Mohammad Rafiq, J. - (1.) THIS is defendants' appeal against the judgment and decree dated 28.8.1993 passed by the Additional District Judge No. 1, Bharatpur, who thereby allowed the appeal filed by the plaintiff -respondents and reversed the judgment and decree passed by the Munsif and Judicial Magistrate, Bharatpur dated 30.11.1985. The Munsif and Judicial Magistrate, Bharatpur had by aforesaid judgment and decree dismissed the suit for eviction filed by the plaintiff -respondents. Originally the suit was filed by Mahesh Chand, the husband of respondent No. 1 herein and the father of respondent Nos. 2 to 4, claiming arrears of rent and seeking eviction of the defendant -Dariyanmal, who too died during the pendency of the suit. Thus both the plaintiff and defendant were substituted by their legal representatives. Eviction of the defendants was sought on the ground of default in the payment of rent, material alteration of the premises and nuisance on 24.11.1980.
(2.) IT was averred in the plaint that the disputed premises was let out to the defendant on monthly rent of Rs. 90 for residential purpose in the year 1978. The defendant started using the premises as a factory for manufacture/preparation of 'bidis'. He for that purpose constructed 3 -4 furnaces in the Chowk. These furnaces used to emit smoke, as a result of which the paint of whole house turned black. The furnaces caused immense pollution. Besides, the defendant had constructed two walls in the size of 37'x10' and erected a tin shed in the middle chawk, which covered 3/4th of the open space. It has completely defaced the house and has materially altered the same. As a result of the material alteration made by the defendant in the house, it now became unfit for residence. The defendant had even replaced the main door and blocked the entry of the plaintiff into the house due to which he cannot have access towards the northern side so as to reach roof of the house and also cannot use the room situated on the northwestern side of the house. The defendant has closed down the door of the 'kothari', which opens towards the "poli". The defendant has failed to pay rent for last more than six months despite request of the plaintiff -respondents. The plaintiff served a notice on the defendant on 10.10.1980 through his advocate which he received on 11.10.1980. In the notice, the plaintiff demanded rent from 1978 to 31.10.1980 and called upon him to vacate the house. The defendant in the written statement denied the allegations in the plaint. It was averred that initially the disputed premises was taken on rent of Rs. 70 per month and rent note was executed in favour of tenant. All brothers of the landlord used to receive the rent and issued receipts. The rate of rent was increased to Rs. 85 thereafter and subsequently to Rs. 90 per month. Premises was used for storage of tobacco and production of 'bidis'. The disputed premises have been used as a 'bidi' factory since inception of the tenancy. Tenant himself filed a map before the Superintendent, Central Excise under the provisions of Excise Act and Rules admitting that it was used as factory for producing 'bidis'. The fact that it was being used as a 'bidi' factory since 1973 was in the full knowledge of the landlord. Even if the premises were meant for residential purpose, but used for commercial purpose, the landlord never objected to the same. That implies that he has consented to such use. The alleged 'bhattis' (furnaces) were already constructed in the premises. The smoke coming out of the furnaces did not cause any blackening of the disputed premises. Adequate arrangements were made for safe emission of the smoke. No substantial damage has been caused to the premises. The landlord was not in possession of any part of premises, therefore, there was no question of blocking his entry. The tin shed was erected for the purpose of safety of goods from rain and sunlight. It was a temporary structure, which was raised over the chowk with the consent of the landlord much prior to 1973. Tenant did not make any material alteration in the premises. This temporary structure can be easily removed in a short time without much labour. It was denied that any default was committed by the defendant. Disputed premises were taken on rent by the firm M/s. Dariyan Mal Gopal Das and receipt of the rent was also issued in the name of said firm, but the suit has been filed only against Dariyan Mal. Thus, the suit is liable to be rejected for want of misjoinder of necessary party.
(3.) THE learned trial court on the basis of pleadings of the parties framed the following issues: 1. Whether the disputed house belongs to the plaintiff and he is its landlord? 2. Whether the property described in para No. 2 of the plaint was given on monthly rent of Rs. 90? 3. Whether the defendant spoiled the house by generating smoke? 4. Whether the defendant made material alteration by constructing a tin shed with walls as described in para No. 3 of the plaint, without the consent of plaintiff?;