Mahant Prahladdas Chela Mahant Yuktiram vs Devi Singh

Dr. Vineet Kothari, J.—The appellant/plaintiff/landlord has filed the present second appeal (CSA No. 133/2001- Mahant Prahladdass v. Devi Singh) in this Court on 20.04.2001 aggrieved by reversal of findings by the learned first appellate court of Additional District Judge No. 1, Jodhpur, (Presiding Officer Sh. Umakant Agarwal) and refusing to grant eviction decree against the defendant/tenant vide impugned judgment and decree dated 27.02.2001 allowing defendant''s First Appeal No. 55/2000- Devi Singh v. Mahant Prahladdas, in respect of suit premises, a residential house situated near "Geeta-Bhawan", Jodhpur. The rented premises were one room and one kitchen only with an open land ("Bara"). The learned Civil Judge (Jr. Division), Jodhpur (''trial court'', hereinafter) granted eviction decree in favour of plaintiff/appellant vide judgment and decree dated 21.08.2000 passed in Civil Original Suit No. 56/1998-Mahant Prahladdas Chela Mahant Yuktiram v. Devi Singh on the ground of material alteration in the suit property.

The ground set up by the plaintiff/appellant for eviction under Section 13(1)(c) and 13(1)(d) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, hereinafter referred to as ''Act of 1950'') before the learned courts below was material alterations made in the suit premises by the defendant/tenant without the permission and consent of the plaintiff/landlord and thereby also causing nuisance by encroaching upon the open land belonging to the plaintiff/landlord. The relevant findings of the learned trial court on Issue No. 1 regarding material alteration in the suit premises, is quoted herein below:--

The defendant/tenant being aggrieved by the judgment and eviction decree granted by the learned trial court preferred first appeal and the learned lower appellate court though concurred with the findings with respect to the material alteration of the learned trial court, however, vide the judgment and decree dated 27.02.2001 refused to grant the eviction decree in favour of plaintiff/appellant. The learned lower appellate court found that the construction of tin shed on the open land belonging to plaintiff was of temporary nature, and therefore, it did not fall within the definition of ''material alteration'' as required under Section 13(1)(c) of the Act of 1950. The relevant findings of the learned first appellate court below reads as infra:--

Being aggrieved by the said judgment and decree of the learned first appellate court, the appellant/plaintiff/landlord has preferred this second appeal. The present second appeal was admitted by a coordinate bench of this Court vide order dated 17.03.2004, and the question of law framed is also quoted herein below for ready reference:--

"Whether the plaintiff/landlord has right to evict the tenant on his encroaching or taking illegal possession of another part of building in an assertion to a right to tenancy by him and whether it amounts to nuisance?" 5. Mr. Ashok Patel, learned counsel for the appellant/plaintiff relied upon judgments of this Court in the case of Ajaib Singh and Ors. v. Delhi Cloth and General Mills Co. Ltd. New Delhi reported in 2012 CJ (Rent Control) 218, and in the case of Chhuttan Lal Sarimal Vs. Sushil Mansukhani and Another, and in the case of Bhanwar Singh and Others Vs. Smt. Meva Devi and Another, . Mr. Ashok Patel, learned counsel for the appellant/plaintiff urged that construction was raised by the defendant/tenant without permission of the landlord and the same was of permanent construction in nature, even encroaching upon the open land belonging to the plaintiff/landlord by digging foundation and raising a wall thereupon when the plaintiff was away to Ujjain, and covered the said open land by a Tin shed. Even a room was also constructed by the tenant in the said open land of the plaintiff/landlord, which certainly fell within the definition of "material alteration"; and the appellate court below while finding the same facts, as found by the learned trial court however took a different view that the said construction was not "material alteration" in the suit property, and therefore, the learned appellate court below has erred in refusing to grant the eviction decree in favour of appellant/plaintiff. He, therefore, argued that the eviction decree deserves to be granted in favour of appellant/plaintiff.

On the other hand, Mr. N.K. Chandak, learned counsel for the respondent/defendant/tenant, Devi Singh (who is now represented through his legal representatives) relying upon the judgment of Smt. Supyar Bai v. Smt. Gordhan Bai through her LR''s reported in 1992 (2) RLR 665 submitted that the construction raised on the open land was of temporary nature and was used for keeping the she-goats and other live stocks by the defendant/tenant and, therefore, the first appellate court was justified in holding that there was no material alteration furnishing the ground of eviction under Section 13(1)(c) or 13(1)(d) of the Act of 1950. He also submitted that no nuisance was caused by the defendant/tenant and, therefore, decree of eviction could not have been granted in favour of appellant/plaintiff.

