KSHIRODA MOYRE SEN Vs. ASHUTOSH ROY

JUDGEMENT

(1.) THIS second appeal by the defendant arises from a suit by the respondents for a permanent injunction against the defendant restraining him from erecting any permanent structure upon the land in suit which admittedly, the defendant holds as a monthly thika tenant under the plaintiffs and also for a mandatory injunction for demolishing that portion of the structure which has been already constructed upon the land without the knowledge and consent of the plaintiffs. The defense was that the defendant had a right to construct a permanent structure upon the suit land; secondly, that he was not erecting a permanent structure at all so that the plaintiffs were not entitled either to a permanent injunction to restrain the defendant from erecting the structure that he was actually erecting or a mandatory injunction for demolishing a portion already constructed. There was a commission for local inspection and the commissioner's report is Ext. 2. This report was marked an exhibit on admission of the parties without the commissioner being examined. The commissioner says that when he went to the place, he found that five laborers including Rajmistries and their assistants were at work and the defendant was supervising their work of construction. Heaps of bricks, sand and cement with other building materials were also noticed by him near the house in suit. He found a pucca structure having walls of 5 ins. brick work with cement joining consisting of two rooms one facing the south and the other facing west, separated by a verandah running from east to west. Then, he gives the measurements of the rooms. He also speaks of an old boundary wall outside the two rooms and also an old house of brick built walls with roof of corrugated iron sheets lying to the west of the room facing south. The eastern wall of this old house is a common wall between the old house and the newly-built room facing south. As regards the extent of the construction, the commissioner's report is that the northern wall of the south-facing room was raised to a height of 8 feet from above the plinth and was fitted with five windows and the eastern wall of the said room had been raised to a height of 5 ft. 9 ins. only and was fitted with two windows. The plinth of the rooms and verandah was 1 ft. 4 ins. from the ground level. No wall has yet been raised on the front side of the said room, i. e. on the southern side. Only two doors have been fitted with bricks of two layers at the bottom and supported by bamboos at the top. The eastern wall of the west-facing room was fitted with two windows, the southern wall was fitted with one window, the western wall was fitted with two windows and a door, and the northern wall had no windows. The eastern wall was raised to the height of 5 ft. 8 ins. , the southern wall to a height of 6 ft. 8 ins. the western wall to a height of 4 ft. 2 ins. and the northern wall to a height of 4 ft. 10 ins. On the basis of the commissioner's report, the Trial Court found that a permanent. structure was going to be built and, further, that under the terms of the kabuliyat (Ex. 1) which created the tenancy, the defendant was not entitled to put up any permanent structure. On these findings, the learned Trial Court decreed the suit restraining the defendant by a permanent injunction for raising a permanent structure on the suit land and also gave a mandatory injunction directing the demolition of the structure already raised. The learned lower Appellate Court confirmed these findings and the decree.

(2.) ON behalf of the appellant, it is first argued that the kabuliyat (Ex. 1) which created the tenancy was only far a term of three years and when that expired and the tenant held over, the tenancy was governed by the Transfer of Property Act and, therefore, the tenant was entitled to put up any kind of structure he liked as the law permitted. In support of this contention, reliance was placed on Section 116 of the Transfer of Property Act and two decisions namely, Dasarathi Kumar v. Sarat Chandra Ghosh, (1) 37 C. W. N. 971 and Trailakya Nath Roy v. Sarat Ch. Banerji, (2) 32 Cal. 123. Before dealing with this point, it is necessary to point out that the kabuliyat (Ex. 1) contains a dear stipulation which can be translated as follows:-

(3.) THIS kabuliyat is dated 4-3-22 and was for the term of three years. Admittedly, the tenant held over on the expiry of that term. Section 116 of the Transfer of Property Act is in these terms, "if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose-for which the property is leased, as specified in section 106. "