JUDGMENT N. N. Mithal, J. - This is a defendants second appeal in a suit for ejectment filed by the landlord on the ground that the defendants had made material alterations in the property in his tenancy and, therefore, the defendants have become liable for ejectment in view of S. 3 of the U. P Act No. Ill of 1947. 2. The disputed constructions, on the basis of which it is claimed that the defendants have made material alterations are not in dispute and are as under: 1. The defendants have placed a Khaprail in place of Khasposh. 2. Kuchcha Kothas have been converted into pucca ones which are six in number. 3. Open place has been enclosed and included in the accommodation in question. 3. The defendants contested the suit and claimed that these constructions had been made in order to save them from rain-water and fire and that the constructions are not such as could make them liable for ejectment within the meaning of S. 3 of the U. P. Act No. Ill of 1947. It was further contended that these constructions have been made within the knowledge and with the consent of the landlord. 4. The trial court as well as the lower appellate court have found that the constructions have been made by the defendants without the consent and knowledge of the landlord and that the constructions made amount to "material alterations." On these grounds the suit of the plaintiff was decreed and the appeal by the defendants was also dismissed by the lower appellate court. It is under these circumstances that the defendants have come up before this Court in second appeal. 5. Admittedly the alterations stated above have been made by the defendants. It is also clear that these findings are now findings of fact and have not been rightly assailed by the learned counsel for the appellants. However, what has been contended was that none of the constructions which are alleged to be material alterations are in fact "material alterations" in nature so as to make the defendants liable for ejectment. The words "material alteration" have not been defined anywhere in the Act and this has long remained a question of substantial controversy in this Court. However, what has been contended was that none of the constructions which are alleged to be material alterations are in fact "material alterations" in nature so as to make the defendants liable for ejectment. The words "material alteration" have not been defined anywhere in the Act and this has long remained a question of substantial controversy in this Court. The earliest case on this point is of Sardar Bahadur Mathur v. Kali Prasad Gupta (1961 All LJ 137) wherein six principles have been laid down on which a construction could be said to be a material alteration. These principles are as under: 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 he restored to its former constructions? 4. Whether the premises have been rendered unfit in any way for being used for the purposes 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 pre-judicially. 6. Whether the landlord could prevent the building of the constructions by any injunction and claim damages if they were constructed." 6. These grounds, however, came up for consideration in the case of Sita Ram Sharan v. Johri Mai ( AIR 1972 All 317 : 1972 All LJ 301) (FB). Reference to this case will be made a little later. Then came the case of Jai Bhagwan v. Padam Sen (1964 All LJ 991) wherein again an effort was made to define the words "material alterations". It was held that these words must be interpreted with common sense and reason and not so as to make the reasonable enjoyment of the accommodation by the tenant impossible. However, the impugned alterations must be judged according to the circumstances of each case. It was further held that such alterations would not be material alterations if: 1. The alteration was necessary for the proper enjoyment of the accommodation. 2. The alteration has not changed the structure and the nature of the accommodation or caused any damage to it. And 3. It was further held that such alterations would not be material alterations if: 1. The alteration was necessary for the proper enjoyment of the accommodation. 2. The alteration has not changed the structure and the nature of the accommodation or caused any damage to it. And 3. the same could be removed without much expenditure or causing damage to the building. 7. It will be seen that the grounds as mentioned in this judgment are almost the same as are enumerated in serial Nos. 2, 4 and 5 of the decision of Sardar Bahadur Methur v. Kali Prasad Gupta (supra). In that case (1964 All LJ 991) the facts were that the tenant had two rooms in his tenancy on the .first floor of the house and there was an open space used as terrace which was open to sky. This open terrace was covered by the tenant partly by enclosing it on all sides by walls and part of the open space was covered by making tin roof over it. In these circumstances, the landlord was provoked to file suit for ejectment and it was held by this Court that mere covering part of the open space and raising of walls did not amount to the material alteration in the light of the three conditions stated in the decision. 8. Thereafter, these words came up tor interpretation in the case of Man Mohan Das Shah v. Bishun Das ( AIR 1967 SC 643 ). This decision changed the trend of subsequent decisions by this Court also. In this case the offending alterations were, firstly, lowering the level of the ground floor of the shop by about l-6" and excavating the floor thereof and putting a new floor, secondly, lowering of the front door and putting up, instead, a high door lowering the height of the Chabutra so as to bring it at the level of the new doorstep and, thirdly, lowering of the base of the adjoining staircase entailing addition of a new step thereto cutting of the Plinth-band on which the door of the staircase originally existed so as to bring the entrance to the level of the new door. These alterations were held to be material alterations. 