- (1.) H.C.Mital
(2.) BOTH the parties are real brothers. The revisionist has been a tenant of the plaintiff of a building in which the business of commission agency is carried on. The accommodation has also a big hall, being used as a godown. In the year 1989 the piaintiff filed a suit against the revisionist with the allegation that he had without any permission in writing in the godown has constructed a room and latrine after taking sewer and water connections and that the floor of the godown has also been damaged and thereby the value and utility of the accommodation has been diminished and it has also been disfigured. On behalf of the revisionist it was alleged in the written statement that with the oral consent of the plaintiff this construction was made, which was absolutely temporary and can be removed at any moment without leaving any trace of it; that neither the utility and value has been reduced nor it has disfigured and, therefore, the suit was liable to be dismissed. The learned court below, however, held in favour of the plaintiff, hence this revision. Counter and rejoinder affidavits have been exchanged between the parties and the revision was heard finally on merits. On behalf of the revisionist it was urged that the onus was on the plaintiff to prove, besides a written permission in writing of the landlord that such constructions or structural alterations in the building are likely to diminish its value or utility, or disfigure it as provided under Sec. 20 (2) (c) of the U. P. Act No. XIII of 1972 It was further urged that it is necessary that such constructions must be of a permanent nature. On the other hand learned counsel for the plaintiff-respondent argued that it was not necessary that the constructions as prohibited under Sec. 20 (2) (c) should be of a permanent nature. The case of Om Prakash v. Amar Singh, AIR 1987 SC 617 was a case of course under the U. P. Cantonments (Control of Rent and Eviction) Act 1952. Section 14 (c) of that Act provided as follows : "Sec. 14 : Restrictions on eviction-No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds, namely ; (a) to (b) x x x x x x x x x x x x (c) that the tenant has without the permission of the landlord, made or permitted to be made any such construction as in the opinion of the court has materially altered the accommodation or is likely substantially to diminish its value". Section 20 (2) (c) of the U. P. Act No. XIII of 1972 reads as follows : Bar of suit for eviction of tenant except on specified ground. (1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner : Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in court or otherwise reduced to writing and signed by the tenant. (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely :....... (c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it.
(3.) IT is apparent that the provision regarding construction in the building which may materially alter the accommodation or cause structural alteration in the building as is likely to substantially diminish its value are common in both the aforesaid provisions and, therefore, the law laid down by their Lordships of the Supreme Court in the aforesaid case though pertaining to Section 14 (c) of the U. P. Cantonments (Control of Rent and Eviction) Act 1952 would also be applicable to the U. P. Act No. XIII of 1972. In that case their Lordships specifically laid down as under : "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 is, therefore, necessary that the alieged construction must be of a permanent character. In the present case the learned court below has not given any finding that the alleged construction is that of a permanent nature. ITs finding is only that the tenant has made construction without the written permission of the landlord and as a result of which it has diminished the utility of the accommodation. As regards the permission of the landlord before construction, admittedly there has not been any written permission. The case of the revisionist, however, has been that the parties are real brothers and after partition in between them the accommodation in suit came to the share of the plaintiff and the revisionist continued tenant thereof, that the alleged construction was made with the oral permission of the landlord and he being his brother any written permission was not necessary. The present suit was filed in the year 1989, while according to the statement of the defendant, relied upon by the learned Court below in its judgment, the construction was made in the year 1984-85. Since thereafter no objection was raised by the plaintiff except for the first time in the notice dated 19-1-1989, i.e. after about five years of the construction. It was, therefore, urged that from the conduct of the plaintiff- respondent it is clear that written permission was waived. The law is well settled as laid down in the case of Niaz Ahmad v. The III Additional District Judge, Aligarh, 1982 (1) ARC 231 that the waiver of the notice can be inferred from the conduct of the party and the party who had full knowledge of his rights and of facts enabling him to take effectual action for enforcement of such rights. It is clear that the parties are real brothers and there is uncont- roverted statement of the defendant that the accommodation was built in the year 1984 85. Inspite of that no action was for taken for so many years. Hence it can be safely inferred that the plaintiff did not press for a written consent for making the constructions.;