JUDGMENT : 1. This is tenant's Second Appeal against the judgment and decree dated 14-3-89 passed by the Additional District Judge No. 1 in Appeal No. 106/86(197/77) whereby he has confirmed the judgment and decree dated 28-5-77 passed by the Munsif and Judicial Magistrate, District Ajmer in Civil Suit No 355/76 (Gordhan Bai v. Supyar Bai) filed by the Respondent Gordhan Bai for eviction of the tenant Smt. Supyar Bai on the ground of default and material alteration of the premises let out by the landlord to the tenant. 2. Two important questions of law which arise for decision in this appeal are as to whether the Courts below were justified in holding that the defendant/appellant is carrying out the trade of hens without any evidence on record and therefore, their finding is liable to be set aside on the ground of perversity and as to whether the opinion of the Courts below about the material alteration of the premises on account of the construction made by tenant is legally correct. 3. Briefly stated the facts of the case are that Respondent late Smt. Gordhan Bai (landlord) had filed a suit for ejectment and arrears of rent on 22-7-75 in the Court of Munsif, Ajmer City (East) against the appellant Smt. Supyar Bai (tenant) with the allegations that she had let out three rooms and one kitchen on the first floor in the house bearing ACM No. VIII/204 in Ghoshi Mohalla, Ajmer, to the tenant. Rent was paid only upto 10-1-75 and thereafter the tenant had committed a default. In the month of April, 1975 the tenant had constructed pucca room on the roof floor of the tenanted premises. She has thus materially altered the premises and has made herself liable for ejectment under Section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the 1950 Act') In the said room she has started keeping hens and at the time of filing of the suit there were about 80 birds. The act was inconsistent with the purpose for which the premises were let out. This act of keeping hens on a residential building has also create nuisance and the plaintiff and her family were greatly disturbed in their sleep and study due to constant noise made by hens. 4. The act was inconsistent with the purpose for which the premises were let out. This act of keeping hens on a residential building has also create nuisance and the plaintiff and her family were greatly disturbed in their sleep and study due to constant noise made by hens. 4. The appellant/defendant (tenant) resisted the suit by asserting that the rent had been paid upto 10-3-75 but receipts were not given. Rent for the months of April and May 1975 was sent through postal money order but the plaintiff refused to accept the same. The allegation of making pucca room without the consent and permission of the landlord was denied. The tenant asserted that since no pucca room was constructed, question of material alteration did not arise at all. The tenant also asserted that in place of very old and unserviceable wooden cabin she has raised only a brick wall for temporary protection of her hens from rains, sun etc. That cannot be termed as a material alteration in the eye of law. She was having few hens i.e. about 5 in number for the last about 8 to 9 years. The allegation of nuisance and disturbance to the landlord and her family member was also denied. In the additional pleas the tenant stated the facts regarding payment of rent and deposit of the same. 5. The trial Court framed in all seven issues and added one more in the form of issue No. 2-A. After recording the evidence of the parties, the learned Trial Court passed a decree dated 28-5-77 for ejectment of tenant. The learned Trial Court held that the tenant had defaulted in payment of rent. It further held that the tenant had made constructions over the roof which amounted to material alteration in the premises. It further held that keeping of hens amounted to nuisance. 6. On appeal, the learned Additional District Judge held that the tenant had deposited the rent on the date of hearing and continued to deposit the same thereafter regularly. Therefore, no decree on that ground could be passed against the tenant. However, on the issue of material alteration, the learned Lower Appellate Court observed that the factum of making of construction of wall was admitted and the wall which was on the entire roof was lower than the wall raised by the tenant. Therefore, no decree on that ground could be passed against the tenant. However, on the issue of material alteration, the learned Lower Appellate Court observed that the factum of making of construction of wall was admitted and the wall which was on the entire roof was lower than the wall raised by the tenant. The wall had been raised with bricks on 3 sides and thus, a portion of the roof was given the shape of a room and, therefore, it was not possible to hold that the construction made by the tenant was not a material alteration. The construction clearly fell within the definition of a room. It amounted to material alteration in the premises. The learned Lower Appellate Court also held that the defendant was keeping hens on the roof and there was a change in the user of the premises let out to the tenant and no person could keep 100 to 150 hens in his house for a purpose other than for doing business. The learned Lower Appellate Court did not accept the finding of the Trial Court on the question of nuisance. However, on the basis of its finding about the material alteration and the change in the user of the premises it upheld the judgment and decree passed by the Trial Court. 