Rajendra Gangadhar Patil vs Bhanuprakash Bherumal Khandelwal And ...
2025 Latest Caselaw 2268 Bom

Bombay High Court

Rajendra Gangadhar Patil vs Bhanuprakash Bherumal Khandelwal And ... on 14 August, 2025

Author: N. J. Jamadar

Bench: N. J. Jamadar

2025:BHC-AS:35349
                                                                             901-CRA272-2021.DOC

                                                                                              Santosh
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION


                                CIVIL REVISION APPLICATION NO. 272 OF 2021

                      Rajendra Gangadhar Patil                                        ...Applicant
                                           Versus
                      1. Bhanuprakash Bherumal Khandelwal
                          (since deceased)
SANTOSH               1a. Anil Bhanuprakash Khandelwal
SUBHASH               1b. Meena Bhanuprakash Khandelwal
KULKARNI              2. Chandrashekhar Maneklal Mehta
Digitally signed by
SANTOSH SUBHASH       2a. Hemant Chandrashekhar Mehta
KULKARNI
Date: 2025.08.14      2b. Vinod Chandrshekhar Mehta
22:08:44 +0530
                      2c. Usha Chandrashekhar Mehta
                                                                                 ...Respondents

                      Mr. R. M. Haridas, for the Applicant.
                      Mr. Vaibhav Sugdare, a/w Vishal Mehta, i/b MV Law Partners,
                            for Respondent Nos.1a and 1b.

                                                      CORAM:             N. J. JAMADAR, J.
                                                      RESERVED ON:       16th JUNE, 2025
                                                      PRONOUNCED ON: 14th AUGUST, 2025
                      JUDGMENT:

-

1. This revision application is directed against a judgment

and decree dated 26th March, 2021 passed by the Appellate

Bench of the Court of Small Causes in Appeal No.60 of 2011,

whereby the Appellate Bench was persuaded to allow the appeal

preferred by the deceased respondent Nos.1 and 2 (the

landlords) against the judgment and decree in RAE&R Suit

No.230/393 of 2000 dismissing the suit, and instead decree the

said suit for eviction of the applicant on the ground of carrying

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out additions and alterations of permanent nature without the

consent of the landlords.

2. The background facts necessary for determination of the

revision application can be stated in brief as under:

2.1 The deceased respondent Nos.1 and 2 were the

owners/landlords of the premises suited at Plot No.866 TP

Scheme No.IV, old Prabhadevi Road, Dadar (W), Mumbai. There

were multiple structures on the said property (the larger

property). The applicant - defendant was a tenant in respect of

Room No.2 in structure A (the demised premises).

2.2 The demised premises comprised of a kitchen, one room

and an open veranda/otla.

2.3 The plaintiffs purchased the larger property in the year

1967. Before the plaintiffs purchased the suit property, the

defendant had encroached upon the common veranda/otla

outside the suit premises by enclosing the said veranda/otla .

The defendant had allegedly constructed the kitchen platform

also inside the suit premises. Thus, the plaintiffs and one Smt.

Kamladevi Khandelwal had instituted a suit being RAE Suit

No.5062 of 1971 for the possession of the demised premises on

the ground of erection of permanent structures. Eventually the

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said suit came to be disposed in view of the Consent Terms

arrived at between the parties.

2.4 When the plaintiffs took out execution, the defendant filed

RAD Suit No.1045 of 1989 for the declaration that the Consent

Terms were void and illegal.

2.5 During the pendency of the aforesaid suit, between the

period 1988 and 1991, the plaintiffs alleged, the defendant

constructed a wooden mezzanine floor on the entire kitchen

portion of the suit premises and also constructed a water closet

(WC) outside the suit premises. To support the mezzanine floor,

defendant had erected two brick masonry walls inside the suit

premises. Thus, the plaintiffs asserted, the defendant

committed the acts of waste of the property and the said

erection was in the nature of permanent additions and

alterations to the demised premises. In addition, in the year

1995, the defendant constructed one additional veranda/otla

admeauring 2 ft. X 6 ft. outside the demised premises and

extended the original veranda/otla and enclosed the additional

construction also.

