( 1 ) THE deceased defendants heirs challenge in this appeal the eviction decree passed by the lower appellate Court on the ground that the defendant tenant had without the landlords consent in writing erected on the premises structures of permanent nature and was therefore disentitled from getting any protection under the Rent Act in view of sec. 13 (1) (b) of the Saurashtra Rent Control Act 1951

( 2 ) THE test for determination as to what is a permanent structure has now been evolved by the decision of the Division Bench consisting of Bhagwati J. as he then was and myself in VI G. L. R. 27. While interpretting the said section in Ibrahim v. Haji Khanmahomad Bhagwati J. speaking for the Division Bench in terms pointed out that considering the scheme of sec. 108 (h) of the Transfer of Property Act which entitled the tenant on the determination of the tenancy to remove at any time whilst he is in possession of the premises all things which he has attached to the earth it was obvious that when the Transfer of Property Act created this prohibition under sec. 108 (q) it contemplated permanent structures which would not be easily removable and the removal of which might injuriously affect the premises. The right to enjoy possession of the premises cannot include the right to erect permanent structures as they would also alter the character of the premises. It was therefore made a ground of eviction. That is why on p. 32 it was pointed out that while judging the permanent character of the structure what was material was the nature of the structure and the nature of the materials used in the making of the structure and the manner in which the structure is erected and not the question how long the tenant intended to make use of the structure. The Legislature contemplated an objective test and once it is shown that the structure created by the tenant is of such a nature as to be lasting in duration lasting of course according to ordinary notions of mankind the tenant cannot come forward and say that he erected it for use for only a temporary period and it is therefore a temporary structure. Therefore to that extent the objective test would prevail over the subjective intention of the tenant in that the structure which fulfills the objective test by having a permanent element would not cease to be a permanent structure merely because of the intention of the tenant otherwise this objective test would have to be applied keeping in mind the intention of the tenant that he was putting a structure intended to be of a lasting character. That is why the bamboo and the iron sheets which were put up in that case on the open land were from the nature of the material used even when two rooms were created were held to be not permanent structures so as to deprive the tenant of the protection under sec. 13 (1) (b ). In Surya Proprietors (Pr.) Ltd. v. Bimalendu Nath A. I. R. 1964 Cal. In the Special Bench had also considered this question by holding that whether a particular construction is a permanent structure or not for the purpose of clause (p) of sec. 108 T. P. Act depends on the facts of each case and no hard and fast rule can be laid down with regard to this matter. On p. 14 Mukherjee J. in terms pointed out that what would be relevant would be the nature of the structure or construction in question and the intention with which it is made and almost in every case they would be of prime importance the sites the mode of annexation and the surrounding circumstances being all appropriate matters for consideration on the above two basic and usually determinant elements. Therefore as per the test laid down by the Division Bench the permanent nature of the structure would have to be found out by looking to the nature of the construction by applying the objective test where the intention of the tenant would also be a relevant factor whether he intended to put up a lasting structure by looking to the very nature of the construction the mat