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2005 DIGILAW 570 (GUJ)

MAYANKKUMAR DHANSUKHLAL v. C. RAJNIKANT and CO.

2005-08-18

R.S.GARG

body2005
( 1 ) PRESENT is a civil revision under Section-29 of the Bombay Rents, Hotel and Lodging Rates Control Act, 1947 ("the Rent Act") against Judgement and Decree dated 30th March, 1992 passed in Regular Civil Appeal No. 50 of 1985 by the learned 2nd Joint District Judge, Surat, reversing Judgement and Decree dated 29th January, 1985 passed in Rent Suit No. 483 of 1979 by the learned Judge, Small Causes Court, Surat. ( 2 ) THE facts necessary for disposal of the present revision application are that the present applicant-plaintiff filed a suit seeking eviction of the opponents on the grounds described in the plaint. It was the case of the plaintiff that the defendants have committed an act contrary to the provisions of Clause- (o) of Section-108 of the Transfer of Property Act, 1882 i. e. he has changed the user of the premises, that without consent in writing by the landlord, he has erected certain permanent structures on the premises and that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. The plaintiff submitted before the Court that the premises were let out somewhere in the year 1929 to the father of the defendant for carrying on business of cotton brokerage, but, somewhere in the year 1971, he had changed the user and thereafter, he was carrying on the business of electrical goods. It was also submitted that extensive damage has been caused to the property and permanent structures have been raised by the defendants. The description of the permanent structures raised and the damage occasioned to the property were also detailed in the plaint. For Clause- (k) of Section-13 (1) of the Rent Act, though certain pleadings were made, but, no serious efforts were made to prove the same. (1) After service of summons, the defendants appeared before the Court and submitted that after the death of his father, he changed his business of cotton brokerage into one of electrical goods. He admitted that certain changes in the premises have been made, but, he denied that those were of permanent nature. (1) After service of summons, the defendants appeared before the Court and submitted that after the death of his father, he changed his business of cotton brokerage into one of electrical goods. He admitted that certain changes in the premises have been made, but, he denied that those were of permanent nature. He, however, also pleaded that if such `pacca constructions are removed by him, no serious damage would be caused to the property, therefore, he is protected under the explanation appended to Section-13 (1) of the Rent Act. For Clause- (k), it was submitted that he had been using the premises for business purposes and as such, the allegation of non-user was also contrary to the facts. (2) It appears that during the pendency of the suit, a Court Commissioner was appointed, who inspected the premises and submitted his report before the Court. The Commissioner agreed with the allegations made by the plaintiff and submitted to the Court that extensive constructions have been made, including raising of the boundary wall, construction of the room, shifting of the stair-case from one room to another room, removal of the wooden door and windows, replacement of the same by iron shutters and glass panels. He also observed that the defendants had covered the "galiyari" land by raising certain structures and had also covered the same. He also found that a small business premises have been converted into a big show-room and with the help and assistance of iron and plastic sheets, he has made a room at the back side, which was being used by the tenant as a workshop. (3) The learned trial Court, after hearing the parties, found that the defendants were liable to be evicted under Section-13 (1) (a) on the ground of change of user and secondly, on the ground of raising constructions without permission of the landlord. (4) Being aggrieved by the said findings and the judgement, so also the order of eviction, the tenant preferred an appeal, which came to be allowed, therefore, the landlord is before this Court. (4) Being aggrieved by the said findings and the judgement, so also the order of eviction, the tenant preferred an appeal, which came to be allowed, therefore, the landlord is before this Court. ( 3 ) LEARNED Counsel for the applicant, after taking me through the judgement of the learned first Appellate Court, submitted that the learned Appellate Judge, without appreciating the legal provisions and without even appreciating the law laid down by this Court and the Supreme Court, simply observed that `pacca constructions made by the tenant if are removed, then, no serious damage would be caused to the demised premises. He submits that the findings are patently perverse and show absolute and utter non-application of mind. His submission is that nature of the construction should be decisive of the seriousness of the matter and on that basis, the Court should decide that if such constructions are removed, whether serious damage would be occasioned to the property. The ground available to the landlord under Section-13 (1) (a) was not pressed before this Court. ( 4 ) MR. SHAH, learned Counsel for the opponent-tenant, placing reliance upon the language employed in the explanation appended to Section-13 (1) of the Rent Act, submitted that particular constructions