GUJARAT HIGH COURT

                                           Khureshi Ibrahim Ahmed

                                                        Vs.

                                         Ahmed Haji Khanmahomad

 Second Appeal No. 179 of 1962, from order of Asst. J., Jamnagar, in Civil Reg. Appeal No. 57
                                                     of 1961.

                                     (P.N. Bhagwati and J.B. Mehta, JJ.)

                                                   19.06.1964

                                                  JUDGMENT

P.N. Bhagwati, J.

1. The short question which arises in this Second Appeal is as to what is a permanent structure
Within the meaning of Section 13(1)(b) of the saurashtra Rent Control Act, 1951. The same
expression, we find, has been used also in Section 13(1)(b) of the Bombay Rents, Hotel and
Lodging House Rates control Act, 1947, and the question as to what is the true connotation of
that expression is, therefore, a question of some importance. In order to appreciate how the
question has arisen, it is necessary to state briefly the facts giving rise to this Second Appeal.

2. One Gulamhussein Haji Dada was at all material times the owner of a piece of land situate in
Jamnagar. There was an Ota i.e., a raised platform like structure on the piece of land as also a
Fall in it. The piece of land together with the Ota and fall will hereafter be referred to by us as the
suit premises. Gulamhussein Haji Dada was residing most of the time in Burma and one
Nurmahmed was, therefore, looking after the suit premises on behalf of Gulamhussein Haji
Dada. Sometime in 1952-53, the suit premises were let out to the defendant at the rent of Rs. 6/-
per month. Soon after taking the suit premises on rent, the defendant erected three rooms and a
cattle shed with a left over it on the suit premises. According to the defendant these structures
were erected by him with the express consent of Nurmahmed and such express consent was
given by Nurmahmed at the time when the suit premises were let out to the defendant. The
consent relied on by the defendant was, however, merely an oral consent and not a written
consent. The defendant continued as a tenant of the suit premises after the erection of these
structures and regularly paid the rent of Rs. 6/- per month, which was accepted on behalf or
Gulamhussein Haji Dada. Gulamhussein Haji Dada came down to Jamnagar on six or seven
occasions after the suit premises were let out to the defendant and the defendant had erected the
said structures. The house in which Gulamhussein Haji Dada resided during his visits to
Jamnagar was adjoining the suit premises with only a hedge dividing the said house from the suit
premises and Gulamhussein Haji Dada, therefore, knew that the defendant had erected the said
structures. Gulamhussein Haji Dada, however, did not at any time raise any objection to the
erection of the said structures by the defendant nor did he take any steps for terminating the
tenancy of the defendant and, evicting him from the suit premises. This stage of affairs continued
until 15th August 1960 when Gulamhussein Haji Dada gave a notice terminating the tenancy of
the defendant with effect from 30th September 1960. Notwithstanding the termination of the
tenancy the defendant did not hand over possession of the suit premises to Gulamhussein Haji
Dada. The plaintiff who was looking after the suit premises on behalf of Gulamhussein Haji
Dada and was as such the landlord within the meaning of the definition of that term contained in
the Saurashtra Rent Control Act, 1951, thereupon filed a suit for recovering possession of the suit
premises from the defendant. There were three grounds on which possession was sought by the
plaintiff. They were : (1) that the defendant had changed the user of the suit premises by using
the suit premises for the purpose of residence though they were taken for the purpose of tethering
cattle; (2) that the defendant had sub-let the suit premises to his elder brother; and (3) that the
defendant had erected the said structures which were permanent structures without the written
consent of Gulamhussein Haji Dada. All these three grounds were denied by the defendant in his
written statement. The defendant contended that he had taken the suit premises on rent for the
purpose of using them not only for the purpose of tethering cattle but also for the purpose of
residence and that there was accordingly no question of change of user which would entitle the
plaintiff to evict the defendant. The defendant also contended that the said structures were erected
by the defendant with the express consent of Nurmahmed and that in any event Gulamhussein
Haji Dada had seen the said structures several times when he came .down to Jamnagar and had
not raised any objection to the same and there was, therefore, acquiescence or implied consent on
the part of Gulamhussein Haji Dada. The subletting alleged by the plaintiff was also disputed by
the defendant. The defendant also raised a question as regards the validity of the notice to quit.
On these contentions the defendant submitted that the plaintiff was not entitled to recover
possession of the suit premises from the defendant.

