ANANDRAM T LATHI Vs. KASHINATH LATHI

JUDGEMENT

(1.) THIS is a tenants petition under Article 227 of the Constitution against the decision of the II Extra Assistant Judge, Jalgaon, allowing the plaintiffs appeal and setting aside the trial Courts order and decreeing the plaintiffs claim for possession. It is not necessary for the purpose of this petition to enumerate all the facts in details. It is enough to State that the respondents have filed a suit against the petitioner for possession of the suit premises after terminating the tenancy on the ground that the petitioner has erected permanent, structures on the suit premises without obtaining written permission of the landlords. It was the case of the plaintiffs that the petitioner was occupying one room is their house at Jalgaon as a tenant. The tenant has erected a wall in that room dividing that room into two. He has also fixed shutters with iron bars on the two door frames. He has done all this without obtaining written permission of the landlords. The petitioner denied to have erected the wall. It was his case that the wall was in existence even before he came to occupy the suit premises. So far as the door shutters with iron bars are concerned, it was his case that they were fixed by him as theft used to occur in the house and those shutters are fixed by wooden blocks which could be removed without damaging the door frames. The trial Judge framed the necessary issues and so far as the door shutters are concerned, he hold that they were not permanent structures and the plaintiffs were not entitled to evict the defendant on that ground. So far as the wall was concerned, the wall was erected there before the petitioner occupied the suit premises. The plaintiffs filed an appeal before the District Court which was heard by the II Extra Assistant Judge, Jalgaon, who affirmed the finding of the trial Court that the wall was in existence before the petitioner occupied the suit premises. So far as the door shutters are concerned, he held that they were permanent structures and that they were erected without obtaining written permission of the landlords and therefore, the landlords were entitled for possession under Clause (b) of sub-section (1) of section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called as the Rent Act ). He therefore, allowed the appeal and decreed the plaintiffs claim for possession. It is against this judgment that the present petition has been filed. The petitioner had earlier engaged Counsel but they withdrew their appearance and the petitioner argued the matter personally. He urged that the door shutters were mounted on three wooden blocks which were fixed on the door frames and those blocks can be removed easily without damaging the door frames and, therefore, he has not erected permanent structure without obtaining written permission of the landlord. In my opinion, the submission is well-founded and this is exactly what the trail Judge has found. The Appellate Judge relying on the decision in the case of (Poona Municipal Corporation v. Shankar Ramkrishna) 60 Bom.L.R. 25 held that this was a permanent structure. In my opinion, that case had no application to the present case because in that case the Court has interpreted the word building as defined under sub-section (2) of section 5 of the Bombay Provincial Municipal Corporation Act. It has nothing to do with what amounted to the permanent structure. It is well established that what amounts to permanent structure for the purpose of the Rent Act and the Transfer of Property Act is, a question of fact. It depends upon the intention of the person who erects and also upon the structure erected and the property on which it is erected. Here, there is no doubt that the door shutters can be removed by unscrewing the blocks which are fixed to the door frams without any way damaging the door frames. That being so, it cannot be said that the petitioner has erected a permanent structure and for that purpose it was not necessary to obtain written permission of the landlord. The order of the Appellate Court cannot, therefore, be sustained and, therefore, deserves to be quashed. In the result, the petition is allowed and the rule is made absolute. The order and the judgment of the Appellate Court is set aside and that passed by the trial Court is restored. The petitioner had unnecessary to make trips to Bombay on three occasions and, therefore, he is entitled for costs which are quantified at Rs. 10000. The petitioner is awarded costs throughout.