I have heard the learned counsel for the parties at length and perused the record and the judgments cited at bar. The term ''material alteration'' as employed in Section 13(1)(c) of the Act of 1950 cannot be construed in a straitjacket manner and what is material alteration, always depends upon the facts of each case. The temporary construction for the utility of the demised property, may not amount to a "material alteration", furnishing a ground of eviction as held by this Court in the case of Supyar Bai (supra) but the facts found in the present case appear to be on the other side of the dividing line, which is thin. The demised property in the present case was only one room and kitchen along with an open land given in tenancy way-back in the year 1965 at a monthly of Rs. 13/- only. The open land was not given in tenancy at all. The material alteration carried out by the defendant/tenant on the open land by encroachment as shown in the photographs also produced before this Court and as found by the learned trial court was that the construction of a wall on roof of Tin shed was made by defendant/tenant admittedly without the leave and permission of the landlord. The nature of user by the defendant whether for keeping live stocks/she-goats in that open land covered by tin shed or otherwise, is not the relevant consideration.

The ground of eviction is under Section 13(1)(c) "material alteration without permission of the landlord". The plaintiff/landlord has claimed eviction on the ground that such material alteration was of permanent nature and the same was carried out by the defendant without the permission or consent of the landlord. There is variation of opinion in the two courts below but as far as the facts are concerned the finding are common. While the learned trial court found it to be a material alteration falling within the mischief of Section 13(1)(c) of the Act of 1950 resulting in eviction decree, but the learned appellate court found it otherwise.

This Court dealt with a case of "material alterations" in the case of Ajaib Singh v. Delhi Cloth and General Mills Co. Ltd. New Delhi (supra) and considering the ratio case of Supyar Bai (supra), held that where the tenant has a showroom of DCM, was in the nature of removal of two doors of the suit premises and the wall between two parts of the demised premises was raised by the tenant for making it a bigger showroom, and it was argued that it will enhance the value of the rented premises, the Court held that such structural changes amounted to material alteration. Following the Hon''ble Supreme Court decision in the case of Gurbachan Singh and another Vs. Shivalak Rubber Industries and others, , this Court held as under:--

"He relied upon a decision delivered in the case of Gurbachan Singh and another Vs. Shivalak Rubber Industries and others, , the relevant para of the aforesaid judgment is quoted herein below:--

"Section 13(2)(iii) contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word "value" means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13(2)(iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purposes." In the instant case even if it is assumed that the tenant had raised the construction of shed over the part of the open land of the demised premises with the written consent of the landlord as may be spelt out from the rent note, then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. The nature of the construction is relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. The removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new does and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the landlords within the meaning of Section 13(2)(iii). Thus in the facts and circumstances of the case squarely falls within the mischief of the provisions contained in Section 13(2)(iii) of the Act which make the tenant liable for eviction from the demised premises."

In that case, this Court also negatived the defendant''s claim that such alterations were done for security reasons. The relevant para 11 is also quoted herein below for ready reference:--

"11. As far as the issue of material alteration is concerned, the nature of the alterations carried out by the tenant were admittedly done without prior permission and consent of the landlord. Some of the structural changes were also made like removal of two doors, one wall in between and in place of that iron girders were put to make it bigger hall (showroom). These alterations indisputably were material alterations. Closing of ventilators, two windows by the tenant was a civil work, of permanent nature and, so also, the designs of arches and pillars were also modified by the tenant. By no stretch of imagination, this could be said to be not a material alteration. If such work was to be done, which could be done only with the consent of the landlord, however, in the absence of the same, once the fact of such material alteration has been proved by the plaintiff, the same could not be defended on the ground of alleged security reasons. There was no security reason at all and at best it could be said to be to bring construction in conformity with the requirement of a showroom for selling clothes. With the removal of doors, glass panels were put up with removal of wall and putting up iron girders, the size of the showroom was increased by removal of central wall. All these alterations having been done without express or implied consent of the landlord definitely resulted in material alterations of the suit premises without their consent and consequently the ground of eviction was made out." 11. Similarly, the coordinate bench of this Court in the case of Bhanwar Singh v. Smt. Meva Devi (supra), the facts of that case are very nearer the facts of the instant case, also found that where part of suit property belonging to plaintiff was encroached by the defendant/tenant, which was not covered by the rent-note, the same would amount nuisance under Section 13(1)(d) of the Act of 1950. The relevant para 10 of the said judgment is quoted herein below for ready reference:--

