Full Text
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 272 OF 2021
Rajendra Gangadhar Patil ...Applicant
(since deceased)
1a. Anil Bhanuprakash Khandelwal
1b. Meena Bhanuprakash Khandelwal
2. Chandrashekhar Maneklal Mehta
2a. Hemant Chandrashekhar Mehta
2b. Vinod Chandrshekhar Mehta
2c. Usha Chandrashekhar Mehta
…Respondents
Mr. R. M. Haridas, for the Applicant.
Mr. Vaibhav Sugdare, a/w Vishal Mehta, i/b MV Law Partners, for Respondent Nos.1a and 1b.
JUDGMENT
1. This revision application is directed against a judgment and decree dated 26th March, 2021 passed by the Appellate Bench of the Court of Small Causes in Appeal No.60 of 2011, whereby the Appellate Bench was persuaded to allow the appeal preferred by the deceased respondent Nos.[1] and 2 (the landlords) against the judgment and decree in RAE&R Suit No.230/393 of 2000 dismissing the suit, and instead decree the said suit for eviction of the applicant on the ground of carrying out additions and alterations of permanent nature without the consent of the landlords.
2. The background facts necessary for determination of the revision application can be stated in brief as under: 2.[1] The deceased respondent Nos.[1] and 2 were the owners/landlords of the premises suited at Plot No.866 TP Scheme No.IV, old Prabhadevi Road, Dadar (W), Mumbai. There were multiple structures on the said property (the larger property). The applicant – defendant was a tenant in respect of Room No.2 in structure A (the demised premises). 2.[2] The demised premises comprised of a kitchen, one room and an open veranda/otla. 2.[3] The plaintiffs purchased the larger property in the year
1967. Before the plaintiffs purchased the suit property, the defendant had encroached upon the common veranda/otla outside the suit premises by enclosing the said veranda/otla. The defendant had allegedly constructed the kitchen platform also inside the suit premises. Thus, the plaintiffs and one Smt. Kamladevi Khandelwal had instituted a suit being RAE Suit No.5062 of 1971 for the possession of the demised premises on the ground of erection of permanent structures. Eventually the said suit came to be disposed in view of the Consent Terms arrived at between the parties. 2.[4] When the plaintiffs took out execution, the defendant filed RAD Suit No.1045 of 1989 for the declaration that the Consent Terms were void and illegal. 2.[5] During the pendency of the aforesaid suit, between the period 1988 and 1991, the plaintiffs alleged, the defendant constructed a wooden mezzanine floor on the entire kitchen portion of the suit premises and also constructed a water closet (WC) outside the suit premises. To support the mezzanine floor, defendant had erected two brick masonry walls inside the suit premises. Thus, the plaintiffs asserted, the defendant committed the acts of waste of the property and the said erection was in the nature of permanent additions and alterations to the demised premises. In addition, in the year 1995, the defendant constructed one additional veranda/otla admeauring 2 ft. X 6 ft. outside the demised premises and extended the original veranda/otla and enclosed the additional construction also. 2.[6] In addition to the aforesaid grounds, the plaintiffs had sought decree of eviction against the defendant on multiple statutory grounds, like, the use of the demised premises by the defendant caused nuisance and annoyance to the neighbouring occupants; the defendant also caused annoyance to the plaintiffs and their family members by making false, frivolous and motivated complaints with various authorities and the defendant was a habitual defaulter in payment of rent.
3. The defendant resisted the suit. The very tenability of the suit on the very grounds on which the previous suit was instituted and disposed in view of the consent terms between the parties, was called in question. It was contended that the plaintiffs had instituted the suit with an oblique motive to deprive the defendant of the benefit of the permanent alternate accommodation which was agreed to be given to the defendant, and has been extended to the other occupants of the larger property. The plaintiffs constructed a new building comprising of ground+6 upper floors on the portion of the larger property and, despite assurance, failed and neglected to enter into an agreement for permanent alternate accommodation with the defendant. With a view to defeat the legitimate claim of the defendant, the plaintiffs in connivance with the officers of the BMC had been leaving no stone unturned to evict the defendant from the demised premises by resorting to various unlawful acts.
