Jai Gopal Gupta v. Bodh Mal — 1969 DIGILAW 72 (ALL)

JUDGMENT S.N. Dwivedi, J. - In this appeal the appellants are the landlords of a house; and respondent the tenant of it. The house has a courtyard. On a portion of the courtyard the respondent erected a kitchen and a bath-room. He made these constructions without obtaining permission from the appellants. They instituted a suit for his ejectment, inter alia, on the ground that he has made material alterations in the house without their permission. The suit was decreed by the trial Court. The trial Court took the view that the constructions made by the respondent amounted to material alterations. In appeal, the lower Appellate Court has taken the contrary view. It has held that the constructions do not amount to material alterations. Accordingly, it has dismissed the appellants' suit. 2. When the second appeal was heard by a learned single judge, the appellants recanvassed the argument that the constructions amount to material alterations. But according to the respondent they do not. The respondent also said that the finding of the lower Appellate Court on the question of material alterations is a finding of fact and cannot be examined by this Court in second appeal. He sought support from a dictum in Jai Bhagwan v. Padam Sen, 1964 ALJ 991. It is single Judge decision. In Sardar Bahadur Mathur v. Kali Prasad Gupta, 1961 ALJ 137, another single Judge has held that the finding about material alterations is one of law. As there is a conflict between these decisions, the learned single Judge referred this appeal to a larger Bench. The case is now before us. 3. Sub-section (1) of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act permits the institution of a suit for ejectment of a tenant without permission of the District Magistrate on one or more of the seven grounds specified therein. Thus, a suit may be instituted for ejectment if the tenant has without the written permission of the landlord made or permitted to be made "any such construction as, in the opinion of the Court, has materially altered the accommodation." The Court is required to form opinion on three matters; (1) The actual constructions made by the tenant; (2) the constructions has altered the accommodation; and (3) the alterations is material. The finding of the lower Appellate Court regarding the actual constructions made by the tenant is a finding of fact. The finding of the lower Appellate Court regarding the actual constructions made by the tenant is a finding of fact. But its opinion regarding the constructions belong material alterations is one of law. The statute prescribes a standard. That standard is that the construction should materially alter the accommodation. Whether the actual construction made in a particular case reach up to the statutory standard is, we think a question of law. Counsel for the respondent relies on a dictum of Mr. Justice Dhavan in Jai Bhagwan's (supra) case, He said there :- "I think that the question whether in any particular case the construction made by the tenant has materially altered the accommodation or is likely substantially to diminish its value' appears to be one of the fact. I am fortified in this opinion by the following passage from Halsbury's Laws of England, third Edition, Volume 23 (Landlord and tenant) p. 595. In each case it is a question of fact whether the alteration changes the nature of premises or property and if it is so, the tenant will be guilty of waste." Apart from seeking support for his view from the foregoing passage in Halsbury's Laws of England, the learned Judge does not appear to have given any reason of his own in support of his view. The passage in Halsbury's Laws of England is based on a similar remark in Hyman v. Rose, 1912 AC 623 at p. 632. Neither the said passage nor the decision of the House of Lords is concerned with a statutory standard. they have reference to a covenant by a tenant against making alterations in the premises let to him. On the other hand, in Atul Chandra Lahiry v. Sonatan Daw, AIR 1962 Calcutta 78, a Division Bench of the Calcutta High Court has held that a finding about the constructions made by a tenant being of a permanent nature within the meaning of clause (e) of Section 108, Transfer of Property Act is a mixed finding of fact and law. Again, although a second appeal will lie from finding of fact, yet where a legal conclusion is drawn from the finding, a second appeal will lie on the ground that the legal conclusion is mistaken. Thus, a finding on adverse possession is often a mixed finding of fact and law. See Lachmeshwar v. Manowar, (1892)19 Cal. 253. Again, although a second appeal will lie from finding of fact, yet where a legal conclusion is drawn from the finding, a second appeal will lie on the ground that the legal conclusion is mistaken. Thus, a finding on adverse possession is often a mixed finding of fact and law. See Lachmeshwar v. Manowar, (1892)19 Cal. 253. In Sri Meenakshi Mills Ltd. v. Commissioner of Income-tax, 1956 SCR 691 , the Supreme Court observed :- "In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take and example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further questions