BHAGABAN BISWAS Vs. BEJOY SINGH NAHAR

JUDGEMENT

(1.) THIS Full Bench Reference have been made by a Bench consisting of Pradyot Banerjee and B. N. Maitra, JJ. under Chapter VII, Rule 3 of the Appellate Side Rules. Two questions have been referred to the Full Bench. These questions are:

(2.) THE appellant was a tenant under the plaintiff in respect of the upper western flat on the first floor of premises No. 3/B, European Asylum Lane, now named as Abdul Halia Lane. A decree for eviction was passed against the appellant on the ground of unauthorised and permanent construction contrary to the provisions of Section 108 (m), (o) and (p) of the Transfer of Property Act. Before the Division Bench of Banerjee and B. N. Maitra, JJ. Mr. Mitra appearing for the appellant contended that in view of the finding of an unauthorised construction of a permanent nature it was difficult for him to argue that the case did not come within the mischief of Section 108 (m), (o) and (p) of the Transfer of Property Act, in particular, clause (p). Mr. Mitra submitted before the Division Bench that he was agreeable to remove the offending structure and the decree should be set aside. Learned Counsel relied on the judgment of the Supreme Court in Brij Kishore v. Vishwa Mitter Kapur, AIR 1965 SC 1574.

(3.) THE Supreme Court in construing the above provisions and similar provisions in the 1958 Act has observed in paragraph 7 at page 1577 of the judgment that: