JUDGMENT : 1. Appellant-defendant-tenant (hereinafter referred as ‘tenant’) has preferred this second appeal under Section 100 CPC assailing the judgment and decree dated 30.07.2001 passed in Civil Regular appeal No.109/1996 by the Additional District Judge No.2, Jaipur District, Jaipur affirming the judgment and decree for rent and eviction dated 26.07.1988 passed in Civil Suit No.69/1981 by the Additional Civil Judge and Additional Chief Judicial Magistrate No.1, Jaipur District, Jaipur whereby and whereunder the civil suit, for rent and eviction filed by the respondents-plaintiffs-landlords (hereinafter referred as ‘landlords’) in relation to the two rented shops situated at Kotputli, District Jaipur, was decreed and while declaring the tenant as defaulter in payment of rent, decree for eviction has been passed on the grounds of subletting, material alterations and substantial damages. 2. The relevant facts as culled out from the record are that the rented properties are two shops situated at National Highway No.8, Kotputli, Jaipur which were let out to tenant in the year 1978 @ Rs.400/-per month rent through rent note dated 17.11.1978. The landlords instituted a suit for rent and eviction on 22.07.1981, invoking the provisions of Section 13 of the Rajasthan Premise (Control of rent and Eviction) Act, 1950 (hereinafter referred as “the Act of 1950”), alleging inter alia (i) tenant has not paid rent after 17.08.1980 and committed default for more than six months (ii) tenant has caused willful substantial damages to the rented premise (iii) material alterations have been caused to the rented premise (iv) tenant has sublet the rented premise and has created nuisance. After filing the suit, the plaint was got amended by adding paragraph No.5 ¼d½ alleging some additional substantial damages and material alterations by the tenant to the rented premise during course of the suit. The tenant submitted written statement admitting his tenancy through rent note and denied all the grounds of eviction. The trial court settled issues and recorded evidence of both parties. After hearing both parties and on appreciation of pleadings and evidence, the trial court has observed that the tenant has committed default in payment of rent, however, benefit of first default was extended to him. Further, the trial court has observed that defendant has caused willful substantial damages and material alterations to the rented premise as also the tenant has sublet the rented premise to one Gopal. The allegations of nuisance were not found proved. Further, the trial court has observed that defendant has caused willful substantial damages and material alterations to the rented premise as also the tenant has sublet the rented premise to one Gopal. The allegations of nuisance were not found proved. Finally, the trial court, vide judgment and decree dated 26.07.1988 passed decree for eviction on three grounds of willful substantial damages, material alteration and subletting as provided under Sections 13(1)(b), 13(1)(c) and 13(1)(e) of the Act of 1950. 3. The tenant challenged the decree for eviction by way of filling first appeal. The first appellate court, after re-appreciation of evidence, affirmed the fact findings recorded by the trial court and affirmed the decree for eviction vide judgment and decree dated 30.07.2001. 4. Hence feeling aggrieved by the concurrent findings of fact, tenant has preferred this second appeal. This second appeal was filed way back on 07.09.2001. This Court, while admitting this second appeal for hearing vide order dated 09.10.2001, framed following substantial questions of law:- (I) Whether the finding recorded by the Courts below on the question of sub-letting can be held to have been legally proved in absence of any ingredient regarding relationship of landlod and tenant between the defendant-appellant and his brother? (II) Whether the plea of parting of possession can be permitted to be raised by the respondent-landlord in absence of pleading to that effect in the plaint and also in absence of any issue having been framed by the Courts below since such pleadings was not existing in the plaint. (III) Whether the decree for eviction passed by the two courts below even if found defective on account of lacuna on the ground of material alteration has been found to have been proved? 5. During course of hearing of this second appeal the eviction of tenant was stayed by passing an order of status quo and the tenant was paying mesne profits @ Rs.400/-per month as directed by the trial court. The mesne profits has been enhanced by this Court vide order dated 10.04.2007 @ Rs.8,000/-per month commencing from 01.05.2007 with a direction that in case of default in payment of mesne profits, the stay order dated 09.10.2001 would stand vacated. 