- (1.) THE appellant-plaintiff, Hasmukh Lal has filed present second appeal being aggrieved by the judgment and decree of the first lower appellate court dated 21.11.1990 allowing the first appeal of the defendant- Munnilal S/o Babulal, who is now represented by his legal representatives, and reversing the judgment and decree of the learned trial court decreeing the eviction suit No.119/1975 on 07.09.1983, inter- alia, on the ground of material alteration of the suit premises.
(2.) THE defendants-respondents, legal representatives of original defendant- Munnilal were served by substituted service by way of publication of notice in the local newspaper and after such service effected vide office report dated 05.01.2006, none has appeared in this Court on behalf of respondents-tenants. The following substantial question of law was framed by a coordinate bench of this Court vide order dated 20.03.1991:- "Whether the finding of the first appellate court that the well situated in the demised premises was converted into septic tank by the plaintiff and his grant father Udaibhan is perverse?" The suit premises is a residential house, situated in "Naion-ka-Bas", Bali, District Pali, which house was given to the original defendant, Munni Lal S/o Babulal on 10.10.1971 at monthly rent of Rs.20/-. The suit was filed by the appellant- plaintiff, Hasmukh Lal, who was 22 years of age in the year 1975, inter-alia, on the ground of material alteration, which according to plaintiff was converting a "well" situated within the residential premises, into a septic tank ("Bhanwar", Hindi word used in the judgment of the courts below). The learned trial court decreed the suit finding it to be a material alteration without permission of the landlord and decreed the eviction suit, as aforesaid on 07.01.1983, however, the lower appellate court below allowed the appeal being Civil Appeal No.6/1986 even though finding such alteration to be a material alteration in para 14 of its judgment, however, refused to decree of eviction on the ground that the plaintiff-landlord did not produce his grand-father, Sh. Udaibhan since the defendant-tenant claimed that such alteration was done with the consent of grand-father, Udaibhan. In para 10 of the impugned judgment of the first lower appellate court dated 21.11.1990, it was also noticed by the learned appellate court that since defendants-tenants- claimed that such material alteration was done with the concurrence of the grand-father of the plaintiff, the defendant was expected to produce such Udaibhan in the witness box and they even took out the summons to record the statement of said grand-father by appointing a Commissioner, however, on account of non-deposit of cost thereof, no such summons could be issued and thus the defendant-tenant failed to get said grand-father (Udaibhan) examined by the learned trial court. However, the learned lower appellate court casting the negative burden on the plaintiff-landlord held that since the plaintiff has failed to produce his own grant-father, adverse inference deserves to be drawn against the plaintiff and thus the appellate court refused to grant the eviction decree. Having heard learned counsel for the appellant- plaintiff, Mr. Arvind Samdariya, and after going through the reasons given by the first appellate court in para 10 of the impugned judgment, this Court is of the opinion that reasons given by the first appellate court while reversing the judgment and decree of the learned trial court are not sustainable. In law, no such negative burden could be cast upon the plaintiff to produce his grand-father, Udaibhan for the benefit of defendant, who had taken the stand before the court below that such material alteration was done with the consent of the grand-father of the plaintiff. The grand-father of the plaintiff was neither the landlord nor any such claim was made by the plaintiff in the plaint that such material alteration was done with the consent or concurrence of their grand-father, Udaibhan. If the defendant set-up its case in defence like this, it was absolutely for the defendant only to produce or get the said grand-father, Udaibhan summoned in the Court as his witness and examine him, subject to cross-objection by the plaintiff. Nothing of this sort was done, even though the learned trial court allowed the defendants an opportunity in this regard for recording of grand-father's statement by appointment of Commissioner. Noticing these facts also, still the learned first appellate court clearly fell into an error in drawing the adverse inference against the plaintiff-landlord and refusing the eviction decree while affirming the findings of the trial court below that conversion of a "well" into a septic tank for constructing a latrine in the residential house in question, the same amounted to material alteration, resulting in ground for eviction as per provisions of old Rent Control Act, 1950. Therefore, the substantial question of law reproduced above clearly deserves to be answered in favour of appellant-landlord and it is held that the first appellate court was not justified and correct in refusing the eviction decree despite affirming the finding of material alteration of the learned trial court on an erroneous premise.
(3.) CONSEQUENTLY, the present second appeal of the plaintiff-landlord is allowed and the judgment and decree of the first appellate court dated 21.11.1990 is set aside and that of the trial court is upheld. The findings of the courts below that conversion of "well" into "septic tank" amounted to material alteration are affirmed and the respondents-defendants are directed to be evicted from the suit premises. The respondents-defendants-tenant shall hand over the peaceful and vacant possession of the suit property to the appellant-plaintiff (landlord) within a period of six months from today and shall pay mesne profit @ Rs.500/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the appellant-plaintiff till the vacant possession is handed over to the plaintiff and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendants- tenants, legal representatives of Munni Lal shall also not sub- let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The respondents- defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or mesne profits are not paid to the appellant- plaintiff/landlord within a period of six months from today, besides execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to the opposite party and learned courts below forthwith. No costs.;