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Suraya Properties Private Ltd. Vs. Bimalendu Nath Sarkar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 444 of 1961
Judge
Reported inAIR1965Cal408
ActsTransfer of Property Act, 1882 - Sections 106, 108 and 112; ;West Bengal Premises Tenancy Act, 1956 - Section 13(1) and 13(6)
AppellantSuraya Properties Private Ltd.
RespondentBimalendu Nath Sarkar
Appellant AdvocateRanjit Kumar Banejree and ;Soumendra Nath Mukherjee, Advs.
Respondent AdvocateGuru Prosad Ghose and ;Satya Brata Dutta, Advs.
DispositionAppeal allowed
Cases ReferredJanardan Swamp v. Devi Prasad
Excerpt:
- chatterjee, j. 1. this appeal arises out of a suit for ejectment instituted in the court of small causes at calcutta after a notice to quit under section 106 of the transfer of property act and also alter a notice of suit under section 13 (6) of the west bengal premises tenancy act on the ground that the tenant was not entitled to any protection under section 13 of the west bengal premises tenancy act of 1956 as the tenant had done an act contrary to the provisions of clause (p) of section 108 of the transfer of property act of 1882.2. the act contrary to the provisions of clause (p) is the building of a kitchen on the roof of the house with 3' wall of brick and mortar together with a roof of corrugated iron sheets. when the appeal came up for hearing before another division bench of this.....
Judgment:

Chatterjee, J.

1. This appeal arises out of a suit for ejectment instituted in the Court of Small Causes at Calcutta after a notice to quit under Section 106 of the Transfer of Property Act and also alter a notice of suit under Section 13 (6) of the West Bengal Premises Tenancy Act on the ground that the tenant was not entitled to any protection under Section 13 of the West Bengal Premises Tenancy Act of 1956 as the tenant had done an act contrary to the provisions of Clause (p) of Section 108 of the Transfer of Property Act of 1882.

2. The act contrary to the provisions of Clause (p) is the building of a kitchen on the roof of the house with 3' wall of brick and mortar together with a roof of corrugated iron sheets. When the appeal came up for hearing before another Division Bench of this Court, the matter was referred to a Special Bench under proviso (ii), Rule I, Chapter II of the Appellate Side Rules. The relevant portion of the two of the points referred to were as follows:--

(i) 'What is a permanent structure for purposes of Clause (p) of Section 108 of the Transfer of Property Act.. . .?'

(ii) 'What notice is contemplated under Section 13(6) of the West Bengal Premises Tenancy Act of 1956 . . .what, if any are its necessary elements or contents ?'

The matter was heard by the Special Bench and the decision of the Special Bench is reported in : AIR1964Cal1 (SB), in the case between the same parties, namely, Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar. The two portions that I have quoted are the substantial parts of the points referred to.

3. Their Lordships were not inclined to answer the question No. (i) positively. Their Lordships laid down that the question is to be decided with regard to the facts and circumstances of each case. The second point was answered in the following manner:--

'A notice as contemplated under Section 13 (6) is essentially a notice of suit.... It is not necessary to mention in the notice under Section 13 (6) the grounds of ejectment for which a suit is to he instituted for the recovery of possession.'

So there is no doubt that a proper notice tinder Section 13 (6), West Bengal Premises Tenancy Act was given. The relevant answer may he found at p. 985 of the report (Cal WN): (at p. 5 of AIR) With regard to the question of notice, it is now urged that by acceptance of rent at an enhanced rate the landlord has waived the right to institute the suit on the ground of violation of term (p) of Section 108 of the Transfer of Property Act. With regard to that, it is quite clear that the rent was enhanced because of the law that rent could be enhanced by 5% and that is why rent was enhanced and the same was accepted at the enhanced rate. That has nothing to do with the raising of the structure.

4. But the next question is whether acceptance of rent subsequent to the building of the structure constituted acquiescence or waiver on the part of the landlord to the building of the structure. By a notice to quit a tenancy is determined. Thereafter, the tenant continues in possession not because of the lease hut notwithstanding the tease because of the conditions referred to in the West Bengal Premises Tenancy Act. Under the West Bengal Premises Tenancy Act a person to whom a property is leased out and if the provision of the West Bengal Premises Tenancy Act applies to the lease, the lessee under Section 2 (p) would continue to be the tenant within the meaning of the Act till a decree or order for eviction is made by a Court of competent jurisdiction Hence, even though the contractual tenancy ceases, there is what we may call a statutory tenancy within the meaning of the West Bengal Premises Tenancy Act. The tenant is entitled to continue in possession provided he complies with the provisions of the Act and one of the conditions for such compliance is payment of rent to the landlord or deposit of rent with the Rent Controller if the landlord chooses not to accept. The landlord under such circumstances, if he realises rent from the tenant, does something which is merely authorised by the Act. Section 24 of the West Bengal Premises Tenancy Act of 1956 provides as follows :--

'When there is no proceeding pending in Court for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default.'

