Judgment:
Tapan Kumar Dutt, J.
1. This Court has heard the Learned Advocates for the respective parties.
2. The facts of the case, very briefly, are as follows:
The plaintiff/respondent No. 1 filed a suit praying for a decree for khas possession by evicting the defendant from the 'ka' schedule premises to the plaint and also for a decree for mesne profits. The plaintiff also prayed for a decree for mandatory injunction directing the defendant to remove the cemented urinal (ka- 1 schedule to the plaint). The plaintiff alleged inter alia in the plaint that the defendant was a defaulter since January 1978, that the defendant intentionally broke and removed the parapet wall of the roof at the time of defendant's daughter's marriage in May 1980 without the consent of the plaintiff and the defendant also removed the side wall of the skylight causing material deterioration of the suit premises. It was also alleged that the plaintiff filed suit against the defendant for mandatory injunction and the plaintiff got a decree for permanent mandatory injunction whereby the defendants were directed to restore original position of the parapet wall of the roof, that the defendant without any consent of the plaintiff constructed one urinal on the roof with cement mortar and brick and such construction is of permanent nature. The plaintiff alleged that the defendant had violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. The plaintiff also pleaded reasonable requirement of the suit premises for own use and occupation. The plaintiff also alleged that the defendant has damaged the entrance door by cutting the same and making a hole in it for the purpose of fixing a letter-box causing waste to the property. The plaintiff further pleaded that ejectment notice was served upon the defendant but the defendant did not vacate and, accordingly, the suit was filed.
3. The defendant contested the said suit by filing a written statement denying the material allegations made in the plaint. According to the defendant/appellant the plaintiff himself broke some portion of the parapet wall for open and/or easy access to a certain room at the time of marriage of the defendant's daughter. According to the defendant the plaintiff himself arranged for construction of the urinal on the second floor. The defendant denied that he removed the side wall of the skylight and he stated that he did not violate any of the provisions of Clauses (m), (o) and (p) of Section 108 of Transfer of Property Act. The defendant also denied that the plaintiff requires the suit premises for own use and occupation. The defendant prayed for dismissal of the suit.
4. The said suit came up for hearing when the Learned Trial Court by Judgment and decree dated 23rd May, 1989 dismissed the said suit. The plaintiff/respondent filed an appeal being Title Appeal No. 133 of 1989 challenging the Judgment and decree of the Learned Trial Court, and Learned Lower Appellate Court allowed the said appeal by setting aside the Judgment and decree passed by the Learned Trial Court. The Learned Lower Appellate Court decreed the suit by directing that the plaintiff/respondent does get a decree for recovery of khas possession of the suit premises by evicting the defendant from the suit premises and the plaintiff/respondent also does get a decree for mesne profits tentatively at the rate of Rs. 70/- per month to be calculated in a separate proceeding under Order 20 Rule 12 CPC on payment of proper Court Fees. The Learned Lower Appellate Court directed the defendant/appellant to remove the ka(1) schedule cemented urinal within two months at the defendant's cost and in default the plaintiff will be at liberty to remove the said urinal at his own cost by executing the decree and to realise such cost from the defendant.
5. The Learned Lower Appellate Court found inter alia that some portion of the door panel has been cut for the purpose of fixing a letter box and the door is made of a Burma wood. It further appears that a complaint was lodged at the police station regarding the fixing of letter box by cutting the door and the Learned Lower Appellate Court found that such act of the defendant caused damage to the suit premises and the letter box was fixed without the consent of the plaintiff. The Learned Lower Appellate Court also found that the defendant has also admitted the fact of construction of the aforesaid urinal and such construction was made without the permission of the plaintiff. The Learned Lower Appellate Court also found that it is very natural that the said urinal would cause nuisance. The Learned Lower Appellate Court also found that the fact remains that the parapet wall has been damaged and Ext. 2 also discloses that a portion of the parapet wall was broken and the broken portion measures 38 inches x 20 inches. The Learned Lower Appellate Court found that the urinal on the second floor has been made of brick by the defendant and the defendant wants to use the urinal as long as he remains in the suit premises and even though the said urinal is capable of being removed without causing permanent damage to the demise premises, it cannot be said that the urinal structure is temporary. The Learned Court came to the conclusion that the said urinal construction is a permanent structure. The Learned Lower Appellate Court also came to the finding the said urinal also causes nuisance as there is no arrangement for water supply in the urinal. It appears from the impugned Judgment that there is a finding by the Learned Lower Appellate Court that there is already a bath room and privy for the defendant on the first floor and there is no need for construction of the said urinal and it cannot be said that the construction of the urinal was a must to suit to the need of the defendant. The Learned Lower Appellate Court found that as the defendant has constructed the urinal on the second floor without the consent of the plaintiff the defendant has raised a permanent structure and violated the provisions of Section 108(p) of the Transfer of Property Act. The Learned Lower Appellate Court found that the act of fixing the letter-box by cutting the door is an act causing damage to the suit premises when there was no need for the defendant to cut the door of the suit premises. The Learned Lower Appellate Court further found that the parapet wall was damaged during the time of the defendant's daughter's marriage as the defendant has admitted in evidence that at the time of marriage of his daughter he felt the urgency to use the roof of the western portion and for using the said roof the parapet wall had to be broken down as the defendant found that the western portion of roof level is surrounded by parapet wall. The Learned Lower Appellate Court found that the defendant broke the parapet wall without the consent of the plaintiff. Thus, the Lower Appellate Court came to the conclusion that the defendant is liable to be evicted from the suit premises as he has violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.
