A tenant who makes a permanent structure on a portion of the tenanted premises to which the landlord and/or other tenants can have access, without the landlord's consent, violates the provision of section 108(p) of the Transfer of Property Act, 1882, and thereby section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956, and is liable to be evicted.

Banerjee. J. :- This appeal at the instance of the tenants arises out of a suit for eviction on the ground of contravention of the provision of clauses (m), (o) or (p) of section 108 of the Transfer of Property Act. The allegations made in the plaint are that the plaintiff-respondent is the landlord of premises No. 209/B, Acharya Profulla Chandra Road, Cal-4. The defendant was a monthly tenant in respect of a flat on the second floor of premises No. 209/B, Acharya Profulla Chandra Road, Calcutta-4, at a monthly rent of Rs. 35-50P payable according to the English Calender month. Therefore the tenancy was determined by a combined notice to quit on 26th April, 1969. It is alleged that the tenant without the knowledge and consent of the landlord made unauthorised construction of a room with pucca walls of brick with cement by digging the roof of the house in various places and thereby contravened the provisions of clauses (m), (o) or (p) of section 108. It is further allege that by notice dated 17th April, 1969 the defendant was requested to demolish the structure but the defendant failed to do so. Hence the suit. The court below decreed the nit brought by the plaintiff. Hence this appeal. During the pendency of the appeal, the defendant. Tara Pada Dutta, died leaving his widow Padma Rani Duttli and three daughters, Kalpana Dhar, Kabita Ghosh and Rubi Banerjee. Only the widow Padma Rani Dutta and other two daughters were impleaded as reaponsents.

2. Mr. Motilal at the time of hearing argued three points; firstly that the disputed construction was outside the demised premises let out find therefore section 13(1)(b) of W. B. Premises Tenancy Act read with section 108(m), (o) or (p) of T.P. Act does not at all apply; secondly, that the structure is not a permanent structure, and thirdly that, even if section 108(m), (o) and (p) of the Transfer of Property Act applies, under section 114 of the Transfer of property Act, the notice should be given for three months to remove the structure but such notice not having been given the suit as framed is not maintainable.

3. Mr. P.N. Bhattacharjee, on behalf of the respondent, however, contended that section 108 (m), (o) or (p) of Transfer of Property Act does apply in the facts and circumstances of the case Moreover, it is argued that when the notice was given directing the defendant to remove the structure, a reply was given by the learned Advocate on behalf of the tenant that the construction of a very small room on the roof was made with the consent of the landlord and intended to be used as a temporary arrangement. (Vide Ext. 3a). As regards, the nature of the construction whether it is a permanent structure or a pucca structure, it is argued by Mr. Matilal that the structure is not a permanent structure and heavily relied on the case reported in (1) 67 CWN 977 at 1002 whereas Mr. Bhattacharjee relied upon (2) 65 CWN 626 (1) AIR 1965 Cal 408. The fact which could not be disputed in the Court below is that the tenant constructed a room unauthorisedly on the roof of the tenanted premises and the construction was of a room made of pucaa wall of brick with cement with tiled shed on the roof of the premises in question. It has also been found that the structure is a permanent structure unauthorisedly built by the defendant without the consent of the plaintiff. The case of the defendant in the written statement and during trial however, is that he did not raise any structure on the suit premises but tile structure was there on the roof when the premises wallet out to the defendant. The plaintiff's evidence is that it was a pucaa structure with tiles. The structure has been raised after digging the roof. In our opinion, the structure constructed with cement and brick cannot be said to be other than permanent in nature. In the case reported in (1) 67 CWN, 977 (Suraya Properties etc. v. B. N. Sarkar) at 1002 Mr. Justice P. N. Mookerjee held that "no hard and fast rule can be laid down in the