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Rajasthan High Court · body

2001 DIGILAW 725 (RAJ)

Triyugi Narain Mishra v. Dr. (Mrs. ) Kala Mehta

2001-04-26

J.C.VERMA

body2001
JUDGMENT : 1. In this regular first appeal, the appellant was the defendant in the suit filed by the landlady Dr. (Mrs.) Kala Mehta for eviction against the appellant of the premises situated in A-29, Vidhyalaya Marg, Tilak Nagar, Jaipur the appeal is directed against the judgment and decree dated 19.12.1996 passed by the Addl. District Judge No. 5, Jaipur City (Civil Suit No. 12/1983) by which judgment the suit has been decreed with an order of ejectment. 2. The premises in question are said to have been taken on rent on 1.5.1976 by the appellant for the use for running of Central Academy School and a written rent note was executed between the parties. Respondent No. 1, the plaintiff, was living in foreign country and as per the allegations, the appellant had made certain constructions on the open space without the consent or permission of the landlady and as such had made material alterations in the building. Respondent No. 2 M/s. Upasana Constructions Pvt. Ltd. is the purchaser of the said premises by the registered sale-deed executed on 5.1.1990 and has been substituted in the place of original land-lord and, therefore, was entitled to receive the rent, pursuing the suit and also to get the premises in question vacated by way of decree of eviction for having purchased the same during the pendency of the suit. 3. In the reply filed by the appellant-defendant, it was stated that the premises in question were taken on rent for running the Central Academy School with the condition that the tenant would be allowed to make temporary construction on the open space and also on the existing building of the school on his own expenses. It was stated by the tenant that immediately after taking the building on rent certain changes were made and were completed before starting the session of the school in July 1976. It was denied that any construction had been made by taking the benefit of absence of the landlady. It was also denied that any material change has been made in the building or that its value has been diminished. It was also the contention of the defendant-appellant that the subsequent purchaser does not acquire any right to continue the eviction proceedings on the ground of material alteration for the reason that the purchaser had purchased the property as it was. 4. It was also the contention of the defendant-appellant that the subsequent purchaser does not acquire any right to continue the eviction proceedings on the ground of material alteration for the reason that the purchaser had purchased the property as it was. 4. During the pendency of the suit, the respondent No. 2 M/s. Upasana Construction Pvt. Ltd. had become the owner on 5.1.1990 in view of the registered sale-deed and on the application having been made by the respondent No. 2 to continue the proceedings in place of the original plaintiff;. vide order of the trial Court passed on 10.9.1991 respondent No. 2 was impleaded as plaintiff No. 2. The following issues were framed : (1) Whether the defendant had made any material changes as detailed in para 7 of the plaint because of which the respondent is likely to be ejected ? (2) Whether the respondent had made material changes as detailed in para 8 and thus has diminished the value of the building ? (3) Whether the defendant was authorised to construct the temporary structure on the vacant land and building of the tenanted premises ? (4) Whether the defendant had made construction in July 1976 and if so what is the effect of the same on the suit ? (5) Whether the suit is not maintainable because of the eviction of the partial premises ? (6) Whether Central Academy is the tenant of the premises in question and suit is not maintainable in the present shape ? (6A) Whether M/s Upasana Construction Pvt. Ltd. has not inherited the right from plaintiff No. 1 to get the premises vacated on the ground of material alteration and he is not entitled to obtain the decree ? (7) Relief. 5. The plaintiff had produced PW.1 as Smt. Kala Mehta, PW.2 Sunil Kumar, PW.3 Brij Kishore Bhargava, PW.4 Nagendra Mal, PW.5 Ashok, PW.6 Sobhagya Chandra, PW.7 Suresh Chandra H. Mathur, PW.8 Balram, PW.9 Harish Chandra Mehta, PW.10 Kuldeep, PW.11 Subhan Khan and PW-12 Ballabh Krishna and had also produced photographs as Ex. 1 to 5, notices, AD receipts of notices, the letters written by defendant Ex. 7 and 8, map Ex. 10, sale-deeds Ex. 10 to 12, power of attorney etc. 6. 1 to 5, notices, AD receipts of notices, the letters written by defendant Ex. 7 and 8, map Ex. 10, sale-deeds Ex. 10 to 12, power of attorney etc. 6. The defendant had produced DW.1 Triyugi Narain Mishra, DW.2 Bhagat Singh, DW.3 Amar Singh, DW.4 Mahendra Kumar, DW.5 Ramavtar, DW.6 Jyoti Mathur, DW.7 Balram and DW.8 Vijay Kumar as oral evidence. 