Ram Singh vs Banarsi Dass

J.V. Gupta, J.—This is tenant''s petition against whom ejectment application was dismissed by the Rent Controller, but the eviction order was passed in appeal. The premises in dispute is vacant land measuring 70'' x 20'' on which a room is also constructed. The same was let out to tenant Ram Singh on 1st March, 1973. The landlord filed the present ejectment application on 27th April, 1982, inter alia on the ground that the tenant has materially impaired the value and utility of the demised premises by constructing two chhapars on the vacant land; that the premises were given for residential purpose whereas the tenant was doing dairy business therein by keeping cattle; that the tenant being guilty of such act and conduct as are nuisance to the landlord and in the neighbourhood. The plea of non payment of arrears of rent from 1st June, 1979 to 31st March, 1982 was also taken.

In reply filed on behalf of the tenant, he denied all the averments made in the ejectment application. He pleaded that the premises were taken on rent for dairy purposes and not for residential as alleged. He denied that the rate of rent was Rs. 200/-as claimed by the landlord and also the plea that he has impaired the value and utility of the demised premises by constructing chhapars thereon. Not only that though he tendered arrears of rent as claimed on the first date of hearing, but at the same time took up the plea that the rent was already paid vide certain receipts. The learned Rent Controller found that the plea taken by the tenant for payment of arrears of rent was false and the receipts produced by him Exhibits R-3, R-4 and R-8 found to be forged ones. However, in view of the payment made on the first date of hearing, no ejectment could be ordered on this ground. The other pleas taken by the landlord were negatived. It was held that though the tenant has encroached upon the remaining land of the landlord adjoining the demised premises but it was of no consequence and it could not amount to nuisance as alleged by the landlord. As regards construction of two chhapar, the learned Rent Controller found that one of them is a smaller chhapar and the other is a cattle shed of the size of 11.6'' X 83''. According to the learned Rent Controller, from the construction of the said chhapars it could not be said that the tenant has impaired the value and utility of the demised premises. The plea of change of user was also negatived. Consequently, ejectment application was dismissed vide order dated 3rd March, 1987.

In appeal the learned Appellate Authority reversed the findings of the Rent Controller on the question of materially impairing the value and utility of the demised premises, the change of user as well as on the ground of nuisance and consequently passed the eviction order. According to the findings of the Appellate Authority, from the entire evidence, it is proved on the record that the premises in dispute in fact were let out as residential premises, but the tenant had changed its user from residential to non residential purposes without the consent of the landlord. He further found that the act of the tenant has caused nuisance to the neighbours and to the landlord; that the acts of the tenant by collecting the cow-dung cakes on the tenanted premises as well as in the remaining portion of the plot owned by the landlord has caused nuisance to the neighbours and to the landlord. As regards the material impairing of the value and utility of the demised premises, the Appellate Authority found that by raising the construction of two Chhapars on the tenanted premises, the tenant has tried to convert the residential building into non-residential building by opening the dairy in the premises. He has materially impaired the value and utility of the premises by collecting the cow-dung cakes on the roof of the room. It has caused danger to the building which is sufficient material for him to hold that the tenant has impaired the value and utility of the premises in question. In view of this finding, the eviction order was passed on 20th August, 1987.

