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2006 DIGILAW 312 (RAJ)

Vinod Sabu v. Mohanlal

2006-01-31

SATYA PRAKASH PATHAK

body2006
Judgment S.P. Pathak, J.-These two appeals have arisen out of Judgment s and decrees dated 04.06.2005 passed by learned Addl. District Judge No.1, Jodhpur passed in Civil Appeal Decree Nos. 79/2004 & 78/2004, which were filed against the Judgment s and decrees dated 011.2004 passed by learned Addl. Civil Judge (Senior Division) No.2, Jodhpur in Civil Original Suit Nos. 65/2000 and 175/2000 filed by present respondent-plaintiff . 2. Since both the matters relate to one and the same premises in question and the appellants in both the appeals, who were defendants in the suits, are claiming the same relief , these appeals filed by appellant-defendants are being disposed of by this common order. 3. Briefly stated, the facts are that the respondent-plaintiff filed two suits for eviction and permanent injunction against defendants Vinod Sabu and Gordhan Sabu separately, who are the son and father respectively, stating inter-alia that both the defendants were his tenants in two rented shops No. 3 & 4 in his property named ‘Ram-Milan Gurukripa’ situated at 817-A Chopasani Road, Jodhpur, which comprises so many shops and residential flats. It was averred that the business of both of the defendant was different and in between these two shops earlier there was a pucca stonewall upto the ceiling, however the defendants collusively removed the wall on 06.08.1995 and fixed a beam (Girder) damaging the walls which were though got repaired, exposed the upper portion of the shops to a great risk. It was said that the defendants did so without the permission of the plaintiff and this amounted to material alternation in the property, which also caused damage to the upper part of the building and led to a great loss and diminishing in the value of the property. It was further averred in the suits that outside shop No. 3 a ditch of the size of about 3-4 feet deep has been dug in which rainy water collects and damages to the foundation of the property and also gives invitation to fall of cattle etc., and is causing nuisance. Prayer was made for eviction of defendants and restraining them from making any change or alternation in the suit premises by issuing permanent injunction against them. 4. Prayer was made for eviction of defendants and restraining them from making any change or alternation in the suit premises by issuing permanent injunction against them. 4. The defendants, who are present appellants, herein, in these two appeals filed their written statements and stated that they had not taken the two shops on rent separately but only one shop was taken on rent. It was further stated that the disputed shops in question is one since the time of inception of the tenancy but as the same include shops No. 3 & 4 and there are two shutters in the shop, each one was taken in the name of each of the defendants showing separate tenancies so that it may facilitate them in business and tax matters. The defendants denied having removed the wall and placing a beam in between the two shops and stated that the suites were filed falsely in order to harass them. They claimed compensatory cost of Rs. 5,000/-from the plaintiff . 5. The learned trial Court after pleadings of the parties, framed issues in relation to material alteration, nuisance and reliefs etc. 6. In support of its case, plaintiff in oral evidence examined himself and produced PW 2 Prakash Chandra and also tendered 12 photographs in documentary evidence in support of his plaint. The defendants examined themselves and also got examined DW 2 Prakash Lodha and DW 3 Shantiraj Singhvi in support of their respective written statements. 7. The learned trial heard the parties and on the basis of material collected on record decided the issues framed and ultimately came to the conclusion that the defendants have made material alteration in the suit property and created nuisance, as such the plaintiff is entitled to get the vacant possession of the shops in question and directed the defendants to handover the shops in question vacant to the plaintiff within a period of two months. It was also directed that the defendants shall not make any change or alternation in the suit premises and ordered for preparing decrees accordingly. 8. Aggrieved, the defendants approached the first appellate Court by filing two separate appeals, which have been decided by Judgment s dated 04.06.2005 passed by the Court of learned Addl. District and Sessions Judge No. 3, Jodhpur. 8. Aggrieved, the defendants approached the first appellate Court by filing two separate appeals, which have been decided by Judgment s dated 04.06.2005 passed by the Court of learned Addl. District and Sessions Judge No. 3, Jodhpur. The learned first appellate Court for deciding the appeals framed issues to the effect that whether the defendants have made material alteration in the suit property and have created nuisance. The first appellate Court has decided the issue of material alteration against the defendants but decided the issue relating to nuisance against the plaintiff and came to the conclusion that as there was material alteration in the disputed premises the plaintiff is entitled to a decree for eviction against defendants. The Court while allowing the appeals partly to that extent made the cost easy. 9. Dissatisfied, the defendants have approached this Court by filing the present second appeals under Section 100 CPC challenging the Judgment s and decrees of the two Courts below. 