KRISHNADAS ROY Vs. BASANTA KUMAR SETT AND ANOTHER

JUDGEMENT

(1.) This appeal arises out of a suit for eviction from one bed room in the first floor and one kitchen room with the right of user of common bath, privy and filtered water tap in the ground floor of premises No. 56/1, Pathuriaghata Street, Calcutta. The defendant was monthly tenant at the rate of Rs. 40.00 per month according to the English Calendar. It is stated that the defendant-tenant is liable to be evicted on the ground that the defendant is a habitual defaulter in payment of rent since the month of August, 1966 and the defendant has done acts contrary to the provisions of clauses (m), (o) and (p) of section 101 of the Transfer of Property Act by blocking the passage varandah in front of his bed room with a door installed in front of it and converting the said passage varandah into a room and using the same for cooking purpose causing damages and material deterioration of the condition of the building. The tenant defendant denied that he was defaulter. It is stated that he became a tenant in respect of one bed room on the first floor and one kitchen room with the right of user of common bath, privy and filtered water tap in the ground floor of premises No. 56/1, Pathuriaghata Street at a monthly rental of Rs. 35.00 per month and that there was a new tenancy created through fresh offer and acceptance of rent on both sides of the plaintiffs granting fresh rent-receipt of Rs. 35.00 per month. It is stated further that the alteration of the tenancy of the premises by which the defendant and the plaintiffs agreed to alter the original premises by substituting a new premises whereby the defendant gave up his possession of the demarcated eastern portion of the southern verandah with the drain included within his tenancy in favour of the plaintiffs in order to make it a new compact premises at the rate of rent Rs. 35.00 per month. Th: defendant denied that he has done any act contrary to the provision of clause (m), (o) and (p) of section 108 of the Transfer of Property Act by blocking the passage verandah in front of his bed-room with a door installed in front of it. On these pleadings, the parties cairn to trial. The court below found that the defendant was a defaulter in payment of rent and negatived the plea of the novation of the contract of the defendant, it was found that the tenant has made some alteration without the consent of the plaintiff landlords in respect of the passage by fixing a door and converting the said passage into a room for the purpose of cooking etc. This passage is only a passage leading to the tenancy. Th: tenant can get ingress and egress to his tenanted portion. Admittedly this was not the tenanted portion but without which the tenanted portion cannot be used at all.

(2.) Mr. Janardan Chakraborti on behalf of the appellant contended that the notice is bad as the suit premises has not been properly described in the notice and secondly there cannot be any ejectment because the tenant has erected some structure in the portion of the landlords premises which is not a subject-matter of the tenancy or in the other words, section 108 (m), (o) and (p) of the Transfer of Property Act is not applicable in respect of the premises outside the tenancy.

(3.) It is true that the premises for which ejectment suit has been Sled has been described in the plaint as comprising one bed-room in the first floor, one kitchen room with right of user of common privy, bath and filtered water tap in the ground floor. It is in evidence which has been found by the Court below that without the use of the eastern covered varandah the egress and ingress from the tenancy is not possible. It has also been found in evidence by the Court below that the tenant blocked the only passage to his tenanted room by fixing door and thereby converting the said passage into a room without the knowledge and consent of the landlord. In our opinion any construction in the said passage will come within the mischief of section 108 (m), (o) and (p) of the Transfer of Property Act thereby giving the landlord a right to get an eviction under section 13 of the West Bengal Premises Tenancy Act. It is no answer to say that he is not a tenant in respect of the portion which has not been delineated in the notice determining the tenancy. There are several tenants in the said premises and there is a common entrance for all of them and it is not open to any one of such tenants to block any portion of the common passage so that other tenants cannot have ingress and egress to their tenancies. Can it be said that in doing so the tenant has not made any construction whatsoever in the subject-matter of the tenancy and thereby the suit for eviction must necessarily fail ? In our opinion for the reasonable interpretation of the statute this will be violation by the tenant of the statute itself. It is not possible to hold that because in the present case the defendant was a tenant in respect of one room in the first floor and one kitchen room on the ground floor with common bath and privy, the tenant is not liable to be evicted because he has converted the passage into a room by fixing a door leading to his tenancy. If a landlord gets a decree for eviction the tenant cannot continue to possess the passage on the plea that it is not a part of the tenancy and therefore, in our opinion, if the construction is made as is found in this case in respect of the passage leading to his tenancy, the tenant will be liable to be evicted on the ground of section 13 being in violation of section 108 (p) of the Transfer of Property Act.