Hence, the section provides that the acceptance merely relates to waiver of default and does not mean waiver of the notice to quit under Section 106 of the Transfer of Property Act or waiver of notice to issue under Section 13 (6) of the West Bengal Premises Tenancy Act. It has now been provided specifically in Section 23 that the withdrawal of rent deposited under Section 21 shall not operate as a waiver of any notice to quit given by him to the tenant except a notice on the ground of default referred to in Clause (i), Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act. The matter came up for consideration in the Supreme Court in an appeal from this Court between Ganga Dutt Murarka v. Kartik Chandra Das, : [1961]3SCR813 , and the Supreme Court observed as follows:--

'The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the Court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not, unless the statute provides of her wise, he conditioned.'

Their Lordships referred to another decision between Kai Khurshroo Bezonjee v. Jerbai Hirjibhoy , where B.K. Mukherjea, J., then of the Federal Court observed as follows:--

'In cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy a statutory immunity from eviction even after the lease has expired. The landlord cannot eject him except on specified grounds mentioned in the Acts themselves. In such circumstances, acceptance ol rent by the landlord from a statutory tenant whose lease has already expired could not be recorded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge, by way of defence, in a suit for ejectment brought against him under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit.'

I may also refer that the landlord in the case of : [1961]3SCR813 , not merely accepted rent but started proceedings for fixation of rent as under the provisions of the Act. None of these acts were considered to constitute the new tenancy. If he applied for fixation of rent, he does it under the conditions laid down in the statute. Therefore, neither enhancement of rent to the extent of 5% nor acceptance of rent at that enhanced rate would constitute waiver on the part of the landlord of his right to get a decree because of doing some act contrary to the provisions of Clause (p) of Section 108, Transfer of Property Act nor will it create a new tenancy by acceptance of rent which would require to be determined by a fresh notice to quit under Section 106 nor would it require a fresh notice of suit under Section 13 (6) of the West Bengal Premises Tenancy Act. I would, therefore, hold that there was no waiver on the part of the landlord and there can be no waiver on the part of the landlord either by demanding enhancement of rent in terms of the provisions of the Act or by acceptance of enhanced rent.

5. The next question is whether the tenant did an act in contravention of Section 108(p) of the Transfer of Property Act by constructing a kitchen with 4 walls built of brick and mortar with a roof of corrugated iron sheets. It is indeed true the question whether a particular structure is a permanent structure appears to be a question of fact. But the question in this case is, what the characteristics and meaning of the phrase 'permanent structure' for purposes of Section 108(p) of the Transfer of Property Act are and the next question would be, having obtained that meaning and those characteristics whether the structure in question would conform to that meaning of the phrase 'permanent structure'. In the case between Edwards v. Bairstow, 1955-3 All ER 48, the question was whether a particular transaction was an adventure in the nature of a trade or not.

Viscount Simonds observed as follows:--

'Yet it must be clear that to say that such an inference is one of the fact postulates that the character of that which is inferred, is a matter of fact. To say that a transaction is, or is not, an adventure in the nature of trade is to say that it has, not, the characteristics which distinguish such an adventure. But it is a question of law, not of fact, what are those characteristics, or, in other words, what the statutory language means. It follows that the inference can only be recorded as an inference of fact if it is assumed that the tribunal which makes it, is rightly directed in law what the characteristics are and that, I think, is the assumption that is made.'

Lord Radeliffe in the same case observed:--

'My Lords, I think that it is a question of law what meaning is to be given to the words of the Income-tax Act 'trade, manufacture, an adventure or concern, nature of trade' and for that matter what constitutes 'profits or gains' arising from it. Here we have a statutory phrase involving a charge of tax, and it is for the Courts to interpret its meaning, having regard to the context in which it occurs, to the principles which they briny; to bear on the meaning of income.'

