Himanshu Bikash Das vs Ramendra Mohan Dutta

Bhagabati Prasad Banerjee, J.—This in an appeal filed by the tenant/Appellant against the judgment and decree passed by the learned Second Judge, City Civil Court, Calcutta, in Ejectment Suit No. 584 of 1977 dated May 16, 1989. By the said order and judgment the Court below decreed the suit against the tenant/Appellant whereby the Plaintiff/opposite party was to get khds possession of the suit premises by evicting the Defendant/Appellant. The suit was filed by the Plaintiff/Respondent for eviction of the Defendant/Appellant on the ground of reasonable requirement and also on the ground of doing acts contrary to the provisions of Clause (O) and (P) of Section 108 of the Transfer of Property Act.

The Defendant/Appellant was a tenant under the Plaintiff/opposite party in respect of northern portion of premises No. 34/C, Keshab Chandra Sen Street (formerly known as 36K Keshab Chandra Sen Street) excluding two garages in the ground floor of the said premises, situated under Amherst Street P.S., Calcutta, paying a monthly rental of Rs. 70. The Defendant/ Appellant No. 2 was a sub-tenant in respect of the first floor of the said premises. The Plaintiff/opposite party was a sitting Judge of this Court at the time of filing the Suit and the family of the Plaintiff was consisting of himself, his wife, and his youngest unmarried daughter who was 14 years on the date of filing of the Suit. Apart from that two elder daughters of the Plaintiff were married and ordinarily reside with their respective husbands; both of them were stationed outside Calcutta. The Plaintiffs eldest son-in-law resides at Rishra in the district of Hooghly and the second son-in-law resides at Kharagpur in the district of Midnapore. The Plaintiff had no male child. The Plaintiff was residing at the front portion of premises No. 42, Keshab Chandra Sen Street, which was very near to the suit premises. The front portion of the said house and premises No. 42, Keshab Chandra Sen Street originally belonged to the Plaintiffs late father and was owned and occupied by the Plaintiff and his other three brothers with their respective families.

The Plaintiff had an undivided one-fourth share in the said front portion of the said property and an undivided one-seventh share in the south-western back portion of the said residential house and premises. It is an admitted position that in that house the Plaintiff was in exclusive possession only of two useable living rooms in the front portion, one of which had been converted into and was being used as his chamber and the other was being used as his bed-room. The drawing room was also used by the Plaintiff in common with other three brothers who were the co-sharers of the said premises. As the said front portion of premises No. 42, Keshab Chandra Sen Street, could not be conveniently partitioned into four separate lots and that, even if such partition was feasible, the same could not result in any improvement upon the Plaintiff''s existing accommodation. As the Plaintiff was not in possession of any reasonably suitable accommodations the Plaintiff filed a suit on the ground that the Plaintiff reasonably required the suit premises for his own use and occupation after making substantial addition and alteration thereto. At the time of filing of the suit the Plaintiff was a sitting Judge of this Court and the Plaintiff claimed that the Plaintiff required accommodation not only for himself, his wife and unmarried daughter and married daughters, but also for other staff who were living with him, such as one cook, two men servants and one maid-servant and he had to engage an additional servant when his grand-children came to live with him, which they did very often. The Plaintiff also claimed that the two elder daughters of the Plaintiff were married and ordinarily resided with their respective husbands outside Calcutta. They visit their parents at the weekends and during long vacations and holidays and for the purpose of their stay with their husbands and children, the Plaintiff reasonably requires some accommodation by evicting the Appellant/Defendant.

