G.S.SINGHVI, J. - (1.) THIS is tenant's Second Appeal against the judgment and decree dated 14-3-89 passed by the Additional District Judge No. 1 in Appeal No. 106/86(197/77) whereby he has confirmed the judgment and decree dated 28-5-77 passed by the Munsif and Judicial Magistrate, District Ajmer in Civil Suit No 355/76 (Gordhan Bai v. Supyar Bai) filed by the Respondent Gordhan Bai for eviction of the tenant Smt. Supyar Bai on the ground of default and material alteration of the premises let out by the landlord to the tenant.
(2.) TWO important questions of law which arise for decision in this appeal are as to whether the Courts below were justified in holding that the defendant/appellant is carrying out the trade of hens without any evidence on record and therefore, their finding is liable to be set aside on the ground of perversity and as to whether the opinion of the Courts below about the material alteration of the premises on account of the construction made by tenant is legally correct. Briefly stated the facts of the case are that Respondent late Smt. Gordhan Bai (landlord) had filed a suit for ejectment and arrears of rent on 22-7-75 in the Court of Munsif, Ajmer City (East) against the appellant Smt. Supyar Bai (tenant) with the allegations that she had let out three rooms and one kitchen on the first floor in the house bearing ACM No. VIII/204 in Ghoshi Mohalla, Ajmer, to the tenant. Rent was paid only upto 10-1-75 and thereafter the tenant had committed a default. In the month of April, 1975 the tenant had constructed pucca room on the roof floor of the tenanted premises. She has thus materially altered the premises and has made herself liable for ejectment under Section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the 1950 Act') In the said room she has started keeping hens and at the time of filing of the suit there were about 80 birds. The act was inconsistent with the purpose for which the premises were let out. This act of keeping hens on a residential building has also create nuisance and the plaintiff and her family were greatly disturbed in their sleep and study due to constant noise made by hens.
(3.) THE appellant/defendant (tenant) resisted the suit by asserting that the rent had been paid upto 10-3-75 but receipts were not given. Rent for the months of April and May 1975 was sent through postal money order but the plaintiff refused to accept the same. The allegation of making pucca room without the consent and permission of the landlord was denied. The tenant asserted that since no pucca room was constructed, question of material alteration did not arise at all. The tenant also asserted that in place of very old and unserviceable wooden cabin she has raised only a brick wall for temporary protection of her hens from rains, sun etc. That cannot be termed as a material alteration in the eye of law. She was having few hens i.e. about 5 in number for the last about 8 to 9 years. The allegation of nuisance and disturbance to the landlord and her family member was also denied. In the additional pleas the tenant stated the facts regarding payment of rent and deposit of the same.;