JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Atul Dayal, learned counsel for the appellant and Sri Shad Khan, Advocate holding brief on behalf of Sri Tulika Prakash, learned counsel for respondents. 2. The following substantial questions of law were formulated by this Court while hearing this appeal under Order 41 Rule 11 C.P.C. which have to be answered by this Court: (I) Whether the construction raised by appellant on the land in dispute is permanent structure within the meaning of Section 29-A(2) of U.P. Act No. 13 of 1972? (II) Whether the construction aforesaid was raised with the consent of landlord? 3. Smt. Kamla Devi instituted Original Suit No. 633 of 1996 in the Court of 8th Additional Munsif, Kanpur. Sri Sundar Lal Bhatia and Sri Motiram Bhatia were impleaded as defendants. It was in respect to Plot No. 110/183, Ram Krishna Nagar, Kanpur. The two defendants were in joint tenancy of aforesaid accommodation. During pendency of suit, Smt. Kamla Devi died and thereafter her husband and other heirs and legal representatives were impladed as plaintiffs No. 1/1 to 1/3. The plaintiff prayed for a decree for ejectment of defendants and recovery of arrears of rent, mesne profits, damages etc. 4. The suit was contested by defendants on various grounds including that the accommodation was a plot and taken on rent for the purpose of putting a permanent structure thereon to run a restaurant and a motor truck repair workshop. The permanent structures were put up, on a considerable cost, with concurrence, consent and knowledge of plaintiff and her husband. The default in payment of rent was also denied and referring to Section 29-A of U.P. Urban Building (Regulations of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the “Act, 1972”) it was pleaded that defendants are protected thereunder and cannot be evicted. 5. The Trial Court framed 11 issues and relevant issues 1, 2, 3, 4 and 6 are as under: “1. Whether the disputed construction on the land in suit are permanent structures? 2. Whether the disputed construction on the land in suit have been raised with the permission of the plaintiff? 3. Whether the plaintiff had permitted that the defendants would not be evicted till the structure raised on the suit land exist? 4. Whether the defendants tenancy is protected under U.P. Act No. XIII of 1972? If so its effect? 6. 2. Whether the disputed construction on the land in suit have been raised with the permission of the plaintiff? 3. Whether the plaintiff had permitted that the defendants would not be evicted till the structure raised on the suit land exist? 4. Whether the defendants tenancy is protected under U.P. Act No. XIII of 1972? If so its effect? 6. Whether the defendants are entitled to rent under Section 29-A of U.P. Act No. XIII of 1972? If so what shall be the rate of rent?” 6. Issue 1 was decided by holding that Gumti and restaurant etc. constitute a temporary structure. The Court also held that all these constructions were raised without any consent or permission of landlord, i.e., plaintiff or her husband or of Sri Raghunath Sahai, earlier owner, as pleaded by defendants. 7. Issue 2 was decided against tenants holding that in case of default in payment of rent they can be evicted and protection of Act, 1972 was inapplicable. While deciding issues 3 and 5, the default in payment of rent was also held in affirmance and against tenants. Consequently, the Trial Court, i.e., 8th Additional Munsif, Kanpur decreed suit vide judgment dated 18.10.1982. The defendants-tenants’ Civil Appeal No. 758 of 1982 has also been dismissed by Lower Appellate Court, i.e., 12th Additional District Judge, Kanpur vide judgment dated 6.10.1983. 8. In order to answer question 1, the nature of construction found at the site as noticed in judgment of Lower Appellate Court need be seen. As per plaintiffs’ own version, i.e., as deposed by Sri Onkar Nath, PW-1, husband of Smt. Kamla Devi, there was a tin shed and wooden shed covered with Asbestos sheet and a small Gumti covered with tin shed. The defendant, Sundar Lal, examined himself and stated that walls are not wooden but made of bricks, roof of tin shed and doors are wooden. Ultimately, on this aspect, the Court below obtained Commissioner’s report, i.e., Paper No. 63-C. He gave details of construction, reporting that, there is a wooden Jalpan Grih surrounded by boundary walls of tin and wood. Half of it is covered by tin shed and other half is covered by Asbestos shed. There is no door. It is covered by wooden patra and the floor is of cement. There is electric and telephone connection and there existed two Gumties on two feet height Chabutara. Half of it is covered by tin shed and other half is covered by Asbestos shed. There is no door. It is covered by wooden patra and the floor is of cement. There is electric and telephone connection and there existed two Gumties on two feet height Chabutara. The roofs of these Gumties are of tin shed and Asbestos sheet. There is a Khaprail near Gumti. 9. On these facts the Court below has held that construction and structure is not permanent. There is no brick work, either in wall or roof, except Pucca floor and such construction cannot be termed as permanent construction. The Lower Appellate Court has said that permanent constructions are those which are made by digging and using cement, bricks etc. but no such materials are used. These findings recorded by Court below with regard to materials, used in construction, have not been shown perverse but what is sought to be argued is that inference drawn from these facts about the nature of structure, is not correct. 10. Whether a construction is a permanent or not, depends upon the facts on each case. It would depend upon the nature and extent of a particular construction as also the intention and purpose for which construction has been made. 11. The question, when a structure would be a permanent one, came to be considered in Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar, AIR 1965 Cal 408 . The Court said that one shall have to look at the nature of structure, the purpose for which it was intended to be used and whole perspective as to how it affects the enjoyment and durability of the building etc., to come to a conclusion whether or not the same is a permanent structure. 