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2013 DIGILAW 171 (GUJ)

Sukhdevi Laxmanbhai v. Devdas Mohanlal Parmar

2013-03-20

N.V.ANJARIA

body2013
ORDER : N.V. Anjaria, J. The applicants are the original defendants-tenants of the suit premises. The learned Judge, Small Causes Court No.10, Ahmedabad allowed H.R.P. Civil Suit No.513 of 1996 instituted by the present opponents-original plaintiffs, and passed a decree of eviction directing the applicants-defendants to handover possession of the suit premises on or before 26th April, 2003. Thereafter defendants preferred appeal before the Appellate Bench of the Small Causes Court, Ahmedabad being Civil Appeal No.69 of 2003, which came to be dismissed by the Appellate Bench on 07th March, 2012. Thereafter, the defendants-applicants herein preferred Review Application No.195 of 2012, which was rejected vide order dated 18th October, 2012. The applicants have therefore approached this Court under Section 29(2) of the Bombay Rents, Hotels, Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act'). 2. The suit being H.R.P. Suit No.513 of 1996 was instituted by the opponents-original plaintiffs on twin grounds that defendants-tenants were in arrears of rent and secondly that they had erected permanent structure and therefore, they are liable to be evicted under Section 13(1)(b) of the Act as they had breached condition of tenancy. The premises, which was let-out, consisted of one room admeasuring 11 x 9 ft. The suit premises was rented by executing a rent note dated 16th September, 1967 in favour of one Laxmanbhai Prahladji, who died on 14th June, 1995 and the present tenants are the heirs of original tenant Laxmanbhai staying in the premises. It was pleaded by the plaintiff that tenants had changed the roof and raised the height of walls by 2 ft. by using bricks and had further encroached upon the area. It was the further case that on the encroached portion, an otta and a bathroom were constructed, which was obstructive to the other passers and tenants going to their premises. Raising aforesaid grounds, the plaintiff-landlord gave notice dated 12th February, 1996 to the tenant terminating the tenancy with effect from 31st March, 1996. The suit was contested by the defendants-tenants inter alia denying allegations. 2.1 As regards the first ground of defendants being tenants in arrears, it was held that the same was not proved as the tenants were ready and willing to pay the rent amount and had paid the rent due. The suit was contested by the defendants-tenants inter alia denying allegations. 2.1 As regards the first ground of defendants being tenants in arrears, it was held that the same was not proved as the tenants were ready and willing to pay the rent amount and had paid the rent due. 2.2 The Small Causes Court after appreciating the evidence on record came to the conclusion that as far as existence of chowkdi, otta and change of roof of the premises were concerned, the said changes were admitted by the defendants, nevertheless the said constructions were not found to be permanent in nature. However, it was held that the defendants had carried out the permanent construction on the suit premises by erecting new pakka walls raising height of the walls. The Lower Appellate Court confirmed the said finding holding that there was a permanent structure in the nature by raising height of wall by two-and-half feet. The decree of eviction passed by the Small Causes Court accordingly came to be confirmed by the Appellate Bench. 3. It is required to be noted that during the pendency of the appeal before the Appellate Bench of the Small Causes Court, an application Exhibit 20 came to be preferred by the tenants stating inter alia that on account of cyclone, northern side wall had collapsed and the same was required to be repaired. The said application Exhibit 20 was disposed of by order dated 07th August, 2008 permitting the defendants-tenants to repair the roof of the suit room by substituting new iron sheets in place of old one. 4. Assailing the decree of eviction on the ground of raising permanent structure on the premises passed by the Trial Court and confirmed by the Appellate Bench of the Small Causes Court, learned advocate Mr.Harshal Shah for the applicants submitted that tenants had only replaced roof as per the order passed below Exhibit 20. With regard to finding that height of the wall was raised by using bricks, it was submitted by him that the said construction was in existence even prior to the order below Exhibit 20. With regard to finding that height of the wall was raised by using bricks, it was submitted by him that the said construction was in existence even prior to the order below Exhibit 20. As he could not gather any support from the record for his submission that the extended wall was in existence even before order below Exhibit 20, he submitted that in any view, said erection could not be said to be of permanent nature inasmuch as only bricks were used. Learned advocate relied upon the Apex Court decision in Purshottamdas Bangur and another v. Dayanand Gupta [2012(2) R.C.R.