A structure constructed by a tenant is not a permanent structure within the meaning of clause (p) of section 108 of the Transfer of Property Act if it is easily removable, does not cause serious damage to the premises, and is intended for the better enjoyment of the demised premises.

This appeal arises out of a suit instituted by the plaintiff respondent for ejectment of the defendant/appellant from the disputed premises and for recovery of arrears of rent and for damages.

2. The plaintiff's case was that the defendant was a monthly tenant in respect of the suit premises at a rental of Rs. 40/- per month payable according to English calendar month. The defendant defaulted in payment of rent since October 1968. The defendant made additions and alterations in the suit premises by fixing a wooden partition and constructing a pucca partition in the suit premises without knowledge and consent of the landlord. A combined notice under s. 106 of the Transfer of Property Act and s. 13(6) of the West Bengal Premises Tenancy Act was served on the defendant.

3. The defendant contested the suit by filing a written statement contending inter alia that he was not a defaulter as alleged and that he had deposited rent since January to April, 1969 with the Rent Controller and filed a petition under s. 17(2A) of the West Bengal Premises Tenancy Act in respect of the arrears of rent from October, 1968 to December, 1968. It was alleged that the defendant constructed a wooden partition for the sake of convenience and security and for facility of his business long ago with the knowledge and consent of the plaintiff/landlord. It was denied that he made any pucca construction in the suit premises as alleged. The legality, validity and sufficiency of the notice was challenged.

4. The learned Munsif found that the notice to quit and to sue was served upon the defendant and it was legal, valid and sufficient. He further found that the defendant complied with the provisions of s. 17 and as such no decree for ejectment could be passed on the ground of default. He, however, found that the defendant made additions and alterations in the suit premises without the consent of the plaintiff/landlord and was therefore liable to be evicted under s. 13(1)(b) of the West Bengal Premises Tenancy Act and as such he passed a decree in favour of the plaintiff.

5. The defendant preferred an appeal which was dismissed. The learned Additional District Judge who heard and disposed of the appeal found that the defendant constructed permanent structure by diminution of the existing partition wall and by raising a pillar to support the upper portion of the wall without the landlord's consent violating Clause (p) of s. 108 of the Transfer of Property Act. He accordingly affirmed the decree for ejectment passed by the learned Munsif.

6. Mr. Mukherjee, learned Counsel appearing on behalf of the appellant, has contended that the lower appellate court did not properly consider the question whether the brick built pillar is a permanent structure within the meaning of Clause (p) of s. 108 of the Transfer of Property Act. It has been urged that the lower Appellate court did not apply the tests and merely assumed that it was a permanent structure and his finding cannot, therefore, be legally sustained.

7. The question whether a particular construction is a permanent structure within the meaning of Clause (p) of s. 108 of the Transfer of Property Act depends upon facts and circumstances of each case and no hard and fast rules can be laid down with regard to this matter. This question arose for consideration in Surya Properties Private Limited v. Bimalendu Nath Sarkar, AIR 1964 Cat. 1 (SB). The Special Bench held that the question whether a particular construction is a permanent structure or not, depends on the facts of each case and no hard and fast rules can be laid down with regard to this matter. At page 5 Bachawat, J. has observed as follows: "..................no hard and fast test can be laid down for determining whether a particular structure is a permanent structure for purposes of Clause (p) of s. 108 of the Transfer of Property Act. The nature and situs of the structure, its mode of annexation, the intention of the tenant and the surrounding circumstance