TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS second appeal is by the tenant-defendant against the judgment and decree of the first appellate court dated 25. 1. 1993 in Civil Appeal No. 27/91 reversing the judgment and decree of the court of Munsif, Udaipur City (North) dated 8. 4. 1999 passed in Civil Original Suit No. 136/81. Brief facts of the case are that the plaintiffs-respondents filed the suit for eviction against defendant no. 1-tenant Manohar Lal alleging that the suit premises was let out to defendant- appellant by the deceased Jagjeewan Lal, husband of plaintiff no. 1 and father of plaintiffs No. 2 and 3 and defendant no. 2 in the year 1969 for a rent of Rs. 400/- per month. The said original landlord Jagjeewan Lal was in government service and he retired in the year 1979. According to the plaintiff, before that the plaintiff no. 1's husband with his family, was not residing in Udaipur where the property in dispute is situated. After retirement of said Jagjeewan Lal, Jagjeewan Lal and his family started living at Udaipur. Jagjeewan Lal died on 4. 8. 1980 living behind the plaintiffs and defendant no. 2. The plaintiffs' contention is that the suit property was let out for residential purpose but it has been converted into commercial use by the tenant-defendant. The defendant for his commercial purpose dig a big underground for storing the kerosene and broke down the two gates which were situated in the boundary wall of the plaintiffs' property and widen the gates so that the defendant can bring in the tankers. The defendant also constructed two shops after demolishing boundary wall of the plaintiffs' property and handed over possession of the said two shops to the other persons. Thereby the defendant materially altered the suit premises. The plaintiffs also pleaded that the defendant sub-let the suit premises to one Prem Chand who remained sub-tenant of defendant no. 1 from January, 1970 to January, 1972 and one portion to one Bhanwar Lal who remained sub-tenant of the defendant from January, 1970 to July, 1970 and, thereafter, the defendant sub-let one portion to one Bhanwar Lal and he remained in part of the premises as sub-tenant in the year 1976-77. Therefore, another ground for eviction of the tenant was sub-letting of the part of the suit premises by defendant no. 1 to the persons mentioned above. In addition to above, the plaintiffs submitted that the defendant took three water connections and also obstructed uplifting the water to plaintiffs' residence. It is also alleged that the defendant started cleaning and washing his tankers in the premises and by that, caused damages to the walls of the plaintiff's property. It is also alleged that the defendant to harass the plaintiffs, filed the suit for injunction against the plaintiff and that suit, according to the plaintiffs, was filed with false allegations. It is also alleged that the defendant on 5. 2. 1981 disconnected the electricity supply of the plaintiff's house. Not only this when the plaintiffs tried to raise the height of her house's boundary wall, then the defendant's son Raj Kumar shown revolver and threatened the plaintiffs. The defendant also initiated proceedings under section 107, Cr. P. C. against plaintiff no. 1 which was according to the plaintiff, dismissed by the concerned court. It is further alleged that the defendant with the help of police persons harassing the plaintiffs by lodging the false reports with the police. The defendant's son also filed a criminal complaint in the court of Judicial Magistrate. It is also alleged that the employees and the tanker driver of the defendant are causing nuisance in the night after consuming the liquor. They used to blow horn for longer period so that the plaintiff's' family may be harassed. It is also stated that the defendant in fact wanted to purchase the house of the plaintiff in throw-away price and, therefore, the defendant- tenant is harassing the plaintiff and plaintiff's family members and in that effort, the defendant through his persons, teased and abused the plaintiff's young daughter also. The suit was filed in the trial court on 31. 3. 