2.6 In addition to the aforesaid grounds, the plaintiffs had

sought decree of eviction against the defendant on multiple

statutory grounds, like, the use of the demised premises by the

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defendant caused nuisance and annoyance to the neighbouring

occupants; the defendant also caused annoyance to the

plaintiffs and their family members by making false, frivolous

and motivated complaints with various authorities and the

defendant was a habitual defaulter in payment of rent.

3. The defendant resisted the suit. The very tenability of the

suit on the very grounds on which the previous suit was

instituted and disposed in view of the consent terms between

the parties, was called in question. It was contended that the

plaintiffs had instituted the suit with an oblique motive to

deprive the defendant of the benefit of the permanent alternate

accommodation which was agreed to be given to the defendant,

and has been extended to the other occupants of the larger

property. The plaintiffs constructed a new building comprising

of ground+6 upper floors on the portion of the larger property

and, despite assurance, failed and neglected to enter into an

agreement for permanent alternate accommodation with the

defendant. With a view to defeat the legitimate claim of the

defendant, the plaintiffs in connivance with the officers of the

BMC had been leaving no stone unturned to evict the defendant

from the demised premises by resorting to various unlawful

acts.

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4. The defendant contended, he has been in the occupation

of the demised premises alongwith his family members since

1952, much prior to the plaintiffs became the owners of the

larger property comprising the demised premises, in the year

1967. The defendant contends with a view to evict the

defendant of the demised premises, without providing a

permanent alternate accommodation, to which the defendant is

legitimately entitled to, the plaintiffs have resorted to

disingenuity and subterfuge.

5. It was categorically denied that the defendant has carried

out the construction or erected structure of permanent nature,

as alleged. The defendant contended that the structure

standing on the demised premises is in the same condition as it

obtained, when the demised premises was let to the defendant

in the year 1952. The allegations of erection of permanent

structure without the consent of the landlords and waste of the

demised premises were stated to be false and mala fide.

6. In any event, the alleged act of encroachment and erection

of permanent structure over the larger property beyond the

demised premises, cannot be a subject matter of the suit for

eviction before the Court of Small Causes as the said allegations

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were beyond the purview of The Bombay Rents, Hotel and

Lodging House Rates Control Act, 1947, ("the Rent Act, 1947").

7. The Trial Court settled the issues. The plaintiffs examined

Bhanuprakash Khandelwal (PW1) and Nitin Natu (PW2), an

official working with Building Development Department of the

BMC. The defendant examined his constituted attorney

Rajendra Gangadhar Patil (DW1), and Vidyashankar R. Tripathi

(DW2), Advocate and Notary. The parties also tendered

documents to substantiate their rival claims.

8. At the trial, the plaintiffs gave up the issue of arrears of

payment of rent. The learned Judge, Court of Small Causes,

thus appraised the evidence on the grounds of erection of

permanent structure, waste and damage to the demised

premises and nuisance. The learned Judge returned negative

findings on all these issues.

9. The learned Judge was of the view that the alleged

construction carried out by the defendant was not on the

demised premises and, thus, the alleged encroachment and

erection of permanent structure on the larger property, beyond

the demised premises, did not furnish a ground for eviction.

Secondly, the plaintiffs failed to establish that the construction

erected by the Defendant was of permanent nature.

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10. Being aggrieved, the deceased respondent Nos.1 and 2

preferred appeal before the Appellate Bench. By the impugned

judgment and order the Appellate Bench was persuaded to

decree the suit on the ground of carrying out encroachment

over the area beyond demised premises, erecting construction of

permanent nature and thereby causing waste and damage to

the demised premises.

11. The Appellate Bench was of the view that the mere fact

that the WC was constructed outside the suit premises was not

sufficient to take the case out of the purview of the exclusive

jurisdiction of the Court of Small Causes and such

encroachment and erection of permanent structure, furnished a

justifiable ground for the eviction of the tenant. On the rest of

the grounds of eviction, the Appellate Bench concurred with the

view of the Trial Court. Resultanly, decree of eviction came to be

passed.