4. The defendant contended, he has been in the occupation of the demised premises alongwith his family members since 1952, much prior to the plaintiffs became the owners of the larger property comprising the demised premises, in the year
1967. The defendant contends with a view to evict the defendant of the demised premises, without providing a permanent alternate accommodation, to which the defendant is legitimately entitled to, the plaintiffs have resorted to disingenuity and subterfuge.
5. It was categorically denied that the defendant has carried out the construction or erected structure of permanent nature, as alleged. The defendant contended that the structure standing on the demised premises is in the same condition as it obtained, when the demised premises was let to the defendant in the year 1952. The allegations of erection of permanent structure without the consent of the landlords and waste of the demised premises were stated to be false and mala fide.
6. In any event, the alleged act of encroachment and erection of permanent structure over the larger property beyond the demised premises, cannot be a subject matter of the suit for eviction before the Court of Small Causes as the said allegations were beyond the purview of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (“the Rent Act, 1947”).
7. The Trial Court settled the issues. The plaintiffs examined Bhanuprakash Khandelwal (PW[1]) and Nitin Natu (PW[2]), an official working with Building Development Department of the BMC. The defendant examined his constituted attorney Rajendra Gangadhar Patil (DW[1]), and Vidyashankar R. Tripathi (DW[2]), Advocate and Notary. The parties also tendered documents to substantiate their rival claims.
8. At the trial, the plaintiffs gave up the issue of arrears of payment of rent. The learned Judge, Court of Small Causes, thus appraised the evidence on the grounds of erection of permanent structure, waste and damage to the demised premises and nuisance. The learned Judge returned negative findings on all these issues.
9. The learned Judge was of the view that the alleged construction carried out by the defendant was not on the demised premises and, thus, the alleged encroachment and erection of permanent structure on the larger property, beyond the demised premises, did not furnish a ground for eviction. Secondly, the plaintiffs failed to establish that the construction erected by the Defendant was of permanent nature.
10. Being aggrieved, the deceased respondent Nos.[1] and 2 preferred appeal before the Appellate Bench. By the impugned judgment and order the Appellate Bench was persuaded to decree the suit on the ground of carrying out encroachment over the area beyond demised premises, erecting construction of permanent nature and thereby causing waste and damage to the demised premises.
11. The Appellate Bench was of the view that the mere fact that the WC was constructed outside the suit premises was not sufficient to take the case out of the purview of the exclusive jurisdiction of the Court of Small Causes and such encroachment and erection of permanent structure, furnished a justifiable ground for the eviction of the tenant. On the rest of the grounds of eviction, the Appellate Bench concurred with the view of the Trial Court. Resultanly, decree of eviction came to be passed.
12. Being aggrieved, the defendant has invoked the revisional jurisdiction.
13. I have heard Mr. Haridas, the learned Counsel for the applicant – defendant and Mr. Vaibhav Sugdare, the learned Counsel for the respondents – landlords, at some length. The learned Counsel for the parties took the Court through the pleadings and the material on record including the deposition of the witnesses and the documents, tendered for the perusal of the Court.
14. Mr. Haridas, the learned Counsel for the applicant, would urge that the Appellate Court committed a jurisdictional error in interfering with a well reasoned order of the learned Trial Judge. There were no justifiable reason to take a different view of the matter. In the process, the Appellate Bench did not properly appreciate the evidence adduced by the parties in arriving at the finding of erection of permanent structure. Mr. Haridas was at pains to persuade the Court to hold that the WC unit was in existence since long. At any rate, the construction of the said WC can never be said to be of a permanent nature. The Appellate Bench lost sight of the fact that the WC unit was an essential amenity. No damage was likely to be caused to the demised premises, in the event, the WC was removed.
15. Amplifying the aforesaid submissions, Mr. Haridas would urge the Appellate Bench failed to keep in view the tests which are required to be applied while determining whether a particular addition/alteration or construction falls within the ambit of erection of a permanent nature. To bolster up these submissions, Mr. Haridas placed reliance on the judgments of this Court in the cases of Dinkar Bandu Patil deceased by his heir representative vs. Sharad Dattatraya Palange[1], Alisaheb Abdul Latif Mulla vs. Abdul Karim Abdul Rahman Mulla and others[2], Ramchandra Dattatraya Gandhi vs. Sou. Pushpabai, Mr. Suresh D. Zamakade vs. Narayandas V. Shah[4], Somnath Krishnaji Gangal vs. Moreshwar Krishnaji Kale and others[5], Suka vs. Ranchhodas[6] and Lucky Restaurant and another vs. Messrs Deccan Talkies, Poona[7].