3. On the pleadings of the parties various issues were raised by the learned trial Judge. Issue No.
2 brought out the controversy between the parties in regard to the, question whether any
permanent structures were erected by the defendant and, if so, whether the defendant was liable
to be evicted. The question as regards subletting and change of user was brought out in issue No.
3 and issue No. 4 related to the question whether even if any permanent structures were erected
fey the defendant the right of the plaintiff to recover possession of the suit premises on that
ground was barred by reason of acquiescence or implied consent. There was also an issue as
regards the validity of the notice. At the hearing of the suit the only evidence led on behalf of the
plaintiff was that of himself. As against the evidence of the plaintiff the defendant led the
evidence of himself and Nurmahmed. On this evidence the learned trial Judge held that the said
structures erected by the defendant were not permanent structures and the plaintiff was, therefore,
not entitled to recover possession from the defendant on the ground that the defendant had
erected permanent structures on, the suit premises without the written consent of the plaintiff. On
this view the learned trial Judge came to the conclusion that there was no question, of
acquiescence or implied consent and the issue as regards acquiescence and implied consent was,
therefore, answered against the defendant. The learned trial Judge then proceeded to consider
whether the defendant had sublet the suit premises and on the evidence he came to the
conclusion that subletting was not proved. The change of user of the suit premises was also held
not established by the learned trial Judge. The question of validity of the notice was also
considered by the learned trial Judge and he came to the conclusion that the notice was valid.
Since in his view no ground was made out by the plaintiff for recovering possession of the suit
premises from the defendant the learned trial Judge dismissed the suit with costs.

4. The plaintiff thereupon preferred. an appeal in the District Court, Jamnagar. The learned
Assistant Judge who heard the appeal reached the conclusion that it was not established on the
evidence that the defendant had sublet the suit premises and the ground of subletting could not,
therefore, avail the plaintiff. On the question whether the defendant was using the suit premises
for as purpose other than that for which they were leased, the learned trial Judge came to the
conclusion that the suit premises were let out to the defendant only for the purpose of tethering
cattle and that the defendant had thereafter erected the said structures and started using them for
the-purpose of residence, but this was done by the defendant with the consent of Nurmahmed
and in any event Gulamhussein Haji Dada had acquiesced in this user by the defendant. The
learned Assistant Judge accordingly held that the plaintiff was not entitled to take possession of
the suit premises from the defendant on the ground of change of user. The learned Assistant
Judge then considered the-question whether any permanent structures were-erected by the
defendant without the written consent of Gulamhussein Haji Dada. The learned Assistant Judge
examined this question in both its branches. The first was whether the said structures-erected by
the defendant could be said to be permanent structures and on this question the learned Assistant
Judge came to the conclusion, after applying certain tests formulated at page 223 of Mr. Dalal's
book on Bombay Rent Act, that the said structures were permanent structures. The learned
Assistant Judge then considered the second branch o? the question, namely, whether the erection
of the Raid structures was without the written consent of Gulamhussein Haji Dada and since
admittedly no written consent of Gulamhussein Haji Dada was-taken by the defendant for
erecting the said structures the learned Assistant Judge held that the ground specified in Section
13(1)(b) of the Saurashtra Rent Control Act, 1951, was made out by the plaintiff. It was
contended on behalf of the defendant that since oral consent was given by Nurmahmed and in
any event there was acquiescence or implied consent on the part of Gulamhussein-Haji Dada, the
defendant was not liable to be evicted under Section 13(1)(b) even if the said structures were
erected by him without the written consent of Gulamhussein Haji Dada. This contention was
negatived by the learned Assistant Judge who took the view that once it was established that the
defendant had erected permanent structures on the suit premises without the written consent of
Gulamhussein Haji Dada, the plaintiff was entitled to recover possession of the suit premises
from the defendant under Section 13(1)(b). The learned Assistant Judge accordingly allowed the
appeal, get aside the decree passed by the learned trial Judge and passed a decree for eviction
against the defendant. The defendant thereupon preferred the present Second Appeal in this
Court. The Second Appeal originally came up for hearing before M. it. Mody, J., and he referred
it for decision to a Division Bench of this Court.