Learned Counsel for the Petitioner submitted that the whole approach of the Appellate Authority was wrong and illegal. The view taken by the Rent Controller was prefectly valid and the findings arrived at by the Rent Controller have been reversed in appeal arbitrarily on surmises and conjectures. According to the learned Counsel, there was no plea of change of user. However, there was no issue to that effect. Thus in the absence of any plea and the issue, the evidence, if any, could not be considered. In support of this contention, he referred to AIR 1930 57 (Privy Council) , Smt. Chander Kali Bai and Others Vs. Shri Jagdish Singh Thakur and Another, . He further submitted that construction of two chhapars on the demised premises did not amount to impairing the value and utility of the demised premises particularly when the same was of temporary nature. In support of this contention he referred to Om Prakash Vs. Amar Singh and Others, , Brijendra Nath Bhargava v. Harsh Wardhan 1988 (1) S.C. 617, Devinder Singh v. Bhag Singh 1981 (1) R.C.R. 331 and Amar Singh v. Haryana Dairy Development Corporation Ltd. 1985 (1) R.C.R. 501. He also argued that encroaching upon the remaining land of the landlord did not amount to nuisance as held by the Appellate Authority In support of this he referred to Pirthi Raj v. Sardara (1974) P.L.R. 183. On the other hand, the learned Counsel for the Respondent-landlord submitted that since the parties knew their case from the very beginning and the evidence of the change of user was there, the findings arrived at by the Appellate Authority was perfectly valid and did not justify to be interfered with in the revisional jurisdiction. He further submitted that the tenant forged the receipt for payment of rent and thus keeping in view his conduct, his statement could not be believed and ha was liable to be prosecuted for forgoing the documents. Not only that, by constructing two chhapars, he has materially impaired the value and utility of the demised premises, in view of the judgment of this Court reported in Sudershan Kumar v. Tejinder Singh (1987-2) 92 P.L.R. 44.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on record.

It is the admitted case of the parties that the tenant has raised two chhapars on the demised premises. The report of the Local Commissioner, dated 28th July, 1982, Exhibit A-9 is also on the record to that effect. According to the said report the length of the one chhapar is 14'' X 18.6'' whereas the other tin shed is of the length of 25'' X 11.9''. It is also not disputed by the tenant that he has encroached upon the remaining portion belonging to the landlord adjacent to the demised premises. He is placing his cow-dung cakes and other material thereon as he is running the dairy farm on the demised premises. According to the tenant, it docs not amount to nuisance and the landlord has the remedy to file a civil suit for his ejectment on the encroached portion. Be that as it may, the fact remains that the tenant has encroached upon the remaining portion of the landlord being adjacent to the demised premises. Now whether the construction of the two chhapars aforesaid amounts to materially impairing the value and utility of the demised premises or not is a question of fact and is to be seen on the facts and circumstances of each case. The Appellate Authority has given the firm finding that by raising the construction of two chhapars on the tenanted premises, the tenant has tried to convert the residential building into non-residential building by opening the dairy in the premises. The tenant has also materially impaired the value and utility of the premises and by collecting the cow dung cakes on roof of the room, it has caused danger to the building which is sufficient material for me to hold that the Respondent has impaired the value and utility of the premises in question." According to Brijendra Nath Bhargava''s case (supra) no definition can be drawn of the material alteration. It will have to be decided on the basis of facts and circumstances appearing in each case. But the material consideration would be whether the construction carried out by the tenant alters the front show or the structure of the premises and whether the constructions are substantial and permanent in nature and they alter the front elevation or the front and the structure of the building itself. Thus, keeping in view the said guidelines laid down by the Supreme Court, it could not be successfully argued on behalf of the Petitioner in the present case that by constructing two chhapqrs he has not materially impaired the value and utility of the demised premises. Admittedly, the demised premises was a vacant land'' on which only one room was constructed at the time of letting out. By raising this chhapar on the vacant land the very nature of the premises has been changed and it does amount to impairing the value and utility of the demised premises. In any case, I do not find any illegality and impropriety in the said finding as to be interfered with in this petition. In view of this finding, the eviction order can be maintained on this ground alone and, therefore, there is no necessity for going into the other two grounds on which the eviction order has been passed by the Appellate Authority. Consequently, this petition fails and is dismissed with costs.

However, the tenant is allowed three months'' time to vacate the demised premises provided all the arrears of rent, if any, with advance rent for three months, are deposited with the Rent Controller within one month with a further undertaking in writing that he will hand over the vacant possession to the landlord after the expiry of the said period.