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     REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.      7710      OF     2012   (Arising out of S.L.P. (C) No.4629 of 2008)

Purushottam Das Bangur & Ors. …Appellants

Versus

Dayanand Gupta …Respondent

J     U     D     G     M     E     N     T   

1. Leave granted.

2. This appeal arises out of a judgment and order  

passed by the High Court of Calcutta whereby Civil  

First Appeal No.290 of 1986 filed by the respondent-

tenant has been allowed, the judgment and decree  

passed by the trial Court set aside and the suit for  

eviction filed by the plaintiff-appellant against the  

defendant-respondent dismissed.   

3. A residential premise comprising two rooms

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with a gallery situate at the first floor bearing no.95-A,  

Chittaranjan Avenue, Calcutta and owned by Gauri  

Devi Trust of which the appellants are trustees was let  

out to the respondent-tenant on a monthly rental of  

Rs.225/-. One of the conditions that governed the  

jural relationship between the parties was that the  

tenant shall not make any additions or alterations in  

the premises in question without obtaining the prior  

permission of the landlord in writing. Certain  

differences appear to have arisen between the parties  

with regard to the mode of payment of rent as also  

with regard to repairs, sanitary and hygiene conditions  

in the tenanted property which led the landlord-  

appellant to terminate the tenancy of respondent in  

terms of a notice served upon the latter under Section  

106 of the Transfer of Property Act read with Section  

13 (6) of West Bengal Premises Tenancy Act, 1956.  

Since the respondent-tenant did not oblige, the  

plaintiff-appellant  instituted Ejectment Suit No.391 of

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1976 in the City Civil Court at Calcutta asking for  

eviction of the former inter alia on the ground that  

respondent- tenant had illegally and unauthorisedly  

removed the corrugated tin-sheet roof of the kitchen  

and the store room without the consent of the  

appellant-landlord and replaced the same by a cement  

concrete slab apart from building a permanent brick  

and mortar passage which did not exist earlier.  These  

additions and alterations were, according to the  

plaintiff-appellant, without the consent and permission  

of the Trust and, hence, violative not only of the  

provisions of clauses (m), (o) and (p) of Section 108 of  

the Transfer of Property Act, 1882 but also the  

conditions stipulated in the lease agreement executed  

between the parties. Eviction of the respondent was  

also sought on the ground that the respondent and his  

family members were using the passage constructed  

by them for creating nuisance and peeping into the  

bedroom of Shri Bharat Kumar Jethi, another tenant

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living on the second floor of the premises.  

4. The defendant-respondent contested the suit  

primarily on the ground that his tenancy had not been  

terminated in terms of the notice allegedly issued by  

the landlord and that there was no violation of the  

provisions of clauses (m), (o) and (p) of Section 108 of  

the Transfer of Property Act.  A Court Commissioner  

deputed by the trial Court carried out a local  

inspection of the suit premises on 12th July, 1978 in  

presence of the parties. The Commissioner formulated  

five different points for local inspection and answered  

the same in the report submitted to the Court.  One of  

the aspects on which the Commissioner made a report  

related to the existence of a passage leading to the  

concrete roof of the kitchen and the store space.  The  

Commissioner appears to have found that the kitchen  

and store space had a concrete cemented plastered  

roof with a small window inside the kitchen.

5. Long after the Commissioner’s report was

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submitted to the trial Court, the tenant filed an  

additional written statement in which he for the first  

time took the stand that although he was inducted  

into the premises, comprising two rooms and two  

small rooms with corrugated tin-sheet for a roof, the  

latter required replacement on account of the tin-

sheet roof getting worn out.  It was further submitted  

that it was only on repeated demands of the  

defendant-tenant that the landlord had replaced the  

said corrugated tin-sheet by putting a cement  

concrete slab over the kitchen and store room. He  

further alleged that he had not made any alterations  

or additions or committed any act contrary to clauses  

(m), (o) and (p) of Section 108 of the Transfer of  

Property Act.   