I would, therefore, say, the question as to what are the characteristics and meaning of a 'permanent structure', is a question of law; but having understood the characteristics and meaning of a 'permanent structure', whether a particular structure satisfies those characteristics or not, is a question of fact and that is how the question has been considered to be a mixed question of fact and law, We have, therefore, to interpret the phrase 'permanent structure' in the context of Section 108(p) of the Transfer of Property Act. Section 108 of the Transfer of Property Act lays down the rights and liabilities of lessor and lessee in the absence of a contract of local usage to the contrary. There Is no doubt there is no contract to the contrary. There is also no evidence of a local usage to the contrary. The latter question was not agitated in the Court below. We have no evidence on that point, no issue on that point as also no finding on that point. Therefore, Section 108(p) lays clown the liabilities of the lessee in case there is no contract between the parties. It does not matter whether the lease is one from month to month or from year to year or for a period or where the lease is limited conditionally on the happening of some event.

In all these cases condition (p) will operate. The phrase 'permanent structure' does not mean 'ever lasting'. But the word 'permanent' has been used to distinguish it from 'temporary'. A lessee has the power to raise any type of temporary structure, but he has no power to raise a permanent structure. The word 'permanent' is also a relative term, because the absolute meaning of the word 'permanent' is 'ever lasting'. But we cannot accept that meaning. If the word 'permanent' is a rela'ive term, the question is,--relative to what? The answer immediately is--for purposes of Section 108(p) relative to the term of the lease. Therefore, the word 'permanent' means 'which lasts till the end of the term of the lease' and does not mean 'ever lasting' nor does it mean 'which would last 100 years or 50 years. The term, as stated above, is a relative one and the relation here is to the period of the lease. There may be a lease from mouth to month or from year to year and we do not know when the lease is going to terminate. But the meaning of the words 'permanent structure' would be that the lessee intended that he would enjoy the structure that he raises as long as he be continuing in possession. That period may be definite; that period may be indefinite. But that period is the period of the lease and the person, namely, the lessee, who constructs the structure, should have an intention to use it as long as he remains a lessee. Having under (sic) the characteristic of it, we have to exam the facts of the case. A person raises a struct(sic) for the purpose of a marriage in the family. There he intends to use it only during the occasion and has no intention to use it thereafter and intends to remove the structure thereafter. We cannot say that it would be a permanent structure even if it is made of brick and mortar. In the circumstances of this case, the lessee has said that he wanted to use it as a kitchen. He never says that the kitchen was required for a particular purpose temporarily. Therefore, we get from the evidence of the tenant that the tenant intended to use the structure as a kitchen during the continuance of the lease, because the tenant requires a kitchen as long as the tenant uses the premises and as he wants, to use it as a kitchen, he sufficiently expresses his intention to use it as a kitchen during the term of his tenancy which in this case is not definite. Therefore, for purposes of Section 108(p) of the Transfer of Property Act, we would hold that the kitchen raised must be considered to be for a permanent purpose.

6. We have next to consider what is the meaning of the word 'structure'. The word 'structure' must be distinguished from words like 'fixture'. The structure is not a mere fixture where an advertisement sheet is fixed. In South Wales Aluminium Co. v. Neath Assessment Committee, (1943) 2 All ER 587 it was held that:

'in its ordinary sense a structure means something which is constructed in the way of being built up as is a building'.

I am inclined to accept the meaning of the word 'structure' to be as aforesaid, namely,

'something which is constructed in the way ofbeing built up as is a building.'

If we refer to the decision of tin's Court reported inAtul Ghandra Lahiry v. Sonatan Daw, : AIR1962Cal78 we will find that a wallbuilt of brick and mortar has been considered tomean a permanent structure where a verandah wasconverted into a room.

7. Let us now consider what is the meaning of the phrase 'permanent structure'. There may be structures which from the nature of it will be considered to be temporary structures. Let us consider the case of a hut built with bamboo and 'Hogla' leaves. That may be considered to be a structure, because we speak of wooden structure, but it can never be considered to be a permanent structure because of the very nature of the structure. That structure cannot by its nature last long and that from its nature is temporary. Therefore, permanent structures would refer to those structures which are capable of staying 'permanently' and are also structures as distinguished from the word 'fixture'. I would, therefore, be inclined to understand a 'permanent structure' for purposes of Section 108(p) to mean a structure which is capable of lasting till the term of the lease and which is constructed in the way of being built up as is a building. I am quite aware that this definition would not include a reservoir built of brick and concrete which may be considered to be structure or a building within the meaning of the London Building Act of 1894 as was held in (1909) 1 KB 744 between Moran and Son Ltd. v. Marsland. But I would not be inclined to accept it that reservior would be a permanent structure for purposes of Section 108(p) of the Transfer of Property Act and so far as this point is concerned I would respectfully differ from the views expressed by the Allahabad High Court reported in Kamala Kant v. Kishan Lal, 1956 All LJ 871.

