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2005 DIGILAW 798 (PNJ)

Sarup Chand Tarsem Chand v. Dhan Devi

2005-07-29

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The tenant is in revision petition aggrieved against the order of ejectment passed by the courts below on the ground that he has materially impaired the value and utility of the building. 2. The landlord has sought ejectment of the tenant from Shop No. 14 situated in Anaj Mandi Sanauri Gate, Patiala, inter alia, on the ground that in terms of agreement dated 1.11.1976, the tenant could lay only a pucca floor or a shed on the portion. shown by letters CDEF, as well as could construct stairs inside the already built room ABEF but no construction could be raised on the open land CDEF by the tenant. The tenant has constructed two pucca rooms LMNO and NOPQ about 5 months ago apart from stair case outside the already constructed room. It has, thus, claimed that by constructing stores and pucca construction without oral or written consent, the tenant has violated the terms of lease and has, thus, materially impaired the value and utility of the demised premises. It was the stand of the tenant that the construction has been made prior to 1.11.1976 and that rooms LMNO and NOPQ exist on plot No. 14 prior to 1.11.1976. It is pointed out that the plot is 95 feet long and exists up to road which adjoins the shop of Mathu Ram Sadhu Ram. 3. In the evidence, the landlord produced AW1 Parshotam Dass. He has deposed that the respondent could make construction on the plot in dispute only up to the length of 40 feet starting from the side of nullah. In cross examination, he has deposed that the land measuring 10 bighas was given on rent to about 28 merchants in the year 1969. All the 28 tenants raised construction within one year of creation of tenancy. Ejectment petitions were filed but disputes were settled. In terms of the compromise, the suits were withdrawn. It is admitted that at the time of fresh tenancy, old construction existed. AW2 is Vidya Sagar, who was appointed as Local Commissioner by the learned Trial Court. Site Plan Ex.A4.has been prepared by him. As per his report two rooms shown by letters LMNO and NOPQ appears to have been constructed 7-8 months back. He has further reported that construction on these rooms is of burnt brick with mud mortar with cement pointing. Site Plan Ex.A4.has been prepared by him. As per his report two rooms shown by letters LMNO and NOPQ appears to have been constructed 7-8 months back. He has further reported that construction on these rooms is of burnt brick with mud mortar with cement pointing. The rooms are having wooden karis placed on R.S joints. Still further, such rooms have rolling shutter and some windows and jali ventilators. The relevant extract from the report reads as under:- "The shop No. 14 is an old construction and so is the stair case. Shop No. 14 from outside and the stairs are plastered. However, the stair case appears to be constructed later on. The room LMNO and NOPQ are of recent construction. They appear to be built only about seven or eight months back. The construction of these rooms is of Burnt Bricks in Mud mortar with cement pointing. The roofs are having wooden KARRIS placed on R.S. joints as shown in the site plan. Room LMNO has one gate having rolling shutter, one window and three cement jail ventilators. Room NOPQ has one gate having rolling shutter, one window and two cement jali ventilators. There is a small about 3 x 3 x 2 water tank placed on Q corner of the room NOPQ. The shop No. 14 has also rolling shutter with two windows and two cement jali ventilators. There is one open water trough built in front of room NOPQ about 4x3x2 high as given in the site plan. The roof tops of the shop and the two rooms are covered with tiles with cement pointing." 4. AW3 Om Parkash has proved rent note Ex.AW3/1 dated 1.11.1976 as the said document was scribed in his presence. As per rent note Ex.AW3/1, the tenant was permitted to raise pucca construction on an area measuring 20 x 40 and to use the balance vacant land in the opening paragraph of the rent note itself. The rent note contains boundaries in respect of the tenanted premises but contains no measurement. Clause 2 of the rent note Ex.AW3/1 contemplates that the tenant has constructed one storey building at his costs but he is not permitted to raise second floor on the said building without permission of the landlord, but he was permitted to make pucca construction on the first floor. Clause 2 of the rent note Ex.AW3/1 contemplates that the tenant has constructed one storey building at his costs but he is not permitted to raise second floor on the said building without permission of the landlord, but he was permitted to make pucca construction on the first floor. Clause 3 of the rent note contemplates that the tenant is permitted to use the land till the street but will not be permitted to raise any construction. He has been permitted to raise shed adjoining the building. Still further, he can get flooring done. 5. On the other hand, the tenant while appearing as his own witness as RWl has stated that he has raised construction of a room and stairs. Later on, in the year 1970, two further rooms were constructed and thereafter, no new construction has been raised. The tenant also examined RW3 Sardar Bakhtawar Singh Sidhu to report about the nature of construction. He has given his report Ex.RW3/1. 6. Both the courts below, on the basis of evidence led by the parties, have passed an order of ejectment on the ground that the tenant has violated the terms of the tenancy and has raised construction by adding two rooms and a stair case on the rented land which he was not authorised to do so. Still further it has been found that since the very nature of the property has been changed, therefore, the tenant is liable to be evicted in terms of Section 13 of the East Punjab Urban Rent Restriction Act, 1949, as the question of impairing the value and utility has to be examined from the point of view of the landlord and not from the point view of the tenant. 