6. On the pleadings of the parties, the trial Court  

raised as many as eight issues in the suit and allowed  

parties to adduce their evidence. In support of his  

case the plaintiff examined four witnesses while three

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witnesses were examined by the defendant-tenant. A  

careful appraisal of the evidence so adduced led the  

trial Court to the conclusion that the plaintiff had made  

out a case for the grant of a decree for ejectment of  

the respondent-tenant.  The trial Court in the process  

held that the removal of the tin-sheet roof over the  

kitchen and store room and its replacement with a  

concrete slab was carried out by the respondent-

tenant and not by the plaintiff-trust.  In coming to that  

conclusion, one of the circumstances which the trial  

Court mentioned was the fact that the defendant had  

not made any whisper in the first written statement  

filed by him about the construction of the concrete  

roof having been undertaken by the landlord.  The  

story that the landlord had replaced the tin roof by a  

concrete slab was propounded belatedly and for the  

first time in the supplementary written statement. The  

trial Court observed:

“Lastly, it must not be lost sight of that when  the defendant first filed the written statement  there was no whisper from the side of the

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defendant that the construction was made by  the landlord for the convenience of the tenants.  This story was first propounded by the  convenience of the tenants.  This story was first  propounded by the defendant by filing an  additional written statement in 1983 i.e. about  seven years after the institution of the suit.  This  belated plea of the defendant should be taken  with the grain of salt.”

7. The trial Court accordingly held that it was the  

defendant-tenant who had made a permanent  

structural change in the premises in violation of the  

conditions stipulated in the lease agreement and in  

breach of the provisions of Section 108 of the Transfer  

of Property Act.  The trial Court further held that the  

tenant had not, while doing so, obtained the written  

consent of the landlord.  The trial Court also found  

that the legal notice for determining the tenancy of  

the respondent-tenant had been served upon him and  

accordingly decreed the suit.    

8. Aggrieved by the judgment and decree passed  

against him, the tenant-respondent herein appealed to  

the High Court of Calcutta which appeal has been  

allowed by the Division Bench of that Court in terms of

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the Order impugned before us. While the High Court  

has not disturbed the finding of fact recorded by the  

trial Court that the replacement of the tin-sheet by a  

concrete slab was undertaken by the respondent-

tenant, it has reversed the view taken by the trial  

Court on the ground that any such replacement of the  

roof did not tantamount to violation of clauses (m), (o)  

and (p) of Section 108 of the Transfer of Property Act.  

The High Court held that since the replacement of the  

tin-sheet roof by cement concrete slab did not result in  

addition of the accommodation available to the tenant,  

the act of replacement was not tantamount to the  

construction of a permanent structure. The  

replacement instead constituted an improvement of  

the premises in question, observed the High Court.  In  

support the High Court placed reliance upon the  

decisions of this Court in Om Prakash v. Amar  

Singh  AIR 1987 SC 617 and Waryam Singh v.  

Baldev Singh (2003) 1 SCC 59 .

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9. The High Court also relied upon an earlier  

decision of that Court in Ratanlal Bansilal & Ors. v.  

Kishorilal Goenka & Ors. AIR 1993 Cal 144  and  

held that unless a case of waste or damage is proved,  

there can be no violation of clauses (m), (o), (p) of the  

Transfer of Property Act. The High Court held that  

proof of waste and damage because of the  

construction of a cement concrete roof over the  

kitchen and store space and the construction of a  

brick-built passage for reaching the roof of that area  

was completely absent in the instant case.  The High  

Court, on that basis, set aside the judgment of the  

trial Court and dismissed the suit filed by the  

appellant.   

10. Section 13 of the West Bengal Premises  

Tenancy Act 1956, starts with a non-obstante clause  

and forbids passing of an order or decree for  

possession of any premises by any Court in favour of  

the landlord and against the tenant except on one or

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more of the grounds stipulated therein.   