16. Per contra Mr. Sugdare, the learned Counsel for the respondents – landlords, submitted with tenacity that, the Appellate Bench of the Court of Small Causes has recorded a positive finding that the additional construction was carried out by the defendant. Such a finding of fact is not susceptible to interference in exercise of the revisional jurisdiction. Mr. Sugdare laid emphasis on the fact that learned Trial Judge had completely misdirected himself in returning a finding that the encroachment carried out by the tenant beyond the demised premises did not furnish a cause of action for eviction of a 1 1998 Bom. R.C. 66. 2 1981 Mh.L.J. 734. 3 AIR 1990 Bombay 182. 4 2003(1) ALL MR 312. 5 1995(3) Bom.C.R. 327. 6 1972 Mh.L.J. 477. 7 370 Bom. R. C. 1985. tenant under the Rent Act, 1947. The Trial Court’s view was contrary to the pronouncement of this Court in the case of Laxmibai Ganpati Bhingare vs. Shinvaji Dnyani Salunkhe[8], wherein it was enunciated that the Court of Small Causes does not lack jurisdiction to entertain landlord’s suit to try issue of encroachment in view of the mandate contained in Section 28 of the Rent Act, 1947.
17. Mr. Sugdare further submitted that the evidence adduced by the plaintiffs finds further support in the notice under Section 351 given by the Municipal Corporation to the defendant which vouches for the erection of the permanent structure. The application of the defendant to regularize unauthorized construction also underscores the fact that the defendant had carried out unauthorized alterations of a permanent nature in the demised premises. Such findings of facts are not open for interference in the revisional jurisdiction, reiterated Mr. Sugdare.
18. To start with, it is necessary to note that the Appellate Bench found that the Court of Small Causes erred in holding that the Court of Small Causes had no jurisdiction as regards the permanent structure allegedly erected on the larger 8 2018(4) Mh.L.J. 190. property, beyond the demised premises. The Appellate Bench, on re-appreciation of evidence, found that the plaintiffs could succeed in establishing that the defendant had erected permanent structure in the nature of a WC on the larger property beyond the demised premises. However, the first part of the claim of the plaintiffs that the defendant had constructed a wooden mezzanine floor to cover the entire kitchen area, was held to be not proved.
19. The Appellate Bench was of the view that the evidence indicated that what was, in fact, erected by the defendant was a wooden loft in the kitchen. Erection of the said wooden loft did not amount to a permanent structure so as to fall within the mischief of the provisions contained in Section 13(1)(b) of the Rent Act, 1947. Resultantly, the controversy revolves around the question as to whether the erection of the WC falls within the tentacles of Section 13(1)(b) of the Rent Act, 1947.
20. It seems that two factors weighed with the Appellate Bench. First, in view of the decision of this Court in the case of Laxmibai Ganpati Bhingare (supra) the Trial Court was in error in holding that the Court of Small Causes had no jurisdiction in regard to the erection of permanent structure on the premises beyond the demised premises as the structure was not erected “on the premises”. Second, the application for regularization of the structures erected by the defendant was rejected by the Municipal Corporation. This implies that the WC was erected by the defendant much later, and it could not have been in existence at the inception of the tenancy. Whether the aforesaid finding of the Appellate Bench is borne out by the evidence on record and is in consonance with law, is the core question to be decided in this application.
21. Before exploring an answer to the aforesaid question, the prelude to the instant eviction proceeding, deserves to be kept in view. Incontrovertibly the landlords had instituted a suit for eviction, inter alia, on the ground of erection of permanent structure, being RAE Suit No.5062 of 1971, and the said suit came to be decreed in accordance with the consent terms. The landlords had inter alia undertaken to give approximately 240 sq. ft. built up accommodation in the new building to be constructed within one year from the date of the execution of the said decree. It is a matter of record that the parties did not adhere to the consent terms. Thus, though the new building was constructed, the defendant was not accommodated in the new building, as agreed, and the defendant continued to occupy the demised premises. To pointed questions Bhanuprakash Khandelwal (PW[1]) conceded that in accordance with the initial plan two rooms on the second floor of the new building were earmarked for the defendant. An undertaking was furnished to the Planning Authority that in the event the demised premises is demolished, the landlords would provide accommodation to the defendant in the newly constructed building. However, no agreement in respect of the allotment of alternate accommodation in the newly constructed building was executed between the plaintiffs and defendant. An explanation was, however, sought to be offered that as the landlords did not use the FSI admissible qua the demised premises while constructing the new building, alternate accommodation was not offered to the defendant in the new building.
