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

- **Citation:** [1997] 3 S.C.R. 519
- **Court:** Supreme Court of India
- **Decided:** 1997-04-02
- **Case number:** Civil Appeal No. 2825 of 1986
- **Bench:** K. Ramaswamy, D.P. Wadhwa
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/karuna-ram-medlll-and-ors-v-kamakhya-prasad-baruah-and-anr-15488
- **Pages:** 7

## Headnote

B
Assam Non-Agricultural Urban Areas Tenancy Act, 1955 :
Section 3(d)-Pemzanent stmcture--Wlzat is-Held it must be constmed as defined in Section 3(d)-What will be a pennanent stmcture for the C
pw71ose of pmtection of Section 5 is a question off act-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 condiJ
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-Appeal before this Cowt-Held view taken by the High Cozut that on the
destruction of the pemwnent strncture by accident the tenant was not disentitled 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)
F
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, approved.
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.
B
c
D

## Text

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 constmed as defined in Section 3(d)-What will be a pennanent stmcture for the C
pw71ose of pmtection of Section 5 is a question off act-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 condiJ
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-Appeal before this Cowt-Held view taken by the High Cozut that on the
destruction of the pemwnent strncture by accident the tenant was not disentitled 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)
F
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, approved.
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.
B
c
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2825 of
1986.
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.
S.A. Syed and S.K. Nandy for the Respondents.
The following Order of the Court was delivered :
Substitution allowed.
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
F
issued a notice on December 12, 1959 asking the respondent to vacate and
land and deliver the possession on January 1, 1960. The respondent has
resisted the contentions raised in the suit filed by the appellant for ejectment 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-respondential 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:
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 accordance with law and the notice of termination without giving one
month's time as provided under Section 11 of the Act is not valid.
c
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".
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
actually built permanent structure on the land of the tenancy for
residential or business purposes with the knowledge and acquiescence 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,
"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
E
F
G
under Section 5(1)(a) of the Act is not correct."
H
A
B
c
D
E
F
G
H
522
SUPREME COURT REPORTS
[1997[ 3 S.C.R.
"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 permanent structure has been gutted out by fire. The act of fire in
gutting out the permanent structure was not within the control of
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."
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
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
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.
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
a landlord and his tenant whether before or after the commencement of this ·Act, a tenant whether before or after the commencement 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
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
purpose.
(5) The construction was with the knowledge and acquienscence
of the landlord."
If the aforesaid conditions are satisfied, the tenant shall not be
ejected by the landlord from the tenancy except on the ground of non-payment 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
D
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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 Banerjee 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 appellant.
E
F
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 constructed the permanent structure. Therefore, the landlord cannot be
deprived uf his statutory right lo eviction on the ground of acquiescence
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 acquiesced 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.