JAIN, J. - (1.) THIS is a tenant's appeal arising out of a suit for ejectment filed by Balabux and Om Prakash. The eviction of the tenant from the suit house was sought on two grounds: (1) that the suit property was required by Om Prakash reasonably and bonafide; and (2) that the defendant had materially altered the demised premises. The alterations are specified in para 4 and 5 of the plaint. The suit was resisted by the tenant on various grounds. After trial the learned Munsif dismissed the plaintiffs' claim and found that the requirement of the plaintiffs of the suit property was not reasonable and bona fide and the defendant had not made any alteration in the demised premises as to call that a material alteration. As regards the 'pardi' wall admitted to have been constructed in the third floor under the tin-shed he held that it was so done by the permission of the landlord. The plaintiffs filed an appeal. The learned Additional Civil Judge, to whom the appeal was entrusted to dispose of, agreed with the learned trial Judge as regards the personal necessity but he reversed the finding on the question of material alteration. He held that the construction of the 'pardi' wall was pucca and permanent in nature and the said construction had undoubtedly altered the premises. He further found that the construction was not made with the permission of the landlord. The plaintiffs' suit was accordingly decreed by the lower appellate Court on 14 4-1973.
(2.) IN this appeal it has been argued that the construction of the 'pardi' wall cannot be said to be permanent in character nor does it materially after the premises. According to the pleadings of the parties the demise premises consists of some apartment in the second floor and some in the third floor of the plaintiffs' house. IN the third floor there is a tin-shed facing the cast. It was alleged by the plaintiffs that the defendant had constructed a wall under the tin-shed and on that account the suit premises have been materially altered IN this appeal I am not concerned with other alterations alleged by the plaintiffs as they were not pressed in the lower appellate court. The defendant admitted that the wall constructed in the tin-shed was 5' in length, 4" in breadth and 3' in height, and this was meant to protect the premises under the tin shed from rains and sun. This is not disputed that the tin-shed was being used by the tenant as a kitchen. Having regard to the nature of the 'pardi' wall it is difficult to sustain the plea of the plaintiffs that it was of a permanent character. The tin-shed opens towards the east. The object of raising the 3' height wall of 4' in width, appears only to protect the kitchen from sun. Learned lower appellate Court has given no reason as to why he held that the said construction was of a permanent character and it altered the premises. Sec. 13 (l) (c) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, (hereinafter referred to as 'the Act') reads as follows - "sec. 13 Eviction of tenant - (1) Notwith standing anything contained in any law or contract, no Court shall pass any decree, or make any order in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent there for to the full extent allowable by this Act, unless it is satisfied - (c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court, has materially altered the premises or is likely to diminish the value thereof. " Before a tenant can be made liable for eviction under this clause it has to be established that certain constructions have been made by the tenant which have materially altered the premises or is likely to diminish the value thereof Mere alteration of the premises does not afford a ground for eviction. The alteration must be material. Reliance was placed by the learned counsel for the respondent an d also by the learned lower appellate Court on a decision in Madhavlal vs. Smt. Govindi Bai (l ). In that case subject matter of lease was a shop and an adjoining 'chabutari'. The tenant erected a wooden cabin on the 'chabutari' adjacent to the shop without the permission of the landlord. The courts below held that the erection of a cabin on the Chabutari was a material alteration on the suit premises in that case. The learned Judge in second appeal accepted the view and held that in the facts and circumstances of that case the construction of the cabin was a material alteration of the leased out premises. This decision cannot be an authority to the facts and circumstances of the present case. Another decision of this Court in Ratanlal vs. Moti Lal (2) was relied upon. In this case the learned Judge referred to several decisions and in particular Khiya Ram vs. Lakhi Prasad (3) decided by Bhargava J. The view taken by Bhargava J. was accepted by the learned Judge deciding the case of Ratanlal. The learned Judge in Khiya Ram's case pointed out that alteration should be of structural nature and not merely of decorative nature. In that case a 'chabutari' with a tin-shed it was rented out by the landlord to the tenant. The tenant said to have raised the height of the tin-shed and had closed the 'chabutari' by fixing doors fitted in a wooden frame. On these facts the courts below held that the constructions were material alterations of the demised premises. Bhargava J. affirmed this conclusion. Reference may also be made to a decision in Dr. Jai Gopal Gupta vs. Budh Mal (4 ). Their Lordships of Allahabad High Court held that the court is required to form opinion on three matters before it comes to the conclusion that there is a material alteration; (1) actual construction made by the tenant; (2) the construction has altered the accommodation; and (3) the alteration is material. It was also observed that the opinion regarding the construction being a material alteration is one of law. The words "materially altered" finds place in sec. 13 (l) (c) of the Act. On the facts admitted and proved, the court is required to interpret the expression "materially altered" and has to find as to whether it materially altered the suit premises. It is a question of inference from facts. In this view of the matter I hold that the question raised in this appeal as to whether the 'pardi' wail admitted to have been constructed in the third floor of the house under the tin-shed does or does not materially alter the suit premises is a question of law. On the facts of this case, I am unable to subscribe to the view taken by the lower appellate court. I am of the opinion that the 'pardi' wall in question cannot be said to be of a permanent character and it does not materially alter the suit premises as has been found by the learned lower appellant Court. The tenant cannot be evicted on this ground. In the result the appeal succeeds and is hereby allowed. The decree passed by the Additional Civil Judge, Alwar, dated 14 4-1973 is set aside and the decree of the Additional Munsif No. 1, Alwar, is restored. The parties will bear their own costs of this appeal as well as of the lower appellate Court. . ;