6. The Learned Lower Appellate Court found that the plaintiff failed to prove that he requires the suit premises for his own use and occupation and accordingly there cannot be any decree for ejectment of grounds of reason requirement. It further appears that the defendant got the protection under Section 17(4) of the West Bengal Premises Tenancy Act and as such the plaintiff could not obtain a decree on the ground of default in payment of rent. It also appears that the Learned Lower Appellate Court found that a valid and legal notice was served upon the defendant.
7. Thus, it will appear that the suit for eviction has been decreed by the Learned Lower Appellate Court only on the ground envisaged under Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956.
8. The only point for consideration in the present second appeal is as to whether the acts committed by the defendant/appellant, as indicated above, constitute a ground for eviction under Section 13(1)(b) of the said Act of 1956.
9. The Learned Counsel for the appellants submitted that the plaintiffs could not prove as to when the alleged constructions took place and the plaintiff has acquiesced by not protesting against the alleged constructions and as such the plaintiff cannot now have a decree for eviction on the basis of such alleged constructions. The said Learned Counsel submitted that the parapet wall and the said wall of the skylight can be repaired and the urinal constructed on the second floor does not violate the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. The said Learned Advocate further submitted that the cutting of the door-leaf for the purpose of fixing a letter-box cannot be said to have caused any damage to the suit property and in any event the said door-leaf can be repaired or it may be replaced if the occasion so arises.
10. The said Learned Advocate cited a decision reported at 1988 (1) CLJ 468 (Ratnamala Dasi and Ors. v. Ratan Singh Bawa). In the said reports it has been observed by the Hon'ble Court that it is not the law that a tenant cannot construct any structure on the tenanted premises and that under Clause (o) of Section 108 of Transfer of Property Act, a tenant who has to use the tenanted property as a person of ordinary prudence would use it if it were his own, has been commanded not to pull down or damage the building belonging to the landlord or to commit any other act which is destructive or permanently injurious thereto and under Clause (p) the tenant has been mandated not to erect on the property any permanent structure, except for agricultural purposes, but within limits specified by Clauses (o) and (p) a tenant can make such constructions, additions or alterations as would suit his needs. It has been further stated in the said reports that the nature of construction and the intention with which it has been constructed are of primary and prime importance and all these are to be determined and ascertained from the structure, its situs and its mode of annexation and of surrounding circumstances. In the said reported case, the Hon'ble Court was pleased to hold that affixation of a collapsible gate at the entrance of tenanted premises would not amount to erection of a permanent structure. The Hon'ble Court was pleased to hold that the intention of a tenant in the said case was not to have any additional structure, permanent or temporary, but to provide additional security as a measure of safety to himself, the members of his family and their properties against burglary and other risks and hazards.
11. The said Learned Advocate cited another decision reported at 1988 (1) CLJ 278 (Devokinandan Boobna v. Harasundar Sarkar) wherein the Hon'ble Court was pleased to observe that a tenant cannot put up any construction by way of addition or alteration which is a permanent structure or which is destructive or permanently injurious to the tenanted premises but the tenant can within the limits of Clauses (o) and (p) of Section 108 T.P. Act add to the premises and make alterations thereto to suit his needs. In the said case it appears that fixing of air-conditioner was in issue and the Hon'ble Court was pleased to hold that if there is no indication of any damage having been caused to the tenanted premises, then the apprehension of the first Appellate Court that the tenant would not restore or would not be able to restore the premises to its original condition at the termination of the tenancy would appear to be rather conjectural.
