Mrs. Kathleen Meyer vs P.K. Ghosh

P.N. Mookerjee, J.—This appeal arises out of a suit for ejectment. The suit has been dismissed by the trial court and the Plaintiff has come up on appeal.

The suit was filed on June 19, 1952. It was a simple suit for ejectment on notice to quit and the bar of the Rent Control Act was sought to be avoided by the Plaintiff on the plea of her reasonable requirement of the suit premises for her own occupation and on the further plea of the Defendant''s contravention of Clauses (m), (o) and (p) of the Transfer of Property Act, that is, under proviso (h) and also proviso (d) to Sub-section (1) of Section 12 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.

The Plaintiff''s material allegations were denied by the Defendant who pleaded inter alia insufficiency and invalidity of the notice to quit and disputed the plain tiff''s claim of reasonable requirement for her own occupation and also her averment of contravention on the Defendant''s part of any of the above provisions of the Transfer of Property Act.

The suit premises comprise the entire upper or first floor of Municipal premises No. 4, Moira Street together with one garage and three godowns in the ground floor of the said Municipal premises. The property originally belonged to Lt.-Col. R.L. Dutt, a well known medical practitioner of. his time and a reputed member of the I. M.S. He left considerable properties including the above Municipal premises No. 4, Moira Street to his grandson Rangulal Dutt since deceased under whose Will, the Plaintiff claims title to inter alia the disputed premises. That Will is dated December 5, 1948 and upon Rangulal''s death on February 28, 1949, the Plaintiff applied for and obtained Letters of Administration in respect of the said Will from the Original Side of this Court on or about July 6, 1949. That she is the residuary legatee under Rangulal''s Will and as such obtained title to the suit property cannot be disputed and, as on the evidence before the court, the learned Subordinate Judge''s finding that the estate has bean fully administered cannot be questioned, the Plaintiff''s locus standi to maintain the present suit has to be conceded. That, indeed has been accepted by the Defendant Respondent and the Plaintiff''s title to the suit property or her locus standi to maintain the present suit has not been challenged before us. The controversy between the parties is now limited to three points, namely, (i) the sufficiency and validity of the notice to quit, (ii) the question of the Plaintiff''s reasonable requirement of the suit premises for her own occupation, and (iii) the question of the Defendanf''s contravention of Clauses (m), (o) (p) of Section 108 of the Transport of Property Act, and, for understanding the nature and scope of that controversy it is necessary to refer to certain facts and the relative allegations of the parties and to that task we shall proceed at once.

In the plaint which was as stated above, filed on June 19, 1952, the relevant allegations were briefly as follows:

(1) that the Defendant was in occupation of the suit premises, comprising the entire first floor flat of Municipal premises No. 4, Moira Street, described in Schedule "A" of the plaint, and the furniture and crockeries, mentioned in Schedule "B" as a monthly tenant under the Plaintiff at a rent of Rs. 500 per month, payable according to the English Calendar, (2) that the Plaintiff was in need of accommodation, she having in her occupation only a portion of the ground floor of the above Municipal premises, comprising one bed room, one sitting and dining room combined and one bath room, which was insufficient for her needs, (3) that the Plaintiff was engaged to one Mr. Meyer and their marriage was to be solemnised on that very day, namely, June 19, 1952, (4) that the said Mr. Meyer had three sons and the Plaintiff two step-daughters, (3) that the Plaintiff reasonably required the disputed premises for her own occupation, that is, for the occupation of herself and the said Mr. Meyer and the members of their respective families, (6) that the Defendant had altered the character of the disputed flat from a family residence to a place of business and converted a store room into a bath room with sanitary lavatory and wash basins "without any consultation or sanction from the "Plaintiff" and no proper arrangement having been made had got damaged by reason of over-flow of the same. The Defendant had also wrongfully pulled down a wall to insert a window and constructed a wooden store room (box room) at the entrance of the staircase. In- short, the Defendant was guilty of having done acts, contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, and, as such, was not entitled to the protection of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and (7) that, by a proper notice to quit, the Defendant''s tenancy had been duly terminated with effect from the expiry of the month of May, 1952, but the Defendant had not vacated the suit premises.