would not be deemed to be permanent constructions and any other construction, which is in the nature of permanent construction, if is removed and it causes no serious prejudice to the demised premises, then, an order of eviction cannot be passed. ( 5 ) I have heard the parties. ( 6 ) THE plaintiff came to the Court giving the details of the permanent structures and material alterations in the suit premises. The details are as follows: (1) Defendant Nos. 2 and 3 have made material alterations in the front room of the suit property and converted the front portion into a Show Room for placing Electric Goods. (2) The defendants have inserted two iron shutters in the front portion of the property by removing 2 doors and 2 windows, which were there. (3) The defendants have made permanent structure on the open `wada land, situated on the southern side of the suit premises and started a workshop for repairing of Electric Goods. (4) The defendants put gate in the `galiyari land jointly owned by the plaintiff, which is situated on the eastern side of the suit premises. (3) The defendants have made permanent structure on the open `wada land, situated on the southern side of the suit premises and started a workshop for repairing of Electric Goods. (4) The defendants put gate in the `galiyari land jointly owned by the plaintiff, which is situated on the eastern side of the suit premises. (5) The defendants have made permanent structure towards the road on the northern side of the `galiyari land,and thereby obstructed the right of way of other tenants and co-owners. (6) The defendants have removed the iron-sheet compound and constructed a pacca wall. (7) On the northern as well as western side of the suit premises, there were open to sky spaces. There was iron sheet wall between the two open to sky spaces, which was removed and pacca wall was constructed, and, therefore, they have encroached upon 9 feet land on the eastern side. (8) Tiles were fixed on the ground floor and glasses were fixed in place of doors and windows. From the allegations made by the plaintiff, it would appear that the front portion of the suit premises has been converted into a show room after removal of wooden doors and two windows; two iron shutters in the front portion of the property have been fixed; they had made certain permanent structures on the open `wada land and, thereafter, started workshop for repairing the electrical goods; they have put gate in the `galiyari land, which was jointly owned by the plaintiff; they have made permanent structure towards the road on the northern side of the `galiyari and thereby, obstructed the right of way of other tenants and co-owners; they had removed iron sheets and constructed a `pacca compound wall; from a portion, which was open to sky, and there were iron sheets walls between the two open spaces, iron sheets have been removed and a `pacca wall has been constructed and thereby, the tenant has made encroachment on the land belonging to the landlord; and, tiles have been fixed on the ground floor and certain glasses have also been fixed. ( 7 ) IT appears that the learned Appellate Judge did not apply his mind to the allegations made by the landlord. ( 7 ) IT appears that the learned Appellate Judge did not apply his mind to the allegations made by the landlord. He started picking up every item separately and thereafter, made observations that either that was not a `pacca construction or that was not causing damage to the property and that was not in the nature of material alteration or it was not detrimental to the interest of the landlord. ( 8 ) BEFORE I take up each and every matter independently, it would be profitable to refer to Section-13 (1) (b) and the explanation appended to it. Section-13 (1) (b), as applicable in Gujarat, says that notwithstanding anything contained in the 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-23a, the tenant has, without the landlords consent given in writing, erected on the premises any permanent structure; - Explanation : for the purposes of Clause (b), no permanent structure shall be deemed to be erected on any premises merely by reason of the construction of a partition wall, door or lattice 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. "a fair understanding of the provisions would make it clear that if the tenant wants to make certain constructions or wants to erect certain permanent structures on the demised premises, then, he must obtain a consent in writing from the landlord. If the consent from the landlord is obtained in writing, then, that would clearly prove that the construction is with the consent of the landlord and in such a case, the landlord would not be entitled to evict the tenant because the tenant had raised the construction with the consent of the landlord. The moment the landlord proves to the satisfaction of the Court that neither there was a consent, much less a written consent, and certain permanent structures have been erected on the demised premises, the tenant is liable to be evicted under Section-13 (1) (b) of the Act, but, the explanation would protect him if he can bring his case within the said explanation. " ( 9 ) LEARNED Counsel for the opponents submitted that the explanation appended to Section-13 (1) is to be read in the interest of a tenant as the Rent Act is an Act to protect the rights of the tenants. He submits that explanation has three phases and is to be read in three parts. According