A. N. Dikshita, J. - (1.) THIS second appeal has been filed by the plaintiff-appellant against the judgment and decree dated 13-11-1976 dismissing Civil Appeal No. 192 of 1976 which was preferred against the judgment and decree dated 31-3-1976 in Original Suit No. 503 of 1973 by which the 3rd Additional Munsif, Deoria, had dismissed the suit.
(2.) THE facts giving rise to this second appeal are : THE appellant had filed a suit for a decree of mandatory injunction for the removal of the disputed Palani, Nad and Khunta from the land situate at Gasalpur Tappa Gobarai, Pargana Salempur Majhauli, district Deoria, and also for a decree of possession over the land in suit or part thereof on the allegations that the respondents who were let out a room of the disputed premises had encroached upon the land vesting with the appellant and had thereafter constructed the impugned Palani, Nad and Khunta. THE respondents contested the suit and denied the plaint allegations It was categorically stated by the respondents that the impugned constructions were neither illegal nor unauthorised and as such were not liable to be removed. Necessary evidence in support of the respective contentions of the parties was adduced. THE trial court though finding the Palani having been constructed without the permission or consent of the landlord and to be unauthorised and of a permanent nature held that the impugned constructions existed on the part of the tenanted portion. It was also found that the impugned constructions did not cause any inconvenience to the appellant or other persons. Considering that the relief claimed was discretionary and was not liable to be granted the suit was dismissed with costs on parties. Aggrieved by the judgment and decree dated 31-3-1976 dismissing the suit an appeal was preferred. The lower appellate court found that the impugned Palani could not be said to be of a permanent nature and as such the provisions of section 108 (p) of the Transfer of Property Act (hereinafter called the Act) had not been contravened. It was also found that the construction was for the beneficial enjoyment of the tenancy and was not inconsistent with the terms and object of the tenancy. The appeal was, accordingly, dismissed by the judgment and decree dated 13-11-1976 thus giving rise to this second appeal. Learned counsel for the parties have been heard. Sri R. S. Parihar, learned counsel for the appellant has submitted that the court below erred in law in holding that the Palani was not of a permanent nature and has tried to persuade me to hold that the nature of the construction whether it be deemed to be of a permanent nature or a temporary one is a substantial question of law. It has been urged that section 108 (p) of the Act provides that a lessee must not, without the lessor's consent, erect on the property any structure of a permanent nature and the contravention of this provision would require the lessee to remove the same and on his failure to do so the lessor has a right to get it removed through the process of the court. I do not find any merit in this submission made on behalf of the appellant that the Palani is a permanent structure. It is well settled that to determine whether a construction is of a permanent nature or not would depend on the intention of the party so raising it as well as the structural quality of the construction. However, whether a particular construction is a permanent structure or not depends upon the facts of each case and it would be difficult to lay a hard and fast rule with regard to this matter. Various circumstances have to be taken into consideration for determining whether or not a particular structure is a permanent structure or not. The nature of the structure or construction and the intention with which it is made would be of Primary importance and are the determinant elements. The meaning of the word permanent structure would be that the lessee intended the enjoyment of such structure as long as the tenancy subsists. If the nature of the structure is such that the structure will endure for a long time and the intention of the lessee is to use it as long as he remains a lessee the construction will be regarded as a permanent structure within the meaning of section 108 (p) of the Act. But if the structure is intended to be there only temporarily the provisions of section 108 (p) of the Act would not apply. In the instant case the Palani had been raised with the help of bamboo sticks and palm leaves. PW 1, Balram Das, husband of the appellant, has deposed that the Palani is a Chhappar. No doubt it has been stated that it has been raised without the consent or permission of the appellant and as such it was unauthorised, the lower appellate court has found as a fact that the Palani is not of a permanent nature and does not infringe or contravene the provisions of section 108 of the Act.
(3.) IN M/s. Suraya Properties Private Limited v. B. N. Sarkar, AIR 1965 Cal. 408 a distinction between permanent structure and a temporary structure has been made and it has been held that a hut built with bamboo sticks and leaves would be a temporary structure in its nature. Pucca and permanent are by no menas synonymous terms and similarly Kuchcha and temporary do not mean the same thing. The real criteria is not whether a structure is made of Pucca bricks or of kuchcha bricks but is whether the idea in constructing the same was to retain it for ever or to demolish it after re-achieving certain objects. Undoubtedly if the constructions are of a permanent nature the lessee would not be competent to raise them, but if the same are of a temporary nature it would be within the rights of the lessee to raise them. In Kamla Kant Misra v. Kishun Lal, 1956 AWR 412 it has been held that it is the intention of the lessee and the nature of the construction which would determine whether the construction contravenes the provisions of section 108 (p) of the Act. I am unable to be persuaded that the disputed Chhappar raised by the respondents would come within the mischief of the words 'permanent structure'.;