In the plaint, the Plaintiff described herself as Mrs. K. Dutta alias Kathleen Wiseman, widow of Rangulal Dutta, deceased.

The defence inter alia was a denial of the Plaintiff''s material allegations and in his written statement filed on January 12, 1953, the Defendant averred in particular:

(i) that the suit as framed was not legally maintainable and the Plaintiff had no cause of action against the Defendant, (ii) that the Defendant was that tenant in respect of the entire first floor of premises No. 4, Moira Street including one garage and three servants'' godowns at a monthly rent of Rs. 500 per month as also of another garage in the said premises at Rs. 30 per month and the two together constituted a singly tenancy, (iii) that the Plaintiff had no step-daughters and she had no reasonable requirement of the suit premises, (iv) that the Defendant had not altered the character of the suit premises, nor had he constructed any wooden store room at the entrance of the staircase nor partitioned the verandah, as alleged by the Plaintiff, nor had he converted ''the store room into a bath room "without consultation or "sanction from the Plaintiff", (v) that the Defendant was not responsible for causing damage to the walls and had not been guilty of doing any act contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, (vi) that the notice to quit was insufficient and invalid, and, (vii) that the Plaintiff''s suit was mala fide and speculative.

The above written statement was amended some time later by raising a further defence to the effect that the Plaintiff was not the window of Rangulal Dutt and had no right to sue in personal capacity. This amendment was made on an application which was filed on April 1, 1953, and allowed on July 11, 1953.

In the meantime on May 26, 1953, the Plaintiff also had applied for amendment of the cause title of the plaint by changing her name from Mrs. K. Dutt to Mrs. K. Meyer on account of her marriage with Meyer (Bertie Meyer) which took place on June 19, 1952, as per arrangement mentioned in the original plaint, and the said application was also allowed on the above July 11, 1953.

To the above amended plaint, the Defendant filed an additional written statement on July 21, 1953, pleading specifically inter alia that he was a tenant of the suit premises not under the Plaintiff in her personal capacity or as widow of late Rangulal Dutt but under the estate of the said R.L. Dutt, deceased, of which the Plaintiff was the administratix and that his said tenancy was not only in respect of one flat alone but it had other parts and the notice to quit was defective. The Defendant also denied the factum and validity of the Plaintiff''s marriage either with Rangulal Dutt or with Bertie Meyer.

Thereafter on January 20, 1954, the suit was taken up for hearing and while the suit was being beard, that is, during or in the course of hearing of the suit, the plaint schedule was amended by including specifically therein the garage and three godowns in the ground floor by way of fuller description of the Defendant''s tenancy in suit. The Defendant, thereafter, filed another additional written statement, objecting to the suit on the ground that it was bad in law, being one for partial-ejectment which was not leagally permissible.

The learned Subordinate Judge eventually dismissed the suit by his judgment and decree, dated February 26, 1954, on the following material findings: (a) That the notice to quit was bad as it had omitted to mention the garage and the three godowns in the ground floor as part of the Defendant''s tenancy and was thus not in respect of the said entire tenancy and as in any event, the notice was misleading; (b) that the Plaintiff had no reasonable requirement of the suit premises for her own occupation as the accommodation she had was sufficient for her needs, though possibly, it was not very convenient; and (c) that the Defendant was not guilty of contravention of any of the Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.

On this last question the learned Subordinate Judge accepted the Defendant''s denial of the Plaintiff''s allegation that he had pulled down a wall and inserted a window and he also found that no permanent structure had been erected or damage done by Defendant, so as to bring him within the mischief of any of the above clauses.

In arguing the appeal on behalf of the Plaintiff Appellant, Counsel Mr. E.R. Meyer has challenged all the above findings of the learned Subordinate Judge. Mr. Gupta on the other hand, appearing for the Defendant Respondent, has supported all the said findings and he has also relied on two letters, filed by his client, the Respondent abovenamed, in this Court, which Mr. Gupta asked us to take as additional evidence in the appeal. To this prayer of Mr. Gupta we shall turn at once and then we shall consider the merits of the above findings of the learned Subordinate Judge.