"10. The lower court passed a decree of eviction against the tenant in respect of rented premises covered by the rent-note. The first appellate court decided Issues No. 3 and 7 in favour of plaintiff and passed a decree of possession in respect of portion of the building which was illegally occupied by the defendant-tenant. The defendant was tenant in one room on first floor with latrine facility and while taking advantage of absence of the plaintiff landlord, he illegally occupied some rooms on the first floor as well as in the underground of the same building belonging to the plaintiff-landlord. The first appellate court has recorded a finding in this regard that the tenant illegally occupied the said portion of the building as described in Para 3 of the plaint. The question of law urged by the learned counsel for the defendant-appellants has already been considered and answered in the above referred judgments of the Hon''ble Apex Court as well as this Court. In those cases, referred above, a decree of eviction was passed against the tenant in respect of that portion of the building which was not covered by the rent note and was illegally occupied by the tenant in the same building belonging to the plaintiff-landlord. Therefore, the contention of the learned counsel for the appellants cannot be accepted in view of the above referred decisions of the Hon''ble Supreme Court as well as this Court. The learned first appellate court was right in deciding Issues No. 3 and 7 in favour of the plaintiff respondents and was right in passing a decree of possession in favour of the plaintiffs and against the defendants in respect of that portion of the building which was illegally occupied by the tenant. The question of illegal occupation of the portion of the building is purely a question of fact and even otherwise this finding of fact has not been disputed by the learned counsel for the appellants during course of arguments that he illegally occupied it." 12. In the case of Chhuttan Lal Shrimal (supra) where the defendant/tenant constructed number of poultry farms on the large area compound even with no permanent structure raised by him, the Court found that it would amount to material alteration in the rented premises resulting in eviction decree. The relevant para 15 of the said judgment is quoted herein below:--

"15. I have considered the rival submissions in the light of the judgments relied upon. The trial court having considered the entire evidence held that it amounts to material alteration as it has changed the form and character of the premises. The first appellate court did not record any finding on this aspect of the matter. Keeping in view the entire material available on the record, I find no reason to interfere with the findings of the trial court and thus the construction of poultry farms over the land has rightly been held as material alteration by the trial court." 13. Thus, this Court is of the considered opinion that first appellate court has erred in refusing eviction decree though the facts found by it were same as found by the learned trial court. The construction of tin shed by raising of a wall on the one side with the foundational work done by the defendant/tenant by encroaching on the open land belonging to the plaintiff/landlord certainly amounted to material alteration and nuisance in the suit premises furnished ground of eviction u/s. 13(1)(c) and 13(1)(d) of the Act of 1950, and the learned first appellate was not justified in refusing the eviction decree. The present second appeal of the appellant/plaintiff/landlord, therefore, deserves to be allowed and the substantial question of law, framed above, deserves to be answered in favour of appellant/plaintiff.

Accordingly, the present second appeal of the plaintiff/landlord is allowed and the decree of learned trial court granting eviction decree is affirmed and the judgment and decree dated 27.02.2001 of the learned appellate court is set aside.

The respondent/defendant/tenant, who are now represented through his legal representatives, shall hand over the peaceful and vacant possession of the suit premises, including the open land encroached by them, to the plaintiff/appellant on or before 30.09.2015 and shall pay mesne profit @ Rs. 1,000/- per month commencing from April, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the plaintiff/appellant, also and in case there is any default in payment of mesne profit, the period granted for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff/respondent, within three months from today, otherwise the same will bear interest @ 9% per annum. The respondent/defendant/tenant shall also not sub-let, assign or part with the possession of the suit shop or house any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void and such third parties will also be bound by this decree. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months from today, and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the plaintiff/appellant on or before 30.09.2015 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the plaintiff/appellant or the owner of the suit property shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and the parties concerned forthwith.

The defendant/tenant has filed the connected second appeal (CSA No. 167/2001- Devi Singh v. Mahant Prahladdass) in this Court on 22.05.2001 aggrieved by the judgment and decree dated 27.02.2001 passed by learned Additional District Judge No. 1, Jodhpur in Civil First Appeal No. 55/2000- Devi Singh v. Mahant Prahladdas, whereby the learned appellate court below though allowed the appellant/defendant''s appeal while reversing the judgment and decree dated 21.08.2000 passed by learned Civil Judge (Jr. Division), Jodhpur City, Jodhpur, in Civil Original Suit No. 56/1998-Mahant Prahladdas Chela Mahant Yuktiram v. Devi Singh, however, held him defaulter, and that part of the judgment and decree of the learned first appellate court has been assailed by the appellant/defendant/tenant.

Mr. N.K. Chandak, learned counsel for the appellant/defendant submits that since the benefit of first default was given to the appellant/tenant and so also the connected second appeal being CSA No. 133/2001-Mahant Prahladdas v. Devi Singh, having been allowed (supra), therefore, the present second appeal of the tenant, is rendered infructuous.

Accordingly, the present second appeal filed by the appellant/defendant/tenant is hereby dismissed as having become infructuous.