to him, if a `pacca partition wall or door or lattice work is raised, then, the same would not be deemed to be permanent constructions. He submits that if such are permanent constructions, then, the law does not recognise the same for the purposes of Section-13 (1) (b) to be a permanent construction or permanent structure. He submits that filling of kitchen-stand, even if it is a permanent structure, would also not be deemed to be a permanent construction. According to him, if these are not the permanent structures, then, any other permanent structures if can be removed easily without causing serious damage to the property, then, such `pacca construction or permanent structure would not be deemed to be erection of a permanent structure. What he wants to suggest is that if the case of the tenant does not fall within the first part wherein the law does not deem particular permanent structure to be a permanent structure, then too, a tenant would be entitled to bring his case within the second part of the explanation and if he satisfies the judicial conscience of the Court that removal of such `pacca construction can be done without serious damage to the premises, then, it would also not be taken to be a permanent structure. He also submits that the words "such other alterations made in the premises as can be removed without serious damage to the premises" must be read to mean that "such other permanent structures made in the premises as can be removed without serious damage to the premises". According to him, if certain alterations are made for beneficial enjoyment of the demised premises and if such constructions of permanent nature are later on removed and the property, after some reconstruction, can be restored back to its original position, the Court must hold that such alteration/permanent structure is removable without serious damage to the premises. According to him, if certain alterations are made for beneficial enjoyment of the demised premises and if such constructions of permanent nature are later on removed and the property, after some reconstruction, can be restored back to its original position, the Court must hold that such alteration/permanent structure is removable without serious damage to the premises. ( 10 ) LEARNED Counsel for the applicant on the other hand submitted that so far as erection of the permanent structure in the nature of a partition wall, door or lattice work or the filling of kitchen-stand are concerned, the law itself says that even if those are `pacca/permanent structures, those would not be deemed to be permanent structures. He, however, submits that the first part of the explanation relates to the `pacca structures, which are of permanent nature, while the latter part does not talk of the `pacca construction or `pacca/permanent structures but talks of the alterations. He submits that there is a vast difference between the construction and an alteration. According to him, an alteration would be in the existing premises for its better use, while the construction would be of something new. Referring to the allegations made by the plaintiff, he submits that the nature of erection would show that it was not in the nature of alteration, but, it was in the nature of `pacca structure. He submits that the words, "removal of the alteration should not cause any serious damage to the premises", would mean that the moment all these structures are removed, then, without making any further construction in the premises, the property can be restored back to its original position. His submission is that if the legislature had used the words "erection of permanent structure" and "alteration", then, the Court must read the distinction and difference between the two phrases. According to him, the nature of construction made by the tenant is not in the nature of alteration. ( 11 ) I have already referred to the allegations of the plaintiff. The allegations of making permanent structures have not been denied by the tenant. According to him, the nature of construction made by the tenant is not in the nature of alteration. ( 11 ) I have already referred to the allegations of the plaintiff. The allegations of making permanent structures have not been denied by the tenant. The submission of the tenant is that for better enjoyment of the property and to add value to the property and for the purpose of safety, if certain acts have been done by him, then, the same cannot be taken to cause any detriment to the interest of the landlord and even if these are permanent structures, then, the same can be removed easily. ( 12 ) IT is not in dispute before me that in the front room of the suit property, which was ordinarily a business premises, material constructions have been made, doors and windows have been removed and it has been converted into a showroom by installing iron shutters. It cannot be disputed that fixation of iron shutters would not be an alteration, but, would be a permanent structure. When a door on the front wall of the shop is fitted, it is not a simple alteration, but, it is in the nature of permanent construction. One could understand that in place of the glass panels in the doors, wooden planks were fitted and some alteration as such was made. In the present matter, the doors and windows, which were in existence, have been removed and iron shutters have been fitted. Fixation of the iron shutters may be for the better enjoyment of the property, but, would