The other ground of eviction was for the acts done contrary to the provisions of Clause (O) and (P) of Section 108 of the Transfer of Property Act and it was alleged that in or about the end of 1974 the tenant/Defendant, without the knowledge of the Plaintiff/landlord and without the sanction of the municipal authorities, started construction of a brick-built room on the roof of the suit premises adjoining the garden to which the Plaintiff/landlord objected when the matter came to his notice, but in spite of the Plaintiff/landlord''s objection the tenant/Defendant No. 1 proceeded with such work and ultimately the Plaintiff/landlord had to take the help of Police authorities and the Corporation of Calcutta to get the said unauthorised construction stopped and to have the said room demolished. It was further case of the Plaintiff/landlord that for the purpose of making unauthorised construction of a room the tanant/Defendant raised high walls on the second floor of the suit premises, and due to the heavy load placed upon the roof and the parapet walls, the walls of the second floor had been sustained severe cracks and the safety of the building as a whole had been endangered. The tenant/Defendant No. 1 denied that the Plaintiff/landlord was the owner of the suit premises and also denied the relationship of the tenant in respect of the suit premises. The tenant/Defendant''s case was that the existing rooms under the occupation of the Plaintiff/landlord in the undivided front portion of the premises No. 42, Keshab Chandra Sen Street, was sufficient for his accommodation and, as such, the Plaintiff could not file a suit for eviction on the ground of reasonable requirement. Further, the defence of the Defendant/tenant was that the Plaintiff/landlord had houses at Camac Street and Baranagar in the suburb of Calcutta which had not been disclosed before the Court. The tenant/Defendant also denied that he had done any act contrary to the provisions of Clause (O) and (P) of Section 108 of the Transfer of Property Act.

The Court below on the basis of the evidence on record found that the Plaintiff was the owner of the premises in question and the relationship of landlord and tenant was established and that, according to the assessment made by the Court below, the Plaintiff/landlord reasonably requires the accommodation of three bed-rooms, one office room/chamber, one room for his ministerial staff, i.e. stenographer/typist and one drawing room besides dining space, kitchen, thakurghar and store-room. As against the assessment by the Court below the Plaintiff/landlord was in occupation of only one bed-room, one chamber, one common drawing room and a store-room on the ground floor where he stored fuel etc. The Court below also found that the Defendant/tenant was in occupation of two bed-room of small size. The Defendant/tenant No. 1 was a sub-tenant and was in occupation of two bed-rooms besides one bath-rooms and common privy and this together with the accommodation at the disposal of the Plaintiff/landlord would meet his reasonable requirements. The Court below also found that the Plaintiff had one-fourth share of the premises No. 42A, Keshab Chandra Sen Street, where he presently resided along with his brothers and he was in occupation of the first floor, one bed-room, one office room/chamber and one common drawing room between his bedroom and office room. The Court below also found that the Plaintiff had one-seventh share in Holding No. 42B, Keshab Chandra Sen Street, where there were two rooms on the first floor, one is a living room and one is a thakurghar and the living room was in occupation of Nab Krishna, his youngest brother. There is one room on the ground floor which is used for storage of coal fuel and other used goods by the Plaintiff. The Court below also found that the Plaintiff had one-fifth share in a premises in Camac Street, but the entire house was let out to some commercial undertakings which was a subject-matter of litigation. Further, the Plaintiff had one-eighth share in a house in Baranagar, but the same was in occupation of trespasser. The first floor of the said premises was unuseable. On the basis of the materials on record, the Court below found that the Plaintiff had no other reasonably suitable accommodation at least in the said two premises, namely, at Camac Street and Baranagar.

During pendency of the suit the Plaintiff/landlord retired as a Judge of the Calcutta High Court, and the Court below also took into consideration of the fact that it was placed on record that after the retirement the Plaintiff was acting as Arbitrator and/or appointed as Commissioner under the Commission of Enquiry. Acts and for that purpose the Plaintiff/landlord required to maintain office and office staff for discharging his duties and responsibilities even after his retirement for the purpose of attending those works which had been assigned to him or were being assigned after his retirement.

With regard to unauthorised construction which is in violation of provisions of (O) and (P) of Section 108 of the Transfer of property Act is concerned, the Appellant had admitted the said construction but stated it could no longer be held that could be a ground for eviction as because of demolition of the same cause of action, if any, had extinguished.