12. Being aggrieved, the defendant has invoked the revisional

jurisdiction.

13. I have heard Mr. Haridas, the learned Counsel for the

applicant - defendant and Mr. Vaibhav Sugdare, the learned

Counsel for the respondents - landlords, at some length. The

learned Counsel for the parties took the Court through the

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pleadings and the material on record including the deposition of

the witnesses and the documents, tendered for the perusal of

the Court.

14. Mr. Haridas, the learned Counsel for the applicant, would

urge that the Appellate Court committed a jurisdictional error in

interfering with a well reasoned order of the learned Trial Judge.

There were no justifiable reason to take a different view of the

matter. In the process, the Appellate Bench did not properly

appreciate the evidence adduced by the parties in arriving at the

finding of erection of permanent structure. Mr. Haridas was at

pains to persuade the Court to hold that the WC unit was in

existence since long. At any rate, the construction of the said

WC can never be said to be of a permanent nature. The

Appellate Bench lost sight of the fact that the WC unit was an

essential amenity. No damage was likely to be caused to the

demised premises, in the event, the WC was removed.

15. Amplifying the aforesaid submissions, Mr. Haridas would

urge the Appellate Bench failed to keep in view the tests which

are required to be applied while determining whether a

particular addition/alteration or construction falls within the

ambit of erection of a permanent nature. To bolster up these

submissions, Mr. Haridas placed reliance on the judgments of

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this Court in the cases of Dinkar Bandu Patil deceased by his

heir representative vs. Sharad Dattatraya Palange1, Alisaheb

Abdul Latif Mulla vs. Abdul Karim Abdul Rahman Mulla and

others2, Ramchandra Dattatraya Gandhi vs. Sou. Pushpabai

Manohar Sheth3, Mr. Suresh D. Zamakade vs. Narayandas V.

Shah4, Somnath Krishnaji Gangal vs. Moreshwar Krishnaji Kale

and others5, Suka vs. Ranchhodas6 and Lucky Restaurant and

another vs. Messrs Deccan Talkies, Poona7.

16. Per contra Mr. Sugdare, the learned Counsel for the

respondents - landlords, submitted with tenacity that, the

Appellate Bench of the Court of Small Causes has recorded a

positive finding that the additional construction was carried out

by the defendant. Such a finding of fact is not susceptible to

interference in exercise of the revisional jurisdiction. Mr.

Sugdare laid emphasis on the fact that learned Trial Judge had

completely misdirected himself in returning a finding that the

encroachment carried out by the tenant beyond the demised

premises did not furnish a cause of action for eviction of a

1 1998 Bom. R.C. 66.

2 1981 Mh.L.J. 734.

3 AIR 1990 Bombay 182.

4 2003(1) ALL MR 312.

5 1995(3) Bom.C.R. 327.

6 1972 Mh.L.J. 477.

7 370 Bom. R. C. 1985.

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tenant under the Rent Act, 1947. The Trial Court's view was

contrary to the pronouncement of this Court in the case of

Laxmibai Ganpati Bhingare vs. Shinvaji Dnyani Salunkhe8,

wherein it was enunciated that the Court of Small Causes does

not lack jurisdiction to entertain landlord's suit to try issue of

encroachment in view of the mandate contained in Section 28 of

the Rent Act, 1947.

17. Mr. Sugdare further submitted that the evidence adduced

by the plaintiffs finds further support in the notice under

Section 351 given by the Municipal Corporation to the defendant

which vouches for the erection of the permanent structure. The

application of the defendant to regularize unauthorized

construction also underscores the fact that the defendant had

carried out unauthorized alterations of a permanent nature in

the demised premises. Such findings of facts are not open for

interference in the revisional jurisdiction, reiterated Mr.

Sugdare.

18. To start with, it is necessary to note that the Appellate

Bench found that the Court of Small Causes erred in holding

that the Court of Small Causes had no jurisdiction as regards

the permanent structure allegedly erected on the larger

8 2018(4) Mh.L.J. 190.

