KARUNA RAM MEDHI AND ORS.versusKAMAKHYA PRASAD BARUAH AND ANR.

                  KARUNA RAM MEDlll AND ORS.                                     A
                          v.
            KAMAKHYA PRASAD BARUAH AND ANR.

                              APRIL 2, 1997

            [K. RAMASWAMY AND D.P. WADHWA, JJ.)                                  B

      Assam Non-Agricultural Urban Areas Tenancy Act, 1955 :

      Section 3(d)-Pemzanent stmcture--Wlzat is-Held it must be con-
stmed as defined in Section 3(d)-What will be a pennanent stmcture for the       C
pw71ose of pmtection of Section 5 is a question offact-Question of nature
of stmcture--Raised for the first time in Appeal before Supreme Cowt-Held
not maintainable.

      Venkatlal G. Pittie & Anr. v. B1ight Bros. (Pvt.) Ltd., [1987] 3 SCR 593
and Karam Singh Sobti & Anr. v. Slui Pratap Chand & Anr., [1964] 4 SCR           D
647, held inapplicable.

        Section 5( l)(a)-Tenant-Protection from eviction-Necessary condi-
        J
lions for-Lease agreement between respondent and appellant-Respondent
const1ucted a house on demised land within five years from the date of
lease--H ouse gutted in fire-Thereafter respondent reconstmcted the E
house-Notice issued by appellant asking the respondent to vacate the
land-Suit decreed by T1ial Cowt-Appellate Cowt confi1111ed the same-In
Second Appeal High Cowt reversed the Decree and dismissed the suit-Ap-
peal before this Cowt-Held view taken by the High Cozut that on the
destruction of the pemwnent strncture by accident the tenant was not disen-
                                                                              F
titled to protection available under Section 5 was not vitiated by any enw of
law.

      Refiquennessa v. Lal Bhadur Chetri (dead) by Lrs. & Ors., [1964] 6
SCR 876 and Biswambhar Roy (dead) by Lis. v. Girindra Kumar Paul (dead)
by Lrs., AIR ~1966) SC 1908 and Dhananjay Singh v. Usha Ranjan Bhadra            G
& Ors., (1970) ILR Vol. 22, relied on.

     Bireswar Bane1jee v. Sudhir Rajan Bose, A.L.R. (1973) A&N 15, ap-
proved.

      Canara Bank v. Canara Sales Co1poration & Ors., [1987] 2 SCC 666; H
                                  519
    520                    SUPREME COURT REPORTS                (1997) 3 S.C.R.

A Shiromuni & Ors. v. Hem Kumar & Ors., [1968] 3 SCR 639 and Pramila
    Rani Nag v. Mohd. Mir Hussain & 01~·., C.A. No. 1209174 decided by
    Supreme Court on 17.1.1995, held inapplicable.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2825 of
    1986.
B
         From the Judgment and Order dated 24.8.82 of the Assam High
    Court in S.A. No. 58 of 1976.

            Pravir Choudhary for the Appellant.

c           S.A. Syed and S.K. Nandy for the Respondents.

            The following Order of the Court was delivered :

            Substitution allowed.
D         This appeal by special leave arises from the judgment of the Full
    Bench of the High Court of Assam, made on 24.8.1982 in S.A. No. 58 of
    1976.

         The admitted facts are that the respondent .had entered into an
E agreement of lease of land with the predecessor-in-title of the appellant on
  January 5, 1953 for a period of seven years on payment of premium of Rs.
  30/- p.a. The respondent constructed a house therein five years from the
  date of the lease. The house was gutted in a fire on April 4, 1958 and
  thereafter the respondent reconstructed the house. The appellant had
  issued a notice on December 12, 1959 asking the respondent to vacate and
F
  land and deliver the possession on January 1, 1960. The respondent has
  resisted the contentions raised in the suit filed by the appellant for eject-
  ment of the respondent from the demised property. The trial Court
  decreed the suit. On appeal, the Additional Direct Judge confirmed the
  same. In the second appeal, the Full Bench of the High Court reversed the
G decree of the trial Court and dismissed the suit. Thus this appeal by special
  leave.

          Shri Prabir Chowdhury, learned counsel for the appellants, with his
    painstaking preparation, has contended strenuou~fy that the High Court is
H   wrong irr coming to the conclusion that the respondent had constructed the
                    KARUNARAMMEDHlv. K.P.BARUAH                               521

    house with permission of the predecessor of the appellant. The respondent A
    has not pleaded any acquiescence in that behalf. Unless the lease deed
    does contain any term for construction of the house on the non-responden-
    tial premises of the land, the respondent is not entitled to the protection
    of Section 5 of the Act. Consequently, he is liable to ejectment under


-   Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, B
    (for short, the 'Act'). The suit notice terminating the lease is valid in law.