6. The mesne profits has been enhanced by this Court vide order dated 10.04.2007 @ Rs.8,000/-per month commencing from 01.05.2007 with a direction that in case of default in payment of mesne profits, the stay order dated 09.10.2001 would stand vacated. 6. During course of this second appeal, the tenant has committed default in payment of mesne profits from September, 2015 to April, 2016 and did not deposit the mesne profits within time, however, on the application of tenant, this Court, vide order dated 23.05.2017, condoned the delay. Thereafter, respondent filed an application dated 27.11.2019 alleging inter alia that tenant again committed default in deposition of the mesne profits for the month of July, 2019. The tenant filed reply and denied such default. When the appeal listed before this Court, it was observed that since the second appeal is pending for hearing from the year 2001, instead of deciding the application for vacation of interim stay order dated 09.10.2001 separately, the appeal was allowed to be listed for final hearing. 7. It may also be noted that now the tenancy of the appellant-tenant has become more than 40 years old, commenced from 17.11.1978 and the appellant has suffered decree for eviction by both courts below, counsel for appellant on instructions of his client has submitted that the appellant-tenant is not agreeable to vacate the rented shop and he would argue the second appeal on merits only. Thereafter, arguments on merits were heard. Counsel for appellant, apart from making oral submissions, also submitted written arguments and suggested few additional substantial questions of law on the issue of substantial damages and material alteration. The copy of written submissions was made available to the counsel for respondents and hearing was adjourned, giving time to respondents to counter the argument and prepared additional substantial questions of law advanced by the appellant. Counsel for respondents has made his oral submissions as also submitted written arguments, denying the substantial questions of law already framed and as proposed by the counsel for appellant. Thus, this Court heard counsel for both parties in detail on the substantial questions of law framed vide order dated 09.10.2001 and as additionally proposed by the counsel for appellant in his written submissions. The written arguments submitted by both parties have been taken on record. 8. Thus, this Court heard counsel for both parties in detail on the substantial questions of law framed vide order dated 09.10.2001 and as additionally proposed by the counsel for appellant in his written submissions. The written arguments submitted by both parties have been taken on record. 8. During course of arguments, learned counsel for appellant-tenant has not assailed the findings of default for the reason that though the tenant has been declared as defaulter, however, the trial court has extended the benefit of first default and no decree for eviction on the ground of default has been passed, hence on the issue of default no discussion is required. 9. As far as, issue of nuisance is concerned, the trial court decided this issue in favour of appellant-tenant, which was not assailed by the respondents-landlords, hence no discussion is required on this issue. 10. Having heard counsel for both parties, decree for eviction passed on the ground of substantial damages, material alteration and subletting is under challenge. SUBLETTING:- (A) The ground of subletting is mentioned under Section 13(1) (e) in the Act of 1950 as under:- “the tenant has assigned, sublet or otherwise parted with the possession of the whole or part of the premises, without the permission of the landlord.” (B) The two substantial questions of law as framed by this Court on 09.10.2001 relates to the issue of subletting. (C) Learned counsel for appellant-tenant vehemently argued that to prove the ground of subletting, following ingredients are essentially to be established:- (I) Onus lies on the landlord. (II) transfer of the exclusive possession. (III) the relationship of lesser and lessee between the tenant and sub-tenant. (D) Reliance has been placed on the judgments of the Hon’ble Supreme Court in case of Delhi Stationers and Printers Vs. Rajendra Kumar [ (1990) 2 SCC 331 ] & Reshan Singh Vs. Raghbar Singh and Anr. [ (1999) 7 SCC 263 ]. (III) the relationship of lesser and lessee between the tenant and sub-tenant. (D) Reliance has been placed on the judgments of the Hon’ble Supreme Court in case of Delhi Stationers and Printers Vs. Rajendra Kumar [ (1990) 2 SCC 331 ] & Reshan Singh Vs. Raghbar Singh and Anr. [ (1999) 7 SCC 263 ]. (E) Learned counsel for appellant, drawing attention of this Court to the relevant portion of the evidence of PW.1, PW.2, PW.3, PW.4 and PW.5 and alleged sub-tenant Gopal DW.2, have contended that the landlord has not proved the issue of subletting as per requirements of the law as neither exclusive transfer of possession of the rented premise by the tenant to