JUDGMENT K.B. Asthana, J. - In this appeal the vexed question that arises is whether the tenant without the written permission of the landlady made such alterations as in the opinion of the Court materially altered the accommodation within the meaning of Section 3(i)(c) of the U.P. (Temporary) Control of Rent and Eviction Act, hereinafter called the Act. Whether the defendant tenant used the accommodation for a purpose other than for which it was let out is the other question arising for consideration. 2. Admittedly the accommodation leased to the defendant consisted of two small rooms to which an open piece of land extending towards the west was appurtenant. The husband of the plaintiff respondent by a deed of lease dated 16.12.1972 let out the said accommodation to the defendant for the purpose of carrying on business for a term of two years at a rental of Rs. 25/- per month. The term of the lease expired in 1944 but the defendant continued in occupation and the plaintiff after the death of her husband continued to accept the rent. The tenancy of the defendant after the expiry of term of lease in 1944 became a tenancy from month to month. 3. Through a notice dated 6.10.1958 served on the defendant on 9.10.1958 the plaintiff complained that the defendant had made new constructions in the accommodation and had been using the accommodation for purposes inconsistent with the purpose for which it was let out. The plaintiff also terminated the tenancy by the said notice and asked the defendant to vacate the accommodation on the expiry of thirty days from the receipt thereof. The plaintiff did not file any suit for eviction of the defendant who continued to be in occupation even after the ninth day of November, 1958. Eventually by another notice date 16.4.1959 she terminated the tenancy of the defendant and asked him to vacate the accommodation on the expiry of thirty days on receipt thereof and further complained that besides the constructions raised by him prior to the earlier notice he had closed two existing doors of one of the rooms and had opened a new door in the western wall of that room, thereby materially altering the accommodation and using it for residential purposes inconsistent with the terms of the lease which permitted only the carrying on of business. This notice was duly served on the defendant on 21.4.1959. The defendant declined to vacate the accommodation. The plaintiff then brought the suit giving rise to this appeal for eviction of the defendant from the leased accommodation alleging that the tenancy under Section 106 of the Transfer of Property Act and as the defendant had materially altered the accommodation by raising constructions without the permission in writing of the plaintiff and had used the accommodation for residential purposes for which it was not leased, the bar for filing the suit for eviction under Section 3 of the said Act would not apply. 4. The defendant contested the suit, inter alia, on the pleas that whatever constructions were raised were with the permission of the plaintiff and in any view, such constructions did not amount to material alterations within the meaning of Section 3 of the said Act and further no inconsistent user was made of the accommodation by the defendant as the terms of lease did not prohibit him from residing in the accommodation in the suit. 5. Both the Courts below recorded a concurrent finding to the effect that the defendant had raised constructions in the accommodation in suit without the permission in writing of the plaintiff. They also recorded a concurrent finding that the constructions were raised by the defendant in 1958 and the two doors in the room let out were closed and another door opened in the western wall of that room after the first notice dated 6.10.1958 had been served on the defendant. It was found concurrently that the constructions raised amounted to a material alteration in the accommodation let out. It was also found that the defendant was not entitled to convert the accommodation into residential accommodation as it was inconsistent with the purpose for which the accommodation was let out, that is, only for carrying on of business. Since notice terminating the tenancy was found to have been duly served, the decree for eviction of the defendant from the accommodation in suit was passed. The defendant tenant has now come up in appeal before this Court from the judgment and decree of the lower appellate Court. 6. I think it would be convenient at this stage to state the nature and the extent of the constructions found to have been raised by the defendant on the accommodation in dispute. The defendant tenant has now come up in appeal before this Court from the judgment and decree of the lower appellate Court. 6. I think it would be convenient at this stage to state the nature and the extent of the constructions found to have been raised by the defendant on the accommodation in dispute. From the map of the Commissioner (paper No. 40C 2/5 on record) which is not disputed, it will appear that the defendant has constructed : (1) A room towards the north just behind the room 'A' originally let out. It is a pucca structure with a lintelled roof having five windows in the eastern and western walls and a door in the Southern wall opening into the open land. (2) A courtyard with pucca walls just behind the room 'K' originally let out abutting southern boundary, (3) Further to the west of the said courtyard four new rooms having doors. These rooms have pucca walls and covered by tin-sheets, (4) Two existing doors in the northern wall of room 'K' originally let out were closed by brick-work and a new door in the western wall was opened leading into the courtyard newly constructed. 