9. These alterations were held to be material alterations. 9. In this case, the Supreme Court mainly relied upon the English case of Wates v. Rowland (1952 (1) All ER 470) which was a case for increase in the rent under Rent and Mortgage Interest (Restrictions) Act, 1920 as amended by an Act of 1939. Under the Act there was a provision for the enhancement of rent under certain conditions which were as under: "The amount by which the increased rent of a dwelling house to which this Act applies may exceed standard rent ........... i. e., to say, where the landlord has since September 2, 1939 incurred or thereafter incurred expenditure on the improvement on structural alterations of the dwelling house (not including expenditures on repairs). the amount........ " The question that came up for consideration in that case was as to whether certain changes made by the landlord are repairs or the same amounted to an "improvement by structural alteration" of the dwelling house. In that connection the words "Structural alterations" came up tor consideration in that case. In that case the wooden floor of the dwelling house to which the Act applied had become rotten owing to the rise in the water level of the land and it constituted a statutory nuisance, to abate which the landlord raised the foundation of the house by adding a layer of concrete and replacing the wooden floor with a tiled one. He claimed under the aforesaid Act to be permitted to charge an increase in the rent by 8% of the amount expended on the raising of the foundation and changing the wooden floor into a tiled one. It was held that the replacement of the floor falls within the description of repairs, but the laying of an additional layer of concrete to provide the house with a better substratum than it had before in fact amounted to an improvement or a "structural alteration" of the house within S. 2 (1) (a) of the Act and, therefore, the landlord was held entitled to increase the rent by an amount equivalent to the statutory percentage of the sum expended thereon. 10. 10. On the basis of the definition of the words "structural alterations" in the above case the Supreme Court held as under: "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 alteration 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 case might not 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," As would be evident from the opening sentence of the above quotation the Supreme Court was not trying to lay down any general definition as to what would constitute material alterations. What it has done is merely to say positively that those alterations which have the effect of changing materially or substantially the front or the structure of the premises would necessarily amount to material alterations. It is quite possible that some other alterations may also amount to material alterations of the building. Another way of looking at it would be that any alteration which has the effect of altering the structure of the building would necessarily be a material alteration. This definition also lays down in a negative form that if due to carrying out of the offending alterations either: 1. No damage is caused to the premises, or 2. its value is not adversely affected, or 3. it does not amount to unreasonable user of the premises, or, 4. does not result in a change of purpose, by itself will not be sufficient to hold that the alterations are not "material alterations. This decision, therefore, by implication made grounds Nos. 2, 3, 4 of the case of Sardar Bahadur Mathur v. Kali Prasad Gupta (supra) irrelevant and to that extent the case stood overruled. 11. does not result in a change of purpose, by itself will not be sufficient to hold that the alterations are not "material alterations. This decision, therefore, by implication made grounds Nos. 2, 3, 4 of the case of Sardar Bahadur Mathur v. Kali Prasad Gupta (supra) irrelevant and to that extent the case stood overruled. 11. After the decision of the Supreme Court in Manmohan Das Shah v. Bishan Das (supra) these words again came up for consideration before this Court in the case of Sita Ram Sharan v. Johri Mal, ( AIR 1972 All 317 ) wherein the following principles were laid down in view of the case of Manmohan Das Shah v. Bishan Das (supra). 1. The offending constructions need not be confined to the constructions in the demised premises or on the outside or over it but they must have some connection with the accommodation or the premises, which have been let out. 2. The fact that the constructions could be removed without causing damage to the building does not alter the situation as almost any construction either permanent or temporary can be so removed. 3. Whether the construction is permanent or temporary is merely a question of intention and does not affect the question whether the construction materially alters the accommodation or not". Thus, it would be seen that after this decision the criteria laid down in Sardar Bahadar Mathur v. Kali Prasad Gupta (supra) and Jai Bhagwan v. Padam Sen have lost much of their validity. According to the decision in Manmohan Das Shah v. Bishan Das grounds Nos. 2, 3 and 4 as enumerated in the case of Sardar Bahadur Mathur v. Kali Prasad Gupta are no longer valid. Similarly in view of the decision in Sita Ram Sharan v. Johri Mal (supra) ground No. 5 as enumerated in Sardar Bahadur Mathur v. Kali Prasad Gupta (supra) has also lost its validity. The only grounds which now remain are Nos. 1 and 6 i.e., that the constructions have in substantial manner changed the form or structure of the building and that the landlord could prevent the building of the offending constructions by any injunction and claim damages if they were constructed. 