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Dharsibhai Panachand Shah Vs. Smt. Samaratbai Lilachand Shah - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 819 of 1972
Judge
Reported in(1978)80BOMLR586
AppellantDharsibhai Panachand Shah
RespondentSmt. Samaratbai Lilachand Shah
DispositionAppeal dismissed
Excerpt:
.....i think all these would be a structure of permanent nature. and it was wrong on the part of the learned district judge to have paraphrased those principles to mean 'substantial structure' and what he felt as to the intention to enjoy the structure permanently forgetting that what was done was to have a water storage tank and a kitchen platform, which could be removed at any time when the tenant did not like to keep them, whether before or after the tenancy was terminated; pratap, the learned counsel for the tenant submitted that not only did the learned district judge in the present case adopt what he described as a test laid down in that case, but paraphrased it to mean what he called 'substantial' test, also relevant for the purpose of deciding, whether it was a permanent structure,..........writing from the landlady.2. on a careful consideration of the oral and documentary evidence, the learned judge of the small causes court, poona, by his judgment and decree dated january 12, 1971, dismissed the plaintiff's claim for possession as he found that no damage was caused to the room as required under section 13(1)(a) and the water storage tank and the kitchen platform in the suit-room in cement and bricks were made with the oral consent of the plaintiff and the water storage tank measuring 3'-1' long, 2'-6' height and 1'-9' width and the kitchen platform 4'-6' long, 1'-6' width and 2'-7' height were not permanent structures, observing as follows in his judgment:it is admitted at the trial by defendant prabhawatibai that the deceased defendant constructed a water storage tank.....
Judgment:

Vaidya, J.

1. This is a Special Civil Application under Article 227 of the Constitution of India filed by the heirs of the original defendant-tenant in a suit filed by respondent No. 1 to recover possession of the suit premises consisting of one room on the 1st floor of a building in Poona, on the ground that the tenant had damaged the suit room and had constructed a kitchen platform and water storage tank without the consent given in writing from the landlady.

2. On a careful consideration of the oral and documentary evidence, the learned Judge of the Small Causes Court, Poona, by his judgment and decree dated January 12, 1971, dismissed the plaintiff's claim for possession as he found that no damage was caused to the room as required under Section 13(1)(a) and the water storage tank and the kitchen platform in the suit-room in cement and bricks were made with the oral consent of the plaintiff and the water storage tank measuring 3'-1' long, 2'-6' height and 1'-9' width and the kitchen platform 4'-6' long, 1'-6' width and 2'-7' height were not permanent structures, observing as follows in his judgment:

It is admitted at the trial by defendant Prabhawatibai that the deceased defendant constructed a water storage tank and a kitchen platform in the suit room in cement and bricks and that was done with oral consent of the plaintiff. Plaintiff herself did not step into the witness box to contradict Prabhawatibai. I, therefore, believe Prabhawatibai and hold that these constructions were made with the oral consent of the plaintiff. Now, the Commissioner has submitted his report at Exh. 23 and he has reported that the water storage tank is 3'-1' long, 2'-6' is the height and 1'-19' is the width. He has also reported that the kitchen platform is 4'-6' long and 1'-61/2' in width and the width and the height is 2'-7'. According to the defendant they are not permanent constructions but, temporary one. As regards the measurement there is no dispute. The Commissioner has opined that these are permanent constructions. Plaintiff has not examined the Commissioner to prove his opinion. Plaintiff herself has not stepped into the witness box to contradict the defendant. Moreover, I have held above that these constructions were made with the plaintiff's oral consent. If at all they were of a permanent nature plaintiff would not have allowed the defendant to make these constructions. I, therefore, hold that the construction in question are of a temporary nature and, therefore, written consent of plaintiff is not at all necessary in the instant case.