8. But I need not pursue the matter further, as there is no doubt that the structure raised is a kitchen which is to be used as a kitchen and which has been built in such A manner that it is capable of standing till the termination of the lease. If iron sheets are found leaking, they may be repaired and such repair would not mean demolition of the structure but would merely mean repair of the structure. In that view of the matter, I come to this conclusion that the tenant has done an act which is in violation of Section 108(p) of the Transfer of Property Act and the landlord is, therefore, entitled to a decree for ejectment in terms of Section 13 of the West Bengal Premises Tenancy Act.

9. The result is that the appeal is allowed. The suit is decreed.

10. But in the circumstances of this case, each party should bear his costs throughout.

11. The tenant is given time till the 30th June 1964 to demolish and remove the structures referred to above which he has raised without causing any damage to the building Itself. He is also given time till the 30th June 1964 to vacate the premises provided he deposits all sums which have become due to the plaintiff on account of use and occupation of the premises by him and which are still in arrears. This amount must be deposited within the 30th June 1964 in the trial Court or in the executing court. The tenant must also deposit a sum equivalent to rent for the use and occupation of the premises by him for the month of March 1964 within the 15th April in the trial Court or in the executing Court and is also directed to go on making similar deposits every month within the 15th of the succeeding month till he vacates the premises. The sum due for use and occupation of the premises for the month of June 1964 must be deposited within the 15th June, 1964.

12. In ease of default in complying with any one of the conditions aforesaid, the decree will be executable at once.

A.C. Sen, J.

13. The appellant before us is a private limited company that instituted a suit for eviction against the defendant respondent in respect of premises No. 153/3C Upper Circular Road, Calcutta.

14. The suit was instituted on notice to quit on the ground that the tenant defendant constructed a brick-built small room on the roof without the consent of the landlord company.

15. The suit was dismissed by the trial court because, in its opinion, the tenant defendant was entitled to protection against eviction inasmuch as the impugned room though brick built is not a permanent structure within the meaning of Clause (p) of Section 108 of the Transfer of Property Act.

16. On the question of notice the following issue was raised:

'Has the notice of ejectment dated 18-7-56 been served upon the defendant determining the tenancy in suit? If so, has the notice been waived and withdrawn by the notice elated 24-8-56?'

This issue, however was found in favour of the plain tiff appellant.

17. This appeal along with two other appeals were referred to a Special Bench, presided over by the Hon'ble Chief Justice for the determination of the following two questions:

(1) What is a permanent structure for the purpose of Clause (p) of Section 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 a corrugated iron sheet roof' is a permanent structure within the meaning of the aforesaid statutory provision?

2. What notice is contemplated under Section 13(6) of the West Bengal Premises Tenancy Act, 1956? Is it a notice to quit or a notice of suit or a combined notice to answer both the above purposes? Is it a notice, required in addition to a notice under Section 106 of the Transfer of Property Act or a notice in lieu of it? What, if any, are its necessary elements or contents? Is it necessary to mention in it the ground or grounds of ejectment under the aforesaid Act, on which the suit is to be brought Or, in other words, need it be a notice or such grounds?

18. The matter has again come up before us for final disposal in the light of the answers given by the Special Bench to the two questions noted above, in : AIR1964Cal1 (SB).

19. The learned Chief Justice gave the following answer to the first question:--

'The question whether a particular construction is a permanent structure or not, depends on the facts of each ease 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 Section 108 of the Transfer of Property Act.' The thickness of the wall is 3' and not 2''.

20. Bachawat, J. answered the first question in the following manner:

'With regard to the first question.....I think that no hard and fast test can be laid down for determining whether a particular structure is a permanent structure for purposes of Clause (p) of Section 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 a inches thick brick-built walls and corrugated iron sheet roof is a permanent structure for the purposes aforesaid.'

It is clear that the answer given by Bachawat J. substantially agrees with that of the learned Chief Justice. The other three learned Judges, namely, Sinha, P. N. Mookerjee, G. K. Mitter, JJ. also substantially agreed with the view expressed by the Chief Justice.

21. The plaintiff-landlord contends that the tenant respondent is not entitled to protection against eviction as he has constructed a permanent structure within the meaning of Clause (p) of Section 108 of the Tranter of Properly Act in the judgment of the trial court the impugned structure cannot be called a permanent structure within the moaning of Clause (p) of Section 108 of the Transfer of Property Act. The correctness of this judgment of the trial court has been challenged before us on behalf of the appellant-landlord.