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property, beyond the demised premises. The Appellate Bench,

on re-appreciation of evidence, found that the plaintiffs could

succeed in establishing that the defendant had erected

permanent structure in the nature of a WC on the larger

property beyond the demised premises. However, the first part

of the claim of the plaintiffs that the defendant had constructed

a wooden mezzanine floor to cover the entire kitchen area, was

held to be not proved.

19. The Appellate Bench was of the view that the evidence

indicated that what was, in fact, erected by the defendant was a

wooden loft in the kitchen. Erection of the said wooden loft did

not amount to a permanent structure so as to fall within the

mischief of the provisions contained in Section 13(1)(b) of the

Rent Act, 1947. Resultantly, the controversy revolves around the

question as to whether the erection of the WC falls within the

tentacles of Section 13(1)(b) of the Rent Act, 1947.

20. It seems that two factors weighed with the Appellate

Bench. First, in view of the decision of this Court in the case of

Laxmibai Ganpati Bhingare (supra) the Trial Court was in error

in holding that the Court of Small Causes had no jurisdiction in

regard to the erection of permanent structure on the premises

beyond the demised premises as the structure was not erected

901-CRA272-2021.DOC

"on the premises". Second, the application for regularization of

the structures erected by the defendant was rejected by the

Municipal Corporation. This implies that the WC was erected by

the defendant much later, and it could not have been in

existence at the inception of the tenancy. Whether the aforesaid

finding of the Appellate Bench is borne out by the evidence on

record and is in consonance with law, is the core question to be

decided in this application.

21. Before exploring an answer to the aforesaid question, the

prelude to the instant eviction proceeding, deserves to be kept in

view. Incontrovertibly the landlords had instituted a suit for

eviction, inter alia, on the ground of erection of permanent

structure, being RAE Suit No.5062 of 1971, and the said suit

came to be decreed in accordance with the consent terms. The

landlords had inter alia undertaken to give approximately 240

sq. ft. built up accommodation in the new building to be

constructed within one year from the date of the execution of

the said decree. It is a matter of record that the parties did not

adhere to the consent terms. Thus, though the new building

was constructed, the defendant was not accommodated in the

new building, as agreed, and the defendant continued to occupy

the demised premises. To pointed questions Bhanuprakash

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Khandelwal (PW1) conceded that in accordance with the initial

plan two rooms on the second floor of the new building were

earmarked for the defendant. An undertaking was furnished to

the Planning Authority that in the event the demised premises

is demolished, the landlords would provide accommodation to

the defendant in the newly constructed building. However, no

agreement in respect of the allotment of alternate

accommodation in the newly constructed building was executed

between the plaintiffs and defendant. An explanation was,

however, sought to be offered that as the landlords did not use

the FSI admissible qua the demised premises while constructing

the new building, alternate accommodation was not offered to

the defendant in the new building.

22. The aforesaid consideration is only to highlight that there

was an agreement between the parties that the defendant would

be accommodated in the new building. It would not, however,

imply that only the landlords are to be blamed for not acting in

conformity with the consent decree. In fact, the defendant -

tenant had instituted another suit seeking declaration that the

consent decree passed in the said suit was illegal and void. It is

in this backdrop, the defence of the defendant that the

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landlords were trying to somehow evict the defendant from the

demised premises was required to be appreciated.

23. The linchpin of the provisions contained in Section 13(1)(b)

of the Rent Act, 1947 is erection of "permanent structure".

Whether the structure in question is permanent, though rooted

in the facts of the given case, is often a vexed question. A

number of factors bear upon the determination as to whether a

particular structure can be termed as permanent. The courts

have formulated various tests to determine the character of

structure which falls foul of clause (b) of Section 13(1)(b) of the

Rent Act, 1947 and clause (p) of Section 108 of the TP Act, 1882.

The principal tests are: the nature of the structure; meaning

thereby the mode and decree of annexation, the intention of the

tenant in erecting the structure; meaning thereby the purpose

of annexation, whether the structure is removable without

causing any damage to the demised premises, the durability of

the structure; to be judged from the material used to erect the

same, and the attendant circumstances.