the alleged sub-tenant has been proved nor it has proved that transfer of possession is in lieu of the payment of some compensation or rent. (F) Learned counsel for appellant argued that the trial court and the first appellate court have not recorded any findings about proof of the essential ingredient of sub-letting. The alleged sub-tenant Gopal is the real brother of appellant-tenant and both courts have committed illegality in treating him as sub-tenant. Hence, the impugned decree for eviction on the ground of subletting is not sustainable. Learned counsel for appellant submits that both substantial questions of law should be answered in favour of appellant and the decree for eviction on the ground of sub-letting be quashed. (G) Per contra, counsel for respondent-landlord submits that plaintiffs by way of adducing oral and documentary evidence have proved that the tenant has transferred the possession of the rented premise to the Gopal, who runs a hotel and restaurant in the rented premise in the name of Blue Fox Hotel. The license of Blue Fox Hotel is also in the name of Gopal and on appreciation of the respective pleadings and evidence of both parties, the trial court as well as the first appellate court have concluded that the possession of the rented premise has been transferred by the tenant to the Gopal, obviously, the same is in lieu of some consideration/rent. The findings of fact recorded by both courts below need not to be interfered with by the High Court while exercising the jurisdiction under Section 100 CPC. The findings of fact recorded by both courts below need not to be interfered with by the High Court while exercising the jurisdiction under Section 100 CPC. Counsel for respondent has placed reliance on umpteen number of judgments passed by the Hon’ble Supreme Court of which reference would be given in the later part of the judgment. (H) Few judgements propounded the ratio descendi deal with the issue of subletting may be taken into consideration. In case of Ram Murti Devi Vs. Pushpa Devi and Ors. Reported in [ (2017) 15 SCC 230 ], the Hon’ble Supreme Court observed that in the event, possesssion of the sub-tenant wholly or partly is proved and the particulars and the instances of the transactions are found acceptable, it is not impermisible for the court to draw an inference that the transaction was entered for monetary consideration. In case of Flora Elias Nahoum and Ors. Vs. Idrish Ali Laskar Reported in [ (2018) 2 SCC 485 ], the Hon’ble Supreme Court placing reliance on the previous judgment of Bharat Sales Limited Vs. Life Insurance Corporation of India [(1998) 3 SCC 01] observed that in the process of subletting, the landlord is usually kept out of the scene. Rather the scene has enacted behind the back of the landlord concealing the overt acts and transferring possession clandestinely to a person who is stranger to the landlord, in the sense that the landlord had not let out the premise to that person nor landlord had allowed or consented to his entering into possession over the rented premise. It is the actual, physical and exclusive possession of that person, instead of tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a cituation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. Since the payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let. In case of Prem Prakash Vs. Santosh Kumar Jain And Sons Reported in [ (2018) 12 SCC 637 ], the Hon’ble Supreme Court held that initially the burden to prove that sub-tenant is exclusive possession of the property is on the landlord. However, such proof is based on preponderance of probability only. Once the landlord succeeds in establishing factum of sub-tenancy, burden to rebut it lies on tenant. Hon’ble the Supreme Court in case of A Mahalakshmi Vs. Bala Venkatram Reported in [ (2020) 2 SCC 531 ] placed reliance upon the previous judgment of Celina Coelho Pereira Vs. Ulhas Mahabaleshwar Kholkar Reported in [ (2010) 1 SCC 217 ] and other catena of decisions has observed that in order to prove the mischief of subletting as ground for eviction under the Rent Control laws, two ingredients have to be established, one, parting with possession of tenancy or apart of it by the tenant in favour of their party with exclusive right on possession and two that such parting with possession has been done without the consent of landlord and in lieu of the compensation or rent. Initially, the burden of subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises, the onus shifts to the tenant to prove the occupation of such third party. A presumption of subletting may then be rest and would amount to prove unless rebutted. Initially, the burden of subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises, the onus shifts to the tenant to prove the occupation of such third party. A presumption of subletting may then be rest and would amount to prove unless