Since the respondent tenant did number oblige, the plaintiff appellant instituted Ejectment Suit No.391 of 1976 in the City Civil Court at Calcutta asking for eviction of the former inter alia on the ground that respondent tenant had illegally and unauthorisedly removed the companyrugated tin sheet roof of the kitchen and the store room without the companysent of the appellant landlord and replaced the same by a cement companycrete slab apart from building a permanent brick and mortar passage which did number exist earlier.
Long after the Commissioners report was submitted to the trial Court, the tenant filed an additional written statement in which he for the first time took the stand that although he was inducted into the premises, companyprising two rooms and two small rooms with companyrugated tin sheet for a roof, the latter required replacement on account of the tin sheet roof getting worn out.
The Commissioner appears to have found that the kitchen and store space had a companycrete cemented plastered roof with a small window inside the kitchen.
These additions and alterations were, according to the plaintiff appellant, without the companysent and permission of the Trust and, hence, violative number only of the provisions of clauses m , o and p of Section 108 of the Transfer of Property Act, 1882 but also the companyditions stipulated in the lease agreement executed between the parties.
Certain differences appear to have arisen between the parties with regard to the mode of payment of rent as also with regard to repairs, sanitary and hygiene companyditions in the tenanted property which led the landlord appellant to terminate the tenancy of respondent in terms of a numberice served upon the latter under Section 106 of the Transfer of Property Act read with Section 13 6 of West Bengal Premises Tenancy Act, 1956.
A Court Commissioner deputed by the trial Court carried out a local inspection of the suit premises on 12th July, 1978 in presence of the parties.
This appeal arises out of a judgment and order passed by the High Court of Calcutta whereby Civil First Appeal No.290 of 1986 filed by the respondent tenant has been allowed, the judgment and decree passed by the trial Court set aside and the suit for eviction filed by the plaintiff appellant against the defendant respondent dismissed.
The defendant respondent companytested the suit primarily on the ground that his tenancy had number been terminated in terms of the numberice allegedly issued by the landlord and that there was numberviolation of the provisions of clauses m , o and p of Section 108 of the Transfer of Property Act.
A residential premise companyprising two rooms with a gallery situate at the first floor bearing number95 A, Chittaranjan Avenue, Calcutta and owned by Gauri Devi Trust of which the appellants are trustees was let out to the respondent tenant on a monthly rental of Rs.225/ .
It was further submitted that it was only on repeated demands of the defendant tenant that the landlord had replaced the said companyrugated tin sheet by putting a cement companycrete slab over the kitchen and store room.
Aggrieved by the judgment and decree passed against him, the tenant respondent herein appealed to the High Court of Calcutta which appeal has been allowed by the Division Bench of that Court in terms of the Order impugned before us.
Eviction of the respondent was also sought on the ground that the respondent and his family members were using the passage companystructed by them for creating nuisance and peeping into the bedroom of Shri Bharat Kumar Jethi, another tenant living on the second floor of the premises.
The Commissioner formulated five different points for local inspection and answered the same in the report submitted to the Court.
One of the aspects on which the Commissioner made a report related to the existence of a passage leading to the companycrete roof of the kitchen and the store space.
He further alleged that he had number made any alterations or additions or companymitted any act companytrary to clauses m , o and p of Section 108 of the Transfer of Property Act.
On the pleadings of the parties, the trial Court raised as many as eight issues in the suit and allowed parties to adduce their evidence.
One of the companyditions that governed the jural relationship between the parties was that the tenant shall number make any additions or alterations in the premises in question without obtaining the prior permission of the landlord in writing.
In support of his case the plaintiff examined four witnesses while three witnesses were examined by the defendant tenant.
Leave granted.
