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2009 DIGILAW 1904 (RAJ)

Amar Singh v. Sheetal Prasad

2009-09-01

JITENDRA RAY GOYAL

body2009
JUDGMENT Hon'ble GOYAL, J.-This is second appeal filed by the appellant defendant (hereinafter shall be referred as the appellant-tenant) under section 100 of the Code of Civil Procedure (in short CrC) against the judgment and decree dated 15/11/1990 passed by Additional District Judge No.2, Bharatpur in Regular Civil First Appeal No. 7/1987 whereby the appeal filed by the appellant tenant has been dismissed and the judgment and decree of eviction dated o 18/12/1984 passed by Additional Civil Judge, Bharatpur in Civil Suit No.205/1980 in favour of respondent-plaintiff (hereinafter shall be referred as the respondent-landlord) has been affirmed. 2. The respondent-landlord filed a suit for arrears of rent and eviction in September, 1973 and subsequently pleadings were amended and eviction was sought on the ground of reasonable and bonafide necessity, material alteration, diminishing the value of the suit property and default in payment of rent. 3. The appellant-tenant denied all the grounds of eviction and in regard to the allegations of material addition and alteration he specifically pleaded ) that water tank being temporary in nature has been constructed on the public drainage (nali), therefore, it is not material alteration by which no loss has been caused to the respondent-landlord and for which permission was also taken from the respondent-landlord 8-10 years ago. 4. Issues were framed and witnesses were examined on behalf of both the sides. Thereafter, learned Additional Civil Judge, Bharatpur vide judgment dated 1812/1984 decreed the suit for eviction on the ground of material addition and alteration. 5. Appellant-tenant preferred first appeal against the judgment and decree of eviction while the respondent-landlord filed cross objection with regard to other grounds decided against him. 6. Learned Additional District Judge No.2, Bharatpur vide judgment dated 15/11/1990 dismissed the appeal and the cross objection. Hence, this second appeal by the appellant-tenant. 7. This Court while admitting this appeal on 21/2/1991 framed following substantial questions of law :- "Whether construction of a water-tank with water tap for use of the water for drinking purposes on the Chabutra outside the shop in dispute would be material construction within the meaning of Clause (C) of sub-section (1) of Section 13 of the Rajasthan Premises (Control 5 of Rent & Eviction) Act, 19507" 8. Heard learned counsel for the parties and perused the judgments of the courts below and the other material available on the record. 9. Heard learned counsel for the parties and perused the judgments of the courts below and the other material available on the record. 9. Learned counsel for the appellant-tenant has assailed the correctness of the judgment and decree of the courts below. He contended that making o the water tank outside the suit shop on the public drainage was neither material alteration nor it be said that the appellant-tenant had thereby made any construction within the meaning of clause (c) of sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act of 1950). Learned counsel for the appellant-tenant referred to various decisions in support of his contentions. He firstly relied upon the judgment delivered in the case of Om Prakash vs. Amar Singh and another, reported in AIR 1987 S.C.C. 454, wherein it was observed that expression "material alteration" means substantial change in the character, form and the structure of the building without destroying its identity. Learned counsel for the o appellant-tenant next relied upon the judgment delivered in the case of G. Reghunathan vs. K.V. Varghese, reported in 2005(2) WLC (SC) Civil page 481, wherein the tenant bricked up windows in walls, floor lowered and roof tempered with and rolling shutter was fixed for the security of jewelery shop, while considering the provisions of Kerala Buildings (Lease & Rent. Control) Act, 1965 it was held that, that act of tenant does not amount to material or permanent destruction or reduction of value or utility since all improvements can be removed without destroying or reducing value or utility of building materially or permanently. He also placed reliance upon the judgment rendered in the case of Sukh Lal vs. Bhopal Singh & Ors., reported in WLN 1972 Part I-101, wherein it was held that making of a 'Kucha' floor 'pucka' or that of plastering 'Kucha' wall will not be the making of such a construction as would be materially altering the premises. In the case of Rughnath Singh vs. Balabux, reported in RLW 1975 page 397 while considering the provision of Section 13(1) (c) of the Act of 1950 this Court has held that raising of 'pardi' wall on open side as protection from sun and wind does not amount to material alteration in the circumstances. In the case of Rughnath Singh vs. Balabux, reported in RLW 1975 page 397 while considering the provision of Section 13(1) (c) of the Act of 1950 this Court has held that raising of 'pardi' wall on open side as protection from sun and wind does not amount to material alteration in the circumstances. He next relied upon the judgment delivered in the case of Duabhai Lalji Kalidas vs. Ramniklal Somchand Mehta, reported in AIR 1975 Gujarat 213, wherein it was held that construction with bricks and cement of a bhatti (furnace) and a Kundi (water tank) in open space by the tenant which will enable him to earn his livelihood as a washerman are not permanent structures. When they are removed, they will not cause any serious damage to the open land on which they have been constructed. Learned