G. C. Mathur, J. - (1.) THESE are two second appeals arising out of two suits filed by the appellants against the res pondents for their eviction from two shops numbered 278 and 279.
(2.) THE appellants are owners of a row of shops numbered 277. 278. 279, 280 and 281 which are single storeyed-The respondents are tenants of shops Nos. 278 and 279. Apparently, the tenancies were created at different times. The ap pellants filed the two suits out of which these two appeals arise for the eviction of the respondents from these two shops, inter alia on the ground that the res pondents had made certain constructions over all the five shops without the con sent of the appellants and had thereby materially altered the accommodation. In the plaint, the appellants alleged that the roofs of the two shops were not included in the tenancy of the respondents. The respondents admitted having made the constructions but pleaded that they had done so with the consent of the appel lants. They further pleaded that the roofs of shops Nos. 277. 280 and 281 were included in the tenancy of shop No. 279. It was also denied that the constructions materially altered the accommodation. Admittedly, the constructions are what have been described as sheds or tapras. These have been made by con structing certain walls with a tin roof thereon and the fixing of doors and win dows. A part of the constructions has been used as a temple and the remaining part as a school. Apparently, they are substantial con structions. The trial court decreed both the suits. It held in the suit relating to shop No. 278 that the roof of this shop was not included in the tenancy of shop No. 279 and in the suit relating to shop No. 279 it held that the roofs of the other shops were not included in the tenancy of shop No. 279. It further held that no written consent of the appellants was ob tained for making these constructions and that the constructions amounted to material alterations in the accommoda tion. On appeal by the respondents, the lower appellate court allowed the ap peals, set aside the decrees of the trial court and dismissed the suits for eviction. It held that, since the plaint case was that the roofs of the shops were not in cluded in the tenancy the constructions on the roofs could not be said to be alterations in the accommodation let out. It further held that the construc tions did not amount to material alterations in the accommodation as the constructions were of a temporary nature and could easily be removed at any time. In its opinion, the constructions did not make any change in the form or struc ture of the accommodation for the reason that the constructions were made on the roof which was not a part of the accom modation let out to the respondents. Against the iudgments and decrees of the lower appellate court, two second appeals were filed in this Court.
(3.) THE only question, which arises for determination in these appeals, is whether the appellants' case was covered by the provisions of S. 3 (1) (c) of the U. P. (Temporary) Control of Rent and Eviction Act, that is to say. whether the appellants have succeeded in establishing that the tenants had. without their permission in writing, made any such constructions as, in the opinion of the court, had materially altered the accom modation. Admittedly no written consent of the appellants had been taken by the respondents before making the construc tions. Therefore, the question for con sideration was whether the constructions made by the respondents had materially altered the accommodation. The learned Single Judge, before whom these two appeals came up for hearing referred them for decision to a Bench as. in his opinion, they involved questions of con siderable importance. The appeals then came up for hearing before a Bench consisting of Gupta and Kirty, JJ. Gupta. J. was in favour of allowing the appeals. In his opinion even though the respondents were not entitled to use the roof of the shop, the material constitut ing the walls and roofs etc. must be treated as part of the structure let out to the respondents and that he could not conceive of a grosser case of material alteration in the accommodation let out to the respondents. He observed:- "There is no controversy that over the roof of the shop, the respondents have built a super structure consisting of walls with a roof thereon together with doors and windows, and have no doubt that such a structure has brought about considerable change in the form and structure of the accommodation let out to the respondents". Kirty. J. was for dismissing the appeals as. in his opinion, the applicability of Section 3(1)(c) depended essentially on the question as to whether the construc tions complained of had been made in the accommodation let out to the res pondents which was the subject-matter of the suits for ejectment. He observed: "If they had made any construction not in the accommodation which had been let out to them but on some other part of the building with which they had no concern as tenants, the provisions of clauses (b) and (c) of Section 3(1) would not be attracted". In view of this difference of opinion, the Bench referred the appeals to a Full Bench. That is how these two appeals have come before us.;