(Rent) 447 : 2012(4) R.C.R.(Civil) 938 : 2012(6) Recent Apex Judgments (R.A.J.) 110 : (2012) 10 SCC 409 ], to support his submission that the structure in question cannot be termed as permanent structure within the meaning of Section 108(p) of the Transfer of Property Act. 4.1 On the other hand, learned advocate Mr. Daxesh Dave for the landlord submitted that the erection of permanent structure was evident from the facts on record. It was submitted that even when the Court Commissioner recorded panchnama pursuant to the aforementioned Exhibit 20 application of the tenant, it was indicated therein that bricks were lying at the site. It was submitted that those bricks were thereafter used and in guise of changing the roof, the tenant altered and raised height of walls of the suit premises. It was submitted that previously the said structure was not in existence. It was submitted that both the Courts have found that the structure in question was of a permanent kind. He submitted that tenant is rightly ordered to be evicted as they have committed breach of tenancy. 5. On going through the facts on record and having gone through the judgment of both the Courts below, and having considered the submissions by learned advocates for both the sides, it could be seen that the Courts below have found that increasing of height of wall and the construction thereof was new one. In that construction, bricks, cement and sand were used and the height of the room-being suit premises, was extended and roof of the room was substituted by new roof. In that construction, bricks, cement and sand were used and the height of the room-being suit premises, was extended and roof of the room was substituted by new roof. It was held that though change of roof did not amount to permanent structure, raising of height of walls with bricks, etc., was a permanent construction raised by the tenant incurring liability for eviction under Section 13(1)(b) of the Act. The Appellate Bench reached the same conclusion that the structural alteration in question was permanent and fell within the clauses (o) and (p) of Section 108 of the Transfer of Property Act. It was recorded that the tenant could not produce any material to dislodge the finding of the Trial Court. In course of proceedings of the present revision application also, the learned advocate for the opponent-landlord produced on affidavit the photographs of the premises in support of his case to pictorially explain the nature of construction put up on the suit premises. 5.1. In order to adjudge whether the construction is a permanent in nature or not, and whether the tenant would invite liability for eviction under Section 13(1)(b) or not, the tests applied by the Courts are mainly two-fold. If the intention of the tenant is to raise a structure which is to last during the subsistence of tenancy and is one he proposes to use during the period of tenancy, such structure would fall within the concept of permanent structure for the purpose of the ground of eviction when the construction is made without written consent of landlord. The other test is the very kind and nature of structure. When the structure is of permanent kind constructed with the material making it to be permanent in character, the same would be a permanent structure. Once the physical make of the structure is found to be of permanent-kind, all other aspects become irrelevant. The landlord whose consent is not obtained for raising such a structure or for making the construction or alteration become evicted to seek a decree of eviction. In the instant case, the tenant has found to have taken the walls of the suit room upwards by using the bricks and cementing them upto two feet further. This alteration is a construction of permanent nature as it is so found on facts by both the Courts concurrently. In the instant case, the tenant has found to have taken the walls of the suit room upwards by using the bricks and cementing them upto two feet further. This alteration is a construction of permanent nature as it is so found on facts by both the Courts concurrently. It was further found that the same was not one in existence earlier. That height of the wall of the suit premises was not increased but existed from the beginning was a lame contention not finding any factual support or fortification from the record or the evidence. 