( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 158 OF 2007 Dagdu Onkar Sonar (Died) & ors. .. Applicants Versus Chairman, Balaji Mandir Sansthan Trust, .. Respondents through its trustees Shri S.H.Tripathi, Advocate for the revision applicants. Shri V.S.Bedre, Advocate for respondent Nos.1 to 4 & 7 to 11. CORAM : P.R. BORKAR,J. DATED : 08.09.2009 P.C. :- 1. This Revision Application is filed by the tenants who are members of same family being aggrieved by the judgment and decree passed by the learned Principal District Judge, Jalgaon, in Regular Civil Appeal No. 342 of 2001, decided on 02.12.2006, whereby he set aside the dismissal of Regular Civil Suit No. 163 of 1995, by II Jt. Civil Judge, Junior Division, Jalgaon, on 3rd November, 2002 and decreed ( 2 ) the suit for eviction on the ground of carrying out permanent construction in the suit premises under Section 13 (1) (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short “the Bombay Rent Act”). 2. The suit premises which was originally one storied building situated at City Survey No. 192 at Jalgaon is owned by Balaji Mandir Sansthan of Jalgaon of which respondent Nos. 1 to 13 are the trustees. One Jankabai was inducted as a tenant. Jankabai had no issue. Her brother Dagadu who was original appellant/applicant No.1 (since dead) and respondent Nos. 2 to 6 were residing with Jankabai. Regular Civil Suit No. 163 of 1995 was filed by the respondent – Trust for eviction on the ground of bona fide requirement and on the ground that the tenants have carried out permanent constructions in the suit premises without their written permission. The Trial Court dismissed the suit holding that both grounds were not proved; whereas in the appeal the District Court came to a conclusion that the ground under Section 13 (1) (b) of the Bombay Rent Act is proved and accordingly allowed the appeal and decreed the suit. It is this decree, which is challenged in this revision ( 3 ) application. 3. The Trial Court in para 15 onwards of the judgment discussed the relevant evidence and it came to a conclusion that the original property let out was a ground floor which consisted of a room and a veranda. However, construction of 6.6 x 6.5 ft. with height of 8 to 10 ft. was made on the roof of ground floor. The evidence of Court Commissioner Sk. Nasimoddin showed that it was construction in bricks and mud up to height of four feet and thereafter there were wooden walls. The roof was of tin sheets. There was wooden ladder for using the room. The report of the Court Commissioner is at Exh.29. There are also photographs. P.W.4-Prakash proved photographs at Exhs. 88 and 89. After considering the evidence, the Trial Court came to a conclusion that it was neither permanent construction nor new construction. It accepted the opinion of the Court Commissioner, perused the photographs and came to a conclusion that the construction appeared to be old. It is also observed in para 16 of the judgment that in order to hold construction as permanent one, the plaintiff has to establish whether it caused damage to the suit property and any material was embedded in the ( 4 ) original structure. The Trial Court also came to a conclusion in para 18 of the judgment that the land-lord has waived his right under Section 13 (1) (b) by not taking any action from 1982 to 1995 as the suit was filed in 1995. 4. The Appellate Court discussed the evidence and in para 21 and came to a conclusion that the construction was carried out about 20 years before (his judgment). However, it was a permanent construction. No written consent was obtained from the land-lord. Therefore, there was breach of Section 13 (1) (b). This is Civil Revision Application and Revisional Court has its limitation. There is concurrent finding that the construction is old one. In order to consider whether it is permanent construction or not, it is argued before this Court that construction up to height of 4 feet is in mud and bricks and above it is wooden construction with G.I.C. Sheets as roof. Whether the construction is permanent or temporary has to be decided having regard to all circumstances and mere material used for construction would not be decisive. Poor man may construct his house in mud and bricks. It may be even a thatch hut. A rich man may construct a big house using costly material. It is intention ( 5 ) which governs whether construction is permanent or not. In this case the very findings of the Trial Court and the First Appellate Court that the construction has been there for 15 to 20 years itself clearly shows that the construction was meant to be a permanent construction. It is worth noting that original house which was taken on rent by Janakabai and in which present revision applicants reside, is itself constructed in bricks and mud. It has been in their possession for last 45 years. So, it cannot be said that the construction on the first floor, merely because it is in bricks and mud is not a permanent construction. 