22. So the point for determination is whether applying the principles laid down by the Special Bench in the case of Surya Properties (P) Ltd., : AIR1964Cal1 (SB) it can be said on the evidence on record that the impugned structure is a permanent structure, construction of which disentitles a tenant from claiming protection against eviction under the Premises Tenancy Act of 1956.

23. Why it was not possible for the Special Bench to give any definite answer to this question will appear from the following passage in the judgment of the learned Chief Justice :

'In the present case only certain questions have been referred and the entire case or the facts thereof are not before us. So it is not possible for us to give any answer to the question: Whether a room with 2' thick brick-built walls and a corrugated iron sheet roof is a permanent structure within the meaning of Clause (p) of Section 108 of the Transfer of Property Act.'

24. The entire case and the facts thereof are before us. Therefore we shall try to give a definite answer, this way or that way, to the question before us. Certain tests have been indicated by the Special Bench for determining whether the structure in question is permanent or not. According to the Chief Justice, the answer to the question depends upon the facts of each case and on the nature and extent of the particular construction. His Lordship further says that the intention or purpose for which the construction is made may also be a relevant consideration in certain circumstances. Bachawat, J., thinks that 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. According to Sinha, J., 'the answer depends on the nature of the structure, the intention of the parties and the surfounding circumstances'. His Lordship further says,

'usually, a structure which is intended to be permanent is built substantially. On the other hand, it is possible to envisage a substantial structure intended to be used only temporarily. The intention of the parties is the most important test, but this can be derived from the investigation of the surrounding circumstances.'

So, Sinha, J. lays stress upon the nature of the structure and the intention of the parties to be gathered from the surrounding circumstances. According to P. N. Mookerjee, J., the following things require to be considered, (1) the nature of the structure, (2) the intention with which it is made, (3) the situs, and (4) the mode, of annexation. In the opinion of Mitter, J., the answer to the question whether a structure is a permanent work or not would depend on the nature of its construction and on the intention of the tenant raising it. His Lordship observed as follows:

''If the walls have been so built as to become a part of the structure which were already there and so attached to the old structure that its removal was bound to affect the old structure it would be a permanent structure. The use of corrugated iron sheets for roofing purpose is not a matter of any significance..... Again the mere fact that bricks have been used to build the walls is not conclusive in favour of permanent structure. It would depend on the kind of mortar used and the nature of annexation of the newly created walls to the existing structure .....'

25-30. Before applying the tests laid down by their Lordships let us try to ascertain the facts. (The judgment then refers to the evidence in the case in paras 25 to 30 and proceeds as under).

31. One can get some idea as to the nature of the construction from Ext. 6A. It lends support to the evidence given by P. W. 1 that the room is on the roof, that its walls are of brick and that it is covered with corrugated iron sheets. Ext. 4 shows that the room is 6 ft. 6 in. by 9 ft. Ext. 6A shows that it is of moderate height. The thickness of the wall, according to evidence on record, is three inches.

32. The purpose tor which the disputed room has been constructed will appear from the following statement of D. W. 1 in course of his cross-examination: 'The room constructed on the roof is being used as a kitchen.' The tenant-defendant was asked to remove the room within a week by the letter dated 26-6-56, marked as Ext. 4A, but he did nothing of the sort. This shows that the room was not constructed for temporary use.

33. Now, if we apply the tests laid down by their Lordships of the Special Bench in : AIR1964Cal1 (SB) to the facts noted above, we are bound to conclude that the room is a permanent structure within the meaning of Clause (p) of Section 108 of the Transfer of Property Act. The room is undoubtedly substantial in nature. It is likely to endure for several years. It was built near about March, 1956 and there is nothing on record to show that it is no longer in existence. So the structure has not tumbled down during these eight years.

34. The walls are of brick, and there is nothing on record to show that they have become shaky. Mr. Ghosh on behalf of the respondent tenant says that the thickness of the walls being only three inches, the walls may collapse by wind pressure at any moment. But the fact remains that the walls have withstood wind pressure during these eight years. Therefore we are not in a position to accept the submission of Mr. Ghosh. It is true that if the walls were, say, fen inches thick they might have been stuccturally sound; but simply because the thickness is only three inches, it cannot be said that the structure is not a substantial one.

