- (1.) 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.
(2.) 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.
(3.) 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.;