Hon'ble Dr. KOTHARI, J.—The plaintiff-landlord, Shri Jain Swetambar Terah Panthi Samaj, Merta, has preferred this first appeal under Section 96 CPC being aggrieved by the rejection of its suit for eviction and recovery of arrears of rent and damages by the learned District Judge, Merta vide judgment and decree dated 9/12/1998 dismissing the civil suit No. 14/93 (Shri Jain Swetambar Terah Panthi Samaj, Merta through its Trustees Ugam Raj and others vs. Vijay Singh s/o Heeralal and Smt. Phooli Devi widow of Heeralal). 2. The plaintiff set up the case in the plaint that on 21/6/1977 they purchased the suit premises from Shri Jain Swetambar Mandir Ji (Moorti) Sangh, Merta situated at Lodhon-ki-pol, Merta, Ward No.9 and in the said purchased property, defendant no.1, Vijay Singh and his mother Phooli Devi – defendant no.1 were already living as tenants in a portion of the said property. The eviction suit was filed on the grounds of bonafide necessity, material alteration in the suit property and nuisance. As many as 09 issues were framed by the learned trial court covering these grounds of eviction and issue no.5 relating to damages, which were claimed by the plaintiff to the extent of Rs.50,000/- on account of opening of a sewerage pipe (`Nali') on the southern side of the suit property contrary to the terms of the registered sale deed dated 21/6/1977, since on the front of the southern side was a Jain Temple, the seller of the property to the plaintiff. 3. Learned trial court by the impugned judgment, after discussing the oral and documentary evidence, has decided all the issues against the plaintiff and dismissed the suit in its entirety and being aggrieved by the same the plaintiff has preferred this first appeal before this Court. 4. 3. Learned trial court by the impugned judgment, after discussing the oral and documentary evidence, has decided all the issues against the plaintiff and dismissed the suit in its entirety and being aggrieved by the same the plaintiff has preferred this first appeal before this Court. 4. Learned counsel for the appellant, Shri K.C.Samdariya, taking the Court through the evidence namely; statements of various plaintiff's witnesses and documentary evidence including the sale deed dated 21/6/1977 made the following submissions:- (i) that the learned trial court has erred in deciding issue no.1 about reasonable and bonafide necessity of the landlord since even after filing of the previous suit on 30.7.1979 for eviction on the ground of bonafide necessity and its rejection on 28.8.1982 and first appeal having been dismissed on 5.12.1985, the present suit was filed by the plaintiff in the year 1993 as the bonafide need for increased accommodation again arose to the plaintiff for expanding the 'Uppasara' for which purpose the property in question was purchased on 21.6.1977 by the registered sale deed for accommodating Jain Sadhus and followers of the religion, who frequently visit the said place and, therefore, notwithstanding earlier rejection of the suit, the same could not operate as res judicata and the suit deserves to be decreed on the said ground of bonafide need. (ii) that during the course of earlier suit, in the statement of defendant no.2 – Smt. Phooli Devi recorded by the learned trial court on 14/1/1982, the said Smt. Phooli Devi admitted before the court that the suit premises comprised only of one `Chowk' and one small `Saal' (partly covered chowk), whereas, at the time of filing of present suit in the year 1993, the defendant tenants have constructed one kitchen, bathroom and latrine in the suit house, which amounted to material alteration of the suit premises without consent of the landlord and, therefore, the eviction decree was liable to be made against the defendant tenants. He also submitted that even the Municipal Council had given notice to the defendant-tenants for the said illegal constructions made in the year 1993 and he also drew the attention of the Court towards Ex.6, Notice No. 874 dated 23/8/93 of the Municipal Council, Merta and its reply by the plaintiff at Ex.5 dated 30/8/1993, since the defendant tenant – Phooli Devi refused to take the said notice of the Municipal Council vide process server report dated 28/8/1993 on the back side of the notice Ex.6. (iii) Mr. K.C.Samdariya also urged that by construction of Latrine and opening of sewerage pipe on the southern side of the suit premises, which faced the front side of the Jain Temple of Moorti Poojak Sangh from whom the plaintiff - Terah Panthi Samaj had purchased the suit property vide registered sale deed dated 21/6/1977 (Ex.2), the condition of the said sale deed was violated for which the Moorti Poojak Sangh raised the dispute and even claimed damages from the plaintiff landlord and that is why for the said nuisance caused by such construction and opening of the sewerage pipe on the southern side of suit premises in front of the Jain Temple on the side opposite to the road, the plaintiff had claimed the aforesaid damages to the extent of Rs.50,000/- and, therefore, on account of nuisance also the decree of eviction deserved to be granted by the court below. He, therefore, submitted that the learned trial court has erred in rejecting the suit in its entirety and deciding all the issues against the plaintiff even though overwhelming oral as well as documentary evidence was produced before the learned trial court. 