fall within the mischief of Section-13 (1) (b ). The learned Appellate Judge was absolutely unjustified in holding that if iron shutters are removed, the property can be restored back to its original position by reinstalling the doors and windows. The learned Appellate Judge failed in not appreciating that the law does not talk of reconstruction or restoration of the property to its original shape and position, but, what the law simply says is that any alteration made if can be removed without causing any serious damage to the premises, then, it would not be taken to be a permanent structure. In the present matter, removal of the doors and windows was detrimental to the interest of the landlord and installation of the iron shutters was, in fact, a `pacca/permanent structure and if such permanent structure is removed by the tenant, then, the property cannot be brought back to its original shape and position without making further constructions. If such is the situation, then, it cannot be said that no serious damage would be caused to the property by removal of the permanent structure. ( 13 ) IT is also to be seen that the learned Appellate Judge, without referring to the legal provisions, went on considering the commentary made by particular authors. He observed that if something is done for betterment of the tenant and there is no waste and no substantial damage, then, the tenant would not be injuncted from making such constructions under the general law. The question of granting an injunction against the tenant would stand on different footings. The principles applicable for grant or refusal of the injunction would depend upon the basic factors such as prima facie case, balance of convenience and irreparable loss, which cannot be compensated in terms of money, while a case for eviction is to be considered on the grounds available under the particular Rent Act. The learned Appellate Judge observed, placing reliance upon the commentary on the Rent Act by J. H. Dalal, that the rolling shutters and steel doors, which were put for safety, can be easily dismantled by removing screws without causing any damage to the walls. I am shocked and surprised to read these findings. It is a common knowledge in the field of construction that the iron shutters, iron bars, iron doors and iron grills are not simply fitted on small screws. When the shutters are fitted, deep holes in the side walls and the roof are to be made so that the long pallets, which are fitted in the walls, hold the weight of the iron shutters. An iron shutter is not like a curtain which can be fitted on the side of the wall panels or window panels, these are heavy constructions. On one side, the learned Judge wanted to say that these were put for safety and at the same time, he wanted to suggest that these were fitted on the screws and after removing the screws, these could be easily removed. On one side, the learned Judge wanted to say that these were put for safety and at the same time, he wanted to suggest that these were fitted on the screws and after removing the screws, these could be easily removed. In the considered opinion of this Court, the learned Appellate Judge went wrong in holding that fixing of the rolling shutters and removal of two doors and two walls was not falling within the nature of permanent structure. ( 14 ) WHILE considering the fact of raising the boundary wall and two other walls, the learned Appellate Judge, in the considered opinion of this Court, again went wrong. In paragraph-35 of the judgement of the Appellate Court, there is a reference to the Courts Inspection Note. The said Inspection Note records that in place of doors and windows, shutters were fixed by the tenant, tiles were fixed on the floor, wooden doors and windows were removed and glasses were fixed and a `pacca workshop was constructed in the `wada land. So also, the tenant had constructed boundary wall and thereafter, raised two more walls, and after putting roof over the same, was using the said premises as a workshop. While considering the question of raising the walls, it would also be necessary to see that the allegations of the plaintiff that attached to the boundary wall, constructed by the tenant, he also constructed two more walls; roof over the said land, enclosed within these three newly constructed walls and the original wall of the demised premises, were covered by fixing plastic and iron sheets; the foundation of the wall was made by digging the land to the depth of 2 to 2 ft. ; a gate of rolling shutters was fixed on one side of `galiyari land and on the second side of the `galiyari land, after removal of the wooden gate, iron sheets were also placed above one of the gate, with a view to use the place underneath as a parking place. ( 15 ) IT is not in dispute before me that construction of the boundary and the side walls attached to the boundary walls was in the nature of permanent structure. ( 15 ) IT is not in dispute before me that construction of the boundary and the side walls attached to the boundary walls was in the nature of permanent structure. The submission by the tenants Counsel, however, is that these walls can easily be removed and if this permanent structure can be removed without causing any serious damage to the demised premises, then, the tenant cannot be evicted. Ordinarily, this argument would have been justified if the construction was of temporary nature, it was raised by putting bamboos and wooden