Decided on January 19,1965

Delhi Iron Syndicate (Private) Ltd. Ajmeri Gate Appellant
Sidha Nath And Another Respondents

Referred Judgements :-



S.N. Katju, J. - (1.)THIS is a Defendant's appeal arising out of a suit for ejectment of the Defendant from the premises in dispute and for damages and compensation for removing some bricks and girders The Defendant -Appellant was the tenant of a portion of premises No. 46/77 situate in Mohalla Rdjgaddi Hativa, Kanpur City on a monthly rent of Rs. 18/9/ -. The accommodation in the occupation of the Defendant -Appellant consisted of two rooms used as a shop and in between the two rooms there was a partition wall dividing the two rooms It was alleged that the Appellant had demolished the walls and the pillars and caused substantial damage to the building and had carried away about 400U bricks and two iron girders The suit was contested by the Appellant on the ground that the said partition wall was constructed by the previous tenant for his own convenience and it was demolished by the Appellant's manager with the permission of the Respondents because it had become dilapidated and the bricks of the wall had been removed with the permission of the Respondents and there were no girders attached to the said wall. It was further contended that the suit was barred under Section 3 of U.P. Control of Rent and Eviction Act (Act III of 1947).
(2.)THE trial court decreed the suit only for compensation for the bricks and girders and refused the relief with regard to ejectment of the Appellant from the premises in dispute. On appeal the court below affirmed the finding of the trial court with regard to the willful and wrongful demolition of the wall by the Appellant without the consent of the Respondents It further affirmed the findings of the trial court that the partition wall in suit did consist of two iron girders of the value of Rs. 100/ - and bricks of the wall valued Rs. 60/ -, and that the value of the accommodation had not substantially diminished by the conduct of the Appellant in removing the aforesaid partition wall. The court below however expressed the view that there was a "material alteration" in the accommodation by the demolition of the partition wall by the Appellant & such demolition amounted to 'construction' within the meaning of Section 3 (1) (c) of Act III of 1947, & therefore it was not necessary for the Respondents to bring a suit with the permission of the District Magistrate. The question whether substantial damage has been caused to the accommodation in suit by the act of the Appellant was not pressed by the Respondents. The court below modified the decree of the trial court and decreed the suit for ejectment as well and dismissed the cross -objection of the Appellant with regard to the amount of compensation. Aggrieved from the decision of the courts below the Appellant has come up in this appeal to this Court. The learned Counsel for the Appellant strenuously argued that no constructions had been made by the Appellant which had materially altered the accommodation in dispute. The learned Counsel relied upon the decisions in Jai Dhawan v. Padam Sen and Anr. (1)(1964 AWR 612) and in Sardar Bahadur Maihur v. Kali Prasad Gupta (2) (1961 AWR 162). In the present case the court below found:
There can be no denying the facts that the two roomed accommodation in suit which existed before the demolition of that partition wall in suit was converted into one big room only by aforesaid conduct of the Defendant's manager. Such an alteration in the accommodation in suit was in my view no doubt a "material alteration''; because the amenity of utilising the back room behind the partition wall as a safe room was lost thereby and if one were to store his goods in the area covered by the said bark room the safety of the goods was reduced. Thus I hold there was a material alteration in the accommodation in suit by the demolition of the partition wall in suit by the Defendant's manager.'' The court below proceeded to consider whether the demolition of the partition wall came within the meaning of the word 'construction' as used in Section 3(1) (c) of Act III of 194 -7. It held that 'construction' included 'alteration' or 'repair' also.

(3.)I agree with the court below that the act of demolition of the partition wall appointed to 'construction' within the meaning of Section 3(1)(c) of Act III of 1947. It is obvious that by bringing down the partition wall the accommodation had been materially altered. The act of demolition of the wall involved construction because in such process the existing wall had to be pulled down and that porous of the roof on which partition will rested had to be mended and the floor space on which the partition stood had to be levelled. The cumulative work in pulling down the partition wall did come within the meaning of the expression 'construction'. Furthermore, the result was that the former two rooms were converted into a single big room. This was material alteration in the existing accommodation. Learned Counsel contended that the finding of the court below with regard to the alteration in the accommodation in dispute was not supported by the evidence on record. I see no reason to interfere with the finding recorded by the court below. In the case Sardar Bahadur Mdthur v. Kali Prasad Gupta (2) (supra) the facts were entirely different from the facts of the present case. There the Defendant had made certain additions which did not either alter the nature of the accommodation or there was any damage to the accommodation but they were made temporarily for his convenience. He had raised a thin partition wall in the verandah and he had also raised a similar thin wall for enclosing a portion of the verandah so that it could be put to better use by him. In the present case what was done by the Appellant was not the putting up of something which could be easily removed by him. He had actually demolished and pulled down the partition wall which existed from before. The contention that the aforesaid wall had been raised by the previous tenant was not proved. In any case whether the partition will had existed from before or not was immaterial. It existed when the Appellant occupied the premises in dispute. He certainly changed the nature of the accommodation. It was found that the act was unauthorised and he had himself misappropriated the bricks used in the partition wall and also two girders which supported the wall. If he had quietly left the premises then in that case the landlord would have been compelled to put the partition wall again if he wanted to bring the premises to its former shape. Taking these circumstances into consideration I see no reason to interfere with the finding of the court below that the construction had materially altered the accommodation in dispute.

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