IMPORTANT POINT
Import of section 108, T.P. Act, 1882.

JUDGMENT

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 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 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 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 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 commi