22. The aforesaid consideration is only to highlight that there was an agreement between the parties that the defendant would be accommodated in the new building. It would not, however, imply that only the landlords are to be blamed for not acting in conformity with the consent decree. In fact, the defendant – tenant had instituted another suit seeking declaration that the consent decree passed in the said suit was illegal and void. It is in this backdrop, the defence of the defendant that the landlords were trying to somehow evict the defendant from the demised premises was required to be appreciated.
23. The linchpin of the provisions contained in Section 13(1)(b) of the Rent Act, 1947 is erection of “permanent structure”. Whether the structure in question is permanent, though rooted in the facts of the given case, is often a vexed question. A number of factors bear upon the determination as to whether a particular structure can be termed as permanent. The courts have formulated various tests to determine the character of structure which falls foul of clause (b) of Section 13(1)(b) of the Rent Act, 1947 and clause (p) of Section 108 of the TP Act, 1882. The principal tests are: the nature of the structure; meaning thereby the mode and decree of annexation, the intention of the tenant in erecting the structure; meaning thereby the purpose of annexation, whether the structure is removable without causing any damage to the demised premises, the durability of the structure; to be judged from the material used to erect the same, and the attendant circumstances.
24. In the case of Venkatlal G. Pittie and another vs. M/s. Bright Bros. (Pvt) Ltd.9, after referring to a large number of authorities, the Supreme Court enunciated that to determine 9 AIR 1987 Supreme Court 1939. whether the structure is a permanent structure or not, one must look to the nature of the structure, the purpose for which it was erected and take a whole perspective as to how it affects the enjoyment, the durability of the building etc. and other relevant factors and come to a conclusion.
25. In the case of Purushottam Das Bangur and others vs., the Supreme Court postulated that no hardand-fast rule can be prescribed for determining what constitutes a permanent structure. The word permanent in clause (p) of Section 108 of the TP Act, 1882 is employed to distinguish the structure from what is temporary. The illustrative tests to judge the character of the structure were formulated by the Supreme Court, as under: “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 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.” (emphasis supplied) 10 (2012) 10 Supreme Court Cases 409.
26. At this juncture, the Court considers it appropriate to note the limits of revisional and supervisory jurisdiction. In the case of Venkatlal Pittie (supra) while expounding the scope of interference by the High Courts under Article 227 of the Constitution, the Supreme Court enunciated that the High Court under Article 227 has a limited jurisdiction. The High Court should not interfere with a finding within the jurisdiction of the inferior Tribunal or Court except where the finding is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is misdirection in law or view on fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction. If a Court has come to the conclusion on the examination of the nature of the structure, the nature of the duration of structure, the annexation and other relevant factors that the structures were permanent in nature which were violative of Section 13(1)(b) of the Rent Act, 1947 as well as Section 108(p) of the TP Act, 1882 and such a finding is possible, it cannot be considered to be perverse.
27. In the case at hand, the learned trial Judge has recorded a finding that the plaintiffs failed to establish that the WC allegedly erected by the tenant was of permanent nature. The Appellate Bench does not seem to have made an endeavour to come in close quarters with the aforesaid finding of the trial Court. Neither the Appellate Court has ascribed reasons as to why the aforesaid finding of the Trial Court is erroneous. Nor with reference to the evidence and material on record the Appellate Bench arrived at a positive finding that the WC allegedly erected by the tenant constituted a permanent structure. If the aforesaid finding of the Appellate Bench is not borne out by the evidence and material on record then, in the considered view of this Court, a case for exercise of revisional jurisdiction would be made out.
28. The Appellate Bench was swayed by the fact that the Municipal Corporation had issued a notice to the petitioner under Section 351 of the Mumbai Municipal Corporation Act. The application for regularization filed by the petitioner was rejected by the Municipal Corporation. On the basis of these facts, inferences were drawn by the Appellate Bench that the WC was erected much later, and it was of permanent nature.
