ORDER
H. Rangavittalachar, J.
1. This is a tenant’s revision petition under Section 115 of the Code of Civil Procedure. The respondent herein is the landlord. He had leased to the revision petitioner two non-residential stalls bearing CTS No. 4524 situated at Hubli for running Milk Parlour on a monthly rent of Rs. 175/- for each of the stalls. He filed an eviction petition on three grounds.–
(1) That the tenant has unauthorisedly and illegally erected a permanent wall on the southern side and fixed a rolling shutter. On the northern side he had erected a permanent wall of about 3′ height and fixed a rolling shutter and has put up additional permanent projection measuring 20′ x 20′ and has put up beedi shop. Hence, liable to be evicted under Section 21(1)(c) of the Karnataka Rent Control Act.
(2) That the tenant has been using the premises for a different purpose than was leased viz., running a hotel though the premises was leased for running a Milk Bar.
(3) That the tenant has been causing nuisance.
2. This petition was contested by the tenant. The tenant while admitting the constructions put up by him contended that the said construction was purely a temporary one and constructed with the permission of landlord. Insofar as other grounds of eviction, the tenant denied the same.
3. The learned Trial Judge allowed the eviction petition and ordered eviction by his order dated 3-1-1989.
4. Aggrieved by the said decision, the tenant preferred a rent revision petition under Section 50 of the Karnataka Rent Control Act before the Additional District Judge, Hubli. The learned District Judge by his order dated 21-12-1996, after reappraising the evidence, concurred with the findings of the learned Trial Judge and dismissed the revision petition. These two orders are under challenge.
5. During the hearing of the revision petition, the learned Counsel appearing for the landlord contended that he will press the eviction petition filed under Section 21(1)(c) only. Accordingly, the arguments have been addressed on this question.
6. Shri S. Shekar Shetty, learned Counsel appearing for the tenant contended firstly, that the alleged structures put up by the tenant are not within the “leased premises”, but outside it, in the adjoining Vacant land’ belonging to the landlord. Any construction made by the tenant in the premises outside the ‘leased premises’ will not attract the provision of Section 21(1)(c) of the Karnataka Rent Control Act. In the alternative, he submitted that having regard to the nature of the construction, it cannot be said that tenant is guilty of putting up a ‘permanent structure’; lastly, it was contended that there is variation between pleading and proof, inasmuch as, the landlord has not clearly pleaded that the construction put up by the tenant is of ‘permanent nature’ within the leased premises. In support of the above submissions, the learned Counsel relied on the following decisions of the Supreme Court in Om Prakash v. Amar Singh and Anr., Om Pal v. Anand Swarup (dead) by L.Rs, G. Arunachalam (died) through L.Rs v. Thondarperienambi and Anr. and Trojan and Company v. RM. N.N. Nagappa Chet-tiar.
7. In answer to the above contentions, Sri G.S. Visweshwara the learned Counsel appearing for the landlord submitted that when the tenant encroaches the property of the landlord adjacent to the leased property and uses it, such encroached portion is also the ‘leased property’ as held by this Court in Syed Nazmuddin v. N.S. Krishna Murthy, for the said proposition: The illegal construction in the ‘encroached portion’ will also make the tenant liable to be evicted under Section 21(1)(c) of the Act.
8. On the nature of construction, learned Counsel submitted that if the construction is put up with an intention to use the same during the subsistence of tenancy, it is of no significance as to the nature of materials used for construction and such a construction is a ‘permanent struc-
ture’ within the meaning of Section 21(1)(c) of the Karnataka Rent Control Act. In support of the said contention, learned Counsel read to me paras 13, 18 and 23 of the deposition of the tenant and also relied on the decisions of this Court in Smt. S.V. Kunkima v. B.N. Viswanath and Bhandary v. Lobo.
9. In reply, Shri S. Shekar Shetty, learned Counsel for the tenant contended that the decision of this Court in Syed Nazmuddin’s case, supra, requires reconsideration. According to him, the principle of Section 108(d) of the Transfer of Property Act cannot be imported into the provisions of Karnataka Rent Control Act. He relied on the decision of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal.