         The question, therefore, is whether the view of the Full Bench of the
    High Court is vitiated by any error of law warranting interference? The
    High Court, after the elaborate consideration of the matter, has held that:
                                                                                     c
            Here the suit was filed on 21.1.60, whereas the notice was received
            the defendant on 12.12.59. Therefore, the notice is not is accord-
            ance with law and the notice of termination without giving one
            month's time as provided under Section 11 of the Act is not valid.

                Next it was held that "the house was constructed within five         D
            years. There is clear finding recorded by the courts below that both
            the structures one constructed within five years of the lease and
            also the other one constructed after the earlier structure was gutted
            by fire, were of permanent nature".
                                                                                     E
          The notice to quit is bad in law as one month's notice was not issued
    to the respondent. On that premise, the Court proceeded to decide on the
    facts whether the respondent is entitled to the protection of Section 5 of
    the Act. After elaborate consideration, the Full Bench has held :

            "A tenant although not entitled to build under the contract, has         F
            actually built permanent structure on the land of the tenancy for
            residential or business purposes with the knowledge and acquies-
            cence of the landlord, shall not be ejected by the landlord except
            on the ground of non-payment of rent."

            At page 22, it was further held that,                                    G

            "The contention raised on behalf of the landlord that unless the
            construction is made within five years of the current lease which
            is relied upon by a party, such a tenant is not entitled to protection
            under Section 5(1)(a) of the Act is not correct."                        H
    522                   SUPREME COURT REPORTS                   [1997[ 3 S.C.R.

A               "In the present case the permanent structure which was built
            earlier within the period five years and thereby acquiring the
            protection under Section S(l)(a) of the Act, it could not be said
            to have been whittled down by the mere fact that the said per-
            manent structure has been gutted out by fire. The act of fire in
            gutting out the permanent structure was not within the control of
B
            the appellant, it was accidental without any violation on the part
            of the appellant. This was an event which could not be reasonably
            anticipated. A loss occasioned by the act of God or vis major or
            by any event beyond the control of a person, it cannot be said that
            such loss will fall on him."
c
          On that premise, the Full Bench concluded in para 10 thus :

            "We are firmly of opinion that on the destruction of the permanent
            structure by accident beyond the control of the tenant or by any
            act of God, the protection available to a tenant under the
D           provisions of Section 5, by constructing a permanent structure, do
            not evaporate. Once the protection ensure to the tenant by virtue
            of his having built the permanent structure, within five years of the
            lease for the purpose of residence and business, the destruction of
            the structures by some event beyond the control of the tenant
E           would not deprive the tenant of the said protection provided he is
            continuing in the tenancy for the purpose of his residence of
            business."

          On that finding, the decree of tht trial Court as confirmed by the
    appellate Court came to be reversed.
F
          It is true, as contended by Mr. Prabir Chowdhury, that the tenant is
    required to establish three essential facts as postulate under Section 5(1)(a)
    of the Act. It postulates thus :

            "S(l)(a) "Where under the terms of a contract entered into between
G           a landlord and his tenant whether before or after the commence-
            ment of this ·Act, a tenant whether before or after the commence-
            ment of the Act, a tenant is entitled to build, and has in pursuance
            of such terms actually built within the period five years from the
            date of such contract, a permanent structure on the land of the
H           tenancy for residential or business purposes, or whether a tenant
                KAR UNA RAM MEDHI v. KP. BARUAH                         523

        not being so entitled to build, has actually built any such structure A
        on the land of the tenancy for any of the purposes aforesaid with
        the knowledge and acquiescence of the landlord, the tenant shall
        not be ejected by the landlord from the tenancy except on the
        ground of non-payment of rent."

      The following conditions must be stisfied for application of Section     B
5(1)(a):

        "(1) The terms of the contract of tenancy, the tenant is entitled to
        build on the landlord of tenancy a permanent structure.

        (2) That pursuant to that liberty, he had actually constructed the     C
        building.

        (3) It must be constructed within five years from the date of the
        contract of tenancy, a permanent structure on the land of tenancy.

        (4) That the permanent structure is for residential or business
                                                                               D
        purpose.

        (5) The construction was with the knowledge and acquienscence
        of the landlord."
                                                                               E
      If the aforesaid conditions are satisfied, the tenant shall not be
ejected by the landlord from the tenancy except on the ground of non-pay-
ment of rent. This view was laid by this Court in Rafiqucnnessa v. Lal
Balzadur Chetri (dead) by LI:~. & Ors., [1964] 6 SCR 876 and Biswamblzar
Roy (dead) by Lrs. v. Girindra Kumar Paul (dead) by Lrs., AIR (1966) SC
~-                                                                             F
     This was construed by this Court is Dlzananjay Singh v. Usha Rajan
Bahadra & Ors., (1970) ILR Vol. 22 at 82. This view was reiterated by this
Court in Bishwambar Roy's case (supra).

