1. Defendant in a suit for mandatory injunction is the appellant in the second appeal. The suit was decreed as prayed for and the same was confirmed in A.S 198 of 1983 on the file of Sub Court, Badagara. Hence, this second appeal.
2. The brief facts of the case are as follows: Respondent - plaintiff is the owner of a building which has got eight shop rooms in a row. Out of these, four rooms face the Perambra main road and 3 rooms face towards the road which leads to the Elamaran Kulangara temple. One of these shope rooms was tat out to the defendant on 14-11-1980 on a monthly rent of Rs. 50/- for a period of 3 months. The plaintiff would contend that at the time of lease the defendant agreed that on the termination of the tenancy he would surrender possession of the building without effecting any alteration. For the row of shop rooms there is a common verandah. This case of the plaintiff is that the defendant enclosed the verandah by using iron grills. It is also alleged that the defendant erected wooden frames by boring walls and roof of the building and he tampered with the flooring. This, according to the plaintiff, is against the terms of the lease and, therefore, he filed the suit for removal of these structures.
3. The defendant filed written statement alleging that the front verandah forms part of the lease and that the plaintiff had permitted to use this verandah and therefore he enclosed the same with iron grills.
4. The defendant alleged that similar constructions have been done by other shop owners also. The defendant alleged that the plaintiff was aware of the construction and that he had even given certain directions to the workers and thereby gave his consent for the additional construction. According to the defendant no damage has been caused to the flooring or part of the building.”
5. The trial court as well as the lower appellate court found that the defendant has made unauthorised construction and the same is liable to be removed. Under Section 108(m) of the Transfer of Property Act the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to changes caused by reasonable wear and tear. It is true that by virtue of the provisions of the Rent Control Act the rights of the lessor as envisaged under the Transfer of Property Act are curtailed to some extent. But, it is not true to say that Act 2/65 completely displaces the provisions contained in the Transfer of Property Act. The plaintiff specifically contended that as per the terms of the lease the defendant had no authority to effect any construction or make any addition to the building. The defendant could not adduce any evidence to show that the lease granted in his favour permitted him to carry out any additional structures. The nature of the construction effected by the defendant is of permanent one. It is proved that he bored the walls and the floorings to put up the iron grills. Even though the defendant contended that other shop owners have made similar construction this fact was not proved by satisfactory evidence. In fact, the commission report marked in this case belied this contention. Under these circumstances, the courts below were right in holding that the defendant effected unauthorised construction and the same was liable to be removed by him.
6. Learned counsel for the appellant relied on a decision reported in Viswnathan v. Porichu (1985 KLT 551) that the construction effected by the defendant it not unauthorised or not in violation of Section 108 of the Transfer of Property Act. It is a case where the tenant replaced the wooden shatters with collapsible rolling shatters and the landlord contended that it was an unauthorised construction in violation of Section 108 of the Transfer of Property Act. The facts of that case disclosed that the building therein had only wooden shutters in its front portion and the tenant was doing business in watch repairing and he was keeping valuable articles in the shop. So in order to provide sufficient security for his valuable articles he fixed collapsible iron rolling shatters. Of coarse, the shatters had to be fastened with two iron posts fixed on two sides. This Court was of the opinion that the construction effected by the tenant did not amount to material alteration. Bat, in the instant case, the tenant enclosed the verandah. The verandah was intended for common use. The defendant-tenant fixed iron grills and naturally he had to bore the walls and roof to facilitate this construction. There is nothing in evidence to indicate that he had obtained consent of the plaintiff. Under the above circumstances, Viswanathan v. Porichu (1985 KLT 551) has no application to the facts of this case and the decree and judgment passed by the courts below are not liable to be interfered with.
7. Second appeal fails and the same is dismissed with costs.
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