Smt. Razia Khatun vs Zarif Ahmad Ansari

Sudhir Agarwal, J.—Heard Sri K.K. Dubey, learned Counsel for the petitioner and Sri Pankaj Agarwal, learned Counsel for the respondents. The suit for eviction was instituted by petitioner-landlord in respect to the accommodation in question i.e. House No. 15/1 situated at Old Pasrat, Jhansi on the ground that respondent-tenant has made material alteration therein reducing its utility and value, therefore, is liable for ejectment. The Trial Court formulated this question as issue No. 1 and recorded findings against petitioner. It has considered petitioner''s evidence of report of P.W.D. Engineer and finds that therein nothing has been said about alleged diminishing utility and value of property as a result of alteration made in building in dispute. The Court also found that petitioner failed to prove that accommodation in question was entirely let out only for residential purpose and not for commercial purposes though, admittedly, as per own admission of landlord, commercial activities started in accommodation in question in 1991 and suit in question was filed in 1997 but during this entire period, petitioner never objected to the commercial use of property in dispute by tenant.

Having considered evidence adduced by petitioner Trial Court recorded following findings:

No finding has been drawn anywhere in the report that opening a verandah by laying girders has effected such structural changes in the house that may have diminished its utility & value and defaced the property.

(English Translation by the Court)

The Court also found that statement of P.W. 1 that some alteration was made in January, 1996 was false for the reason that as per own admission of landlord, commercial use of house in question was continuing since 1991. If that be so, there was no question of making alternation in January, 1996. It found that, on fact, there was no evidence to show as to when alternation of construction was made in the house in question. The Trial Court also referred to an earlier decision in Suit No. 24 of 1996, which was between the same parties and therein issues No. 1 and 2 had been decided by Trial Court observing that fixing garden by raising 3 ft. wall does not mean that any material alteration has been done in building in dispute or has caused any damage to the building. The aforesaid findings are as under:

In this very respect, it is also material that Suit No. 24/96 having been filed and decided as between the parties is an admitted fact. A certified copy of the judgment passed in Suit No. 24/96 has been produced on record as Paper No. 26C on behalf of the Defendant. In this judgment while deciding issues Nos. 1 and 2 of the Suit, it has been inferred by the Court on the basis of the deposition made by the Lady Plaintiff that the construction of a 3-feet wall with girders fixed together, reflects nothing of the sort that any substantial alteration has been made by the Defendant in the tenanted house, changing the character of the Plaintiff''s house and causing any sort of damage to it. It is further contended that it has been so since the Defendant has not made any such alteration in his tenanted part that affects the character of the house as it had been at the time of the original tenancy. There is a door and a 6''9" beam between the verandah and the room of the disputed house; which also does not establish that the Defendant has made any alteration in his tenanted part. The said suit has been decided on merits as between the parties. Judgment has attained finality.

(English Translation by the Court)

The Trial Court found that judgment in suit No. 24 of 1996 has attained finality and in respect to findings recorded therein, petitioner cannot be allowed to reagitate the issue again in suit in question. In the memo of revision on the question of estoppel or res judicata, nothing has been said by petitioner. The memo of revision is on record as Annexure 5. It is no doubt true that question whether there is any alteration in building or not is a question of fact but whether such alteration is so material so as to diminish utility of property in question is a mixed question of law and fact. In the circumstances Revisional Court could have looked into this aspect of the matter in exercise of its revisional jurisdiction.

From the judgment of Revisional Court, this Court finds that findings recorded by Trial Court are based on assessment of evidence and in respect to question whether there is any reduction in the value or utility of property in question, petitioner failed to adduced any evidence. It is also evident that findings have been recorded by Trial Court that building in question was not proved to have been let out only for residential purpose but it included commercial purpose also and therefore for this reason, tenant cannot directed to be evicted.

In these facts and circumstances, I do not find any reason to interfere with the impugned orders. The petitioner placed reliance on judgment of this Court in Shahid Ali and others Vs. Judge, Small Causes Court, Moradabad and others, , wherein this Court said:

In view of what has been stated above, for determining the question whether the offending construction has caused any disfigurement or not, each case has to be judged in the light of its own facts and circumstances and in the light of the effect which the offending construction has on the mind of an average person on seeing it. Disfigurement does not depend upon any single factor but is the cumulative effect of the variety of circumstances, place, nature, magnitude and its effect on the look of the existing construction and on the overall appearance of the building.

In the present case, both the Courts below have found as a fact that the construction of the partition wall has divided the tenanted accommodation into two portions, one portion is being used by the tenant in chief, i.e., the petitioner and the other by his sub-tenant. The Trial Court did not examine the question any further and recorded the finding against the plaintiff by merely concluding that the raising of partition wall was not sufficient to hold that the tenant made any material structural alteration. The Trial Court did not go into the question whether the construction of the said partition wall was of such a nature as was likely to diminish its value or its utility or to disfigure it. Under law, the Court was required to weigh the entire fact and circumstances of the case for examining the question whether the raising of partition wall in the present case resulted attraction of Clause (c) of section 20(2). Since it was a mixed question of fact and, law, the Revisional Court went into this question and concluded that the partition wall has diminished the utility of the building inasmuch as the landlord had let out the building for being used as one composite unit but the tenant has raised constructions so as to divide the same into two separate apartments and thereby the utility of the building has been diminished as sizes of the rooms have been made smaller and the tenanted accommodation is now not capable of being utilised in the same shape as was let out to defendant No. 1. It has also been found by the Revisional Court that the partition wall has resulted in disfigurement of the building inasmuch as instead of having one common entry door, two entry doors have been opened for making entries in two separate apartments. The conclusion arrived at by the Revisional Court on proved facts cannot be said to be erroneous in law and this Court finds no justifiable reason to take a contrary view.

The proposition of law, as discussed therein, is unexceptionable but in this case, I do not find that it has any application and therefore, it does not help to the petitioner in any manner.

The writ petition lacks merit.

Dismissed. Interim order, if any, stands vacated.