rebutted. (I) Having considered the proposition of law set forth in the above referred judgments and on perusal of pleadings and evidence of both parties, this Court finds that plaintiffs have pleaded in Para No.6 of the plaint that the rented shops were let out to defendant-tenant, who without permission of plaintiffs-landlord has sublet the rented shops to one Gopal and the Gopal has started business of Blue Fox Hotel, thus defendant has part with possess the rented shops. In the written statements, defendant-tenant has categorically denied the subletting and contended specific avertments that defendant himself runs the Blue Fox Hotel. Gopal is his elder brother, who has no concerned with the rented premise and runs his own other rented shops near Bust Stand, Kotputli. (J) In context to the aforesaid pleadings, the parties adduced their respective evidence. In the evidence, apart from the oral statements of PW.1 to PW.4, the documents, rent deed and license of running a business of Blue Fox Hotel, have been produced on record. In rebuttal, defendant has produced witnesses DW.1 to DW.5 without filing any documents. On appreciation of evidence, the trial court has held that the license of the shops in question (Ex.6) is in the name of Gopal. This license has been proved by PW.6, who is government servant. Other witnesses of plaintiff alleged that Gopal runs the Blue Fox Hotel. One of the witnesses of defendant DW.2 Narendra Sharan admits that at the National Highway, Kotputli there is only one Blue Fox Hotel. Defendant-tenant Om Prakash has changed his version in evidence that his brother Gopal is partner in the business of Blue Fox Hotel. His evidence is totally contradictory to the pleadings of written statments. It is a settled proposition of law that the exchange of transfer of rented premise was/is consideration/rent is a hidden contract for which it is difficult to adduce the direct evidence and inference can be drawn considering the attaining circumstances. His evidence is totally contradictory to the pleadings of written statments. It is a settled proposition of law that the exchange of transfer of rented premise was/is consideration/rent is a hidden contract for which it is difficult to adduce the direct evidence and inference can be drawn considering the attaining circumstances. The trial court on appreciation of totality of the material available on record has concluded that the issue of sub-letting stands proved. (K) The first appellate court, as considering the issue of subletting on re-appreciation of the pleadings and evidence, has concluded that it stands clear that the defendant-tenant has transferred the possession of the rented premise to Gopal, who is in use and occupation of the rented premise and running Blue Fox Hotel therein of which license is in his name. (L) The trial court and the first appellate court have also considered the relevant case law to conclude that the brother can be a sub-tenant more particularly in the facts of the present case where it is not disputed that the rented premise was taken on rent by the defendant Om Prakash and the defendant-tenant has categorically denied in his written statement that his brother Gopal has no concerned with the rented premise. (M) The term “sub-letting” includes the factum of transfer of possession with an exclusive right to enjoy the property and such transfer is for payment of some compensation or rent. Both courts of fact findings have recorded that the subletting of rented premise by the tenant to one Gopal is established, such findings are based on appreciation of evidence and taking into account the contradictory stand of defendant, deviation from his defence in written statement is the evidence. The witnesses of defendant do not support the defendant himself. This Court, while exercising jurisdiction under Section 100 CPC is not supposed to draw its conclusion, on re-appreciation of evidence as a whole by substituting the conclusion of both courts of fact findings. Thus, it is difficult for this Court to observe that the essential elements to prove the ground of sub-letting have not been adhered to by both courts below and the decree for eviction on the ground of sub-letting has been passed, without establishment of pre-requisites of the sub-letting. (N) Accordingly, both substantial questions of law are answered in negative and against the appellant. (N) Accordingly, both substantial questions of law are answered in negative and against the appellant. Substantial Damages and Material Alteration:- (A) The grounds of substantial damages and material alteration are mentioned under Section 13(1)(b) & Section 13(1)(c) in the Act of 1950 as under:- "(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the premises." "(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 thereof." (B) Learned counsel for appellant fairly admits that the substantial question of law No.3 