7. Before this Court, learned counsel for the petitioner has vehemently argued that the findings recorded by the courts below are based upon total misreading of evidence as well as the findings are not supported by evidence on record. 8. It is pointed out that in rent note Ex.AW3/1, the tenant has been permitted to raise pucca construction to the extent of 20 x 40 i.e. 800 sq. feet in the opening paragraph of the rent note itself. The construction raised is 680 sq. ft. which is less than 800 sq. ft. permitted in the rent note. 8. It is pointed out that in rent note Ex.AW3/1, the tenant has been permitted to raise pucca construction to the extent of 20 x 40 i.e. 800 sq. feet in the opening paragraph of the rent note itself. The construction raised is 680 sq. ft. which is less than 800 sq. ft. permitted in the rent note. It is further pointed out that as per the report of the Local Commissioner, appointed by the Court and examined by the landlord, the construction of these rooms is of burnt bricks in mud mortar and with roof having wooden karis. There is no evidence that such construction is of such an extent and nature which could be termed as permanent construction although in the rent note itself the tenant was permitted to raise pucca construction over land measuring 20x40. Still further, it is argued that as per Clause 3 of the rent note, the tenant was permitted to raise sheds adjoining the existing building. It is, thus, argued that eviction order passed on the basis of construction of 2 rooms LMNO and NOPQ cannot be said to be in violation of terms of the tenancy. In any case, the constructions of such a nature could be removed and the rented land restored to its original position at nominal costs. Therefore, it cannot be said that the tenant has committed such acts which has material impaired the value and utility of the building. 9. Reliance is placed upon the judgments reported as Atthar Mal v. Satish Kumar Aggarwal, (2000-1)124 P.L.R. 587; Waryam Singh v. Baldev Singh, and Smt. Samitri Devi v. Karam Singh, (1997-1)115 P.L.R.192. 10. Learned counsel for the respondents has vehemently argued that the line appearing in the opening paragraph of rent note Ex.AW3/1 is out of context and does not make a coherent reading and therefore, such line cannot be taken into consideration. It is submitted that in Clause 3 of the rent note, there was a specific prohibition to the tenant not to raise construction but was permitted to raise shed alone. It is pointed out that the construction raised is not in the nature of shed but two pucca rooms having rolling shutters, windows and ventilators and thus, the tenant has been rightly ordered to be evicted for impairing the value and utility of the building. 11. It is pointed out that the construction raised is not in the nature of shed but two pucca rooms having rolling shutters, windows and ventilators and thus, the tenant has been rightly ordered to be evicted for impairing the value and utility of the building. 11. However, I am unable to agree with the argument raised by the learned counsel for the respondents. Rent note Ex. A W3/1 has been produced by the landlord. It is not his case either in the pleadings or in evidence that the line permitting pucca construction over the land measuring 20 x 40 has been added subsequently or that there is some interpolation in the rent note. Once the landlord has permitted raising of construction to the extent of 20 x 40, the tenant was well within his rights to raise construction. Although the construction raised is not restricted to 40 but extends to 53 but the total area is less than the area permitted to be constructed by the landlord. It is not the case of the landlord that by such construction, he has suffered any other loss, injury or damage in respect of the tenanted premises or to his other property. Thus, from a reading of the rent note, it cannot be said that the raising of construction was an unauthorised act on the part of the tenant. 12. Still further, in Clause 3 of the rent note the tenant has been permitted to raise construction of sheds adjoining the existing building. The rooms have been constructed next to stair case, thus, it cannot be said that the tenant has violated the said clause as well. Once the landlord has permitted raising of a pucca construction or of a shed, mere fact that such construction is not raised strictly in accordance with the rent note will not render the tenant liable for eviction for materially impairing the value and utility of the building without proving anything over and above the factum of construction. The landlord is to establish not only the violation of terms of rent note but that the acts of the tenant being such causing material impairment of the value and utility of the building. 13. The argument that the rent note does not contain description of construction raised by the tenant prior to the execution of the rent note is. immaterial. 13. The argument that the rent note does not contain description of construction raised by the tenant prior to the execution of the rent note is. immaterial. Even if such construction has been raised after the year 1976, the landlord can succeed only if he is able to prove that such construction has impaired the value and utility of the building. Keeping in view the nature and extent of the construction, it cannot be said that such construction has materially impaired the value and utility of the building when such construction is in mud mortar with wooden roof. 14. Consequently, I am of the opinion that the order of ejectment passed by the courts below suffers from material illegality and irregularity which is not sustainable in law. Thus, the order of ejectment passed by the courts below is set aside. 15. Consequently, the revision petition is allowed with no order as to costs.