GUPTA, J. - (1.) THIS appeal has been filed by the defendant, against the judgment and decree of the learned courts below, whereby the plaintiff respondent's suit for eviction has been decreed by both the learned courts below.
(2.) THE facts of the case are, that the plaintiff filed a suit for eviction and arrears of rent, pleading interalia, that the plaintiffs had a joint property comprising of big Kotha, which was let out on 30. 3. 1984, to the defendant for storing his goods of Tent House etc. , at a monthly rent of Rs. 200/ -. It was stipulated that the defendant will not materially alter the premises. The measurement of the Kotha is given as 34 x 24 ft. , and was one apartment, having main gate in the North, which door was measuring about 10 x 8 ft. having wooden shutters, on the side of this opening there was one window, measuring 3 x 4 ft. having Teak wood fittings. It is alleged that about a Week ago, the plaintiff had materially altered this wall, by demolishing certain portion, and instead of window, a new big door has been opened, whereon iron shutter has been installed. Inside the Kotha a permanent partition wall of stone and cement has been constructed, and thereby a shop has been constructed, and thereby size of Kotha has been reduced, and a new shop has been constructed, having opening in the wall. Existing cement flooring has been demolished, and two separate rooms have been constructed. Lofts have been placed, and thus the entire Kotha has been substantially and materially altered, unauthorisedly. It was then alleged, that the shape of the Kotha has been brought to an end. Its utility has been substantially reduced, and the original accommodation has been divided into rooms. Thus, the act of the defendant was contended to be giving rise to the ground of eviction, as contemplated by Section 13 (1) (b) and 13 (1) (c) of the Rajasthan Premises (Control of Rent & Eviction) Act, hereafter referred to as the Act. It was then alleged, that Kotha was let out for Tent House business, which has been closed by the defendant, and instead, by altering the premises, he has opened a Tea Stall, and is doing photography business. Tea Stall is creating nuisance, and therefore, eviction was claimed on the ground of it falling under Section 13 (1) (d) of the Act. Then, the arrears of rent for a period of three months was claimed. It was also alleged, that in the Eastern wall there was a gate, which always remained closed, and towards further East, there is plaintiff's other premises, in the tenancy of Banshilal, the defendant has made alternations, and has opened this gate also anew, and is out and out to disturb the possession of other tenant Banshilal. Interalia with these averments the suit for eviction was filed, and injunction was also prayed, to restrain the defendants from making further alterations. The defendant contested the suit by filing written statement on 29. 4. 1992. Therein execution of rent note, and taking of the premises as mentioned in Para-1 of the plaint was admitted. It was pleaded that at the time of letting out, the property was not measured, and it is wrong to contended, that it is one apartment. Existence of door in the North was admitted. It was pleaded that the door was also not measured at that time, and there was no window as alleged. Making of any alteration by the defendant was denied, erection of partition was also denied, and placing of lofts was also denied. It was maintained, that the premises are in the same shape and condition, in which they were, at the time of commencement of tenancy. Placing of shutter at the place of window was also denied. It was denied that the premises were taken on rent for Tent House. However, it was pleaded, that the defendant is carrying on business in the name of Laxmi Tent House, and he was earlier also doing photography business, which is in continuance, so also the Tea business was being carried on since beginning. It was then pleaded, that the defenant is entitled to use the eastern gate, and is using it. It was alleged, that it was at the behest of the plaintiff, that in January, 1991, Banshilal had closed this door, and when the defendant asked to open the door, the plaintiff resented against it to the tenant, and the plaintiff assured the defendant to open the door, but i was not opened till the date, with the result, that the defendant is not able to use the entire property. It was pleaded, that the defendant had taken suit premises on rent for earning livelihood, but looking to the increase in the rental value, the plaintiff wanted to increase the rent, to which the defendant did not agree, and therefore, a false suit has been filed. In additional pleas maintaining substantially the pleadings taken in the earlier part of the written statement, it was pleaded that if the defendant had done any material alteration, the plaintiff would have objected to it at that time, and would have given notice to stop, but nothing was done. Likewise it was pleaded, that earlier the premises was not yielding any return, and with a view to have good return, it was the plaintiff, who made desired alteration in the premises, and then had let it out to the defendant. Interalia with these pleadings it was prayed, that the suit be dismissed. On completing the trial, the learned trial Court found the issues No. 2 and 3, relating to material alteration, in favour of the plaintiff, and it was found, that after 30. 