The case of the Appellant before this Court is that after the suit has been decreed, the youngest daughter, who was 14 in the year 1977 when the suit was filed, was married. Mr. D.P. Bagchi, learned Advocate appearing on behalf of the Appellant, contended that the Plaintiff/Respondent was not entitled to a(sic) decree for eviction on the ground of reasonable requirement, inasmuch as, firstly, it was contended that the landlord''s requirements did not include the requirement of married daughters, and that for the purpose of stay of the married daughters with their parents, no room could be allotted by the Court, inasmuch as it was submitted that after marriage in our country the girls become members of other family and, consequently, the daughters after marriage cannot have any occasion to stay at night along with parents. It was submitted that sons and daughters could not be equated for the purpose of landlord''s requirements. Sons'' requirement can be said to be the requirement of the father, but the daughters'' requirement does not and cannot come within the scope of requirement of the father. It was submitted that after marriage the daughters must stay with their respective husbands in their husbands'' places. It was submitted that the married daughters could not come within the scope of the expression "reasonably requires for his own use and occupation of the tenant" as mentioned in Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956.

It was further submitted that in the plaint the Plaintiff had not made any case that since the Plaintiff-Respondent had no son, he required the presence of his daughters and sons-in-law for looking after the Plaintiff/Respondent and his wife in their old age. It was further submitted that the Respondent No. 1, even though he is 70 years, and his wife were not ailing at the material point of time and, consequently, cannot be said to be dependent on two married daughters and their husbands for constant care and attention. It was submitted that when the married daughters permanently stay with their respective husbands, there was no question of their requirements for stay in the Plaintiff/landlord''s house. It was further submitted that before a landlord could get an order for eviction against the tenant, the landlord has to prove to the statisfaction of the Court that it is not merely his desire or wish to occupy the premises but he has present urgent need to occupy the sams. It was further submitted that the daughters and sons-in-law of the Plaintiff/Respondent had not adduced any evidence before the Court; so the Court cannot take into consideration of their needs while considering the requirements of the landlord/Plaintiff. It was submitted that the youngest daughter, who was 14 years in the year 1977, was given marriage in the year 1985 and, as such, the requirement of rooms for the unmarried girl was no longer in existence and, as such, the Plaintiff/Respondent was not entitled to eviction on the ground of reasonable requirement.

On behalf of the Respondent Mr. Sakti Nath Mukherjee with Mr. Pinaki Ghose submitted that the suit was decreed after 12 years from filing of the same and that at that point of time the suit was filed to the Plaintiff/landlord was a sitting Judge of this Court and even after retirement and at the time of decreeing suit his requirement remained the same in view of the fact that several assignments had been given to him who was acting either as Arbitrator or as Commissioner appointed under the Commission of Enquiries Act and, consequently, the Plaintiff/Respondent requires to maintain an office staff in connection with his official work even after the marriage of the married daughters, the requirement remains the same. It was submitted that there was no basis for making any classification between the son and daughter and, particularly, when the Plaintiff has no son, daughters and sons-in-law practically play the role of a son. It was submitted that, according to the Plaintiff, the Plaintiff/landlord required four bed-rooms besides one he already has to accommodate his daughters, his wife and himself, his wife should have a thakurghar where she can also perform puja and separate kitchen and store-room and a pantry. He should have three more privies and bath-rooms. His youngest daughter should have a dressing room and also study room, besides he should have a room for visitors and also a separate dinning space. The Plaintiff/landlord had ho son and so the married daughters were a part of his family, inasmuch as, they were required to look after the parents. His eldest daughter had two children and she visited him during weekend and various vacations when her children''s schools were closed. His eldest daughter was otherwise residing with her husband in Rishra where he was employed.

