R.D. TULPULE, J.

This petition raises as is not uncommon, one of the vexed questions arising under the Bombay Rent Act, as to whether a particular work carried out by a tenant is a permanent structure within the meaning of Clause (b) of section 13, sub-section (1) which entitles a landlord to recover possession of premises where a tenant erects on the premises any permanent structure without the landlords consent given in writing. In the present case, it is nobodys case that the landlord had given his consent in writing to the work which was carried out. The only question is, whether the work which was done by the defendant-tenant, was an erection of a permanent structure or was as he calls it, a repair and something amounting to an improvement or in the nature of an improvement if at all.

2. The suit was filed by the landlord to recover possession from the petitioner-tenant on a number of grounds including that the landlord required the premises for his bona fide personal occupation. The only ground which succeeded in the Court however was the ground that the petitioner-tenant had erected a permanent structure, namely, a bathroom in the premises.

3. The view which the trial Court took of the work which was carried out by the petitioner-tenant, was that, it amounted to a new work considering that the work took about four days, it could not be treated as repairs. Considering the amount of expenses involved also, it was of the opinion, that the work amounted to a new permanent construction. It felt that this would involve also, some damage to the premises of the landlord. It was not artistic work that may be made for the purposes of beneficial and better enjoyment of the premises. He was of the view that it was a permanent construction "causing serious damage to the premises." He, therefore, held, that the plaintiff was entitled to possession.

4. This decree was affirmed by the Assistant Judge who heard the appeal before whom that seems to have been the only contention or question which was raised. He did not deal with the evidence as such, but observed that what the defendant had done was, "to carry out permanent unauthorised alterations in the suit premises, by constructing a bathroom." Considering the expenses which must have been incurred, he felt that the only inference which flowed from that circumstances was that, "unauthorised alterations of a permanent nature" were carried out by the petitioner tenant.

5. The evidence which was led before the trial Court, consisted of the evidence of the landlord, Mohamed a mason who carried out the work and the defendant-petitioner. Besides, the landlords notice as also the notice given by the petitioner to effect repairs were produced. A few photographs which were taken out on the 18th April when the work was actually in progress, were also produced. On the basis of this evidence, it was sought to be contended in the trial Court, that the petitioner-tenant has constructed a new bathroom, that he has removed the pavement or flooring consisting of ladies (Shahabad stone flooring) which was in good condition and replaced them. The permanent structure which was, therefore, erected according to the landlord, was the erection of a bathroom, the removal of the pavement which was already existing and replacing it by a new pavement. This was so alleged in the plaint also.

6. Now, as to what exactly the work which was carried out and the extent of the work and in what way, it was the erection of a permanent structure has not been specifically found by both the courts below. They have proceeded to describe the work carried out as a bathroom. It would, however be a misnomer to describe what has been done by the petitioner in the present case as erecting a permanent structure of a bathroom.

7. It is not disputed that in the premises which were let to the tenant, there existed what is described as a sink or a mori. As to the exact dimension of the mori or sink before its alteration and new form, is not clear. The evidence in that behalf consists only of the plaintiff who says that it was a 3 ft. x 4 ft. mori or sink. It was completely dug out and instead in its place, what the petitioner did was to construct a bathroom having a dimension of 3 ft. x 4 ft. and a height of 6 ft. As regards the sink, he says that in its place, a sink was constructed which was in an area 6 ft. x 4 ft. and was divided into two parts by a small wall in between. That these two parts are separately being used for the purposes of cleaning the utensils and for washing them and for the purposes of washing clothes while the bathroom was an addition of 3 ft. x 4 ft. with a 6 ft. wall.

8. The principle witness upon whose evidence reliance was placed was witness Mohamed who admittedly carried out the work in these premises, Mohamed does not say as to what was the original area and dimension of the sink. But, he admits that there was a sink which was completely removed or excavated and in its place, a new construction which he calls a mori or sink 6 ft. x 4 ft. and a bathroom was constructed. The evidence of Mohamed therefore, confirms with the evidence of the plaintiff as regards what was constructed. That goes to show that a new sink 6 ft. in length and 4 ft. in width was constructed and a bathroom was also constructed with an area of 3 ft. x 4 ft. and having a height of 6 ft.