29. It is imperative to note that the Appellate Bench does not seem to have evaluated the evidence to appreciate the character of the structure in the light of the tests for the determination of such character, adverted to above. No evidence seem to have been adduced by the plaintiffs to clearly demonstrate the nature of the erection. Whether the WC was made up of the brick walls; what type of roof it had; the nature of the material used to erect the WC; its durability and likelihood of damage to the demised premises in the event of its removal were not delved into by the Appellate Bench.
30. Even the aspect of the erection of the WC at a particular point of time also appeared to be in the corridor of uncertainty. This assumes importance in the backdrop the positive defence of the defendant that, there was no change in the demised premises and the structures, including the offending structure, existed since the inception of the tenancy.
31. The defendant was put in possession of the demised premises as a tenant in the year 1952. It would be contextually relevant to note that Bhanuprakash Khandelwal (PW[1]) expressed his inability to state as to when the WC was allegedly erected. Though he claimed to have lodged a complaint with the Municipal Corporation, he could not state when the said complaint was lodged. He blamed his memory to state whether any action was taken by him after the alleged erection of the WC in the year 1993.
32. Bhanuprakash Khandelwal (PW[1]) went on to concede that there was no WC in the demised premises. It could hardly be contested that WC is an essential amenity. Failure of the plaintiffs to establish the period when the said WC was constructed in the light of the occupation of the demised premises by the defendant since 1952, lends credence to the defence of the defendant that there was no change in the structures and the WC exited since inception of tenancy.
33. In the backdrop of the aforesaid nature of the evidence adduced by the plaintiffs, it was necessary for the Appellate Bench while reversing the finding of the Trial Court that the plaintiffs failed to prove that the WC was of permanent character, to analyse the evidence to support the ultimate finding that the defendant has erected a permanent structure.
34. Such a finding could not have been based on the fact that Municipal Corporation had issued a notice under Section 351 to the petitioner and the proposal for regularization was also rejected. As the WC was an essential amenity, the endeavour of the petitioner to obviate the action threatened by the Municipal Corporation by issuing a notice under Section 351 of the Mumbai Municipal Corporation Act by approaching the Civil Court and filing application for regularization need not necessarily amount to an admission that the said structure was of permanent nature.
35. A profitable reference, in this context, can be made to a judgment of a learned Single Judge of this Court in the case of Tarachand Hassaram Shamdasani vs. Durgashankar G. Shroff and ors.11, wherein, in a somewhat identical fact-situation, this Court interfered with concurrent findings of facts recorded by the Courts below that the construction of the bathroom amounted to erection of a permanent structure. The observations of the learned Single Judge in paragraph 5 are material and hence extracted below: “5. ….. Even during the evidence no details are given as to when the offending construction has been carried out by the tenant. This is relevant in the context of the fact that the specific case of the tenant was that the bathroom has been in existence in the suit premises right from the inception of the tenancy. It is further asserted that there is no other bathroom in the suit premises and if that be so, it is incomprehensible that the bathroom has been constructed recently when the suit premises are in occupation of the tenant since 1939. Besides, in the cross examination P.W.[1] was specifically confronted with the fact as to whether before issuance of the so-called notice received by him from the Cantonment Board any inspection was carried out by the officer of the Cantonment Board, to which the landlord P.W.[1] was not in a position to answer. Moreover, suggestion has been put to him that the notice has been issued by the Cantonment board at his instance which obviously he has denied. Therefore, it is suggested to the landlord that the ground set up by him was dishonest. What is relevant to note is that there is nothing on record to indicate that such notice was issued to the tenant. It is incomprehensible that the authorities would issue notice only to the landlord without putting the occupant of the premises to notice 11 2004 (Supp.) Bom.C.R. 333. about the alleged illegality or irregularity. The fact that the landlord has received the notice from Pune Cantonment Board and he has paid fine of Rs. 100/- cannot, by itself, be sufficient to establish the factum that bathroom has been constructed only recently as has been found by the courts below. That is not the case either pleaded or proved by the Respondent landlord. None the less, the two Courts below have proceeded to answer the said issue against the tenant. The Trial Court has dealt with this issue in Para 15. The only reason which has weighed with the Trial Court is that the landlord had received notice from the Cantonment Board and that the landlord was required to pay fine. No other aspect has been considered by the Trial Court. The Trial Court has failed to analyze the oral evidence which has come on record. This finding, as recorded by the Trial Court, has been affirmed by the Appellate Court in Para 14 of the impugned Judgment. The Appellate Court has dealt with this issue, to my mind, in a very casual manner. Even the Appellate Court has not made any attempt to advert to the relevant evidence on record. If this be so, the conclusion reached by the two Courts below on this ground cannot be sustained either on fact or in law so as to decree the suit for possession under Section 13(1)(b) of the Act, for the courts below have committed manifest error which has caused serious miscarriage of justice.”