The Plaintiffs further case was that the second daughter comes and resides with the Plaintiff for 15 days in a month with her baby and would stay for long period during summer, Christmas and Puja holidays in the Indian Institute of Technology, Kharagpur, where the Plaintiffs second son-in-law was employed. The requirement as claimed by the Plaintiff/ landlord was not accepted by the Court, but the Court had assessed the lower requirement which was assessed by the Court below. The Court below had rightly come to a conclusion that for the purpose of reasonable requirement the Plaintiff/landlord was entitled to get a decree for eviction against the Defendant/Appellant in respect of the suit premises.

In support of his contention that the concept of ''family'' must be given a wider meaning for the purpose of requirement of the landlord for his own use and occupation, and in support of this contention reference was made to the decision of a Division Bench of this Court (a) in the case of Arora and Sons v. Devi Prasad Khanna 1989 (2) C.H.N. 274 , (b) Sm. Parimal Bala Roy and Others Vs. Santosh Kumar Bhattacharya, (c) Baldev Sahai Bangia Vs. R.C. Bhasin, and (d) Arora v. S.L. Sarma AIR 1982 Del. 105.

Under the West Bengal Premises Tenancy Act, 1956, the landlord can get an order of eviction if he can satisfy the Court that the premises is reasonably required of his own use and occupation and it is also well-settled that the landlord''s requirement does not meet requirement only for his personal use, but the requirement of, his family members is also to be taken. The word ''family'' has not been defined under the Act. The question is whether the landlord, who had no son, can file a suit on the ground of requirement of his married daughters for the purpose of their stay occasionally or permanently with the landlord. It was contended by the learned Advocate appearing on behalf of the Appellant that the married daughters could not be considered to be a member of the family of the landlord because after marriage she becomes member of other family, otherwise she stays at that family. In this case, the admitted position is that the Plaintiff/landlord had no son and he had only three daughters and he claimed rooms for stay of married daughters at the weekend, and during holidays and long vacation.

In Parimal Bala Roy''s case (Supra) it was held by the Division Bench that the statute nowhere uses the expression ''family''. The requirement for the purpose of evicting a tenant is for the landlord''s own occupation. Time and again the different High Courts held that the concept of a family must be given a wider meaning, and where it appears that the son-in-law of the landlord lived in a rented house and the married daughter was his only child, it is nothing unnatural or improbable that she might come and stay with her father and grand-mother on different occasion and for that one room would indeed be required.

We respectfully agree with the view expressed by the above Division bench judgment and the ratio of that judgment is fully applicable in the facts and circumstances of the case.

ln Baldev Sahai v. R.C. Bhasin''s case (Supra) Supreme Court held that When a tenant was living in the tenanted house with his father, mother, two sisters and a brother, and subsequently, the tenant shifted permanently to Canada along with his wife and children. While leaving for Canada the tenant had left his mother and brother in the house. In this connection it was held that the word ''family'' has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head. The beneficial provision must be meaningfully construed so as to advance the object of the Act. The term ''family'' must always be liberally and broadly construed so as to include near relations of the head of the family. In our view, even though the case was decided in connection with the family of the tenant, the same principle should also apply to the family of the landlord/owner.

In S.K. Arora''s case (Supra) the Delhi High Court held that the requirement of the landlord for accommodating his married daughter with family for looking after him and his wife who were aged and sick, was bona-fide and personal requirement of the landlord to entitling him for a decree of eviction. On the basis of the principles laid down in the above cases, it is clear that the concept of ''family'' of the landlord/owner cannot be given a restrictive meaning contrary to the spirit of the Act and the Court would introduce the meaning which is contrary to the need of the landlord and that in case the landlord had no son, the daughter and son-in-law must be treated as their son.

The case law referred to by learned Advocate appearing on behalf of the Respondents was firstly with regard to a Division Bench of this Court in case of Kanai Lal v. Sadhan Chandra AIR l977 Cal. 173. The ratio of that judgment is not applicable to this fact, inasmuch as, in that case the landlord sought eviction of the tenant so that he might accommodate the son-in-law when son-in-law had a house and establishment in the village home and where he had looked after his own parents and, further in that case, the landlord did not require the assistance of the son-in-law in view of the fact that the nephew whose parents died when he was quite young and was brought up by the landlord in his own house and was married and was living with the landlord, held to be the member of the family and, that under such circumstances, was held that the accommodation for son-in-law in that house was not bona-fide one.