9. However, Mohamed has clarified as to what is meant by him in constructing a bathroom. This is not disputed by the plaintiff and at the hearing of this petition, it is not shown that the statement of Mohamed is in any way erroneous. According to Mohamed, what was done in erecting a bathroom was, to take advantage of the two walls in the corner, build another wall extending upto 6 ft. and no doors were put up. As to what was there on the remaining fourth side, he does not say. Presumably, the bathroom was next to the mori which has a wall. There was no door fixed, but, an arrangement for placing a curtain was made. It will thus be seen, that what is described as a bathroom, was created by taking advantage of the two existing walls and of the corner, placing another wall about 6 ft. in height and with regard to the fourth side, there is no evidence as to what was there. There was no door but, an arrangement for hanging a curtain presumably on the fourth side. The newly erected 6ft. x 4ft. mori does not have walls extending to about 6 ft. on the sides but, somewhat shorter and apparently of about 2 ft. to 3 ft. for the fourth side that was taken advantage of probably. The evidence adduced in this case, is not quite clear and does not show as to where and how this work was situate and its exact location, either with reference to each other or with reference to the room. As I pointed out, witness Mohamed has not said in regard to what was on the fourth side and what appears to be from the photographs Ex. 21 and 25 is that, an advantage of the short wall of the mori or sink was taken for the purposes of putting up this bathroom. It must, however, be mentioned that this is on the basis of what must have been, and not what it is, as clearly disclosed from the evidence.

10. Exs. 25, 23 and 21 are three photographs of the sink and presumably of the bathroom wall or addition of the 6 ft. wall while, it was being carried out. The photograph Ex. 21 clearly goes to show that one of the side walls of the mori stands as it was and is in the same form and shape as it was and must have been before. Its appearance and the state of repair and structure clearly indicate that it is an existing part of an old structure. The intervening wall is clearly one under construction, but it is obvious that it has been constructed out of the old material and bricks which must have been used of the pre-existing mori. That is however not clear, is the place at which this intervening wall has been put up. As I pointed out, Mohamed has not given the dimensions of the existing mori or sink which was removed. As to what he means exactly by removing the mori is also not clear since atleast one side wall clearly exists and stands as it is as will be seen from Ex. 21. What appears to have been done and that goes to show the unsatisfactory state of evidence in which, the courts below proceeded to decide the matter, was to remove the flooring of the bathroom and to instal a new flooring, to remove one side wall and to divide the existing sink into two, and to take advantage of one side wall of the mori for the purposes of using the portion beyond as a bathroom. In order to give a further privacy to that portion which is now being used as a bathroom and described as a bathroom, a wall 6 ft. in height the width of which, is again not known as also the length is put up.

11. From the aforesaid discussion, it will be seen that it is in this unsatisfactory state of evidence, that the question has to be determined as to what was constructed and what was done by the petitioner in the premises. That must be found out first before it can be decided as to whether work which was carried out was a permanent structure erected by the petitioner or not.

12. Considering the aforesaid state of evidence, it will have to be held in the present case, scanty though the material is, that the petitioner removed the existing flooring which is of Shahabad stones and replaced it presumably also with Shahabad stones. The existing mori or sink, the dimensions of which are not precisely known, the flooring of that mori was also removed, but its one side was kept in tact. After removing the flooring, the flooring was replaced of the mori as well as of the room and further a partition wall was put up and a mori or sink was constructed with two smaller portion and a bathroom or a place for washing oneself beyond. In order to render privacy to this portion was to be used for the purposes of bathing a wall 6ft. in height high was constructed. If we are to go by the photograph then the width of this wall including the plaster as Ex. 25 would indicate was a wall 6 inches in thickness or in other words a single brick width wall. There is no picture or a sketch map showing the work after it was actually completed. The respondent landlord did not get a commissioner appointed for the purposes of delineating the work which was being constructed, the mori was existing, its location before and the new location of the work carried out. In the absence of all these possible pieces of evidence which could have been led as what was exactly carried out and done by the petitioner in the premises, has to be found upon an admisture of facts proved and established, and upon a guess as to what must have been done with regard to the remaining.