7. Issue Nos. 1 to 4 were connected and related to in regard to the construction, onus of proving issue Nos. 1 and 2 was on plaintiff whereas to prove issue Nos. 3 and 4 the onus was on defendant-appellant. 8. PW. 1 Smt. Kala Mehta has stated that the defendant had made certain construction on the side of compound wall in the year 1976 which construction she had condoned, but in the year 1983 she came to know that the defendant had once again constructed a first floor when she was in America. Not only the construction was made on the first floor, but the defendant had even constructed one Bath-room on the room which was not let out to him and even one staircase had also been constructed along with this Bath-room. She had to come immediately from America on acquiring such knowledge and visited the spot and found the unauthorised construction. This was corroborated by PW-9 Harish Chandra who had stated that he was out of Jaipur for about 11/2 months and when he came back, he found that on the South side of the compound wall, the defendant had constructed three rooms without his consent. It was further stated that the defendant had constructed five rooms without consent on the first floor and even a garage which was never let out to the defendant, the defendant had constructed two toilets on balcony on the garage. The plaintiff had stated that the rooms along with compound wall were constructed in the year 1976 and construction of 1976 had been condoned. 9. The dispute related to only the construction made in July 1983. To prove the said fact of construction apart from plaintiffs, PW.3, PW.4, PW.5, PW.6, PW.7, PW.8 and PW.12 had deposed, who had stated that the construction had been made in the year 1983. 10. Per contra, the defendant had stated that the construction was made in July 1976 and that he had not made any other construction after 15.7.1976. To prove the said fact of construction apart from plaintiffs, PW.3, PW.4, PW.5, PW.6, PW.7, PW.8 and PW.12 had deposed, who had stated that the construction had been made in the year 1983. 10. Per contra, the defendant had stated that the construction was made in July 1976 and that he had not made any other construction after 15.7.1976. The construction made in the year 1976 was with the consent of Harish Chandra Mehta. It was the case of the defendant that he had taken the premises on rent with the condition that he would be make construction on open land and also on the first floor and to prove his contention he had produced DW-2, DW-3, DW-4, DW-5, DW-6, DW-7, DW-8 to the effect that the construction made in the year 1976 was existing and no other construction subsequent to had been made. 11. PW.1 Dr. (Mrs.) Kala Mehta in her statement had said that she is a medical doctor by profession and is staying in America. The defendant had made certain construction in the year 1976 adjoining the compound wall. She had stated that one room had been kept by her for her own use and was not let out to the defendant. Power to attorney was given to Harish Chandra Mehta. She had stated that they have condoned the construction made in the year 1976. However, in the year 1983 she was informed on telephone by her father-in-law that the defendant had constructed the first floor and toilets have also been constructed on the root of the room. She had stated that no permission/consent was given either by her or by her father-in-law who was the power of attorney to make any construction permanent or temporary. 12. PW.2 Sunil Kumar, photographer, states that he had photographed on 26.7.1983 of the building on the asking of Harish Chandra Mehta which were exhibited as Ex. 1 to 5. At the time the photographs were taken, there were certain labourers doing the work of finishing. 13. PW.3 Brij Kishore is a retired Bank employee and resides in front of the house of the premises in dispute i.e. the school. He states that this school was one storeyed only but the second storey had been constructed in the month of May/June 1983 during the summer vacation in about 15-20 days time by working day and night. 13. PW.3 Brij Kishore is a retired Bank employee and resides in front of the house of the premises in dispute i.e. the school. He states that this school was one storeyed only but the second storey had been constructed in the month of May/June 1983 during the summer vacation in about 15-20 days time by working day and night. He is not related to the plaintiff. He says that certain construction was also made in the year 1976 near the compound wall. 14. PW.4 is Nagendra Mal who is also living near the house in question and he had been passing through the demised premises. He has given description about the building as existing in the year 1976 to the effect that in the year 1976 there was only one floor i.e. ground floor and rooms, one garage and one court-yard. Some construction was made in the year 1976 near the compound wall. He says that being the President of the Nagrik Samiti, he had even objected to the construction being made. He says that in July 1983 he found that the first floor was being constructed with haste and he had informed this fact to Harish Chandra who is the father-in-law of Kala Mehta. In the cross- examination he gives the description of the house situated around. 