11. Among other grounds stipulated in Section 13  

of the Act is the ground that the landlord can sue for  

eviction of the tenant where the tenant or any person  

residing in the premises let to the tenant has done any  

act contrary to the provisions of clauses (m), (o) or  

(p) of Section 108 of the Transfer of Property Act,  

1882. Section 13 (1) (b) reads thus:

“13. Protection of tenant against eviction.—(1)  Notwithstanding anything to the contrary in any  other law, no order or decree for the recovery of  possession of any premises shall be made by  any court in favour of the landlord against a  tenant except on one or more of the following  grounds, namely: (a) * * * (b) where the tenant or any person residing in  the premises let to the tenant has done any act  contrary to the provisions of clause (m), clause  (o) or clause (p) of Section 108 of the Transfer  of Property Act, 1882 (4 of 1882);”

12. Clauses (m), (o) and (p) of Section 108 of the  

Transfer of Property Act referred to in clause 1 (b) of  

Section 13 (supra) may also be extracted at this stage  

:

“108. Rights and liabilities of lessor and lessee.

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—In the absence of a contract or local usage to  the contrary, the lessor and the lessee of  immovable property, as against one another,  respectively, possess the rights and are subject  to the liabilities mentioned in the rules next  following, or such of them as are applicable to  the property leased: * * * (m) the lessee is bound to keep, and on the  termination of the lease to restore, the property  in as good condition as it was at the time when  he was put in possession, subject only to the  changes caused by reasonable wear and tear or  irresistible force, and to allow the lessor and his  agents, at all reasonable times during the term,  to enter upon the property and inspect the  condition thereof and give or leave notice of any  defect in such condition; and, when such defect  has been caused by any act or default on the  part of the lessee, his servants or agents, he is  bound to make it good within three months after  such notice has been given or left;

* * * (o) the lessee may use the property and its  products (if any) as a person of ordinary  prudence would use them if they were his own;  but he must not use, or permit another to use,  the property for a purpose other than that for  which it was leased, or fell or sell timber, pull  down or damage buildings belonging to the  lessor, or work mines or quarries not open when  the lease was granted or commit any other act  which is destructive or permanently injurious  thereto;

(p) he must not, without the lessor's consent,  erect on the property any permanent structure,  except for agricultural purposes;”

13. The appellant has in the case at hand pressed

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into service clause (p) of Section 108 (supra)  

inasmuch as, according to the appellant, the  

respondent-tenant had without his consent erected on  

the demised property a permanent structure which  

rendered him liable to eviction under Section 13 (1)  

(b) extracted above. The question, however, is  

whether the alterations which the respondent-tenant  

is found by the Courts below to have made  

tantamount to erection of a “permanent structure”  

within the meaning of clause (p) of Section 108 of the  

Act (supra).  The expression “permanent structure”  

has not been defined either under the West Bengal  

Premises Tenancy Act, 1956 or in the Transfer of  

Property Act, 1882. The expression has all the same  

fallen for interpretation by the Courts in the country  

on several occasions. We may briefly refer to some of  

those pronouncements at this stage.

14. In Venkatlal G. Pittie & Anr. v. Bright Bros.  

Pvt. Ltd. (1987)  3  SCC 558, the landlord alleged

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that the tenant had without his consent raised a  

permanent structure in the demised premises. The  

trial Court as also the first appellate Court had taken  

the view that the construction raised by the tenant  

was permanent in nature.  The High Court, however,  

reversed the said finding aggrieved whereof the  

landlord came up to this Court in appeal. This Court  

referred to several decisions on the subject including a  

decision of the High Court of Calcutta in Suraya  

Properties Private Ltd. v. Bimalendu Nath Sarkar  

AIR 1965 Cal 408 to hold that one shall have to look  

at the nature of the structure, the purpose for which it  

was intended to be used and take a whole perspective  

as to how it affects the enjoyment and durability of  

the building etc. to come to a conclusion whether or  

not the same was a permanent structure. This Court  

approved the view taken in Suraya Properties  

Private Ltd. v. Bimalendu Nath Sarkar AIR 1965  

Cal 408 and Surya Properties Private Ltd. & Ors.

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v. Bimalendu Nath Sarkar & Ors. AIR 1964 Cal 1,  

while referring to the following tests formulated by  

Malvankar J. in an unreported decision in Special Civil  

Application No.121 of 1968:  

“(1) intention of the party who put up the  structure; (2) this intention was to be gathered  from the mode and degree of annexation; (3) if  the structure cannot be removed without doing  irreparable damage to the demised premises  then that would be certainly one of the  circumstances to be considered while deciding  the question of intention. Likewise, dimensions  of the structure and (4) its removability had to  be taken into consideration. But these were not  the sole tests. (5) The purpose of erecting the  structure is another relevant factor. (6) The  nature of the materials used for the structure  and (7) lastly the durability of the structure”.

