DHANAPATI DUTTA Vs. GITA DUTTA AND OTHERS

JUDGEMENT

(1.) In the suit for ejectment against the tenants-respondents, giving rise to this appeal, the landlord-appellant urged several grounds, but his learned counsel Mr. Bhaskar Bhattacharjee has urged before us only one ground, namely, the tenants-respondents having erected permanent structures on the premises in violation of the provisions of Clause (p) of Section 108 of the Transfer of Property Act have rendered themselves liable to be evicted under Clause (b) of Section 13(1) of the West Bengal Premises Tenancy Act, 1956.

(2.) Though the learned trial Judge has dismissed the suit, he has nevertheless found that "admittedly" and "undisputably" some construction by way of additions and alterations were made in the suit premises. But on the evidence on record and in view of the suggestions put forward on behalf of the plaintiff-landlord to the defendant No. 3, the learned Judge was inclined to hold that those additions and alterations were made, not by the present defendants, but by their predecessor-in-interest who was the original tenant and the learned Judge had concluded that "that being the position, the landlord ought to have sued the original tenant". We are afraid that the learned Judge has made an entirely erroneous approach. If a tenant violates the provisions of clause (p) of Section 108 of the Transfer of Property Act by constructing permanent structures and thereby incurs ejectibility under clause (b) of Section 13(1) of the West Bengal Premises Tenancy Act, his heirs on his death, while acquiring the right to the tenant by inheritance, would inherit the liability to ejectment also. The right to sue a tenant arising under Section 13(1)(b) of the Premises Tenancy Act for violation of Section 108(p) of the Transfer of Property Act is not a bare personal cause of action de hours the premises which is to die with the death of the tenant, but is a cause which would continue to be actionable against the heirs who inherit the tenancy. If the ratio of the decision of the learned trial Judge is to be accepted, then a landlord would be without any remedy if a tenant dies soon after committing the default in payment of rents or after sub-letting the premises without the consent of the landlord or after constructing permanent structures without such consent. That is, however, not the position in law. But even though in our view the defendants would have been liable for the constructions, if any, made by their predecessor-in-interest, we do not think that there are materials on record to prove that the defendant or their predecessors constructed structures which are to be regarded as permanent within the meaning of Section 108(p), Transfer of Property Act to come within the mischief of Section 13(1)(b) of the Premises Tenancy Act.

(3.) The plaintiff in paragraph 7 of the plaint has come out with a definite case that the defendants "have raised pucca structures....thereby causing serious damage to a large extent and damaged the main wall of the said showroom by removing the main wall....and thereby changed the character of the property". In the deposition of the plaintiff, figuring as P.W. 1 the only evidence about the erection of any structure is that "they have also erected a platform" and "have created an additional room by partitioning the suit room". There is, however, no evidence that the platform or the partition was pucca. A Commissioner was appointed in this case for local investigation, but there is also nothing in his deposition or report to show that any of the structures alleged to have been made by the original tenant or the present tenants was pucca. The plaintiff, therefore, must be taken to have failed to prove the case made out in the plaint that pucca structures have been constructed by the tenants or their predecessor without the consent of the landlord.