AKSHAY KUMAR SAHA Vs. KAMINI KUMAR SAHA

JUDGEMENT

(1.) The plaintiff in the suit in which this appeal has arisen, prayed for relief by way of permanent injunction in the matter of a masonry structure described as mantop, and for a declaration of his right to demolish the same in case the brick-built structure of a permanent nature were completed during the pendency of the litigation. The case of the plaintiff before the Court was that the defendants were tenants at will, and had no right to have a permanent pucca structure in their homestead. The claim of the plaintiffs in the suit was resisted by the defendants, who asserted that they were raiyats with rights of occupancy, and were under the law entitled to build a permanent pucca mantop on their homestead, as a part of their dwelling house.

(2.) According to the finding arrived at by the Courts below, the defendants were occupancy raiyats, and a mantop in the defendants house has existed for several generations. The mantop was formerly roofed with corrugated iron sheets and had pucca plinth. The defendants were now "after pulling down the old mantop erecting a pucca mantop with bricks on the old site." The question before the Court below, on the finding arrived at by it was whether the defendant had any right to erect a pucca structure like the building under construction; could the structure be called an improvement within the meaning of Section 76(2)(f) Ben. Ten. Act?

(3.) There can be no question that the structure sought to be raised, and which had almost been completed at the time when the case was pending before the Court of appeal below, was an appurtenance of the dwelling house of the defendants. The mantop was in existence for a very long time, as a house for performing the annual pujas performed by orthodox Hindus having faith in the religion of their forefathers and in the forms of worship practised by them, and having also sufficient means and the inclination to perform them. The erection of a dwelling house suitable to the requirements of the tenants having rights of occupancy in them, has always been considered to be within their rights; and the erection of a dwelling house whether of masonry, bricks, stone or any other material whatsoever, for the tenant and his family, together with all necessary out-offices, has now been recognised as an "improvement" as contemplated by the Bengal Tenancy Act: Section 76(2)(f). The question then arises whether a particular structure or any work executed by the tenant of a holding substantially diminishes the value of his landlord's property: Section 76(3). This latter provision contained in the Bengal Tenancy Act was recognised on the principle that every man who possessed a right to hold the land permanently, that is of a right of occupancy, can do what he likes with the land, so long as he does not injure it to the landlord's detriment (see in this connexion Nayamatoolah V/s. Gobind Charan (1866) 6 WR (Act 10) 40.