15. In Surya Properties Private Ltd. & Ors. v.  

Bimalendu Nath Sarkar & Ors. AIR 1964 Cal 1 a  

Special Bench of the High Court of Calcutta was  

examining the meaning of the expression “permanent  

structure” appearing in Clause (p) of Section 108 of  

the Transfer of Property Act, 1882. The Court held  

that whether a particular structure is a permanent  

structure or not is a question that depends on the

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facts of each case and on the nature and extent of the  

particular structure as also the intention and purpose  

for which the structure was erected. No hard and fast  

rule, declared the Court, could be laid down for  

determining what would be a permanent structure for  

the purposes of Section 108 (p) of the Transfer of  

Property Act.  When the very same case came up for  

final adjudication on merits before a Division Bench of  

the High Court of Calcutta, the High Court in its order  

dated 20th March, 1964 reported in Suraya  

Properties Private Ltd. v. Bimalendu Nath Sarkar  

AIR 1965 Cal 408 held that the expression  

“permanent structure” did not mean ‘everlasting’. The  

word “permanent” had been used to distinguish it from  

“temporary” and that while a lessee has the power to  

raise any type of temporary structure, he has no  

power to raise a permanent structure. The Court held  

that on a true construction of Section 108 (p) Transfer  

of Property Act the words “permanent structure” could

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only mean a structure that lasts till the end of the  

term of the lease and does not mean “everlasting” nor  

does it mean a structure which would last 100 years or  

50 years.  The Court observed:

“In all these cases condition (p) will operate. The  phrase “permanent structure”  does not mean  “ever lasting”.  But the word “permanent”  has  been used to distinguish it from “temporary”. A  lessee has the power to raise any type of  temporary structure, but he has no power to  raise a permanent structure. The word  “permanent” is also a relative term, because the  absolute meaning of the word “permanent”  is  “ever lasting”.  But we cannot accept the  meaning if the word “permanent”  is a relative  term, the question is, - relative of what?  The  answer immediately is – for purposes of Section  108(p) relative to the term of the issue.  Therefore, the word “permanent”  means “which  lasts till the end of the term of the lease”  and  does not mean “ever lasting”  nor does it mean  “which would last 100 years or 50 years”. The  term, as stated above, is a relative one and the  relation here is to the period of the lease.  There  may be a lease from month to month or from  year to year and we do not know when the lease  is going to terminate.  But the meaning of the  words “permanent structure”  would be that the  lessee intended that he would enjoy the  structure that he raises as long as he be  continuing in possession. That period may be  definite, that period may be indefinite.  But that  period is the period of the lease and the person,  namely, the lessee, who constructs the  structure, should have an intention to use it as  long as he remains a lessee.”

16. Applying the above to the case before it, the

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High Court held that the tenant in that case had  

constructed a kitchen which he intended to use till the  

time he remained in occupation.  The Court found that  

the case before it was not one where the tenant had  

constructed the structure for a special purpose like a  

marriage in the family. Any structure which was used  

for any such limited period or definite event, function  

or occasion, even if made of bricks and mortar would  

not amount to building or erecting a permanent  

structure.  The Court observed:

“A person raises a struct (sic) for the purpose of  a marriage in the family. There he intends to use  it only during the occasion and has no intention  to use it thereafter and intends to remove the  structure thereafter. We cannot say that it would  be a permanent structure even if it is made of  brick and mortar.  In the circumstances, of this  case, the lessee has said that he wanted to use  it as a kitchen.  He never says that the kitchen  was required for a particular purpose  temporarily.  Therefore, we get from the  evidence of the tenant that the tenant intended  to use the structure as a kitchen during the  continuance of the lease, because the tenant  requires a kitchen as long as the tenant uses the  premises and as he wants, to use it as a kitchen,  he sufficiently express his intention to use it as a  kitchen during the term of his tenancy which in  this case is not definite. Therefore, for purposes  of Section108(p) of the Transfer of Property Act,  we would hold that the kitchen raised must be

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considered to be for a permanent purpose.”