1981. The defendant submitted written statement and admitted him to be tenant in the plaintiff's property. There is minor dispute about the let-out accommodation but that is not very much relevant because of the reason that defendant's own case is accepted then also he is tenant only in the premises of the plaintiff and in case decree for eviction remains then he is to vacate all and entire accommodation which is in possession of the defendant-tenant. The defendant's contention is that the suit property was taken on rent for composite use for residence as well as for doing business. The defendant started the business in the premises immediately from the time of tenancy. So far as the alleged constructions are concerned, the defendant submitted that he did not widen the way which was situated in the boundary wall of the plaintiffs. His further plea is that the wall was weak and fell down. Obviously, according to the defendant, the way which was in existence at the time of tenancy, it became wide because of this event. The defendant admitted that he though constructed the two shops but they are made of only wood and are of temporary nature and can be removed at any time. He also pleaded that even these shops were built with the consent of deceased Jagjeewan Lal- landlord. In addition to it, the defendant also pleaded that otherwise also he had a right as tenant to built the temporary shops in the rented premised as it is not material alteration. The defendant denied other allegations of causing nuisance and giving threat by defendant's son Raj Kumar. The defendant also submitted that whatever the proceedings were initiated by the defendant or his son, they had no relation in the present suit. The defendant submitted that the persons named by the plaintiff as sub-tenant, they were persons known to Jagjeewan Lal and on his (Jagjeewan Lal's) request, they were accommodated by the defendant for shorter period but they were not the sub-tenants of defendant-tenant. The defendant also admitted that he constructed big water-tank in the open rented space but that was with the permission of deceased Jagjeewan Lal.
(3.) IN the trial court, issues were framed on the basis of the pleadings of the parties which were in relation to sub-letting, the material alteration, the default in payment of rent, creating nuisance by the defendant and on the basis of the plea of the defendant, an issue was framed, whether the underground tank was built by the defendant with the consent of the plaintiff No. 1's husband. The issue about change of user was also framed apart from the issue about the territorial jurisdiction of the trial court. In the trial court, the plaintiffs produced PW-1 Dr. Parmeshwar Nath Mathur, the brother of plaintiff no. 1, the plaintiff no. 1 gave her statement as PW-2 and produced the witnesses PW-3 Chhatar Singh, PW- 4 Bhanwar Lal and PW-5 Naresh Chandra Bhargava. The defendant himself gave his statement as DW- 1 and produced witnesses DW-2 Fateh Singh, DW-3 Yasin Khan, DW-4 Nathu Lal, DW-5 Shankar Lal, DW-6 Shanti Lal, DW-7 Chandan Mal, DW-8 Chandra Prakash, DW-9 Om Prakash, DW- 10 Laxman Singh and DW-11 Braham Dev. The trial court held that the plaintiffs failed to prove that the defendant has changed the use of the premises from residential to commercial as the plaintiffs failed to prove that the suit property was let out only for residential purpose. The trial court also observed that the plaintiffs could not prove any consideration for creation of subtenancy and further in fact the alleged sub-tenants Prem Chand and Bhanwar Lal were accommodated by the defendant as guest on the request of the landlord deceased Jagjeewan Lal. Therefore also, the plaintiffs failed to prove sub-letting of the suit premises by the defendant no. 1. The trial court, after considering the evidence of DW-11 Braham Dev and other witnesses, observed that Braham Dev, in his statement stated that when he was tenant in the premises before the present tenant, the width of the gate was 11-12 ft. and that time also, he used to bring the kerosene tankers within the rented premised and, therefore, the plaintiffs failed to prove that the defendant himself widen the gate. On the basis of the evidence of Braham Dev and other witnesses, the trial court held that the business of kerosene was continuing from the time of Braham Dev in the suit premises and, thereafter, by the present tenant-defendant- appellant. For construction of two shops, the trial court observed that the plaintiffs filed the suit after seven years from the construction of the shops by the defendant and that too original landlord Jagjeewan Lal did not object for construction of the shops. Therefore, it cannot be said that the defendant made any alteration in the suit premises which is material alteration and further the plaintiffs failed to prove that the alteration was made without the consent of the landlord. The trial court held that the plaintiffs failed to prove the allegation of creating nuisance by the defendant. In the totality, all the issues were decided by the trial court against the plaintiffs and, therefore, the trial court dismissed the suit of the plaintiff by the judgment and decree dated 18. 4. 1988. ;