Patna High Court
Sheodayal Bharatia vs Daluram Agarwalla on 12 April, 1965
Equivalent citations: AIR1965PAT413, AIR 1965 PATNA 413
JUDGMENT Kamla Sahai, J.
1. This appeal by the defendant arises out of a suit for declaration that the defendant has no right to take electric connection in the premises described in Schedule B of the plaint, which had been let out to him, or to fix meter and wire in the walls of the premises described in Schedule A which are in khas possession of the plaintiff, (or directing the defendant to remove the electric connections and for damages amounting to Rs. 229/- at the rate of four annas per day from the 24th December, 1958 to the 28th June, 1961
2. The admitted facts are that the plaintiff owns a three storeyed house, bearing holding No. 71, in Jugselai Chauk Bazar, and that the defendant has been inducted as a monthly tenant in respect of a portion of the premises on the first floor described in Schedule B of the plaint. It is also admitted by the parties that there was no electric connection in the portion let out to the defendant at the time when the tenancy was created, and that the defendant has, after creation of the tenancy, taken electric connection in the portion under his occupation.
3. The learned Munsif, who tried the suit, has stated, while dealing with issue No. 4, that the plaintiff's lawyer pressed for a decree for damages but not for the declaration sought by the plaintiff. On a further consideration of the evidence, he refused to pass a decree in favour of the plaintiff for the declarations sought by him but passed a decree for Rs. 25/- as damages for fixing pegs in the walls of the plaintiff and making a hole in the roof. An appeal against Ihe decree passed by the Munsif was placed for disposal before the Subordinate Judge of Jamshedpur. He allowed the appeal and decreed the suit in full, giving the declarations which the plaintiff asked for as well as giving a deeree for the entire amount of Rs. 229/- as damages.
4. Appearing on behalf of the appellant. Mr. R. S. Chatterjee has urged that the defendant-tenant could certainly take electric connection in the premises let out to him because the act of taking such electric connection could not amount to waste but undoubtedly constituted an improvement of the premises. On the other hand, Mr B. C. De, who has appeared on behalf of the respondent, has argued that the only right of a tenant in respect of premises leased to him is to enjoy those premises in the condition in which he took them: he is not permitted under the law to make additions or alterations in the premises in his tenancy without the consent of the land lord.
5. In my opinion, the problem, which arises for consideration in this case, should be bifurcated in two parts. The first question to be considered is whether the defendant was entitled to take electric connection in the premises leased out to him, and the second question is whether he could take the electric wire through premises which were not in his occupation as a tenant.
6. So far as the first question is concerned, there can possibly be no doubt at all.
Mr. De has himself referred to section 105 of the Transfer of Property Act which lays down, among other things, that "a lease of immoveable property is a transfer of a right to enjoy such property.. .. .. " The lessee is, in view of the definition of 'lease' in this section itself, entitled to enjoy the property. This means that he is entitled to make such use of the premises let out to him as may be reasonable. Mr; De has also referred to portions of Clauses (m) and (o) of section 108 of the Transfer of Property Act. I quote only those portions:
"(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable were and tear or irresistible force, .... .. "
(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased .....""
On the basis of the passages quoted above, Mr. De has argued that the tenant must return to the landlord, on the expiry of the tenancy, the leased property in as good a condition as he took it, and that he is not entitled to make any additions or alterations in the premises even if that would amount to improvement. In my judgment, there is no substance in this argument. The very fact that it has been mentioned in Clause (m) that the lessee is bound to return the property to the lessor in as good a condition as it was in at the time when it was put in his possession shows that he cannot return the property in a worse condition: but there is no bar to his returning the property in as good a condition as it was in or in a better condition. The portion of Clause (o) which I have quoted shows without any doubt that the tenant can use the property as his own in the sense that he cannot allow it to be damaged or in any way harmed. If he would have taken electric connection in order to improve his convenience in case the premises were his own property, there is nothing in this clause to show that he is not entitled to take electric connection simply because the premises were not his own but were let out to him
7. In this connection, I may refer to a Full Bench decision of this Court in Digamber Narain Choudhary v. Commr. of Tirhut Division 1958 B.l.j.r. 659 : (AIR 1959 Pat. 1 (FB) ) That was an application under Article 226 of the Constitution of India for calling up and quashing the orders of the Commissioner of Tirhut Division whereby he had set aside the order of the Additional Collector and had restored that of the controller who had ordered the eviction of the tenant under the Bihar Buildings (Lease. Rent and Eviction) Control Act (HI of 1947) The Commissioner had based his order on two grounds. One ground was that the lease was for a fixed period, and that the period had expired. The other was that the tenant had committed a breach of the tenancy by making additions and alterations, which improved the leased premises, without the content of the landlord. Their Lordships hold that the order for eviction was correct, in view of the fact that the tenancy was for a fixed period, and that the period had already expired. It was further argued that the tenant had also committed a breach of the tenancy by making additions and alterations in the premises let out to him, which had improved those premises. Their Lordships held that there had been no breach for the reason that the alleged alterations and additions had enhanced rather than impaired the value of the house.
8. The principle thus laid down is that an improvement made by the tenant to premises let out to him does not amount to a breach of the conditions of the tenancy. This supports the decision which I have already arrived at on the basis of Section 105 and Clauses (m) and (o) of Section 108. It is further supported by the commentary in paragraph 2655 of Gour's Law of Transfer in British India, Fourth Edition, volume III, at page 1773, in which he has commented upon some words in Clause (o) of Section 108. He has referred therein to two English decisions, viz., Jones v. Chappel (1876) 20 Eq. 539 at p. 541 and Meus v. Codley, (1892) 2 Ch. 253, In support of his opinion that an improvement made by a tenant to leased premi ses does not amount to waste.
9. In the circumstances mentioned above, I hold that the defendant cannot be held to have had no right to take electric connection in his premises so as to improve those premises and also to increase his own convenience and comfort,
10. So far as the second question is concerned, there appears to be no clear finding in the judgment of the appellate Court as to what the defendant did and where. It has been argued on behalf of the defendant-appellant that pegs were fixed in a wall of the passage which was for common use of the plaintiff as well as the defendant. It has also been argued that a hole was cut in the roof in order to take the electric connection upstairs through the premises of the plaintiff. It was obviously necessary for the defendant to get the wire fixed in that wall and to take the connection through the roof of the ground floor and the floor of the premises under his occupation because it was impossible for him to get the electric connection otherwise in the premises let out to him. The learned Munsif has assessed damage caused to the plaintiff by the operation whereby pegs were fixed in the wall and a hole was cut in the roof at Rs. 25/-. He has referred to the fact that no evidence has been given on behalf of either party which could help him in measuring the value of the damage caused to the plaintiff. Mr, Chatterjee has submitted that he is prepared to pay the amount fixed by the learned Munsif as damages. T hold, therefore, that the learned Munsif has rightly granted a decree for Rs. 25/- as damages. Nothing has been brought to my notice by Mr. De to show that the actual damage caused to the plaintiff was of a greater value.
For the reasons given above, I allow the appeal, and set aside the judgment and decree passed by the learned Subordinate Judge. The decree for damages amounting to Rs. 25/- granted in, favour of the plaintiff by the learned Munsif will stand. The plaintiff-respondent will pay the costs of the defendant-appellant for this Court and the lower appellate Court.