poles and planks by fixing some iron sheets or barbed wires. The moment a permanent structure is raised, then, the tenant will have to show to the Court that it is easily removable and the removal would not cause any serious damage to the demised premises. It is unfortunate that the learned Appellate Judge did not try to appreciate different judgements of different Courts and of the Supreme Court in their true perspective and brushed aside every judgement without even appreciating the law laid down and explained by the Supreme Court and High Courts, simply saying that those were decided on their own facts. I have gone through number of judgements and I find that the said judgements would have material bearing on the facts of the present case. ( 16 ) REGARDING construction of these three walls, which were in the nature of permanent structure, the learned Appellate Judge has simply said that these could easily be removed and even for the foundations, which were laid for erecting the wall, the learned Judge had gone to the extent of saying that after digging the earth or the ground, the construction can be removed. If such an exercise is to be undertaken, then, it cannot be said that it was in the nature of alteration or it is easily removable and it would not cause any prejudice or serious damage to the premises. It is also to be seen that the learned Appellate Judge did not try to appreciate that fixing of tiles on the ground floor was also a permanent structure. It is also to be seen that the learned Appellate Judge did not try to appreciate that fixing of tiles on the ground floor was also a permanent structure. One could well understand that if the tiles can easily be removed without any serious damage to the property, the tenant may not be evicted, but, the nature of the construction made by the tenant must be self-explicit and the tenant should explain before the Court that removal of such construction would not cause any substantial damage to the property. The learned Appellate Judge also did not appreciate that the staircase leading to the first floor was originally built in the first room, which now has been removed and has been constructed in the second room. Removal of the staircase, which was constructed in the first room, in itself was causing damage to the property. However, construction in the second room was not an alteration, but, was in the nature of permanent structure. If this `pacca structure, in the form of staircase, is removed from the second room, then, the opening made in the second rooms roof will have to be filled again and the opening, which was available in the first rooms roof, will have to be again opened. Any damage in the form of opening the roof, would always cause serious damage to the premises. Present is not a case where a wooden staircase was lifted from one place and was placed at another place. Present is a case where a permanent structure was demolished and yet another permanent structure was raised and the nature of the property was changed. A tenant is not entitled to act like an owner of the property. He continues to be a tenant. He owes certain duties towards the landlord. He has his own liabilities. He has a right to use and occupy the premises on payment of rent without causing any damage to the property. Yet if he starts acting like an owner and starts construction in the property to suit his own purpose or business, then, it cannot be held that the tenant was acting in good faith or he was simply making alterations, the removal of which was not to cause any serious damage to the property. Yet if he starts acting like an owner and starts construction in the property to suit his own purpose or business, then, it cannot be held that the tenant was acting in good faith or he was simply making alterations, the removal of which was not to cause any serious damage to the property. If the reasonings of the learned Appellate Court are to be accepted, then, a tenant would be entitled to demolish the existing construction, build a new house and in reply to an action for eviction, would say to the Court that the newly built house can always be demolished and the original structure can always be rebuilt. This under the law cannot be allowed. The tenant would be bound to seek permission of the landlord to make permanent structure. ( 17 ) IT is also to be seen that out of three walls, which were erected by the tenant for construction of the room, the learned Appellate Judge took out the case of the boundary wall independently. He wanted to show that these were three different walls not connected with each other. In fact, modus operandi of the tenant was to create a permanent structure so that the room, so constructed or created, is used for the workshop. ( 18 ) THE learned Appellate Judge firstly held that if the boundary wall is created or made by the tenant, then, the same would not be detrimental to the interest of the landlord, rather it would provide safety to the property. The question is not that whether it would provide safety to the property or it is not detrimental to the interest of the landlord, the question is whether it is a `pacca/permanent structure and whether it is easily removable. For the other two walls, which were constructed by the tenant, the learned Appellate Judge simply observed that the construction of these two walls was also not detrimental to the interest of the landlord because this could easily be removed. If four walls of