In answer to the Defendant Respondent''s application for reception of additional evidence, the Plaintiff Appellant has sworn a counter affidavit, explaining the circumstances, in which the above two letters came to be written by her, and, by consent, we took in the two letters along with the Defendant Respondent''s application for reception of additional evidence and the Plaintiff Appellant''s counter affidavit in answer as additional evidence in this appeal instead of proceeding formally in the matter by way of requiring formal proof of the said two letters and substantive oral or other evidence in rebuttal. The Respondent''s application for reception of additional evidence we have marked as Ext. H.C.R. 1 and the above two letters in original (copies whereof were made annexures to the said application) as Exts. H.C.R. 2 and H.C. R. 3 and the Appellant''s counter affidavit as Ext. H.C.A. 1 and we shall duly consider them along with the other relevant evidence on record on the point in determining the question of the Plaintiff''s reasonable requirement of the disputed premises for her own occupation.

We take up now the question of notice first. The notice (which is Ext. 5. in the case) referred to the Defendant''s tenancy under the Plaintiff as one in respect of the first floor flat of premises No. 4, Moira Street, inclusive of furniture, crockery, etc., and demanded possession of the said first floor flat and it expressly mentioned the rental as Rs. 500 per month. It did not of course specifically, or in express terms, mention the garage and the godowns in the ground floor which also were admittedly part of the Defendant''s above tenancy under the Plaintiff but the description sufficient to attract the said garage and godowns in view of the express mention of the rental of Rs. 500 per month in the light of the substantially similar description of the Defendant''s tenancy in the previous correspondence between the parties including the Defendant''s own letters [vide Exts. C, 11, 12(a), 12(6) 12(c) and E] which show that the Defendant''s tenancy in suit which admittedly included the above garage and godowns went by the description of "tenancy of the upper or top floor flat of premises "No. 4, Moira Street." Further the notice to quit (Ext. 5) was at the worst, ambiguous. It obviously intended cessation or termination of the Defendant''s tenancy under the Plaintiff of Rs. 500 per month, though purporting to demand possession of the "first floor "flat" and not expressly of the garage and godowns in the ground floor which admittedly were part of the Defendant''s said tenancy. The ambiguity, however, could not have misled the Defendant Whatever the above description might have meant as or conveyed to a stranger, the Defendant (the tenant) certainly knew what was comprised in his tenancy of the first floor flat of premises No. 4, Moira Street at Rs. 500 per month under the Plaintiff and, as reasonably enough, he could not have thought on the notice to quit that that tenancy was being partially terminated by the said notice, and that was clearly not permissible in law, he could not have got the impression that he was being asked thereby to vacate only the first floor and to retain possession of the remainder of the tenancy, namely, the garage and the godowns, particularly when the notice did not purport to apportion the rent or to mention the part of the rent of Rs. 500 per month which was to be paid for the said remainder or remaining portion of the tenancy. It is not also the Defendant''s case or evidence either, that he was under any such impression or was misled as to the effect of the notice. In the above circumstances, it is impossible to accept the learned Subordinate Judge''s finding that the notice to quit (Ext. 5) did not cover the entire tenancy of the Defendant, now in suit, or that the Defendant was or might have been misled as to the effect of the notice and thus the entire basis of his decision against the Plaintiff on the above question of the validity and the sufficiency of the notice to quit disappears.