7. Shri S.M. Mehta, learned counsel for the appellant has agrued that the construction raised by the appellant cannot be treated as a material alteration in the tenanted premises. Material used in the construction was in the from of bricks and wood and it was such a construction which could easily be removed at any time without any damage to the tenanted premises and such construction cannot be termed as a material alteration in the tenanted premises, argued Shri Mehta. He submitted that both the Courts below have mis-directed themselves in totally ignoring the nature of construction. According to him the Trial Court as well as the Lower Appellate Court have failed to make note of the fact that boundary wall was already existing on the roof of the house. The material used was only bricks for the purpose of raising of this wall to some extent. Only wooden material was placed in the form of roof. The alleged construction was raised two years ago. Neither of the walls were based on any foundation. The material used was only bricks for the purpose of raising of this wall to some extent. Only wooden material was placed in the form of roof. The alleged construction was raised two years ago. Neither of the walls were based on any foundation. Shri Mehta further argued that the finding of doing business is perverse. No case was set out by the landlord that the tenant was doing business of hens and not an iota of evidence exist on record for the purpose of recording a finding that the tenant was engaged in any kind of business of hens. There findings are based on purely conjectures and imagination. Shri Mehta laid stress on the point that as per the statement of the tenant since 1977 there were no hens on the roof of the tenanted premises. Learned counsel further argued that there was no allegation that hens were being kept in the premises let out and the use of the tenanted premises continued to be for a residential purpose. Neither of the Courts below applied their mind to this aspect of the matter, he submitted. 8. Learned counsel for Respondents on the other hand argued that findings recorded by the learned Courts below are the findings of fact and there is no justification for this Court to interfere with those findings. He argued that even if this Court was to arrive at findings different than the findings recorded by Courts below, there was no justification for interference in second appeal. He submitted that both the Courts below have proceeded on the admissions made by the tenant about the construction and, therefore, their findings do not suffer from any legal infirmity. 9. Section 13(1)(c) and (d) of 1950 Act reads as under:- "(c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as in the opinion of Court has materially altered the premises or is likely to diminish the value thereof; or (d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord's therein." 10. A bare look at the provisions quoted hereinabove shows that the Court is precluded from passing any decree in favour of the landlord for ejectment of the tenant so long as the tenant is ready and willing to pay full rent allowable by the Act of 1950 unless the Court is satisfied that the tenant has without the permission of the landlord made or permitted to be made any such construction whichin the opinion of the Court has materially altered the premises or is likely to diminish the value of it or where the tenant has done any act which is in consistent with the purpose for which he has been admitted in the premises or which is likely to affect adversely and substantially the landlord's interest therein. Thus, unauthorised construction made by the tenant provides cause of action for his eviction. However, every construction or alteration made by a tenant in a building does not provide a ground for eviction. The landlord is required to establish the following for obtaining a decree against the tenant under Section 13(1)(c) : (i) that the tenant has made constructions; such constructions have been made without the permission of landlord; and (iii) the construction so made, has materially altered the premises or is likely to diminish its value. These three conditions are to be cumulatively satisfied by the landlord before a decree for eviction can be passed against the tenant. If any of these conditions is not satisfied, decree cannot be passed. 