JUDGMENT : 1. This second appeal under Section 100 CPC is directed against judgment and decree dated 19.10.2013 passed by the Additional District Judge No.2, Bikaner, whereby the judgment and decree dated 24.02.2009 passed by the Civil Judge (Junior Division), Bikaner has been upheld. 2. The facts in brief may be noticed thus: a suit seeking eviction was filed by the plaintiff-respondent Satyaprakash against Shiv Ratan father of the present appellants in 1986 alongwith him appellant No.5 Ram Kumar was impleaded as defendant No.2 and one Gherulal was impleaded as defendant No.3. The suit was filed alleging default in payment of rent, nonuser of the suit premises, material alteration, nuisance, subletting, change of user and denial of title. 3. A written statement was filed by Shiv Ratan disputing the averments made in the plaint.The trial court framed 18 issues. 4. During pendency of the suit, Shiv Ratan died and by order dated 13.02.2006 out of eight legal representatives of the said Shiv Ratan, his four sons Mahesh Kumar, Ashok Kumar, Kailash and Manoj Kumar - appellant Nos.1 to 4 were impleaded as legal representatives of the said Shiv Ratan. Whereafter, by order dated 20.07.2006 another application filed by the plaintiff, was disposed of and an additional issue No.19 was framed to the fact as to whether the said legal representatives were entitled to seek protection under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ('the Act') as they were not doing business alongwith Shiv Ratan and, therefore, does not fall in the category of tenant. 5. After evidence was led by the parties, wherein on behalf of plaintiff three witnesses were examined & 09 documents were exhibited and on behalf of the defendant on the unamended issues, statement of Shiv Ratan and Gherulal were recorded and 34 documents were exhibited, and after framing of an additional issue No.19, statement of six witnesses were recorded. 6. 5. After evidence was led by the parties, wherein on behalf of plaintiff three witnesses were examined & 09 documents were exhibited and on behalf of the defendant on the unamended issues, statement of Shiv Ratan and Gherulal were recorded and 34 documents were exhibited, and after framing of an additional issue No.19, statement of six witnesses were recorded. 6. After hearing the parties, the trial court came to the conclusion that none of the sons of Shiv Ratan carried on business with him in the suit premises upto his death and, therefore, they do not fall within the definition of tenant under Section 3(vii) of the Act and, consequently, they were not entitled to claim benefit/protection of Act; the plaintiff failed to prove default in payment of rent; the tenant has materially altered the tenanted premises; the plaintiff failed to prove nuisance; there was no subletting; there was no change of user; no amount towards electricity and water bills was outstanding; the plaintiff was entitled for mandatory injunction; issue relating to denial of title was not pressed; the plaintiff was not entitled for enhanced mesne profit; the suit was maintainable and in view of its findings on issue Nos.19, 4, 6 and 9, the suit was decreed in favour of the plaintiff. 7. Feeling aggrieved, the appellants filed an appeal before the District Judge, Bikaner, which was transferred to the Court of Additional District Judge No.2, Bikaner, who after hearing the parties, upheld the judgment and decree dated 24.02.2009 passed by the trial court. 8. 7. Feeling aggrieved, the appellants filed an appeal before the District Judge, Bikaner, which was transferred to the Court of Additional District Judge No.2, Bikaner, who after hearing the parties, upheld the judgment and decree dated 24.02.2009 passed by the trial court. 8. It is submitted by learned counsel for the appellants that both the courts below were not justified in coming to the conclusion that the appellants were not tenants within Section 3 (vii) of the Act and that the defendants have materially altered the suit premises and, therefore, the judgment and decree passed by both the courts below deserves to be set aside; once the trial court by its order dated 13.02.2006 impleaded the appellants as legal representatives of Shiv Ratan on an application made by the plaintiff himself on account of its coming to the conclusion that the four appellants were carrying on business with Shiv Ratan in the suit premises upto his death, by subsequent order dated 20.07.2006, the trial court could not have framed additional issue as the finding recorded and the order dated 13.02.2006 would operate as res judicata; from the evidence on record, it is proved that the appellant Nos.1 to 4 were carrying on business with Shiv Ratan during his life time and the contrary finding recorded by the trial court based on their (appellants) inability in cross-examination to indicate the present status of the business being carried on in the suit premises, cannot lead to the conclusion that they were not carrying on business with the deceased Shiv Ratan upto his death. 