JUDGMENT 1. - This second appeal under Section 100 of the Civil Procedure Code is directed against the judgment and decree dated 14.8.80 passed by the learned Civil Judge, Sirohi dismissing the appeal filed by the appellant against the judgment and decree of eviction passed by the learned Munsif, Abu Road in Civil Original No. 239/75 under Clause (d) of sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, 'the Act'). 2. The brief facts are as under : 3. The appellant (defendant) has been in occupation of the premises in dispute as a tenant under the respondents (plaintiffs). On 10.9.76 the plaintiffs had instituted the suit, out of which this appeal has arise^ against the defendant with the allegations that the defendant had been in arrears of rent for the period from 1.5.74 to 31.12.75 and had committed a default in payment of the rent and also that the defendant had constructed a but with the help of brass and bamboos by the side of the building in which the premises in dispute are situated and as such caused nuisance and that this act of the defendant had also adversely and substantially effected the plaintiff and the value of the property in dispute has also been reduced. The suit was contested by the defendant, who denied the grounds taken in the plaint and also denied the rights of the plaintiffs to file the suit. It was also contested on the ground that no valid notice had been served by the plaintiff on the defendant. After framing necessary issues, recording the evidence produced by the parties besides hearing their learned counsel, the learned trial court came to the conclusion that the plaintiffs had a right to file the suit and that the notice served by them on the defendant was valid but that the defendant had not committed any default in payment of rent but that he had constructed a but near the building in which the premises in dispute is situated and that had partially obstructed the way of the plaintiffs for coming to and going from their house. Consequently, the suit filed by the plaintiffs was decreed. The appeal filed by the defendant was heard by the learned Civil Judge, who vide the impugned judgment dated 14.8.80 dismissed the same. Hence, this second appeal. 4. Consequently, the suit filed by the plaintiffs was decreed. The appeal filed by the defendant was heard by the learned Civil Judge, who vide the impugned judgment dated 14.8.80 dismissed the same. Hence, this second appeal. 4. I have heard learned counsel for the parties and have perused the record of the case. 5. The learned counsel for the defendant-appellant has assailed the findings of the learned lower courts about the facts that a but had been constructed by the defendant-appellant by the side of the house in which the premises in dispute in situated and also the fact that this act of the defendant had caused obstruction and the plaintiffs felt inconvenience while coming to the house and while going therefrom and the way had been narrowed down. 6. From the record, I find that in the written statement, the allegations about construction of the but had been denied and same thing was deposed by the defendant when he appeared in the witness box as D.W. 1. The plaintiff had, in his statement, deposed that the defendant had made construction of a but and on his complaint, the but was demolished by the municipal authorities and that he had taken photographs, Exhibits 1 and 2 before the demolition was carried by the Municipal authorities. The defendant in his statement on oath has specifically denied having constructed any but or having received any notice from the Municipal authorities. He has also denied the fact that any demolition of but was carried out by the Municipal authorities at any time near the premises in dispute. The learned lower courts, without there being any evidence from the Municipal authorities, came to the conclusion that but had, in fact, been constructed by the defendant but has been demolished at the instance of the plaintiffs by the Municipal authorities and that photographs Exhibits 1 and 2 showed that the but was there. The plaintiff had desired the court to believe that the defendant had constructed the but and that the Municipal authorities had demolished it at his instance and as such it was for him to have proved this fact by producing the evidence in the form of complaint available in the office of Municipal authorities and in the form of action taken by the said authorities (see section 101 of the Evidence Act). The fact that the plaintiff had lodged the complaint with the Municipal authorities was also within his knowledge and was required to be proved by him (see Section 106 of the Evidence Act). Learned first appellate court has further come to the conclusion that the other residents had also felt inconvenience in using the way. This finding is perverse being based on no evidence. Even the structure appearing in the photographs Exhibits 1 and 2, cannot be said to be a but by any stretch of imagination as the photographs do not show any walls or roof and at the most the structure can be said to be only a surrounding made with grass. A hut, in my view, is a structure which can be used for residential or other purposes and the photographs, as noted above, do not show any such structure. Moreover, the photographs show that there is lot of open space for coming to the building in question and what was the inconvenience was also not forthcoming except that the bigger open space had been reduced to some extent. The findings of the learned lower courts about the construction of but by the defendant-appellant . or about the photographs being of the but or about the inconvenience being suffered by the plaintiffs and other residents, is perverse and cannot be binding on this court and as such this court is within its power to disturb those findings and to interfere with the impugned decree passed by the court below. 7. The learned first appellate court has relied on the decisions reported in Dwarka Das Jeevraj v. State, AIR 1956 Bombay 163 ) and Ladu Ram v. Municipal Board, 1967 RLW 255 ). In the Bombay case, the tenant had placed furniture in the passage and had obstructed it with the result that it could not be used by the other tenants and notice for taking action against the landlord was issued by the Bombay Municipal Corporation and it was held that this act on the part of the tenant amounted to nuisance and the notice could be issued to the landlord. In Ladu Ram's case (supra), the obstacles had been created on the highway road and it was held that the public at large was entitled to use the whole width of the public way. In Ladu Ram's case (supra), the obstacles had been created on the highway road and it was held that the public at large was entitled to use the whole width of the public way. These authorities do not apply to the facts of this case and the learned first appellate court erred in placing reliance on them. 8. For the reasons mentioned above, I accept this appeal, set aside the impugned judgments and decrees passed by the learned lower courts and dismiss the suit filed by the plaintiffs. In the circumstances of the case, however, the parties are left to bear their own costs.Appeal Allowed Judgment of Lower Courts Set Aside Suit Dismissed *******