17. To sum up, no hard and fast rule can be  

prescribed for determining what is permanent or what  

is not. The use of the word ‘permanent’ in Section 108  

(p) of the Transfer of Property Act, 1882 is meant to  

distinguish the structure from what is temporary.  The  

term ‘permanent’  does not mean that the structure  

must last forever.  A structure that lasts till the end of  

the tenancy can be treated as a permanent structure.  

The intention of the party putting up the structure is  

important, for determining whether it is permanent or  

temporary.  The nature and extent of the structure is  

similarly an important circumstance for deciding  

whether the structure is permanent or temporary  

within the meaning of Section 108 (p) of the Act.  

Removability of the structure without causing any  

damage to the building is yet another test that can be  

applied while deciding the nature of the structure.  So  

also the durability of the structure and the material  

used for erection of the same will help in deciding

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whether the structure is permanent or temporary.  

Lastly the purpose for which the structure is intended  

is also an important factor that cannot be ignored.   

18. Applying the above tests to the instant case  

the structure was not a temporary structure by any  

means.  The kitchen and the storage space forming  

part of the demised premises was meant to be used till  

the tenancy in favour of the respondent-occupant  

subsisted. Removal of the roof and replacement  

thereof by a concrete slab was also meant to continue  

till the tenancy subsisted. The intention of the tenant  

while replacing the tin roof with concrete slab,  

obviously was not to make a temporary arrangement  

but to provide a permanent solution for the alleged  

failure of the landlord to repair the roof. The  

construction of the passage was also a permanent  

provision made by the tenant which too was intended  

to last till the subsistence of the lease. The concrete  

slab was a permanent feature of the demised premises

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and could not be easily removed without doing  

extensive damage to the remaining structure.  Such  

being the position, the alteration made by the tenant  

fell within the mischief of Section 108 (p) of the  

Transfer of Property Act and, therefore, constituted a  

ground for his eviction in terms of Section 13(1)(b) of  

the West Bengal Premises Tenancy Act, 1956.   

19. We may at this stage refer to the decision of  

this Court in Ranju alias Gautam Ghosh v. Rekha  

Ghosh and Ors.  (2007) 14 SCC 81 where this  

Court found that cutting of a collapsible gate by 5/6”  

and replacing the same without the consent and  

permission of the landlord was tantamount to violation  

of Section 108 (p) of the Transfer of Property Act read  

with Section 13 (1)(b) of West Bengal Premises  

Tenancy Act, 1956.  It is thus immaterial whether the  

structure has resulted in creating additional usable  

space for the tenant who carries out such alteration  

and additions.  If addition of usable space was ever

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intended to be an essential requirement under Section  

108 (p) of the Act, the Parliament could have easily  

provided so. Nothing of this sort has been done even  

in Section 13 (1) (b) of the State Act   which clearly  

shows that addition of space is not the test for  

determining whether the structure is permanent or  

temporary.    

20. Reliance upon the decisions of this Court in  

Brijendra Nath Bhargava and Anr. v. Harsh  

Wardhan and Ors. (1988) 1 SCC 454, Om  

Prakash v. Amar Singh and Ors. (1987) 1 SCC  

458, Waryam Singh v. Baldev Singh (2003) 1  

SCC 59 and G. Reghunathan v. K.V. Varghese  

(2005) 7 SCC 317 do not in our opinion advance the  

case of the respondent.  In Brijendra Nath  

Bhargava’s case (supra) this Court was dealing with  

a case arising out of Rajasthan Premises (Control of  

Rent and Eviction) Act, 1950. Section 13 (1) (c) of the  

said Act required the landlord to prove that the tenant

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had, without his permission, made or permitted to be  

made any construction which had in the opinion of the  

Court, materially altered the premises or was likely to  

diminish the value thereof.  Section 13 (1)(c) of the  

Rajasthan Premises (Control of Rent and Eviction) Act,  

1950  is to the following effect:         

“13(1) (c) that the tenant has without the  permission of the landlord made or permitted to  be made any such construction as, in the opinion  of the court, has materially altered the premises  or is likely to diminish the value thereof”

21. The above provision is materially different from  

the provision of Section 13(1)(b) of the West Bengal  

Premises Tenancy Act 1956 applicable in the present  

case which does not require the landlord to prove that  

there was any material alteration in the premises or  

that such alteration was likely to diminish the value  

thereof. The decision in Brijendra Nath Bhargava’s  

case (supra), is therefore, distinguishable and would  

not have any application to the case at hand.

