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2002 DIGILAW 9 (CAL)

MD. IDRIS, MD. IDRIS ALI v. ANIL KUMAR DE

2002-01-11

NARAYAN CHANDRA SIL

body2002
NARAYAN CHANDRA SIL, J. ( 1 ) THE present appeal has been directed against the judgment of the appellate court dated 21-4-1993 passed, by Sir A. K. Banerjee, learned Additional District Judge, 2nd Court, Suri, birbhum in connection with Title Appeal No. 86 of 1991 whereby he was pleased to dismiss the appeal on contest and confirm the judgment of decree dated 25-4-1991 passed by Sri Surjendu biswas, learned Munsif, Birbhum in connection with Title Suit No. 147 of 1986. ( 2 ) IT is stated in the memo of appeal that the learned Additional District Judge erred in law in not holding that the notice was bad in law as the father of the plaintiff was the original tenant of the suit property and after his death the other sons and daughters also inherited the tenancy, but the plaintiff did not serve the notice of ejectment on all the co-tenants by inheritance. It is also taken in the memo of appeal that the courts below erred in law in not holding that the notice of ejectrnent was not duly served upon the defendant. It is also stated that the courts below erred in holding that the requirement of the suit house by the plaintiff was bona fide and genuine. It is again stated that the courts below were wrong in holding that the defendant had violated the provisions of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. The courts below were also wrong, it is added, in not giving any independent finding regarding the question of default and as such there cannot be any decree on the ground of default simply on the basis of the interlocutory findings. ( 3 ) AFTER the appeal was taken up for hearing it appears that no substantial question of law was formulated at the time of admission of the appeal and as such the following substantial questions of law have been formulated. "1. whether the courts below are justified in considering the evidence of the plaintiff beyond the pleadings with regard to the relationship between the parties touching the maintainability of the suit itself. 2. whether the courts below are justified in passing the decree on the grounds of clauses (m), (o) and (p)of Section 108 of the Transfer of property Act without considering the nature of construction; and 3. 2. whether the courts below are justified in passing the decree on the grounds of clauses (m), (o) and (p)of Section 108 of the Transfer of property Act without considering the nature of construction; and 3. whether the courts below are justified to pass the decree without considering the mandatory provision of Section 13 (4) of the West bengal Premises Tenancy Act. " ( 4 ) MR. Jyotirmoy Bhattacharya, learned senior Advocate for the appellant/tenant/defendant has taken me through the provisions of clause (p) of Section 108 of the Transfer of property Act and argues elaborately as to what is meant by the term "permanent structure". According to him a structure can be taken as a permanent structure if the same cannot be removed without affecting the structural strength of the main buildings and, he goes on arguing, the courts below did not consider this aspect. Mr. Bhattacharya has also argued before me that the requirements always vary from individual to individual and it is pointed out by him that the plaintiff is a hawker. The learned Senior Advocate for the appellant has also taken me through paragraph 3 of the plaint where the plaint case has been described in the terms that originally the suit property belonged to one Smt. Dasi and Dilbar Mia was her tenant in respect of a shop for dealing in hemp. It is also stated there that after the death of Dilbar his son Md. Idris "had continued the said hemp shop in the suit premises" as a monthly tenant under Smt. Dasi, Smt. Dasi transferred the suit holding to Umapada De and Md. Idris became his tenant. Umapada transferred the suit premises in favour of the plaintiff and Md. Idris became his tenant in respect of the suit premises. The learned senior advocate for the appellant has then taken me through the paragraph 11 of the written statement where the defence case has. inter aha, been described in the terms that Dilbar mia was the original tenant in the suit premises and he had been carrying on various business there from the suit premises and he had also resided there with the members of his family till his death. Dilbar died leaving his two sons md. Idris and Abdul Kayum who were residing with Dilbar during his lifetime. Abdul Kayum died leaving his son Md. Mostaquim Ahmed both the defendant and Md. Dilbar died leaving his two sons md. Idris and Abdul Kayum who were residing with Dilbar during his lifetime. Abdul Kayum died leaving his son Md. Mostaquim Ahmed both the defendant and Md. Mostaquim ahmed have been residing in the suit premises and in such circumstances both Md. Idris and his nephew, Md. Mostaquim Ahmed are the joint tenants of the suit property. It is pointed out by the learned Senior Advocate for the appellant that despite the said averment made in the written statement, the plaintiff/respondent did not take any step to bring Md. Mostaquim Ahmed into the suit as a defendant. It appears that an additional issue was framed on the maintainability of the suit on the ground of