Badri Narain Tak vs Shyam Narain

G.M. Lodha, J.—This a civil second appeal against the judgment and decree of the Additional District Judge, Ajmer in civil appeal No. 187 of 1974 confirming the decree for ejectment of the Additional Munsiff, Ajmer City (West) Jaipur in civil suit No. 400 of 1972.

The facts of the case as noticed by the first appellate Court are as under: That the defendant is his tenant rent being Rs 100/- per month. The tenancy commences on 12th day of every month. That a notice terminating the tenancy dated 16-10-72 has been served on the defendant by his refusal to accept it. Thereafter another notice was sent to him by ordinary post and it has been served on the defendant. That the defendant has raised constructions of permanent nature in the suit shop dividing the shop into two. He has, therefore, carried out the constructions without the permission of the plaintiff and has materially altered the premises, which is likely to diminish the value there of. That the defendant is using the said premises in the manner which is inconsistent with the purpose for which he was admitted to the tenancy. The permises were let out to run a restau-rent, but be is carrying on wine shop in a part of the building. That the defendant has sub-let, assigned or otherwise parted with the possession of the part of the premises That rent from 12-8-72 is due.

The defendant admitted the tenancy and receipt of notice by ordinary post. All other allegations are denined. It is alleged that he had put up a temporary brick wall between the two portions of the shop for convenience. It is denied that he is using the shop for any purpose other than for which it was let out. Sub-letting is also denied. It is alleged that the plaintiff wants to increase the rent from Rs. 100/- to Rs. 200/-.

The following issues were framed:

(1) Has the defendant materially altered the suit premises which likely to disminish the value there of ?

(2) Is the defendant using the premises in the manner inconsistent with the purpose for which suit premises were let?

(3) Has the defendant sub-let, assigned or otherwise parted with the possession of the suit premises ?

(4) What should the relief be ?

After recording evidence and hearing the arguments, the learned Munsiff decreed the suit of the plaintiff. Aggrieved by this defendant filed first appeal and that appeal was dismissed by the first appellate-court.

I have heard the arguments and perused the record of the trial court.

It is not in dispute that a pucca wall of bricks was constructed in the shop. The disputed premises is a shop. The was hop divided into one two shops and the defendant wanted to use one as a tea-stall and the other for selling of liquor.

Mr. Maloo, learned Counsel for the appellant, submitted that construction of a wall of this nature cannot be called material alteration within the meaning of Rajasthan Premises (Control of Rent and Eviction) Act.

In support of his contention Mr. Maloo relied upon the judgment of this Court in Rugunath Singh Vs. Balabux and Another, Mr. Maloo also pointed out that the wall which was constructed was removed after a month and therefore, also the plaintiff was not entitled to a decree on this ground.

I have carefully considered the submissions of Mr. Maloo and also gone through the record of the case as the case was heard exparte because no-one appeared to oppose the appeal. Sub-clause (1)(c) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act reads as under:

Section 13 (1)(c) That the tenant has without the permission of the land-lord made or permitted to be made any such construction as in the opinion of the Court has materially altered the premises or is likely to diminish the value thereof.

Whether an alteration in premises is material or not is a mixed question of fact and law. In the instant case the premises is one shop and out of that one shop by construction of this wall the defendant converted it into two shops. If the defendant would have pat only one wooden plank for such temporary division, probably there would have been some room for argument that there was no material alteration. Contrary to it a pucca wall of brick was constructed. There cannot be any doubt that construction of a brick wall in a shop for converting the shop into two shops instead of one, shop is an alteration which materially alters the premises as con-templated by Sub-clause (c) of Sub-section (1) of Section 13 of the Act. Undoubtedly it was done without permission of the land-lord

Mr. Maloo''s reliance on the decision of Raghunath Singh cannot be of any assistance or help to him. In Raghunnth Singh case there was a three storey building. In this three storey building in the third floor there was a tin-shed. It was held proved that a ''Pardi'' which was 5'' in length 4'' in width and 3'' in height was constructed to provide protection from rains and sun because the tin-shed was being used as a kitchen. It was also held that the Taradi'' was not of permanent character.

In view of the above findings of facts in that case it was held that neither the ''Pardi'' was of permanent character nor it materially altered the premises.

In view of the above it is clear that the construction of ''Pardi'' did not, in any way, materially alter tin-shed which was already being used as a kitchen and the only benefit which was obtained was to protect it from rains and sun.

There is no analogy between the facts of two cases because in the instant case as mentioned above a pucca brick well was constructed and further due to this the shop was changed into two shops. There cannot be any doubt that when one shop is converted into two shops by defendant it would be an alteration which would materially affect the shop.

Mr. Maloo''s contention that wall was removed later on cannot be of any assistance because the cause of action arose on making of such construction which materially alters the premises. By removal, the mischief done earlier cannot be set at naught, as the ground of ejectment u/s 13 nowhere contemplates that material alterations should subsist for all times.

The result of the above discussion is that this appeal fails and is hereby dismissed.

17 Mr. Maloo prayed from time to vacate the shop. In case the defendant submits an undertaking that he would vacate the premises immediately on expiry of six months from today and give vacant possession to the land-lord without any protest and without any agitating it any further the decree of eviction would not be executed for six months from today. One month''s time is given to submit the undertaking in this Court. There would be no order as to costs.