counsel for the appellant-tenant next relied upon the judgment rendered in the case of Pali Ram vs. Hira Lal (19), reported in RLW 1989(1) page 66 in which the tenant putting one wooden 'kokha' on open Chabutara was held to be construction of temporary nature which could be removed without damaging the building. He also relied upon the judgment in Dr. Jai Gopal and others vs. Bodh Mal, reported in IX-1969 All India Rent Control Journal page 717, wherein tenant constructed a new bath room and a new kitchen by using bricks and cement but without foundation covering about 1/3rd portion of the courtyard which were separate from the structure of the house, it was held that tenant had not touched the house which was lets out to him. The additions made out by him appeared to be necessary for the proper and convenient use of the house let out to him being of no foundation and essentially were of temporary character and they could be demolished without causing any damage to the accommodation, therefore such construction could not be said to have materially altered the accommodation. 10. Learned counsel for the appellant-tenant advanced next limb of argument in the light of his application filed for bringing subsequent developments into the notice of this Court and contended that Municipal Council, Bharatpur has demolished the water tank along with Chabutara and tin-shed etc. 10. Learned counsel for the appellant-tenant advanced next limb of argument in the light of his application filed for bringing subsequent developments into the notice of this Court and contended that Municipal Council, Bharatpur has demolished the water tank along with Chabutara and tin-shed etc. without causing any damage to the suit shop from the public drainage (nali) and has constructed footpath thereon and this fact further goes to show that water tank in eastern corner outside the suit shop was of temporary nature and did not materially alter the suit shop. 11. Per contra, while placing reliance upon the judgment in Narayanan Rajendran & Another vs. Lekshmy Sarojini & Others, reported in JT 2009(4) SC 62, learned counsel for the respondent-landlord argued that both the courts below have arrived at concurrent finding of fact that appellant-tenant has materially altered the suit shop, therefore, in second appeal the concurrent finding of fact should not be disturbed. It was then submitted that it has been found proved by both the courts below that appellant-tenant had constructed "pucca" water tank with bricks and cement and thereby materially altered the character of the suit shop and this fact should be judged and determined from the point of view of the landlord and no one else. Reliance has been placed upon the judgment delivered in the case of Gurbachan Singh and another vs. Shivalak Rubber Industries and others, reported in (1996) 2 Supreme Court Cases 626, wherein while considering the provisions of East Punjab Rent Restriction Act, 1949 it has been held that impairment or value and utility must be judged and determined from the point of view of the landlord and no one else. He also placed reliance upon the judgment rendered in the case of Azra Abdulla (Smt) and another vs. M/s. Asiatic Oxygen & Acetylene Co. Ltd., reported in 1995 Supp (4) Supreme Court Cases 398, wherein while considering the provisions of Karnataka Rent Control Act, 1961 it was held that whether or not the erection of the structures was subsequent to the relevant date and whether or not such construction was of a permanent character, is a question of fact. Ltd., reported in 1995 Supp (4) Supreme Court Cases 398, wherein while considering the provisions of Karnataka Rent Control Act, 1961 it was held that whether or not the erection of the structures was subsequent to the relevant date and whether or not such construction was of a permanent character, is a question of fact. Learned counsel for the respondent-landlord also placed reliance upon the judgment in Prabhu Lal vs. Kalu Ram, reported in RLW 1985 page 713, wherein it was held that putting of 'pucca' construction in the form of brick walls on both the sides of varandah tentamounts to construction which materially alters the premises as required by Section 13(1)(c) of the Act of 1950. He also placed reliance upon the judgment in Kesar Das vs. Harish Chandra Vyas, reported in RLW 1979 page 201, wherein it was held that in a suit based on material alteration 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 within the meaning of Section 13(1)(c) of the Act of 1950. 12. I have given my thoughtful considered to the rival submissions in the light of the judgments relied upon by both the sides. 13. Section 13(1)(c) of the Act provides that in case the tenant has without the permission of the landlord made or permitted to be made such , construction as in the opinion of the Court has materially altered the premises or likely to diminish the value thereof, the tenant would be liable to eviction. In view of the substantial question of law framed by this Court it has to be seen as to whether construction of water tank with water tap on the chabutara outside the suit shop would be material construction within the meaning of I Section 13(1)(c) of the Act of 1950? 14. In the instant case, both the courts below have given concurrent finding that appellant-tenant without the permission of the respondent and lord has constructed a water tank with cement and bricks under the tin-shed which is in front of the suit shop and it amounts to material alteration. 