35. If we look to the mode of annexation to the main building it is clear from the photograph, Ext. 6A that it is so attached as to form an extension of the main building. The word 'permanent' is a relative term. The question of permanence in the present case is to be ascertained in relation to the demised premises. If the building which is the subject matter of the demise is to be regarded as permanent there is no reason to suppose that the disputed structure is not permanent. Moreover, it is so annexed to the main building that it cannot be demolished without causing substantial damage to the main building; in any event the parapet on which at least one of the walls of the disputed room stands, is likely to be damaged. As to the situs it has been constructed on the roof; so evidently it was meant to be an extension of the demised premises.

36. That the room was not constructed tor temporary use will be evident from the fact that the tenant-defendant did not take any step for its removal even though asked to do so by the landlord soon after its construction. Moreover, D.W. 1, brother of the tenant-defendant has himself stated in his cross-examination that the room in question is being used as a kitchen. That the tenant had no intention to dismantle it within a reasonably short time will be borne out by the fact that it has been in existence for the last eight years, and most likely have been used as a kitchen during the period.

37. It is argued on behalf of the tenant-respondent that the structure cannot be regarded as permanent as it is roofed with corrugated iron sheets. As has been pointed by Mitter, J., the use of corrugated iron sheets for roofing purpose is not a matter of any significance.

38. The view of the trial court on this point can be gathered from the following passage in its judgment:

'No definition of the word permanent has been given in the Act and the ordinary meaning of the word 'permanent' is that which cannot be removed easily. Construction of a room with thick brick-built walls and pucca roof is a permanent construction but a small room with 3 inches thick walls with corrugated iron sheet roof in my view, cannot be considered a permanent structure as contemplated in Clause (p) of Section 108 of the T. P. Act as it can be easily removed at any time.....'

39. The learned Judge has not applied the tests laid down by the Special Bench in deciding whether a structure is permanent or not. He seems to have attached importance to three things, (1) thickness of the wall, (2) whether the roof is pucca, and (3) whether the structure can be easily removed. It is needless to point out that the thickness of ihe wall is of little consequence. A thin wall say 3 inches thick, of re-inforced concrete is much more durable than a brick-wall, say ten inches thick, with mud plaster. The more important thing to consider is the durability of the walls rather than their thickness.

40. As to the nature of the roof, there may be a permanent structure without a pucca roof. Reference may be made to the following observations of Mitter, J., in Surya Properties (Private) Ltd., : AIR1964Cal1

'The use of corrugated iron sheets for roofing purpose is not a matter of any significance. All over Calcutta a large number of godowns, garages and workshops will be found which have roof of corrugated iron sheets and it cannot be suggested that they are not permanent structures because of the use of these sheets which can be dismantled without very much trouble or expense.'

41. As to the third factor relied on by the learned Judge of the trial Court it was considered by a Division Bench in : AIR1962Cal78 . Bose, J., as his Lordship then was, observed as follows:--

''The fact that the structures can be demolished and removed at any time does not make them any the less permanent.'

No less significant are the following remarks of P. B. Mukherjee J. at p. 634 (of Cal WN): (at p. 81 of AIR):

'The test of removability or demolition is not an invariable test because even permanent structures like buildings or walls can be demolished or removed.'

42. Then again, the learned Judge has not tried to decide the question with reference to the surrounding circumstances. We are therefore not in a position to agree with the views expressed by the, learned judge as to the nature of the room in question. In Atul Chandra's ease, : AIR1962Cal78 the tenant 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 had wails on the other three sides and thereby converted that portion into a room. The tenant also built a wall with bricks and cement on the roof, which, according to the tenant was only three inches thick, but, according to the landlord ten inches. Their Lordships, reversing the decision of the lower appellate court, held that the structures were permanent, for the erection of which the tenant was deprived of the protection against eviction. If the structures considered in Atul Chandra's case, : AIR1962Cal78 are permanent, there is no reason why the structure we are considering, should not be regarded as permanent.

43. As to the meaning of the word 'permanent' in Clause (p) of Section 108, Transfer of Property Act, Bose J., as his Lordship then was, observed as follows:--

'The word 'permanent' in Clause (p) of Section 108 appears to have been used in contradiction 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 the present case there is no manner of doubt that the room in question was not intended to be there only temporarily, the intention has all along beta to enjoy it permanently along with the portion originally demised. And it cannot be said that the structure under consideration is not of a substantial nature. Hence the disputed room can certainly be regarded a permanent structure within the meaning of Clause (p) of Section 108 of the Transfer of Property Act.

