KRISHNAN J - (1.)THIS is an appeal under the Letters Patent on certification by the Single Bench arising out of Second Appeal No. 520 of 1967 (Vaidya Sitaram and others v. Sundarlal) dismissed by the Single Bench on 13-9-1967. The tenant-defendants are the appellants before us. Against them a decree for ejectment and arrears of rent has been made by all the Courts for genuine personal necessity of the landlord-plaintiff who is himself a purchaser from the original landlord that had inducted the tenant-defendants. The last are brothers inter se following in the tenancy their father Kanhaiyalalji who had himself entered as a tenant in the early forties.
(2.)THE only question of law propounded is this. THE tenancy, though originally meant for residential purpose has, according to the tenants, subsequently been converted to a non-residential or a mainly non-residential tenancy. THE plaintiff himself requiring the premises for the residential purposes, it is urged that, in view of the conversion of the purpose, a decree for this purpose cannot be legally granted. THE parties have argued at some length and detail, and the essential points for decision are-
(a) the nature and the purpose of the tenancy at its inception; (b) whether its conversion to another purpose was of such part of the tenancy as to make it substantially a new purpose; (c) a consent or otherwise of the landlord for this conversion which will justify a Court noticing it; and finally, * (d) the applicability of the two rulings- (i) Phundilal v. Ashok Kumar(1960 MPLJ 1364) and (ii) Gopaldass Verma v. 5. K. Bharadwaj(AIR 1963 SC 337).

(a) It is found on facts by all the three Courts that at the inception the tenancy was purely residential. It is alleged by the tenants that they are a family of Ayurvedic doctors and also one of them has lately become an allopathic physician. Accordingly they were consulting their patients in one room of this building. It is also stated that the allopathic doctor was using that room, or another room of the same residence, as his 'laboratory' for pathological examination, in other words, had the array of test-tubes and bottles in a "portion of the consulting room. It is difficult to see how from this it could be urged that the purpose had ceased to be residential and had become mainly non-residential. The lower Courts have refused to accept this theory and, as it relates to facts, we cannot go back on those findings in a Letters Patent Appeal. (b) The foregoing summary of the factual findings shows that, in the view of the lower Courts, there has been no such conversion as to vary the main or substantial purpose. (c) The crucial point is not so much whether the tenant had converted part or whole of the accommodation to another purpose, but whether any conversion, substantial or otherwise, had been with the consent of the landlord. Here again, all the three lower Courts have found that there was no consent, a finding with which we are not called upon to traverse in this Letters Patent Appeal. (d) Finally, it is urged that the ruling of the Supreme Court in Gopal Dass Verma v. S.K. Bharadwaj has restricted the application of this Court's ruling in Phundilal v. Ashok Kumar. Having studied both the rulings, we are unable to agree. The Madhya Pradesh ruling was to the effect that, for investigating the purpose, we should be guided by the main use of the accommodation at the time of the creation of the tenancy. To be sure, the Supreme Court's decision has held a conversion of purpose to be noticeable by the Courts, but it was where the conversion had been done with the consent of the landlord. Where there has been a consent to a conversion, certainly the consent binds the landlord and the purpose is changed. But where there is no consent, even if there is a change of part of the accommodation from residential to nonresidential purpose, the landlord is not bound and the Court cannot notice in favour of the tenant a breach by him, which by itself would justify the termination of the tenancy. The absence of landlord's consent is a basic feature in this case.

Accordingly, we find that the Letters Patent Appeal is without substance and dismiss it. Costs payable by the tenant-appellants to the plaintifflandlord along with pleader's fee Rs. 50.