Sadhuram Samariya v. Raghunandan Arusia — 1979 DIGILAW 188 (ALL)

JUDGMENT B.N. Sapru, J. - This is a defendant-tenants' appeal arising out of a suit tor eviction filed by the plaintiff-landlord for the ejectment of the defendant-tenant. 2. The suit was dismissed by the trial court. The lower appellate court on appeal filed by the plaintiff has decreed the suit. The findings of the lower appellate court, insofar, as, they are relevant are that two shops were let out to the father of the defendant in the year 1938-These shops are adjacent to each other. Thereafter, the defendant became a tenant of the two shops under a single rent note dated 22-4-1951 which covered both the shops. These two shops have been found to have been separated by a partition wall of 4" in thickness. 3. It has been found that prior to the plaintiffs father becoming a tenant of the accommodation, there was only one room which was subsequently divided into two by erection of a partition wall which as mentioned above was of 4" width. 4. The dimension of the two shops taken together have been found to be five metre in length and 2.20 metre in width. 5. The defendant originally has been found to have been carrying out a 'pasa-rath business in both these shops. It has been found that the shop had been mortgaged by the owner. The defendant continued as a tenant under the mortgagee. Some time in the year 1958 when the mortgagee was in possession, the defendant has been found to have stopped the 'pasarath business and had started the business of a Halwai (sweet shop) in the premises. It has also been found as a fact by the lower appellate court that the mortgagee did not object to the defendant starting the business of Halwai in the two shops in question. 6. The mortgage came to an end some time in the year 1966. The plaintiff instituted the suit for eviction on various grounds. The only ground with which we are concerned is that the plaintiff has been found to have established that the defendant removed the partition wall mentioned above. 6. The mortgage came to an end some time in the year 1966. The plaintiff instituted the suit for eviction on various grounds. The only ground with which we are concerned is that the plaintiff has been found to have established that the defendant removed the partition wall mentioned above. It was held by the lower appellate court that by the removal of the boundary wall, the defendant had materially altered the accommodation and as such the plaintiff was entitled to evict the tenant by filing a suit in view of the provision of the Section 3 (1) (c) of the U. P. (Temporary) Control of Rent & Eviction Act (hereinafter referred to as the Act.). It has further been found that the defendant without any authority has constructed three 'bhattis in the shop. It has been held that by the making of the bhattis and the user of 'bhattis the defendant has substantially damaged the accommodation and as such the defendant is liable to be evicted under the provisions of Section 3 (1) (b) of the Act. 7. As far as the question of material alterations of the accommodation is concerned, the lower appellate court has decided it against the tenant on the basis of a judgment of the High Court in the case of Delhi Iron Syndicate Private Limited, Ajmeri Gate v. Sidh Nath in Second Appeal No. 5296 of 1960 decided on January 19, 1965, by Honble Mr. S. N. Katju, J. The said case is reported in (1965 All LJ 17) in the summary of cases. In that case it was found that the tenant was in occupation of two rooms used as Ehop and in between the two rooms there was a partition wall dividing the rooms-The tenant was found to have demolished the partition wall and the pillars. The learned Single Judge held that "the act of demolition of the partition wall involve construction because in such process the existing wall had to be pulled down and that portion of the roof on which the partition wall rested had to be mended and the floor space on which the partition wall stood had to be levelled". In these circumstances, it was held by the High Court that the cumulative work in pulling down the partition wall and repairing came within the meaning of construction. In these circumstances, it was held by the High Court that the cumulative work in pulling down the partition wall and repairing came within the meaning of construction. It was further held that when the two rooms were converted into one big single room, there was a material alteration in the existing accommodation and as such the defendant was liable to eviction, in view of the provisions of Section 3 (1) (c) of the Act. 8. The learned counsel for the appellant has submitted that the lower appellate court was wrong in relying upon the aforesaid decision of the High Court as the facts in the instant case were different from the facts found in the aforesaid decision of the High Court. In this case the lower appellate court has observed in its judgment as follows; - "P. W. 1 Raghunandan (plaintiff) has stated that the partition wall was 4" in width and it was raised up to the roof. Before the Commissioner the plaintiff has stated that originally these two shops were one room and later on that room was divided into two by partition wall. The Commissioner has mentioned this fact in his report paper 16-Ga. It is also clear from the aforesaid evidence of the plaintiff himself that the partition wall was constructed later on in order to divide a big room into two rooms- The demolition of that partition wall did not necessitate the mending of the roof and the floor space on which the wall stood. That wall was constructed after the construction of the roof and the floor. The question is whether the conversion of those two rooms into a big room amounts to material alteration." 