15. PW.5 is Ashok who is adjoining neighbour of the demised premisees of the school. He has also stated about the construction made in the year 1976 had as also objected to the construction by putting a complaint before the JDA. He says that five rooms, staircase, toilets, bath-room etc. had been constructed with cement and bricks and sheets had been laid on the roof in the year 1983. He had even objected to such a construction by making complaint. 16. PW.6 Sobhagya Chandra who is also living near about the house. He says that he was the President of Tilak Nagar Nagrik Samiti. He had complained about the construction in the year 1976 to the authorities. He further states that in the year 1983 certain construction had been made on the first floor. Even though he does not know Harish Chandra Mehta, but he had been asked to appear as witness by Suresh H. Mathur. He says that he had made a complaint on telephone to the authorities and was told that the JDA Authorities would take action accordingly. 17. Even though he does not know Harish Chandra Mehta, but he had been asked to appear as witness by Suresh H. Mathur. He says that he had made a complaint on telephone to the authorities and was told that the JDA Authorities would take action accordingly. 17. PW.7 is Suresh H. Mathur. He also resident of Tilak Nagar and is a retired member of Board of Revenue. He knows the premises. His house is about 500 yds. from the place in question. He says that he had been the President of Nagrik Samiti in the year 1983. He had seen the construction made on the roof the building of the school in the month of July 1983. He knows Harish Chandra of the last 30 years. He says that the construction work was completed within one month. To the same effect is the statement of Balram PW.8. 18. PW-9 is Harish Chandra Mehta who is father-in-law of the landlady and is her power of attorney. He states that at the time of renting out the building to the appellant, there were three flats in the premises which were rented out to him, one garage and another room was not rented out. He has mentioned about the construction made by the plaintiff in July 1976 which was objected to by him vide Ex. 1/1 and Ex. 2/1 with the postal receipts Ex. 3/1 and 4/1. The reply was received from the appellant vide Ex. 7 and Ex. 8. He has stated that in July 1983, the appellant once again made certain construction i.e. he has added another floor on the already existing three flats on the ground floor and also added one staircase. He had made two toilets on the garage which garage was never rented out to him. According to him five rooms have been added by the appellant, which construction is of bricks, cement and lime. The height of such rooms is 10 ft. and the roof has been made of angle irons with Asbestos sheets (cement). It is clearly stated that the construction had been made, without his permission. He has produced the map Ex. 10 showing position of the earlier construction and the added construction. He says that the construction had been made when he was not in Jaipur. 19. The appellant had appeared as his own witness as DW. 1. It is clearly stated that the construction had been made, without his permission. He has produced the map Ex. 10 showing position of the earlier construction and the added construction. He says that the construction had been made when he was not in Jaipur. 19. The appellant had appeared as his own witness as DW. 1. He stated that he had taken the premises in the name of Central Academy School Society and he is the Secretary of the Society. He states that the premises in question were not fit for running of school and at the time of taking the premises on rent, it was made clear that he would make certain temporary construction. He had completed the construction by 15th July 1976 and started running the school. He was running the school with the classes of Nursery to 8th class i.e. about 11 class rooms and, therefore, the Central Academy School had constructed five rooms on the building and six rooms at the ground floor. He had denied that any construction had been made after 1976. He states that in the year 1983 instead of rent of Rs. 1200/- an amount of Rs. 1800/- was sent to the landlord by cheque, which cheque was returned on the reason that the landlord wanted the rent to be Rs. 3,000/-. He further states that all the witnesses produced by the plaintiff are either their own persons and are enemical to the appellant. He admits that the Central Academy School in a registered institution and keeps the regular accounts; audit is made every year. He says that at the time of