1. This second appeal arises out of a suit for ejectment brought by the plaintiff-appellant against the defendant-respondent in the court of the First Munsif at Asansol in the district of Burdwan.
2. The plaintiff-appellant is the owner and the defendant-respondent was a monthly tenant under the plaintiff according to the English calendar at a rent of Rs. 36/-per month. The grounds on which ejectment was sought were (1) that thedefendant-respondent failed to pay or to deposit in accordance with law rents for more than six months in course of 18 months and such arrears of rents fell due from April 1953 and (2) that the defendant contravened the provisions of Section 108 Clauses (m), (n) and (p) (clause (n) was subsequently amended as Clause (o)) of the Transfer of Property Act inasmuch as the defendant without the consent of the plaintiff had erected permanent structures on the property, namely, he had converted a verandah into a room by raising permanent brick wall on the ground floor; he had erected a permanent brick wall on the open terrace of the first floor and he also damaged the building by causing an over-flow of the water raised by pump installed by him without the consent of the plaintiff and as such the defendant was not entitled to protection under the West Bengal Premises Rent Control Act. It appears that the plaintiff through his pleader served a notice to quit upon the defendant determining the tenancy but as the defendant did not vacate the premises in spite of the notice, the suit for ejectment was filed on or about the 8th of January 1954. In the written statement the defendant denied that he was a defaulter or that he had contravened the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. It was further alleged in this written statement that the defendant with the consent and knowledge of the plaintiff raised the height of the parapet of the roof and put a brick cover on the verandah of the ground floor in order to secure better protection against thieves and mischievous persons; and that the constructions were of a temporary character which might be removed at any time, The allegation of damage to the building by making water to over-flow over the roof was also denied. The validity of the notice of ejectment was also challenged. The issues that were framed before the Munsif were:
1. Is the defendant a defaulter Are the deposits made before Rent Controller valid deposits?
2. Have the defendants contravened the provisions of Section 108 Clauses (m), (o), (p) of the Transfer of Property Act?
3. Is the notice to quit valid and sufficient?
4. Is the defendant liable to be ejected?
The learned Munsif found that the defendant was not a defaulter, that the notice to quit was valid and sufficient, but that the defendant had contravened the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of property Act and on that footing he passed a decree for ejectment against the defendant with costs and gave him one month's time to vacate. The defendant preferred an appeal to the Court of the District Judge at Asansol. The Additional District Judge, Asansol reversed the finding of the trial Court on the issue as to contravention of the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act but upheld the finding that the defendant was not a defaulter and he dismissed the suit with costs. The plaintiff has thereupon preferred, this second appeal.
3. The only question debated before us is whether the defendant-respondent has contravened the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. It is argued that the structures erected by the defendant are not permanent structures within the meaning of Clause (p) of Section 108 of the Transfer of Property Act. Now it is not in dispute that the defendant has made a wall composed partly of bricks and partly of a wooden frame with iron bars inserted into it on one side of a verandah on the ground floor which has walls on the other three sides and thereby he has converted that portion into a room. It is also not in dispute that on the first floor of the demised premises there is an open terrace or roof and the defendant has built a wall with bricks and cement on the roof. There is some controversy with regard to the width of the walls raised. According to the plaintiff they are ten inches in width but, according to the defendant-respondent, they are only three inches in Width. The lower appellate Court has dealt with this aspect of the matter in the following manner :
'The question is whether these are of the nature of permanent structures as contemplated in Clause (p) of Section 108 of the T. P. Act. A structure indicates a unit of construction, constituting a complete whole in itself and serving its own purpose without reference to anything else. If attached to an existing structure, it should in my mind be intended to change the nature and character of the original construction and any construction which was not so intended but is capable of being removed, thereby restoring the building to its original condition would not in my opinion amount to a permanent structure as contemplated by this clause. The argument of the learned lawyer appearing for the respondent was that as the walls were made of bricks and cement these were certainly permanent structures and in this connection I was referred to a case reported in Brohmananda Das v. Nogendra Chandra : AIR1954Cal224 . In my opinion 'pucca' and 'permanent' are not synonymous terms in this respect and if a brick wall is capable of being removed without doing violence to the original construction the erection thereof would not constitute a contravention of Clause (o) above. The defence evidence in this case is that the walls made are not interlocked with the side walls. The plaintiff when asked about it could not assert to the contrary. The case referred to above stands quite distinguishable on facts. There a new construction was attached to the very foundation of the old budding and certain other constructions were made with the intention of changing the nature and character of the original building to suit the purpose of the tenant. In the present case the nature and character of the building remain the same,'