3. 1983, the date of commencement of tenancy, in December, 1991, the defendant has made alterations, as pleaded in para-2 of the plaint, and thus the two issues were decided in favour of the plaintiff. Then, deciding issue No. 4, relating to premises having been put to different use, it was found, that the defendant has left the tent business, and had opened a studio, and Tea Stall. Thus, it was found, that the premises are being used for different purpose, than the one, for which it was let out. Then, deciding issue No. 6, about the plaintiff's entitlement to injunction against any contemplated alteration in the eastern wall, has found, that since there is other tenant in the eastern side, it is necessary that the eastern gate should remain closed, and that it is not established from the defendant's evidence, that he was earlier using this gate, he has gate in the North, and according to the plaintiff, the defendant wants to install shutter, which cannot be allowed without permission of the plaintiff. Thus, this issue was also decided in favour of the plaintiff. Consequently the suit for eviction was decreed, and permanent injunction was granted, restraining the defendant from using eastern door, and from in any manner interfering with the other tenant, Banshilal's premises, and not to alter the wooden gate. In appeal, it was considered, that the plaintiff's case is, as recapitulated in para-6 of the judgment, being, that the premises was one apartment, having opening in the North, which gate was measuring 10 x 8 ft. having wooden door, and in this very wall there was a window measuring 3 x 4 ft. , which has been removed by the defendant, and a bid door has been opened, and shutter has been installed, and permanent partition wall has been erected, with stone and cement, and thus shop has been constructed, using the partition, and in the remaining part of the Kotha, the old cemented floor has been demolished, two separate rooms have been constructed, and lofts have been placed. Then, it was considered, that the defendant's case is, that he did not make any alteration, not did he put any lofts, and that the premises are in the same condition, in which they were, at the time of commencement of the tenancy. After recapitulating this case of the parties, the evidence has been considered, and appreciating the defendant's own statement, it was found, that the story pleaded in the written statement is not correct, and alterations have been made subsequently, and thus, it was found, that even from this, it is established, that the Kotha has been subsequently altered, by erecting partition. Then, Commissioner's report was excluded, and then considering the plaintiff's evidence, it was found in para-13, that after commencement of tenancy, the window in the eastern wall has been removed, and door has been opened, on which shutter has been installed, inside the Kotha permanent partition wall of cement and stone has been erected, and thereby it has given the shape of shop, reducing the length and width of the Kotha, anew shop has been constructed, providing opening in the North, and the old cement flooring of the remaining portion has been demolished, and by raising permanent partition wall, two separate rooms have been constructed, and doors have been placed. Then, it was found, that this does amount to material alteration, and the findings of the learned trial Court were upheld. The finding of the learned trial Court on issue No. 4, of course, was set aside. However, the decree for eviction was maintained. Arguing the appeal it was contended by the learned counsel for the appellant, that the precise finding, that has been arrived at by the learned lower Appellate Court, are contained in para-13 of the judgment, which finding has been reproduced in memo of appeal, in para-6, at page-6. According to the learned counsel, the construction found to have been raised, does not amount to material alteration. Learned counsel in this regard placed reliance on a judgment of Hon'ble the Supreme Court, in Om Prakash vs. Amar Singh, reported in 1987 (1) All India Rent Control Journal 629 = AIR 1987 SC 617, to contend, that material alteration means, there should be a substantial change in the character, form and structure of the building, without destroying its identity. Then, referring to the facts of that case, it was contended, that by raising of a partition wall in the hall, converting the same into two rooms, which partition wall was made without digging foundation of the wall in the room, and it did not touch the ceiling, and being removable any time, was held to be not amounting to material alteration. Then, reliance was also placed on the judgment of Allahabad High Court, in S. B. Mathur vs. K. P. Gupta, reported in 1961 ALJ 137, wherein the learned Single Judge of Allahabad High Court held, that where the constructions had