5. On the other hand, Mr. Vishwajeet Joshi , learned counsel appearing for the defendant tenants strongly supported the impugned judgment of the court below dated 9/12/1998 and urged that the suit premises in question was not bonafide needed by the plaintiff and the learned court below was justified in rejecting their claim of eviction on the aforesaid grounds and since the prior suit on similar grounds had already been rejected, still the learned court below decided the issue no. 7 connected with issue no. 7 connected with issue no. 1 relating to bonafide need and held that if subsequently fresh bonafide need arises to the landlord, he could file a suit again and to this extent principle of res judicata would not apply but since the plaintiff failed to establish any such fresh bonafide need, the learned court below was justified in deciding the issue nos. 1 and 7 against the plaintiff. 6. He also urged that there was no material alteration in the suit premises and the kitchen, bathroom and latrine already existed in the suit premises and no nuisance was caused by constructing new latrine and opening its sewerage pipe towards the southern side as claimed by the plaintiff and consequently these issues were also rightly decided against the plaintiff by the learned court below. 7. To decide the rival contentions and adjudge the findings of the learned court below, this being the regular first appeal under Section 96 CPC, the evidence brought before the learned court below is required to be traversed by this Court. 8. P.W.1 – Abdul Vakeel in his statement recorded on 9/3/1995 has stated that he had prepared the map of the building of Jain Terah Panthi Samaj by visiting the site in question in the year 1993 and at point 7 - kitchen, at point no.8 - bathroom and at point no.9 - latrine has been constructed and latrine and bathroom at point no.4 had been constructed in chowk and sewerage of the said latrine is marked at `Z’ which is at the front of the Jain Temple. He further stated that the kitchen at point no.7, bathroom at point no. 8 and latrine at point no. 9 appear to be new construction. The said construction is within the tenanted portion of the house purchased by plaintiffs. 9. P.W.2 – Ganpat Lal s/o Kishore Das in his statement recorded on 10/11/1995 stated before the court that he is working as Sanitary Inspector in the Municipal Council since 1983-84 and about two years ago in the year 1993 the defendant Phooli Devi and his son had raised new construction on the southern side of the suit premises and opposite to the disputed suit premises is the Jain Temple. He stated that said Phooli Devi had constructed latrine on the southern side & the sewerage pipe was also on the southern side of the suit premises. He stated that said Phooli Devi had constructed latrine on the southern side & the sewerage pipe was also on the southern side of the suit premises. He also stated that notice was issued to Vijay Singh and Phooli Devi and also to the trustees of the plaintiff Trust, Shri Ugam Raj for the offending construction. In his cross examination, he denied that the said construction of latrine, bathroom and kitchen was old and to him it appeared to be a new construction of about two years ago. 10. P.W.3 – Ugam Raj, the trustee of the plaintiff Trust, in his detailed statement recorded on 15/2/1996 stated that at the time of purchase of the the suit premises under the registered sale deed, Ex.2, the defendants were already tenants in the portion of purchased premises and he had instituted the present suit in 1993 on behalf of Terah Panthi Samaj and in the previous suit for eviction also the statements of Phooli Devi were recorded. He stated that the sewerage pipe of latrine constructed by Phooli Devi was on the southern side, which was in front of the Jain Shwetambar Mandir (Moorti) Sangh and in the registered sale deed, Ex.2, there was a condition that the plaintiff or any other occupant of the suit property would not construct any latrine on the southern side causing nuisance to the visitors of Jain Temple. At the time of raising of the construction of kitchen, bathroom and latrine by the defendants, the said witness tried to stop the defendants but they did not stop the same and forcibly raised the said construction. He also reiterated that the plaintiff needed the suit premises for `Uppasara’ in which various Tera Panthi Sadhus could have proper place to stay and in the absence of proper accommodation they cannot come to Merta City and the suit premises is the only accommodation available for the Terah Panthi Samaj and hence they want the bigger accommodation by eviction of the defendant tenants for such religious purposes. He also submitted that defendant’s two sons have separate residential houses in Nava City and also at Baldevram Mirdha Nagar and they also have a plot of land in Merta City itself which was allotted by Municipal Council, Merta. He also submitted