5. So far as the test laid down by the Trial Court is concerned, in cross-examination the revision applicant – Laxmibai did say that because of construction of a room on the first floor, the house had become dilapidated (Padau Zalele Aahe). It is also specifically admitted that no permission of the plaintiffs was taken. It is also observed in the same paragraph that a wooden staircase was fixed after removing certain portion of the roof. So, in my opinion, the construction is permanent construction. ( 6 ) 6. The next question that arises for consideration is whether there is waiver. For this purpose we have to consider that the respondent – land-lord is a public trust of which there are several trustees. It is not a private house. It is argued before this Court that it is admitted in the plaint itself that the rent was accepted by the trust till January, 1988. There was inaction about the erection of construction from 1980 to 1995. This inaction itself is proof of waiver and acquiescence. In her deposition revision applicant - Laxmibai did not say about waiver and acquiescence. We will have to infer it from the circumstances. The Trial Court held that there was waiver due to inaction, but the Appellate Court did not accept this. 7. Before I come to any conclusion, I may refer to the authorities cited by both sides. In the case of Ramchandra Dattatraya Gandhi V/s. Sou. Pushpabai Manohar Sheth, AIR 1990 BOMBAY 1982, in para 15 following observations are made :- “15. .................. What Section 13 (1) (b) says is that if a permanent structure is put up without the written consent of the landlord, that gives a right to the landlord to file a suit as against the tenant. It is open to the landlord ( 7 ) to avail of that right or not to avail of that right. He can always waive that right. In the present case, the conduct is so clear that at no point of time the landlord had even objected to the construction. It was all done with the knowledge of the then landlord. He himself was supervising some of the repairs and alterations. Certainly in such a case it is not open to the landlord that too after several years, to turn around and say that after allowing the defendant to make all such repairs and alterations and after incurring sufficient expenditure in that behalf, that he should vacate on the ground that he had carried out the repairs. ....................” . However, it was extreme case where the landlord had not only knowing the construction, but it was proved that he was supervising some of the repairs and alterations and that conduct itself was sufficient to show that the construction was with his consent and in the said fact it is held that he waived his right. 8. The learned advocate for the applicants also cited case of Smt. Shakuntala S. Tiwari V/s. Hem Chand M. Singhania, AIR 1987 S.C.1823. Their Lordships were dealing with case under Bombay Rent Act. In para 4, Their Lordships observed as follows:- “It was submitted by Shri Tunara, learned ( 8 ) counsel for the respondent-landlord that for any suit by a landlord against a tenant for recovery of possession under the Rent Act, the Limitation Act was inherently inapplicable. We are, however, unable to accept this argument. Recovery of possession is by a suit and there is no section in the scheme of the Limitation Act to indicate that Limitation Act was inherently inapplicable. In the scheme of the Rent Act or in the various contingencies contemplated under the Rent Act, there is nothing to indicate or warrant that there would be no limitation of any period. Article 67, Limitation Act, which has been set out hereinbefore indicates that time begins to run only when the tenancy is determined. It comprehends suit by a landlord and deals with right to recover possession from the tenant. Therefore, it deals with landlord and tenant. We are therefore unable to accept the argument of the respondent that limitation was inapplicable to ejectment.” 9. In this case the landlord has not taken any steps for about 15 years. It is true that it is a trust and ordinarily when it is a public body or juristic persons, it may not be as quick as individual in taking decision and action. But still it cannot be said that the ground of eviction of permanent construction was taken as a ground of eviction immediately or at-least within reasonable period after the construction. The period of 15 years is too long. Both the Courts have concurrently held that the construction was carried out in 1980. The suit is filed in 1995. The rent was recovered till January, 1988. So, someone on behalf ( 9 ) of trust was occasionally visiting the premises. At-least no evidence is placed on record to show that for some reason, none of the trustee was aware of the construction. That could have been so, if it was some internal construction that was not visible from outside. So, in these circumstances, in my opinion, the plea of waiver or acquiescence can be accepted and the Trial Court can be said to be right in its decision. In this view of the matter, in my opinion, this Revision Application deserves to be allowed. 10. Hence, this Civil Revision Application is allowed. The decree passed by the District Court is hereby set aside and that of Trial Court is hereby restored and confirmed. The parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/SEP09/cra158.07