- (1.) THIS Miscellaneous appeal is directed against the order of remand made by the learned Subordinate Judge, Asansol, for the purpose of assessing the amount of compensation that the plaintiff-appellant would be entitled to. The plaintiff-appellant, the Indian Iron and Steel Co. Ltd. granted a lease of a certain plot of land at Burn pore to the respondent, Ganesh Chandra Bose for one year from the 1st of May, 1939 to the 30th April, 1940 for making a shop room with kutcha materials and doing tailoring business and also residing with his family in the structure. The lessee was permitted to cement the floor of the room of the structure but was not permitted otherwise to erect a pucca structure and the materials for the walls were to consist of comparatively perishable articles like split bamboo or reed. The respondent after the expiry of the terms of the lease continued to occupy the land of the tenancy at the same rent, and towards the beginning of January 1950 he started constructing pucca house in contravention of the terms of the lease. The appellant promptly instituted the suit from which the appeal arises he actually instituted the suit on the 18th January, 1950 for a permanent injunction restraining the respondent from making any further construction on the land of the tenancy and for a mandatory injunction directing the respondent to demolish the pucca construction already made. This suit was dismissed in the first instance in the trial court, but in appeal the suit was decreed and a permanent injunction restraining the respondent from making further pucca construction was passed. In the meantime, one pucca room had already been made with brick walls, the binding material of which however was mud and not cement. As regards the mandatory injunction the suit was remanded to the trial court for deciding whether in view of the circumstances a monetary compensation for contravention of the terms of the lease would be sufficient remedy. The learned Munsif held that monetary compensation would not be appropriate remedy. At the same time, however, he did not allow the mandatory injunction by way of demolition, holding that the contravention of the terms of the lease was only slight because, the binding material used in the brick wall was only mud and not cement or lime and morter. There was an appeal against that decision filed by the plaintiff, and the learned Subordinate Judge held that the only prejudice that the plaintiff might suffer would be to pay higher compensation to the tenant under the proviso to section 9 (1) in case of ejectment and this prejudice could easily be compensated by awarding damages in money and that in the circumstances, rather than allow a mandatory injunction for demolition, a monetary compensation should he given for the breach of the terms of the lease. For assessing the money compensation he remanded the suit over again directing that 50 p. c. of the value of the materials used for the construction of the walls would be a fair measure of the compensation.
(2.) MR. Ajoy Kumar Basu appearing for the plaintiff-appellant has urged that the basis of valuation of 50 p. c. is an arbitrary basis, but his main contention is that unless a mandatory injunction for demolition of the pucca walls is now granted, it will subsequently be argued against the plaintiff appellant that in terms of section 7, clause (v) the tenant has acquired a permanent right, and, therefore, cannot be ejected except on the ground mentioned in clause (i) of section 7, i. e. , except when it is found that the tenant has used the land in a manner which renders it unfit for use for the purpose of the tenancy and this is a contingency that the plaintiff appellant wants to guard against. Now this point was dealt with by the learned Subordinate Judge, and he held that the plaintiff-appellant would not really run that risk, because the defendant had constructed the pucca walls without the consent of the landlord and the landlord not only gave no consent but promptly filed a suit praying for the mandatory injunction for demolition, and that in the circumstances it could never be argued that the landlord had allowed the pucca structure to be erected. In a number of English decisions it has been laid down that "to allow a thing to be done there must be some direct or indirect sanction of it" (vide Stroud's Judicial Dictionary, page 118 ). In the present case, where the landlord gave no consent to the construction of the pucca structure i. e. , the room with the pucca walls, but he promptly filed a suit for a mandatory injunction for demolition of the pucca structure, the refusal of the mandatory injunction by the Court and the grant of a monetary compensation instead could not be held to amount to any direct or indirect sanction of the construction of the pucca structure. I must, therefore affirm the finding of the lower Appellate Court on the point, and hold that provided a suit for ejectment is filed in due time after deducting the period mentioned in section 90 of the West Bengal Non-Agricultural Tenancy Act, 1949, the plaintiff appellant cannot be met with the defense that the tenant has acquired a permanent right on the ground that the landlord allowed him to build a pucca structure on the land of the tenancy within the meaning of the section 7, clause (v) of the Act. As regards the percentage of the value of the materials on the basis of which compensation is to be assessed, I do not consider it necessary to interfere with the discretion of the learned Appellate Court. Accordingly, this appeal is dismissed. But in the circumstances no order is made as to costs. In view of the above order, no order is necessary on the application under section 115 of the Code of Civil Procedure.;