In support of our view, it is necessary to refer only to the decision of the Judicial Committee in the well known and oft quoted case of 23 CWN 77 (Privy Council) , where their Lordships at p. 225 of the Report observed, inter alia,, as follows:

That notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and further that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed ut res magis valeat guam pereat. and finally held the notice before them to be a good notice upon the view inter alia that the tenant must presumably have known the law that the notice requiring him to quit only a portion of the tenancy, was bad and ineffective, and the landlord must be presumed to have intended to serve a notice which was valid and effective (vide p. 229) which at least suggests that inadvertent and minor misdescriptions in the notice to quit would not render it invalid. We do not think that the notice to quit (Ext. 5) in the present case falls outside the above beneficial principle of construction. The decisions in the cases of Bodordoja v. Ajijuddin Sarkar (1929) ILR 57 Cal. 10 and Girilhari Lal Mundra v. Purnendu Narayan Roy Deb Barma (1938) 68 C.L.J. 481 do not, in our opinion, if properly read, lay down anything to the contrary. They are also clearly distinguishable. We may add further that in substantially similar circumstances as of the present similar view was taken by this Court in the case of Mrs. A. Cocacie v. S. Safdar Ali ILR [1955] 1 Cal. 130. We hold, therefore, that the notice to quit, Ext. 5, was a good notice which duly terminated the Defendant''s disputed tenancy on the expiry of the month of May 1952.

On the second point too, namely, on the question of her reasonable requirement of the disputed premises the Plaintiff Appellant is, in our opinion, entitled to succeed. Whatever might have been the position before the Appellant''s marriage with Meyer, a bed room and a combined sitting and dining room with, of course, the bath room, would not certainly meet her reasonable requirement of occupation after the said marriage. It is undoubtedly true that the Plaintiff''s story that she would be requiring the disputed premises also for her alleged step daughters and Meyer''s son, who would be her step sons after her marriage with Meyer, cannot be believed. As a matter of fact, that part of her case has not been pressed before us and, even if it had been pressed, we would have rejected it without the slightest hesitation as to accept it would have meant, ignoring the realities and giving credence and preference to the highest improbability and impracticability. That, however, is no ground for rejecting the other part of her case on this issue which she made perfectly clear in her evidence, namely, that the portion in her occupation was insufficient for herself and her husband and she needed greater accommodation for themselves. To compel her to use a single room as a combined sitting and dining room for herself and her husband, would not, we think be reasonable, although even respectable people under compelling circumstances, may have to put up with such inconveniences. The Plaintiff has also no suitable alternative accommodation to serve her legitimate needs. Prima facie, therefore, the Plaintiff has made out a case of reasonable requirement of the disputed premises, there being admittedly, in this case, no scope for the application of the statutory proviso for partial eviction.

It is argued, however, by Mr. Gupta that the Plaintiff did not make out case in the plaint that she reasonably required the disputed premises for her own occupation because of her marriage or intended marriage with Meyer, that is, for meeting the reasonable needs of occupation of herself and her said husband after their marriage. Technically speaking that may be correct, but we do not think that the plaint should be so strictly construed. It expressly refers to the Plaintiff''s forthcoming marriage with Meyer which appears to be at least one of the basic facts for her requirement of extended accommodation and when her evidence makes that a clear ground of her requirement of the disputed premises and when that evidence has been taken without objection and the point was specifically argued in the court below without protest and dealt with by the learned Subordinate Judge as a point, arising in the case we do not feel justified in accepting Mr. Gupta''s above argument.

It is contended further on behalf of the Defendant Respondent that the Plaintiff''s alleged requirement is not bona fide and, as a requirement, to be reasonable, must at least be bona fide the learned Subordinate Judge was justified in rejecting her case on the point. We do not think that this argument can be sustained on the materials before the court. The two circumstances which are specifically pointed out against the bona fide character of the Plaintiff''s claim are (i) her allegation in the plaint and evidence that she required the suit premises for her step-sons and stepdaughters also, which to put it at the highest against her, has been proved to be false, and (ii) her conduct before and after the suit which, according to the Defendant, shows that she is anxious to dispose of the premises No. 4, Moira Street and so her demand for possession of the suit premises is only for that purpose and not bona fide for her own occupation.