10. It has been contended by the learned Counsel for the appellants that they never removed the pucca wall as alleged by the plaintiff . It has further been contended that there is no evidence available on record to show that the defendant-appellantswereresponsibleforremovingthepuccastonewall which wasuptotheceilingand thereafter fixing a beam which damaged and diminished the value of the property. It has also been contended that the finding w tomaterial alteration is a mixed finding of fact and lawand both theCourtsbelow haveerred in coming tothe conclusion that thedefendantswereresponsiblefor materialalteration in thesuit shops. Thelearned Counselsubmitted further that thereweretwotenanciesin relation to two shops. According to the learned Counsel, in fact for conveniencetwo rent deedswereexecuted butwhen both theshopsweretaken on renttherewasnowallin between, therefore, in theabsence of therebeinganywall at thesite thefindingrecordedbytheCourts below of removingthe wallisof no consequence.It hasalsobeen submitted that theimportant witnessessuch asChowkidar of theplaintiff etc., havingnotbeen produced in evidence, therefore,thepleasraised in thesuit regardingmaterialalterationwasnot required tobeproved. In support of his submissions, the learned Counsel placed reliance on Sukhlal vs. Bhopal Singh, 1972 RLW 233 and Deep Chand vs. Abdul Hussain & Ors., 1986 (2) WLN 69. .11. In support of his submissions, the learned Counsel placed reliance on Sukhlal vs. Bhopal Singh, 1972 RLW 233 and Deep Chand vs. Abdul Hussain & Ors., 1986 (2) WLN 69. .11. On the other hand, it has been contended that the learned trial Court on the basis of pleadings of parties framed issues regarding material alteration and nuisance and the suit was decreed and on appeals being preferred, the learned appellate Court has confirmed the finding of material alteration, therefore, on the basis of evidence adduced by the plaintiff it has been established that removing the pucca wall and fixing the girder at the site was a material alteration, and these findings being concurrent in nature require no interference by this Court. According to the learned Counsel, the present appeal is without any merit and there is no substantial question of law involved for entertaining the same. In support of his submissions, the learned Counsel has placed reliance on the decisions rendered by this Court in Bhagirath Mal & Anr. vs. Smt. Yuvrani Sahiba through Lrs., 2004 (2) DNJ (Raj.) 967 and Sampat Raj vs. Bhagwantilal, 1976 RCJ 259 (Raj). 12. I have considered the submissions made before me. 13. In the present case, following points require consideration: .(1) Whether in the present matter, material alteration has been made as contemplated under Section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and, therefore, the Courts below have correctly recorded the finding in regard to material alteration and the suit was liable to be decreed? .(2) Whether any substantial question of law is involved in the present matter, which requires consideration by this Court? 14. It is not in dispute that the defendants had taken the shops on rent in separate names and the tenancy existed separate. It is also not in dispute that both the shops have separate shutters and both the defendants are in close relation as they are father and son. For deciding the present appeals what has to be decided is as to whether the defendants have altered the suit premises materially and caused nuisance? 15. It is also not in dispute that both the shops have separate shutters and both the defendants are in close relation as they are father and son. For deciding the present appeals what has to be decided is as to whether the defendants have altered the suit premises materially and caused nuisance? 15. The first appellate Court has found that the plaintiff Mohanlal in his statements has stated that the shops in questions were given separately to the defendants and there was a pucca wall of stones starting from foundation of the width of one and a quarter feet upto the ceiling and this very wall was the base for the two upper stories of the building. He stated that the defendants in connivance removed the wall on 06.08.1995 and fixed a heavy beam there by breaking north and southern side of the wall from the upper side, which amounted to material alteration and has caused a tremendous loss to the property and has also weakened the upper storey and it has caused an imminent danger. The plaintiff also stated that for making changes the defendants did not take any oral or written permission. PW 2 Prakash Chandra has supported the plaintiff and has stated that there existed a pucca stonewall of one and a quarter feet in between shops No. 3 & 4 running from foundation and above that there is two-storied house. He also stated that the defendants in connivance with each other removed the said foundation wall on 06.08.1995 and fixed an iron girder in the northern and southern wall. He stated that he has taken the photographs Exhibit-1 to Exhibit-12, the negatives of which have been exhibited as Exhibit-13 to Exhibit-21. He stated that when the photographs were taken the plaintiff had fixed the girder. The trial Court has also gone through the written statements and found that the defendants denied to have removed the wall in question however accepted the photographs and ultimately came to the conclusion that from the perusal of photograph Exhibit-1 there appears girder and it transpires that on one side of it there is white paint and false-ceiling and on the other side on ceiling and wall there appears paint of yellow colour. The same position also comes out from Exhibit-3 and the Exhibit-9 shows that between the two walls there has been recent plaster by cement whereas Exhibit-10 makes it clear that the girder was fixed after making hole for it in the walls. The Court did not accept the plea of the defendants that since inception both the shops were one and came to the conclusion that by the evidence available on record it very well transpires that two shops have been turned into one shop by removing the wall and affixing girder. 16. Now, I propose to examine the points framed by me. Point No.1: 17. A perusal of the evidence clearly indicates that the plaintiff-respondent was able to prove by oral as well as documentary evidence that a pucca constructed wall was removed and two shops were made one, therefore, as regards the fact of material alteration and finding recorded by the trial Court and confirmed by the appellate Court is concerned, that stands proved factually because of removing the wall and fixing girder and changing the shape and structure of the premises which were initially given on rent certaining takes the present case within the four corners of Section 13(1)(c) of the Act. Section 13(1)(c) reads as under:- “Section 13. Eviction of tenants-(1) Notwithstanding anything contained in any law or contract no Court shall pass any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant, so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied- .(a) x x x .(b) x x x .