P.Chatterjee, J. - (1.) The substantial question involved in this Second Appeal is to interpret Clause VI of the lease Clause VI runs as follows:-- "To erect only temporary structures as may be necessary for their pupose: and if any structure of permanent or substantial character is erected by the lessees that will be done by them at their own risk, to remove the structures within a fortnight from the expiry of the lease by efflux of time, in default they will lose all rights in the structure and their rights therein will be extinguished......"
(2.) This lease was executed on the 30th December 1946 This lease should be interpreted not merely in the context of the Transfer of Property Act which was then in force but also in the context of the Non-Agricultural Tenancy Act which came in force later. Under Section 7. Sub-section 5 of the said Act "notwithstanding anything contained in any other law for the time being in force or any contract, if the landlord has allowed pucca structures to be erected on any non-agricultural land held under a lease in writing for a period specified therein, whether such structures have been erected before the expiration of the said period then the tenant holding the non- agricultural land comprised in such tenancy shall not of ejected by his landlord." There is no dispute that the structures of permanent or substantial character are pucca structures within the meaning of the West Bengal Non-Agricultural Tenancy Act. The question is has the landlord 'allowed pucca structures to be erected'. If the landlord has allowed such pucca structures to be erected the suit must be dismissed. If, on the other hand, the Landlord has not 'allowed pucca structures to be erected' then the landlord will succeed and he will get a decree for ejectment. The trial court decreed the suit; the appeal court allowed the appeal and hence this Second Appeal by the landlord.
(3.) We are to interpret the terms of a lease in 1947 That lease was executed with reference to the law then in force. Section 108 of the Transfer of Property Act provides for rights and liabilities of the lessor and the lessee and it further says that in the absence of a contract or a local usage to the contrary the provision as under Section 108 would apply. The lease in question refers to many of the provisions of Section 108; but we are not to consider any of them except Clause VI at the present stage. The relevant provision in Section 108(p) is as follows: "He must not without the lessor's consent erect on the property any permanent structure except for agricultual purposes". Hence, under the law, then in force, the tenant could be successfully injuncted by the landlord if the tenant attempted to raise any permanent structure. But the prohibition under Section 108(p) is not absolute prohibition. By a contract between the parties they could do away with the prohibition wholly or partially; with reference to Section 108(pl the parties agreed that temporary structures might be erected but if a permanent or substantial structure would happen to be erected by the lessee that would be done by him at his own risk and further he would remove such structure within a fortnight from the expiry of the lease by efflux of time. In default, the structure would vest in the landlord. This is the contract.;