that defendant’s two sons have separate residential houses in Nava City and also at Baldevram Mirdha Nagar and they also have a plot of land in Merta City itself which was allotted by Municipal Council, Merta. He also stated that upon service of notice by the Municipal Council, he replied the same and stated therein that defendants have raised illegal and unauthorised construction of kitchen, bathroom and latrine in the suit premises. He also stated that Acharya Tulsi had visited Merta City and stayed in the said premises for two days. 11. P.W.4- Shanker Lal also supported the plaintiff’s version about registered sale deed executed in favour of plaintiff. P.W.5 – Budhraj state before the court that in Merta there are three branches of Jain communities; Sthanakvasi, Terah Panthi and Moorti Pujak and they have different properties in Merta City where they provide place for Jain Sadhus to stay. However, for Terah Panthi there is no other property for such Sadhus. P.W.6 – Mangilal Tater also supported the version of P.W.3 – Ugam Raj as far as impugned construction of latrine, bathroom and kitchen by the defendant tenants is concerned. 12. On behalf of defendants, D.W.1 – Phooli Devi herself appeared before the court and in her statement recorded on 8/8/1997 she has flatly refused any such constructions of Latrine, bathroom and kitchen nor having put out any sewerage pipe on the southern side as claimed by the plaintiff. She stated that kitchen work was done by her in open chowk. She also stated that there were many `Uppasaras’ in Merta City for Jain Sadhus. In her cross examination, she admitted that in Merta, Moorti Pujak Samaj is different from Terah Panthi and `Baies (22) Sampraday and their Sadhus, Gurus are different and there was only one `Uppasara, namely; the disputed premises, for the Terah Panthi Jain Sadhus. She also admitted that her son is serving in Nava City for last 2-4 years. 13. D.W.2 – Dinesh Vyas in his statement recorded on 13/11/1997 stated before the learned trial court that the southern side `Nali' was constructed by the Municipal Council itself and he is seeing the constructed Latrine & bathroom in the suit premises since his childhood. He was 32 years of age on the date of his statement 13/11/1997. 14. 13. D.W.2 – Dinesh Vyas in his statement recorded on 13/11/1997 stated before the learned trial court that the southern side `Nali' was constructed by the Municipal Council itself and he is seeing the constructed Latrine & bathroom in the suit premises since his childhood. He was 32 years of age on the date of his statement 13/11/1997. 14. D.W.3 – Lal Chand stated that he is known to Vijay Singh and has been going to his house for last 15 years and he has seen the Latrine and Bathroom constructed since beginning. 15. Similarly, D.W.4 – Baldev Singh reiterated what other two witnesses have said aforesaid. 16. D.W.5 – Nathu Singh, brother of Vijay Singh, stated that they have not constructed any latrine, bathroom or kitchen in the suit premises and he does the cycle repair work in Nava City. 17. Documentary evidence produced before the court Ex.2 is the registered sale deed dated 23/6/1977, which was relied by the plaintiff for the condition of not raising any construction of latrine on the southern side at internal page 7 of the sale deed. Ex.6 – Notice dated 23/8/1993 was issued by the Municipal Council, Merta City calling upon the defendant Phooli Devi to show cause as to why the construction of latrine of which sewerage pipe was opened out on the southern side of the suit premises without permission of the Municipal Council be not demolished and action under Section 170 of the Rajasthan Municipality Act, 1959 be not taken. The process server, Pukhraj Jawa, in his report dated 28/8/1993 stated that said Phooli Devi refused to take the notice despite repeated efforts and, therefore, notice was served by affixation on the building of Jain Swetamber Terah Panthi Samaj. Accordingly, vide Ex.5 – reply to the said notice filed by P.W.3, Ugam Raj & it was brought to the notice of the Municipal Council that impugned construction was raised by defendant Phooli Devi and her son Vijay Singh forcibly & without the consent of plaintiff and appropriate action may be taken against them. 18. On the perusal of the aforesaid evidence and appreciation thereof, this court is of the opinion that the learned trial court below has grossly erred & perversely deciding all the issued against the plaintiff and rejecting the eviction suit. 18. On the perusal of the aforesaid evidence and appreciation thereof, this court is of the opinion that the learned trial court below has grossly erred & perversely deciding all the issued against the plaintiff and rejecting the eviction suit. As against mere bald and vague denial of defendant D.W.1 Phooli Devi herself and her son Nathu Singh, D.W.6 and other interested witnesses that no such construction was raised of kitchen, latrine and bathroom in the suit premises or that such construction was old, the same is not only self contradictory evidence of different defence witnesses but such vague and bald denial was clearly outweighed by the documentary evidence in the form of notice given by Municipal Council for raising the impugned construction in 1993 and leaving the sewerage pipe open on the southern side & oral evidence of P.W.1, 3 & 5. 