4. In our view these reasonings of the lower appellate Court are erroneous. There is no doubt that the defendant had made substantial structural alterations and additions to the tenanted premises with bricks and cement. The erections are not merely of a temporary character but are solid pucca structures of an enduring nature. We have no hesitation in holding that the totality of the work done points to the conclusion that the erections made by the defendant are in the nature of permanent structures within the meaning of Clause (p) of Section 108 of the Transfer of Property Act. The fact that the structures can be demolished and removed at any time does not make them any the less permanent. Supposing instead of converting a verandah into a room the defendant had built a garage withbrick and mortar in a portion of the building demised could it be said that the structure was not a permanent one? The answer, in my view, must be m the negative. The word 'permanent' in Clause (p) of Section 108 appears to have been used in contradistinction to what is temporary. If a structure is intended to be there only temporarily, the statute does not apply; but, if the intention is to enjoy the structure permanently and the structure is of a substantial nature, it must be regarded as a permanent structure. In other words, if the work of conversion or construction is substantial or brings about a substantial change in the character of the premises and it is not merely a small physical change of a temporary or unsubstantial nature, such work of construction falls within the mischief of the clause. It is a mixed question of fact and law in each case whether the extent or degree of construction or erection is such as to make it partake of the character of permanent structure or not. Any other view will play, havoc with the statute and defeat its object. The attention of the Court has been drawn to two decisions of single Judges of this Court. The first one is reported in : AIR1954Cal224 . The nature of the construction with which the Court was concerned in that case is set out in paragraph 8 of the judgment and dealing with the nature of the construction P.N. Mookerjee, J. came to the conclusion that the constructions in that case were permanent structures within the meaning of Clause (p) and the contravention of this clause was sufficient to disentitle the tenant to the protection of the West Bengal Premises Rent Control (Temporary provisions) Act, 1948. The other case is reported in Kshirode Moyse Sen v. Ashutosh Roy, 63 Cal WN 565. The particulars of the construction in that case are set out in great detail at page 567 of the report. Guha Roy, J. held that the structures were of a nature contemplated by Clause (p) of Section 108 of the Transfer of Property Act and a thika tenant had no right to build such structures on the demised land. Our attention has also been drawn to a decision of the Allahabad High Court reported in Kamla Kant Misra v. Kishun Lal, 1956 All LJ 871, which is also a decision of a single Judge of that Court. This case also related to a suit for ejectment of the tenant and for demolition of certain constructions made by the tenant, Ultimately the claim for ejectment was not pressed and the parties confined their argument to the claim for demolition of the new constructions. The facts in that case shortly were that the appellants owned a house, let out the same to the respondent for a period of ten years; the lessee took the house for establishing a flour mill and a rice husking machine and it' was recited in the lease that the lessee had made certain constructions in the house at a cost of Rs. 1,275/- and this amount would be set off towards the rent and at the time of vacating the house on the expiry of the period of the lease, the lessee would not remove the constructions. It appears that after taking the house the lessee constructed two other rooms. These rooms were of pucca bricks and had corrugated iron sheets at 'the top. The defence of the respondent was that the, constructions of these two, rooms had been made in connection with his business and the constructions were of a temporary nature and they would be removed by him at hisown cost when he would vacate the house. The learned Judge found as a fact that although the rooms had been constructed with bricks, the idea of the tenant all along had been that the rooms would not be retained on the demised premises for ever but he would demolish the building and would remove the structures at, the expiry, of the lease. It was also found that the constructions that had been erected were of a temporary nature. Upon these findings the learned Judge held that the construction of the two rooms was of a temporary nature and was outside the purview of Clause (p) of Section 108 of the Transfer nf Property Act. In coming to the conclusion the learned Judge laid down certain propositions which may be set out hereunder :
'The mere circumstance that the two rooms are made of pucca bricks, does not necessarily make them constructions of a permanent nature. A building made of pucca bricks may, in certain circumstances, be a temporary building. On the contrary a building made of mud-walls with a thatch thereon may, in certain circumstances be a work of a permanent nature. Pucca and permanent are by no means synonymous terms. Similarly kuchcha and temporary do not mean the same thing.........The real criterion, therefore, is not whether the building is made of pucca bricks or of kuchcha bricks but whether the idea in 'constructing them is to retain them for ever or to demolish, them after re-achieving certain object.'
Although we are not inclined to subscribe our approval to all the propositions that have been formulated in this case by the learned, Judge, we agree with him that the question whether a particular construction is a permanent structure or is merely of a temporary nature is a question which depends on the facts of each case and on the nature and extent of the particular construction and the intention or purpose for which the construction is made, may also be a relevant consideration in certain circumstances, but no bard and fast rule can be laid down with regard to this matter,
5. The attention of the Court was also drawnto Section 160 Clause (c) of the Bengal Tenancy Act and to a decision of this Court reported in AbdulHakim Khan Chowdhury v. Elahi Biksha Saha : AIR1925Cal309 but neither this section nor the case cited throwany light on the question with which we are concerned. In my opinion the finding of the lowerAppellate Court that the defendant has not contravened Clause (p) of Section 108 of the Transfer ofProperty Act is not correct and must' be set aside.In view of this (finding I do not think it necessaryto go into the question whether the cistern installed on the roof is a pucca structure or not orwhether it caused any damage or not so as to bring the case within Clause (o) of Section 108 of the Transfer of Property Act.