13. It will thus be seen that what the petitioner did, and what utmost can be said to have been done by him, was to extend what was originally a sink, divide it by a 2 feet wall if we are to go by the plaintiffs evidence, and to put up a wall 6ft. in height and 6 inches in width, the length of which wall, it is not possible to know for the purposes of use as a bathroom. No other work it is alleged has been carried out, except of course, the flooring to the room, by the petitioner. The question is, whether this can be described as an erection of a permanent structure.

14. It was seriously and strenuously contended before me that an erection of a wall 6 ft. in height, is a permanent structure. The extension of the bathroom from what was 3 ft. x 4 ft. to 6 ft. x 4 ft. was also a new construction and a permanent structure, and that where there never existed a bathroom has been constructed. All this work was carried out according to the landlord, in cement and sand and using new flooring. That the original flooring was good and did not require any repairs. The work carried out cannot be described as repairs nor improvement, but must be described as permanent construction of a structure which could not be removed unless, damages is caused to the premises. If the flooring were to be removed, then there will be damage to the landlords premises. If the well is to be dismantled, then it will affect injuriously the adjoining wall and, therefore, it was contended that this was a permanent structure which the tenant was not entitled to construct.

15. Before proceeding to decide whether the work carried out in the present case brings itself within the scope of section 13(1)(b), it has to be seen as to what were the facilities available to the petitioner tenant before the new work was carried out in the premises. It is not disputed that there existed a mori or sink in the premises which the landlord describes as having a dimension of 3 ft. x 4 ft. As pointed out its one side walls seems to be still existing. That is patent in Ex. 21. Under the circumstances, there was a mori and this must have been used by the petitioner tenant for all purposes namely, taking his bath and also of his family members, for the purposes of washing clothes and also for the purposes of cleaning and washing utensils. Therefore, by carrying out the new work, what he has done is, a separate cubicle or sort of space has been made for the purposes of bathing, a similar smaller portion for cleaning utensils and another portion for washing clothes. In other words, therefore, the three purposes for which a single mori was used is now segreated and divided into three separate sections enabling thereby, to use the premises by the petitioner with a greater advantage. With the work which he has carried out, it is quite clear that all the three types of work and function can now be carried out simultaneously. A person can have his bath, he can also wash his clothes and the household utensils can be cleaned and washed at the same time. There is, therefore, in that sense, by reason of this work carried out by the petitioner, greater facility and advantage realised by the petitioner tenant upon the additional work though all these facilities were previously available to him and existing.

16. The exact work however which has been carried out by the petitioner is the replacement of the flooring, the extension of the mori and the erection of one wall. Now as regards the replacement of a part of the mori in the premises, I am unable to see how that can be described as an erection of a permanent structure. It is not denied that there also existed a pavement of ladis of Shahabad stones and that is replaced by other ladis or pavement also of Shahabad. According to the landlord, the original pavement had not become due for replacement and that, no repairs were necessary. In other words, what has been done is now Shahabad stones were in stated. That amounts to an improvement and not erection of a new structure. It may also be pointed out the photograph Ex. 22 which was relied upon shows pieces of Shahabad stone which are excavated and lying. They appear to be broken. It is quite true that there is no evidence to show that they were broken during the removal or they were already broken.

17. What remains is, the erection of a wall which appears to be 6 ft. in height, 6 inches in width, the length of which, is not known and the extension of a mori. In the absence of any clear evidence as to what were the original dimensions of the mori, it is not to hold that the plaintiff has clearly proved that the mori which was actually existing before, was 3 ft. x 4 ft. as he says. After all, the plaintiffs testimony is interested testimony. The best evidence was obviously of Mohamed who carried out the work. But, no questions were asked to him about the original dimensions of the mori.

18. What remains then is, the erection of a wall to a height extending to about 6 ft. 6 inches in width and the exact length of which is not known but would be about 4 ft. The question is, whether this amounts to a permanent construction. I am unable to think that by erecting a wall of a thickness of one brick with plaster on two sides, without any foundation, taking advantage of a corner and the existing two walls, so as to provide privacy to the person bathing, can be described as erecting a permanent structure. What the petitioner has achieved by erecting a wall he could have obtained by placing a screen or putting up a tin sheet partition. Any other partition or thing could have been used also for the purposes of providing privacy to the person having a bath. The object of creating a wall cannot be described as anything more than providing better facility or provide privacy to a person who is actually having a bath.