22. In Om Prakash’s case (supra) this Court was

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dealing with a case under Section 14 (c) of the U.P.  

Cantonment Rent Control Act, 1952 which reads as  

under:

“14. Restrictions on eviction.—No suit shall,  without the permission of the District Magistrate,  be filed in any civil court against a tenant for his  eviction from any accommodation except on one  or more of the following grounds, namely: (c) that the tenant has, without the permission  of the landlord, made or permitted to be made  any such construction as in the opinion of the  court has materially altered the accommodation  or is likely substantially to diminish its value.”

23. A perusal of the above would show the  

language employed therein is materially different from  

the provision of Section 13(1)(b) of the West Bengal  

Premises Tenancy Act 1956 with which we are  

concerned in the present case. In the case at hand the  

landlord is not required to prove that the construction  

have been materially altered or is likely to diminish its  

value as was the position in Om Prakash’s case  

(supra).  

24. In Waryam Singh v. Baldev Singh (2003) 1  

SCC 59 this Court was dealing with a case under

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Section 13(2)(iii) of East Punjab Urban Rent  

Restriction Act, 1949 which was to the following effect:

“13. Eviction of tenants.—(1) * * *

(2) A landlord who seeks to evict his tenant shall  apply to the Controller for a direction in that  behalf. If the Controller, after giving the tenant  a reasonable opportunity of showing cause  against the applicant, is satisfied— * * * (iii) that the tenant has committed such acts as  are likely to impair materially the value or utility  of the building or rented land, * * *”

25. It is evident from the above that this provision  

was different from the language employed in Section  

13(1)(b) of the West Bengal Premises Tenancy Act  

1956. The ratio of that case also, therefore, does not  

lend any support to the respondent.  Same is true  

even in regard to the decision in G. Reghunathan’s  

case (supra) where this Court was dealing with an  

eviction petition under Section 11(4)(ii) of the Kerala  

Buildings (Lease and Rent Control) Act, 1965 which  

was to the following effect:

“11. (4) A landlord may apply to the Rent

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Control Court for an order directing the tenant to  put the landlord in possession of the building— (i) * * * (ii) if the tenant uses the building in such a  manner as to destroy or reduce its value or  utility materially and permanently;”

26. The above provision is also materially different  

from the provisions with which we are concerned in  

the present case. The ratio of that case does not,  

therefore, have any application to the question  

whether the structure raised by the respondent was a  

permanent structure within the meaning of Section  

108 (p) of the Transfer of Property Act.   In Om Pal v.  

Anand Swarup (dead) by Lrs. (1988) 4 SCC 545  

also this Court was dealing with a case under the East  

Punjab Urban Rent Restriction Act, 1949 which makes  

material impairment of the property an important  

consideration for purposes of determining whether the  

tenant has incurred the liability on the premises leased  

to him.    

27. In the result, therefore, we allow this appeal,

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set aside the order passed by the High Court and  

restore that of the trial Court.  Respondent is,  

however, given one year’s time to vacate the premises  

in his occupation subject to his filing an undertaking  

on usual terms within four weeks from today. The  

grant of time to vacate the premises is further subject  

to the condition that the respondent shall either pay  

directly to the appellants or deposit in the trial Court  

compensation of the premises @ Rs.1500/- p.m. from  

1st October, 2012 till the date of vacation. The deposit  

shall be made by the 15th of every succeeding calendar  

month failing which the decree shall become  

executable by the Court.                  

……………………………………….……….…..…J.         (T.S. Thakur)

 ……………………..…………………..…..…J.              (Gyan Sudha Misra)

New Delhi October 31, 2012