As to the first circumstance, we do not think that that is any proof of mala fide on the Plaintiff''s part. She might have made an exaggerated claim or put forward additional grounds in support of her claim which could not he sustained, but that is hardly any adequate reason to regard her claim or conduct as mala fide if her demand for possession of the suit premises for meeting her reasonable need of accommodation is supportable on any other ground. In the present case we have actually found that her claim of reasonable requirement of the suit premises for her own occupation is well supported by her evidence of requirement for herself and her husband which is a good ground for the purpose under the law and, that being so, her claim cannot be characterised as mala fide simply because of her other allegation in support of her said claim which could not be established. That may only be a matter, relevant on the question of costs.

While on the above, it is necessary to observe that Mr. Gupta pressed for the rejection of the Plaintiff''s evidence on the ground that she had been proved to demonstration to be a witness not of truth but of half truths and untruths. Pointed reference was made in this connection to her claim for accommodation for her alleged step-daughters and step-sons which claim has been rejected by us as untenable. Our attention was also drawn to the apparent fact that the Plaintiff was wrongly, and according to the Defendant falsely and falsely to her knowledge putting herself up as the widow of late Rangulal Dutt when as a matter of fact, she knew perfectly well and this she had to admit in cross-examination that there was no marriage between them. We are not inclined to accept Mr. Gupta''s above extreme argument. As to the first part of his submission we have already dealt with is sufficient. Upon the second part, it is enough to point out that, though not actually married to late Rangulal Dutta, the Plaintiff appears to have lived with him as his wife for a pretty number of years and she appears also to have been so known by repute and even the Defendant himself knew her and used to address her as Mrs. Dutt (vide Exts. 12 series).

As to the other circumstances too, pointed out by Mr. Gupta, namely, that stated in item No. (ii) above, we are not inclined to uphold the Defendant''s contention, founded thereon, upon the materials before us. The Plaintiff denied on oath that she is demanding possession of the disputed flat for the purpose of selling the premises. Orr. Dignam''s letter, Ext. B, to the Defendant, to which reference was made on his behalf in support of his above contention does not necessarily establish the same, particularly when the circumstances, under which it came to be written could easily have been stated or explained by the Defendant, to whose previous communication it was addressed in reply, but that statement or explanation was not given and it is not forthcoming. The Plaintiff, of course, denied knowledge of Ext. B. That may or may not be true. But it is difficult to arrive at the truth unless the attending circumstances are known. On that as we have said above, the Defendant might have thrown light and given valuable evidence, but he did not choose to do so. As a matter of fact, the Defendant says nothing in his evidence in support of his above contention. Besides, as it appears from Orr. Dignam''s other letter Ext. C, which followed closely Ext. B, the Plaintiff, as soon as the Defendant''s above suggestion on the basis of Ext. B was brought to her notice, immediately repudiated it through the very same solicitors. In the above state of things we are not prepared to hold on Ext. B that the Plaintiff''s demand for possession for her own occupation is not bona fide even thougn we might reject her explanation on the said exhibit. We may add here that the valuation papers (including report) of Talbot and Co. (Exts. 7, 8 and 9) do not also necessarily support the Defendant''s above contention, particularly when they were not put to the Plaintiff nor was any suggestion made to her with reference to them.