11. The first two conditions may not present much difficulty. Whether construction has been made or permitted to be made by the tenant and whether this has been done without the permission of the landlord, are questions of fact and if on the basis of evidence recorded by the Courts below a finding is recorded about the construction having been made or permitted to be made by the tenant without permission/consent of the landlord, this Court will not ordinarily interfere with such a finding. However, whether the construction in dispute, has in the opinion of the Court, materially altered the premises is a serious question on which the Court is required to apply its mind and then form an opinion on that question. If such opinion of the Lower Courts is erroneous in law, certainly this Court is entitled to interfere in second appeal. 12. If such opinion of the Lower Courts is erroneous in law, certainly this Court is entitled to interfere in second appeal. 12. In Kesar Das v. Harish Chandra Vyas, 1979 RLW 201, Kasliwal, J. (as he then was) held that : "In a suit based on material alterations the Court has first to record a finding about the actual construction made by the tenant and thereafter has to form an opinion as to whether these constructions have materially altered the premises. The expression 'materially altered' finds place in Section 13(1)(c) of the Act. Its meaning has to be ascertained and then the Court has to see whether the constructions made amount to material alterations within the meaning of the Act. This will be a finding of law." In Deep Chand v. Abdul Hussain and ors., 1986 RLR 544 , S.N. Bhargava, J., followed the principles laid down in Kesar Das v. Harish Chandra Vyas and held that the finding as to whether construction in question has materially altered the premises is a finding of law. 13. The Act of 1950 does not contain any definition of the word 'material' or the word 'alter'. As per Black's Law Dictionary (fourth edition), the word 'material' means important; more or less necessary; having influence or effect. The word 'alter' means to make a change in; to modify; to vary in some degree; to change some of the ingredients without substituting an entirely new thing or destroying the identity of the thing affected. As per the Concise Oxford Dictionary the word 'material' as an adverb, means important; essential; concerned with the matter, not the form. It has defined 'alter' as a change in characteristics position. In Words, and Phrases (Permanent Edition) one of the meaning of the word 'alter' is to make change, to modify, to change of a thing from one form and set to another. The expression "alteration" with reference to building means 'substantial' change, varying, change the form or the nature of the building without destroying its identity. It means that the nature and character of change or alteration of the building must be of important nature.In Bickmore v. Dimmer, (1903) 1 Ch. The expression "alteration" with reference to building means 'substantial' change, varying, change the form or the nature of the building without destroying its identity. It means that the nature and character of change or alteration of the building must be of important nature.In Bickmore v. Dimmer, (1903) 1 Ch. 158, it was held that:- "In a convenient, by a leassee of trade premises, not to make any "alteration to the premises" without the lessor's consent - "alteration" cannot be read without qualification, and means "such alteration as would affect the form or structure of the premises;" therefore, a large clock (by way of advertisement outside a watchmaker's shop) supported by iron stays bolted into the stonework of front of the house (making holes in the stonework to restore which on removal of the clock would need fresh stone costing form 15 to 20), is not such an alteration.' 14. In Babu Manmohan Das Shah v. BiShnu Das, AIR 1967 SC 643 , the Supreme Court while considering the expression 'material alterations' occurring in Section 3(1)(c), U.P. (Temporary) Control of Rent and Eviction Act, 1947 observed : "Without attempting to lay down any general definition as to what material alterations mean, as such the question would depend on the facts and circumstances of each case, the alterations in the present case must material alterations as the constructions carried out by the respondent had the effect of altering the front and structure of the premises." 