In Arora and Sons'' case (Supra) the Division Bench of this Court held that in Case of ailing parents, Who had no son they require the close relations for this help and the married daughter and her family had to look after them and, as such, for such married daughter the landlord bona fide require the premises.

The other case law on which reliance was placed on behalf of the Appellant was Ramesh v. Balreddy (Supra). In this case, the landlord pleaded that the premises was required for his married Doctor daughter for running a separate clinic when it was found that the said daughter was assisting her Doctor husband in a clinic maintained by her husband and that, in that case, it was evident that the landlord was forcing the tenant to raise rent from time to time and was marking further demand which was not acceded to by the tenant. Under such circumstances, the Supreme Court held that the requirement of the landlord in that circumstances was fanciful and could not be accepted on good ground for eviction. The ratio of that judgment also does not help the case of the Appellant before this Court.

In this case, the suit was filed by the landlord in the year 1977 and the trial Court took about 12 years to dispose of the suit. It is evident from the records the several witnesses were examined and about 500 questions were put during examination and cross-examination of the Plaintiff. In short, the Plaintiff/landlord had undergone a marathon process for the purpose of establishment of his reasonable requirement in the facts and circumstances of the case.

In the statute the expression ''landlord'' includes any person who for the time being is entitled to receive the rent of any premises on his own account who would be member of the family of the landlord. The expression ''tenant'' means any person by whom or whose account on behalf of the rent of any premises is payable but for a special contract and includes any person continuing in possession after the termination of his tenancy or in the event of such person''s deaths such of his heirs who were ordinarily residing with him at the time of his death. In view of such definition in case of death of a tenant even a married daughter, who was ordinarily residing with the deceased tenant, becomes a tenant and such a married daughter is required to be recognised as a tenant. The married daughter is entitled to all protection under the Act. If the Legislature contemplated that, in case of a tenant, there will be discrimination between sons and daughters whether married or otherwise and even if the married daughters whether married or otherwise and even if the married daughters reside with the tenant, she would become a tenant and she has the right to continue as a tentnt.

Under the Hindu Succession Act, 1956, sons and daughters stand at par. Sons and daughters are included in class I category of heirs. On the death of landlord both sons and daughters would be entitled to share of the property in equal share. In case of a tenant, the married daughter who was ordinarily residing with the deceased tenant would become a tentnt. From the definition of the word ''tenant'' the Legislature never intended to restrict the right of residents only of the sons and not the daughters. The word ''family'' of the landlord cannot mean only sons and grandsons and the wives of the sons but also of the other such as daughters married or otherwise because they stand at par under ordinary law of succession. It was contended that daughters after marriage go out of the family. This is a concept which is based on mediable age of thinking. In India the daughter after marriage was considered to be a stranger. The daughters had no right of inheritance in the father''s property. But after coming into operation of Hindu Succession Act, this concept has given a go-buy. The daughters have equal share with that of the sons. The question is whether the Legislature can provide any such definition of ''family'' of the landlord excluding the daughters or the married daughters.

Article 15 of the Constitution provides that the State shall not discriminate against any cirizen on grounds only of religion, race, caste, sex, place of birth or any of them. The discrimination against a man or woman only on the basis of sex would be violative of Article 15(1) of the Constitution of India. Article 15 is an instance of the right of equality which is generally stated in Article 14 of the Constitution. Article 14 is available to all persons. Article 15 is available to citizens only. Article 14 also guarantees the right of equality. The question is whether any classification is made between the sons and daughters for the purpose of right of residents in the father''s premises. In my view, it is difficult to make such classification. Sons may come within well definite class, but in view of constitutional position, we are unable to hold that the daughter after marriage become outsider to the family. This concept is violative of Articles 14 and 15 of the Constitution.