5. Now one thing is clear, namely, that three rooms and a cattle shed with a loft over it were
erected by the defendant on the suit premises and this was done by the defendant without the
written consent of Gulamhussein Haji Dada. The plaintiff contended that the said structures
erected by the defendant were permanent structures and the case, therefore, fell within the terms
of Section 13(1)(b). This position was disputed by the defendant who contended that the said
structures were not permanent structures and that the terms of Section 13(1)(b) were, therefore,
not satisfied. The main question which, therefore, arises for consideration is whether the said
structures could he said to be permanent structures within the meaning of Section 13(1)(b). The
determination of this question depends on the true connotation of the expression "permanent
structure" in Section 13(1)(b). What is it that this expression exactly signifies ? Does it mean a
structure which is intended toy the tenant to be put to use so long as he continues as a tenant
irrespective of the nature of the structure and irrespective of the materials of which it is made or
does it mean a structure which is a lasting structure and in which there is an element of
permanence quite irrespective of the use intended to be made of it by the tenant Mr. Mankad,
learned advocate appearing on behalf of the plaintiff, contended that a permanent structure is one
which is erected by the tenant not for a temporary use but for his use so long as he is a tenant and
that the nature or character of the structure is quite irrelevant to the determination of this
question. Mr. Joshi, appearing on behalf of the defendant, on the other hand contended that the
test which as required to be applied for the purpose of determining whether a structure is a
permanent structure is an objective test dependent not on the intention of the tenant as regards the
length of time for which he wants to make use of the structure but on the nature of the structure
and the character of the materials of which it is made. Now in order to decide which of these two
rival contentions is correct. It is necessary first to examine the reason behind the enactment of
Section 13(1)(b). Section 108(h) of the Transfer of Property Act entitles the tenant, on the
determination of the tenancy, to remove, at any time whilst he is to possession of the premises,
all things which he has attached to the earth, it would, therefore, follow that even if the tenant has
erected any permanent structures, he would be entitled to remove them on the determination of
the tenancy. Of course in doing so there would be an obligation on him to see that the premises
are left in the game condition in which he received them but even so some amount of damage
might in all probability be caused to the premises and if that happens, the only remedy of the
landlord would be a claim for damages which, if not conceded, may have to be litigated in a
Court of Law. Moreover the right to enjoy possession of the premises cannot include the right to
erect permanent structures which would not be easily removable and the removal of which might
injuriously affect the premises. The erection of permanent structures would also alter the
character of enjoyment of the premises. The legislature, therefore, provided that if the tenant
erects permanent structures on the premises without the written consent of the landlord, the
landlord should be entitled to recover possession of the premises from the tenant. If this reason
behind the enactment of Section 13(1)(b) is borne in mind, it is not really difficult to arrive at a
true meaning of the expression "permanent structure" in Section 13(1)(b), if the construction
contended for by Mr. Mankad were correct, it is difficult to see why the Legislature should have
made the erection of permanent structures on the premises by the tenant a ground for eviction at
all. We do not see what difference could it make to the landlord whether the structure erected by
the tenant was intended by the tenant to be used for a temporary period or for such period as he
might continue in possession as a tenant. But the nature of the structure erected by the tenant on
the premises would certainly be a matter of concern to the landlord, if the structure erected is of a
permanent character in the sense that it is so constructed as to be lasting in duration, that might
injuriously affect the premises and would also alter the character of enjoyment of the premises
and would consequently affect the landlord and the Legislature, therefore, provided that if such a
structure is erected by the tenant without the written consent of the landlord, the landlord should
have the right to recover possession, of the premises. It is, therefore, clear that the structure in
order to be a permanent structure within the meaning of the Section must have an element of
permanence in it. It must be intended to be a lasting structure and that would depend on the
nature of the structure. The permanent or temporary character of the structure would have to be
determined having regard to 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 on the basis of
how long the tenant intended to make use of the structure. As a matter of fact the nature of the
structure itself would reflect whether the tenant intended that it should exist and be available, for
use for a temporary period or for an indefinite period of time. The test provided by the
Legislature is thus an objective test and not a subjective one and once it is shown that the
structure erected by the tenant to 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.

6. Before we part with this point we must refer to certain observations in Mr. Dalal's book on the
Bombay rent Act on which considerable reliance was placed by Mr. Mankad. They are the same
observations which were referred to by the learned Assistant Judge in his Judgment but we find
that these observations do not help us in the determination of the question as to what is a
permanent structure, because these observations are founded upon cases relating to the question
as to what is a fixture and when can a fixture be said to be so attached as to form part of the
demised premises. The cases cited by Mr. Dalal as authorities for these observations are alt cases
relating to the question as to who becomes the owner of the fixtures on the termination of the
tenancy, whether the landlord or the tenant, and for that purpose to Court had to decide in those
cases whether the fixtures became part of the demised premises or were put up merely for the
purpose of enjoyment of the premises by the tenant. These observations do not touch the
question as to what is a permanent structure within the meaning of Section 13(1)(b) and nothing
that is stated in these observations in any way affects the validity of the test which we have
discussed above.