3. The said carefully recorded finding of the learned Judge of the Small Causes Court was reversed by the learned District Judge by his judgment and decree dated January 5, 1972, although he too agreed with the finding of the trial Court that there was no damage to the suit room. The learned District Judge observed in paragraphs 11 and 12 of his judgment as follows:

Whether a particular construction is a permanent structure or is merely of a temporary nature is invariably a question which depends upon the facts of each case. In determining whether the structure is permanent or not, the tests applied are generally: (1) the nature of the structure, (2) the intention with which it is made, (3) the situs, and (4) the mode of annexation. The test of remove ability or demolition is not an invariable test because even permanent structures like buildings or walls could be demolished or removed. This is the ratio of the Case, in Atul Chandra v. Sonatan Daw : AIR1962Cal78 . Moreover, these tests appear to have been followed by the other High Courts also. Following these observations, with respects, the evidence touched in the foregoing paragraphs will have to be analysed and appreciated.

Going back to the evidence, it is clear that the Ota in the kitchen is a substantial structure. The tenement is only of one room and comparatively it has occupied a substantial portion. It is built in brick, cement and has been plastered. Similar is the case with the water storage tank. In the water reservoir a tap connection is taken and thirdly there is hand-pump. Having due regard to the dimensions of these constructions, the material used and the intention with which they were erected viz. to enjoy the structure permanently, I think all these would be a structure of permanent nature. Therefore, disagreeing with the learned trial Judge, I answer the first point in the affirmative.

4. The said finding of the learned District Judge is challenged in the above petition under Article 227 of the Constitution of India, firstly on the ground that the principles enunciated by the learned Judge are not exhaustive; common sense should not depart from the Courts when considering those principles; and it was wrong on the part of the learned District Judge to have paraphrased those principles to mean 'substantial structure' and what he felt as to the intention to enjoy the structure permanently forgetting that what was done was to have a water storage tank and a kitchen platform, which could be removed at any time when the tenant did not like to keep them, whether before or after the tenancy was terminated; and which the tenant offered to remove in the very written-statement, which he had filed in the present case and even in reply to the notice of termination given by the landlady.

5. In support of this contention, Mr. Pratap, the learned Counsel for the tenant relied on a decision of the Full Bench of the Calcutta High Court in Surya Properties (Pr.) Ltd. V. Bimatendu Nath : AIR1964Cal1 , S.B, where a Special Bench consisting of H. K. Bose C. J., R. S. Bachawat, D. N. Sinha, P. N. Mookerjee and G. K. Mitter JJ. laid down the question whether a particular construction is permanent structure or not for the purpose of Clause (p) of Section 108 of the Transfer of Property Act depends on the facts of each case and no hard and fast rule can be laid down with regard to this matter. The decision was given in the context of the West Bengal Premises Tenancy Act. In that case it was held that in the absence of relevant materials, no answer jean be given to the question whether a room with two inches thick brick built waifs and a corrugated iron roof is a permanent structure. Bachawat J., as he then was, in his judgment, observed (p. 5):. 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 3 inches thick brick-built walls and corrugated iron sheet roof is a permanent structure for the purposes aforesaid.

6. It is unnecessary to quote from the other judgments in the case as this is enough to show that the learned District Judge in the present case adopted what appears to be a hard and fast rule as a result of his mis-reading of the decision of the Calcutta High Court in Atul Chandra v. Sonatan Daw, where all that was laid down was that it is a mixed question of fact and law in each case whether the extent or degree of construction of erection is such as to make it partake of the character of permanent structure or not.

7. Mr. Pratap, the learned Counsel for the tenant submitted that not only did the learned District Judge in the present case adopt what he described as a test laid down in that case, but paraphrased it to mean what he called 'substantial' test, also relevant for the purpose of deciding, whether it was a permanent structure, though it was nobody's case in the trial Court that the water storage and the kitchen platform were 'substantial' structures intended to be enjoyed permanently as interpreted by the learned District Judge.

8. Mr. Pratap further relied on a decision in Suka Ishram v. Ranchhoddas (1971) 74 Bom. L.R. 220 where Bhole J. held that a wall built of brick and mortar was not a permanent structure within the meaning of Section 13(1)(b) observing as follows (p. 223):. The learned Assistant Judge is of the view that because the tenant has erected a house-like structure consisting of two compartments with the southern wall and partition wall in brick and mortar with a foundation of about 1 X 2, therefore, it is an erection of a permanent structure. According to the learned Assistant Judge, if the contention of the tenant in erecting the wall was to protect himself from the thieves, that will not help him and this fact according to him is quite irrelevant for deciding the issue. In that view of the matter he found that the tenant had contravened the provisions of Section 13(1)(b). The trial Court, however, differed from him. According to the trial Judge, who had the advantage of inspecting the site, this was a temporary structure; the shed was no better than a temporary shed; the wall was constructed to protect the shed from the road side; according to the trial Court the wall was constructed to save himself from thefts being committed from that side. He says that in these circumstances the wall cannot be said to be a permanent structure.