framed by this Court vide order dated 09.10.2001 is not speaking and meaningful, hence this question need not be answered. Counsel for appellant suggested following substantial questions of law in relation to the aforementioned grounds:- (i) Whether the eviction of the defendant-appellant on the ground of substantial damage to the premises can be upheld when no issue as contemplated under Section 13 (1)(b) has been framed and no finding has been given by the Courts below with regard to “Willfulness in causing the alleged substantial damage. (ii) Whether the acts alleged by Plaintiff can be said to be substantial damage when those acts are in normal course of carrying on business of hotel and the landlord accepted the alleged acts as suit was filed after 2 years. (iii) Whether the findings of the two courts below with regard to alleged acts regarding material alteration can be upheld when there is no finding of the courts below that by these acts there is substantial change in the character, form and structure of building. (iv) Whether the alleged acts can be said to be material alteration when these changes are temporary in nature and could be easily removed without causing any damage to the premises. (C) Learned counsel for appellant submits that the fresh substantial questions of law can also framed at the time of hearing of the appeal and the reliance has been placed on the judgments of [ (1999) 3 SCC 722 ] & [ (2014) 15 SCC 405 ]. (D) Learned counsel for appellant has emphasized that firstly, the courts below have committed illegality for deciding the issue Nos.2 and 3 pertaining to substantial damages and material alteration, simultaneously. (D) Learned counsel for appellant has emphasized that firstly, the courts below have committed illegality for deciding the issue Nos.2 and 3 pertaining to substantial damages and material alteration, simultaneously. Secondly, as per Section 13(1)(b) of the Act of 1950, the damages to the rented premise must be willful and substantial. Thirdly, the alteration to the rented premise must be material or is likely to diminish the value of the rented premise. He submits that both courts have not adhered to such essential ingredients required to be proved before passing the decree of eviction on the ground of substantial damages and material alterations. He has also argued that the nature of changes, alleged to be caused in the rented premise neither fall within the purview of substantial damages nor can be treated as material alteration. Counsel for appellant has placed reliance on judgments of G.Reghunathan Vs. K.K. Varghese [AIR (2005) SC 3680], Om Prakash Vs. Amar Singh and Anr. [AIR (1987) SC 617], Om Pal Vs. Anand Swarup (Dead) by LRs. [ (1988) 4 SCC 545 ], G. Arunachalam (died) through LRs and Anr. Vs. Thondarperienambi and Anr. [AIR (1992) SC 977], Brijendra Nath Bhargava Vs. Harsh Wardhan [ (1988) 1 SCC 454 ], Waryam Singh Vs. Baldev Singh [ (2003) 1 SCC 59 ], Kewal Chand and Anr. Vs. Khuman Chand [AIR (1997) Rajasthan 194], Sukhlal Vs. Bhopal Singh [(1972) RLW 232], Smt. Supyar Bai VS. Smt. Gordhan Bai through LRs. [ (1992) 1 WLC 590 ], Rugunath Singh Vs. Balabux and Anr. [(1976) RCR 268], Deep Chand Vs. Abdul Hussain and Ors. [ (1986) 2 WLN 68 ], Radha Kishan Vs. Rajendra Kumar and Anr. [ (1991) 1 RLR 669 ], Rafat Ali Vs. Sugni Bai and Ors. [ (1999) 1 SCC 133 ], Shri Anup Chand and Ors. Vs. Shri Tarlok Singh [(1977) 2 RCR 121 & Duabhai Lalji Kalidas Vs. Ramniklal Somchand Mehta [AIR (1975) Gujarat 213]. [ (1986) 2 WLN 68 ], Radha Kishan Vs. Rajendra Kumar and Anr. [ (1991) 1 RLR 669 ], Rafat Ali Vs. Sugni Bai and Ors. [ (1999) 1 SCC 133 ], Shri Anup Chand and Ors. Vs. Shri Tarlok Singh [(1977) 2 RCR 121 & Duabhai Lalji Kalidas Vs. Ramniklal Somchand Mehta [AIR (1975) Gujarat 213]. (E) Learned counsel for appellant has drawn the attention of this Court towards the provision of Section 14(1) of the Act of 1950 which envisages that “no decre for eviction on the ground set forth in clause (b) of sub-section (1) of Section 13 shall be passed unless the Court is satisfied, after taking all the facts and circumstances into consideration, that it is reasonable to allow such eviction.” On the strength of such provision, counsel for appellant submits that the courts before passing the decree for eviction on the ground set forth under Section 13(1)(b) should be satisfied that damages to the premise are not only substantial but also willful and it is reasonable to allow the eviction of the tenant. Learned counsel has referred the portion of statements made by the plaintiff and his witnesses to show that the nature of alleged damages cannot be considered as substantial damages. Similarly, it has been urged that even if the nature of alteration alleged to be made is taken as true, such alteration cannot be treated as material alteration so as to held liable the tenant for eviction under Section 13(1)(c) of