12. The only grounds which now remain are Nos. 1 and 6 i.e., that the constructions have in substantial manner changed the form or structure of the building and that the landlord could prevent the building of the offending constructions by any injunction and claim damages if they were constructed. 12. After this, next case is of Pliaggoo Mai v. Chandrawati (1973 Ren CR 274) wherein it has been propounded what is now known as the "eye test" or "visual test." It was laid down therein that if a man of ordinary prudence, who was not an engineer or an expert, and who was familiar with the accommodation as it stood before the alleged alterations and when such a man has an occasion to casually look at its internal or external structure, after the alleged alterations have been made and if his eyes get an impression of addition or subtraction in the solidity or preparation of the building either internally or externally, in any part of the accommodation creating an impression on his mind that the accommodation was no longer the same, these alterations causing such impact on his mind will be the material alternations. This may be a rough test only for finding out what in a particular case would be "material alteration" but this cannot be said to be a fit test for finding out in every case what is material alteration in an accommodation. If I may sav so, with utmost respect, such a test may be applicable only in some of the cases but it cannot be adopted as a test of universal applicability. Each individual case has to be decided on its own merits. If a tenant wishes to divide the courtyard of the accommodation in his tenancy by raising a partition wall, may be on account of some bad relations with one of his sons, then applying the "eye test" or the "visual test", a person of ordinary prudence would immediately find that there is an alteration in the building but can such a raising of wall be said to constitute "material alteration" in every case ? I, therefore, feel that each case should be left to be decided entirely on its own facts and no rigid test of either kind should be laid down. I, therefore, feel that each case should be left to be decided entirely on its own facts and no rigid test of either kind should be laid down. The court can at best lay down some guidelines to include or eliminate gross cases which either certainly constitute "material alterations" or which cannot at all constitute "material alteration". As laid down by the Supreme Court in Man Mohan Das Shahs case that an alteration which materially or substantially changes the front or the structure of the premises must necessarily be held to amount to a material alteration. 13. Similarly, the Supreme Court has also laid down that merely because a particular alteration (1) does not cause damage to the premises, or affects its value, or (2) does not cause unreasonable user thereof, or (3) does not result in change of purpose would not be valid consideration for holding that a particular alteration was in fact not a material alteration. The offending constructions should also be viewed with a common sense and reason so that the tenant can make reasonable use of the accommodation but without doing anything amounting to causing "material alteration" in the premises. 14. In the instant case admittedly, three alterations have been made. The conversion of 6 Kuchcha Kothas into Pucca ones must have been done after the demolition of the old constructions. Naturally the old constructions had ceased [to exist and entirely new constructions have come up in their place. Applying the principles laid down by the Supreme Court, it would clearly fall within the meaning of making structural alterations in the building. Besides this, the accommodation has Deen increased by enclosing the nearby open space and that again must have been done by raising walls either connecting the various kothas or in some other way. In either case, the shape and the extent and proportion of the accommodation has been increased and is now quite different than what it was before. Of course, merely, changing of the Khasposh into the Khaprail may not amount to "structural alterations". It appears, therefore, that in instant case the alterations, admittedly made by the tenants, were "material alterations" and as such would come within the mischief of S. 3 of the U. P. Act III of 1947. Of course, merely, changing of the Khasposh into the Khaprail may not amount to "structural alterations". It appears, therefore, that in instant case the alterations, admittedly made by the tenants, were "material alterations" and as such would come within the mischief of S. 3 of the U. P. Act III of 1947. The learned counsel for the appellant has referred to a case in which it was held by Hon. S. S. Dhawan, J. that reconstruction of the constructions and making them pucca instead of kuchcha does not amount to "material alterations. However, that case is clearly distinguishable for in that case the kuchcha construction had fallen down in heavy rains and while reconstructing the same they were made pucca. In that case structures itself had ceased to exist and what the tenant had done was to reconstruct the same. It may, therefore, be said that the tenant had not made any alteration, material or otherwise, at all. In any case, after the decision of the Supreme Court in Man Mohan Das Shahs case much of the validity of the cases decided prior to 1967 have been lost. 15. In agreement with the courts be low, therefore, I find no illegality in their decisions. 16. The appeal is, therefore, dismissed with costs. The defendants-appellants are, however, granted two months time to vacate the accommodation in dispute voluntarily failing which the landlord responded will be entitled to execute his decree for possession in accordance with law.