ALLAHABAD BANK Vs. SOURENDRA NATH SHAW

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated the l4th February, 1989 passed by the Judge, 10th Bench City Civil Court, Calcutta in Ejectment Suit No. 813 of 1979, by which the learned trial Court granted a decree in favour of the respondent-plaintiffs for recovery of khas possession of the suit premises by evicting the appellant-defendant therefrom. The respondents-plaintiff as joint receivers appointed to the estate of a Hindu Deity which included the suit-premises, filed the suit for eviction of the tenant, namely, the appellant-defendant from the suit premises. The landlord-tenant relationship between the parties is not in dispute. The appellant is a Bank, namely, the United Industrial Bank Limited subsequently substituted by Allahabad Bank. There are two rooms in the suit-premises, namely, room Nos. 15 and 16 on the floor of the premises No. 24 of the Netaji Subhas Road, Calcutta-1 occupied by the said Bank for office purpose at a rental of Rs. 290.25 paise per month according to the English calendar month. Admittedly, the tenancy is governed by the provisions of the West Bengal Premises Tenancy Act. The suit for eviction was filed on two grounds. The first ground was default in payment of rent which ground however did not materialise as the defendant was found entitled to protection from eviction on that ground. The other ground on which the eviction was sought, was stated in paragraph 6 of the plaint. The case pleaded in the paragraph 6 of the plaint by the plaintiffs is that in or about March, 1977 the defendant without the knowledge and consent of the plaintiffs constructed a bath room and privy inside the demised premises and in construction the said privy the defendant made an opening in the floor and fixed a pan with siphon and latrine pipes therein projecting inside the room below let out to another tenant M/s. A. D. Coomar and Sons. It is further stated in the said paragraph 6 of the plaint that soiled water perculating from the said bath room and privy is causing damage to the properties of the paid tenant and that in spite of repeated protests and objections the defendant has not removed the said offending constructions and installation which contravene the provisions of clauses (m) and (p) of Section 108 of the Transfer of Property Act. The respondents-plaintiffs therefore prayed for khas possession of the suit premises. The appellant-defendant contested the suit by filing a written statement. Paragraph 6 of the plaint as mentioned above has been dealt with by the defendant in paragraph 12 of the written statement. It is stated by the defendant in paragraph 12 of the written statement that the allegations contained in paragraph 6 of the plaint are baseless, motivated and have been made with some ulterior motive and the same are denied. It is further denied in the said paragraph 12 of the written statement that without the knowledge and consent of the plaintiff a bath-room and privy has been constructed inside the tenancy or any, opening of the floor was made by the defendant to fix a pan in the bath-room and privy as alleged or at all. It is also denied that there has been any contravention of the provisions of clauses (m) and (p) of Section 108 of the Transfer of Property Act as alleged or at all. In the trial Court an Engineer Commissioner was appointed by the Court on the application of the plaintiffs for making an inspection at the locale and for submission of report. In due course the Commissioner, after inspection, submitted his report before the trial Court. The learned Court below on consideration of the evidence on record including the report of the Commissioner held that the defendant made opening in the floor and fixed a pan with siphon and latrine pipes projecting inside the room below and further held that the defendant was guilty of committing mischief under clause (m) of Section 108 of the T.P. Act and found the defendant liable to eviction on that ground. The learned Court below however held that the plaintiffs miserably failed to substantiate the allegation about commission of mischief of clause (p) of Section 108, T.P. Act. However being aggrieved by the decree of eviction granted by the learned Court below in favour of the respondents -plaintiffs the appellant-defendant has preferred the present appeal

(2.) It may be noted here that somehow at the time of hearing of the suit, it seems, a controversy arose whether the concerned bath and privy were within the original tenancy of the defendant or these were subsequently constructed by the defendant outside the limits of the tenancy. The learned Court below however found that the bath and privy were within the tenancy. Indeed it is also the case of the plaintiffs in the plaint that the plaintiffs constructed a bath and privy inside the demised premises (vide, Paragraph 6 of the plaint). Therefore it is an acknowledged fact that the bath and privy are located within the demised premises. It is however the specific case of the plaintiffs that the defendant made opening in the floor and fixed a pan with siphon and latrine pipes therein which were projecting inside the room down below that was let out to another tenant M/s. A. D. Coomar and Sons. As we have seen, the defendant in the written statement did not plead any specific case as to when the pan with the siphon and latrine pipes was fixed but in evidence the defendant tried to make out a case that they had done the works with the consent of the landlords, namely, the plaintiffs. In this connection we may refer to Ext. 1 which is a letter dated the 28th December, 1976 written by the Branch Manager of the defendant Bank to the Joint Receivers, namely, the plaintiffs. In that letter the Branch Manager of the defendant Bank informed the Joint Receivers that the Bank had been renovating the premises concerned and such renovation included conversion of electric line from D.C. to A.C. repairing of latrine and interior decoration works. In reply to the said letter the joint Receivers by their letter dated 12-1-1977, Ext. 2, wrote to the Bank that they had no objection to the Bank carrying out necessary works of repair and renovation to the Bank's premises, provided they did so entirely at their own cost and did not make any structural additions and/or alterations and did not cause any damage to the property. It was also written in that letter that the Bank should not enlarge the water supply pipes or instal additional taps which might interfere with the supply of water to the other tenants. These two letters were included in the list of documents relied upon by the plaintiffs as annexed to the plaint. In the written statement nothing was mentioned by the defendant about these two letters. However the defendant wanted to develop their case later that whatever works they did for the purpose of renovation in the suit premises were done with the consent of the landlords as would be evident from the said letter of the landlords dated 12-1-1977, Ext. 2. On the other hand the stand of the respondents plaintiffs is that the defendant Bank exceeded the limits of permission granted to them by the landlords for renovation. It is submitted on behalf of the respondents-plaintiffs that in the consent letter dated 12-1-1977, Ext. 2, the landlords while expressing 'no objection' regarding necessary works of repair and renovation, however made it specifically and expressly clear that in making such repair and renovation the Bank would not make any structural additions and/ or alterations and would not cause any damage to the property.

(3.) It has also come in evidence that M/s. A. D. Coomar and Sons are occupying the room on the ground floor immediately below the suit premises in the first floor occupied by the defendant Bank and the said ground floor occupant is also a tenant under the same landlords and they are using the said ground floor room as godown. Ext. 7 is a letter dated 22-4-1977 written by a partner of the firm occupying the said ground floor as tenant, to the officer-in-charge of Hare Street Police Station. In that letter it is complained that at the time of opening their godown at 3.00 p.m. on 22-4-1977 it was found that unauthorised construction work was done in the first floor by the contractor of the United Industrial Bank; the tenant of the same building. It is further stated in the said letter that the Bank had installed one lavatory pan, iron cast pipe inside and outside the godown which were really unauthorised.