9. The learned counsel submits that the basic difference between this case and the facts of the earlier High Court judgment are that the demolition of the partition wall in the earlier case involved repairs to the roof and of the floor, while in the instant case no such repair to the roof or the floor required. 10. The second distinction that the learned counsel draws is that the structure as built originally was a single room. The single room has been found to have been divided into two rooms by the erection of the partition wall. 10. The second distinction that the learned counsel draws is that the structure as built originally was a single room. The single room has been found to have been divided into two rooms by the erection of the partition wall. What the learned counsel for the appellant submits is that by demolition of the partition wall, the original shape of the room has been restored. 11. The learned counsel for the respondent, in reply submits that when the defendant came into the tenancy there were factually two shops divided by the partition wall and by his act the tenant has made one shop out of the two rooms. 12. The learned counsel for the appellant has relied upon a judgment of a Single Judge of this Court in the case of Ratan Singh v. Khudavand Hayyul Qayyam (1978 All LJ 1265). In that decision, it was held that on the eastern wall, there was an 'almirah'. The tenant took out a few bricks from that side and opened a door therein. It was held by Mr. Justice Singh that the opening of the door did not amount to a material alteration. He held that in the circumstances of the case, there was no substantial change in the form and structure of the building and it. could not be said that the constructions were inconsistent with the reasonable user of the premises. The learned Single Judge also held that the question whether there has been a material alteration in the accommodation as a result of constructions found to have been made by the tenant is a question of law. The learned single Judge came to this conclusion in view of the judgment of the Division Bench of this Court in the case of Dr. Jai Gopal Gupta v. Budh Mai (1969 All LJ 477). 13. The learned counsel for the parties are agreed that what constitutes material alterations within the meaning of Section 3 (1) (c) has been explained by the Supreme Court in the case of Manmohan Das Shah v. Bishun Das ( AIR 1967 SC 643 ) ; (1966 All LJ 1053). Jai Gopal Gupta v. Budh Mai (1969 All LJ 477). 13. The learned counsel for the parties are agreed that what constitutes material alterations within the meaning of Section 3 (1) (c) has been explained by the Supreme Court in the case of Manmohan Das Shah v. Bishun Das ( AIR 1967 SC 643 ) ; (1966 All LJ 1053). There the expression material alteration was defined by the Supreme Court in the following (words) (at p. 1056 of All LJ); "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 alteration 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". 14. The removal of an internal partition wall would not normally change the front of the structure. There is no finding also that the front of the structure has been changed. The room was originally one. The next question as to whether the structure of the premises has been changed. The original structure of the premises was as one room. It is only the internal division in the accommodation that, has been removed. By the removal of the partition wall, the floor space in the accommodation has not been changed. Section 3 (1) (c) does not take in its sweep all alterations made in an accommodation by the tenant. It is only material alterations made by the tenant which render the tenant liable for eviction. The dimensions of the two shops taken together have been given in the earlier part of the judgment. By the removal of the partition wall, there is no effect either on the roof or on the flooring of the accommodation. It appears that the tenant has only removed the partition wall for the more convenient user of the accommodation- Of course, the intention of the tenant is not relevant for the purposes of Section 3 (1) (c) of the Act. 15. It appears that the tenant has only removed the partition wall for the more convenient user of the accommodation- Of course, the intention of the tenant is not relevant for the purposes of Section 3 (1) (c) of the Act. 15. Learned counsel for the respondent has relied upon a decision of this Court to support his proposition that where a tenant by removal of a partition wall converts two different accommodation into one accommodation, it amounts to a material alteration in the accommodation and the tenant becomes liable to eviction under the provisions of Section 3 (1) (c) of the U.P. (Temporary) Control of Rent and Eviction Act. 16. Section 3 (1) (c) of the Act so far as it is relevant runs as follows : "(1) Subject to any order passed under sub-section (3) no suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds : (a) & (b) ..... ..... ..... (c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction as, in the opinion of the COurt, materially altered the accommodation or is likely substantially to diminish its value." In the case of Kishan Lal v. Ram Baboo 1970 All LJ 1154), the position was that the defendant was a tenant of the two adjoining shops, viz, No. 6542/2 and 6542/3, situate at Paoli, Mahatma Gandhi Road, Agra. The plaintiff had filed suit for the ejectment of the defendant from shop No. 6542/3 which was decreed by the courts below. According to the plaint allegations, which were found correct, there was a partition wall between the two shops Nos. 6542/2 and 6542/3, which the defendant had demolished and appropriated the bricks thereof. 