defect of parties. Mr. Bhattacharya has also argued before me that the finding of the court in connection with the hearing of petition under Section 17 (2) of the West bengal Premises Tenancy Act is interlocutory in nature and the same can be agitated at the time of final hearing particularly when there appears specific averment made by the defendant in the written statement. Mr. Bhattacharya further argues before me that both the courts below did not find any violation of the clauses (m), (o) of Section 108 of the Transfer of Property Act but violation is found only in connection with the provisions of clause (p) of the said Section. Mr. Bhattacharya has referred to a number of case laws in order to substantiate his line of thinking 'as regards what is meant by "permanent structure". He has referred to the ratio decided in the case of Om Prakash v. Amar Singh and Anr. Their Lordships while interpreting the provisions of Section 14 (c) of u. P. Cantonments (Control of Rent and Eviction) Act, 1952 held that the nature of construction, whether they are permanent or temporary, is a relevant consideration in determining the question of 'material alteration'. It was also 'held that a permanent construction tends to make changes in the accommodation on a permanent basis, while a temporary construction is on temporary basis which do not ordinarily affect form or structure of the building, as it can easily be removed without causing any damage to the building. It was also 'held that a permanent construction tends to make changes in the accommodation on a permanent basis, while a temporary construction is on temporary basis which do not ordinarily affect form or structure of the building, as it can easily be removed without causing any damage to the building. The Division bench of this court had interpreted the scope of Section 108 (p) of the Transfer of Property act in the case of Kanta Devi Arora v. Smt. Snehalata Sen. In the said case the verandah of the suit premises was covered with asbestos shed fixing some grills and there was allegation of conversion of two rooms into four. The division Bench of this court did not find any clear evidence that the tenants covered the verandah at all. It was held that what it permanent is not always easy to define, but one primary test is that is should be some structure which would have some impact on the physicality of the property in the sense that it would not be easily removable. The Division bench of this Court was further pleased to hold that the principle appears to be that there should not be any construction which would substantially affect the demised property or which would render removal of the added construction difficult. It was also observed that covering the long verandah with asbestos shed and fixing some grills etc. would not come within the description of construction of a permanent nature. ( 5 ) MR. Bhattacharya, learned Senior Advocate for the appellant has then pointed out that it was held by the trial court that the plaintiff requires six rooms and the way he has proposed to distribute those six rooms does not appear to be justified at all. In this connection, mr. Bhattacharya has referred to the ratio decided in the case of Jivram Ranchhoddas thakkar and Anr, v. Tulshiram Ratanchand mantri and Ors. , in which while considering the provisions of Section 13 (1) (1) of Bombay rents, Hotel and Lodging House Rates Control act, 1947. In this connection, mr. Bhattacharya has referred to the ratio decided in the case of Jivram Ranchhoddas thakkar and Anr, v. Tulshiram Ratanchand mantri and Ors. , in which while considering the provisions of Section 13 (1) (1) of Bombay rents, Hotel and Lodging House Rates Control act, 1947. Their Lordships were pleased to hold that where in a suit, under Section 13 (1) (1) of the Act, for eviction from the suit premises consisting of three rooms which were let out to first appellant, the eldest of three brothers for the benefit of the joint family, the concurrent findings of the courts below were that the new house built by first appellant was his own and not that of joint family and that the suit lease was for the benefit of joint family, a humanist approach is required to be adopted by the Hon'ble Supreme Court and the tenant was directed in the interest of justice to surrender half of the portion after getting it partitioned into equal halves. Mr. Bhattacharya has also drawn my attention to the mandatory provisions of Section 13 (4) of the West Bengal premises Tenancy Act and claims that both the lower courts have overlooked the same. ( 6 ) MR. Bhattacharya, learned Senior Advocate for the appellant has also referred to the ratio decided in the case of Santosh Hazari v. Purushottam Tiwari (Deceased by LRs), in which the Hon'ble Supreme Court had discussed the scope of Section 100 of the Code of Civil Procedure. It was, Inter alia, held in that case that the High Court is not bound to confine itself to dealing only with the question initially framed by it and it may hear the appeal on any other such question so long as it is satisfied that the case involves the question and records its reasons for such satisfaction. It was also held in that case that the word "substantial" in the context means having substance, essential, real, of sound worth, important or considerable and accordingly