not affected the form or structure of the building in any way, and they were such which could not be prevented by an injunction, nor could any damages be claimed on their erection, such construction does not amount to material alteration. It was contended, that this judgment has been approved by Hon'ble the Supreme Court in Om Prakash's case. Reliance was then placed on another Division Bench judgment of Allahabad High Court, in Dr. Jai Gopal Gupta vs. Bodh Mal, reported in 1969 ALJ 477, wherein it was held, that whether constructions made, amount to material alterations, is finding of law. In that case, kitchen and bathroom were constructed in open courtyard, which were having no foundation, they were made of bricks, were plastered with cement. Essentially they were of temporary character, could be demolished any time, without causing any damage to the accommodation, and the roof of one of them was supported by the side of the bed of the tenant, which was held to be not amounting to material alteration. Then, reliance was placed on judgment of this Court, in Khinvaram vs. Lakhi Prasad, reported in 1964 RLW 213, wherein it was held, that alteration should be of structural nature, and not merely of decorative nature. Fixing a door to a room, or to a garage, by a tenant was said to be not amounting to material alteration. Likewise covering and closing of an open Verandah, converting into a closed room, by fixing doors on the open portion, were held to be not amounting to material alteration. Then, another judgment of this Court, in Deep Chand vs. Abdul Hussain, reported in 1986 (2) WLN 68 was relied upon, where a brick Pardi wall was removed, to open gate, was held to be not amounting to material alteration. Reliance was then placed on the judgment of this Court, in Smt. Supyar Bai vs. Smt. Gordhan Bai, reported in 1992 (1) WLC (Raj.) 590, wherein it was held, that the words "materially altered'' means a substantial change in character, form and structure of building, without destroying its identity. It means, that nature and character of change, or alteration of building, must be of important nature. In that case the tenant had raised height of walls of the roof, by putting up bricks wall, and putting a door in front, whereby converted the roof into rooms, and door was put, and that room was being used for keeping hens. It was considered, that there was no evidence of any foundation being dug, and it does not amount to change in the form or structure of the premises, construction of roof was of wooden planks, and structure was of temporary nature, and easily removable, without causing damage to premises. Thus, it was held to be not amounting to material alteration. Then, an unreported judgment of this Court, in S. B. Civil Second Appeal No. 33/1989 decided on 30. 5. 2001, L. Rs. of Bhikam Chand vs. Mohan Singh, was relied upon, wherein the defendant had opened a new door in the premises, in the manner, so that he can enter from one premises to another premises, and underground water tank was constructed, and it was found, referring to judgments in Om Prakash's case, and supyar Bai's case, that it does not amount to material alteration. On the other hand, learned counsel for the respondent supported the impugned judgments, by contending, that the argument of the learned counsel for the appellant proceeds on the assumption, that the construction raised is of temporary nature, as it is not with any foundation, and that the opening of door for convenient use of the premises does not amount to material alteration, while this has never been the case of the appellant, before both the learned courts below, inasmuch as, as noticed by the learned lower Appellate Court, in para-6 and 7 of the judgment, that the case of the defendant was, that he has not made any alteration after commencement of the tenancy, rather it was the plaintiff himself, who had made the alterations, for convenient use of the premises, before letting out the premises, and then, after appreciating evidence of the defendant, in conjunction with the evidence of the plaintiff, it has been found, as a fact, that the stand taken by the defendant is palpably false, and that he has made construction. In that background, according to the learned counsel, it was required to be considered, that the positive case of the plaintiff was, that the defendant had raised construction of permanent nature, and it is nowhere the case of the defendant, at any point of time, that the construction is not of permanent nature, or is of temporary nature, in that view of the matter, there is no error in the finding of the learned courts below. It was stressed, that by the impugned construction, the form, and structure of the building has been materially, rather altogether, changed, inasmuch as on united Kotha, measuring 34 x 24 ft. has been altered into two shops; one is being run by the defendant as a photography shop, and the other as a Tea Stall, and then he claims to be running the tent business as well. This clearly amounts to material alteration, and no interference is required to be made. Learned counsel relied upon the judgment of this Court, in