17. The plaintiff filed a suit with the allegation that the demolition of the wall caused substantial damage to the accommodation and also amounted to a material alteration therein and that the defendant had, therefore, rendered himself liable to ejectment. 18. Before Mr. Justice H.N. Seth, who decided the case it was argued that the alterations were such as did not have the effect of changing the nature and structure of the accommodation. 18. Before Mr. Justice H.N. Seth, who decided the case it was argued that the alterations were such as did not have the effect of changing the nature and structure of the accommodation. This argument was rejected by the learned Judge who observed as follows (at p. 1156 of 1970 All LJ) : "According to the learned counsel the change made in this case could not be said to be important alterations which materially or substantially changed the front or the structure of the premises. I am unable to agree with this contention. Even though, by pulling down the partition wall between the two shops, front of the structure might not have been changed, still the structure of the accommodation involved in the case, has undergone an important change. By demolishing the partition wall, the defendant altered two different accommodations and converted them into one accommodation. In my opinion, any change made in an accommodation which makes that accommodations lose its original identity and converts it into a different accommodation would amount to material alteration within the meaning of Section 3 of the U.P. Control of Rent and Eviction Act. In this case this is precisely what has happened. By removing the partition wall, the identity of both the accommodation numbered as 6542/2 and 6542/3 has disappeared and it has merged into a new accommodation standing over the area over which shops Nos. 6542/2 and 6542/3 originally stood." Another case relied upon by the learned counsel is Civil Revision No. 1128 of 1974 Jai Lal v. Asha Ram decided by Hon'ble Mr. Justice M.P. Saxena on 1-5-78 (All). THe facts in that case were that the plaintiff landlord had let out two shops to the defendant tenant. The first shop No. 129 was let out to the defendant at Rs. 25/- per month and shop No. 1230 was let out to him on a rent of Rs. 33/- per month. These shops were adjacent to each other and were divided by a wooden partition wall. It was found that the defendant had removed the wooden partition wall and converted the two shops into one shop. 19. 25/- per month and shop No. 1230 was let out to him on a rent of Rs. 33/- per month. These shops were adjacent to each other and were divided by a wooden partition wall. It was found that the defendant had removed the wooden partition wall and converted the two shops into one shop. 19. The question before the court was whether the removal of the partition wall had the effect of marking such material alteration as rendered the defendant liable to eviction under the provisions of Section 3 (1) (c) of the U.P. (Temporary) Control of Rent and Eviction Act. Before the learned single Judge the decision in the case of Kishan Lal v. Ram. Baboo (1970 All LJ 1154) was cited. The learned single Judge after finding that the defendant tenant had removed the walls observed as follows : "The effect of the removal of a partition wall was considered by this Court in the case of Kishan Lal v. Ram Baboo (1970 ALl WR (HC) 731) : (1970 ALL LJ 1154). The was held that any change made in an accommodation which loses its original identity and converts it into a different accommodation, would amount to a material alteration within the meaning of Section 3 of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act. It was further held that by removing the partition wall, the structure of the accommodation would undergo an important change, inasmuch as by demolishing the partition wall, the tenants altered two different accommodations and converted them into one accommodation. By removing the partition walls the identity of both the accommodations had disappeared and it had merged into a new accommodation standing over the area over which both the accommodations originally stood and, as such, it amounted to material alteration. This case fully applies to the facts of the instant case. By removing the partition walls, the identity of the shops has materially changed. This case fully applies to the facts of the instant case. By removing the partition walls, the identity of the shops has materially changed. Therefore, it amounts to material alteration within the meaning of Section 3 (1) (c) of the old Act and the defendant revisionist is liable to eviction." The learned counsel for the appellant urged that the two cases relied upon by the learned counsel for the respondent are distinguishable because, in the instant case the two portions of the room which were separated by a partition wall were let out to the defendant as