24. In the case of Venkatlal G. Pittie and another vs. M/s.

Bright Bros. (Pvt) Ltd.9, after referring to a large number of

authorities, the Supreme Court enunciated that to determine

9 AIR 1987 Supreme Court 1939.

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whether the structure is a permanent structure or not, one

must look to the nature of the structure, the purpose for which

it was erected and take a whole perspective as to how it affects

the enjoyment, the durability of the building etc. and other

relevant factors and come to a conclusion.

25. In the case of Purushottam Das Bangur and others vs.

Dayanand Gupta10, the Supreme Court postulated that no hard-

and-fast rule can be prescribed for determining what constitutes

a permanent structure. The word permanent in clause (p) of

Section 108 of the TP Act, 1882 is employed to distinguish the

structure from what is temporary. The illustrative tests to judge

the character of the structure were formulated by the Supreme

Court, as under:

"17. To sum up, no hard-and-fast rule can be prescribed for determining what is permanent or what is not. The use of the word "permanent" in Section 108(p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term "permanent" does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of the party putting up the structure is important for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108 (p) of the Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly, the purpose for which the structure is intended is also an important factor that cannot be ignored."

(emphasis supplied)

10 (2012) 10 Supreme Court Cases 409.

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26. At this juncture, the Court considers it appropriate to note

the limits of revisional and supervisory jurisdiction. In the case

of Venkatlal Pittie (supra) while expounding the scope of

interference by the High Courts under Article 227 of the

Constitution, the Supreme Court enunciated that the High

Court under Article 227 has a limited jurisdiction. The High

Court should not interfere with a finding within the jurisdiction

of the inferior Tribunal or Court except where the finding is

perverse in law in the sense that no reasonable person properly

instructed in law could have come to such a finding or there is

misdirection in law or view on fact has been taken in the teeth of

preponderance of evidence or the finding is not based on any

material evidence or it resulted in manifest injustice. Except to

the limited extent indicated above, the High Court has no

jurisdiction. If a Court has come to the conclusion on the

examination of the nature of the structure, the nature of the

duration of structure, the annexation and other relevant factors

that the structures were permanent in nature which were

violative of Section 13(1)(b) of the Rent Act, 1947 as well as

Section 108(p) of the TP Act, 1882 and such a finding is

possible, it cannot be considered to be perverse.

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27. In the case at hand, the learned trial Judge has recorded a

finding that the plaintiffs failed to establish that the WC

allegedly erected by the tenant was of permanent nature. The

Appellate Bench does not seem to have made an endeavour to

come in close quarters with the aforesaid finding of the trial

Court. Neither the Appellate Court has ascribed reasons as to

why the aforesaid finding of the Trial Court is erroneous. Nor

with reference to the evidence and material on record the

Appellate Bench arrived at a positive finding that the WC

allegedly erected by the tenant constituted a permanent

structure. If the aforesaid finding of the Appellate Bench is not

borne out by the evidence and material on record then, in the

considered view of this Court, a case for exercise of

revisional jurisdiction would be made out.

28. The Appellate Bench was swayed by the fact that the

Municipal Corporation had issued a notice to the petitioner

under Section 351 of the Mumbai Municipal Corporation Act.

The application for regularization filed by the petitioner was

rejected by the Municipal Corporation. On the basis of these

facts, inferences were drawn by the Appellate Bench that the

WC was erected much later, and it was of permanent nature.

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29. It is imperative to note that the Appellate Bench does not

seem to have evaluated the evidence to appreciate the character

of the structure in the light of the tests for the determination of

such character, adverted to above. No evidence seem to have

been adduced by the plaintiffs to clearly demonstrate the nature

of the erection. Whether the WC was made up of the brick

walls; what type of roof it had; the nature of the material used

to erect the WC; its durability and likelihood of damage to the

demised premises in the event of its removal were not delved

into by the Appellate Bench.

30. Even the aspect of the erection of the WC at a particular

point of time also appeared to be in the corridor of uncertainty.

This assumes importance in the backdrop the positive defence

of the defendant that, there was no change in the demised

premises and the structures, including the offending structure,

existed since the inception of the tenancy.

