GOYAL, J. - (1.) THE plaintiff appellant has preferred this second appeal against the judgment and decree dated 21. 7. 1984, whereby Civil Judge, Ajmer, set-aside the judgment and decree of eviction passed by Additional Musnif No. 1, Ajmer City, Ajmer, on 31. 7. 1979.
(2.) THE relevant facts in brief are that the plaintiff as receiver instituted a suit on 2. 12. 1970, for eviction with the averments that the suit premises situated in Ajmer was let out for residential purposes to the defendant in 1957 on monthly rent of Rs. 60/ -. THE defendant without the consent of the plaintiff got constructed more than one poultry farm by raising permanent structure inspite of the protests made by the plaintiff. This the defendant is making commercial use of the premises which is inconsistent with the purpose for which she was admitted to the tenancy. THE defendant has also committed default in payment of rent. The defendant vide written statement while admitting the tenancy denied the description of the premises let out and also denied the grounds of eviction. On the basis of the pleadings, the trial court framed following issues:- " 1. Whether defendant is tenant of the plaintiff in respect of premises detailed in para 11 of the written statement? 2. Whether the premises were let out to defendant for residential purposes only ? If so to what effect? 3. Whether they tenancy starts from 1st of every English Calendar month? 4. Whether the defendant has committed default? 5. Whether notice dated 11th August 1970 is illegal? 6. Whether the plaintiff has waived his objection if any by continued acceptance of rent without a demur after knowledge of construction and whether doctrine of estoppel, waiver and acquiescence are applicable? 7. Whether the alleged construction has materially altered the premises or is likely to diminish the value thereof? 8. Whether verification of the plaint is not in accordance with law? If so, what is its effect? 9. Relief? Having recorded the evidence of the parties the trial court vide judgment dated 31. 7. 1979, decided all the issues in favour of the plaintiff and by giving benefit or first default passed decree of eviction. The first appeal preferred by the tenant was allowed vide impugned judgment. The findings of the trial court on Issue Nos. 3, 4, 5 and 8 were not challenged. While affirming the findings on Issue Nos. 1 and 6, the findings on Issue No. 2 and 7 regarding commercial use and material alteration were set- aside and thus the suit for eviction was dismissed. The following questions of law were framed by this Court on 12. 8. 1985:- " (1) Whether the lower appellate court could ignore the clear and categorical admission of defendant in her written statement? (2) Whether the lower appellate court could mark a totally new case neither pleaded in the written statement nor averred in the oral statement before the court? (3) Whether and, while granting a decree for eviction of the premises, the court can ignore the occupation of the appurtenant lands and allow the tenant to remain in occupation of such appurtenant land and grant a decree only of the disputed premises?
(3.) AT the very out-set learned counsel for the plaintiff appellant did not press first two questions. Regarding third substantial question of law, two submissions were made on behalf of the plaintiff appellant. The first is that in first appeal the findings of the trial court on the point of material alteration were set-aside only on the ground that poultry farms were established over the open land which was not the part of rented premises. Section 3 (v) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) defines the term "premises" as under:- " Premises" means " (v) (a) any land not being used for agricultural purposes; and (v) (b) any building or part of a building other than a farm building, let or intended to be let for use as a residence or for commercial use or for any other purpose, including:- (v) (b) (i) the gardens, grounds, godowns, garages and out house, if any, appurtenant to such building or part, (v) (b) (ii) any furniture supplied by the landlord for use in such building or part. (v) (b) (iii) any fitting affixed to, and amenities provided in, such building or part for the more beneficial enjoyment there of, and (v) (b) (iv) any land appurtenant to and let with any such building or part, put does not, includes a room or other accommodation in a hotel, dharamshala, inn, sarai, lodging house, boarding house or hotel. " According to learned counsel for the appellant, the building includes the grounds as well as the land appurtenant to the premises let out to the tenant. He placed reliance upon LRS. of late Jaswant Mal vs. Kailash Narayan (1), Shridhar Govind Natu vs. Ankush Krishnaji Sawant (2), Md. Ahmed Amolia and Others vs. Nirmal Chandra Roy and Others (3), Chapsibhai Dhanjibhai Danad vs. Purushottam On behalf of the respondent-defendant it was submitted that the findings of the first appellate court on this point are not perverse at all and the construction made by the tenant on the land not on the rent can be no ground of eviction and the first appellate court rightly decided this point placing reliance upon Banarasi Das vs. Rameshwar Das ;