SOBHAGMAL JAIN,J. - (1.) THIS is plaintiff's second appeal against the judgment and decree, dated the 9th October, 1979, of the Civil Judge, Bundi, upholding the judgment and decree of the Musnif, Bundi, dated April 14, 1977 decreeing the plaintiff's suit for eviction.
(2.) THE suit for eviction was based on the ground that the tenant had made material alterations in the premises inasmuch as a 'kaccha' cabin was given on rent but the defendant had converted it into a 'pucca' shop by constructing 'pucca' walls. The defendant contested the suit and denied that the constructions made any material alterations within the meaning of Section 13-C of the Act. It was alleged that the walls were raised with the permission of the plaintiff. The Munsif, by the judgment, dated the 14th April, 1977, dismissed the plaintiff's suit, holding that the alterations made were material, but the same were made with the permission of the landlord. On appeal, the Civil Judge affirmed the findings of the learned Munsif and held that the constructions had materially altered the premises but as the same were made with the consent of the plaintiff the decree for eviction could not be passed under Section 13(1) of the Act. Aggrieved, the plaintiff has filed the present appeal in this Court. While admitting the appeal, this Court on July 7, 1980 formulated the following substantial question of law :- '(i) Whether the first appellate Court was justified in holding that the defendant had made construction with the consent of the plaintiff without there being any such plea and without framing any issue ? (ii) Whether the construction of pucca, wells amounted to material alteration or converting a cabin into a shop." So far as question No. 2 is concerned, the findings recorded by the learned Courts below that the defendant had converted a 'kacha' cabin into a 'pucca' shop, by raising 'pucca' walls are findings of fact and do not call for interference in second appeal. Surely, this amounts to material alteration in the premises and the conclusions drawn by the learned Courts below are unexceptional. Coming to question No. 1, true, the written-statement contains an allegation to the effect that the walls were raised with the permission of the plaintiff. However, there was no issue, as to whether the construction was raised with the permission of the landlord. For a decree of eviction under Section 13(i)(c), it has to be proved that the tenant had, without the permission of the landlord, made constructions, which, in the opinion of the Court, materially altered the premises. The question of permission is an essential element to be pleaded and proved. Learned counsel for the appellant has urged that the absence of an issue on the question of possession has caused material prejudice in his case. I agree with the learned counsel and find that the appellant was misled by the absence of an issue. In my view, the appellant is entitled to meet the case of the defendant that the constructions were made with the permission of the landlord. The counsel for the respondent does not dispute the position that an issue on the question of permission was essential.
(3.) IN the facts and the circumstances of the present case, I deem it just and proper to remit the case to the trial Court with the direction to frame an issue as to whether the constructions were made with the permission of the landlord and then decide the case.;