10. In view of the rival contentions, the question that calls for consideration is “Whether the orders of the Courts below calls for interference under Section 115 of the Code of Civil Procedure”.
11. It was the Transfer of Property Act which governed the relationship of lessor and lessee before the Rent Acts were passed. Since, both the Transfer of Property Act and Rent Control Legislations fall under concurrent list (VII Schedule to the Constitution), the provisions of the Rent Control Act prevails in all matters covered by it except where the application of provisions of Transfer of Property Act are excluded specifically or by necessary implications by the Rent Acts. In other words, ‘All provisions of Transfer of Property Act governing the relationship of landlord and tenant, not excluded from application by the Rent Act either expressly or by necessary implication continues to apply’ is what has been held by the Constitution Bench of Supreme Court in V. Dhanapal Chettiar’s case, supra. Relevant portion reads as under.–
“The topic of Transfer of Property other than Agricultural Land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution. The subject being in the concurrent list, many State Rent Acts have by necessary implication and many of them by stating certain provisions with a non obstante clause have done away with the law engrafted in Section 108 of the Transfer of Property Act except in regard to any matter which is not provided for in the State Act either expressly or by necessary implication”.
(emphasis supplied)
12. Section 108(d) of the Transfer of Property Act reads:
“Section 108(d).–If during the continuance of lease any accession is made to the property such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease”.
13. None of the provisions of the Karnataka Rent Control Act, 1961 either expressly or impliedly exclude the application of this provision.
14. Therefore, the contention that the principles of Section 108(d) of the Transfer of Property Act cannot be imported into the provisions of the Karnataka Rent Control Act does not merit consideration. V. Dhana-pal Chettiar’s case, supra, relied by the learned Counsel supports the principle that Section 108(d) of the Transfer of Property Act applies as shown above rather than advancing the case of petitioner.
15. In Syed Nazmuddin’s case, supra, it was held that where a tenant encroaches any property belonging to landlord, adjacent to leased one a presumption arises that such encroached area also becomes tenanted property. The relevant passage reads:
“There is a presumption that whenever a lessee or a tenant encroaches upon the adjacent area to his leased or tenanted premises, then such encroached area or premises or property, also gets included as the leased or tenanted’, property and the tenant is obliged to protect the landlord’s rights in respect of the encroached area also, and deliver up unto the landlord at the end of tenancy the said encroached area along with the original tenanted or leased area…..”.
(emphasis supplied)
16. There is no dispute that the premises encroached by the tenant is adjacent to the leased premises belonging to the landlord. The encroached portion therefore becomes “leased premises” by the principles of Section 108(d) of the Transfer of Property Act and the respondent becomes a ‘landlord’ and the revision petitioner becomes a ‘tenant’ of this encroached portion also within the meaning of Section 3(h), (n) and (r) of the Karnataka Rent Control Act, and thus the ‘landlord’ is entitled to invoke any or all or some of the clauses of Section 21 including Section 21(1)(c) of the Karnataka Rent Control Act.
17. Section 21(1)(c) of the Act together with the non obstante clause reads:
“(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant:
Provided that the Court may on any application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely.–
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) that the tenant has without the landlord’s consent given in writing, erected on the premises any permanent structure; or”.
18. However, the contention of Shri S. Shekar Shetty is that the “permanent structure” envisaged under Section 21(1)(c) should be of such a nature that it should transform the character of the building or change the structure otherwise. Merely putting up any structure without changing the original character or structure of the building will not
amount to “erecting a permanent structure” within the meaning of Section 21(1)(c) of the Act. The language of Section 21(1)(c) of the Act does not admit of such a construction. Reliance placed by the learned Counsels in Om Prakash’s case, supra and G. Arunachalam’s case, supra, are wholly misplaced. Those two cases were dealing with the provisions of Section 14(c) of the Uttar Pradesh Contonments (Control of Rent and Eviction) Act (10 of 1952). The said section reads as under.–
“That the tenant has without the permission of the landlord, made or permitted to be made any such construction as in the opinion of the Court has materially altered the accommodation or is likely substantially to diminish its value”.
19. In the context of the language used therein, in both the cases, it was held that the enquiry of the Court must be to know:
“Whether only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants’ eviction”.
