RAMJI VIRJI Vs. KADARBHAI ESUFALI

JUDGEMENT

(1.) The deceased defendants heirs challenge in this appeal the eviction decree passed by the lower appellate Court on the ground that the defendant tenant had without the landlords consent in writing erected on the premises structures of permanent nature and was therefore disentitled from getting any protection under the Rent Act in view of sec. 13(1)(b) of the Saurashtra Rent Control Act 1951

(2.) The test for determination as to what is a permanent structure has now been evolved by the decision of the Division Bench consisting of Bhagwati J. as he then was and myself in VI G.L.R. 27. While interpretting the said section in Ibrahim v. Haji Khanmahomad Bhagwati J. speaking for the Division Bench in terms pointed out that considering the scheme of sec. 108(h) of the Transfer of Property Act which entitled the tenant on the determination of the tenancy to remove at any time whilst he is in possession of the premises all things which he has attached to the earth it was obvious that when the Transfer of Property Act created this prohibition under sec. 108(q) it contemplated permanent structures which would not be easily removable and the removal of which might injuriously affect the premises. The right to enjoy possession of the premises cannot include the right to erect permanent structures as they would also alter the character of the premises. It was therefore made a ground of eviction. That is why on p. 32 it was pointed out that while judging the permanent character of the structure what was material was the nature of the structure and the nature of the materials used in the making of the structure and the manner in which the structure is erected and not the question how long the tenant intended to make use of the structure. The Legislature contemplated an objective test and once it is shown that the structure created by the tenant is of such a nature as to be lasting in duration lasting of course according to ordinary notions of mankind the tenant cannot come forward and say that he erected it for use for only a temporary period and it is therefore a temporary structure. Therefore to that extent the objective test would prevail over the subjective intention of the tenant in that the structure which fulfills the objective test by having a permanent element would not cease to be a permanent structure merely because of the intention of the tenant otherwise this objective test would have to be applied keeping in mind the intention of the tenant that he was putting a structure intended to be of a lasting character. That is why the bamboo and the iron sheets which were put up in that case on the open land were from the nature of the material used even when two rooms were created were held to be not permanent structures so as to deprive the tenant of the protection under sec. 13(1)(b). In Surya Proprietors (Pr.) Ltd. v. Bimalendu Nath A.I.R. 1964 Cal. In the Special Bench had also considered this question by holding that whether a particular construction is a permanent structure or not for the purpose of clause (p) of sec. 108 T. P. Act depends on the facts of each case and no hard and fast rule can be laid down with regard to this matter. On p. 14 Mukherjee J. in terms pointed out that what would be relevant would be the nature of the structure or construction in question and the intention with which it is made and almost in every case they would be of prime importance the sites the mode of annexation and the surrounding circumstances being all appropriate matters for consideration on the above two basic and usually determinant elements. Therefore as per the test laid down by the Division Bench the permanent nature of the structure would have to be found out by looking to the nature of the construction by applying the objective test where the intention of the tenant would also be a relevant factor whether he intended to put up a lasting structure by looking to the very nature of the construction the materials used the mode of annexation the sites and the removability of the structure when taken as a whole because of its loose annexation to the main premises. In the present case the Commissioners report at Ex. 12 shows that the dimensions of the room in which the Meda is constructed are 13 3 x 13 2. The height of the Meda is 8 1 and width thereof 4 8 1/2. Meda has been constructed by fixing four pillars with the walls by means of nails and putting planks over those pillars. Around one of the pillars there is a plaster of cement. The gap between the planks rest on the four pillars and the ceiling is filled with planks on both the sides and a door is set up on the front side. The entire structure was a wooden structure which is admittedly resting on the four pillars which are also not embedded in the floor. The floor may be plastered by the cement but the whole annexation is so loose that this wooden structure would be easily removable. Looking to the nature of the main construction this loft from the nature of the materials used and the mode in which it was annexed to the main construction clearly pointed out that this was not a permanent structure. That is why even the plaintiffs carpenter witness Jagjivan Kurji Ex. 25 had to admit that this loft could be removed at any time. Therefore the entire structure is an easily removable wooden structure which could never fall within the definition of a lasting structure so as to offend the provisions of sec. 13(1)(b) of the Act. The lower appellate Court was entirely influenced by the fact that the Commissioners report mentioned that there were rings for the 8 and a swing of such weight could not remain on such a temporary structure. The Commissioners report does not say whether there was actually a swing there and what was the weight of the swing. The Commissioners report only discloses that there were rings for the swing and the arrangement for fixing a tube light. Therefore from this one cannot jump to the conclusion that this was a permanent structure ignoring the aforesaid test. The second offending construction was covering a part of the balcony 8 x 2 10 by a bathroom 3 7 x 2 10. There is also no dispute that the bathroom is also constructed with sheets of cement. It is entirely a wooden frame structure. Only the floor of the bathroom is i higher than the other part of the floor in the balcony. The original drain passage or the hole for discharge of water has now been closed because the floor was somewhat raised in the bathroom and a new drain has been put up for discharge of water by means of a pipe whose diameter is 3. The pipe reaches upto the ground by the side of the wall. It is true that in the adjoining blocks there is no bath-room in the balcony. Such a bathroom which is purely a wooden structure which could be easily removed could never be said to be a Permanent structure. Even the plaintiffs carpenter Jagjivan admitted that no part of the bathroom had been inserted in the wall. Therefore this is also not a permanent addition to the main building at all and would not satisfy the objective test.

(3.) Mr. Shah vehemently argued that this is a pure finding of fact. Mr. Shah Ignores the fact that the principles were for the first time settled by the aforesaid decision of the Division Bench and the lower appellate Court had not the benefit of this decision. The test for determination as to what is a permanent structure has now been evolved. This test was not applied by the lower appellate Court and therefore this finding of the mixed question of law and fact could be considered in the light of the settled legal position decision by this Court even in this appeal.