IMPORTANT POINT
Act of tenant of replacing service privy by a pour flash privy with assistance of local municipality but without obtaining any consent from his landlord does not amount to erection.

Tarun Kumar Gupta, J.— This appeal arises out of a judgment and decree dated 18th November, 2008 passed by the learned Additional District Judge, Fast Track Court II, Krishnanagar, Nadia in Title Appeal No.20 of 2006 reversing the judgment dated 29th July, 2005 and decree thereof passed by the learned Civil Judge (Junior Division), Nabadwip, Nadia in Title Suit No.110 of 2001.

2. The respondent as plaintiff files a suit for eviction against the appellant/tenant on the grounds of default, damage and violation of conditions of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. According to the plaintiff, the defendant was a tenant under the plaintiff at a rental of Rs.14/- per month payable according to Bengali calendar month and he defaulted in payment of rent since Poush 1394 B.S. It is further case that the defendant illegally converted the service privy into a pour flash privy by illegally blocking the passage .of the plaintiff landlord and also raised a tin shed room on the roof of said tenanted portion without any authority. Accordingly, the plaintiff landlord filed a suit for eviction after serving statutory notice upon the defendant tenant.

3. The appellant/defendant tenant contested •the said suit by filing written statement denying material allegations of the plaint. It is contended, inter alia, that as the suit premises is situated in a low area which is flooded not only by flood water but also by rain water, the defendant was compelled to raise a tin shed temporary structure in the roof of the suit premises for shelter of his family members during rainy season. It is further alleged that service privy was converted into pour flash privy as per direction of the Nabadwip Municipality within the knowledge of the plaintiff landlord.

4. Learned trial court framed several issues including an issue as to whether the defendant was defaulter and whether the plaintiff landlord was entitled to get a decree of eviction on the grounds as alleged in the plaint. Learned trial court after contested hearing dismissed the suit for eviction by observing that the plaintiff failed to make out any case of causing damage by raising permanent structure by the defendant tenant. Learned trial court also granted protection to the defendant tenant against the eviction on the ground of default under Section 17(4) of the West Bengal Premises Tenancy Act. Learned trial court further held that the structure on the roof was nothing but temporary in nature and that it cannot be said to be a permanent in nature calling for eviction of the defendant tenant.

5. However, in the appeal preferred by the plaintiff landlord, learned lower appellate court set aside the judgment of the learned trial court and decreed the eviction suit on the ground that the conversion of the service latrine into pour flash privy and construction of the room on the roof of the tenanted portion were not found to be made with consent, not to speak of written consent of the landlord and hence the defendant tenant was guilty of violation of clauses (m), (o) and (p) of Section 108 of Transfer of Property Act and was liable to be evicted on that score.

6. The defendant tenant has filed the second appeal. The following substantial questions of law were formulated for hearing of the second appeal.

(i) Whether the learned court of appeal below committed substantial error of law in treating the action of the appellant in making construction of a pour flash privy as violative of clause (m), (o) and (p) of Section 108 of the Transfer of Property Act when, in the earlier suit, the appellate court has directed demolition of such privy with further direction upon the respondent to construct a sanitary privy in accordance with the Municipal Rules within a specified period?

(ii) Whether the learned court of appeal below committed substantial error of law in overlooking the fact that a landlord cannot take advantage of his own wrong by not complying with the mand