Now, the expression used in Section 13(1)(b) is 'permanent structure'. So far as the wall is concerned, admittedly it is built for the purpose of protecting his goods from theft from the road side; it is only a part of the whole temporary shed. He has constructed the wall sloping towards the east. He has also constructed a partition wall dividing the tin shed into two. On one side the goods are kept and the other side there is a shop. It is brought in the cross-examination that the foundation of this was about 1 X 2. The point, therefore, that arises here for consideration is what is the legal effect of the facts here? It is contended on behalf of the respondent that this Court cannot correct a finding of fact. After all according to Mr. Limaye, the learned advocate for the respondent, the wall cannot but be a permanent structure. In my view this is not a finding of fact but is an inference as to the legal effect of certain proved facts. The Court has to infer on the basis of proved facts, whether these facts lead to the legal conclusion that the structure is or is not a permanent structure. In my view if the Court draws an improper inference as to the legal effect of proved facts, this Court could correct it because there is a question of law. In Gujrat G. & M. Co. v. Motilal H. S. & M. Co. , their Lordships have observed that the High Court in a second appeal is bound by the District Judge's finding of fact. But where the matter in question is as to the proper effect of legally proved facts that is a question of law. Now, it is true that this Court has to interfere only when there is a manifest and patent error of law on the face of the proceeding, when there is clear ignorance or disregard of provisions of law. In my view the legal effect of an inference as regards a provision of law can also be looked into by this Court in its supervisory jurisdiction.... After all while determining the permanent character of a structure it is always necessary to see the nature of the structure and mode and degree of annexation. It may also be necessary to see the intention of the party who puts up the structure. The nature of the structure on the whole is a temporary structure except for this wall. If the landlord finds reasons to eject the petitioner, in my view it will not be difficult for the petitioner to vacate the open plot of land without causing any injury to it. Construction of the wall, in my view, therefore will not cause any injury to the open plot of land which was leased to him. This is not a case where substantial improvement was made by the petitioner to the premises, which were leased out to him and which, if removed, will cause injury to the open plot of land.

What is the nature of these walls and the degree of annexation? What was the intention of the tenant when he constructed these walls? The nature and mode therefore of annexation or its degree can be gathered by the intention with which the tenant had built the wall though in brick and mortar. It is done to prevent the thieves from breaking open the shed which was exposed to the road. The intention therefore was not to have a permanent structure but to save himself and his goods in that temporary shed. The whole shed is still there. It is all of a temporary character. The walls are but small annexations. The open plot of land will never lose its identity in the process of the removal of the wall. The wall is but an insignificant part of the temporary shed. The original nature of the open plot of land is not materially altered or interferred with. In this view of the matter, therefore, it appears to me that the legal inference drawn by the learned Assistant Judge from the proved facts is not correct.

9. Mr. Pratap relying on these observations contended that in the present case also, the erection of a water tank only of the small size of 3'-1' long, 2'-6' height and 1'-9' width and the kitchen platform of the size of 4'-6' long, 1'-6' width and 2'-7' height with bricks and cement cannot in any way alter the permanent nature of the room. Mr. Pratap submitted that the tenant provided himself with temporary amenities in brick and cement in as modern a style as he could in the circumstances without permanently effecting in any manner the room which was the subject-matter of the tenancy. Mr. Pratap, therefore, rightly contended that the learned District Judge was wrong in drawing a legal inference from the undisputed facts of the case that there was a substantial structure built with the intention to enjoy permanently and this may lead to permanent structure.