In the instant case, when landlord has no son, daughters whether married or not, are to be treated for all purposes as sons of the parents and that the daughters will company to their father and mother and look after them of their old age and that in the present day society it is quite but natural, that a man who has no son, but only daughter, the daughter plays the role of a son. The daughters maintain their parents and look after them in case of illness and difficulties. Simply because God had gifted male child, he has to be deprived of the company of daughters on the concept that married daughters become strangers to the family. We are unable to subscribe this view. We can no longer influence our judicial thinking by the old social concept of discrimination between the sons and daughters for judging the requirement of the landlord and particularly when the landlord has no male child. In our view, when the Legislature had clearly recognised the rights of married daughter if she resides at the time of death of the tenant, the daughter married or otherwise ordinarily resides or periodically resides, such as at the week-end and during vacation, should be taken to be member of landlord''s family.

There is another aspect of the matter that the landlord had only to establish that the suit premises was reasonably required for his own use and occupation. In such a case, the Court is required to direct its mind to the question of the dwelling house is required for only reasonable accommodation and that there must be a genuine need at the time of hearing. It has to be established that something more than a desire, but something much less than absolute necessity. In considering the question of landlord''s requirement, there may be a question of hardship of the tenant, but the Court is powerless in this regard, inasmuch as, if the landlord has established that the premises is reasonably required, the Court is only required to see whether it is so required on the basis of the evidence on record. The word ''reasonable requirement'' cannot be equated with the expression actual requirement.

According to Webster Third New International Dictionary, the word ''reasonable'' means "being in agreement with right thinking or right judgment; not conflicting with reasons; not absurd; not ridiculous". Judging from this standpoint the Court is only concerned to see whether such requirement is absurd or ridiculous. If sons and grandsons can be regarded as members of the landlord''s family and if for the purpose of residence and for other purposes of the sons arid grandsons, the Court has empowered to pass a decree, in our view, in case of a landlord who had no son, married daughters should be treated to be members of the landlord''s family. Any other contrary view would be against the social order and would destroy the concept of equality between sons and daughters, between men and women. If the tenant''s married daughter can claim a right of residence after the word ''tenant'', in our view, the Plaintiff/landlord has right in claiming rooms for the purpose of stay of married daughters in his residence in the facts and circumstances of the case. Such requirement is reasonable and not ridiculous or absurd.

Secondly, in the instant case, because of the fact that the Plaintiff/landlord had to discharge his function for various capacity, even after his retirement from the post of Judge of the Court, he has to maintain an office with staff and for the purpose of holding arbitration and other works, the Plaintiff/landlord is entitled to claim room for his office purpose as well as for the purpose of stay of servants and maid-servant and other staff which are required to be maintained the Plaintiff/landlord considering the status and need of by the Plaintiff/landlord. While deciding the question whether the landlord reasonably required premises in question, the Court has not to act as the guardian of the landlord, but the Court is only required to see whether the requirement was reasonable one or not. It is not for the Court to suggest that the landlord''s requirement may be achieved if the landlord stays in other place and keeps his office in one building and sleeps in another building. When the suit property in question is allotted to the Plaintiff, the Plaintiff is entitled to stay in his own house according to his requirement and, considering the facts and circumstances of the case and evidence on record, we are of the view that the landlord has been able to prove the requirements successfully before the Court below which is affirmed by this Court. The question of reasonableness has to be considered in the light of the circumstance.