12. This decision was referred to and affirmed by Apex Court in Venkatlal G. Pittie and another v. Bright Bros. Pvt. Ltd., 1987(3) SCC 558 and, it stated following tests: “(1) intention of the party who put up the structure; (2) this intention was to be gathered from the mode and degree of annexation; (3) if the structure cannot be removed without doing irreparable damage to the demised premises then that would be certainly one of the circumstances to be considered while deciding the question of intention. Likewise, dimensions of the structure and (4) its removability had to be taken into consideration. Likewise, dimensions of the structure and (4) its removability had to be taken into consideration. But these were not the sole tests. (5) The purpose of erecting the structure is another relevant factor. (6) The nature of the materials used for the structure and (7) lastly the durability of the structure.” 13. The phrase “permanent structure” does not mean everlasting. Nor does it mean a structure which would last for 100 years or 50 years. But, the word “permanent”, has to be distinguished from the term “temporary”. Sometimes even the use of bricks and mortar, would not amount to building or erecting a permanent structure. The term is a relative one. A structure that last till the end of tenancy can be treated as permanent structure. The intention of party putting up the structure is important for determining whether it is permanent or temporary. The nature and extent of structure is also an important factor. Removability of structure without causing any damage to building is also an important test which can be applied to decide the nature of structure. Similarly, durability of structure and material used for erection of same shall also help, being a relevant factor in deciding whether a structure is permanent or temporary. Lastly it is the purpose for which structure is intended which is a relevant factor and cannot be ignored. 14. In making the aforesaid observations, I find support from a decision in Purushottam Das Bangur and others v. Dayanand Gupta, 2012(10) SCC 409 . In the context of Section 108(p) of Transfer of Property Act, 1882 the Court, in para 17 and 18 of judgment, said: “17. To sum up, no hard and fast rule can be prescribed for determining what is permanent or what is not. The use of the word ‘’permanent’ in Section 108 (p) of the Transfer of Property Act, 1882 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. The intention of the party putting up the structure is important, for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108 (p) of the Act. The intention of the party putting up the structure is important, for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108 (p) of the 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. 18. Applying the above tests to the instant case the structure was not a temporary structure by any means. The kitchen and the storage space forming part of the demised premises was meant to be used till the tenancy in favour of the respondent-occupant subsisted. Removal of the roof and replacement thereof by a concrete slab was also meant to continue till the tenancy subsisted. The intention of the tenant while replacing the tin roof with concrete slab, obviously was not to make a temporary arrangement but to provide a permanent solution for the alleged failure of the landlord to repair the roof. The construction of the passage was also a permanent provision made by the tenant which too was intended to last till the subsistence of the lease. The concrete slab was a permanent feature of the demised premises and could not be easily removed without doing extensive damage to the remaining structure. Such being the position, the alteration made by the tenant fell within the mischief of Section 108 (p) of the Transfer of Property Act and, therefore, constituted a ground for his eviction in terms of Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956.” 15. Applying the above tests, in the case in hand, I am inclined to hold that structure in the present case cannot be said to be permanent. The tenancy is not for any specified period. The tenants obviously raised a structure which can be removed easily as and when it becomes necessary. The materials used in raising of structure are all easily removable without any damage. The tenancy is not for any specified period. The tenants obviously raised a structure which can be removed easily as and when it becomes necessary. The materials used in raising of structure are all easily removable without any damage. Though the floor is cemented, but it is for the purpose of convenient user and not with an intention to make the structure permanent. In the circumstances, I am inclined to answer question No. 1 against appellant and hold that structures/constructions raised on disputed land cannot be said to be a permanent structure within the meaning of Section 29-A(2) of Act, 1972. 16. Now coming to second question, both the Courts below have clearly held that construction was raised without consent or permission of landlord. It is a question of fact. The concurrent findings have been recorded by both the Courts below and during course of argument it could not be pointed out that aforesaid findings are perverse or that any relevant material has not been considered or any inadmissible evidence has been considered. In that view of the matter the second question also answered against defendants-appellants. 17. In view of above discussion, since both the questions are answered against appellants, I do not find any error in the judgments impugned in this appeal and the same warrant no interference. 18. The appeal is accordingly dismissed with costs throughout. ——————