10. Mr. Pratap referred to the readiness and willingness of the tenant to remove the water tank and the kitchen platform at any 'time and the correct finding of the learned District Judge that no damage whatsoever was caused to the room as a result of this structure and contended that the learned Judge himself having formulated a test as to what he called as a 'test', failed to apply the nature of the structure, the situs, the mode of annexation etc; which were some of the relevant aspects to be taken into consideration and based his conclusion as what he called a 'substantial structure', the meaning of which cannot be very clear because it is only a small water tank of a size of 3'-1' long, 2'-6' height and 1'-9' width in a room, whose cubic center age were definitely more than ten times the cubic center age of the structure, which the learned District Judge chose to describe as a substantial structure.

11. Mr. Pratap submitted that these structures were not even annexed to the room because they could be removed at any time though they were fixed to provide amenity while cooking in the room. He further submitted that the learned trial Judge, who had the advantage of seeing and hearing the witnesses believed the tenant because the plaintiff herself did not care to step into the witness box; and it was the case of the defendant in the reply to the notice, in the written-statement as well as in the affidavit that whatever structures were made, were made with the oral consent of the landlady. Mr. Pratap submitted that the learned District Judge exceeded the limits of the powers of the appellate Court in reversing the finding of the trial Court based on the credibility of the tenant.

12. Mr. Dalvi, the learned Counsel appearing for the landlord attempted to repel these arguments and to support the findings of the learned District Judge, relying on a decision of Lord Halsbury (House of Lords) in Leigh v. Taylor [1902] A.C. 157, which instead of supporting the reasoning of the learned District Judge, only shows how wrong his reasoning is. It was a case, where valuable tapestries were affixed by a tenant for life to the walls of a house for the purpose of ornament and the better enjoyment of them as chattels. They could be removed without doing any structural injury. On the death of the tenant for life, it was held that the tapestries put up with that purpose and attached in that manner, did not pass with the freehold to the remainderman, but formed part of the personal estate of the tenant for life, and were removable by her executor.

13. Lord Halsbury observed (p. 158):

One principle, I think, has been established from the earliest period of the law down to the present time, namely, that if something has been made part of the house it must necessarily go to the heir, because the house goes to the heir and it is part of the house. That seems logical enough. Another principle appears to be equally clear, namely, that where it is something which, although it may be attached in some form or another (I will say a word in a moment about the degree of attachment) to the walls of the house, yet, having regard to the nature of the thing itself, and the purpose of its being placed there, is not intended to form part of the realty, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment, then it is removable and goes to the executor.

14. If we apply these principles to the facts of the present case, it must be held that the water storage tank and kitchen platform are remove able at any time. Having regard to the nature and the purpose of their being placed there, they could never have been intended to form part of the room. They were there only by way of mode of enjoyment of the room while the tenant was in the room; and, therefore, these structures could never be considered as permanent structures in law.

15. Mr. Dalvi also relied on the decision of the Calcutta High Court referred to by the learned District Judge, which as I have stated above, does not lay down any rigid formula for determining whether the structure is a permanent structure, which lays down that it depends on the facts of each case. Mr. Dalvi has also referred to an unreported judgment of Chagla C. J. and Tendolkar J. in Madhavdas Dharamdas Vithaldas v. B. K. Patel (1951) O.C.J. Appeal No. 79 of 1951. It was a judgment delivered on a writ petition on the Original Side praying for a writ against the Municipal Commissioner, who called upon the lessees to demolish certain cabins within forty-eight hours and threatened to demolish the structures. The question there was whether the cabins were structures which were additions to the building within the meaning of Section 342 (a) of the Bombay Municipal Corporation Act and having regard to the nature of the cabins there, it was held that they were additions to the building. No universal tests were laid down in that case with regard to the nature of the structures and the case is further distinguishable because that was not a case which dealt with the meaning of the word 'permanent structure' in Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

16. Mr. Dalvi submitted that having regard to the use of brick and cement in the water tank and the kitchen platform, they must be held to be permanent structures. He submitted that their remove ability was not an invariable test for deciding whether the structures were or were not permanent and therefore, the offer of the tenant to remove them was irrelevant and similarly their remove ability was also irrelevant. According to Mr. Dalvi, the fact that they were affixed to the room by cement make them permanent structures, within the meaning of Section 13(1)(b) of the Act. He relied on the opinion of the Commissioner, who described them as permanent structures and supported the finding of the learned District Judge that the intention of the tenant in making these structures must be to enjoy them permanently. These submissions are without any merit because the mere use of cement and brick cannot make the structure a permanent structure. The question in the facts and circumstances of the case must be determined having regard to the impact of the structures on the room which is the subject-matter of the tenancy.