Badri Narain Tak vs. M/s. Shyam Narain, reported in 1982 RLW 526, where the defendant had converted a shop into two parts, by constructing a brick wall, was held to be amounting to material alteration, as in that case it was found, that it was not in dispute, that Pucca wall of brick was constructed in shop, and the shop was divided into two shops, and the defendant wanted to use one as a Tea Stall, and other one for selling liquor, and it was found, that the wall was a Pucca brick wall, and constructed for converting the shop into two shops, without permission of the landlord, it was held to be material alteration. Then, reliance was also placed on another judgment of this Court, in Prabhu Lal vs. Kalu Ram, reported in 1986 (1) WLN 289, where, closing of verandah on both the sides by Pucca walls was held to be amounting to material alteration. In that case, on either side of Verandah wall of bricks was constructed, which was not found to be anything like fencing, or some other temporary structure, and was held to be amounting to material alteration. Learned counsel then relied on yet another judgment of this Court, in Jaswant Mal vs. Kailash Narayan, reported in 2002 AIHC 1368. In this case it was held, that Section 13 (1) (e) clearly refers to such construction, as in the opinion of the Court, has materially altered the premises, and do not make any distinction between the permanent and temporary nature of the construction, as, even the temporary structure may amount to material alteration. In that case, in front of the house, so given to the original tenant, there were some other houses, belonging to the original plaintiff, and there was some vacant land, being used for ingress and egress, and the defendant, without permission, after putting stone, and doing some masonry work, got constructed a Chappar. It was held, that amounted to material alteration. Reliance was then placed on yet another judgment of this Court, in Bhagirath Mal vs. Yuvrani Sahiba, reported in 2005 Civil Judgments (Rent Control) 93 = 2005 (1) RLW Raj. 113, wherein it was held, that opening of two doors of 6x 3-1/2 ft, and conversion of Varandah in a room, and affixing the tin shed, in front of that, clearly amount to material alteration, which has substantially changed the structure of the premises. Reliance was then also placed on the judgment of Hon'ble the Supreme Court, in Sarjas Rai vs. Bakshi Inderjit Singh, reported in 2005 Civil Judgments (Rent Control)- 24. In that case the floor of the shop was sought to be changed, and in that process, the level of the floor has been brought down one foot below the road level. Then, certain alterations were made in the structure, by removing pillars, with a view to give a wider frontage to suit the convenience of the appellant. It was found to be material alteration, and decree of eviction was passed. On the strength of these judgments, interalia, it was contended, that the impugned decrees do not require any interference, more particularly when, as contended above, it was not the case of the defendant, that the constructions are not of permanent nature, nor has it ever been the case of the defendant, that the alleged constructions do not materially alter the premises.
(3.) I have considered the submissions, have gone through the entire record, so also various judgments cited by both the counsel for the parties. There is no dispute on the proposition, that raising of particular construction may be a question of fact, and such construction to be amounting to material alteration would be question of law, and the construction found to have been raised, should, in the opinion of the Court, have materially altered the premises, in order to make out a ground of eviction, in favour of the plaintiff. The case in hand is required to be considered, keeping in view, this basic aspect, and also seeking guidance from various judgments cited at the Bar, to come at any conclusion, either ways, as to whether the construction amounts to material alteration, or not? Coming to the factual aspect, of raising construction, significantly, as noticed by the learned lower Appellate Court, that the plaintiff's case clearly was, about the defendant having raised the construction, as alleged in the plaint, without permission of the landlord, and thereby having materially altered the premises, and the construction was pleaded to be of permanent nature; as against which, the detendant's case was, only about having not raised any construction, whatever, and that the construction, as alleged, had already been raised by the landlord himself, before commencement of the tenancy, for convenient use by the defendant. Thus, the only controversy on the factual aspect was, as to whether the constructions have been raised by the defendant, or were raised by the plaintiff, before commencement of the tenancy. The details of construction, nature of construction, and obviously the construction being of permanent nature, were never joined controversy by the defendant, of course, the fact remains, that even thereafter it has to be, in the opinion of the Court, that the construction amounts to material alteration. ;