19. The question is, whether in the circumstances, this can be considered as erection of a permanent structure. A number of decisions were referred to. In the very nature of things no two cases will provide identical facts and the question as to whether a particular construction or work is a permanent structure or otherwise, will have to be determined with reference to the facts found in each of such cases. Reference was made to the decision of Mr. Justice Dharmadhikari in (Sp.C.A. No. 2252 of 1973 and 132 of 1974 decide on the 3rd and 4th July, 1979)1, wherein he relied upon an earlier decision of Mr. Justice Malvankar in (Sp.C.A. No. 121 of 1968 decided on 25th/26th January, 1972)2. The learned Judge therein had laid down three criteria for determining whether a particular structure or work is a permanent structure coming within the mischief of Clause (b) of section 13 sub-section (1). The first of that criteria was the intention of putting up a structure, the mode and degree of annexation to the existing structure and whether such annexation considering from the point of view of the structure during removal smaller or greater damage would be done to the premises. The purposes for which the structure was erected was also considered as a further criteria. Whether the structure was of such a kind that it would last for long and was not intended for the purposes of temporary enjoyment of the premises but was a permanent addition is also a consideration. The third criteria which was laid down, was the nature of the materials in which the work was carried out and lastly, which is also a part of the third criteria, the time for which the structure was likely to endure.

20. In Sp.C.A. No. 164 of 1968, Mr. Justice Deshpande referred to his earlier judgment delivered in (Sp.C.A. No. 2159 of 1965 decided on 25-1-68)3, and pointed out that the question as to whether a certain structure is permanent or otherwise, has to be determined by reference to several circumstances and conditions, one of which was is removability without affecting the main structure and the second as to the nature and extent of improvement added to the enjoyment of the premises by the work carried out.

21. It seems to me that the question whether a particular work carried out in relation to any premises is a permanent structure or otherwise, can also be considered by reference to two words occurring in the English law differentiating the two kinds of structure or fixation and they are "fixture" and "chattel". Where a thing is attached permanently and thereby affects a substantial improvement to the premises, then such a thing which has been affixed and which is of a permanent nature, thereby affecting a substantial improvement to the premises must be described as a fixture. On the other hand that which is fixed for a temporary purpose and for a more beneficial enjoyment of the premises, can be described as chattel. The essential difference between a fixture and a chattel is that, while chattel can be removed without any difficulty and damage to the premises, fixture cannot. It is, therefore, the degree of annexation of the object which is described as a permanent structure to the premises, which were existing, appears to be a more essential test. If the work which is done, if the work which is carried out is so annexed to the existing premises, that which the annexed work cannot be removed without detriment or substantial detriment to the existing premises and causing injury to them, the work must be described as a permanent structure. The creation of such a work, the addition thereof, must cause and bring about a substantial improvement and change its nature or form. If it can be so removed on the there hand, and is also used or affixed for the purposes of better enjoyment of the premises, then even if the material used therefore is of a substantial nature and not flimsy, that the construction is in durable materials and articles, would still be for the purposes of beneficial enjoyment and not for the purposes of adding a lasting benefit or improvement to the construction.

22. In (Leigh v. Taylor)4, 1902 Appeal Cases 157. It was observed as follows :

"Another principle appears to be equally clear, namely, that where it is something which, although it may be attached in some form or another to the walls of the house, yet having regard to the nature of the thing itself, and the purpose of its being placed there, is not intended to form part of the really, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment, then it is removable."

There, the question was whether that which was attached became a part of the really so as to pass on or was separable and, therefore, formed a part of the estate of the lessee.

23. In (Spyer v. Phillipson)5, 1931 Chancery Division 183 certain ornamental panelling were fixed, by a tenant for a period, to the house in question. The tenant died before the term expired. They were of considerable value and the question was whether such fittings like panelling and ornamental ceiling had become the property of the lessor. The question which was posed was, "what were the object and purpose of the annexation." If the object of the annexation was, it was held, for the enjoyment of that object or greater enjoyment of the object, then the answer must be that they are the tenants fixtures and property. If that which is put in by the tenant is not for the purpose of making it a part of the structure leased and is only meant to enable the tenant to better enjoyment of what has been given to him, then it will not be a permanent annexation of the structure.