7. The defendant's case that a door in the western wall of room K originally let out already existed and that he did not close the doors in the northern wall of the said room has concurrently been found not to be established. The learned counsel for the defendant appellant has not challenged these findings of fact recorded by the Court below, but he contended that the alterations made by the defendant in the room K by closing two doors and opening a new one in its western wall and the raising of the constructions, though alterations in the accommodation, will not amount to material alterations within the meaning of Section 3(i)(c) of the said Act. The learned counsel for the plaintiff respondent counters this contention on the submission that the constructions and the changes made by the defendant materially altered the accommodation as let out and even though the question raised may be a question of law but this Court in second appeal would be loath to interfere with the opinion recorded by the Courts below that the constructions and the changes complained of by the plaintiff materially altered the accommodation. 8. 8. I think it is the settled law in this Court that on proved facts whether the constructions or changes made by a tenant in the accommodation let out without written permission of the landlord in the opinion of the Court materially altered the accommodation, will raise a question of law. This proposition, however, was ultimately not seriously controverted by the learned counsel for the plaintiff respondent. I have, therefore, to determine whether the changes brought about in room K let out by closure of the two doors in the northern wall and the opening of a new door in its western wall and the constructions of rooms and courtyard covering a considerable area of the open land forming part of the accommodation let out, will amount to material alteration. 9. In the Act 'accommodation' has been defined by its Section 2(a) as residential and non-residential accommodation in any building or part of the building and will include grounds appurtenant to such building or part of the building. Admittedly the defendant took on rent two rooms and open land. The accommodation leased has been described as a 'Gher' in the deed of lease dated 16.12.1942. Thus for the purposes of the Act the accommodation consisted of two rooms in the extreme east and the open land behind those rooms in the west. The defendant set up a floor mill and a rice mill in the accommodation and as concurrently found by the Courts below in 1958 he made fresh constructions and started living in the accommodation along with his family members while also carrying on business. At one stage it seems to have been suggested on behalf of the plaintiff that the accommodation was let out for carrying on the business of sale of fuel, that is, coal and wood, but there is nothing in the deed of lease to that effect. The recital in the deed is to the effect that the accommodation was let out for the purpose of carrying on business. I do not find myself in agreement with the conclusion of the Court below that the right of residence to the defendant in the accommodation in suit was prohibited by the terms of the lease. It is difficult, therefore, to affirm the finding recorded by the Court below that the defendant was guilty of inconsistent user by residing in the accommodation along with his family members. It is difficult, therefore, to affirm the finding recorded by the Court below that the defendant was guilty of inconsistent user by residing in the accommodation along with his family members. 10. However, the question yet remains whether the plaintiff is entitled to evict the defendant on the ground that the changes made and the constructions raised by him materially altered the accommodation let out. Sri S.N. Kacker, learned counsel appearing for the defendant appellant, made the decision of the Division Bench in Dr. Jai Gopal Gupta v. Bodh Mal, 1969 ALJ 477 : Rent Control Reporter 590 as the anchor-sheet of his arguments. In that case a kitchen and a bathroom had been constructed by a tenant in the courtyard of the house let out. Though the constructions were of brick and morter and covered by a tin-sheet on temporary supports yet it was held by the Division Bench that they did not alter materially the accommodation let out within the meaning of Section 3(1)(c) of the Act. The learned Judges were influenced by the following circumstances; that the kitchen and the bathroom were necessary for the proper and convenient use of the house let out; that the structure set up had no foundations although built up of pucca bricks, plastered with cement but was of a temporary character and could be demolished at any time without causing any damage to the accommodation; that it occupied only a small portion of the courtyard separate from the main building of the house; that the front or the structure of the house let out remained unchanged. It was submitted by the learned counsel for the appellant that all the rooms which were constructed by the defendant in the open land were separate from the two small rooms originally let out and being of purely temporary nature could always be easily removed. As regards the closing and opening of the doors in room K shown in the plan, the learned counsel submitted that in its form and structure the room remained unchanged, the existing doors could always be re-opened by removing the brick-work temporarily placed therein and the new door in the western wall could always be bricked up thus restoring the room as it existed at the time when it was let out. 11. 11. A reference was made to the case of Sardar Bahadur Mathur v. Kali Prasad Gupta, 1961 ALJ 137 decided by a learned single Judge wherein an attempt has been made to formulate some tests to be kept in mind while deciding the question whether constructions or changes made by the tenant in any accommodation amounted to material alteration. The six points formulated by the learned Judge are :- "(1) Whether the constructions have in substantial manner changed the form or structure of the building. (2) Whether the constructions are consistent or inconsistent with the reasonable user of the premises for the purposes permissible under the lease. (3) whether any harm has been done to the building, if so to what extent ? Is the injury irreparable ? At what cost can the premises be restored to its former construction ? (4) Whether the premises have been rendered unfit in any way for being used for the purpose for which they were intended to be used. (5) Whether the constructions are separable and removable and if removed, can be removed without any way affecting the premises prejudicially. (6) Whether the landlord could prevent the building of the constructions by an injunction and claim damages if they were constructed." 