7. If this test is applied, it is clear that the structures erected by the defendant in the present case
were not permanent structures. The defendant stated in his evidence that the said structures were
made of bamboos and Iron sheets and this statement of the defendant was not challenged in
cross-examination. Nurmahmad also described the said structures as "Chhapras" which would
clearly indicate that they were not permanent structures. It is difficult to see how structures made
of bamboos and iron sheets can be said to be permanent structures. There is no element of
permanence in such structures and by their very nature they are temporary structures. We are,
therefore, of the view that the structures erected by the defendant were not permanent structures
and one of the necessary ingredients for the applicability of Section 13(1)(b) was consequently
not fulfilled, it was contended before us by Mr. Joshi on behalf of the defendant that even though
no written consent of Gulamhussein Haji Dada was obtained by the defendant for erecting the
said structures, the plaintiff was not yet entitled to recover possession of the suit premises from
the defendant since the right to recover possession of the suit premises under Section 13(1)(b)
was waived by the plaintiff by reason of the express consent given by Nurmahmad at the time of
giving the suit premises on rent as also by reason of acquiescence or implied consent on the part
of Gulamhussein Haji Dada. But in the view we have taken as regards the nature of the structures
erected by the defendant, it is not necessary for us to consider this contention of Mr. Joshi.
Whatever be the validity of this contention it is clear that the structures erected by the defendant
not being permanent structures the plaintiff could not claim to recover possession of the suit
premises from the defendant under Section 13(1)(b).

8. Mr. Mankad made an attempt to persuade us to send the matter back on the question whether
the structures erected by the defendant were permanent structures but the attempt was futile. He
urged that the question as regards the nature of the structures erected by the defendant was not
raised before the learned trial Judge and the attention of the parties was not focussed upon that
question. at the hearing of the suit before the learned trial Judge and, therefore, if this question
was allowed to be raised, the matter should be remanded to the learned trial Judge so that the
parties may have an opportunity of leading such evidence as they like on this question. The
contention is, however, not well founded and the premise on which it is based is not correct. If
we turn to the judgment of the learned trial Judge, we find that the question whether the
structures erected by the defendant were permanent structures was very much before the learned
trial Judge and the learned trial Judge, on a consideration of the evidence, came to the conclusion
that the said structures were not permanent structures. It is of course true that an issue in specific
terms, whether the structures erected by the defendant were permanent structures or not, was not
framed by the learned trial Judge, but the ground relied on by the plaintiff being the ground under
Section 13(1)(b) the parties very well knew that unless the structures were shown to be
permanent structures, the plaintiff could not recover possession of the suit premises from the
defendant. The question whether the structures erected by the defendant were permanent
structures or not was, therefore, agitated before the learned trial Judge and the learned trial Judge
gave a finding on that question. It is, therefore, not correct to say that the question as regards the
nature of the structures erected by the defendant was not raised before the learned trial Judge.
Even at the hearing of the appeal before the learned Assistant Judge, we find that this question
was argued and the learned Assistant Judge actually devoted two pages in his judgment to this
question. There is, therefore, no reason why the matter should be remanded to the learned trial
Judge for enabling the parties to lead any further Evidence on the question whether the structures
erected by the defendant were permanent or not.

9. Mr. Mankad then contended that in any event the findings of the learned Assistant Judge as
regards subletting and change of user were not. Justified by the evidence on record. But it must
be remembered that this is a Second Appeal and we cannot, therefore, permit Mr. Mankad to
challenge these findings of the learned Assistant Judge which are findings of fact. We may,
however, point out that we have gone through the evidence on record and we are of the view that
these findings recorded by the learned Assistant Judge were fully Justified and even if we were to
reappreciate the evidence, we would have come to the same conclusion.

10. The last contention raised by Mr. Mankad was a contention of despair and it must straightway
toe rejected. He urged that we had no jurisdiction to bear tills Second Appeal because the learned
Judge who referred this Second Appeal to a Division .Bench had no power to do so. The ground
on which this contention was based was that a reference of a Second Appeal by a single Judge to
a Division Bench would take away the vested right of the litigant to prefer a Letters Patent
Appeal and this was not permissible; but this ground is not well-rounded. We cannot accept the
proposition that any litigant has a vested right to prefer a Letters Patent Appeal. A Letters Patent
Appeal can be preferred by a litigant against a decision of a single Judge in second Appeal only
if the learned Judge who decides the Second Appeal permits mm to do so by giving him the
necessary leave. No litigant can, therefore, be said to have a vested right to prefer a Letters Patent
Appeal, and the contention based on the hypothesis that there is such vested right in a litigant
must, therefore, be rejected.

11. This being the position we allow the appeal, set aside the decree passed by the learned
Assistant Judge and restore the decree passed by the learned trial Judge. There will be no order as
to costs of this Appeal.
Appeal allowed.