such question need not, however, be one "of general importance". It was also held in that case that the word "substantial" in the context means having substance, essential, real, of sound worth, important or considerable and accordingly such question need not, however, be one "of general importance". The Hon'ble Supreme Court also held in that case that such question "involved in the case" must have foundations in the pleadings and should emerge from sustainable findings of fact reached by the court of facts and further an answer to such question must be necessary for a just and proper decision of the case. It was also held by the Hon'ble Supreme court in that case that a completely new point raised before the High Court for the first time wouldoiot be a question involved in the case, unless it went to the root of the matter. Mr. Bhattacharya has also referred to the ratio decided in the case of Deena Nath v. Pooran lal, in which the Hon'ble Supreme Court extended further the scope of the term "substantial question of law", and thus it was held that if in recording a finding, the court does not bear in mind the statutory mandate, such finding would not be a mere finding of fact; such erroneous finding illegally arrived at would be vitiate of the entire judgment and such findings can be set aside in the second appeal, even if concurrently made by lower courts. ( 7 ) THE learned Advocate for the respondent has drawn my attention to the findihgs of the First Appellate Court to the effect that the first Appellate Court had confirmed the case of the plaintiff/respondent that there was violation of the clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. It is also argued by him that the suit does not fail for the non-joinder of necessary parties. It is also pointed out by him that the question of maintainability of the suit was dealt by both the courts below properly. As regards the violation of the clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. It is pointed out by the learned Advocate for the respondent that the local inspection was held and the report of the learned Commissioner had been marked as Ext. 9 and there the learned Commissioner found the construction of puccas wall. It is pointed out by the learned Advocate for the respondent that the local inspection was held and the report of the learned Commissioner had been marked as Ext. 9 and there the learned Commissioner found the construction of puccas wall. According to him, such pucca wall is a permanent structure in nature. The learned Advocate for the respondent has further argued before me that if there is no pleading for partial eviction, in terms of the provisions of Clause 4 of Section 13 of the Premises tenancy Act, it is none of the business of the court to extend such opportunity to the defendant/tenant. It is then pointed out by him that there is no such pleading in the written statement as regards the partial eviction. ( 8 ) THE learned Advocate for the respondent has referred to a number of case laws. Thus, it was held in the case of Jagat Bandhu batabayal v. Jiban Krishna Roy, that the finding as to the extent of accommodation reasonably required by the plaintiff is certainty a finding of fact and the learned Judge of the first Appellate Court being the final court of fact has categorically held that the plaintiff requires the possession of the suit premises for his own occupation and the plaintiff's requirement of those suit premises is bona fide and reasonable. The aforesaid finding of the First appellate Court cannot be challenged in the second Appeal unless the said finding is based on no evidence or has been made on erroneous application of law. It was held in the case of Dulal Chandra Biswas and Ors. v. Sai/endra nath Sadhukhan and Ors. , that the amendment of the plaint for incorporating a plea of absence of reasonably alternative accommodation in the Second Appeal was not at all required as the same was not pressed by the learned Advocate for the respondent. It was, inter alia, held in the case of Kamaladebi mukherjee and Anr. v. Arun Dasgupta and Ors. , that the amendment of the plaint for incorporating a plea of absence of reasonably alternative accommodation in the Second Appeal was not at all required as the same was not pressed by the learned Advocate for the respondent. It was, inter alia, held in the case of Kamaladebi mukherjee and Anr. v. Arun Dasgupta and Ors. , that a suit in respect of the joint tenancy by issuing notice by determining the tenancy to only one of the heirs of the original tenant and impleading only one of such heir and leaving aside the other heirs 'is maintainable because the joint tenancy of the heirs of a deceased tenant is represented by one of the heirs who is also one of the joint tenants,, ( 9 ) THE learned Advocate for the respondent has referred to the ratio decided in the case of Trilok Chandra Jain @ Ti/ak Chand Jain v. Hirendra Kumar Mitter and Ors. , in which it was, inter alia, held that although the plaint did not contain the express averment that accommodation was also required for the servants and menials, the appellate court did not commit any error in taking into account the requirement of the plaintiffs in this regard because in a family with a considerable social status these persons are bound to be considered. The learned