KEMPRAJ Vs. KRISHNAPPA

JUDGEMENT

(1.) THE plaintiff, who was successful in the trial court is the appellant in the above second appeal.

(2.) THE case of the plaintiff was that the suit property bearing Door No. 364/a within the Ooty Municipal Limits belongs to him and that it has been leased out to the first defendant. Defendants 2 and 3 are said to be the brothers of the first defendant. It is also stated has collapsed during the then unprecedented rains and floods at Ooty as a consequence of which only one room was remaining. THEreupon, the defendants were said to have attempted to put up a construction in the portion where the building had completely fallen down. It is stated that the defendants have no right to do so and consequently, it became necessary for the plaintiff to approach the trial court. In such circumstances, the suit O. S. No. 365 of 1978 was filed by the plaintiff in Sub Court, Nilgiris at Ootacamund, praying for permanent injunction restraining the defendants from putting up any construction in the suit property or altering the nature of the suit property.

(3.) IN Atul Chandra Lahiry v. Sonatan Daw, A. I. R. 1962 Cal. 78, a Division Bench of the Calcutta High Court had an occasion to deal with the purport of the words'permanent structure'in clause (p) of sec. 108 of the Transfer of Property Act. It was held therein that the word 'permanent'used in clause (p) of Sec. 108 appears to have been used in contra-distinc-tion to what it temporary, that if a structure is intended to be there only temporarily, the statutory embargo did not apply and if on the other hand, the intention was to enjoy the structure permanently and the structure was also of a substantial structure. It was also observed therein that the test of removability of demolition is not an invariable test because even permanent structures or removed and that it would be a mixed question of act and law in each case, whether the extent or degree of construction or erection was such as to make it partake of the character of the permanent structure or not.