36. A useful reference, can also be made to a judgment of another learned Single Judge of this Court in the case of Alisaheb Abdul Latif Mulla vs. Abdul Karim Abdul Rahman Mulla and others12, wherein also the tenant was sought to be evicted on the ground he had erected a permanent structure of a bathroom without the consent of the landlord. In the said case, the premises let to the tenant consisted of sink (mori). In order to have privacy for bathing, the tenant had erected a wall. The mori was dug out and instead, in its place, the tenant constructed a bathroom having dimensions 3 ½ ft. x 4 ft. and hight of 6 ft. In the place of the sink, a new sink was constructed. It was divided into two parts by a small wall in 12 1981 Mh.L.J. 735. between. Those two parts were separately used for the purpose of cleaning the utensils, and for the purpose of washing utensils and clothes. In effect the three functions for which the mori was formerly used was divided, and three separate portions were used for the three functions. In that context, this Court observed as under: “26. If the work has been effected so as to enable the person using the premises for a better enjoyment and beneficial use of the same premises, if there is no change in the form of the structure, if there is no different use by the erection of the structure than the one which is already being carried out in the premises, then notwithstanding that the work was carried out in durable materials and is of such a type or nature as is done in cases of permanent structures, it would not follow that what was done was an erection of a permanent structure. If that test was applied, then the mere erection of a wall which is more of a screen to provide privacy to a person who had otherwise no privacy while bathing, in the absence of any foundation, in the absence of any evidence to show that the wall was so constructed are joined after cutting into the existing wall by removing the bricks of the existing wall for a better joint of the two walls would not make it a permanent structure. The addition of a wall in the nature of a screen could be easily removed by dismantling. It is difficult to see how any damage in the process except of a superficial nature will be caused to the existing premises. The quantum of damage which would be inflicted while removing the structure would certainly be different and can be a test to decide whether the structure is of a permanent nature or otherwise. The same can be said of the extension of the mori. I have already pointed out that there is no clear and satisfactory evidence as to the extent of the existing structure of the mori, whether it was 3 ½ ft. X 4 ft or 6 ft X 4 ft. Even if the work which was done amounts to extension of a mori, as pointed out, the three functions for which the mori which was formerly used are now divided and three separate portions are used for the three functions. That undoubtedly ensures better enjoyment and more satisfactory and efficient use of the premises. It provides for better enjoyment of the same premises without changing the purposes for which it was let and without changing the purposes for which the premises or facilities were used. As I pointed out, the existing facility was merely extended, the purposes which could have been achieved by a flimsy erection of a partition or screen. This has been done in the present case erecting a wall and extending the premises which limited their functional use.
37. If the facts of the case at hand are apprised, in the light of the aforesaid enunciation of law, it becomes evident that, firstly, there was no positive evidence to show that the WC was erected at a particular point of time and it did not exist from before, secondly, there was no cogent evidence to demonstrate the exact nature of the construction of the WC, the material used and its durability, thirdly, the WC was an essential amenity and its purpose was for a more beneficial enjoyment of the demised premises, fourthly, the degree of annexation was not such that its removal would have caused serious damage or waste to the demised presmises and, lastly, even if it is assumed that it was erected by the defendant – petitioner, in the absence of evidence to show that it was of permanent character, it would not fall within the dragnet of Section 13(1)(b) of the Rent Act, 1947.
38. Resultantly, the Appellate Bench was not justified in reversing the judgment of the Trial Court. I am, therefore, inclined to interfere with the impugned judgment and decree.
39. Hence the following order:: O R D E R:
(i) The application stands allowed.
(ii) The impugned judgment and decree passed by the
(iii) The decree passed by the Trial Court stands restored.
(iv) No costs.