Advocate for the respondent has also referred to the ratio decided in the case of himanshu Bikash Das v. Ramendra Mohan dutta, in which it was inter alia, held that if the defendant/tenant wrongfully raises a structure on the tenanted premises with out landlord's consent, subsequent dismantling cannot relieve him from the ground of contravention of Section 108 (o) (p) of the Transfer of Property Act, unffess the plaintiff-landlord condones it. It. was held in the case that word "family" of the landlord cannot mean only sons and grand-sons and the wives of the sons but also of the other such as daughters married or otherwise because they stand at per under ordinary law of succession. ( 10 ) BESIDES the case of Jagat Bandhu batabayal (supra) the learned Advocate for the respondent has also referred to a number of case laws dealing with the provisions of Section 100 of the Code of Civil Procedure. ( 10 ) BESIDES the case of Jagat Bandhu batabayal (supra) the learned Advocate for the respondent has also referred to a number of case laws dealing with the provisions of Section 100 of the Code of Civil Procedure. Thus, it was held in the case of Mottulal v. Radhe lal, that the finding reached by the Additional District Judge, the First Appellate Court, on an appreciation of evidence that the landlord does not bona fide require the premises in question for the purpose of starting business as a dealer in iron and steel materials is a finding of fact and not a finding of mixed law and fact and it cannot be interfered with by the High Court in the Second Appeal unless it is shown that in reaching it is a mistake of law is committed by the Additional District Judge or it is based on no evidence or is such as no reasonable man can reach. It was held in the case of Har Narain Daga v. Heeralal and Ors. , that the concurrent finding of fact having been recorded by both the lower courts (that tenanted accommodation located on ground floor of respondent landlord's residential building was required for needs of his growing sons; also for holding private tuition classes for his students) are the matters of fact and the High court was justified in not interfering and in dismissing appellant tenant's appeal. It was held in the case of Dr. S. K. Shome @ Subodh kumar Shome v. Sri Jagadish Chakraborty, that the concurrent finding of facts of both the trial court and the first appellate court assigning cogent reasons for the conclusion on the reasonable requirement does not deserve to be interfered with in the second appeal. It was held in the case of Pakeerappa Rai and seethamma Hengsu 'd' by LRS and Ors. , that the erroneous findings by the courts below cannot be interfered by the High Court in the second Appeal even if such findings are grossly erroneous. It was, inter alia, held in the case of Dilboo (Smt.) by LRs. and Ors. v. Dhanraji (Smt.) (Dead) by LRs. and Ors. , that even under unamended Section 100, court could only interfere on a question of law in Second Appeal. It was, inter alia, held in the case of Dilboo (Smt.) by LRs. and Ors. v. Dhanraji (Smt.) (Dead) by LRs. and Ors. , that even under unamended Section 100, court could only interfere on a question of law in Second Appeal. It was held'in the case of Girdharilal soni v. Smt. Maya Roy, that where the tenancy had been taken for residential purpose, the tenant admitted that he was carrying on business therein and failed to prove the consent of the landlord for carrying on such business, user of the suit premises for such business purpose was unauthorised. ( 11 ) THE provisions of Section 100 of the code of Civil Procedure has been interpreted by the Apex Court from different angles from time to time and in course of such judicial pronouncements, it appears to have undergone a radical metamorphosis. And it has taken its ultimate shape as propounded in the case of santosh Hazari (supra) and Deena Nath (supra ). On perusal of the judicial pronouncements made by the Apex Court it appears that it has become nearly an absurdity to decipher the question of fact from the question of law and the vice versa. In fact, the difference is really wafer thin. ( 12 ) IN the instant case the lower courts appear to have accepted the case of the plaintiff/respondent that the fresh tenancy was created in favour of Md. Idris Ali, after the surrender of tenancy by his predecessor-in-interest, the father. But no such case appears to have been averred in the plaint. On the other hand it is specifically stated in the plaint that the defendant/appellant continued in tenancy after the death of his father. It appears from the evidence adduced by the plaintiff before the trial court that the trial court allowed the plaintiff to have adduced the evidence on the point of surrender of tenancy by the father of defendant Md. Idris Ali. This is simply what is not sanctioned and supported by the principle of law. The parties are not allowed and entitled to adduce any evidence which is not averred in the pleadings. It further appears that even the first appellate court had relied on such evidence. Thus, both the courts below appear to have committed an error of law. This is simply what is not sanctioned and supported by the principle of law. The parties are not allowed and entitled to adduce any evidence which is not averred in the pleadings. It further