- (1.) HEARD Sri Y.D. Sharma, learned counsel for tenants petitioners and Sri Swapnil Kumar, learned counsel for landlords respondents. This is tenants' writ petition arising out of suit for eviction instituted against the tenants by landlords respondents in the form of S.C.C. Suit No.31 of 1986, Smt. Sharif Bano and five others Vs. Sri Munshi Shaukat Ali Khan since deceased and survived by the petitioners. Property in dispute is a house, rent of which is Rs.10/- per month. Suit was filed on the ground of default and material alteration. Suit for eviction was decreed by J.S.C.C./ Civil Judge (J.D.), Etah through the judgment and decree dated 30.04.1998. Against the said decree, tenants filed S.C.C. Revision No.18 of 1998, which was dismissed by A.D.J., Court No.7, Etah on 05.08.2004, hence this writ petition.
(2.) IN respect of default the courts below held that defendants were not defaulter. The suit was decreed on the ground of material alteration and structural changes. The plaintiffs had pleaded that in the courtyard of the house towards east, there was a dehliz, which was not having walls towards north and south; the tenant demolished eastern and western walls of the dehliz and started constructing a new room and latrine at that place, hence landlords had to file O.S. No.355 of 1986 for permanent prohibitory injunction against the tenant. The tenants pleaded that there was no dehliz in the house and that the eastern wall of the house, which was towards road was old hence it fell down in rainy season; the tenants requested the landlords to reconstruct the same whereupon the landlords stated that if the rent was enhanced to Rs.200/- per month then they would get the wall constructed and also an additional room otherwise the tenants should themselves construct the wall. The tenants further stated that they expressed their inability to enhance the rent and agreed that they themselves would reconstruct the wall. Tenants further pleaded that in the suit for injunction, temporary injunction was granted to the landlords but the same was vacated in misc. appeal, thereafter tenants reconstructed the wall. In the earlier suit for injunction, commission was issued, who gave his report and certified copy of the said report was filed in the suit in question for eviction. The Commissioner had reported that eastern wall b-c was newly constructed and b-c-h-g was in the form of a chabutara, which contained an old wall g-h towards west. The courts below held that as the Commissioner in the earlier suit for injunction had found and old wall at the place of g-h, hence it proved that there was a dehliz, having roof otherwise the said wall was purposeless. Tenants admitted in their evidence that on the next date of falling of the wall, they started constructing the new wall. The courts below held that according to tenant's statement after falling of the wall he requested the landlords to reconstruct the wall but the landlords refused and permitted the tenant to reconstruct the wall by himself and these discussions must have taken some time.
(3.) BOTH the courts below after thorough discussion of the entire evidence on record held that the dehliz was demolished by the defendants. Demolition of dehliz certainly amounts to damage to the building and structural alteration which diminishes the value and utility of the building which are grounds of eviction under Section 20(2)(b) and (c) of U.P. Act No.13 of 1972. In this regard learned counsel for landlords has cited several authorities particularly the authorities of Yusuf Ali Vs. A.D.J., 2013 (3) ADJ 450 and Jagdish Chandra Sharma Vs. Smt. Hansmukhi Devi, 2009 (8) ADJ 707. Learned counsel for tenants petitioners has mainly placed reliance upon judgment dated 24.04.1987 given by IV A.D.J. Etah in Misc. Appeal No.61 of 1986, Mushi Shaukat Ali Khan Vs. Smt. Sharif Bano and others, which was directed against temporary injunction passed in the earlier suit for permanent prohibitory injunction. (Annexure-RA-I). The particular sentence in the said judgment, which was emphasized by learned counsel for petitioner was as follows: "The Commissioner has nowhere shown any sign of existence of dehliz." However commissioner had shown a wall towards west. If there was no roof over eastern and western walls, then western wall was utterly meaningless and purposeless. That is a judgment in a misc. appeal arising out of order passed on temporary injunction application. Findings in such cases (including appeals) are not binding while deciding the suit finally. Accordingly, I do not find any error in the impugned judgments and decrees. Writ Petition is dismissed. Tenants petitioners are granted six months time to vacate on the following conditions. 1. For this period of six months, which has been granted to the tenants-petitioners to vacate, they are required to pay Rs.3000/- (at the rate of Rs.500/- per month) as rent/damages for use and occupation. This amount shall be deposited within two months before the J.S.C.C., Etah and shall immediately be paid to the landlords respondents. 2. Within two months from today tenants- petitioners shall file an undertaking before the J.S.C.C., Etah to the effect that within six months from the date of this judgment, they will willingly vacate and handover possession of the property in dispute to the landlords respondents. 3. If within two months undertaking is not filed or the amount of Rs.3000/- is not deposited then from today till actual eviction tenants shall be liable to pay Rs.1000/- per month as rent/damages for use and occupation. 4. Similarly if after filing undertaking and depositing the aforesaid amount of Rs.3000/- property in dispute is not vacated within six months then since after six months till actual vacation tenants petitioners shall be liable to pay rent/damages @ Rs.1000/- per month. ;