Replacement of a tin shade roof with a cement concrete slab, without enlarging or altering the extent of accommodation in the tenancy, does not amount to construction of a permanent structure in violation of Section 108(p) of the Transfer of Property Act, 1882.

( 1 ) THIS appeal is directed against the judgment and decree dated 11th October, 1985, passed by the learned Judge, VII bench, City Civil Court at Calcutta in Ejectment Suit No. 391 of 1976.

( 2 ) THE defendant (tenant) in a suit for eviction under the West Bengal premises Tenancy Act, 1956, is the appellant before us.

( 3 ) THE suit was filed by the plaintiff/ respondent (landlord) for eviction of the tenant from the suit premises on various grounds such as - (i) causing nuisance and annoyance to the plaintiffs and the other occupants of the said premises and (ii) for violation of Clauses (m), (o), (p) of Section 108 of the Transfer of Property Act.

( 4 ) THE suit was ultimately decreed by the learned Trial Judge on the ground of violation of Clause (p) of Section 108 of the Transfer of Property act, as the learned Court below held that the defendant/ appellant raised permanent structure in the suit premises without consent of the landlord.

( 5 ) THE learned Trial Judge, however, found that the ground of eviction,. e. causing nuisance and annoyance to the plaintiffs and other occupants of the premises could not be established by the plaintiffs. As such, no decree was passed on the said ground.

( 6 ) MR. Ghosh, learned Senior Counsel, appearing on behalf of the plaintiffs/ respondents, made it clear that he will restrict his submission to support the impugned judgment, so far as it relates to the ground of eviction relating to violation of Clause (p) of Section 108 of the Transfer of Property act. In other words, the other ground of eviction,. e. causing nuisance and annoyance to the plaintiffs and the other occupants of the said building was practically abandoned by the plaintiffs/respondents in this appeal.

( 7 ) IT is also recorded herein that the plaintiffs/respondents have not filed any cross-appeal under Order 41 Rule 22 of the Code of Civil procedure for challenging the findings of the learned Trial Judge regarding the said issue before us.

( 8 ) UNDER such circumstances, we will restrict our consideration with regard to the legality and/or propriety of the judgment of the learned Trial judge on the issue regarding violation of Clause (p) of Section 108 of the transfer of Property Act.

( 9 ) ADMITTEDLY, the defendant's tenancy which is the subject-matter of the suit, is a Flat consisting of two rooms, a kitchen and store space with corrugated tin-sheet roof. The plaintiffs/respondents allege that sometime in the month of September 1975, the defendant/appellant most illegally and unauthorisedly removed the said corrugated tin-sheet roof of the kitchen and store space and replaced the same by cement concrete slab and thereby converted the tin shade roof of the kitchen and store space into permanent concrete roof and made a permanent brick-built passage from the said kitchen and store space leading to the said concrete roof for the purpose of using it unauthorisedly.

( 10 ) THE plaintiffs further allege that this structural addition and alteration in the tenancy were made by the defendant without the consent or permission of the plaintiffs or their authorised person and as such, the defendant contravened the provisions of Clauses (m), (o), (p) of Section 108 of the Transfer of Property Act.

( 11 ) THE defendant contested the suit by filing written statement and additional written statement denying the material allegations made in the plaint. Initially in the written statement, the defendant denied such alleged illegal and unauthorised removal of the corrugated tin shade from the roof of the kitchen and store space and replacement of the same by concrete roof by the defendant and/or the members of his family and thereby converting the tinned shade roof of the kitchen and store space into permanent concrete roof.

( 12 ) SUBSEQUENTLY, in the additional written statement, the defendant stated that the corrugated shade required replacement as the same was worn out. The defendant further cl