24. In (Ibrahim v. Khanmohamed)6, A.I.R. 1965 Gujarat 152, Justice Bhagwati as he then was, while dealing with the provisions of section 13(1)(b) said that, "the structure in order to be a permanent structure within the meaning of the section must have an element of permanence in it. It must be intended to be a lasting structure and that would depend on the nature of the structure". This had to be determined, he said, from the nature of the structure and the nature of the materials used. The test to determine whether it is permanent or otherwise, is an objective test and if it was of such a nature as to be lasting, then it would be deemed to be a permanent structure and not a temporary structure. A reference was also made in that case to the provisions of section 28 of the Transfer of Property Act which enables a tenant to remove on the termination of a tenancy all that which he has attached to the earth, of course, without doing damage to the property. It was pointed out that if the damage is caused to the property, the landlords remedy would be sue for damages. The provisions of the Rent Act improved upon this right and bestowed a further right to recover possession on the annexation of such a permanent structure which could not be removed without causing real damage to the property.

25. In (Sura Properties Pvt. Ltd. v. Bimalendo Nath Sarkar)7, A.I.R. 1964 Calcutta page 1, which was decided by a Special Bench of the Calcutta High Court five Judges, a question was raised as to what is a permanent structure in accordance with Clause (p) of section 108 of the Transfer of Property Act. That question was answered by the Bench by saying that it depends "on the facts of each case and no hard and fast rule can be laid down with regard to the matter". In that case, the question was in regard to the construction of a room which was built in bricks with corrugated iron sheet roof.

26. The case which to my mind directly applies to the facts of the present case is, that decided in (SukIshram v. Ranchhoddas)8, reported in A.I.R. 1972 Bom. page 220. In that case, a lessee of a temporary shed had erected a brick wall with a foundation in brick and mortar on the side of the road where the shed was. Besides, he had also erected a partition wall in between the shed so that, one part of the shed could be used for the purposes of storing articles and the other was for the purposes of a shop. It had also a foundation 1ft. 2 ft. Nevertheless, it was held that neither the partition wall, nor the wall erected on the side of the street to the shed could be described as permanent structure. Merely because therefore, a wall is erected and that wall is built either in cement, or brick and mortar, it does not follow that the work must be styled as "permanent construction". If the work has been effected so as to enable the person using the premises for a better enjoyment and beneficial use of the same premises, if there is no change in the form of the structure, if there is no different use by the erection of the structure than the one which is already being carried out in the premises, then notwithstanding that the work was carried out in durable materials and is of such a type or nature as is done in cases of permanent structures, it would not follow that what was done was an erection of a permanent structure. If that test was applied, then the mere erection of a wall which is more of a screen to provide privacy to a person who had otherwise no provacy while bathing, in the absence of any foundation, in the absence of any evidence to show that the wall was so constructed are cutting into the existing wall by removing the bricks of the existing wall for a better joint of the two walls would not make it a permanent structure. The addition of a wall in the nature of a screen could be easily removed by dismantling. It is difficult to see how any damage in the process except of a superficial nature will be caused to the existing premises. The quantum of damage which would be inflicted while removing the structure would certainly be different and can be a test to decide whether the structure is of a permanent nature of otherwise. The same can be said of the extension of the mori. I have already pointed out that there is no clear and satisfactory evidence as to the extent of the existing structure of the mori, whether it was 3 ft. 4 ft. or 6 ft. 4 ft. Even if the work which was done amounts to extension of a mori, as pointed out, the three functions for which the mori which was formerly used are now divided and three separate portions are used for the three functions. That undoubtedly ensures better enjoyment and more satisfactory and efficient use of the premises. It provides for better enjoyment of the same premises without changing the purposes for which it was let and without changing the purposes for which the premises or facilities was used. As I pointed out, the existing facility was merely extended, the purposes which could have been achieved by a flimsy erection of a partition or screen. This has been done in the present case by erecting a wall and extending the premises which limited their functional use.

27. The result, therefore, is that the petition must be allowed and it must be held that the work which was carried out by the petitioner was not in the nature of a permanent construction and, therefore, the respondent landlord was not entitled to succeed and get a decree for possession. The suit ought to have been really dismissed.

28. Petition succeeds and is allowed. Rule made absolute. There will be however, no order as to costs.

Petition allowed.