a room are taken independently as one wall each, then, nobody would ever say that there is a room in existence. A wall is not a heap or burden of cement, concrete, iron or bricks. In fact, it is placement of every article in a systematic and methodical manner to create a wall. If four walls of a room are taken independently as one wall each, then, nobody would ever say that there is a room in existence. A wall is not a heap or burden of cement, concrete, iron or bricks. In fact, it is placement of every article in a systematic and methodical manner to create a wall. If four walls are created in a manner, with a particular piece of land encompassed within the periphery of four walls, then, any prudent man would say that somebody has encircled particular premises within four walls and when the roof made of either concrete or stone slabs or steel or iron or plastic or corrugated sheets, then, no person would say that a room has not come into existence. Further, if all the four walls and the roof are taken independently, then, no construction would be termed to be a room. In the present matter, the tenant proceeded in a methodical and systematic manner in constructing the room. Construction of the room on the open premises, in fact, was detrimental to the interest of the landlord. Removal of the said three walls would certainly create serious damage to the property. The walls, which are attached to the demised premises, if are now removed, then, they would certainly cause serious damage to the original existing structure. ( 19 ) THE learned Appellate Judge, in the opinion of this Court, looked to the facts of the case with tainted glasses. The approach of the learned Appellate Judge was simply to help and assist the tenant. ( 20 ) IT is also to be seen that in the matter of Patel Chunibhai Dhanjibhai vs. Patel Vallabhbhai Ambalal [16 GLR 481], construction of a separate room was held to be not protected under the explanation appended to Section-13 (1 ). The learned Appellate Judge, in the present matter, ignoring the said judgement simply observed that a room came into existence by making two walls. It is unfortunate that a methodical construction, which was made in a systematic manner, has not been taken into consideration by the learned Appellate Judge. In any case, that was not any alteration in the demised premises, but, in fact, it was a construction over the demised premises and undisputedly, it is a permanent structure. It is unfortunate that a methodical construction, which was made in a systematic manner, has not been taken into consideration by the learned Appellate Judge. In any case, that was not any alteration in the demised premises, but, in fact, it was a construction over the demised premises and undisputedly, it is a permanent structure. The learned Appellate Judge, in paragraph-40, of his judgement, has observed that out of three walls constructed by the tenant, one is a boundary wall and therefore, the construction of the boundary wall cannot be objected. For the remaining two walls, the Appellate Court observed that those are not partition walls, but, those are the walls, which would fall within the residuary expression, "such other alterations". I am shocked to read these findings. An alteration is made in the existing structure, an alteration may be made sometimes by removing a part of the existing structure so that the existing damaged construction is removed and is replaced and the original things come into existence. In the present matter, the construction of permanent structure cannot be deemed to be such other alteration. There is a marked distinction between an alteration and a construction. ( 21 ) IN the matter of Jayantilal Sakalchand Shah vs. Balasaheb Shankar Naik, [1986 (2) RCJ (Bombay) 617], the Court observed that if the sloping roof was converted into a rectangular roof, height of all the four walls were increased, certain new doors and windows were fixed, then, that would be deemed to be a permanent structure and would not come within the exempted clause. The learned Appellate Judge brushed aside the said authority simply observing that each case is decided on its own facts. When raising of the wall is taken to be a permanent structure, then, construction of a new wall, which is not a partition wall, would always be deemed to be a permanent structure. ( 22 ) IN the matter of Manmohan Das Shah and Ors. vs. Bishun Das [ air 1967 SC 643 ], the Supreme Court had observed that alterations may include material alterations and in that case, lowering down of the ground floor, lowering down of the front door, enlarging the size of the front door, lowering down of the `chabutara/platform to meet the level of the new door-step and lowering down of the staircase were held to be permanent structures. In the present case, new walls have been constructed, new roof has been erected, doors have been changed, new shutters have been fitted, `galiyari portion has been covered, permanent staircase has been removed from one room to another and then too, the tenant says that this is not a permanent structure. In the opinion of this Court, the law laid down by different Courts makes it clear that the construction should be of the nature that it is easily removable and when the construction is removed, no serious damage is caused to the demised premises. Not only that, the construction should not be an independent construction, but, it should be in the nature of an alteration. The