9. On the issue of material alteration, it was submitted that both the courts below have taken into consideration the alleged material alteration in the premises, which were not let out by the plaintiff and, therefore, the finding stand vitiated. The construction of a wall in the tenanted premises has been held to be material alteration contrary to the law laid down by Hon'ble Supreme Court and various other Courts. It was submitted that the finding recorded by both the courts below being wholly perverse substantial questions of law arise in the appeal. 10. Reliance was placed on M.K. Ranganathan v. Govt. It was submitted that the finding recorded by both the courts below being wholly perverse substantial questions of law arise in the appeal. 10. Reliance was placed on M.K. Ranganathan v. Govt. of Madras, AIR 1955 SC 604 ; Neelakantan and Others v. Mallika Begum, (2002) 2 SCC 440 ; Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Others, (2010) 13 SCC 216 ; Shehla Burney (Dr.) and Others v. Syed Ali Mossa Raza and Others, (2011) 6 SCC 529 ; Bharat General & Seeds Stores & Ors. v. Mahendra Singh & Ors., 1992 (1) RLR 716 ; Khema and Others v. Shri Bhagwan and Others 1995 (2) R.R.R. 560 : AIR 1995 Raj. 94 ; Gulabrao Maruti Bhagat v. Bhagwan Nana Bhagat and Others, Om Prakash v. Amar Singh and Anr., AIR 1987 SC 617 ; Suka Ishram Chaudhari v. Jamnabai Ranchodas Gujarathi and Ors. AIR 1972 Bom. 273 ; Raghunath Singh v. Balabux, 1975 RLW 397. 11. Per contra, learned counsel for the respondent landlord submitted that the present second appeal does not involve any substantial question of law as both the courts have recorded concurrent findings of facts regarding the material alteration as well as on the issue that the appellants were not carrying on business with the said Shiv Ratan upto his death and, therefore, the present appeal deserves to be dismissed. 12. It was further submitted that the order dated 20.07.2006 passed by the trial court framing an additional issue was not challenged either by way of filing revision petition/writ petition during pendency of the suit and, thereafter even in the first appeal, no challenge was laid to order dated 20.07.2006 and, therefore, now it is not open for the appellants to question the said order dated 20.07.2006 at the second appellate stage. 13. Besides the above, both the courts below have found that the appellants have claimed that they were working as employee during the life time of their father at the suit premises and were absolutely ignorant about the present status of the business being carried on at the suit premises, which clearly establishes the fact that the appellants cannot claim themselves to the tenants in terms of provisions of Section 3(vii) of the Act. Regarding material alteration, it was submitted that the judgments cited by learned counsel for the appellants has no application and both the courts below have rightly found that the tenant has committed material alteration in the suit premises and, therefore, the said finding also does not give rise to any question of law.Reliance was placed on Bhagirath Mal & Anr. v. Smt. Yuvrani Sahiba through Lrs., 2005 (1) RLW 113 ; Prabhu Lal v. Kalu Ram, 1986 (1) WLN 289 ; Badri Narain Tak v. Shyam Narain, 1982 WLN 512. 14. I have considered the rival submissions made by learned counsel for the parties. 15. So far as the contention raised by learned counsel for the appellants that as the trial court had by its order dated 13.02.2006 at the instance of the plaintiff himself impleaded the appellant Nos.1 to 4 as party defendants in the suit, the order dated 20.07.2006 framing additional issue No.19 could not have been framed as the said aspect was barred by res judicata, is concerned, it would be noticed that the original defendant No.1 Shiv Ratan died on 03.02.2005 and an application under Order 22, Rule 4 CPC was filed by the plaintiff on 19.03.2005, whereafter another application dated 13.12.2005 was filed by the plaintiff seeking that the suit for eviction be decreed as the none of the legal representatives of deceased were carrying on business with the tenant upto his death and, therefore, their status is that of trespasser only. While application dated 13.12.2005 was kept pending, the application dated 19.03.2005 was decided by order dated 13.02.2006 and the application dated 13.12.2005 was decided on 20.07.2006 and instead of accepting/rejecting the application, the trial court thought it appropriate to frame additional issue No.19 and granted opportunity to the parties to lead evidence on the said issue, in pursuance whereof the defendants produced six witnesses and after hearing the parties, the trial court alongwith the other issues decided issue No.19 by its judgment and decree dated 24.02.2009 and decided the said issue against the appellants. 