The next question is whether the Plaintiff has any other suitably reasonable accommodation elsewhere on which the learned Counsel appearing on behalf of the Appellant made much trace on it. It cannot be disputed that the Plaintiff had one-seventh share in holding No. 42C, Keshab Chandra Sen Street and that there are only two rooms on the first floor, one of which is a living room and one is thakurghar and the living room was in occupation of Nab Krishna, his youngest brother. There is one room on the ground floor which is used for storage of coal fuel and other used goods by the Plaintiff/landlord. So the premises No. 42C, Keshab Chandra Sen Street cannot be suitable alternative accommodation. Similarly, with regard to the premises No. 42A, Keshab Chandra Sen Street is concerned, the Plaintiff had one-fourth share in the premises, where his other brothers stay with their family. The accommodation in holding No. 42A, Keshab Chandra Sen Street, as hereinbefore stated, cannot be said to be a suitably reasonable accommodation. Similarly in Camac Street property where the Plaintiff/landlord has one-fifth share, but the same is wholly let out to commercial undertakings. Similarly, Baranagar property cannot be said to be a suitably one, inasmuch as, where he has one-eighth share and the ground floor is in the occupation of the trespasser and the first floor cannot be used. Accordingly, in our view, the Court below had correctly decided the question that the Plaintiff had no other suitable accommodation elsewhere in the suit premises.

There is another point which was highlighted that there are five lock rooms in premises No. 42A, Keshab Chandra Sen Street, There was no stand taken, to be pleaded and we do not find any reason that five rooms were available to the Plaintiff/landlord and the Court below had held on the basis of the evidence that the Plaintiff is the owner of one-fourth share in the said premises and the Title Suits Nos. 2246 of 1979 and 2247 of 1979 are ended in favour of the heirs of Jyotindra etc. and five rooms under lock and key may be claimed by the legal heirs and co-sharers and that the Plaintiff can get at least one room from the five rooms. We do not find any substance of the contention of the learned Advocate appearing on behalf of the Appellant that the suitable alternative accommodation is available to the Plaintiff/landlord in the facts and circumstances of the case. Accordingly, we hold that the Court below was right on the basis of the evidence on record that the Plaintiff reasonably requires the suit premises for his own use and occupation and this Court had considered the same taking into consideration the subsequent events. The Court below had also granted the decree for eviction on the gound of acting contrary to the provisions of Clause (O) and (P) of Section 108 of the Transfer of Property Act. It is admitted position that the tenant had made unauthorized construction of one room on the roof, but subsequently that had to be demolished. But it is also in evidence on record that because of heavy load on the roof of the old building, there had been cracks on the roof.

The Court below found on the basis of the evidence on record that the Defendant/Appellant raised a permanent structure in the suit property without consent of the Plaintiff/landlord and without sanction of the municipal authorities which is in violation of Clause (O) and (P) of Section 108 of the Transfer of Property Act. Acting in contravention of provisions of Clause (O) and (P) of Section 108 of the Transfer of Property Act is a specific ground for eviction u/s 13(1)(b) of the West Bengal Premises Tenancy Act. On the basis of the evidence on record it is also clear that the said structure was raised wrongfully without obtaining plan from the municipal authorities and/or obtaining necessary permission from the Plaintiff/landlord. True it was dismantled. Dismantling the unauthorized construction by the Defendant cannot relieve him from the liability of the consequence under the West Bengal Premises Tenancy Act flowing from such wrongful acts unless it is established that the Plaintiff had condoned such an act of the Defendant and waived his right to act against the Defendants, but there was nothing on record to show that the Plaintiff had condoned such wrongful acts of the Defendant/Appellant. True, the Rent Controller passed certain orders, but that orders were passed by the Rent Controller for the purpose of repair, inasmuch as, in the instant case, because of making of unlawful construction, the house was permanently damaged.

In our view, the Defendant/tenant was guilty of the provisions of Clause (O) and (P) of Section 108 of the Transfer of Property Act and was guilty of acts of wastes and negligence resulting the material deterioration of the condition of the suit property by failure to repair as per direction of the Rent Controller.

Considering the. facts and circumstances of the case, we do not find any reason to interfere with the judgment and decree passed by the trial Court dated May, 16, 1989, passed in Ejectment Suit No. 584 of 1977. Accordingly, the appeal is dismissed without any order as to costs.

Sachi Kanta Hazari, J.

I agree.