KURIAN Vs. JOB

JUDGEMENT

(1.) Appellants were the two defendants in a suit for injunction brought by the original plaintiff respondent, now represented by his legal representatives additional respondents 2 to 4. They are tenants of a non residential building by the side of the road on the east and a room further west and the intervening space in between. The building and room were taken on rent for running their trade. The building is marked 1, the room 2 and the vacant space 3 in the sketch Ext. C2 prepared by a Commissioner. The vacant space is the B Schedule to the plaint. The plaintiff sought a prohibitory injunction restraining the defendants from constructing any building in or altering the nature of the B schedule property and a mandatory injunction directing them to remove the structures put up by them without his knowledge or consent. The main ground of the defence was that they were putting up a shed in the B Schedule with the consent of the plaintiff, that they would remove it at the time of surrendering the lease and that in such circumstances the structure was not liable to be demolished. The Trial Court found that the structure was put up by the defendants with the consent of the plaintiff and that there was accordingly no ground for granting the injunction. On appeal the Appellate Court held in the first instance that it was not very necessary to consider whether the defendants had the plaintiff's consent as it thought that during the currency of the lease it was open to the defendants to use the B Schedule land for constructing a room and that at the most what the plaintiff could require was restoration of the property to its original condition at the time of the surrender. On this finding the appeal was dismissed. The plaintiff thereupon came to this Court in S. A. 749 of 1968. By the judgment dated January 11, 1971, this Court held that there was no proof of the agreement set up by the defendants permitting construction of the building and that the only question was whether they were entitled as lessees to put up the structure. It was further held that the courts below had made no reference to S.108(p), Transfer of Property Act, which prohibits the erection of permanent structures in the leasehold without the consent of the landlord and that as there was no consent the primary question to be decided was whether the structures attempted to be put up by them were permanent structures. This Court accordingly set aside the decision of the appellate court and remanded the appeal for fresh disposal. The Lower Appellate Court has now found that the structure constructed by the defendants is a permanent one and has in that view issued a mandatory injunction directing them to demolish it within two months, failing which the plaintiffs were allowed to get it removed through court.

(2.) Counsel for the appellants contended in the first place that in the nature of the direction in the second appeal to determine whether the structure was a permanent one the lower appellate court should have either taken evidence itself or remanded the suit to the Trial Court for that purpose and that the omission to do so has prejudiced his clients. The judgment in S. A. 749 of 1968 does not indicate that the appellants made any request for opportunity to give evidence. What is more it shows that this court directed that the question whether the structure was a permanent one or not has to be decided on the materials in the court, thus excluding any remand for taking evidence by the lower appellate court. The appellants themselves have no case that they made any motion to give evidence before the lower appellate court. I see no ground to allow a remand particularly as the materials in evidence are sufficient to enable an adjudication.

(3.) The records show that the appellants started the construction of a granite wall partly behind item No. 1 building and along the northern border of plot No. 3 on the line CDEF in Ext. C2. The appellate judgment shows that It was admitted that subsequent to the suit the granite wall had been completed with a door and two windows in it and that a tiled roof has also been constructed over plot No. 3. thus converting the whole into a room. The appellate court has held that this constitutes a permanent structure within S.108(p), Transfer of Property Act. Whether a structure is permanent or not has to be decided on the facts of each case considering its nature and extent and the intention with which it is erected. Here the construction consists of a room with a tiled roof and a wall of granite and mortar. The nature and extent of the construction and the materials that have gone into the construction are by themselves sufficient to justify the finding about the permanency. That the defendants intended to erect a permanent structure is further clear from their contention in the written statement that they were planning to construct a room for storing their stock in trade. They had also contended that they were prepared to remove the construction at the time of surrender of the lease, which again discloses an intention that the structure was to be a permanent and durable one. It was also their contention that the new construction would add to the utility, appearance and value of the building and that it is highly essential for the convenience of their trade. These contentions unmistakably show that the defendants intended that the room should be a permanent one which should last at least until they removed it at the time of vacating the premises. These pleas coupled with the nature of the construction leave no room for doubt that the structure is a permanent one and that it is contrary to the provisions of S.108(p).