DHARSIBHAI PANACHAND SHAH Vs. SAMARATBAI LILACHAND SHAH

JUDGEMENT

(1.) THIS is a Special Civil Application under Article 227 of the Constitution of India filed by the heirs of the original defendant -tenant in a suit filed by respondent No. 1 to recover possession of the suit premises consisting of one room on the 1st floor of a building in Poona, on the ground that the tenant had damaged the suit room and had constructed a kitchen platform and water storage tank without the consent given in writing from the landlady.

(2.) ON a careful consideration of the oral and documentary evidence, the learned Judge of the Small Causes Court, Poona, by his judgment and decree dated January 12, 1971, dismissed the plaintiff's claim for possession as he found that no damage was caused to the room as required under Section 13(1)(a) and the water storage tank and the kitchen platform in the suit -room in cement and bricks were made with the oral consent of the plaintiff and the water storage tank measuring 3' -1' long, 2' -6' height and 1' -9' width and the kitchen platform 4' -6' long, 1' -6' width and 2' -7' height were not permanent structures, observing as follows in his judgment: It is admitted at the trial by defendant Prabhawatibai that the deceased defendant constructed a water storage tank and a kitchen platform in the suit room in cement and bricks and that was done with oral consent of the plaintiff. Plaintiff herself did not step into the witness box to contradict Prabhawatibai. I, therefore, believe Prabhawatibai and hold that these constructions were made with the oral consent of the plaintiff. Now, the Commissioner has submitted his report at Exh. 23 and he has reported that the water storage tank is 3' -1' long, 2' -6' is the height and 1' -19' is the width. He has also reported that the kitchen platform is 4' -6' long and 1' -61/2' in width and the width and the height is 2' -7'. According to the defendant they are not permanent constructions but, temporary one. As regards the measurement there is no dispute. The Commissioner has opined that these are permanent constructions. Plaintiff has not examined the Commissioner to prove his opinion. Plaintiff herself has not stepped into the witness box to contradict the defendant. Moreover, I have held above that these constructions were made with the plaintiff's oral consent. If at all they were of a permanent nature plaintiff would not have allowed the defendant to make these constructions. I, therefore, hold that the construction in question are of a temporary nature and, therefore, written consent of plaintiff is not at all necessary in the instant case.

(3.) THE said finding of the learned District Judge is challenged in the above petition under Article 227 of the Constitution of India, firstly on the ground that the principles enunciated by the learned Judge are not exhaustive; common sense should not depart from the Courts when considering those principles; and it was wrong on the part of the learned District Judge to have paraphrased those principles to mean 'substantial structure' and what he felt as to the intention to enjoy the structure permanently forgetting that what was done was to have a water storage tank and a kitchen platform, which could be removed at any time when the tenant did not like to keep them, whether before or after the tenancy was terminated; and which the tenant offered to remove in the very written -statement, which he had filed in the present case and even in reply to the notice of termination given by the landlady.