12. The Learned Advocate for the appellant cited another decision reported at : (1987) 1 SCC 458 (Om Prakash v. Amar Singh and Ors.) and referred to paragraphs 3, 6 and 7 of the said reports. It appears that in the said reported case Section 14 of the U.P. Cantonment Rent Control Act, 1952 particularly Section 14(c) of the said Act was relevant for the purposes of the said case. On perusal of the provision of Section 14(c) of the said Act which has been quoted in the said reports it appears that the language of the said provision of law and the language of the provision of Clause (p) of Section 108 of the Transfer of Property Act are not exactly similar to each other. The language of the said Section 14(c) appears to be that no suit shall without the permission of the District Magistrate be filed in any civil court against a tenant for his eviction from any accommodation except on the ground (amongst other grounds) that the tenant has without the permission of the landlord made or permitted to be made any such construction which in the opinion of the court has materially altered the accommodation or is likely substantially to diminish its value. Section 108(p) of the Transfer of Property Act contemplates erection on the property concerned any permanent structure, except for agricultural purposes. Thus the said reports cannot be of any assistance to the appellant in the facts and circumstances of the present case.
13. The Learned Advocate for the appellants cited another decision reported at 1993 (1) CLJ 193 (Ratanlal Bansilal and Ors. v. Kishorllal Goenka and Ors. case) and referred to paragraph 154 of the said reports. It appears that in the said reported case the landlord did not take any steps against the unauthorised construction for about four years and the Hon'ble Court was pleased to observe that in such circumstances it can be reasonably presumed that the construction was made with the consent of the landlords or at least it had the passive acquiescence of the landlord. It will appear from the impugned Judgment that the Learned Lower Appellate Court has made a finding that a complaint was lodged by P.W.1 at the police station regarding installation of letter box by cutting the door leaf and certified copy of the G.D. Entry concerned shows that on 16.01.1986 the plaintiff lodged a complaint with the Uttarpara Police Station. Therefore, it cannot be said that the plaintiff acquiesced to the defendant's act of cutting the door leaf for fixing the letter-box. Thus the facts and circumstances of the said reported case are distinguishable from the facts and circumstances of the instant case.
14. With regard to the construction of the urinal on the second floor it appears that brick built walls have been constructed and there is no arrangement for water-supply to such urinal and consequently it is only natural that such urinal would cause nuisance as found by the learned lower appellate court. The learned Lower Appellate Court has made a finding of fact that there is already a bathroom and privy for defendant's use on the 1st floor and there was no need for construction of the urinal on the 2nd floor. Therefore, it cannot be said that there was any absolute necessity for the defendant to construct the urinal on the 2nd floor particularly when he was aware that there was no proper arrangement of water-supply to such urinal on the 2nd floor. In this regard the conduct of the defendant shows that the defendant intended to harass the plaintiff and commit act which is destructive in nature in so far as the suit premises is concerned.
15. The Learned Lower Appellate Court has found that the parapet wall was damaged during the time of marriage of the defendant's daughter and the D.W.1 has admitted that at the time of the aforesaid marriage it was felt that to use the roof of the western portion the parapet wall had to be broken. The Learned Lower Appellate Court also found that the defendant broke the parapet wall without the consent of the plaintiff. Such act of the defendant is also destructive in nature in so far as the suit premises is concerned and is violative of the provisions of Section 108 (o) of the Transfer of Property Act. A tenant cannot be permitted, without the landlord's consent, to whimsically demolish portions of the tenanted property only for the purpose of receiving a temporary benefit out of it.
16. The Learned Lower Appellate Court has found that a door-leaf of the suit premises has been cut by the defendant for fixing a letter-box. It also appears that the door is made of wood of good quality. Learned Lower Appellate Court has also found that such type of letter-box are not to be found in the other flats in the suit-holding. There cannot be any dispute with regard to the fact that a door-leaf which has been cut has been permanently damaged and its value has diminished. Even if such door-leaf is repaired by fixing a plank of wood in the place where it has been cut, it will not regain its earlier value. The damage caused is permanent. There are different ways of fixing a letter-box but it is difficult to appreciate that it was necessary for the defendant to cut a door-leaf for fixing the letter-box. The defendant has caused permanent injury to the door of the suit premises and the act of the defendant was destructive in nature. Considering the entire facts and circumstances of the case, this Court is of the view that the defendant tried in various ways to harass the plaintiff and cause permanent injury and/or damage to the suit property. It also appears that the defendant did not use the suit property as a person of ordinary prudence would use it as if it were his own.
17. The reported cases cited by the Learned Advocate for the appellant cannot be of any assistance to the appellant in the facts and circumstances of the present case.
18. In view of the discussions made above this Court is not inclined to interfere with the impugned Judgment and decree. The present appeal is without any merit. The appeal is dismissed.
19. There will, however, be no order as to costs.
20. Urgent Xerox certified copy of this Judgment, if applied for, shall be given to the parties on compliance of usual formalities.