taking over the premises on rent there were three flats on the ground floor and that there was no garage but there was store room. He says that the store room was kept by the landlady for herself. But goes on to state that the temporary construction had been made. The walls are of the bricks, lime and Bajri and the roof is laid of cement sheets. According to him he had constructed a staircase of iron and angle iron in the year 1976 and had spent about Rs. 18,000/- to 19,000/- which had been properly audited in the account books of the Academy and has been shown in the balance-sheets. He had maintained all accounts of construction made in the year 1976. According to him he had constructed a staircase of iron and angle iron in the year 1976 and had spent about Rs. 18,000/- to 19,000/- which had been properly audited in the account books of the Academy and has been shown in the balance-sheets. He had maintained all accounts of construction made in the year 1976. He admits that he is author of the document Ex. 8 but states that he had so signed it at the asking of Mr. Mehta. He admits in the cross examination that he is being prosecuted by the JDA for construction and orders have been passed for demolishing and that the matter was pending in the High Court. 20. DW-2 is Bhagat Singh. He says that he had gone to the school in the year 1976 and that he had fixed the tin shades and that he had been going to school for certain repairs. He admits that he had fixed place of working. He does not know whether the rooms constructed by the appellant are Kuchha or Pucca. 21. DW-2 Amar Singh is an employee of the school, who says that he had seen the school and the present premises were there in the year 1976 as well. 22. DW-4 Mahendra Kumar also states that he has seen the school in the year 1976 and the condition of the construction of the school is the same as it was existing in the year 1976. 23. DW-6 is Jyoti Mathur who says that she is working right from 1979 and no construction had been made by the school after 1976, however, she says that the JDA had demolished certain construction in the year 1983. 24. DW-7 is Balram. He deposes that the condition of the school construction is the same as was in the year 1976. He had read certain news items about the demolition being made by the JDA authorities. To same effect is the statement of DW-8 Vijay Kumar. 25. Ex. 9 is the letter of Kala Mehta dated 24.5.1979 where she is stated to have written to the appellant that she is not interested in any further construction on the first floor as proposed by the appellant rather had stated that the appellant should vacate the building at the earliest as per agreement. 26. Ex. 25. Ex. 9 is the letter of Kala Mehta dated 24.5.1979 where she is stated to have written to the appellant that she is not interested in any further construction on the first floor as proposed by the appellant rather had stated that the appellant should vacate the building at the earliest as per agreement. 26. Ex. 8 is a letter of the appellant, written on 12.4.1977 with a promise to vacate the same by the next session. 27. Ex. 7 is a letter written by the appellant on 31.3.1977 where he is said to have stated that he had added two rooms on the South Compound wall and one room on North compound wall towards Johari's house. He stated that he is responsible for this unauthorised and without permission construction and removal by himself or demolishing by the Government will be his own responsibility and he will be responsible for all the damages. 28. Ex. 10, 11 and 12 are the registered sale-deeds dated 5.1.1990 in favour of respondent No. 2 M/s. Upasana Construction by Mrs. Kala Mehta wherein it is incorporated that the premises in question were on rent from May 1976 with the appellant on the conditions mentioned in the rent note dated 1.5.1976 and that a suit is also pending since 1983 in the Court of which the next date as fixed in the Court was 1.2.1990. 29. Ex. 1 is a letter dated 4.3.1977 on behalf of the plaintiff to the appellant, complaining that immediately after letting of the premises in question in the year 1976, the appellant had made certain constructions, which construction was unauthorised. Request was made to remove the unauthorised temporary construction. Ex. 2 is a letter dated 21.7.1976 complaining to the appellant that certain building material lying in the premises had been unauthorisedly used by the appellant, with further complaint that such unauthorised construction shall not be tolerated. 30. It is submitted by the learned counsel for the appellant that the respondent No. 2 had no right to continue the proceedings of eviction on the ground of alterations made on the premises for the reason that after having sold the property in question, the former land-lady does not remain to be the owner of the house. 