JUDGMENT 1. - This defendant's second appeal is directed against the judgment and decree passed by the learned District Judge dated 1.10.1989 whereby he has affirmed the judgment and decree of Munsiff, Bhilwara dated 5.8.1987 in civil criminal suit No. 289/74. 2. Brief facts are that Banshilal filed a suit for ejectment of the shop on the ground of reasonable and bonafide necessity, material alterations and arrears of rent against Ratanlal on 3.9.1974. It was alleged that the suit shop was taken on rent at the rate of Rs. 32/- on 1.7.1972 and rent was not paid from 30.6.1973. It was also alleged that the defendant has made material alteration as the partition wall between two shops was removed by the defendant without any previous permission and the shop is needed for Ladulal who had left his studies for the last two years and if shops are not vacated, he will suffer more hardship and loss in comparison to the defendant and there was no shop in the area to sit and do work of tailoring, as the plaintiff himself in sitting in the stair case of the shop which is not sufficient and it was also alleged that partial decree will not serve the purpose and both the shops are required. A notice was served but to no avail. Hence, a suit was filed. The defendant contested the suit and field written statement and submitted that the shops were not taken on rent from the plaintiff but it was taken from Ghisaram as the shop was under mortgage and he had deliberately not taken the rent and the defendants were ready to pay rent. The existence of bonafide personal necessity as well as ground of material alteration was also denied. The suit was amended and ground of partial partition was added. A rejoinder was also filed. The plaintiff examined himself as PW1, PW Ladulal, PW3 Sohanlal, PW4 Mohammed Shah and PW5 Nandlal and produced Ex.-1 notice. The defendant has examined himself as DW1, DW2 Gaurishanker and DW3 Madanlal and produced Ex. A-1 to Ex. A-6. Ladulal and Jeewatram were also examined in rebuttal. On the pleadings of the parties, the learned trial Court framed as many as 11 issues. After considering the relevant (?) the learned trial Court decreed the suit on 14.8.1982. The defendant preferred an appeal and the same was also dismissed on 17.10.1982. A-1 to Ex. A-6. Ladulal and Jeewatram were also examined in rebuttal. On the pleadings of the parties, the learned trial Court framed as many as 11 issues. After considering the relevant (?) the learned trial Court decreed the suit on 14.8.1982. The defendant preferred an appeal and the same was also dismissed on 17.10.1982. Hence, this second appeal. This appeal is pending since 24.10.1989 in admission and the execution of the decree was stayed by this Court so far as it concerned with ejectment and the order was extended from time to time. The case has come up before me. Both the parties submit that the case may be finally heard and as agreed by the parties the same is finally heard. 3. I have heard learned counsel for the parties and perused the record. 4. Mr. H.P. Parekh, learned counsel for the appellant has submitted that the Courts below have erred in coming to the conclusion regarding material alteration without there being any pleading and has placed reliance on Kusum Chand and another v. Kanhayalal and another, AIR 1974 Rajasthan 73; Bhagat Singh and others v. Jaswant Singh, AIR 1966 Supreme Court 1831 and Siddikm Mohamed Shah v. Mr. Saran, AIR 1930 PC 57 . 5. Mr. D.S. Shishodia, learned counsel for the respondent has submitted that the court has considered the material alteration and has placed reliance on Prabhulal v. Kalu Ram, 1984 RLW 713 and S.B. Noronah v. Prem Kumar, 1979(2) RCJ 375. 6. I have considered the arguments and have perused record as well as the case law cited above. It is no doubt true that in the absence of pleadings no decree can be passed and evidence cannot be looked. at the same time the function of a pleading is only to state material as in it. In Prabhulal v. Kalu Ram 9supra) it has been observed that this is a matter of opinion of the Court as per the wording of the clause (c) itself it has also been observed that it is to be decided on the basis of proved facts irrespective either of emphasis in the and absence of assertion in the pleadings. The opinion of the Court is to be based on the evidence recorded or he facts admitted or proved. The opinion of the Court is to be based on the evidence recorded or he facts admitted or proved. In S.B. Noronah's case (supra) their lordships of the supreme Court observed that common sense should not be kept in cold storage when pleadings are construed. In this case in para 8 of the written statement the defendant has specifically denied that he has not made any default nor any material alteration has been made and on the basis of it issue No. 3 was framed as per pleadings. Therefore, as stated, the defendants were aware of the case knowing the question in issue went to trial and adduced evidence with full knowledge which resulted in no prejudice to him and in view of this it cannot be said that there was no pleading and evidence has been looked into while passing the decree. Thus the decree granted by the Court is valid one. 7. The next contention of the learned counsel for the appellant is that removal of wall cannot amount to material alteration as there was no substantial change in the constructed front and structure of building, therefore, the Court has erred in considering that the removal of wall has constituted a material alteration. Mr. Parekh has placed reliance on Om Prakash v. Amar Singh, AIR 1987 Supreme Court 617; Brijendra Nath Bhargava v. Shri Harsh Wardhan and others, AIR 1988 Supreme Court 617 and Deep Chand v. Abdul Hussain, 1986 RLR 544 . In reply to this contention it has been submitted that removal of 'Pardi' (wall) converting two shops into one shop is a material which materially alters the shops as contemplated by sub-clause (c) of sub-clause (1) of sub-section (1) of Section 13 of the Act. 