15. In Om Prakash v. Amar Singh, and another, 1987 (1) RLR 502 (SC), their Lordships were examining the provisions of the U.P. Cantonments (Control of Rent and Eviction) Act, 1952. Section 14(c) of that Act is more or less pari materia with the provisions contained in Section 13(c) of 1950 Act. After making reference to the decision in Babu Manmohan Das Shah's case (supra), the Supreme Court observed as under:- "In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction. It took care to use the words "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial changes in the front and structure of the building. Construction of chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leading or leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materialy alter the building as inspite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the construction are substantial in nature and they alter the form, front and structure of the accommodation," 16. In that case, the disputed construction was in the form of a wall of six feet height in a hall converting it into two rooms and tin shed in the open land adjacent to the accommodation. Their Lordships held that the partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling instead it was a temporary wall of six feet height converting the big hall into two portions for its convenient use, it could be removed at any time without causing any damages to the building. The partition wall did not make any structural changes of substantial character either in the form or structure of the accommodation. Similar observations were made by their Lordship, regarding the tin shed put up by the tenant. Their Lordships specifically rejected the view of Full Bench of Allahabad High Court in Sita Ram Sharan v. Johri Mal, AIR 1972 Allahabad 817, to the effect that construction is permanent or temporary in nature does not affect the question as to whether the construction materially altered the accommodation or not. Their Lordships specifically rejected the view of Full Bench of Allahabad High Court in Sita Ram Sharan v. Johri Mal, AIR 1972 Allahabad 817, to the effect that construction is permanent or temporary in nature does not affect the question as to whether the construction materially altered the accommodation or not. Expressing its disapproval to the view of the High Court, their Lordships observed:- "The nature of constructions, whether they are permanant or temporary, is a relevant consideration in determining the question of material alteration'. A permanent construction tends to make changes in the accommodation on a permanent basis, while temporary construction is on permanent basis, Which do not ordinarily affect the form or structure of the building, as it can easily be removed without causing any damage to the building". 17. In Brijendra Nath Bhargava and another v. Harsh Wardhan and others, 1988 (1) WLN 143 (SC), while allowing a tenant's appeal their Lordships of the Supreme Court reserved the judgment of the High Court of Rajasthan, in which the High Court had upheld the judgment and decree passed by Courts below and held that the construction of balcony or dochhatti, which is a wooden construction, does amount to material alteration which gives a cause of action to the landlord for filing a suit for eviction. Their lordships specifically held that the question as to whether construction amounts to material alteration or not is undoubtedly a question of law. 18. In Ramji Virji and other v. Kadarbhai Esufali, AIR 1973 Gujarat 110, a learned Single Judge of Gujarat High Court held as under:- "If from the material used by a tenant in making of the structure and from the way in which it is annexed to the main structure it is proved that the structure is easily removable then it can never be said that it is a lasting structure so as to offend the provisions of Section 13(1)(b) of the Saurashtra Rent Control Act, 1951." 19. That was a case in which the tenant had constructed a meda of 8'-1" height, 4'-81/2" width. This was constructed by fixing four pillars with the walls by means of nails, and putting planks over these pillars. Around one of the pillars, there is a plaster of cement. That was a case in which the tenant had constructed a meda of 8'-1" height, 4'-81/2" width. This was constructed by fixing four pillars with the walls by means of nails, and putting planks over these pillars. Around one of the pillars, there is a plaster of cement. The gap between the planks rest on the four pillars and the ceiling is filled with planks on both the sides and a door is put up on the front side. 20. So far as Rajasthan High Court is concerned there has been a divergence of opinion on interpretation of the phrase 'materially altered' premises or the phrase 'material alteration'. 21. In Khiya Ram v. Lakhi Prasad, 1964 RLW 213, C.B. Bhargava, J., held:- "The question whether any material alteration has been made in the premises is a question of fact in each case depending upon the nature of the premises and nature, extent and effect of the constructions made therein. The alteration should be of structural nature and not merely of decorative nature. Fixing a door to a room or to a garage by a tenant may not amount to material alteration within the meaning of Section 13(1)(c) of the Act but same will not be the case when an open verandah is covered into a closed room by fixing doors on the open portion. The character and shape of the premises in the former case remain unchanged while in the latter case the form and structure of the premises is changed." 