Calcutta High Court
Dukari Saha vs Kumarish Chandra Garia on 19 April, 1989
Equivalent citations: AIR1990CAL143, AIR 1990 CALCUTTA 143
JUDGMENT 1. This appeal is directed against the judgment and decree passed by the learned Additional District Judge, 3rd Court, Burdwan in Title Appeal No. 264 of 1978 allowing the appeal, setting aside the judgment and decree passed by the learned Munsif and sending the case on remand for a fresh decision allowing the parties to adduce further evidence for the purpose of ascertaining whether the structure constructed by the tenant/defendant on the roof was permanent. 2. Plaintiff/appellant Dukari Saha instituted Title Suit No. 225 of 1973 in the 2nd Court of Munsif, Katawa against the defendant/respondent for ejectment and recovery of Khas possession of the suit premises. The plaintiff's case was that he was the owner of the suit premises and the defendant was a monthly tenant under him in respect of the same at a rental of Rs. 26/- payable according to Bengali calendar month. The defendant defaulted in payment of rent from Shraban 1378 B.S. He also raised a permanent struc ture with wooden and asbestos frame on the verandah of the suit premises without consent of the plaintiff. The defendant also raised a permanent structure at the south-east corner of the roof of the suit premises without the consent of the plaintiff and in spite of strong objection from him. The defendant also caused material deterioration in the roof of the suit premises. The plaintiff also required the suit premises for his own use and occu pation as he had no other reasonably suitable accommodation. A combined notice under S. 106, T.P. Act and under S. 13(6) of the West Bengal Premises Tenancy Act was served upon the defendant asking him to quit and vacate the suit premises and deliver up khas possession to the plaintiff with the expiry of Poush, 1379 B.S. the defendant received the notice on 22-11-72 but did not comply with it. 3. The defendant contested the suit by filing a written statement in which the material allegations were denied. It was contended inter alia that the notice was not legal, valid and sufficient and that the structure on the. verandah of the suit premises was a temporary improvised structure constructed with the knowledge of the plaintiff and the defendant started business in 'bidi'. The structure on the roof of the suit premises was also a temporary and improvised structure and the same was in existence from before and the defendant merely replaced the tins on the roof by tiles about 6/7 yrs before. It was further pleaded that the plaintiff had many houses at Katawa and he did not reasonably require the suit premises for his personal use and occupation. The alleged default was also denied. According to the defendant, on refusal by the plaintiff to accept rent the defendant deposited the rent with the Rent Controller regularly and after institution of the suit he has deposited rent in the Court. 4. The learned Munsif has held that the notice is legal, valid and sufficient. The learned Munsif has further found that the defendant duly deposited arrears of rent and also the current rent in the Court within time and was entitled to the benefits of S. 17(4) of the West Bengal Premises Tenancy Act. He has also overruled the plaintiffs case of material deterioration of the roof. He has found that the plaintiff does not require the suit premises for his own personal use and occupation. With regard to the structure made by the defendant in the verandah, the learned Munsif, has held that the said struc ture is a temporary one. He has however, held that the structure on the roof of the suit premises constructed by the defendant with out consent of the plaintiff is a permanent structure within the meaning of clause (p) of S. 108 of Transfer of Property Act. The learned Munsif accordingly passed a decree for recovery of khas possession of the suit premises in favour of the plaintiff. 5. The learned Additional District Judge who heard the appeal preferred by the defendant was of the opinion that there was no satisfactory evidence regarding the nature of the construction on the roof and the intention or purpose for which the construction was made. In the opinion of the learned Additional District Judge this lacuna in the evidence affected a proper decision on this issue arid in the interest of justice the case ought to be sent back on remand for afresh decision on this point after giving opportunity to the parties to adduce further evidence on that point. In that view of the matter the learned Additional District Judge set aside the judgment and decree passed by the learned Munsif and sent back the case on remand for a fresh decision in the light of the observations and in accordance with law. The finding of the learned Munsif with regard to other grounds of eviction was, however, affirmed and the cross-objection filed by the plaintiff in this regard was overruled. 6. Being aggrieved by the said order of remand, the plaintiff has preferred this second appeal. 7. Mr. Ghosh, learned Advocate for the appellant has strongly contended that there is sufficient evidence on record with regard to the nature and extent of the structure and the purpose for which it was constructed and other attending facts and circumstances from which the Lower Appellate Court could have arrived at a finding whether the disputed structure is permanent or not. There is no justification for sending the case back on remand. It has further been contended that the materials already on record fully justify the finding of the trial Court and without considerations of those materials, the lower appellate Court was not justified in setting aside the judgment and decree passed by the trial Court. 