KRISHNAWATI DEVI Vs. SUGIA

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiff-appellant against the judgment and decree dated 13-11-1976 dismissing Civil Appeal No. 192 of 1976 which was preferred against the judgment and decree dated 31-3-1976 in Original Suit No. 503 of 1973 by which the 3rd Additional Munsif, Deoria, had dismissed the suit.

(2.) THE facts giving rise to this second appeal are : THE appellant had filed a suit for a decree of mandatory injunction for the removal of the disputed Palani, Nad and Khunta from the land situate at Gasalpur Tappa Gobarai, Pargana Salempur Majhauli, district Deoria, and also for a decree of possession over the land in suit or part thereof on the allegations that the respondents who were let out a room of the disputed premises had encroached upon the land vesting with the appellant and had thereafter constructed the impugned Palani, Nad and Khunta. THE respondents contested the suit and denied the plaint allegations It was categorically stated by the respondents that the impugned constructions were neither illegal nor unauthorised and as such were not liable to be removed. Necessary evidence in support of the respective contentions of the parties was adduced. THE trial court though finding the Palani having been constructed without the permission or consent of the landlord and to be unauthorised and of a permanent nature held that the impugned constructions existed on the part of the tenanted portion. It was also found that the impugned constructions did not cause any inconvenience to the appellant or other persons. Considering that the relief claimed was discretionary and was not liable to be granted the suit was dismissed with costs on parties.

(3.) IN M/s. Suraya Properties Private Limited v. B. N. Sarkar, AIR 1965 Cal. 408 a distinction between permanent structure and a temporary structure has been made and it has been held that a hut built with bamboo sticks and leaves would be a temporary structure in its nature. Pucca and permanent are by no menas synonymous terms and similarly Kuchcha and temporary do not mean the same thing. The real criteria is not whether a structure is made of Pucca bricks or of kuchcha bricks but is whether the idea in constructing the same was to retain it for ever or to demolish it after re-achieving certain objects. Undoubtedly if the constructions are of a permanent nature the lessee would not be competent to raise them, but if the same are of a temporary nature it would be within the rights of the lessee to raise them.