On the question of the Plaintiff''s conduct after the suit, reference has been made by Mr. Gupta to the two letters, Exts. H.C.R. 2 and H.C.R. 3, in the light of his client''s application (Ext. H.C.R. 1) for admission of additional evidence, all of which we have accepted as additional evidence in this appeal along with the Plaintiff''s counter affidavit (Ext. H.C.A. 1) by way of her reply on oath to the same. There is no affidavit in reply on behalf of the Defendant Respondent in answer to the Plaintiff''s said counter affidavit (Ext. H.C.A. 1). The Plaintiff,does not deny the writing of the above two letters (Exts. H.C.R. 2 and H.C.R. 3) to the Defendant''s wife, but she has explained the circumstances under which they came to be written. On a consideration of the entire materials before us in the light of the facts and circumstances of this case, we are inclined to accept the Plaintiff''s explanation. She was married to Meyer in June, 1952. From about the month of March, 1952 she was requesting the Defendant to give her possession of the disputed flat for her own occupation for meeting her needs of accommodation after or in connection with her said marriage (vide Exts. E and 5). The Defendant did not choose to comply with that request which we have held to be quite reasonable in the facts and circumstances of this case. That request was turned down curtly by the rude rejoinder through the Solicitor "our client is not interested in the marriage "of yoiir client and if that be the fact it would be desirable for "her to remove herself to her would be husband''s Mouse" (vide Ext. 10). The Plaintiff''s suit was eventually dismissed by the trial court on grounds which in our opinion, are not good grounds or satisfactory grounds in law. She filed the appeal in this Court in April, 1954. When, in spite of insufficiency of accommodation from the point of view of her reasonable requirement and in spite of obvious discomfort and inconvenience, the Plaintiff bad to continue with, practically the two rooms in the ground floor for over five years, it was quite natural on her part out of sheer disgust, despair and exasperation, to take advantage of a reasonable offer of purchase when she was unable to get possession of the disputed flat for that long period. That, however, was a matter of second choice to her, as she made it clear in her affidavit (vide Ext. H.C.A. 1) her first choice being of course possession of the disputed flat for her own occupation and we have no reason, on the materials before us, to doubt her said statement or to characterise her demand for possession of the disputed flat as mala fide, simply because she was, in her utter disgust, despair and exasperation, due to her inability to get possession of the disputed flat for a long time, trying to get a purchaser of the entire premises including the same on the best advantageous terms. The Defendant''s argument that she was seeking to get possession of the disputed flat not for her own occupation but for selling the property at a higher price does not seem to be very probable or acceptable as admittedly, there is and would still be a tenant in the ground floor and the Plaintiff appears to have made no attempt to evict her and as on the Defendant''s own showing he (the Defendant) was paying more than reasonable rent for the flat in his occupation.

In the above view, we are inclined to hold that the Plaintiff''s demand for possession of the disputed flat is not mala fide so as to put her out of court in the matter of her claim for ejectment.

The Plaintiff thus appears to have made out prima facie a case of reasonable requirement of the disputed premises for her own occupation but the final decision on the point can only be made after considering the Explanation, appended to proviso (h) of Section 12(1) of the Act. That Explanation enjoins upon the court to take into consideration the comparative advantages and disadvantages of the landlord and the tenant from the making or refusal of a decree for ejectment before deciding finally the question of the landlord''s reasonable requirement of occupation of the disputed premises and, to that aspect of the matter, we shall now address ourselves.

The Defendant, has a small family consisting of himself, his wife and one son. He has also his father-in-law, living with him. The Defendant, however, is well placed in life and, according to his own statement, he is paying a very high rent for the suit premises. We do not think that, in the above circumstances, given sufficient time, it will be difficult for the Defendant to find out suitable alternative accommodation. On the other hand, the Plaintiff''s present accommodation in the insufficient for meeting her reasonable requirement of occupation in the changed situation brought about by her marriage with Meyer, and it would be unjust, unfair and unreasonable to deny her occupation of the portion of her own premises, now in the possession of the Defendant when she is anxious to occupy the same for satisfying her reasonable needs of occupation. The law certainly does not contemplate that the landlord would have to seek other accommodation to meet his or her reasonable requirement of occupation, leaving the tenant in occupation of the landlord''s premises, unless, at least, the tenant has a greater disadvantage in the matter of securing alternative accommodation that as we have pointed out above is not the case here and, accordingly the question of comparative advantage and disadvantage and so also the question of reasonable requirement of the disputed premises for her own occupation, must be answered in favour of the Plaintiff.

On the above findings, it is perfectly clear that the Plaintiff is entitled to a decree for ejectment in the present case and the learned Subordinate Judge''s view to the contrary cannot be upheld. We hold accordingly.