19. P.W.1 – Abdul Vakeel, who has prepared the map (`Nazri Naksha') of the suit premises, entire house including tenanted portion thereof and found these construction at point no. 7, 8 and 9 of Kitchen, bathroom & latrine in the map and which appeared to be a new construction, cannot be said to an interested witness of the plaintiff as he obviously belongs to a different community & is an independent witness. The opening of sewerage pipe on the southern side not only caused nuisance to general public, who were passing on that road, but it clearly offended the people visiting the Jain Temple on the opposite side of the said road and that is why a specific condition was stipulated in the registered sale deed Ex.2 dated 21/6/1977 that the purchaser of the suit property will not construct latrine on the southern side but the defendant tenants of the plaintiff purchaser – Jain Swetamber Terah Panthi Samaj, not only constructed the disputed latrine on the southern side and left the sewerage pipe open so as to cause said nuisance. The defendant Phooli Devi not only refused to take notice of the Municipal Council and in the contemporary period, the Trustee of the plaintiff Trust, P.W.3 – Ugam Raj having sent the reply to said notice clearly established that such construction was raised in the year 1993 in violation of the condition of sale deed but also without the consent of plaintiff or its Trustees & without any approval of the Municipal Authorities. It is clear that such illegal construction of such latrine, bathroom and kitchen in the suit premises without the consent of plaintiff resulting into structural changes amounted to `material alterations' resulting into a ground of eviction under Section 13(1)(c) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. Significantly, the same defendant – Phooli Devi in her previous statement recorded by the learned trial court at the time of previous suit on 14/1/1982 stated that the suit premises only comprised of one Chowk and one small partly covered `Saal' but the other defence witnesses produced in the present suit stated that they have been seeing this latrine, bathroom and kitchen ever since beginning. Thus, the defence witnesses themselves have contradicted each other and it is beyond the pale of doubt that the construction made in 1993 was without any prior approval of Municipal Council. leaving the sewerage pipe open on southern side in front of Jain Temple not only violated the terms of sale deed as aforesaid but it also caused nuisance, which itself is a ground of eviction under Section 13(1)(d) of the Act of 1950. 20. Even if assuming for the argument sake that the ground of bonafide necessity could not be proved by the plaintiff in the present suit though P.W.3 – Ugam Raj has stated in his statement that to provide larger accommodation to Tera Panthi Sadhus visiting such `Uppasara', would have constituted a reasonable and bonafide necessity, this Court is of the firm opinion that the ground of 'material alteration' in the suit premises without consent of the plaintiff-landlord and that of `nuisance' by constructing latrine on the southern side by the defendant tenants was proved by the plaintiff in the present suit. In the face of these findings, refusing eviction decree to the plaintiff was not justified and on an overall appreciation of the evidence, this Court is clearly of the opinion that the plaintiff was entitled to the eviction decree on the ground of material alteration and the nuisance caused by the defendants by the impugned construction & the learned court was also not justified in refusing to award damages as claimed by the plaintiff on account of such nuisance caused to various persons visiting Jain Temple. 21. Consequently, the present first appeal of plaintiffs is allowed and eviction decree of the suit premises is passed against the defendant tenants. 22. 21. Consequently, the present first appeal of plaintiffs is allowed and eviction decree of the suit premises is passed against the defendant tenants. 22. The respondent-defendant-tenants shall hand over the peaceful and vacant possession of the suit property to the appellant-plaintiff (landlord) within a period of six months from today and the respondent – defendant shall also pay arrears of rent, damages and mesne profits, as determined by the court below, if any, within three months from today and shall further pay mesne profit @ Rs.1000/-per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent-defendant-tenant till the vacant possession is handed over to the plaintiff and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant-tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The defendant tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or mesne profits are not paid to the appellant-plaintiff/landlord within a period of six months from today, besides execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to the opposite party and learned courts below forthwith. No costs.