8. The question whether a particular construction is a permanent structure or not depends upon the facts and circumstances of each case. The nature and situs of the structure, the mode of annexation, the intention of the tenant and the surrounding circumstances should be taken into account to ascertain whether a particular structure is a permanent or not. The case of Suraya Properties Private Limited v. Bimalendu Nath Sarkar was referred to the Special Bench presided over by H. K. Bose, C.J. for determination inter alia the following questions : what is a permanent structure for the purpose of clause (p) of S. 108 of the Transfer of Property Act? What, if any, are the tests for holding whether a particular structure falls within the mischief of the above clause? Whether a room with "two inches thick brick-built walls and the corrugated iron sheet roof" is a permanent structure within the meaning of the aforesaid statutory provision? The decision . of the Special Bench has been . The learned Chief Justice gave the following answer to the question: "The question whether a particular construction is a permanent structure or not, depends on the facts of each case and no hard and fast rule can be laid down with regard to this matter. In the absence of relevant materials, no answer can be given to the question whether a room with two inches thick brick-built walls and a corrugated iron roof is a permanent structure within the meaning of clause (p) of S. 108 of the Transfer of Property Act". Bachawat, J. answered the question in the following manner : "With regard to the question..... I think that no hard and fast test can be laid down for determining whether a particular structure is a permanent structure for purpose of clause (p) of S. 108 of the Transfer of Property Act. The nature and situs of the structure, the mode of annexation, the intention of the tenant and the surrounding circumstances must all be taken into account for the purpose of determining whether or not a particular structure including a room with three inches thick brick-built walls and corrugated iron sheet roof is a permanent structure for the purpose aforesaid". The answer given by Bachawat. J. substantially aggrees with that of H. K. Bose, C.J. The other three lerned Judges, namely Sinha, P. N. Mukherjee, G. K. Mitter, JJ. also substantially agreed with the view expressed by H. K. Bose, C.J.
9. The matter again came up before the Division Bench for final disposal. In the light of the answers given by the Special Bench, the decision of the Division Bench presided over by P. Chatterjee, J. has been . In that case the structure erected by the tenant without the consent of the landlord, was a room, 6' x 6'/9' raised over the premises leased out to him. The room was intended to be used as a kitchen and was built up with 3" walls of brick and mortar with a roof of corrugated sheets. The evidence showed that the room was not constructed for temporary use and was of substantial nature. Having been in existence for 8 years, it was likely to endure for several years. It was so annexed to the main building that it could not be demolished without causing substantial damage to the original building. On these facts it was held that the impugned structure was a 'permanent' structure within the meaning of clause (p) of S. 108 of T.P. Act.
10. The facts of the present case are almost the same. The disputed structure which was constructed by the defendant without the consent of the plaintiff is a room on the south-west corner of the roof of the building leased out to the defendant. The Commissioner's report shows that the eastern and southern walls of the structure are old forming part of the original building. This is also the case of the plaintiff and the defendant also does not dispute it. The rest two walls are of recent origin. These two walls viz. the northern and western walls have been constructed with bricks and mortar. The width of the bricks is not given but it cannot be less than three inches. The roof is covered with tiles with bamboos underneath. All the walls of the room are brick-built. There is a tin door in the north-eastern corner. The length, breadth and average height of the room are 8', 6 1/2' and 7' respectively. The structure in question is annexed to the roof of the demised building as part of the building. We have, therefore, a clear picture of the nature of the structure and no additional evidence is necessary in respect of the same. There is also evidence on record with regard to the intention of the tenant and the purpose for which the structure has been constructed. The evidence of the plantiff is that one son of the defendant sleeps in this room at night. In other words according to the plaintiff the structure is used as a bed room. The evidence of the defendant is, however, that this structure is used as store room and not as a bed room. There is no evidence of the defendant that the structure was constructed for a temporary use only and it was not removed and is still in existence 16 years after construction. Even if the evidence of defendant be accepted as true it will be evident that the structure was intended to be used as a store room so long as the tenancy continued. The structure is substantial in nature, having been in existence for 16 years; it is likely to endure for several years. It is so annexed to the main building by brick and mortar that it could not be demolished without causing damage to the original building. The impugned structure was clearly a 'permanent' within structure within the meaning of clause (p) of Section 108 of T. P. Act. The evidence on record is sufficient for such a conclusion and the Lower Appellate Court was in error in sending back the case on remand for a fresh decision upon additional evidence which was not at all called for. The finding of the Trial Court upon a proper consideration of the materials on record is fully justified and the Lower Appellate Court committed an error in setting aside the finding of the Lower Court without considering the materials on record.
11. In the result, the appeal is allowed with costs and the judgment and decree passed by the Lower Appellate Court are set aside and those of the Trial Court are confirmed.
12. Appeal allowed.