22. In Madhavlal v. Smt. Govindi Bai, 1971 RLW 64, C.M. Lodha, J., held that in the Rajasthan Act the words "permanent structure" have been used and, therefore, any type of construction, whether it be permanent or temporary, if it has materially altered the premises, can be availed of as a ground of ejectment, by the landlord if the same has been made without his permission. The construction of a cabin on a leased out 'chabutra' was held to have materially altered the leased out premises. 23. In Sukh Lal v. Bhopal Singh, 1972 WLN 101 , Kan Singh, J., held that if the tenant had made a kachca floor pucca and had plastered a pucca wall and had put door in the opening or entrance, these were not to be 'material alterations'. 24. 23. In Sukh Lal v. Bhopal Singh, 1972 WLN 101 , Kan Singh, J., held that if the tenant had made a kachca floor pucca and had plastered a pucca wall and had put door in the opening or entrance, these were not to be 'material alterations'. 24. In Ratan Lal v. Moti Lal, 1973 RLW 188, construction of a brick wall on a chabutri for fixation of shutters was held to be 'material alteration'. This was again a case decided by Kan Singh, J., and he conferred the view taken by C.B. Bhargava, J. and C.M. Lodha, J. in Khiya Ram's case and Madhav Lal's case (supra) respectively. 25. In Raghunath Singh Balabux and another, J.P. Jain, J., no doubt made reference to the decisions of this Court in Madhav Lal's case (supra) and Ratan Lal's (supra) as also to Khiya Ram's case and noted that in Khiya Ram's case, Bhargava, J., held that alteration should be of structural nature. After making reference to the case of this Court, he proceeded to hold that construction of a pardi wall in the third floor of the house under the tin shed does not materially alter the suit premises because the pucca wall cannot be said to be of permanent character. It is important to notice that in Raghu Nath Singh's case the constructed pucca wall was having length of 5', width of 4' and height of 3' and the construction was raised with the object of providing protection from rains and sun. 26. In Badri Narain Tak v. M/s. Shyam Narain, 1982 (2) RLR 580 (Rajasthan), this Court held that "construction of bricks wall in a shop, without permission of landlord, for converting shop into two shops instead of one shop is an alteration which materially alters the premises as contemplated by sub-section (1) of Section 13 of 1950 Act." 27. In Prabhulal v. Kalu Ram, 1986 (1) WLN 289, C.M. Lodha, J. has held that construction of brick walls on both the sides of verandah tantamount to construction which materially alters the premises as contemplated by Section 13(1)(c). He held that closing of verandah on both sides by pucca walls i.e. walls of brick and not a kutcha pardi or some temporary construction like putting some wooden planks or thorn fencing or some temporary other structures would certainly tantamount to material alteration of the property and the premises. 28. He held that closing of verandah on both sides by pucca walls i.e. walls of brick and not a kutcha pardi or some temporary construction like putting some wooden planks or thorn fencing or some temporary other structures would certainly tantamount to material alteration of the property and the premises. 28. In Deep Chand v. Abdul Hussain (supra), the tenant had removed a pucca wall of bricks on the back of the shop so as to make entry from behind the shop to the residential portion which was in his tenancy. That was claimed to be in violation of the conditions of rent note. S.N. Bhargava, J., held that construction of a gate will not amount to material alteration in the premises. 29. Apart from C.M. Lodha, J., in Madhavlal v. Smt. Govind Bai (supra), Kasliwal, J., (as he then was) has also in Kesardas v. Hirish Chandra Vyas (supra) held that Section 13(1)(c) of the Act merely refers to any such construction as in the opinion of the Court, has materially altered the premises and do not make any distinction between the construction of a permanent or temporary nature.In S.B. Mathur v. K.P. Gupta, 1961 All. Law Journal 137, construction of temporary wall enclosing verandah and putting up of an 'iron jungla' and placing a partition wall of temporary nature was not held to construe as material alteration. 30. In Dr. J.D. Gupta v. Bodhmal, 1969 All. Law Journal 477, the same High Court held that temporary construction made by a tenant in the shape of kitchen and bathroom does not constitute material alterations as they could be removed without doing any damage to the accommodation. 31. A Division Bench of the same High Court on Baldevdas v. Ramkhilawan, 1979 (5) All. Law Reporter 44, held that a partition wall in a shop converting the same into two portions for the convenient use of the same did not amount to material alteration. 