appears that even the first appellate court had relied on such evidence. Thus, both the courts below appear to have committed an error of law. ( 13 ) IT is admitted case of the parties that dilbar Mia, the father of the appellant died leaving his two sons Md. Idris and Abdul Kayum. Abdul Kayum died leaving his son Md. Mostaquim Ahmed. Both Md. Idris and Kayum have been carrying on business from the suit premises. The trial court appears to have heavily relied on reverse of Ext. 4 is a rent receipt and on the reverse of it there is an endorsement to the effect that Srimati Dasi let out the suit premises to the defendant/appellant at a monthly rental of Rs. 21 commencing from 1-6-1955. It further appears that the defendant/ appellant had accepted the same by putting his signature thereon. It is queer to note that it has escaped the eyes of both the courts below that the instance of tenancy devolved by the law of inheritance and neither the plaintiff/ landlord nor the defendant/tenant, as in the instant case, is entitled to exclude any of the legal heirs from the tenancy without taking the recourse of law. In the instant case the plaint is conspicuously silent as to how the tenancy of Abdul Kayum and thereafter his son Md. Mostaquin Ahmed was discarded. It has come in evidence that Md. Mostaquim has still been carrying on business from the suit premises. Thus, Md. Idris Ali and Mostaquim are both the tenants of the suit premises. ( 14 ) THE trial court appears to have framed an issue on the defect of parties which is issue no. 12 and in deciding the said issue the trial court had placed unquestionable reliance on ext. 4 which I have already discussed and came to the conclusion that Md. Mostaquim was not the tenant. The first appellate court had dealt with the matter of defect of parties along with the defect of notice. The first appellate court had observed that the ground of joint tenancy of the defendant and his nephew Md. 4 which I have already discussed and came to the conclusion that Md. Mostaquim was not the tenant. The first appellate court had dealt with the matter of defect of parties along with the defect of notice. The first appellate court had observed that the ground of joint tenancy of the defendant and his nephew Md. Mostaquim was not raised in the application under Sections 17 (1), 17 (2) and 17 (2a) of the west Bengal Premises Tenancy Act. The first appellate court has also observed that in replying to the notice of ejectment the defendant never claimed that either his brother Kayum or his sister are the joint tenants of the suit premises and as such the claim of the defendant that Kayum and his heirs are the joint tenants of the suit premises had no basis. But the first appellate court appears to be oblivious of the legal position that the decisions made by the trial court in disposing of the applications under Section 17 (1) and 17 (2) of the West bengal Premises Tenancy Act is interlocutory in nature. Those decisions are not final and as such the same may be agitated at the time of final hearing of the suit. ( 15 ) IN the instant case admittedly the notice was issued only upon Md. Idris Ali. In this connection, the learned Advocate for the respondent has referred to the ratio decided in the case of Kama/a Devi Mukherjee (supra ). In the said case plaintiffs/appellants instituted the suit against the defendant/respondents for eviction from the suit premises contending inter alia that the defendants and other two sisters were joint tenant under the plaintiff and the defendants are defaulters in payment of rent and the plaintiff No. 2 reasonably required the suit premises for his own use and occupation and the use and occupation of the members of his family. The plaintiffs filed the suit after notice to quit served upon the defendants through their Advocate calling upon them to quit and vacate the suit premises. The defendants contested the suit by filing a written statement in which it was pleaded inter alia, that the suit was bad for non-joinder and misjoinder of parties inasmuch as the plaintiff no. 2 was unnecessarily impleaded as party and Rita Dasgupta and Madhumita Dasgupta whp have interest in the tenancy have not be impleaded, as defendants. The defendants contested the suit by filing a written statement in which it was pleaded inter alia, that the suit was bad for non-joinder and misjoinder of parties inasmuch as the plaintiff no. 2 was unnecessarily impleaded as party and Rita Dasgupta and Madhumita Dasgupta whp have interest in the tenancy have not be impleaded, as defendants. In such circumstances, it was held that a suit in respect of the joint tenancy by issuing notice for determination of the tenancy to only one of the heirs of the original tenant and impleading only one of such heirs and leaving aside the other heirs is maintainable because the joint tenancy of the heirs of a deceased tenant is represented by one of the heirs who is also one of the joint tenants. The fact of that case differs pan materia with the facts of the instant case inasmuch as in the said case of Kama/a Devi mukherjee (supra) it appeared that Rita dasgupta and Madhumita Dasgupta filed an application before this High Court in connection with another case renouncing their rights and interests in the suit premises as joint tenants and submitted that they should