30. It is submitted by the learned counsel for the appellant that the respondent No. 2 had no right to continue the proceedings of eviction on the ground of alterations made on the premises for the reason that after having sold the property in question, the former land-lady does not remain to be the owner of the house. The transferee landlord after purchase of the house was not entitled to the decree of eviction against the tenant on the ground of alterations made on the premises and for the said proposition relies on the decision in the case of Shantinath S. Ghogade v. Rajmal Uttamchand Gugale, wherein it was held that the definition of 'landlord' is not framed as an exclusive definition so as to include successor-in-interest of a landlord. It was held that in order that a person must fall within the definition of the landlord at a particular point of time, he must be a landlord who must be receiving or entitled to receive rent in respect of any premises. It was held that the plaintiff would be receiving rent on account of latter part of the definition which refers to a landlord in the case of a tenant and sub-tenant is not relevant. It was also held that if the definitions of a 'landlord' and 'tenant' are read properly, it is clear that the breaches which are contemplated by clauses (a) and (b) of Section 13(1) of the Rent Act must be breaches qua tenant of that landlord who claims to exercise his right to recover possession. In other words, the breaches in respect of which the plaintiff makes a grievance and on which a right o recover possession is sought to be founded must be committed by a tenant in the capacity of the tenant of that landlord alone. It was further held that there was nothing in the Rent Act which would indicate that the legislature intended that in cases where a cause of action, which was never taken advantage of by the landlord, could enure for the benefit of the purchaser and the purchaser should be able to base an action for ejectment on the basis of the alleged violation of the provisions of Section 13(1) before the premises were transferred by the original landlord to the purchaser. The above-said Bombay authority cannot be brought to the assistance of the appellant for the reason that in the present appeal the landlady was already pursuing a suit of eviction on the point of alteration made on the premises and the respondent had purchased the premises during the pendency of the suit. 31. In the case of Azra Abdulla (Smt.) v. M/s. Asiatic Oxygen and Acetylene Co. Ltd., 1995 Supp. (4) SCC 398 , it was held by the Supreme Court that eviction suit can be maintained by the landlord on the ground of erection of permanent structure. Under the provisions of the Act, if the tenant has without the consent given in the writing, erected on the premises any permanent structure he was liable to be vacated. On the application filed by the landlord, the trial Court had come to a finding that the structures were of permanent nature; had been constructed after coming into force of the Act, and without the consent of the landlord. The structures were of the nature of a sitting room door closed by a wall leading to the left bedroom, left bedroom window which was facing the dining room was replaced by built-in cupboard, pantry room extended, middle bath-room commode removed, two rooms constructed in open varandah stairs leading to first floor, water tanks constructed. It was held that nature of construction was permanent. The High Court of Karnataka had reversed the finding of the trial Court on the two grounds : (1) that the owner of the building was not the owner at the time of filing of the suit; (2) cause of action had perished after the transfer of the property by previous owner. In Azra Abdulla's case, the property in question had been transferred during the pendency of the proceedings, rejecting the contentions the Court had held that the purchaser can urge all contentions which were open to the landlord in respect of the application for ejectment. 32. The contention of the appellant that the respondent M/s. Upasana Construction could not have continued with the suit is also not tenable for the reason that when the property was purchased the suit was pending and this fact was also mentioned in the sale-deed. As has been held by the Hon'ble Supreme Court in the case of Azra Abdulla (Smt.) v. M/s. Asiatic Oxygen and Acetylene Co. As has been held by the Hon'ble Supreme Court in the case of Azra Abdulla (Smt.) v. M/s. Asiatic Oxygen and Acetylene Co. Ltd., 1995 Supp (4) SCC 398 , such a purchaser of the property is entitled to continue with the suit and acquires all the rights which rights were vested with the original owner. 