Sunday, 1 July 2018

How to prove that tenant has made permanent structure in tenanted premises?

In fact, if one looks at the plaint, one would make out the that there had been no proper plea at all on the part of the plaintiff. The plaintiff had only pleaded that the defendant had made certain permanent alterations and that is all. The plaintiff had not even set out the particulars of such a plea at all. In fact, the learned Judge ought not to have proceeded with the framing of the issues in this behalf. 
But I think, it must be held that the plaintiff ought to have led evidence with regard to the nature of the construction, the situation of the wall and the window, where it had been put, the degree of annexation and various other relevant factors so as to make it a permanent structure within the meaning of Section 13(1)(b) of the Rent Act. 
When the plaintiff files a suit under Section 13(1)(b) and alleges as against the tenant that he has put up a permanent structure within the meaning of Section 13(1)(b) of the Rent Act, the plaintiff must lead evidence in support of such a contention, giving all particulars as to constitute such a structure a permanent one. It is only when he initially discharge this burden, the burden shifts on other side and then the defendant can point out as to how the structure cannot be said to be a permanent structure. In the present case, the plaintiff made no effort whatsoever to lead any kind of evidence, being contended with what the defendant had stated in his written-statement. As I said earlier, there is no such categorical admission at all .

IN THE HIGH COURT OF BOMBAY

Writ Petn. No. 1639 of 1982

Decided On: 06.11.1989

Ramchandra Dattatraya Gandhi Vs. Sou Pushpabai Manohar Sheth

Hon'ble Judges/Coram:
Hosbet Suresh, J.

Citation: 1990(1) Bom CR 643





1. This is a tenant's petition against as order of eviction passed by the Appeal Court under Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act).

2. The brief facts are as follows: The Respondent filed a suit in the Courts of the Civil Judge, Junior Division, Mahad being Regular Civil Suit No. 26 of 1977 for eviction of the petitioner, the tenant, on the ground that she wanted the premises for herself for her use an occupation under Section 13(1)(g) of the Rent Act. The defendant filed his written statement. In his written statement, he contended that he has that been in occupation of the said premises form about 1961 and that at the time of the occupation of the premises he had to carry out various repairs and certain alterations and he had to spend about a sum of Rs.9,000/- for that purpose. He contended that as to how the suit house was in a dilapidated condition and that had carried out these repairs and alterations for the purpose of making it habitable and tenantable and he carried out all these repairs and alterations with the knowledge of the then landlord. He denied that the respondent wanted the premises reasonably or bona fide. He also pleaded that if any decree is passed, he would suffer greater hardship than the respondent, if it is denied to her.

3. Since in his written-statement, he had set out various items of repairs and alterations as carried out by him much prior to the date when the respondent became the landlady of the premises, she was advised to amend the plaint and plead the ground under Section 13(1)(b) of the Rent Act. In fact, if one looks at the plaint, one would make out the that there had been no proper plea at all on the part of the plaintiff. The plaintiff had only pleaded that the defendant had made certain permanent alterations and that is all. The plaintiff had not even set out the particulars of such a plea at all. In fact, the learned Judge ought not to have proceeded with the framing of the issues in this behalf. However, as the matter stood at that stage, issues were framed and inter alia an issue with regard to the allegation that the defendant had created permanent structure was also framed.

4. I must further mentioned that as far as the ground under Section 13(1)(g) of the Rent Act is concerned, the respondent was negatived, both the Trial Court as also in the Appeal Court. That finding still stands. As far as the other ground of the defendant having erected permanent structure is concerned, the Trial Court held in favour of the petitioner/defendant and dismissd the suit. However in the Appeal Court, with regard to certain items of such alleged permanent structures, the Appeal Court came to the conclusion that they were permanent structures within the meaning of Section 13(1)(b) of the Rent Act and accordingly he allowed the Appeal and passed the decree for eviction. It is against this judgment given by the Appeal Court dated 17th April 1982, the petitioner filed the present petition under Article 227 of the Constitution of the India.

5. I must mention here that when the defendant pleaded on reply to the plaintiff's case under Section 13(1)(g) of the Rent Act that he had carried out the various repairs and alterations so as to make it habitable, he had expressly pleaded that was done with the consent of the then landlord. He also pleaded in the written- statement that the plaintiff was estopped form contending other wise. It is also on record that all these repairs had been carried out sometime in 1961-62 and some in the year 1972, but all were carried out much before the date when the respondent became the landlady. She is the sister of the original landlord and she acquired the ownership rights by virtue of a gift deed dated 3rd March 1977. It was, therefore, argued before the learned Trial Judge that since the plaintiff became the owner of the house much after all these alterations and repairs had been carried out, it was not possible for the plaintiff to avail of such a ground under Section 13(1)(g) of the Rent Act, inasmuch as admittedly no repairs or alterations were carried out after the respondent became the landlady. The learned Judge while framing the issues, had expressly set out as to whether the plaintiff proves that the defendant had erected permanent structures on the suit premises without the knowledge of the landlord and whether the suit was barred by any estoppel. He answered both these issues in the negative. In his judgment, the came to the conclusion that since no repairs and alterations have been made after the plaintiff became the owner of the property, the ground under Section 13(1)(b) of the Rent Act was not available to the plaintiff. However, on the ground of estoppel, the learned Judges assumed that the plea of estoppel amounts to a plea against a statue and, therefore, in that sense the suit was not barred by estoppel.