the Act of 1950. (F) Per contra, counsel for respondents-landlord submits that even if the issue Nos.2 & 3 have been decided together, the same itself do not render both the impugned judgments vulnerable on this account alone as at the most this is a procedural error. Both courts, on appreciation of the material available on record, have categorically recorded findings of fact that the tenant has willfully caused substantial damages to the rented premise and has also altered the premise materially. Learned counsel for landlord submits that even, the tenant during pendency of the eviction suit also caused to which the plaintiffs have to adding Paragraph No.5 ¼d½ . Learned counsel for landlord submits that even, the tenant during pendency of the eviction suit also caused to which the plaintiffs have to adding Paragraph No.5 ¼d½ . He damages and alterations due got amended the plaint by submits that findings recorded by both courts below are on record and such findings are not substantial damages and material proved as per requirements of the decree for eviction passed on such based on the evidence perverse. The issue of alteration have been provisions of law and grounds requires no interference by the High Court under Section 100 CPC. (G) This Court, on perusal of findings recorded by the trial court as also from the relevant record, finds that the trial court has considered the oral statements of PW.1 to PW.7, the photographs (Ex.3 to Ex.14) and the report of the Court Commissioner (Ex.-16) and has concluded that the tenant has committed willful substantial damages to the rented premise. The trial court has observed that after breaking the doors of the rented premise, floor has also been damaged, foundation of the rented premise has been weekend due to digging pit-holes near the foundational wall, front walls have been damaged by affixing the iron pipes and several other damages have been caused by establishing kiln, constructing drainage through floor and affixing basin, etc. (H) In relation to the material alteration, it has been observed that both shops have been converted into a hall, front verandah has been constructed, front portion has been covered with sheds by affixing iron pipes in the walls , front wall has also been removed. Though, the removal of middle wall only has not been taken as material alteration, however, this alteration with other alterations have been noticed to be material alterations and are of permanent nature, the condition of the rented premise as described in the rent note (Ex-01), has altogether been altered materially. (I) The trial court has also taken into consideration the evidence of defendant and his witnesses. The admissions of defendant about the photographs of shops, affixing iron pipes, digging pits nearby the foundational wall, having verandah in front of the rented shop and the removal of the wall have also been taken into considerastion. It was observed that the defendant declined to take photographs from inside of the rented premise. The admissions of defendant about the photographs of shops, affixing iron pipes, digging pits nearby the foundational wall, having verandah in front of the rented shop and the removal of the wall have also been taken into considerastion. It was observed that the defendant declined to take photographs from inside of the rented premise. In the report of the Court Commissioner (Ex-16) the present position and structure of the rented premise found to be wholly changed/altered from the position as mentioned in the rent deed. The statements of witnesses of defendant, admitting the fixing kiln in front of the shop, faucet, wash basin and other alterations made in the premise have been taken into consideration. The trial court noticed that the stand of the defendant in evidence is wholly contrary to his defence in written statement and further there is contradiction between the statements of defendant and his witnesses. The relevant case law related to both issues have also been considered. Thereafter, in totality of facts and circumstances, the trial court passed decree for eviction on the grounds of causing willful substantial damages and material alteration to the rented premise. (J) The perusal of the judgment passed in first appeal goes to show that the first appellate court re-considered and reweigh the evidence of parties on record while deciding issue Nos.2 & 3. The subsequent damages and alteration, alleged to be caused in Para No.5 ¼d½ of the amended plaint, were also considered. The first appellate court, also noticed that the appellant-defendant did not permit the Court Commissioner to enter into the rented premise to prepare the report and decline to take photographs from inside, which leads to adverse inference against the tenant. It was observed that though the removal, of partition wall of the shops itself may not be treated as material alteration, however, the