judgment of this Court reported in 1967(8) Guj. LR 665 in the case of Patel Ishwarbhai Lallubhai v. Patel Parshottam Ranchhodbhai, wherein this Court has taken the view that the type of use of material is not relevant. The nature of the construction, the nature of material used, the manner in which the structure is erected and the purpose are the material factors. Aforesaid judgment of 1967(8) GLR 665 has also been considered by this Court in 13 GLR 81. Considering the arguments of both the sides and considering the relevant cases cited before me, I am of the opinion that there is no satisfactory evidence on the second part i.e. whether the alteration or construction in question can be removed without serious damage to the suit premises. At this stage the reasoning of the trial Court is also required to be considered. The trial Court has not stated a single word in its judgment whether the construction in question is of permanent nature or not. In para 8 of the judgment the trial Court has merely considered whether there was any consent of the landlord or not. The trial Court has not considered the evidence as regards the nature of construction or removability of the construction in any manner. There is nothing in the evidence either of the plaintiff or of the defendant regarding the removability of the construction in question. Mr. Patel has argued that the construction in question is construction of partition wall, a kitchen-stand and bathroom and, therefore, said construction cannot be said to be permanent structure as per the Explanation to Section 13(1)(b) of the Bombay Rent Act and, therefore, the suit was required to be dismissed. 10. Mr. Patel further argued that in the judgment reported in 1995(2) GLR 1370, this Court has taken the view that in the facts of that case the tenant had removed the front door and got fixed a rolling shutter and a very heavy iron rolling shutter was fixed in the walls and in the process, the wooden planks of the door were destroyed. This court has found that removal of the door and placing of rolling shutter prima facie may involve some alteration in the walls and insertion of hinges on two ends of shutter in the wall. However, such shutter can be removed and the premises can be restored to its original position by placing the door. It was found that such alteration would be for the beneficial use of the premises. It was found that the wooden loft is always removable and that may not damage the property in question. Ultimately, therefore, the construction of that nature was not found to be of permanent nature. Now considering the present case in the light of the judgment of this Court reported in 1972(13) GLR 81, the removability of the construction is a question which is required to be decided by the Court as it would be statutory duly of the Court to decide the said point. Explanation to Section 13(1)(b) of the Bombay Rent Act is statutory and, therefore unless there is satisfactory evidence on record, it is not possible to give any positive finding on this point. As stated earlier, the trial Court has not given any satisfactory reasoning worth the name in its judgment. The Appellate Court has no doubt considered said aspect in para 13 of its judgment. However, whether the construction can be removed without any serious damage to the suit premises or not is a matter of evidence and both the sides have fairly conceded that there is no evidence worth the name on record on this point. Unfortunately, no evidence has also been adduced on this point by the parties. Therefore, it is necessary that there should be some evidence in this behalf. According to me, the judgments of the Courts below are required to be interfered with as this would be an error of law which is required to be corrected by this Court while exercising revisional power under Section 29(2) of the Bombay Rent Act. Therefore, it is necessary that there should be some evidence in this behalf. According to me, the judgments of the Courts below are required to be interfered with as this would be an error of law which is required to be corrected by this Court while exercising revisional power under Section 29(2) of the Bombay Rent Act. In that view of the matter the matter is required to be remanded back to the Appellate Court with a direction that the learned Appellate Judge, after framing necessary issue on the explanation part of Section 13(1)(b) to the effect whether the construction or alteration is question can be removed without any serious damage to the suit property, may call for the finding from the trial Court on the aforesaid issue after giving opportunity to both the sides to lead evidence on the aforesaid issue and after receiving the finding on the aforesaid issue, the learned Appellate Judge may dispose of the appeal in accordance with law. Aforesaid matter is accordingly remanded back to the learned Appellate Judge and the learned Appellate Judge may dispose of the appeal finally, on merits and in accordance with law, after receiving the finding from the trial Court. The appeal may be decided by 31.7.2000. The parties are directed to appear before the learned Appellate Judge on 10.4.2000. The Revision Application is accordingly allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Revision allowed.