- (1.) THIS is a tenant's second appeal directed against the appellate decree for eviction by the learned Civil Judge, Beawar and raises the point whether a tenant has or has not made any material alteration within the meaning of sec. 13 (1) (c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, is a question of law or one of fact or both. It arises in the following circumstances.
(2.) THE plaintiff-respondent sought the eviction of the tenant on three grounds: (1) of bona fide personal necessity, (2) default in payment of rent, and (3) material alteration made by the tenant in the suit premises. THE first court held against the landlord on the question of personal necessity and about the defaults in payment of rent but decreed the suit on the ground that the tenant had made material alterations in the suit premises. It was, inter alia, averred in the plaint that the defendant-tenant had closed the open 'chabutri' in front of the shop by a wooden partition and by making Pucka construction. According to he plaintiff, this was without his consent. In the appeal before the learned Additional District Judge, Ajmer, the only question that was argued was whether these were material alterations so as to render the tenant liable to eviction on that score. THE learned Additional District Judge went into the evidence and came to the conclusion that the tenant had enclosed the open 'chabutri' of the shop by placing shutters at the end of the 'chabutri' and by covering the same. This was material alteration, according to the learned Judge. In the result, therefore, the learned Judge affirmed the decree of the first court and dismissed the appeal. It is in these circumstances that the tenant has come in further appeal to this Court. Learned counsel for the appellant was confronted with the question whether he is entitled to challenge the concurrent findings of the two courts on this question. Learned counsel maintains that the question whether the alterations in the suit premises made by the tenant were material alterations within the meaning of sec. 13 (1) (c) or not was a mixed question of law and fact and consequently the findings could be challenged in second appeal. According to learned counsel, the courts below were in error in reaching the conclusion that the alterations were material so as to entitle the landlord to evict the tenant on that ground. Learned counsel cited two cases of the Allahabad High Court : S. B. Mathur vs. K. P. Gupta (l) and Dr. Jaigopal Gupta vs. Bodhmal (2) as also Jugal Kishore vs. Subh Karan (3) to reinforce his argument that the question involved was not one of fact only, but a mixed question of law and fact. Learned counsel submitted that the Allahabad cases fully govern a situation like the present one. Learned counsel also attempted to draw some support from the line of approach of their Lordships of the Supreme Court in Manmohandas vs. Bishnudas (4) in dealing with the question, although learned counsel was not in a position to say that their Lordships had decided this matter whether the question raised was one of law or a mixed question of law and fact. Learned counsel for the respondent, on the other hand, tried to support the view taken by the courts below. He relied on a later Full Bench case of the Allahabad High Court reported as Sitaram vs. Johrimal (5) and also invited attention to three cases of this Court reported as Khinyaram vs. Lakhi Prashad (6), Madhavlal vs. Smt. Govindi Bai (7) and Sukhlal vs. Bhopal Singh (8 ). I may start with Allahabad cases. In S. B. Mathur vs. K. P. Gupta (l ). The learned Single Judge was considering the question while dealing with a similar provision of U. P. (Temporary) Control of Rent and Eviction Act, 1977. He observed : - "whether the constructions amounted to a material alteration in the accommodation" really depends on the interpretation that is to be put on these words as used in sec. 3 Cl. (c ). That is really a question of law. It is true that the alterations made must be material in the opinion of the court but the question involved is not a pure question of fact. The alteration must be material in the opinion of the court which is the final court for determining what the words 'materially altered' mean as a matter of law. In that case the alterations made in the premises were (1) in the bottom of the second floor there was a verandh which was enclosed on the eastern and western sides by walls. On the eastern side of the verandah there was an iron jangla. The tenant had built a brick wall 3" thick and 2' high edjacent to the jangla, but the entire jangla had not been closed by this wall (2) above the iron rod of the jangla the constructed a wooden jali between points P and P 1 as shown in the Commissioner's map; (3) another wall 3" thick and 7' 2" wide had been constructed in the verandah from east to west. This was a sort of partition wall which divided the verandah in two portions. The wall did not go upto the ceiling and some space had been left between the top of this partition wall and the ceiling; (4) on the 3rd floor there was originally a shed having walls on the eastern and northern sides and having pillars on the other two sides. The tenant constructed a brick jali from wast. The height of the brick jali varied from 7' 2" to 16' 3" according to the slope of the shed. The jali constructed was 9" thick. A brick Jali had been constructed in the northern wall of the shed also.
(3.) THE learned Judge went on to say that the word 'materially' or the word 'altered' had not been defined in the Act. THErefore, he took their dictionary meaning. Referring to Concise Oxford Dictionary he observed that the word "alter" as a verb means 'change in character, position etc' and 'materially' as an adverb means 'important, essentially, concerned with matter not with form. ' Thus he construed the words "materially altered" to mean a change in the character or position of the accommo- dation which was essential or important. He referred to some English cases as well from which he deduced the principle that the question whether the accommodation in a particular case is materially altered by some construction made by a tenant must naturally depend on the facts and circumstances of each case. THEn he indicated some considerations for dealing with this question which I need not notice. In the second case which was by a Division Bench the learned Judges approved the view taken in the first case. The question was examined more critically. It was observed that the Court is required to form opinion on three matters (1) actual constructions made by the tenant; (2) the construction had altered the accommodation and (3) the alteration is material, and further it was observed that the opinion regarding the construction being material alteration is one of law. The relevant observations are these '.- "the Court is required to form opinion on three matters : (1) The actual constructions made by the tenant; (2) the construction has altered the accommodation; and (3) the alteration is material. The finding of the lower appellate court regarding the actual construction made by the tenant is a finding of fact. But its opinion regarding the constructions being material alteration is one of law. The statute prescribes a standard. That standard is that the construction should materially alter the accommodation, Whether the actual construction made in a particular case reach up to the statutory standard is, we think, a question of law. " The contrary view taken by Dhavan J. in Jai Bhawan vs. Padam Sen (1964 A. L. J. 991) was dissented from. It was observed that the passage from Halsbury's Laws of England which was quoted by Dhavan J. did not show that it was concerned with a statutory standard. The learned Judges further observed in a suit based on material alterations the Court has first to record a finding about the actual constructions made by the tenant and that finding will be a finding of fact, but after the actual constructions had been ascertained the Court has to form an opinion as to whether these constructions had materially altered the accommodation. The expression "materially altered" it was added, finds place in a statute and its meaning has to be ascertained first and then the Court has to see whether the constructions made amount to material alterations within the meaning of the Act and this will be ordinarily a finding of law. In this Court Bhargava J. had taken the view in Khinyaram as. Lakhi Prashed (6) that the question whether any material alteration has been made in the premises is a question of fact in each case depending on the nature of the premises and the nature, extent and effect of the constructions made therein. The learned Judge pointed out that the alteration should be of structural nature and not merely of decorative nature. In that case a 'chabutra' with a tin over it was rented out by the landlord to the tenant. The tenant was said to have raised the height of the tin shed and had closed the 'chabutra' by fixing doors fitted in a wooden frame. The trial court and the first appellate court found that the tenant had made such constructions as materially altered the premises. Bhargava J. affirmed conclusions of the courts below and dismissed the appeal. ;