6. IN the Appeal Court, the learned Judge formulated the points that arose for determination, inter alia, as follows:(1) Whether the plaintiff proves that the defendant has made material alterations and permanent constructions in the suit house without the written consent and knowledge of the plaintiff and that the previous owner, and (2) Does the defendant prove that because of oral consent given by the previous owner, the plaintiff and her husband, he made the alterations the constructions in the suit house with their knowledge and, therefore, the claim of the plaintiff for possession of the suit house, is barred by the principle of estoppel ? The learned Judge answered the first issue in the affirmative and the letter issue in the nagative. He came to the conclusion that the ground under Section 13(1)(b) stood proved in respect of the three items, namely, (i) construction of a gutter a putting pavement on the gutter in front of the house, (ii) construction of a kitchen platform and the window and a wall in the kitchen, and (iii) construction of a shed in the open space just outside the house the purpose of cleaning utenensils and washing of clothes. It is on account of these three items he came to the conclusion that the petitioner was liable for eviction.

7. As far as the construction of the gutter and putting as pavement on it is concerned, I cannot understand as to how that can even considered as a permanent structure within the meaning of Section 13(1)(b) of the Rent Act. In fact, Mr. Walawalkar plainly did not emphasize the aspect of the matter at all. Similarly, with regard to the construction of the kitchen platform, it could never be be said be a permanent structure and Mr. Walawalker did not press this contention at all.

8. Thus, we have two items, namely, construction of a wall and a window is the kitchen room and construction of a shed just outside the premises for the purpose washing utensils.

9. Both the Advocates have drawn my attention to the evidence that was led before the learned trial Judge. As far as the plaintiff is concerned, there is no evidence whatsoever about the construction of any these items. On the other hand, the plaintiff has categorically stated in her evidence that she did not know if the defendant had carried out repairs in the suit house at all. She also did not know the defendant had carried our in the suit house at the she also did not when he had carried out these repairs. The previous owner, who was the brother plaintiff, was examined by the plaintiff and as far as his evidence is concerned, he also does not allege as to what alterations of permanent nature were done by the defendant as such. He admits that the had never carried out any repairs to the suit house at any time. He also admits that no damage was caused to the suit house by making alterations and repairs by the defendant. There is no other evidence, far as Section 13(1)(b) is concerned.

10. However, Mr. Walwalker submits that the defendant has made admission in the written-statement and if those admissions are taken into account, it can said that allegations, as far as Section 13(1)(b) of the concerned, has been proved. But I think, it must be held that the plaintiff ought to have led evidence with regard to the nature of the construction, the situation of the wall and the window, where it had been put, the degree of annexation and various other relevant factors so as to make it a permanent structure within the meaning of Section 13(1)(b) of the Rent Act. The admission, as far as defendant is concerned, is that he had spent a sum of Rs. 1500/- in respect of the otla, that is the platform, the moree, that is, the sink and the wall and the window. The admission is as repairs and alterations, and this is one such item. There is no other admission.

11. This takes me to the other allegation, namely, construction of a shed. The plaintiff's evidence, as I have stated above, is nil. In the written-statement, the defendant has only stated that in 1972 for the purpose of protecting himself from the rain and for the purpose of washing utensils, the structure which was in existence in 1970, had been repaired and in that process a sum of Rs. 1300/- was spent for having walls, doors and a corrugated roof. In his evidence, he has stated that he had constructed a kacha constructed. But this was demolished due to rain at that time he had spent of sum of Rs. 500/- towards to kacha construction, which had lasted for two years. Thereafter he constructed a shed as above by spending a sum of Rs. 1300/- and he does not know whether it is a permanent structure or a kacha structure. (Note :The English translation of the evidence is not accurate). On this evidence, the learend Appellate Judge came to the conclusion that the shed was constructed on a part and parcel of the demised premises. He further came to the conclusion that the construction of the shed was embedded in the earth the defendant constructed walls on all sides of this shed and, therefore, considering the nature and situs of the structure of the shed and the mode of annexation, the intention of the parties and all the surrounding circumstances, this was nothing but a permanent structure. I may plainly point out that apart form the bare statement form the defendant as to how he had spent the sum of Rs. 1300/-, because the kacha structure had fallen due to rain, there is no other evidence whatsoever as regards then nature of construction, as the annexation of this structure to the earth, as to its permanency, as to whether it would cause any damage to the demised premises, etc. However, it was pointed out across the bar that this was put up outside the house in an open space and the open space it a part of the demised premises. In other words, it becomes clear that the Appeal Court had come to the conclusion without any basis whatsoever. If that is so, certainly this judgement deserves to be reversed under Article 227 of the Constitution of the India.