16. Admittedly, the said order dated 20.07.2006 framing additional issue was not questioned by the defendants during pendency of the suit by way of filing writ petition. Even before the first appellate court, the order dated 20.07.2006 was not questioned, which opportunity the appellants had in view of provisions of Section 105 CPC. 16. Admittedly, the said order dated 20.07.2006 framing additional issue was not questioned by the defendants during pendency of the suit by way of filing writ petition. Even before the first appellate court, the order dated 20.07.2006 was not questioned, which opportunity the appellants had in view of provisions of Section 105 CPC. The question is now sought to be raised by the appellants under Section 105 CPC and claiming the said aspect as a pure question of law and judgments in the case of M.K. Ranganathan (supra), Bharat General & Seeds Stores (supra), Shehla Burney (supra) and Municipal Committee, Hoshiarpur (supra) have been cited in support thereof, that a pure question of law can be raised at any stage.Submission made by learned counsel for the appellants that validity of an order passed during pendency of the suit, which could have been raised before the first appellate court under Section 105 CPC but the appellants failed to raise and/or press the same before the first appellate court, can be questioned, if the issue was a pure question of law and the provisions of Section 105 CPC would apply even before the second appellate court, has apparently no warrant in law. 17. So far as raising of a pure question of law at the second appellate stage is concerned, the same can very well be agitated, however, validity of an order passed during trial and not questioned before the first appellate court, cannot be questioned in second appeal in the garb of the same being question of law as the provisions of Section 105 CPC has no application at the stage of second appeal.This Court in Hari Ram v. Hitesh Chandra, 1992(1) WLN 379 ; held and observed as under:- "6. First of all I deal with the first objection raised by the learned counsel for the appellant with regard to not allowing the amendments in written statement and not allowing the evidence in rebuttal by the learned trial court. It can be said at the very out set that this point was never argued before the first Appellate Court and it seems that he has waived it and now cannot be allowed to raise this point. 7. Mr. It can be said at the very out set that this point was never argued before the first Appellate Court and it seems that he has waived it and now cannot be allowed to raise this point. 7. Mr. Bhoot has relief on Section 105 CPC, which reads as under:- "105 Other orders - (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the cases, may be set forth as a ground of objection in the memorandum of appeal. (2) No appeal shall like from any order passed in appeal under this section, party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. 8. Section 105 CPC says that where the learned trial court has passed any order i.e. interlocutory order against which no appeal lie during the pendency of the appeal, the aggrieved party could have filed revision against such order. Both the applications were disposed of by detailed order on merits, but the party has not filed any revision etc. against the order dated 1.4.85 and 6.9.85. I have perused the judgment of first appellate court and do not find pressing on these points. As such now he cannot argue these points in second appeal as the provisions of Section 105 CPC do not apply in second appeal and the contention of Mr. Bhoot has no force and is rejected." 18. Coming to the validity of order dated 20.07.2006 passed by the trial court framing additional issue and the plea sought to be raised by the appellants that the aspect dealt with in the said order dated 20.07.2006 was barred by res judicata in view of order dated 13.02.2006 passed under Order 22, Rule 4 CPC, the orders passed under Order 22 CPC by their very nature doesn't determine the rights of the parties conclusively and it is always open for a party to question the status of such a legal representatives to maintain the suit and/or defend the suit in the capacity of a tenant based on the plea that the defendants did not answer the definition of tenant under Section 3(vii) of the Act. 19. 