33. Counsel for the appellant relies on a judgment in the case of Malkiat Singh and another v. Joginder Singh, 1998 SC and FBRC 27 where counsel engaged by the party had reported 'no instructions', but had not intimated this fact to the party, it was held by the Apex Court that the application filed under Order 9 Rule 13 CPC for setting aside exparte decree, the order and the decree was maintainable. Similarly in the case of Sushila Narahari v. Nanda Kumar, 1996 DNJ (SC) 402 where the power of attorney was withdrawn by the advocate without notice to the party concerned, the Apex Court had held that the delay in filing the application was to be condoned and in the circumstances the exparte decree was to be set aside. 34. In the case of Smt. Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394 while interpreting Section 146, CPC, it was held that the section was introduced for the first time in the CPC with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. As a purchaser pendente lite, a person will be bound by the proceedings taken by the party in whose favour the decree is passed in execution of her decree, and justice requires that she should be given an opportunity to protect her rights. It was further held that even if the suit is pending when the transfer in favour of one party is made, it would not affect the result, as no application had been made by her to be brought on record in the original Court during the pendency of the suit. Nor could the application made to the appellate Court be sustained under Order 22, Rule 10, as, the transfer in favour of the party was not made prior to filing of that appeal and not during its pendency. Nor could the application made to the appellate Court be sustained under Order 22, Rule 10, as, the transfer in favour of the party was not made prior to filing of that appeal and not during its pendency. It was held that the application filed by the appellant was falling within Section 146, CPC and the party was entitled to be brought on record. It was further held that it would follow the that whoever is entitled to be a party, but has not been brought on record under Order 22, Rule 10 in a pending suit or preceding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal; there being no prohibition against it in the Code and that accordingly the appellant as an assignee of the party of the mortgaged properties would have been, entitled to prefer an appeal against the judgment. 35. The appellant had also filed a revision petition No. 122/91 against the order passed by the trial Court whereby the application under Order 9, Rule 9, CPC for restoration of case was challenged. The revision petition itself was dismissed on 22.12.1996 i.e. setting aside the order of dismissal was confirmed. The appellant is bound by such order. 36. In view of the above-said position, there is no merit on the submission of the learned counsel for the appellant that subsequent to the purchase of the property during the pendency of the suit the purchaser could not have continued the suit or could have urged the grounds as taken by the original landlord. 37. In the case of Kesar Das v. Harish Chandra Vyas, 1979 (Raj) Raj LW 201 , it 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 of material alterations within the meaning of the Act this will be a finding of law. 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 of material alterations within the meaning of the Act this will be a finding of law. The words used in Section 13(1)(c) of the Act merely refer 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. 38. In the case of Kesar Das (supra) the tenant had raised the height of the side walls of the room along with height of the door. He had changed the slope of the roof from two sides to one side only and cement sheets were placed on the roof. It was held that these constructions cannot be said to be merely ordinary repairs or improvements but amount to material alterations in the suit premises. Relying on the case of Sitaram v. Johrimal, that the mere fact that the constructions can be removed does not alter the situation as almost any construction, permanent or temporary, can be removed. Whether a construction is a permanent or temporary is only a question of the intention of the person making it. 39. In the case of Badri Narain Tak v. M/s. Shyam Narain, AIR 1982 Raj. 287 where the construction of brick wall was made in a shop without permission of the landlord, for converting the shop into two parts, it was held that it amounted to alteration which materially alters premises and the fact was the wall was removed later on, cannot be of any assistance as cause of action arose on making of such construction. 