5.3 The decision in Purshottamdas Bangur (supra), relied on by learned advocate for the applicants only reiterate the aforesaid position, when it observed about the distinction between temporary structure and permanent structure for the purpose of Section 108(p) of the Transfer of Property Act as under: "The use of the word "permanent" in Section 108(p) of the Transfer of Property Act is meant to distinguish the structure from what is temporary. The term "permanent" does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. No hard-and-fast rule can be prescribed for determining what is permanent or what is not. The intention of the party putting up the structure and the nature and extent of the structure are important for deciding whether the structure is permanent or temporary within the meaning of Section 108(p) of the Transfer of Property Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly, the purpose for which the structure is intended is also an important factor that cannot be ignored. It is immaterial whether the structure has resulted in creating additional usable space for the tenant who carries out such alteration and additions. If addition of usable space was ever intended to be an essential requirement under Section 108(p) of the TP Act, Parliament could have easily provided so. It is immaterial whether the structure has resulted in creating additional usable space for the tenant who carries out such alteration and additions. If addition of usable space was ever intended to be an essential requirement under Section 108(p) of the TP Act, Parliament could have easily provided so. Nothing of this sort has been done even if Section 13(1)(b) of the State Act concerned which clearly shows that addition of space is not the test for determining whether the structure is permanent or temporary." (Paras 20 and 22) 5.4 Applying the tests, in the facts of the present case as discussed above, erection of heights of wall with use of bricks was a permanent structure, the same was normally indicated to be used during the period of tenancy, structure was to last till the lasting of tenancy. Even otherwise, bricks were used and the same was cemented with use of sand and it was a pukka kind of wall whereby height of the suit premise-room was increased. In the facts and circumstances, the ground for erection in terms of Section 13(1)(b) was clearly made out and the Courts below were amply justified in holding to that effect. 6. When both the Courts below have concurrently hold that the structure in question was permanent structure and such finding having recorded after due consideration of facts on record, evidence and the same being in realm of appreciation of such a finding, in any case, is not liable to be interfered in the revisional jurisdiction of this Court under Section 29(2) of the Act. In Patel Valmik Himaplal and others v. Patel Mohanlal Muljibhai [1998(2) R.C.R.(Rent) 256 : (1998) 7 SCC 383 ], the scope and powers of the High Court under Section 29(2) of the Act was reiterated and it was observed that mere fact that different view was possible on reappreciation of evidence cannot be a ground for the High Court to substitute its own finding. As discussed above, finding recorded by both the Courts on the aspect of alteration in suit premises and that the same was a construction of permanent kind, cannot be faulted from any standpoint. 6.1 For the foregoing reasons and discussion, no ground is made out to entertain the present revision application and warranted interference of this Court in the judgment and decree of eviction passed by the Court below. 6.1 For the foregoing reasons and discussion, no ground is made out to entertain the present revision application and warranted interference of this Court in the judgment and decree of eviction passed by the Court below. Accordingly the revision application stands dismissed summarily. 7. At this stage learned advocate Mr.Shah for the applicants requests that the applicants-tenants may be granted time to vacate the premises. He submitted that the applicants belong to poor strata of the society and would find it extremely hard to get another home to stay within short time. 7.1 Having regard to the fact that the applicants have been staying in the premises as tenants since 1967 and considering the totality of the facts and circumstances of the case, the applicants-tenants deserve to be granted time for vacating the premises in question. 7.2 Accordingly, the applicants-tenants are permitted to occupy the premises and granted time to vacate upto 15th March, 2014. Granting of time to vacate as above shall be on the condition that each of the applicants-tenants shall file an undertaking before this Court on oath wherein they will state: (a) Names of the family members, who are in actual possession and occupation of the suit premises; (b) They are in exclusive possession and occupation of the suit premises; (c) They will not transfer, alienate or encumber to any one the suit premises during the period as permitted above; (d) They will expressly undertook on oath that they will vacate the suit premises and handover vacant and peaceful possession of the suit premises to the respondent-landlord on or before 15th March, 2014. 8. The revision application stands summarily dismissed, subject to above directions.