32. A survey of all these cases show that different opinions have been expressed by the different High Courts and there is an apparent conflict in the opinions expressed by this Court also. However, it is to be noted that all the decisions of this Court were rendered before the decision of the Supreme Court in Om Prakash v. Amar Singh (supra) and Briendra Nath Bhargava v. Harsh Wardhan. However, it is to be noted that all the decisions of this Court were rendered before the decision of the Supreme Court in Om Prakash v. Amar Singh (supra) and Briendra Nath Bhargava v. Harsh Wardhan. In the light of the decisions of the Supreme Court in the two cases referred hereinabove, the views expressed by C.M. Lodha, J. in Madhavlal's case and by N.M. Kasliwal, J. (as he then was) in Kesar Das's case to the effect that even a temporary constructions could be considered as a material alteration in the premises can no longer be held to be good law. It is also clear from the various pronouncements of this Court and of Gujarat as well as the Allahabad High Court that a construction which can easily be removed by the tenant without causing any damage to the tenanted premises ordinarily be considered as material alteration in the premises. Their Lordships of the Supreme Court have laid emphasis on the fact that the Legislature intended to cover only those constructions which bring about substantial change in the front and structure of the building. The material alterations contemplated by the Statute must be such alterations which bring about change of substantial nature affecting the form and character of the building and minor constructions or alterations made by the tenant for convenient use of the tenanted accommodation cannot be made a ground for eviction of the tenant. Their Lordships further expressed the opinion that construction of chabutri, almirah, opening of window or closing of verandah by temporary construction do no materially alter the building as in spite of such constructions the front or structure of the building may remain unaffected. Therefore, unless there is a change in the form, front or structure of the building by the impugned construction, the same cannot be held to have materially altered the premises and the contrary view expressed in different decisions cannot be regarded as a good law. In the light of all these principles of law, if the facts of the present case are examined, it is clear that according to the landlord, the tenant had made construction on the roof of the leased accommodation. In the light of all these principles of law, if the facts of the present case are examined, it is clear that according to the landlord, the tenant had made construction on the roof of the leased accommodation. In the plaint the landlord came out which a specific case that in the month of April, 1977 a pucca room had been made at the roof of the demised premises without the consent and permission of the landlord and hens were being kept in the said room. In her statement before the Court the landlord categorically stated that the room was constructed with bricks and wood. This construction was made about two years back. According to her the height of the construction was 6' to 7'. Jivandas, PW 2 has stated that the length of the room was 10', width was 4' and the height of the room was 5'. PW 3, Durgashankar, stated that the construction had been made five to four years ago and the height of the wall was 5' to 6'. The defendant came out with the case that in place of the existing wooden roof, she had raised its height and had put up wooden planks. There already existed a wall on the roof and she had only put up bricks for additional height of 3'. The trial Court has recorded a finding that the height of the wall was 4'-6" to 5' and thus it has taken a shape of an ordinary room and this amounted to material alteration. The learned Lower Appellate Court has of course taken notice of the fact that a wall already existed on the roof but observed that the height of this wall was lesser then the height of the wall constructed by the tenant and thus, the tenant had raised the height of the wall on three sides by putting up bricks wall and putting a door in front. Thus, according to learned Lower Appellate Court, the tenant had materially altered the premises. 33. It is clear from the pleadings and the evidence of the landlord and the findings recorded by the Courts below that there is neither any pleading nor any evidence that any foundation has been dug up for raising the wall. There is no pleading regarding change in the form or structure of the tenanted premises. 33. It is clear from the pleadings and the evidence of the landlord and the findings recorded by the Courts below that there is neither any pleading nor any evidence that any foundation has been dug up for raising the wall. There is no pleading regarding change in the form or structure of the tenanted premises. The roof of the construction has been held by the Courts to be of wooden planks which have been placed on the top of the wall. Even from the perusal of Exhibits 5 and 6 (photographs provided by the landlord) it is absolutely clear that there exists a wall on all the sides of the roof. The height of the wall has been raised about 3' width of the total structure, has been claimed to be only 4' and 5'. Such a construction cannot in any manner be termed as a pucca room and both the Courts below have committed a serious error of law in holding that the impugned construction has materially altered the premises. Clearly the structure is of temporary nature and easily removable without causing any damage to the tenanted premises. In my considered opinion, the Courts below have failed to correctly appreciate the legal position and, therefore, their judgment, are liable to be set aside on this score. 