40. In the case of Dukari Saha v. Kumarish Chandra Garai, AIR 1990 Calcutta 143 , a room was constructed to be intended to be used as store room. It was so annexed to the main building by brick and mortar that it could not be demolished without causing damage to the original building. In the circumstances, the structure was clearly a 'permanent' structure within meaning of provisions of the Act. 41. It was so annexed to the main building by brick and mortar that it could not be demolished without causing damage to the original building. In the circumstances, the structure was clearly a 'permanent' structure within meaning of provisions of the Act. 41. A Division Bench of this Court in the case of Smt. Hawa Kanwar v. Hari Narain, D.B. Civil Special Appeal No. 69/86 decided on 15.4.1996 , wherein in the case of eviction on the point of material alteration, it was alleged that the room had been constructed on the already existing premises, it was held that the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 does not define 'material change' and the 'material alteration' means a substantial change in the character, form and the structure of the building without destroying its identity, 'material alteration' always refer to change of structure which may be in the form of a substantial change adding a room on the roof of the showroom definitely makes the premises of a different character. 42. On the point of 'material alteration', the Supreme Court in the case of Sohan Lal v. Ram Prakash, 1987 (Supp) SCC 606 , while considering the scope of Section 13(1)(c) of the UP (Temporary) Control of Rent and Eviction Act, 1947, had upheld the finding of the High Court that the tin shed with pucca pillars and raising of the platform making it permanent amounted to material alteration within the meaning of the Act. 43. In another case Manmohan Das Shah v. Bishun Das, AIR 1967 SC 643 , the Supreme Court again while examining the expression 'or' of Section 13(1)(c) of UP (Temporary) Control of Rent and Eviction Act, has expressed the view that a provision of the statute should always be construed in accordance with the language used therein unless there are very good reasons to take a contrary view. In that case also, the word 'or' in Section 13(1)(d) of the said Act was under consideration. It was held that if the work 'or' were to be construed as meaning 'and' it would mean that the construction should not only be such as materially alters the accommodation, but is also such that it would substantially diminish its value. In that case also, the word 'or' in Section 13(1)(d) of the said Act was under consideration. It was held that if the work 'or' were to be construed as meaning 'and' it would mean that the construction should not only be such as materially alters the accommodation, but is also such that it would substantially diminish its value. Such interpretation is not warranted for the simple reason that there may conceivably be material alterations which do not diminish the value of the accommodation but on the other hand, there may equally conceivably be alterations which are not material alterations but nevertheless would substantially diminish the value of the premises, we find support from the judgment of the Supreme Court from this case. 44. In view of the above-said discussion and the law laid down by various Courts in the present case the construction (change or material change) made in the year 1983 is only involved. The plaintiff had produced herself as a witness. Similarly PW. 9 Harish Chandra, father-in-law, who is general power of attorney has also deposed in regard to construction having been made in the year 1983. There is other oral evidence of as many as 12 witnesses apart from the exchange of letters. The photographs have also been placed on record. The photographer has appeared as witness and states that he had taken the photographs in the year 1983 when even certain labourers were also working at the spot. 45. To rebut the evidence of the plaintiff the defendant had produced himself as witness along with seven other witnesses. 46. The only point involved in the present case is whether the construction was made in the year 1983 without the consent of the landlady or her holder of power of attorney as 1976 construction had already been condoned by the landlady even though the prior construction was also without the consent and had resulted in exchange of notices and counter notices. From the oral as well as documentary evidence and seeing the nature of construction, it goes without saying that as many as seven rooms have been constructed with cement, brick, lime with cement ACC sheets along with construction of toilet, staircase for the purpose of running of classes of students which do amount to permanent construction. 47. Ex. From the oral as well as documentary evidence and seeing the nature of construction, it goes without saying that as many as seven rooms have been constructed with cement, brick, lime with cement ACC sheets along with construction of toilet, staircase for the purpose of running of classes of students which do amount to permanent construction. 