31. The defendant was put in possession of the demised

premises as a tenant in the year 1952. It would be contextually

relevant to note that Bhanuprakash Khandelwal (PW1)

expressed his inability to state as to when the WC was allegedly

erected. Though he claimed to have lodged a complaint with the

Municipal Corporation, he could not state when the said

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complaint was lodged. He blamed his memory to state whether

any action was taken by him after the alleged erection of the WC

in the year 1993.

32. Bhanuprakash Khandelwal (PW1) went on to concede that

there was no WC in the demised premises. It could hardly be

contested that WC is an essential amenity. Failure of the

plaintiffs to establish the period when the said WC was

constructed in the light of the occupation of the demised

premises by the defendant since 1952, lends credence to the

defence of the defendant that there was no change in the

structures and the WC exited since inception of tenancy.

33. In the backdrop of the aforesaid nature of the evidence

adduced by the plaintiffs, it was necessary for the Appellate

Bench while reversing the finding of the Trial Court that the

plaintiffs failed to prove that the WC was of permanent

character, to analyse the evidence to support the ultimate

finding that the defendant has erected a permanent structure.

34. Such a finding could not have been based on the fact that

Municipal Corporation had issued a notice under Section 351 to

the petitioner and the proposal for regularization was also

rejected. As the WC was an essential amenity, the endeavour of

the petitioner to obviate the action threatened by the Municipal

Corporation by issuing a notice under Section 351 of the

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Mumbai Municipal Corporation Act by approaching the Civil

Court and filing application for regularization need not

necessarily amount to an admission that the said structure was

of permanent nature.

35. A profitable reference, in this context, can be made to a

judgment of a learned Single Judge of this Court in the case of

Tarachand Hassaram Shamdasani vs. Durgashankar G. Shroff

and ors.11, wherein, in a somewhat identical fact-situation, this

Court interfered with concurrent findings of facts recorded by

the Courts below that the construction of the bathroom

amounted to erection of a permanent structure. The

observations of the learned Single Judge in paragraph 5 are

material and hence extracted below:

"5. ..... Even during the evidence no details are given as to when the offending construction has been carried out by the tenant. This is relevant in the context of the fact that the specific case of the tenant was that the bathroom has been in existence in the suit premises right from the inception of the tenancy. It is further asserted that there is no other bathroom in the suit premises and if that be so, it is incomprehensible that the bathroom has been constructed recently when the suit premises are in occupation of the tenant since 1939. Besides, in the cross examination P.W.1 was specifically confronted with the fact as to whether before issuance of the so-called notice received by him from the Cantonment Board any inspection was carried out by the officer of the Cantonment Board, to which the landlord P.W.1 was not in a position to answer. Moreover, suggestion has been put to him that the notice has been issued by the Cantonment board at his instance which obviously he has denied. Therefore, it is suggested to the landlord that the ground set up by him was dishonest. What is relevant to note is that there is nothing on record to indicate that such notice was issued to the tenant. It is incomprehensible that the authorities would issue notice only to the landlord without putting the occupant of the premises to notice

11 2004 (Supp.) Bom.C.R. 333.

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about the alleged illegality or irregularity. The fact that the landlord has received the notice from Pune Cantonment Board and he has paid fine of Rs. 100/- cannot, by itself, be sufficient to establish the factum that bathroom has been constructed only recently as has been found by the courts below. That is not the case either pleaded or proved by the Respondent landlord. None the less, the two Courts below have proceeded to answer the said issue against the tenant. The Trial Court has dealt with this issue in Para 15. The only reason which has weighed with the Trial Court is that the landlord had received notice from the Cantonment Board and that the landlord was required to pay fine. No other aspect has been considered by the Trial Court. The Trial Court has failed to analyze the oral evidence which has come on record. This finding, as recorded by the Trial Court, has been affirmed by the Appellate Court in Para 14 of the impugned Judgment. The Appellate Court has dealt with this issue, to my mind, in a very casual manner. Even the Appellate Court has not made any attempt to advert to the relevant evidence on record. If this be so, the conclusion reached by the two Courts below on this ground cannot be sustained either on fact or in law so as to decree the suit for possession under Section 13(1)(b) of the Act, for the courts below have committed manifest error which has caused serious miscarriage of justice."

