Kanhaiya Lal vs Vishwanath and Others

R.S. Kejriwal, J.—This Civil Second Appeal u/s 100 C.P.C. has been directed against the judgment and decree dated 2.6.1995, passed by learned District Judge, Sikar, reversing the judgment and decree dated 18.10.1994, passed by learned Civil Judge (Junior Division) and Judicial Magistrate, Sikar, and decreeing the suit of eviction filed by the plaintiffs- respondents.

The brief relevant facts of the case are that late Shri Chiranji Lal filed a suit for eviction against the appellant Kanhaiya Lal on the ground that the appellant had materially altered the premises leased out to him without his consent. During the pendency of the suit plaintiff Chiranjilal died and his legal-heirs (respondents) were brought on record. The Additional Civil Judge (Junior Division) & Judicial Magistrate, Sikar, vide his judgment and decree dated 18.10.1994, dismissed the suit holding that the plantiffs failed to prove that defendant materially alterted the premises leased out to him. On appeal the learned District Judge, Sikar after considering the material on record, vide his judgment and decree dated 22.6.1995, held that the defendant appellant without the permission of plaintiffs converted the open Baramada into a room by constructing two pucca walls of bricks on both the sides of Baramada and putting a shutter in the wrong side. The learned District Judge allowed the appeal and decreed the suit for eviction. Being aggrieved with the said judgment and decree, the defendant appellant has filed the present Civil Second Appeal.

Mr. Agarwal counsel for the appellant submits that the finding recorded by the learned District Judge that the defendant appellant constructed two pucca brick walls and put a shutter in the front side without the permission of the plaintiffs is contrary to the record. He read the statements of the witnesses recorded by the trial Court but failed to point out that the learned District Judge either misread statement of any witness or failed to consider any document or statement of any witness. The findings recorded by the learned Judge that the defendant appellant constructed two pucca brick walls on both sides of baramada and put a shutter in front, is based not only on the statements of the plaintiffs but also statement of D.W. 1 Parmeshwar.

The finding recorded by the learned District Judge is a pure finding of fact and does not suffer from any error of law.

The only question which remains to be decided in this appeal is as to whether converting the baramada into a room by constructing two pucca brick walls on both the sides and putting a shutter, amounts to a material alteration ?

The contention of Mr. Agarwal is that, it does not amount to material alteration. In support of his arguments, he placed reliance on judgments reported in Pratap Narain and another Vs. District Judge, Azamgarh and another, , Om Prakash Vs. Amar Singh and Others, Smt Supyar Bai v. Smt. Gordhan Bai, through her legal representatives, WLC (Raj.) 1992(1) 590, Radha Kishan v. Rajendra Kumar and Anr. RLR 1991(1) 669 , and Brijendra Nath Bhargava and Another Vs. Harsh Wardhan and Others,

On the other hand, Mr. Mehta submits that converting the baramada into a room by constructing two pucca walls of bricks in both the sides and putting a shutter amounts to material alteration. In support of his arguments, he placed reliance on Babu Manmohan Das Shah and Others Vs. Bishun Das, Prabhu Lal v. Kalu Ram reported in 1986 RLR 413 and Khinvaram v. Lakhi Prasad reported in 1964 RLW 213.

I considered the submissions of counsel for the parties and gone through the judgments on which reliance has been placed by them.

In Pratap Narayan''s case (supra), the Apex Court without deciding the question as to whether the alterations made by the tenant were material or not, remanded the case to the High Court on the ground that the High Court omitted to record a finding as to whether the changes made by the tenant resulted in diminishing the value of the building as required under U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act (13 of 1972). This case is not relevant for the decision of the present case.

