In an eviction suit based on unauthorized construction, the plaintiff must prove that the construction is of a permanent nature and that no consent was given by the landlord.

1. BIDYUT Banerjee, Jiban Ratan Chatterjee, Badal Saha, Supratim Dhar, Debabrata Mandal for the respondents. 1. The defendant/tenant having lost in the ejectment suit has impugned the decree in this appeal. The plaintiff/landlord filed the suit on two grounds, namely, default in paying the monthly rent agreed and also for making wrongful, illegal and unauthorised construction of two rooms and other constructions in the tenanted premises.

2. THE defendant denied all the allegations contained in the plaint. In the written statement, answering the allegation of unauthorised construction it is stated that because of refusal of the landlord to effect repair the leaking roof, the defendant was compelled to undertake some repair work in order to ensure habitable condition of the tenanted premises. It is under the law that a prudent tenant is obliged to do so.

After filing of the suit, an application was made for appointment of Commissioner and the learned Trial Judge appointed an Engineer as Commissioner to inspect the tenanted premises whether there has been any construction or the same was unauthorised or illegal. The defendant/appellant at that time was not happy with the order of appointment of Engineer Commissioner. Hence, he approached this Court in appropriate manner impugning the said order.

3. THIS Hon'ble Court in revisional jurisdiction modified the said order of appointment and in place of Engineer, a learned Advocate was asked to be appointed as Pleader Commissioner. The learned Advocate Commissioner was appointed and she inspected the suit premises and submitted report thereafter.

4. THE learned Trial Judge on the face of the aforesaid pleading had framed the following issues:

1. Has the tenancy of the defendant been terminated by due service of a legal, valid and sufficient notice to quit ?

2. Is the defendant a defaulter in payment of rent since June, 1979 ?

3. Has the defendant committed acts of waste and damage in contravention of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act?

4. Is the plaintiff entitled to a decree of eviction and khas possession ?

In course of hearing and on considering the materials it was found by the learned Trial Judge that the ground of default was not sound enough to examine the question of eviction on that ground. Hence, the learned Trial Judge proceeded to hear the suit, to write the judgment on the issue of unauthorised and illegal construction, within the meaning of clause (p) of section 108 of the Transfer of Property Act.

5. FROM the findings of the learned Trial Judge we notice that the learned Trial Judge while writing the judgment, has solely relied on the report of the Commissioner.

6. LEARNED Trial Judge was of the view that the defendant is liable to be evicted as he is proved to have made unauthorised construction, as alleged by the plaintiff.

Mr. Dasgupta, learned Senior Advocate with Mr. Hafizullah, while impugning the aforesaid judgment submits that there has been no finding of the learned Trial Judge that the construction is a permanent in nature, as required under section 108 clause (p) of the Transfer of Property Act. The report of the Commissioner does not lend any assistance, either to Court or to the cause of the plaintiff. He has taken us through the contents of the report as well as other documentary evidence, from where he says, no one can conclude that the case of the plaintiff has been proved. Besides, the nature of the construction, as alleged by the plaintiff, is not reflected in the report of the Commissioner and it is not of permanent character at all.

7. ACCORDING to him, in order to succeed in such a suit, one has to prove firstly that the construction is of permanent nature and secondly there must be evidence that no consent had been given. ACCORDING to him, evidence recorded establishes that this construction had been in existence before his client came into possession as the transferee tenant. The landlord is also a transfere