6. In the result, the appeal is allowed, the judgment and decree of the lower appellate Court are set aside and the decree of the trial Court is restored with costs throughout.
P.B. Mukharji, J.
7. The major attack by Mr. B.C. Dutt, learned Advocate for the tenant-respondent in thiscase is on the ground that the disputes here arequestions of fact and cannot be . the subject of a second appeal. He relies on Sections 100 and 101 of the Code of Civil Procedure for this purpose and in particular on the observations made by the Judicial Committee of the Privy Council in Mt. Durga Choudhrain v. Jawahir Singh, 17 Ind App 122 (PC), as per Lord Macnaghten at page 127 and Ramratan Sukal v. Mt. Nandu, 19 Ind App I (PC), as per Lord Watson at page 3. According to his submission, the three questions whether (1) the conversion of the verandah into a room and (2) the building of the wall on the roof and (3) the building of a. cistern or a tank are breaches of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act are all pure questions of fact. Whether they are permanent structures or not is also, according to him, a question of fact. Hence it is submitted by him that they do not arise andcannot be determined on this second appeal.
8. I am unable to accept this argument. First, because it is necessary to emphasise that a second appeal, although is on a question of law, nevertheless arises in actual litigation, before the Court where some fact or other must always be involved. Indeed that is what led the Judicial Committee in Nafar Chandra Pal v. Shukur, 45 Ind App 183 : (AIR 1918 PC 92), to observe that questions of law and fact are sometimes difficult to disentangle. Lord Buckmaster at page 187 ofthe report (Ind App) : (at p. 93 of AIR) said:
'Questions of law and of fact are sometimes difficult to disentangle. The proper legal effect of a proved fact is essentially a question of law, so also is the question of admissibility of evidence and the question of whether any evidence has been offered On one side or the other; but the question whether the fact has been proved, when evidence for and against has been properly admitted, is necessarily a pure question of fact.'
There in that case the question turned on the wrong standard of measurement of lands of which the rent was in question but the principle as enunciated by Lord Buckmaster lays down, the law. So again the Judicial Committee in Shivabasava v. Sangappa, 31 Ind App 154 (PC), laid down the principle in clear terms. There, in fact, also wasa case tinged with all the colour of fact and with very little law. In fact there the question wasone of adoption and fraud in respect thereof, prima facie, questions of fact but the Privy Council enunciated the principle there that if the lower appellate Court proceeds upon a case not made by the parties to which evidence had not been directed, then that was a substantial error or defect of procedure within the meaning of these sections of the Code of Civil Procedure which were then Sections 584 and 585, Sir Arthur Wilson giving the advice of the Judicial Committee at page 159 observed as follows:
The substantial contention urged before their Lordships has been that the High Court had no jurisdiction under Section 584 to interfere with the finding of the Lower Appellate Court. Their Lordships agree with the learned judges of the High Court. They think the Lower Appellate Court did dispose of the suit upon a case not raised by the parties, and to which the evidence had notbeen directed, .and that this was a substantial error or defect of procedure within the meaning of Section 584. They also agree with the High Court in thinking that there was no evidence before the Lower Appellate Court upon which that Court could properly arrive at the conclusion of fact at which it did arrive.'
9. Scanning the record of this second appeal which has been elaborately discussed in the judgment just delivered by my learned brother, these two principles laid down by Sir Arthur Wilson apply with considerable force to this second appeal. The above principle of Sir Arthur Wilson mentioned expressly two classes of cases within which the second appeal may come. The first class is where the lower appellate Court does dispose of the suit upon a case not raised by the parties and to which the evidence had not been directed. That was clearly held to be a substantial error or defect of procedure within the meaning of the section, The present language of Section 100 of the Code of Civil Procedure on this point is contained in Clause (c) thereof which reads as follows:
'a substantial error or defect in the procedure provided by this Code or by any other law for the lime being in force, which may possibly have produced error, Or defect in the decision- of the case upon the merits.'
10. Sub-clause (a) of Section 100(1) of the Code of Civil Procedure also mentions the first ground as the decision being contrary to law or to some usage having the force of taw. These again are words which have been construed by the Judicial Committee of the Privy Council in Ram Gopal v. Shaniskhaton, 19 Ind App 228 (PC), where Sir Richard Couch at page 233 definitely laid down that the word ''law' is not to be limited in its meaning to statute law.'