not be impleaded in any future proceeding regarding the disputed tenancy. We may also hark back to our observations made earlier in this judgment that the tenancy of Mostaquim by way of inheritance could not be terminated without taking the legal recourse or in the absence of anything specific as regards the surrender of such tenancy by him. Here the plain case is of continuance of tenancy by the defendant md. Idris Ali. In the single Bench judgment in the case of Smt. Kamla Devi Mukherjee (supra) the learned Judge had referred to the ratio decided in the case of H. C. Pandey v. G. C. Paul. In fact, Mr. Bhattacharjee, the learned Senior Advocate for the appellant has also referred to the said judgment. In the said case the Hon'ble Supreme Court had overruled the decision of the Allahabad High court made in the case of Ramesh Chand Bose v gopeswar P. Sharma. In fact, Mr. Bhattacharjee, the learned Senior Advocate for the appellant has also referred to the said judgment. In the said case the Hon'ble Supreme Court had overruled the decision of the Allahabad High court made in the case of Ramesh Chand Bose v gopeswar P. Sharma. In the said case of ramesh Chand Bose the Allahabad High Court held that the heirs of the deceased tenant succeeded as tenants in common but the Hon'ble supreme court in the case of H. C. Pandey (supra) was pleased to hold that it is well-settled that on the death of the original tenant, subject to any provisions to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant and the incidence of the tenancy is the same as those enjoyed by the original tenant. It was further held in that case that it is a single tenancy which devolves on the heirs and there is no division of the premises or the rent payable therefore and that is the position between the landlord and the heirs of the deceased tenant. In other words the heirs succeeded to the tenancy as joint tenants. In the said case the respondent/tenant acted on behalf of all the tenants and he had paid rent on behalf of all and he accepted the notice also on behalf of all the tenants. Here the facts in the case of H. C. Pandey differ with the facts of the instant case before us. In the instant case the notice was issued only upon the appellant/tenant and not upon his nephew and there is also nothing before us that the appellant had either paid rents or had accepted the notice on behalf of his nephew. The learned single Judge in the case of Kamla Devi mukherjee (supra) has also referred to the ratio decided by the Division Bench of this court in the case of Sumilita Bhattacharjee v. Nee/a chatterjee. It was decided in that case that the inheritable tenancy right may be accepted or abandoned or relinquished by the heirs of the original tenant and such tenancy right may be surrendered either expressly or by conduct of the parties. But in the instant case, as we have already mentioned, there is nothing to the effect that the tenancy was surrendered by md. Mostaquim either expressly or by any implication. But in the instant case, as we have already mentioned, there is nothing to the effect that the tenancy was surrendered by md. Mostaquim either expressly or by any implication. On the other hand, it has come in evidence that Mostaquim has still been running his business from the suit premises. ( 16 ) THUS, what has been discussed in the foregoing lines from the several judicial pronouncements, we are inclined to hold that the tenancy in inheritable and all the legal heirs of the original tenant become the tenants on the death of their predecessor-in-interest and the incidence of their tenancy is joint. And that being the position all the legal heirs of the original tenant, since deceased, as entitled to get the notice for eviction. In this connection, we would like to make it candid that the decision taken in the hearing of the petition under section 17 of the West Bengal Premises Tenancy act is interlocutory in nature and it always remains open for the party concerned to have it finally decided at the time of final hearing of the suit. ( 17 ) OUR above view finds support from the ratio decided by the Supreme Court in the case of Textile Association (India) Bombay unit v. Balmohan Gopal Kurup In fact, the said decision was also referred to by the learned single Judge in- the case of Kamla Devi mukherjee (supra ). The facts of the case of textile Association (supra) in brief is that the premises in question was under the occupation of one Gopal Kurup and he left behind his widow, two sons and daughters After his death the appellant landlord filed an eviction suit on the ground of bona fide requirement and default in payment of rent before the Small causes Court of Bombay. In that suit the respondent no. 1 was not a party and his mother and brother alone were impleaded as parties the said suit was decreed ex parte on March 31, 1977. The decree was put into execution and the possession was recovered by the landlord. Thereafter on august 13, 1979 the respondent, one of the sons of Gopal Kurup, filed a suit out of which the appeal came up before the Hon'ble Supreme Court. The decree was put into execution and the possession was recovered by the landlord. Thereafter on august 13, 1979 the respondent, one of the sons of Gopal Kurup, filed a suit out of which the appeal came up before the Hon'ble Supreme