one accommodation while in the aforesaid two cases the two different accommodations were let out by the landlord to the same tenant. He submits that the defendant tenants in the two cases referred to earlier, had converted the two different accommodations into one accommodation-He points out that in the instant case, the accommodation which was let out to the defendant appellant was one accommodation and what the defendant had done, was to remove the internal partition wall in the indivisible accommodation that was let out to him. He submits that in view of this distinction, the two cases relied upon by the learned counsel for the plaintiff-respondent are not applicable to the facts of the instant case. 20. The ratio of the abovementioned two cases is that a tenant under a landlord cannot amalgamate two different accommodations let out to him into one accommodation, and if he does so, he makes a material alteration and renders himself liable to eviction under the provisions of Section 3 (1) (c) of the U. P. (Temporary) Control of Rent and Eviction Act. 21. However, where a single accommodation is let out by the landlord to a tenant and that accommodation is internally divided by a partition wall, then the removal of the partition wall, unless it causes material physical damage to the accommodation, cannot by itself amount to the making of such material alterations as would render the tenant liable to eviction under the provisions of S- 3 (1) (c) of the Act. 22. This does not mean to say that where in the process of removing the partition, damage is caused to the building; in no case will the tenant be liable to eviction under Section 3 (1) (c) of the Act. 23. 22. This does not mean to say that where in the process of removing the partition, damage is caused to the building; in no case will the tenant be liable to eviction under Section 3 (1) (c) of the Act. 23. In this case, there is no finding that actual physical damage has been caused to the accommodation by the removal of a partition wall which existed when the accommodation was let out to the defendant appellant. 24. It must not be foregotten that the room has been found to be initially one which was divided into two by a partition wall. The landlord let out both the portions to the defendant as one unit, and not as two distinct units. 25. In the circumstances of the present case, it must be held that the tenant; has made no such constructions in the; accommodation so as to have materially altered the accommodation. 26. As regards the bhattis the appellate court came to the conclusion that there was no evidence to show on behalf of the defendant that the defendant had taken the consent of the mortgagee to erect the bhattis, though it found that the mortgagee had consented to the defendant in running the business of a halwai in the two shops. The lower appellate court has held that the running of the bhatti amounts to causing substantial damage in the accommodation. The finding of the lower appellate court in this regard is in these words: "The defendant has admittedly constructed three bhattis in the accommodation, two bhattis in the shops and one in the inner court-yard. There is no dispute about the fact that the user of these Bhattis will give out smoke and fumes and those smokes and fumes will certainly blacken the building and the presence of bhattis will certainly damage the floor. In my opinion, this will amount to substantial damage and the defendant will become liable to ejectment under Section 3 (1) (b) of the Act-It has been stated above that the previous landlord did not object to the defen-ant using the shops as sweetmeat shops. But there is no evidence on the record that the said landlord knew about the construction of Bhattis and he did not object to the presence of those Bhattis inside the shop. But there is no evidence on the record that the said landlord knew about the construction of Bhattis and he did not object to the presence of those Bhattis inside the shop. Therefore, the present landlord could take action for eviction of the defendant on the ground that his building has been substantially damaged by the defendant." 27. The finding that the mortgagee had consented to the running of Halwai shop (sweatmeat) is a finding of fact. A Halwai shop necessarily involves the preparation of the articles of food. Articles of food cannot be prepared without Bhattis. The learned counsel for the respondents points out that a halwai business can be run by preparing articles of food elsewhere and only selling them in the premises in which the halwai shop is located. The normal position would be that when the landlord permits his tenant to run a halwais business in the accommodation he also permits him to prepare articles of food in the premises- If any restriction on preparation of food is to be placed, it must be done expressly. The damage which has been found by the lower appellate court from the use of the Bhattis is incidental to the user of the accommodation in running a halwai business. A damage which is incidental to a user of an accommodation by the tenant which is authorised by the landlord cannot in law be held to amount to an -act by tenant of wilfully causing substantial damage to the accommodation as required by Section 3 (1) (b) of the Act. 28. In the result, the appeal is allowed and the decree for eviction is set aside and the suit of the plaintiff for eviction is dismissed throughout. The costs will be easy.