legislature, being alive to the situation of alterations, thought that if alterations are not allowed by a tenant, then, he may not enjoy the property to its full user. The legislature thought that for every small thing, permission of the landlord was not needed. If for fixing a nail, the tenant was to run to the landlord and the landlord was to refuse to give the permission, then, for better enjoyment of the property, a tenant was to go to the Rent Court and seek an order. To avoid such practical difficulties, the legislature observed that a tenant would be entitled to make alterations, which are not in the nature of permanent structures and permanent structures if are made, then, their removal would cause no serious damage to the property. ( 23 ) IT is also to be seen that for the three walls constructed by the tenant for making a room, the learned Appellate Judge says that the tenant had only constructed three pieces of wall, connecting each other, in the open space and fixed plastic sheets and cement sheets on the roof. He observed that the roof could be easily removed and this structure constructed by the tenant cannot be said to be a room. I am really shocked and surprised. When three walls are constructed and each is attached to the other one and two walls are attached to the existing wall and construction encompassed some area, which is also covered by a roof, then what else is needed for construction of a room. I fail to understand that why the learned Judge became so pervert and tried to ignore the ordinary prudence. I fail to understand that why the learned Judge became so pervert and tried to ignore the ordinary prudence. ( 24 ) THE learned Judge, in the considered opinion of this Court, also went wrong in observing that a particular structure is a permanent structure or not is a mixed question of fact and law. I do not understand that for deciding, whether a construction is of permanent nature or not, what law is required to be applied to it. It is a pure question of fact. A structure, which is of permanent nature, is fitted to the ground, or any other existing construction is made of cement, concrete, iron, bricks, etc. , in the ordinary terms, would be deemed to be a permanent structure. The law would not decide that if the thickness of a `pacca wall is 4 inches, then, it would be deemed to be some temporary structure, and if the width of the wall is more than 10 inches, then, it would be deemed to be a `pacca structure. For finding whether a construction is of permanent nature or not, one has to look into the realities of life. One has to apply his common sense and the ordinary prudence. It may be a different thing that common sense is not commonly available, but, that does not mean that the common sense is not required to be applied to decide whether the structure is of permanent nature or is of temporary nature. ( 25 ) SO far as the construction and covering of `galiyari land is concerned, the learned Judge, in paragraph-56 of his judgement, observed that he would agree with the Counsel for the landlord, however, without there being any evidence on the record, he observed that the landlord waived his right to raise this question. The learned Judge, in the considered opinion of this Court, went wrong and did not read the facts available on the record. The landlord came with a specific case that the construction made by the tenant was brought to his notice for the first time under Exh. 64 vide Notice dated 16th May, 1978 issued by the Assessment Officer of Surat Municipal Corporation. Once the landlord says that he learnt about the construction at a later stage, then, it may not be presumed that he had given up his right to challenge the acts of the tenant. 64 vide Notice dated 16th May, 1978 issued by the Assessment Officer of Surat Municipal Corporation. Once the landlord says that he learnt about the construction at a later stage, then, it may not be presumed that he had given up his right to challenge the acts of the tenant. The learned Appellate Judge was absolutely perverse in his approach, so also in recording the findings that the landlord had waived his right and the suit of the plaintiff is barred under the principles of estoppel. ( 26 ) THE learned Appellate Judge, in the considered opinion of this Court, did not try to appreciate the distinction between the construction, which is in the nature of permanent structure, and any other construction, which is in the nature of alterations. He failed to appreciate that any permanent structure, which is made inside or outside the suit premises, if is removed, then, it would always cause serious damage to the premises. In any case, the landlord, in the opinion of this Court, has proved to the satisfaction of the Court that the constructions made by the tenant were permanent structures and if the same are removed, those would cause serious damage to the premises. ( 27 ) I hold that the findings recorded by the first Appellate Court are perverse in nature, are based on misappreciation and misunderstanding of law and are also in ignorance of the evidence available on the records. ( 28 ) THE judgement and decree passed by the first Appellate Court are set aside and those of the trial Court are restored. The suit of the plaintiff is decreed with costs. The plaintiff would be entitled to a sum of Rs. 2,500/- as costs of these proceedings and he would also be entitled to costs of two Courts below. Rule is made absolute. .