17. The learned District Judge having held that no permanent damage was caused to the room, was wrong in thinking that these structures were permanently annexed to the room or were intended to be permanently used by the tenant when the facts and circumstances showed that they could be removed by the tenant. The existence of a tap connection to the water tank did not make it a permanent structure, just as, if a bucket was placed below the municipal water tank, the bucket would not be a permanent structure in the room. Instead of a bucket or a drum, we have in this case a water tank of the small dimension, which is wrongly described by the learned District Judge as 'substantial' structure. The room was not, in any manner permanently affected by the construction of these structures. The intention could not be described as an intention to enjoy the structures permanently because the intention would be to enjoy the amenities as long as the tenant was there in the room and as long as the structures were able to afford the amenities

18. Considering even the test referred to by the learned District Judge, it cannot be said that the structures were permanent. As a matter of fact, the learned District Judge ought to have considered all the surrounding circumstances including the evidence of the tenant that the structures were in fact, made with the consent of the landlady, which would never have been given if the structures were permanent structures or structures which could not be removed at any time wanted by the landlady.

19. It is urged by Mr. Dalvi that having regard to the principles laid down by the Supreme Court in Babhutmal v. Laxmibai : AIR1975SC1297 this Court will not interfere with the findings of fact recorded by the learned District Judge. In the present case, the learned District Judge has not merely recorded a finding of fact, but has applied what he calls tests for determining the structure as a permanent structure. He applied them in a very strict way instead of applying them in a way consistent with common experience and common sense with regard to living in a city like Poona, where a tenant would like to have a kitchen platform and a water tank as better amenities when not provided by the landlord and such structures can never be regarded as permanent structures as they can be removed by the tenant when not wanted without making any damage, without making any changes in the room or causing any damage to the room.

20. The question as to whether these structures were permanent structures within the meaning of Section 13(1)(b), were not simple questions of fact, but they were also questions of law, inasmuch as principles of law for determining the difference between a permanent structure and a temporary structure, which had to be correctly applied. Even if they are facts, they must be considered as jurisdictional facts, because under Section 13(1)(b), it is only if it is established that it is a permanent structure, that the landlord would be entitled to recover possession of the premises under Section 13(1)(b). Besides, as already stated above, the Calcutta High Court has pointed out that it is a mixed question of fact and law, as the Court has to draw legal inference from true facts as to whether these structures were permanent or not.

21. Whatever view we may take of the nature of the question involved, I find that the learned District Judge exceeded the powers of the appellate Court in reversing the findings of fact of the trial Court based on the trial Court's belief of the tenant. An appellate Court can itself agree with the trial Court about credibility of witnesses. But it is well-settled that unless there are exceptional reasons, ordinarily the appellate Court should be slow to interfere with the findings based on credibility of witnesses (See pages 52 and 53, Sarkar's Law of Evidence, 1971, 12th edn.). The learned District Judge had no jurisdiction to pass a decree for possession in favour of the landlady, unless the Court was satisfied under Section 13(1)(b) that the tenant had without the landlord's consent given in writing erected on the premises any permanent structure, by illegally holding that the structures were permanent structure.

22. The learned District Judge exercised the jurisdiction which was not vested in him by law under Section 13(1)(b). The satisfaction must be not a subjective satisfaction, but an objective satisfaction of the Court. A structure cannot be permanent or temporary according to the whims of a particular Judge, but the nature must be considered from the point of view of common sense and common experience. In the present case, as already stated above, the water tank and the kitchen platform were just small amenities, which the tenant tried to have for himself and these structures can never be regarded as permanent structures having regard to the habits, tests and standards of living of persons in cities like Poona, particularly when as the trial Court had held that the landlady herself has agreed to the constructions being made.

23. In the result, the judgment and decree passed by the learned District Judge decreeing plaintiff's suit for possession under Section 13(1)(b) are quashed and set aside and the decree passed by the learned Judge, Small Causes Court, Poona, on January 12, 1971, dismissing the plaintiff's claim for possession is restored.

Rule made absolute with costs throughout.


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