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. Construction or reconstruction are inter changing terms and for proving material alteration substantial change is necessary. A temporary structure cannot become a material alteration and wooden construction does not amount to material alteration. For partition wall foundation would be necessary and at the same time it can only be adjudged from the facts of each case. In this case DW1 Ratanlal has stated that earlier he had one shop of Gheesalal Mistry and thereafter Banshilal gave shops after covering two into one. For partition wall foundation would be necessary and at the same time it can only be adjudged from the facts of each case. In this case DW1 Ratanlal has stated that earlier he had one shop of Gheesalal Mistry and thereafter Banshilal gave shops after covering two into one. But a perusal of written statement shows that Ratanlal has not come with a case that Banshilal after converting two shops into one gave him on rent or that after covering two shops into one, the same was let out to him but in the absence of this specific fact in his pleading, the evidence on this aspect cannot be considered. On the other hand Ratanlal has also deposed that initially there were two shops; one mortgaged shop of Gheesalal and thereafter second by plaintiff, so it is clear from his statement that two shops were taken on rent separately and admittedly he has converted two shops into one after removing 'Pardi' (wall) and thereby altered the nature/character of the rented shops. The learned Courts below on the basis of evidence on record have rightly observed that removal of 'Pardi' (wall) converting two shops into one which substantially alters its nature would certainly amount to material alteration within the meaning of the Act. 8. Regarding the contention of bonafide necessity, Mr. Parekh has placed reliance on Hasmat Rai v. Raghunath and others, AIR 1981 Supreme Court 1711; M.M. Qurashi v. Manohar Lal, AIR 1981 Supreme Court 1113 and Amarjit v. Sant Narayan, AIR 1987 Supreme Court 441, and submitted that subsequent events have not been considered as out of two shops fell vacant after filing suit, one was available and the other shop occupied by Devi Dhobi had fallen vacant in this regard a perusal of the statement of Ladulal shows that in the shop which was vacated by Shobhram, his younger brothers Shashi and Natwar are sitting and doing stitching work. He has also stated that there is no place in the shop for him to sit and his brothers are living separately, Jeewatram PW2 has stated that shop of Shobha Ram which was got vacated is being used by the two younger brothers of the plaintiff Ladulal. He has also stated that there is no place in the shop for him to sit and his brothers are living separately, Jeewatram PW2 has stated that shop of Shobha Ram which was got vacated is being used by the two younger brothers of the plaintiff Ladulal. Therefore, it is clear that no shop is available to the plaintiff Ladulal for carrying on the business of stitching and it cannot be said that the bonafide personal necessity did not exist, and the Court has observed regarding the shop of Devi Dhobi that there is evidence which shows that shop is not appropriate which has been admitted by DW3 Madanlal has stated in his statement that his house is situated in street and the shop is in corner, as the same is situated in the street, business cannot be run in the shop. Therefore, it cannot be said that subsequent events have not been looked into rather they were considered and subsequent even of each case depends on its own facts and the Courts below after considering them have observed that necessity is still alive, and thus this argument is not tenable. 9. As regards the contention of partial eviction, issue No. 13 was framed. Banshilal has stated that he requires 8 x 10 x 10 ft. shops for his son. In the rejoinder the plaintiff has alleged that the decree of partial eviction will not satisfy his necessity. PW1 Ladulal has stated that in half of the disputed shop his work cannot be done and to keep machine, table etc. he required entire shop. He has also stated that to keep machine, tables space measuring 4 x 3 ft. is needed. PW2 Jeewatram has stated that shopmeasuring 15 x 15 ft. is required if labours are posted to work and he has stated that stitching business cannot be done in a part of the shop. Nothing has been asked in the cross-examination. Defendant's witnesses have also not stated a single word that the necessity of plaintiff Ladulal can be justified by partial partition of the suit premises. The learned trial Court after considering all material evidence has held that from the partial eviction plaintiff's problem cannot be fully solved. 10. Nothing has been asked in the cross-examination. Defendant's witnesses have also not stated a single word that the necessity of plaintiff Ladulal can be justified by partial partition of the suit premises. The learned trial Court after considering all material evidence has held that from the partial eviction plaintiff's problem cannot be fully solved. 10. In view of the over-all discussion both the Courts below have come to a concurrent finding and it cannot be said that plea of material evidence was never raised and evidence has been rightly considered and there exists reasonable and bonafide necessity in favour of the plaintiff and in case the disputed shops are not vacated, the plaintiff will suffer greater hardship in comparison to the defendant and the decree of partial eviction will not serve the purpose as the entire shop is required and, therefore, no prejudice has been caused to the defendant-appellant. Thus, the concurrent findings of fact arrived at by the learned Courts below are neither perverse nor based on no evidence, so as to call for any interference by this Court in second appeal. 11. In the result, this second appeal has no force, so it is hereby dismissed.Appeal dismissed. *******