(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 the Court, has materially altered the premises or is likely to diminish the value, therefore, or x x x 18. The authority cited by learned Counsel for the appellant Sukhlal vs. Bhopal Singh (Supra) was a case where Kuccha floor was made pucca and the wall was plastered which was already in existence, therefore, this Court came to the conclusion that the construction so made was not covered within the meaning of Section 13(1)(c). Here, the case is different one. The authority cited by learned Counsel for the appellant Sukhlal vs. Bhopal Singh (Supra) was a case where Kuccha floor was made pucca and the wall was plastered which was already in existence, therefore, this Court came to the conclusion that the construction so made was not covered within the meaning of Section 13(1)(c). Here, the case is different one. In the present case, pucca wall has been removed and two shops have been made one and that too without the permission of the landlord and it has certainly changed the nature of the premises initially given on rent. Both the defendant-appellants being father and son, it appears, decided to remove the wall and they in collusion with each other removed the same and when the fact came to the notice of the plaintiff-respondent, he filed the suit. If the construction/alteration made in the facts and circumstances of a case is suggestive of its being permanent in nature and the Courts after considering the evidence comes to the conclusion that the construction so made was of the nature which materially alters the premises or is likely to diminish the value, then a decree to evict the rented premises is required to be passed as per the requirement of Section 13(1)(c) of the Act. 19. In Deep Chand vs. Abdul Haussain & Ors. (Supra), this Court while considering the question of material alteration, in the facts and circumstances of the case, came to the conclusion that the defendant-appellant did not make any fresh construction and removing of a Tati which was of bricks for opening a gate does not amount to make construction which material affects the premises because the gate was already there in existence prior before the premises were given on rent to the defendant but was closed by a Pardi wall (Tati) and the defendant had removed only that Tati wall so as to restore the earlier gate. This authority is also of no help to the appellants for the simple reason that the facts are totally different. It appears from the facts of this case that earlier there had been a gate in the premises and that construction was removed which was not of permanent nature. 20. In the case of Bhagirath Mal & Anr. This authority is also of no help to the appellants for the simple reason that the facts are totally different. It appears from the facts of this case that earlier there had been a gate in the premises and that construction was removed which was not of permanent nature. 20. In the case of Bhagirath Mal & Anr. vs. Smt. Yuvraj Sahiba (Supra), exactly in the similar circumstances where the defendant opened a new door of 6 x 3 in the southern wall by breaking the wall and fixed two exhaust fans making substantial change in the front and structure of the premises, this Court after considering the facts and circumstances came to the conclusion that when constructions made substantially changes the structure of the premises, then it will be a case of material alteration. 21. In Sampat Raj vs. Bhagwantilal (Supra), this Court while considering the question of material alteration, in the facts and circumstances of the case where the tenant permanently closed the western window with bricks without permission of the plaintiff landlord, considered it to be a case where it had diminished the value of the property. It has further been observed in this case that by closing the western window permanently, the tenant permanently altered the structure of the shop and the suit for eviction was rightly decreed on the ground of material alteration within the meaning of Section 13(1) (c). 22. In view of above discussion, I am of the opinion that the question whether any alteration has been done in premises is a question of facts and as to whether such alteration made was of material nature is a question of law and facts depending upon the nature of the premises and facts and circumstances of that case within the meaning of Section 13(1)(c) of the Act. In a case where the Court comes to the conclusion that there has been change in the structural nature and not merely of decorative nature, then in those matters provisions of Section 13(1)(c) of the Act will be attracted. In the instant case, as discussed above, that material alterations were made without permission of the landlord and the Courts below have reached to the conclusion that alterations so made were of material nature, therefore, the trial Court decreed the suit for eviction and the first appellate Court affirmed it. 23. In the instant case, as discussed above, that material alterations were made without permission of the landlord and the Courts below have reached to the conclusion that alterations so made were of material nature, therefore, the trial Court decreed the suit for eviction and the first appellate Court affirmed it. 23. After examining the entire material available on record carefully, I do not find any illegality or irregularity in the findings recorded by the trial Court in relation to material alteration which has been affirmed by the learned appellate Court. In view of above discussion, the answer to point No. 1 is that the alteration made in the rented premises by the defendants without prior permission by way of removing pucca wall of 12 x 9 and thereafter by fixing girder amounts to change in the nature of premises and is material alteration as per the provisions contained in Section 13(1)(c) of the Act and the suit was liable to be decreed. It is immaterial whether it has actually diminished the value of the property because again it is a question of facts. Point No. 2: In view of above discussions, I no not find any substantial question of law involved in the present appeals and the appeals being devoid of merit are liable to be dismissed. My answer to point No. 2 is that the Judgment s and decrees passed by the Courts below suffer from no infirmity. In the result, both the appeals stand dismissed at the admission stage.