rented premise was found to be holistically changed with the condition and structure as mentioned in the rent deed. The first appellate court also found that substantial damage have been caused willfully in the rented premise in floor, doors, front wall and in the foundational walls. (K) As far as, the judgments referred by the counsel for appellant are concerned, in case of G.Reghunathan (supra) the Supreme Court has observed that the damages should lead to impairment of the value or utility of the rented premise. (K) As far as, the judgments referred by the counsel for appellant are concerned, in case of G.Reghunathan (supra) the Supreme Court has observed that the damages should lead to impairment of the value or utility of the rented premise. In case of Om Prakash (supra) the Supreme court has held that unless the constructions complained of must be of such nature and character as mateirally altered the rented premise. In case of Om Pal (supra), Hon’ble the Supreme Court has observed that that the natue of constructions whether they are permanent or temporary is a relevant consideration and determining factor of the question of material alteration. In case of G. Arunachalam (died) through Lrs (supra) putting a rolling shutter on the rented premise was not treated as material alteration. In case of Brijendran Nath Bhargava (Supra) the supreme court has observed that essential elements which need consideration as to whether the constructions are substantial in nature and they alter the elevation or the front and the structure of the building itself. Partition wall of six feet height, made without digging any foundation of the floor of the room, nor it touched the ceiling, was treated as temporary wall which could be removed at any time without causing any damage to the building. In case of Waryam Singh (supra) covering the varandah was not treated as material alteration. In case of Smt. Supyar bai(supra) the coordinated bench of Rajasthan High Court, Jaipur Bench held that the findings as to whether the construction in question has materially altered the premise is a finding of law. In case of Deep Chand (Supra) the coordinated bench of the Rajasthan High Court, Jaipur Bench has observed following the previous judgment in case of Raghunath Singh that making of a Pardi wall does not materially alter the suite premise. (L) The sum and substance of the judgments relied upon by the counsel for appellant-tenant are that unless and until the damages alleged to be caused in the rented premise are not substantial and willful which impair the utility and value of the rented premise, the decree for eviction on the ground of substantial damages should not be passed. (L) The sum and substance of the judgments relied upon by the counsel for appellant-tenant are that unless and until the damages alleged to be caused in the rented premise are not substantial and willful which impair the utility and value of the rented premise, the decree for eviction on the ground of substantial damages should not be passed. In relation to material alteration, the proposition of law emerges that firstly, the material alteration should be of permanent nature and secondly, the same should be to the nature that it alters the basic structure and identity of the rented premise. Any temporary alteration, which can be removed without any damage to the rented premise would not fall within the purview of material alteration. (M) Having enlightened with the proposition of law mentioned hereinabove and on consideration of the facts of the present case, it appears that from the evidence of both parties that defendant-tenant has willfully caused damage to the rented premise substantially. (N) Both fact findings courts have concluded that the rented premise has been damaged and its structure has weekened due to digging the pit holes near the foundational wall, fixing the iron pipes by damaging the front walls in order to put a shade in the front portion, by breaking the doors affixed on the rented premise and the floor has also been damaged. It has also been recorded that by operating Kiln (Bhatti) and other ancillary items like wash basin, fixing of faucet, laying pipelines in the floor, etc. the rented premise has been immensely damaged. This is not in dispute that such damages have been caused knowingly, willfully and deliberately. Both courts below have observed that such damages are substantial in nature. Thus in view of such fact findings of the two courts below, this Court finds it difficult to draw a different conclusion to observe that such damage s are not substantial damages. As far as non-insertion of word “willful” in the issue No.2 pertaining to substantial damage is concerned, the same does not affect the findings on merits. As per respective pleadings of parties, both parties were duly aware that the eviction has been prayed for on the ground of willful substantial damages to the rented premise as enshrined under Section 13(1)(b) of the Act of 1950. the requirement of Section 14(1) of the Act of 1950 also stands fulfilled. As per respective pleadings of parties, both parties were duly aware that the eviction has been prayed for on the ground of willful substantial damages to the rented premise as enshrined under Section 13(1)(b) of the Act of 1950. the requirement of Section 14(1) of the Act of 1950 also stands fulfilled. In this view, the substantial question of law No.