34. Now coming to the second question, it may straightaway be observed that the landlord has come out with the plea before the trial Court that the tenant was keeping hens and that had resulted in nuisance. The tenant denied this allegation. The plaintiff's evidence goes to suggest that tenant had been keeping hens. The tenant admitted that she was keeping hens but she stated in her statement that the hens had died due to illness and for six to seven months no hens were being kept and she had not purchased new hens. There is neither any pleading nor any evidence to show that the tenanted premises had been used for the purpose of doing business of selling the hens or eggs. No evidence has been led on behalf of the landlord to establish that the hens were being kept in any of the three rooms or kitchen. Rather, the evidence of all the witnesses of the landlord is that the hens were kept on the roof. No evidence has been led on behalf of the landlord to establish that the hens were being kept in any of the three rooms or kitchen. Rather, the evidence of all the witnesses of the landlord is that the hens were kept on the roof. The learned trial Court recorded a finding of business by the tenant by observing that large number of hens cannot be kept for the household purposes and that large portion of the house being used for keeping the hens and the house was never let out for the purpose of keeping the hens. This finding has not been confirmed as such by the learned Lower Appellate Court but it has observed that keeping of hens in such a large number can only be for business purposes and the use of the house for poultry is definitely a use different than the one for which premises was let out. 35. I have carefully gone through the evidence of all the witnesses of the landlord. I find that neither of the witnesses including the plaintiff Gordhan Bai has stated that the hens are being kept in any of the rooms or the kitchen. Their consistent testimony is that the hens are being kept on the roof. What has been asserted by the plaintiff and her witnesses is that on account of keeping of hens there is a nuisance. In the absence of any pleading or evidence about the tenant being engaged in the business of any kind, it has to be held that the findings recorded by both the Courts below that the tenant was using the tenanted premises for business purpose are perverse, being based on no evidence. Rather these are findings based on pure imagination and conjecture. The dominant use of the tenant premises continued to be residential because as already noticed above, there is no evidence to the effect that the hens were being kept in the rooms or the kitchen and there is also no evidence to the effect that in tenanted premises the tenant was not residing. 36. The dominant use of the tenant premises continued to be residential because as already noticed above, there is no evidence to the effect that the hens were being kept in the rooms or the kitchen and there is also no evidence to the effect that in tenanted premises the tenant was not residing. 36. In Prem Chand v. District Judge, Dehradun and anr., their Lordships of the Supreme Court held that where a tenant is occupying two rooms and had opened tailoring shop in one of the rooms, it was not unlikely that the very room is utilised as bed-room for one or two members of his family at night and, therefore, mere running of the shop in one of the rooms is not sufficient to convert what otherwise to all intents and purposes is a residential building into a non-residential building. 37. In Hiralal v. Hav. Kirpa Ram, a learned Single Judge of the Punjab and Haryana High Court took the view that even if a tenant uses a small portion of the tenanted portion for business purposes there is no change of user if the dominant purpose remains to be residential. 38. The facts which have been found in this case do not even suggest that in the tenanted premises the tenant started any business or that she stopped using the said premises for residential purposes. 39. This second appeal, therefore, succeeds and it is hereby allowed. The judgment and decree passed by the additional District Judge No. 1, Ajmer on March 14, 1989 as well as the judgment and decree passed by the Munsif, Ajmer on 28-5-77 which are under challenge in this appeal, are hereby set aside and the suit of the landlord (respondent) is dismissed with costs throughout.Appeal allowed.