44. In Brohmanauda Das v. Nagendra Chandra, : AIR1954Cal224 the tenant constructed a pucca masonry wall over 3 1/2 ft. in height upon the floor of the verandah by digging open a part of its floor and practically converted a substantial part of the said open verandah into a closed room. He also made a pucca construction of sufficient height to serve as a receptacle of refuse matters. Both the structures were held to be permanent structures within the meaning of Clause (p) of Section 108, Transfer of Property Act. So, there is no reason why the disputed room with which we are dealing should not be held to be a permanent structure.

45. Mr. Ghose on behalf of the tenant respondent drew our attention to the ease of 1956 All LJ 871 noted at page XXIV, 64 Cal WN (Notes portion. In that case two rooms made of pucca bricks with corrugated iron sheets at the top were held to be not permanent structures within the meaning of Clause (p) of Section 108, Transfer of Property Act. It is a decision of a single Judge of the Allahabad High Court. The conclusion of his Lordship as to the nature of the said two rooms was based on the finding that the idea of the tenant all along had been that the rooms would not be retained for ever, but would be demolished on the expiry of the lease. This case was reviewed by Bose, J., as his Lordship then was in Atul Chandra's ease, : AIR1962Cal78 and his Lordship made the following comment:

'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 hard and fast rule can be laid down with regard to this matter.'

It may be pointed out that in Atul Chandra's case : AIR1962Cal78 the wall that was erected with a view to converting a portion of the verandah with walls on three sides into a room was held to be a permanent structure in the face of the decision of the single Judge of the Allahabad High Court in Kamla Kant Misra's case, 1956 All LJ 871. We too are of opinion that his Lordship of the Allahabad High Court failed to appreciate the distinction between a structure which is permanent and a structure that will endure for ever. In fact the expression 'permanent' is not synonymous with the expression 'perpetual'. Hence, even though we are prepared to accept the principles laid down by his Lordship of the Allahabad High Court we are not inclined to accept his conclusion on the application of those principles to the facts of that case.

46. Even assuming, argues Mr. Ghosh on behalf of the tenant, that the tenant was guilty of violating the provision of Clause (p) of Section 108 of the Transfer of Property Act by constructing a permanent structure without the permission of the landlord the said act in violation of Clause (p) of Section 108 operated as a forfeiture of the lease, but that the landlord having accepted rent and that too at an enhanced rate, even after the failure of the tenant to remove the structure in spite of the landlord's demand for its removal it must be held that the landlord waived the forfeiture and that consequently no decree for eviction could be passed against the tenant for such construction. He submits that Section 13(1)(b) of the Premises Tenancy Act of 1956 merely says that the tenancy will be forfeited if the tenant does any act contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. It is suggested that Section 13(1)(b) of the Act of 1956 being in the nature of a provision for forfeiture, by acceptance of vent forfeiture is waived, and that on the waiver of forfeiture no decree for ejectment can be passed.

47. We are afraid we cannot accept this argument of Mr. Ghosh. The ground contained in Section 13(1)(b) merely removes the bar to the passing of a decree for eviction against a tenant, and it cannot be treated as a clause for forfeiture of the tenancy. A clause for forfeiture in a lease provides for the termination of the lease on the violation of a specified condition. By an act contrary to Clause (p) of Section 108 of the Transfer of Property Act the lease is not terminated unless that is specifically provided for in the lease itself. In the present case, the tenancy being a monthly tenancy, created orally, it was necessary for the landlord to terminate the lease by serving a notice to quit under Section 106 of the Transfer of Property Act, because the lease continued in spite of the erection of the disputed structure. The landlord was entitled to receive rent, till the determination of the lease by a notice to quit and even thereafter till the passing of the decree for eviction. Therefore, it cannot be said that no decree for eviction could be passed simply because the landlord accepted rent from the tenant knowing full well that the disputed structure had been erected.

Mr. Ghose referred to Section 112 of the Transfer of Property Act in support of his argument, but in our opinion that section has no application to the facts of the present case. Mr. Ghose also referred to the case of Janardan Swamp v. Devi Prasad, : AIR1959All33 , decided by a Division Bench of the Allahabad High Court. But that decision has no application to the facts of the present case. In that case the suit for eviction was instituted on the termination of the tenancy by a notice to quit under Section 106 of the Transfer of Property Act and the suit was dismissed because on the facts of the case their Lordships held that the notice to quit had been waived Their Lordships observed as follows:

'In these circumstances and in view of Section 113 of the Transfer of Property Act the notice given under Section 111, Clause (h) must be deemed to have been waived with the express or implied consent of the persons to whom it was given by an act of the persons giving it, showing an intention to treat the lease as subsisting.'