In Om Prakash''s (supra), the tenant constructed a partition wall in a hall converting the same into two parts. The partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling. It was a temporary wall of six feet height. The other change was that tenant put a tin shed marked by letters ''CDGH'' on the eastern side on an open land adjacent to the accommodation. The trial court held that partition wall did not constitute material alteration being temporary in nature but the tin shed constructed by the tenant materially altered the premises. On that ground it passed a decree of eviction. The tenant filed an appeal. The landlord did not challenge the finding of the trial court that the partition wall did not constitute material alteration. The First Appellate Court held that the tin-shed shown by the letters'' CDGH'' did not constitute material alteration. Under such circumstances the appellate court allowed the appeal and dismissed the suit. On appeal by the landlord, the High Court observed that whether the construction was permanent or temporary did not matter. The High Court allowed the appeal and passed a decree of eviction holding that the tenant materially altered the premises. The Apex Court while allowing the appeal held as below:

The nature of constructions, whether they are permanent or temporary, is a relevant consideration in determining the question of material alteration''. A permanent construction tends to make changes in the accommodation on a permanent basis, while a temporary construction is on temporary basis which do not ordinarily affect the form or structure of the building, as it can easily be removed without causing any damage to the building.

It further held as under:

Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as inspite of such constructions the front and structure of the building may remain unaffected.

(Emphasis supplied).

The judgment of the Apex Court is based on the facts of that case. The Apex Court set-aside the judgment of High Court on the ground that it was. based on wrong premises that even if the construction is of temporary nature it tantamounts to material alteration and further that the High Court interfered with the finding of fact recorded by the First Appellate Court. This judgment in my opinion is of no assistance to the appellant. In the present case the learned District Judge after considering the evidence on record has held that the defendant appellant converted the baramada into a room by constructing two pucca side walls and putting a shutter. This is a pure finding of fact. The side- walls raised by the defendant tenant can not be said to be temporary construction but is a pucca construction.

In Supyar Bai''s case (supra), the tenant on the roof of the house raised height of wall on three sides about 4-5''. He also put a wooden roof. The construction raised by the tenant was held not to be a pucca construction but was of temporary nature. This authority is not applicable to the facts of the present case and is of no assistance to the defendant appellant. In Radha Kishan''s case (supra) this Court held that putting of shutter in verandah is not a material alteration within the meaning of Section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. This Court has held that shutter is of temporary nature and it can be removed without causing any damage to the premises. This case is also distinguishable in facts and is not applicable to the facts of the present case.

In Brijendra Nath Bhargava''s case (supra), the tenant constructed wooden cabin inside showroom. The Apex Court held that constructions made by tenant could not be said to be material alterations in the premises. This judgment is not applicable to the facts of the present case.

In Man Mohan Das''s case (supra) the alterations made by the tenant consisted of lowering the level of the ground floor by about one and half feet by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger door lowering correspondingly the height of the Chabutra so as to bring it on the level of the new door-step, the lowering of the basis of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor. The Apex Court held that alterations made by tenant were, not only material alterations but were such as to give a new face to the form and structure of the premises.

In Prabhu Lal''s case (supra) this Court held that closing of verandah on both sides by pucca walls of bricks would tentamount to material alteration of the premises.

In Khinvaram''s case (supra), the tenant converted an open verandah into a closed room by fixing doors on the open portion. This Court held that form and structure of the premises had been changed.

In the present case the defendant appellant converted the open verandah into a room by constructing two pucca side walls of bricks and putting a shutter in the front. This is not a temporary construction but a permanent construction. The judgments cited by counsel for the appellant are not applicable to the facts of the present case, whereas the judgments cited by counsel for the plaintiffs-respondents are directly applicable to the facts of the present case. Under such circumstances, I agree, with the finding recorded by the learned District Judge that the defendant appellant without the permission of the plaintiff materially altered the premises let out to him

No substantial question of law is involved in this appeal and as such the same is dismissed. Parties to bear their own costs of this appeal.

After pronouncement of judgment, counsel for the appellant prays time for vacating the shop. In the facts and circumstances of the case, I direct that the execution of decree shall remain stayed till 31st March, 1997 provided the appellant gives an undertaking in writing before this Court within 15 days from today after supplying a copy of the same to the other side mentioning therein as under:

That the appellant will himself vacate and hand over vacant possession of the suit shop to the plaintiffs respondents without execution of the decree;

That he will not transfer the shop in any way to any other person and;

That he will pay all the arrears of rent, if any, within one month from today and will also pay or deposit rent/means profits upto 31st March, 1997 within one month.

In case the appellant fails to give undertaking as mentioned above or commits breach of any of the conditions of the undertaking, the plaintiffs respondents shall be entitled to execute the decree forthwith.