19. The order dated 13.02.2006 even otherwise was not passed on contest and the application filed by the plaintiff on 13.12.2005 raising the issue that the appellant Nos.1 to 4 were not entitled to protection of the Act was pending when the order dated 13.02.2006 was passed. Even when the order dated 20.07.2006 was passed, the order dated 13.02.2006 was noticed by the trial court and, therefore, the trial court instead of allowing/rejecting the application and holding the appellant Nos.1 to 4 as trespasser/or otherwise, thought it proper to frame additional issue No.19 and granted opportunity to the parties to lead evidence on the said issue, which opportunity was availed by the appellant Nos.1 to 4, therefore, it cannot be said that the order dated 13.02.2006 would operate as res judicata and that order dated 20.07.2006 could not have been passed by the trial court. 20. So far as the finding as to whether the appellant Nos.1 to 4 were carrying on business with the deceased Shiv Ratan upto the time of his death and were, therefore, tenant within Section 3 (vii) of the Act, both the courts have concurrently found based on the analysis of evidence available on record that the appellant Nos.1 to 4 were not carrying on business with the deceased Shiv Ratan upto the time of his death, learned counsel for the appellants though took the Court through the evidence of the appellants on this aspect, apparently, no perversity could be pointed out by the learned counsel for the appellants in the findings recorded by both the courts below. 21. As far as the issue of material alteration is concerned, though the plea raised by the plaintiff in the plaint pertained to various violations including violation at the premises which was not the suit premises, however, a specific material alteration regarding the construction of a wall in the suit premises was alleged. In the Commissioner Report (Ex.-6), the Commissioner specifically reported existence of 11 feet high and 9 feet long wall with a door in the suit premises. Both the learned counsel for the parties have relied on the judgment of Hon'ble Supreme Court in Om Prakash (supra) to contend that the said raising of wall is material alteration/is not material alteration. The Hon'ble Supreme Court in the said judgment held and observed as under:- "6. Both the learned counsel for the parties have relied on the judgment of Hon'ble Supreme Court in Om Prakash (supra) to contend that the said raising of wall is material alteration/is not material alteration. The Hon'ble Supreme Court in the said judgment held and observed as under:- "6. In determining the question the Court must address itself to the nature, character of the constructions and the extent to which the make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. 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 tenants' eviction, it took care to use the word "materially altered the accommodation". The material alternations 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. The essential element which needs consideration is as to whether the constructions are substantial in nature and the alter the form, front and structure of the accommodation." 22. Further reliance was placed by learned counsel for the appellants on judgment in the case of Raghunath Singh (supra) Suka Ishram Chaudhari (supra) and learned counsel for the respondent relied on judgment in the case of Bhagirath Mal (supra), Prabhu Lal (supra) and Badri Narain Tak (supra). 23. Further reliance was placed by learned counsel for the appellants on judgment in the case of Raghunath Singh (supra) Suka Ishram Chaudhari (supra) and learned counsel for the respondent relied on judgment in the case of Bhagirath Mal (supra), Prabhu Lal (supra) and Badri Narain Tak (supra). 23. As noticed hereinbefore the Commissioner vide his Report (Ex.-6) has reported construction of a wall in the suit premises and neither from the Commissioner Report nor from the evidence available on record, it can be said that the wall constructed was a Kutcha Pardi or some temporary construction, which has been held to be the requirement for holding a construction as not material alteration by Hon'ble Supreme Court in the case of Om Prakash (supra). On the issue of material alteration also both the courts have concurrently found the alteration as material and the said findings also cannot be termed as perverse. 24. In view of the above discussion, findings recorded by both the courts below are essentially findings of fact and the appellants have failed to point out any perversity in the said findings and, therefore, no substantial question of law arises for consideration in the present second appeal. The same is, therefore, dismissed.No costs.