In the above view, it is unnecessary, for us to consider the Plaintiff''s allegation that the Defendant has been guilty of violating the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and has, by reason of such violation, forfeited the protection of the Rent Control Act also under proviso (d) of Section 12(1) thereof and thus rendered himself liable to ejectment in the present suit. As, however, the question has been argued before us in some detail, we would make a brief reference to the broad features of that part of the case. The Plaintiff has alleged that the Defendant has changed the character of the disputed tenancy, but there is practically no evidence, worth the name, in support of her said allegation. The Plaintiff has also alleged that the Defendant has constructed a store room (box room) at the entrance of the staircase and has partitioned the verandah, but on her own evidence, these are of a temporary character and they have been made with easily removable materials. They do not, therefore, come within the mischief or prohibition of the statute, namely, the Transfer of Property Act, Clauses (m), (o) or (p) of Section 108. The only allegation of the Plaintiff which might have required some consideration on this question of contravention of the above Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act is her allegation that the Defendant has converted a store room into a bath room and, in so doing, he has cut one or two holes admittedly small, in the wall to insert a pipe and has fixed up a commode and pulled down a portion of the wall to insert a window and has also made certain alterations, as a result thereof the walls have been damaged by improper discharge or overflow of water. As to these allegations it is possible to argue that the mere conversion of the store room into a bath room or even into a lavatory would not necessarily bring the tenant within the mischief of the statute, nor de we think that the cutting of one or two small holes for inserting a small pipe would have that effect. As to the fixing of the commode, again" there is no evidence how it has been set up and, in the absence of such evidence, the learned Subordinate Judge was, in our opinion, right in refusing to hold that by such action, the Defendant has contravened any of the above clauses. We do not think also that the commode can be called a permanent structure within the meaning of elause (p) of Section 108 of the Transfer of Property Act which apparently contemplates some structure or construction and the commode would not come within that description. As to the alleged pulling down of a part of the wall and the alleged insertion of a window, there can be no doubt that, if this is proved, it will fall within the mischief of the statute. The learned Subordinate Judge has held that the Plaintiff''s allegation in this respect has not been proved and, for holding to that effect, he has accepted and relied upon the Defendant''s denial on oath on the point. It may be that the learned Subordinate Judge is right in his above conclusion but, before affirming the same we would have required closer examination of the circumstances of this case and of the various materials on record, relevant on the point. As, however, it is not necessary for our present purpose to express any opinion on the said question in view of our decision, already made on the question of ejectment we would content ourselves by merely pointing out that in accepting the Defendant''s above denial, the learned Subordinate Judge did not apparently consider two important matters, namely, that neither in the Defendant''s reply (Ext. 10) to the Plaintiff''s notice (Ext. 5) through his Solicitors Messrs. Dutta and Sen was there any denial of the Plaintiff''s above specific allegation, made therein, nor was there any express denial in the Defendant''s written statement to the specific plaint allegation on the point. Whether these would have made any difference in his final conclusion or whether they would have been sufficient for rejecting the Defendant''s specific denial on oath, it is not necessary for us to determine and we do not intend to prolong this discussion. Before concluding, however, we ought to point out that to this part of the Plaintiff''s case, the Defendant had another defence which, though it has been rejected by the learned Subordinate Judge apparently deserves further consideration. That defence rested on the plea that whatever had been done by the Defendant in respect to the disputed premises had been done with the consent of the Plaintiff''s agent Bejoy Kumar Ghosh. This Bejoy was cited by the Plaintiff as a witness but he was not finally examined and, for his non-examination, the Plaintiff has given the explanation that he was "in some mental home". In these circumstances, the learned Subordinate Judge does not seem to be right in drawing an adverse inference against the Defendant from the non-examination, of Bejoy. At any rate, it seems to us that this matter would have required further consideration, if it was necessary to come to any finding on the Plaintiff''s material allegations of contravention onthe Defendant''s part of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. That, however, not being necessary as stated above, we need, not pursue this matter.

In the result, we allow this appeal, set aside the judgment and decree of the learned Subordinate Judge and decree the Plaintiff''s suit for ejectment, but in the circumstances of this case, we would give the Defendant time till the end of September, 1958, for vacating the suit premises. We would not also, in the facts and circumstances of this case, allow the Plaintiff any costs either in this Court or in the court, below.

Sarkar, J.

I agree.