(emphasis supplied)

36. A useful reference, can also be made to a judgment of

another learned Single Judge of this Court in the case of

Alisaheb Abdul Latif Mulla vs. Abdul Karim Abdul Rahman

Mulla and others12, wherein also the tenant was sought to be

evicted on the ground he had erected a permanent structure of

a bathroom without the consent of the landlord. In the said

case, the premises let to the tenant consisted of sink ( mori). In

order to have privacy for bathing, the tenant had erected a wall.

The mori was dug out and instead, in its place, the tenant

constructed a bathroom having dimensions 3 ½ ft. x 4 ft. and

hight of 6 ft. In the place of the sink, a new sink was

constructed. It was divided into two parts by a small wall in

12 1981 Mh.L.J. 735.

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between. Those two parts were separately used for the purpose

of cleaning the utensils, and for the purpose of washing utensils

and clothes. In effect the three functions for which the mori

was formerly used was divided, and three separate portions

were used for the three functions. In that context, this Court

observed as under:

"26. If the work has been effected so as to enable the person using the premises for a better enjoyment and beneficial use of the same premises, if there is no change in the form of the structure, if there is no different use by the erection of the structure than the one which is already being carried out in the premises, then notwithstanding that the work was carried out in durable materials and is of such a type or nature as is done in cases of permanent structures, it would not follow that what was done was an erection of a permanent structure. If that test was applied, then the mere erection of a wall which is more of a screen to provide privacy to a person who had otherwise no privacy while bathing, in the absence of any foundation, in the absence of any evidence to show that the wall was so constructed are joined after cutting into the existing wall by removing the bricks of the existing wall for a better joint of the two walls would not make it a permanent structure. The addition of a wall in the nature of a screen could be easily removed by dismantling. It is difficult to see how any damage in the process except of a superficial nature will be caused to the existing premises. The quantum of damage which would be inflicted while removing the structure would certainly be different and can be a test to decide whether the structure is of a permanent nature or otherwise. The same can be said of the extension of the mori. I have already pointed out that there is no clear and satisfactory evidence as to the extent of the existing structure of the mori, whether it was 3 ½ ft. X 4 ft or 6 ft X 4 ft. Even if the work which was done amounts to extension of a mori, as pointed out, the three functions for which the mori which was formerly used are now divided and three separate portions are used for the three functions. That undoubtedly ensures better enjoyment and more satisfactory and efficient use of the premises. It provides for better enjoyment of the same premises without changing the purposes for which it was let and without changing the purposes for which the premises or facilities were used. As I pointed out, the existing facility was merely extended, the purposes which could have been achieved by a flimsy erection of a partition or screen. This has been done in the present case erecting a wall and extending the premises which limited their functional use.

(emphasis supplied)

37. If the facts of the case at hand are apprised, in the light of

the aforesaid enunciation of law, it becomes evident that, firstly,

901-CRA272-2021.DOC

there was no positive evidence to show that the WC was erected

at a particular point of time and it did not exist from before,

secondly, there was no cogent evidence to demonstrate the exact

nature of the construction of the WC, the material used and its

durability, thirdly, the WC was an essential amenity and its

purpose was for a more beneficial enjoyment of the demised

premises, fourthly, the degree of annexation was not such that

its removal would have caused serious damage or waste to the

demised presmises and, lastly, even if it is assumed that it was

erected by the defendant - petitioner, in the absence of evidence

to show that it was of permanent character, it would not fall

within the dragnet of Section 13(1)(b) of the Rent Act, 1947.

38. Resultantly, the Appellate Bench was not justified in

reversing the judgment of the Trial Court. I am, therefore,

inclined to interfere with the impugned judgment and decree.

39. Hence the following order:

:ORDER:

(i)      The application stands allowed.

(ii)     The impugned judgment and decree passed by the

Appellate Bench stands quashed and set aside.

(iii) The decree passed by the Trial Court stands restored.

(iv)     No costs.

                                           [N. J. JAMADAR, J.]