S.U.Khan, J. - (1.) THIS writ petition was earlier allowed on 4.7.2005 without hearing any one on behalf of tenants -respondents No. 3 and 4 as no one had appeared on their behalf. Thereafter, restoration/recall application was filed which was allowed on 12.12.2005. In Para 2 of earlier judgment dated 4.7.2005 brief facts of the case were given. The said para is quoted below: - This is landlord's writ petition (since deceased and survived by petitioners) arising out of suit for eviction filed by original landlord Triloki Prakash against tenant respondents No. 3 to 5 on the ground of damage to the tenanted building and material alteration thereto. Another suit for eviction of the tenants from the property adjoining to the tenanted accommodation was also filed with the allegation that tenant had encroached thereupon. Number of the suit filed for eviction from the tenanted accommodation was S.S.C. Suit No. 859/76. The number of regular suit concerning adjoining property was O.S. No. 15/77. Both the suits were consolidated and disposed of by common judgment by J.S.C.C., Meerut. Both the suits were decreed on 1.8.1979. Tenant -respondents filed S.C.C. Revision No. 413/79. Landlord also filed S.C.C. Revision No. 447/79 against some observation/findings, which were made and recorded by J.S.C.C. against the landlord. As far as decree in regular suit was concerned contesting respondents filed Civil Appeal No. 178/80. Vth A.D.J., Meerut heard and decided all the three case i.e. Civil Appeal and S.C.C. Revisions together. Learned A.D.J. allowed the civil appeal as well as tenant's revision i.e. S.C.C. Revision No. 413/79. The revision and appeal were allowed on 9.4.1985. This writ petition is directed against the said judgment and order in respect of S.C.C. Revision No. 413/79. In respect of Civil Appeal No. 178/80, second appeal being Second Appeal No. 1110/85 is pending. The main point to be decided in this writ petition is as to whether constructions made by the tenant are covered by section 20(b) and (c) of U.P. Act No. 13 of 1972. According to the said provisions tenant is liable to eviction if he has caused substantial damage to the building (b) or as without the permission in writing of the landlord made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it (c).
(2.) IN respect of permission of the landlord tenant filed a letter allegedly written by the landlord dated 7.6.1968 copy of which is annexed as Annexure C.A. 1 to the counter -affidavit. According to the said letter tenant was permitted to construct temporary kitchen and put tin shed in front of the room in his possession on the upper story of the house. Trial Court recorded categorical finding that the said letter was forged and it was never written by the landlord. Revisional Court did not specifically reverse the said finding. The following constructions were admitted by the tenant to have been made by him and independently of the admission Trial Court also recorded a finding regarding the said constructions having been made by the tenant: (1) Kitchen (2) Bathroom (3) Latrine (4) a room by bricking up the Jali wall and raising the same and fixing roof of A.C.C. sheets. Tenants pleaded that the said constructions were temporary. It is correct that purely temporary constructions do not amount to material alteration as held by the Supreme Court in Om Prakash v. A. Singh : 1987 (13) ALR 163 (SC). However, merely on the assertion of the tenants constructions cannot be held to be temporary. Supreme Court in Wariyam Singh v. Baldeo Singh, 2002 (49) ALR 707 (SC), has held that enclosing a verandah by a wall by itself does not amount to material alteration. Similarly in G. Raghunathan v. K.V. Varghese : 2005 (61) ALR 138 (SC) : 2005 (34) AIC 739, it has been held that closing the door or window by bricks and erecting a concrete wall and fixing rolling shutter does not amount to material alteration. In British Motor Car Co. v. M.L. Saggi : 2005 (58) ALR 354 (SC) : 2005 (25) AIC 555, it has been held that constructing pucca sheds amount to material alteration. In the aforesaid authority it was also held that by constructing sheds on almost whole of the courtyard tenant had not only constructed ventilation to the courtyard but had also reduced the area of the courtyard considerably.
(3.) IN my opinion on the facts found by the Trial Court aforesaid provisions of section 20(2)(b) and (c) are squarely attracted. Trial Court also recorded finding that the constructions have substantially reduced the area of open roof and it cannot be used as open space for sleeping in the night during summers and for other purposes. Tenant could not show that constructions were temporary. The authority of the Supreme Court in British Motor Car Co. (supra) is squarely applicable to the facts found by the Trial Court.;