47. Ex. 7, the letter of the appellant-tenant is an important document which had been written in 1977 specifically says that the tenant had added two rooms on the South compound wall of 30 ft. wide road on the North compound wall towards Johari's house one room and also converted owner's garage shed into a room on the west side compound wall towards Shri Ram Karan's house ahead of the small door of the owner's reserved room one room with Cement Sheets roof. It said that he is responsible for all those unauthorised and without permission constructions and that he would remove it himself and demolition by the Government will be his sole responsibility and that he would meet all damages and penalties. What is stated in this letter is that he had constructed two rooms on South compound, conversion of one room etc. This was the only construction added in the year 1976 as admitted in letter Ex. 7. Vide Annexure-8, the tenant had reiterated and confirmed the contents of Ex. 7 with the compromise that he would vacate the premises in question by 30.6.1977. 48. Vide Ex. 9 the landlady had made it clear to the tenant that she is no more interested in his tenancy for the reason that he had made certain un- authorised construction in the year 1976, the tenant was asked to vacate the premises. 49. In regard to construction of five rooms and toilets as well as, the staircase, it goes without saying that the constructions have definitely been made in the year 1983 as alleged. Had these constructions been made in the year 1976 as being alleged now by the tenant, in that situation, the details of these five rooms, toilets and staircase would have found a mention in Ex. 7 written by the tenant. Whatever construction has been made in Ex. 7 was the construction made in the year 1976. Any other addition to such construction if found on the spot automatically becomes the construction of the subsequent period. 7 written by the tenant. Whatever construction has been made in Ex. 7 was the construction made in the year 1976. Any other addition to such construction if found on the spot automatically becomes the construction of the subsequent period. In my opinion, the appellant-tenant had no escape from this position coupled with the statement of then plaintiff and her witness and the notices issues from time to time. There is hardly any necessity to refer to the photographs for the reason that the tenant himself admits that there is construction on the roof on already constructed rooms i.e. existence of construction is admitted. The photographs show that the construction is of bricks, cement lime with ACC Sheets. Even otherwise, if the school classes are being held in such rooms, one could well imagine that the school authorities would make permanent structure even for the safety of the students who might be studying in the class rooms. The school could not have put the lives of the students in risk and, therefore, stable and permanent structure could only be made by such tenant. 50. In view of the above-said submission, it goes without saying that the additional construction was made in the year 1983 itself. 51. The above fact is also strengthened from the fact that the respondent being a registered society was keeping the accounts which were being audited year to year. The society had maintained the accounts of construction of the year 1976, but the failure of the society to produce the audit accounts to show that there was no such expenditure ever incurred in the year 1983 for such construction is a circumstance which goes against the tenant in view of the authority Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 Supreme Court 1413 wherein it was held that if the party who is in possession of the best evidence, does not produce that evidence, and withhold it, the Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. 52. 52. Similarly in the case of Marua Dei (Smt.) alias Maku Dei v. Muralidhar Nanda, (1999) 1 SCC 377 it was held that the party who in possession of the documentary evidence, does not produce the same and, therefore, the adverse inference taken in regard to vital aspects such as donations raised for the construction of the temple and other structures was held to be valid and adverse inference in the absence of production of evidence by the party who in ordinary course was in possession of the same. In the present case, the appellant-tenant could have produced the audited account of the year in question of 1983 to show that there were no such constructions ever made involving the expenses and non-production of such evidence could lead to drawing the adverse inference against the appellant. Even otherwise, on the oral as well the documentary evidence specially Ex. 7 wherein the earlier constructions prior to 1983 have been specifically mentioned, the present construction showing additions to earlier construction does lead to the conclusion that the appellant had raised the constructions in 1983 which were permanent in nature and in view of the above said finding as returned against the appellant are not likely to be interfered with. 53. For the reasons and discussions mentioned above and the law laid down, the regular first appeal has no merit. The judgment and decree of the trial Court is confirmed. The appeal is dismissed with cost of Rs. 5,000/-.Appeal dismissed.