14. In the instant case, both the courts below have given concurrent finding that appellant-tenant without the permission of the respondent and lord has constructed a water tank with cement and bricks under the tin-shed which is in front of the suit shop and it amounts to material alteration. So, far findings of the courts below that the appellant-tenant has constructed water tank with cement and bricks in front of the suit shop without the permission of the landlord is concerned, such finding is a finding of fact but the question whether such construction amounts to material alteration' as provided under Section 13(1)(c) of the Act of 1950, is a mixed question of fact and law. Hon'ble the Apex Court in Om Prakash's case (supra) has held that the findings of the court regarding construction would be finding of fact but the question whether the construction materially altered the accommodation is a mixed question of fact and law which should be determined on the application of correct principles. Similar view has also been expressed by, Hon'ble the Apex Court in Gurbachan Singh's case (supra). 15. Now the question remains for determination is whether the alleged construction amounts to material addition/alteration? 16. It is not disputed that water tank has been constructed by the appellant-tenant using bricks and cement on the eastern corner of the tin-shed on the public drainage (nali). It is not the case of the plaintiff that water tank was constructed by the appellant-tenant digging the foundation, therefore, it is difficult to infer that the water tank was of permanent character. It has also been brought to the notice of this Court as subsequent event that the said water tank and tin-shed have been removed by the Municipal, Council, Bharatpur under the road widening programme in the month of October,1997 and footpath thereon has been constructed. This fact has not been denied in reply filed by the respondent-landlord in response to the application filed by the appellant-tenant before this Court. It is settled proposition of law that while determining the question of nature of the construction, the Court must address itself to the nature and character of the construction having regard to the purpose for which the accommodation may have been let-out to the tenant. It is settled proposition of law that while determining the question of nature of the construction, the Court must address itself to the nature and character of the construction having regard to the purpose for which the accommodation may have been let-out to the tenant. Hon'ble the Apex Court in Om Prakash's case (supra) has further held as under : "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 tenant's eviction, it took care to use the word "materially altered the accommodation". The material alteration 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 change in the front and structure of the building. Construction of a chabutra, almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected." 17. In the aforesaid judgment, Hon'ble the Supreme Court had also occasion to consider the expression "material alteration" and observed as under : "It means a substantial change in the character, form and structure of the building without destroying its identity. It means that the nature and character of change or alteration of the building must be of essential and important nature." 18. In para 9 of the said judgment, it has further been observed as under: "The nature of constructions, whether they are permanent 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 a temporary construction is on temporary 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." 19. A permanent construction tends to make changes in the accommodation on a permanent basis, while a temporary construction is on temporary 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." 19. Considering the facts of that case, it was further observed that "the raising of a temporary wall of 6 feet height in a hall in the demised premises, I without digging any foundation in the floor of the hall so as to convert the hall into two portions for convenient use without the consent of the landlord and the extension of a pre-existing tin shed on the open land adjacent to the accommodation by constructing a wall made by bricks and mud and enclosing it by bamboo tatters would not amount to making of any structural change of a substantial character either in the form or structure of the accommodation and as such the construction did not materially alter the accommodation. " 20. As has been discussed here-in-before, in the case on hand the water tank was constructed by the appellant-tenant for the purpose of drinking water on the eastern corner outside the suit shop under the tin-shed on the public' drainage (nali) without foundation and the same was not of permanent character, which could be removed easily without damaging the suit shop and in fact as has been informed, the said water tank along with tin-shed has been removed from the public drainage (nali) by the Municipal Council, Bharatpur under the road widening programme. Therefore, having regard to the above mentioned facts in the light of the authoritative pronouncement of the Hon'ble Apex Court, the said water tank cannot be termed as 'material alteration' or 'substantial change' in the nature or character of the suit shop or has diminished the value of the suit shop by construction of such water tank. 21. In view of the above, I find no difficulty in holding that both the courts below had rendered their findings without application of correct principles of law as underlined in Section 13(1)(c) of the Act of 1950. 22. In the light of my conclusion, the judgments and decrees passed by both the courts below are set aside. The plaintiffs suit for eviction shall stand dismissed. There will be, however, no order as to costs.