12. In the case of Jai Bhawan v. Padam Sen, 1964 ALJ 991 it was held by a learned Single Judge that in determining whether any particular alteration is material as contemplated under Section 3, if the Court comes to the conclusion that it was necessary for a proper enjoyment of the accommodation and has not changed the structure and nature of the accommodation or caused any damage to it, and can be removed without much expense or causing damage to the building, it may find that it is not material. 13. In Kishanlal v. Ram Baboo, 1970 ALJ 1154, it was held that any change made in an accommodation which made that accommodation lose its original identity and converts it into a different accommodation, would amount to a material alteration within the meaning of Section 3 of the Act and pulling down of a partition wall between two shops without affecting the front structure of the building amounted to material alteration as two smaller shops were converted into one bigger shop. 14. 14. In the case of Sita Ram Sharan v. Johri Mal, 1972 ALJ 301: Rent Control Reporter 542 there was a difference between two learned Judges on the question whether constructions made on the roof of an accommodation which roof itself was not the subject-matter of tenancy, amounted to material alteration of the accommodation let out ? Sita Ram Sharan's case was ultimately considered by a Full Bench of the Court. The Full Bench found that the accommodation let out consisted of flooring, walls and the roof of the shop and no matter the tenant was not given the right to use the roof still the super-structures raised thereon amounted to material alteration of the accommodation as they materially and substantially changed the front or the structure of the shop. The Full Bench rejected the argument that since the structures could be removed and were not permanent would not amount to material alteration. The learned Judges observed :- "Whether a construction is permanent or temporary is only a question of the intention of the person making it. It does not affect the question whether the construction materially alters the accommodation or not." I find myself in entire agreement that the intention of the tenant or the object he wants to achieve by raising construction, would be irrelevant for the purpose of finding out whether the constructions so raised materially alters the accommodation let out. The Full Bench thus rejects the tests which are based on the intent or the object behind raising of the constructions. Whether the alterations made by the tenant are semi-permanent or temporary in nature will also not be a conclusive test. The circumstance that the alterations made will be for beneficial enjoyment of the accommodation being merely a matter of intention of the tenant and the motivation for achieving that object will also not be relevant. Ordinarily an accommodation is a solid building or construction of plastered brick walls, or mud walls or concrete walls with necessary doors and windows and roof. An alteration in such a structure can be by addition or subtraction. I think I should adopt the common sense approach for finding out whether an alteration is material. I may term it for want of better words as the 'eye test' or 'visual test'. An alteration in such a structure can be by addition or subtraction. I think I should adopt the common sense approach for finding out whether an alteration is material. I may term it for want of better words as the 'eye test' or 'visual test'. A man of ordinary prudence, that is, a common man, and not a structural engineer or expert overseer, who has been familiar with the accommodation as it stood when let out has an occasion to casually look at its external or internal structure after it had been occupied by the tenant if his eyes at once catch any addition or any subtraction in its solidity or proportion externally or internally in any part of the accommodation creating an impression on his mind that the accommodation no longer remained the same as before, then the alteration causing such an impact on his mind will be a material alteration. It is only the presence or absence of a structure impressive in its solidity and proportions that will cause such an impact. Mere straw huts or canvas tents however big in size will no doubt be noticeable but they will not amount to materially altering the accommodation as the impression created by mere sight of them would not be on account of the solidity of their structure. Likewise if his eyes catch at once a change in the position of the solid walls, doors or the windows of the accommodation, that will amount to material alteration as the change occurs in the internal structure of the accommodation. I must caution myself against formulating any hard and fast rule and I confess any attempt to formulate precise tests will not always be successful. Indeed the Supreme Court in Manmohan Das Shah v. Bishun Das, AIR 1967 Supreme Court 643 did not think of laying down any formulated tests. It observed in paragraph 7 of the report. "Without attempting to lay down any general definition as to what material alterations 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 constructions carried out by the respondent had the effect of altering the form and structure of the accommodation. "Without attempting to lay down any general definition as to what material alterations 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 constructions 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 substantially change the front or the structure of the premises. It may be that such alterations in a given cause damage to the premises or its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of the lease." Thus the Supreme Court leaves the matter to be decided on the facts and circumstances of each case keeping in mind that the alteration must be