48. In our opinion there was no necessity in that case to consider the question of forfeiture. What happened in that case is that by a compromise decree a lease was created in favour of one Sarjoo Prosad for three years ending on the 30th April, 1950. On the death of Sarjoo Prosad in 1949 his heirs violated the implied covenants mentioned in Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act by altering the demised premises without the permission of the landlord. Probably it was argued on behalf of the landlord that the lease had been forfeited for breach of the covenant not to make material alteration. It is in this context that their Lordships made the following observations:

'There was no express condition in the terms of the compromise decree.....which provided that on breach thereof the lessor may re-enter. Even if an express condition like that is to be inferred ...., a breach of condition only makes the lease voidable.... The forfeiture in the present case must be deemed to have been waived not only by acceptance of rent which became due since the forfeiture but by the act on the part of the lessor in the suit... .brought against the tenants showing an intention to treat the lease as subsisting.'

These observations are obiter, because eviction was claimed not on the ground that the lease was determined by forfeiture, but on the ground that the lease was terminated by a notice to quit.

49. Next, it is argued that the landlord in the present case is not entitled to a decree on the ground of the tenant's doing any act contrary to Clause (p) of Section 108, because the landlord realised additional rent for the disputed structure. To appreciate this argument it is necessary to state certain facts. The original rent was Rs. 46 and odd. By a letter, dated 23-6-56 (Ex. 5) the landlord informed the tenant that as under the Rent Act he was entitled to an increment of 5 per cent over and above the existing rent, the tenant should pay rent at the rate of Rs. 49 and odd from June, 1956; and rent was in fact realised at the enhanced rate of Rs. 49 and odd for the months of June and July, 1956. It may be recalled that the tenant informed the landlord about the construction of the disputed structure by a letter, dated 28-4-56. It is contended on behalf of the tenant mat the additional 5 per cent was paid on account of the disputed structure. Therefore, it is further contended, the landlord cannot get a decree under Section 3 (1) (b) of the Premises Tenancy Act, 1956.

50. We cannot accept this argument. P. W. 1 categorically denied in course of his cross-examination that the rent of the tenant was enhanced on account of the disputed construction. Nor can any such inference be drawn from Ex. 5. There is no evidence on record, save and except, the uncorroborated testimony of the D. W. 1 that the tenant:

'agreed to pay an enhanced rent on account of construction of a room on the roof.' It is difficult to believe this statement of D. W. 1 in the face of Ex. 5.

51. Some argument was also advanced on behalf of the tenant for the dismissal of the suit for want of notice under Section 13 (6) of the Premises Tenancy Act of 1956. It transpires that two notices were served on the tenant, dated respectively, 18-7-56 and 24-8-56. The first notice is undoubtedly a notice to quit. The validity of this notice as a notice to quit has not been challenged before us. The second notice purports to be a notice under Section 13 (6) of the 1956 Act. It is contended that the second notice cannot be treated as a notice of suit within the meaning of Section 13 (6), because it merely mentions the section and the sub-section without expressing the intention to file a suit and without stating the ground for filing the suit. Even assuming that the second notice, dated 24-8-56 cannot be treated as a valid notice of suit under Section 13 (6), the first notice, dated 18-7-56 is, in our opinion, both a notice to quit under Section 106 of the Transfer of Property Act as well as a notice of the proposed suit. The last sentence of the notice reads thus:

'Please note that in default of compliance legal proceedings will be taken against you without further reference.'

This is sufficient indication that a suit for eviction will be instituted if the premises arc not vacated as required by the notice to quit. In : AIR1964Cal1 (SB), it has been laid down by the Special Bench that a notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 may be combined with a notice under Section 106 of the Transfer of Property Act and that there is no prescribed form of such a notice. In the opinion of the majority of the learned Judges, it is also not necessary to state the ground for ejectment in the notice. Tested in the light of the decision of the Special Bench the first notice in the present suit, elated 18-7-56 is undoubtedly valid both as a notice to quit as well as a notice of suit.

52. As we have rejected all the arguments advanced on behalf of the tenant-respondent the appeal must succeed. The appeal is accordingly allowed, the judgment and decree of the trial Court are set aside and suit is decreed. Having regard to the uncertainty of the legal position before the decision of the Special Bench, we direct that the parties will bear their respective costs throughout.

53. I fully agree with my learned Brother asto the directions given for the removal of the disputed structure and for vacating the disputedpremises.


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