that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive ? Is it as of right or permissive in character ? Thus, for deciding whether the defendant has acquired title by adverse possession, the Court has firstly to find on an appreciation of the evidence what the facts are. So far it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law. The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law, and it will be correct to say in such cases that an inference from facts is a question of law." 4. That is a question of law. The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law, and it will be correct to say in such cases that an inference from facts is a question of law." 4. In a suit based on material alterations the lower Appellate Court has first to record a finding about the actual constructions made by the tenant; and that finding will be a finding of fact. After the lower Appellate Court has ascertained the actual constructions made by the tenant, it has to form an opinion as to whether these constructions have materially altered, the accommodation. The expression 'materially altered finds place in a statute. Its meaning has to be ascertained first. And then the lower Appellate Court has to see whether the constructions made amount to material alterations within the meaning of the Act. This will, as already stated, be ordinarily a finding of law. 5. The next question is whether the constructions made in this case have materially altered the accommodation. Admittedly, the respondent has constructed a new bath-room and a new kitchen. They are, however, separate from the structure of the house. They cover about one-third portion of the courtyard. They have no foundation. They are built of pucca bricks and are plastered with cement. The tenant has used the side of a bed for giving support to the roof of one of the rooms. The accommodation as let has no separate bath-room. It has a separate kitchen but it appears that it could not be conveniently used. These are the findings of the lower Appellate Court in regard to the construction made by the tenant. The question is whether on these facts it can be held that the respondent has materially altered the accommodation. According to the Concise Oxford Dictionary, the word 'alter' means 'change in character, position etc. The word 'materially' means 'important, essentially concerned with matter, not with form. In Mathur's case (supra) Mr. Justice Srivastava took the view that the expression 'materially altered should be held to mean 'a change in the character or position of the accommodation which is essential or important'. According to the Supreme Court if the constructions have the effect of altering the form and structure of the premises, they will be material alterations. In Mathur's case (supra) Mr. Justice Srivastava took the view that the expression 'materially altered should be held to mean 'a change in the character or position of the accommodation which is essential or important'. According to the Supreme Court if the constructions have the effect of altering the form and structure of the premises, they will be material alterations. In Manmohan Dass Shah v. Bishan Das, AIR 1967 Supreme Court 643, the Supreme Court said :- "Without attempting to lay down any general definition as to what material terations mean, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation. The expression 'material alterations' in its ordinary meaning would mean important alterations, such as those which materially or sub-stantially change the from or the structure of the premises". 6. In this case the tenant had made alterations in the building which was let to him. And they were to be material alterations. In the case before us the tenant has not touched the house which was let to him. It remains as it was when it was let out to him. He has, however, added two rooms on a portion of the courtyard. These additions are a kitchen and a bath-room. They appear to be necessary for the proper and convenient use of the house let out to him. They have no foundations, although they are built of pucca bricks and have been plastered with cement. Essentially they are of a temporary character. They can be demolished at any time without causing any damage to the accommodation. Their temporary character is also evinced by the tenant's use of a side of a bed as a support for the roof of one of them. They also occupy only a small portion of the courtyard. It cannot be said that they have changed the from or the structure of the house let to the tenant. It is difficult to say on the facts of this case that the constructions made by the tenant have materially altered the accommodation. 7. They also occupy only a small portion of the courtyard. It cannot be said that they have changed the from or the structure of the house let to the tenant. It is difficult to say on the facts of this case that the constructions made by the tenant have materially altered the accommodation. 7. In sum, having regard to the facts and circumstances of this case, we agree with the lower Appellate Court that the constructions made by the respondent have not materially altered the accommodation. 8. Accordingly the appeal is dismissed with costs.