an important one, that is to say, that it strikes one at a mere sight of it that the change or the construction is so noticeable as amounting to a change in the original shape and form of the accommodation internally or externally or both. The Supreme Court does not lay down the test that unless there is a substantially change in the front or the structure of the premises by the alteration it would not be material within the meaning of Section 3 of the Act as was, at one stage, suggested by the learned counsel for the appellant. The Supreme Court by way of elaboration only illustrated what a material alteration is and as one of the circumstances suggested that the substantial change in the front or the structure of the premises would be material alteration. Indeed in the case of Kishanlal v. Ram Baboo (supra) a learned Single Judge of this Court held that the alteration was material even though it did not change the front form or the structure of the shop let out. The approach made by the learned Single Judge in that case and by the Full Bench in Sitaram Sharan's case appears to me the same as the approach made by me in what I have endeavoured to call above as the 'eye test' or the 'visual test'. The approach made by the learned Single Judge in that case and by the Full Bench in Sitaram Sharan's case appears to me the same as the approach made by me in what I have endeavoured to call above as the 'eye test' or the 'visual test'. The change made by the alteration is so noticeable and is so striking to a person who had been accustomed seeing the accommodation from before and in that circumstance it would be a material alteration so as to be caught within the mischief of Section 3(1)(c) of the Act. 15. Clause (c) of sub-section (1) of Section 3 of the Act leaves it to the opinion of the Court to judge whether the change materially altered the accommodation. The Opinion is to be formed by the Court objectively, that is, by the evidence brought on record. In a case of this nature local inspection by the Court itself, at least by the Court of first instance, should not be discouraged but welcomed as the Court would always be in a better position to form its opinion having seen for itself the nature of the changes and then on the basis of the evidence finding out how the accommodation stood when let out, compare the changes observed by it and judge whether those changes were as regards solidity and proportion of the structure. An appellate Court should always be slow in interfering with the opinion of the subordinate Court in such a matter, more particularly a second appellate Court whose jurisdiction to interfere is limited by law. The finding of the subordinate Court, however, may in exceptional cases be interfered with if the appellate Court finds that on the proved facts and circumstances emerging from the evidence on record no prudent man could have formed the opinion which the subordinate Court formed. 16. Here in the instant case the accommodation let out included the open ground. To any visitor the existence of a new pucca room in the north and a series of smaller rooms in the South with a courtyard attached to them would at once be noticeable. What was an open piece of land before when let out will be found built up to a considerable extent. There is no doubt that the change brought about would be material. What was an open piece of land before when let out will be found built up to a considerable extent. There is no doubt that the change brought about would be material. The open land or ground is a part of the accommodation as defined under the Act. A change brought in the open land or in the ground appurtenant to a building because of constructions thereon will at once strike the eye. I have no doubt in my mind that would be a material change. Shri Kacker strenuously urged that the view which I have taken will be contrary to the view expressed by the Division Bench in the case of Dr Jai Gopal Gupta v. Bodh Mal (supra) which decision according to the learned counsel still holds the field as the Full Bench in the case of Sita Ram Sharan (supra) has not over-ruled it. I do not think the approach which I have indicated above is in any way inconsistent or incongruous with the approach made by the Division Bench on the facts and circumstances of the case before it. In fact I do not find any argument having been made before the Division Bench that the courtyard was as much part of the accommodation let out as the house itself to which that courtyard was attached. What would be the consequence or effect if on the ground appurtenant to a building or an open space in the building solid constructions are raised which cover a major part of the open land or open space was not the question considered by the Division Bench. I have no hesitation in holding that where an open ground appurtenant to a building or an open space in the building let out, is converted into a built up area by the tenant he would be guilty of materially altering the accommodation within the meaning of Section 3(1)(c) of the Act. The defendant has constructed a pucca new room with lintelled roof, many other rooms attached with the courtyard into which a door has been opened from the room originally let out which had stood along in isolation as let out thus making it a part of a full fledged house. This would be a material alteration. 17. For the reasons given above. This would be a material alteration. 17. For the reasons given above. I affirm the finding of the Court below that the defendant tenant by opening a door in the western wall of room K and by raising constructions on a considerable area of the appurtenant ground let out to him, materially altered the accommodation within the meaning of Section 3(1)(c) of the Act. 18. No other point was raised. 19. As the defendant installed some machinery and has a running business. In the special circumstances, I direct that the decree for delivery of possession shall not be executed till a period of three months from the date of the receipt of the record by the Court below to enable the defendant to conveniently shift his machineries to some other place.