       It is seen that the High Court after considering the question of law, G
following the earlier Full Bench .I udgment of that Court in Bireswar Baner-
jee v. Sudlzir Rajan Bose, A.L.R. (1973), A & N 15 held that the tenant
constructed the permanent structure on the land taken on lease within five
years from the date of the lease. He is entitled to the protection of tenancy.
The mere fact that the said building was destroyed by fire subsequently H
    524                   SUPREME COURT REPORTS                  [1997] 3 S.C.R.

A does not destroy the tenancy rights acquired by the tenant and thereby the
    tenant is not liable to ejectmenl from the demised premises. Thus, he is
    entitled to the protection of Section 5(1)(a) of the Act.

          The decision oited by Mr. Prabir Chowdhury v. Venkatlal G. Pittie &
  Anr. v. B1ight Bros. ~vt.) Ltd., [1987] 3 SCR 593 at 601 on the nature of
B the permanent structure as defined in Section 3 (d) of the Act as laid down
  in some of the decisions of the Calcutta High Court rekrred to by this
  court in the above judgment, is of no relevance for the pnrpo5e of this case.
  It is true that Section 3 (d) of the Act defined ''permanent structure". The
  permanent structure must be construed as defined in Section 3( d). Since
C the permanent structure is built as per the permission expressly contained
  in the contract of lease of by necessary acquiescence of the landlord the
  tenant constructed it to the knowledge of the landlord. What will be a
  permanent structure for the purpose of the protection of Section 5 of the
  Act is a question of fact. The question of nature of the structure, i.e.,
  whether it is a permanent within the meaning of Section 3( d) of the Act,
D was not put in issue before the High Court. Therefore, we cannot go into
  that question for the first time in deciding the nature of the construction
  made by the respondent before the fire had broken out. Under these
  circumstances, the above judgment renders little assistance to the appel-
  lant.

E         He then contended that it is for the tenant to prove that the landlord
    had permitted the construction. In the light of the recitals in the leases
    deed, no such permission was given in writing; so it is not valid in law.
    Therefore, tht: High Court was not right in concluding that he has con-
    structed the permanent structure. Therefore, the landlord cannot be
    deprived uf his statutory right lo eviction on the ground of acquiescence
F   without any pleading or proof in this behalf. We find nu force in the
    contention. He had constructed the house within five years obviously to the
    knowledge uf the landlord and he acquiesced tu it as it was not objected
    to.

G       It is rather unfortunate that the question was not rnised by the
  appellant in the High Court and we do not find the same issue in the
  pleadings. This Court in Karam Singh Sobti & Anr. v. Shri Pratap Chand &
  Anr., [1964] 4 SCR 647 at 649 merely considered the question whether the
  construction made by the tenant should be regarded as a permanent
  structure in relation to the legality of the plot? It was found that he has no
H evidence to show when exactly the said house was constructed. In other
                KARUNARAMMEDH!v. K.P.BARUAH                               525

words, the ratio therein is with reference to the period during which the        A
construction was made and this Court did not find that it was not a
permanent structure. The decision therein if of little assistance to the
appellant.

       In Canara Bank v. Canara Sales C01poratio11 & Ors., [1987] 2 SCC
666, the question was whether the customer-account holder to whom the            B
monthly pass-sheets of account are communicated is deprived of his right
to file a suit for account. Tt was contended that since in the regular course,
pass-sheets of the account were being communicated and he had ac-
quiesced to the same, the suit was not maintainable. In this context, this
Court had held that the question of acquiescence does not arise so long as       C
he is entitled to the settlement to account. The ratio also is nol of any
assistance to the appellant. In Shiromani & Ors. v. Hem Kumar & Ors.
[1968] 3 SCR 639 at 644, the question therein was under Mitakshara Law
of the Banares School of Hindu Law, viz., whether a wife is entitled to an
equal share in the property along with the sons. There was a prior partition
between the sons evidenced by Ex. D-4 to which their mother was a                D
signatory. It was contended in the suit filed by the mother that she had
acquiesced to the division of the property and thereby when she claimed
her share was declared disentitled. In this context, it was held that the plea
of acquiescence must be specifically pleaded and proved. In that case, it
was not done. The ratio thereof has no application to the present case for
the reason that the appellant has not disputed the construction of the house     E
and that it was not his case that his predecessor-in- title has acquiesced to
the construction of the permanent structure in the land leased out lo the
respondent.

      He has also placed reliance on an unreported judgment of this Court        F
in Pramila Rani Nag v. Mohd. Mir Husain & 01~·., C.A. Mp/1209/74 decided
on 17.1.1995 which is on the nature of the construction. That also has no
relevance to this case.

      Thus we hold that the View taken by the High Conrt is not vitiated
by any error of law warranting interference. The appellant ;s entitled to        G
withdraw the amounts under deposit.

      The appeal is accordingly dismissed. No costs.

T.N.A.                                                     Appeal dismissed.