20. The language of Section 21(1)(c) of the present Act is totally different from the language of the Uttar Pradesh Rent Act. Hence, the decisions are of no assistance.
21. Under Section 21(1)(c) of the Act, if a tenant puts up a permanent construction, without the written consent of landlord in any part of the leased premises, he would be guilty of violating the provisions and is liable for eviction. If the contention that unless the tenant alters the structure or changes the character of the building provisions of Section 21(1)(c) of the Act is not attracted is accepted, then it would be giving licence to tenants to put up any type of buildings in the vacant land comprised in the lease attached to the buildings. That cannot be the intendment of Section 21(1)(c) of the Act.
22. The tenant has also admitted that he has put up the structures as complained by the landlord at para 4 of the eviction petition and that his intention is to use the newly constructed structures as long as his tenancy lasts. At para 13 of his deposition relevant portion of which is extracted, this is what he says:
23. In Bhandary’s case, supra, before this Court, meaning of the expression “permanent structure” in Section 21(1)(c) of the Act came up for consideration. This Court has held:
“A structure is ‘permanent structure’ one as long as the intention is clear to use such structural alteration reasonably for a long period. The fact that destructible material was used to create
such a structural change, does not, in my opinion, render such a structure any the less permanent. In fact, there is no structural building material which can claim absolute permanency. Even a concrete wall made of cement can be destroyed by using appropriate instrument. A brick wall can be bulldozed. A plyboard can be burnt. Type of the material used coupled with the intention of the maker of the alteration should be a more rational test than the test for deciding the permanent structure merely on the material used”.
24. Lobo’s decision, supra, has also been referred to with an approval in a subsequent decision in Smt. S.V. Kunhima’s case, supra.
25. Admittedly, the tenant had not obtained the written consent of the landlord for erecting the additional building. When the tenant does not obtain the written consent and erects the permanent structure in the leased premises, there is no escape for the tenant but to suffer an order of eviction.
26. On the contention of Shri S. Shekar Shetty that there is a variation between the pleading and proof inasmuch as the landlord has not pleaded that the tenant has put up permanent structure in the encroached portion and evidence should not have been looked into. At paras 3 and 4 of the eviction petition, the landlord has pleaded as follows.–
“That the respondent is a statutory tenant of the portion of the petition premises bearing stall Nos. 5 and 6. The tenancy commences from 1st of each calendar month. The agreed rent is Rs. 175/- per month per stall.
That the respondent has constructed unauthorisedly and illegally a permanent wall of 8 feet height to the south side of the rolling shutter. The respondent has unauthorisedly and illegally constructed a permanent wall of about 3′ in height to the northern outside the rolling shutters. The respondent has erected a permanent additional projection measuring about 20 feet by 20 feet without the consent of the landlord. The respondent has located a beedi shop inside the additional projection. Therefore, the respondent is liable to be evicted for having contravened the provisions of the Karnataka Rent Control Act”.
27. This is sufficient plea to bring the case under Section 21(1)(c) of the Act and to put the tenant on notice. That apart when the landlord has led evidence to show that the tenant has put up unauthorised construction in the encroached portion and he has been cross-examined by the tenant without protest, the tenant also having led evidence on this point. He cannot now contend that there is variation between pleading and proofs.
28. In the light of the discussions made above, the conclusion of the Courts below cannot be faulted. I find no jurisdictional error calling for interference under Section 115 of the Code of Civil Procedure.
29. Thus for the reasons stated, this revision petition is dismissed.
30. Shri S. Shekar Shetty prayed that the tenant is eking out his livelihood from the business carried on by him and submitted that the tenant may be granted five years time to quit and deliver the vacant possession of the premises. The learned Counsel for the landlord opposed for grant of any time. Taking into consideration, the fact that the tenant is eking out his livelihood and also taking into consideration of the delay in filing eviction petition by the landlord, even after he noticed the tenant guilty of constructing, three years time is granted to quit and deliver the vacant possession of the premises subject to the following conditions.–
(a) That he shall file an affidavit undertaking to voluntarily vacate the premises. The affidavit shall be filed within four weeks from today after serving a copy on the other side.
(b) That he shall pay the monthly rents regularly as and when it falls due without any single default.