Court. In the said suit he claimed that he was one of the tenants living in the premises at the time of death of his father. Gopal Kurup and the ex parte decree obtained by the landlord was, therefore, not binding upon him. The trial court found that he was also one of the tenants who lived along with his father and declared that the ex parte decree tor eviction was not binding upon him. The landlord went in appeal against the said decree and the same was dismissed by the high Court. The Hon'ble Supreme Court in arriving at the decision had referred to the decisions made earlier by the Hon'ble Supreme court in the case of Kanju Manji v The Trustees of the Port of Bombay and H C pandey v. G. C. Paul, (supra ). Both the cases deal with the validity of the notice issued to one of the joint tenants and it was held that the notice issued to one of them would be valid. But the Hon'ble Supreme Court differed in deciding the case of Textile Association with the decisions made in those two cases and it was held as below:"we do not think that the principles stated in those cases on the facts obtained are relevant to the present case. There is a finding in. this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside. "the Hon'ble Supreme Court has also proceeded further to observe that it was not sufficient as the courts below have said that the decree was not binding upon the respondent but that decree cannot be kept alive against two other tenants and possession of the premises could be exclusively given to the resoondent. The Hon'ble Supreme Court further observed that the respondent cannot be put into exclusive possession of the premises since his mother and brother are also equally entitled to. The Hon'ble Supreme Court further observed that the respondent cannot be put into exclusive possession of the premises since his mother and brother are also equally entitled to. Accordingly, the Supreme Court was pleased to set aside the ex parte decree dated March 31, 1977 and direct the respondent to be impleaded as party to the earlier suit filed before the Small Causes Court, Bombay and also to proceed with that suit from that stage giving liberty to the respondent to file his defence there. ( 18 ) BOTH the courts below did not find any violation of the Clauses (m) and (o) of Section 108 of the Transfer of Property Act. But both the courts below found the violation of clause (p) of the Transfer of Property Act. ( 19 ) IN the instant case the allegation as regards the violation of Clause (p) of Section 108 of the Transfer of Property Act against the defendant/appellant is as regards the conversion of two rooms into four without the permission of the landlord. A local inspection was held and it appeared from the report of the learned Commissioner (Ext. 9) that, in fact, there are five rooms in the suit premises, although it is claimed by the plaintiff that there are founrooms. According to the plaintiff the defendant broke down the old wall and constructed new wall and thereby out of those two rooms there are at present four rooms. It is also the allegation of the plaintiff that in the verandah the defendant erected a shed (chala ). But having applied the decision taken by the division Bench of this court in the case of kanta Devi Arora (supra) which we have discussed at page 5 of our judgment the nature of the construction alleged to have been made by the defendant does not amount to be a construction of permanent nature and thereby there remains no question of violation of clause (p) of Section 108 of the Transfer of Property act. It appears that only some partitions were made within the suit premises by the defendant and such partitions may be removed without substantially affecting the very substratum of the construction. ( 20 ) FROM the framework of the provisions of Section 13 (4) of the West Bengal Premises tenancy Act there cannot be any nebulous speculation as regards its mandatory nature. ( 20 ) FROM the framework of the provisions of Section 13 (4) of the West Bengal Premises tenancy Act there cannot be any nebulous speculation as regards its mandatory nature. While considering the eviction of a tenant it is always incumbent upon the court to consider the possibility of partial eviction under the provisions of Section 13 (4) of the West Bengal premises Tenancy Act. But to our utter dismay it appears that both the courts below have eschewed from considering this aspect. ( 21 ) THUS, to sum up the discussions made above it is held that the notice for eviction served upon one of the legal heirs of the courts below appear to have misdirected themselves in considering the nature of the construction made by the defendant and in holding that there was violation of Clause (p) of Section 108 of the Transfer of Property Act. Both the courts below did not consider the mandatory provisions of Section 13 (4) of the West Bengal premises Tenancy Act. Accordingly, the present appeal must succeed. But as the notice for eviction served upon the appellant/ tenant is held to be bad, there is no point for remanding the case to the learned trial court. ( 22 ) THE appeal is, therefore, allowed on contest. The judgment and decree passed by both the courts below are hereby set aside and the suit is dismissed. ( 23 ) THE parties are directed to bear their respective costs. Appeal allowed.