12. Relying on the case of the Venkatlal G. Pittie v. M/s. Bright Bros. (PVT) Ltd. MANU/SC/0824/1987 : [1987]3SCR593 Mr. Walawalkar submitted that it is not proper for this Court to come to the conclusion which is different form the conclusion of the lower Court unless it can be said that there was no evidence whatsoever in the lower Court. He submitted that this Court could interfere, only if it could be said that the finding is perverse in law, in the sense that no reasonable person could have come to such a finding or there is a misdirection in law in the it can be said that the finding is based on no material evidence or it has resulted in manifest injustice. There is no dispute as to these proposition at all. It is clear to my mind that in the present case there is no evidence worth the name to come to the conclusion that the defendant had constructed permanent structures within the meaning of Section 13(1)(b) of the Rent Act. Most of the things, as stated by the Appeal Courts, are based on surmises and conjectures, without any evidence whatsoever form the plaintiff. When the plaintiff files a suit under Section 13(1)(b) and alleges as against the tenant that he has put up a permanent structure within the meaning of Section 13(1)(b) of the Rent Act, the plaintiff must lead evidence in support of such a contention, giving all particulars as to constitute such a structure a permanent one. It is only when he initially discharge this burden, the burden shifts on other side and then the defendant can point out as to how the structure cannot be said to be a permanent structure. In the present case, the plaintiff made no effort whatsoever to lead any kind of evidence, being contended with what the defendant had stated in his written-statement. As I said earlier, there is no such categorical admission at all . The defendant was answering as case under Section 13(1)(b) of the Rent Act and in answer to that he pointed out as to how with the consent and knowledge of the then landlord he had carried out certain alterations for making the place comfortable for use occupation. Even otherwise, if admissions are to be relied upon, the plaintiff cannot pick and choose only a part of the admission. Admission must be taken as a whole and must be understood in the context in which it is made.

13. Mr. Abhyankar pointed out that if one had regard for all the facts and circumstances of the case, it is clear the these repairs and alterations were done with the consent and knowledge of the then landlord of the premises. These repairs were done much before the filing of the suit and much before the present respondent became the landlady of the premises. At no point of the time did the previous landlord or the present landlady ever object to these repairs and alterations. He, therefore, submitted that it could easily be said that the respondent had acquiesced in the conduct of the petitioner and that, therefore, it is not open to the respondent to advance a ground under Section 13(1)(b) of the Rent Act. Mr. Abhyankar further submitted that assuming that under the law a written consent was necessary and it may be that the defendant/petitioner did not obtain such a written consent form the landlord, the conduct shows that the had no objection to these repairs and alterations.

14. Mr. Walawalkar, on the other hand, submitted that Mr. Abhyankar's argument would amount to a plea to an estoppel against a statue. He submitted that under Section 13(1)(b) of the rent Act, a permanent structure could be saved only if the tenant erects a structure with the written consent of the landlord. In the present case, admittedly, there is no written consent and, therefore submitted that the plea of this type would be against the very provisions of the statue of such.

15. I am afraid that that is not the law. There is no prohibition under the law against erection of a permanent structure as such. What Section 13(1)(b) says is that if a permanent structure is put up without the written consent of the landlord, that gives a right the landlord to file a suit against the tenant. It is open to the landlord to avail of that right or not to avail of that right. He can always waive that right. In the present case, the conduct is so clear that at no point of time the landlord ever objected to the construction. It was all done with the knowledge of the then landlord. He himself was supervising some of the repairs and alteration s. Certainly in such a case it is not open to the landlord, that too after several years, to turn round and say that after allowing the defendant to make all such repairs and alteration and after incurring sufficient expenditure in that behalf, that he should vacate of the ground that he had carried out the repairs. The conduct of the landlord clearly indicates that whatever right he had no availed of at all. In the present case, the learned Appellate Judge misdirected himself clearly, as far as this part of the law in concerned. He ought to have held that the landlord had waived his right to file a suit under Section 13(1)(b) of the Rent Act, by his conduct Any other view of the matter would be patent injustice.

16. In the result, this petition will have to be allowed. I, therefore, pass the following order:

ORDER

Rule made absolute. Decree passed by the Appeal Court in Civil Appeal No 96 of 1980 in hereby set aside and suit stands dismissed. In the result, respondent shall pay costs of these proceedings to the petitioner .

17. Rule made absolute.




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