11. I shall not again go over the fact? of this case winch have been fully dealt with by my learned brother. What are the facts in this case? The indisputable facts are (1) that a verandah has been converted into a room by building a wall on one side, (2) that a wall has been but on the roof of the house, and (3) that a tank or what is called a cistern has also been built. Indisputably these constructions are all of bricks and mortar and cement reinforced concrete. What is a permanent structure within the meaning of Clause (p) of Section 108 of the Transfer of Property Act will depend on the facts of' each case. There can be no rigid or hard and fast rule or formula to define or construe a permanent structure. The test of removability or demolition is not an variable test became even permanent structures like buildings or walls can be demolished or removed. The question again whether a structure is permanent or not, is appropriate; under Clause (p) but is not so under Clauses (m) and (o) of Section 108 of the Transfer of Property Act.
12. Clause (m) of, Section -108, Transfer of Property Act puts an obligation upon the lessee to keep the property in as good a condition as it was at! the time when he was put into possession subject only to the changes caused by such reasonable wear and tear as provided there, This Clause (m) in the Indian contest has been applied to mean a prohibition upon the tenant to make any structural additions and alterations. See the comments in Sir Dinshah Mulla's Transfer of Property Act, Fourth Edition, 1956, at page 665 where the learned editor, a former Chief Justice of India says:
' Alterations that are not authorised are as much a breach of the covenant as dilapidations, e. g., opening a door in a wall, or pulling down a wall across a courtyard, or converting the ground floor into a shop.'
See also the cases collected there.
13. This, therefore, is a question of law whether such conversion on the admitted facts, even apart from the difference of view of facts taken by the Additional District Judge, is a breach of the law. Here the conversion of the verandah into a room comes within this principle. It is a breach of Clause (m). So also is the: building of a wall on the roof which comes under Clause (m). It is not necessary to this connection here to discuss the question of its condonation by the notice of three months provided in Clause (m). That notice proceeds on the assumption that the breach is there and it only gives a time to the tenant to remedy it. The question of the tank or the cistern can come under Clauses (o) and (p) of Section 108 of the Transfer of Property Act. One argument was made by the lower appellate Court that so far as this question of tank or cistern was concerned this was built before the institution of the suit and before 1948. In coming to that conclusion the lower appellate Court was making a clearly wrong Inference in law on the records of this case. Although it is couched as a finding of fact it is, on the principle of the Judicial Committee to which reference has already been made by me, a question of law within the meaning of a second appeal under Section 100 of the Code of Civil Procedure.
14. The reasons may be summarised as follows: The lower appellate Court in making this inference land finding of fact failed to consider that during the pendency of the suit and after the suit had been instituted, the plaintiff applied for an injunction to restrain the construction of the tank which he alleged had been started after the institution of the suit. The records of the case show that the defendant-tenant had full notice of this application, that he appeared in the interlocutory application, that he asked for time to file objection and that he ultimately failed to file any objection contesting or disputing the allegation that this masonry tank was being constructed after the institution of the suit with the result that the interim order was made absolute till the disposal of the suit. No reference to this significant record has been made by the lower appellate Court but was expressly referred to by the learned Munsif. The whole of this case of the defendant on which the lower' appellate Court seems to find in his favour is that this masonry tank was built before the suit and before 1948, and yet not a word of this case was put to the plaintiff or any of his witnesses while they were in the box, although the defendant knew all the time from the interlocutory proceedings that the whole allegation of the plaintiff was that the construction of the masonry tank was pendente lite. Thatmeans that the lower appellate Court in trying to find his whole conclusion that the defendantbuilt this masonry tank before 1948 and below the institution of the suit on this solitary statement of the defendant who came to the box after the plaintiff and his witnesses had closed their case, comes within the mischief which Sir Arthus Wilson pointed out in the Judicial Committed's decision in 31 Ind App 154 at p. 159 (PC), where His Lordship said that a question of law within the meaning of a second appeal arises where the lower appellate Court disposes of a suit upon a case not raised by the parties and to which evidence had not been directed. It is true that the defendant as a party raised this question but the plaintiff never had any opportunity to meet it, and he had already closed his case before then. This leads to miscarriage of justice and is an infringement of law and procedure within the meaning of Sub-clauses (a) and (c) of Section 100(1) of the Coda of Civil Procedure. This point is also covered by the observations of the House of Lords' decision in Browne v. Durni, (1893) 6 Rule 67 where Lord Halsbury at page 77 described such a failure as a 'perfect outrage' leading to miscarriage of justice.
15. The same view was also taken by Viscount Haldane in the decision of the Judicial Committee in Damusa v. Abdul Samad, 46 Ind App. 140 at p. 144 : (AIR 1919 PC 29 at pp. 30-31).
16. I agree with the order made by my learned brother that this appeal should be allowed with costs throughout.