(I) proposed by the appellant cannot be said to be involved and is not required to be formulated. As far as, another question suggested by appellant is concerned that such changes were made in the normal course of carrying out the business of hotel, is not sustainable for the reason that the defendant-tenant, in his written statement has categorically denied to carry out such changes. The change of stand by the defendant, at the stage of second appeal, just contrary to the basic defence is not permissible more particularly when the issue related to factual aspect and based on appreciation of evidence. Accordingly, the substantial question No.(II) also not required to be framed. (P) As far as material alteration to the rented premise is concerned, both courts have concurrently held that though the mere removal of middle wall itself is not a material alteration but coupled with the other alterations like converting both shops in a big hall, constructing a Varandha and covering the front portion by the shed, removing of the front wall in order to establish the Klin (bhatti) and other ancillary items have altogether altered the whole structure and identity of the rented premise. The condition and position of the rented premise at the time of letting out is indicated in the rent deed (Ex.01). The present position of rented premise after carrying out the material alterations is clear by the photographs and report of the Court Commissioner apart from the oral statements of both parties. Such alterations have been taken as material alterations as the same holistically changed the identity and structure of the rented premise. More so, in the written statements, defendant-tenant has categorically denied to carry out any such alterations. It is not the defence of the tenant that the alteration/changes in the rented premise were required in order to carry out the business of Hotel in the rented premise. There is no dispute about the fact that such alterations have been carried out by the tenant without seeking any permission of the landlord. It is not the defence of the tenant that the alteration/changes in the rented premise were required in order to carry out the business of Hotel in the rented premise. There is no dispute about the fact that such alterations have been carried out by the tenant without seeking any permission of the landlord. Thus, after recording of evidence, when the courts have concluded that the tenant has materially altered and changed the rented premise holistically, it is not permissible to allow the appellant-tenant to change his basic stand of defence as raised in written statement. The courts below have also considered the adverse inference against the appellant-tenant due to not allowing the court Commissioner to enter into the rented premise to take the photographs from the inner side of rented premise. Further, the material alterations done in the rented premise cannot be treated as temporary in nature as it is not possible to restore the position of the rented premise in its original condition, without any damage to the rented premise. Both courts have also observed that the material alteration is of permanent nature. The High Court, while exercising its jurisdiction under Section 100 CPC is not required to re-appreciate the whole findings and to draw its own conclusion by substituting the conclusion and fact findings of the two courts below. Thus, it cannot be observed by any stretch of arguments that the essential ingredients to pass a decree for eviction on the ground of material alteration has not been considered and are not established. (Q) As far as, the objection raised by counsel for appellant in order to decide both issue Nos.2 & 3 together is concerned, after considering fact findings of both courts and discussion made hereinabove, it stands clear that though both issues have been decided together but have been considered within their scope and separate findings have been recorded. In such circumstances, this Court agrees that, though it may be treated as procedural irregularity at the most but not that much illegality which renders both impugned judgments vulnerable on this count alone more so, it has not been pointed out as to how any miscarriage of justice has occurred to the appellant. Thus, such objection of counsel for appellant is of no consequence in the present case. (R) Therefore, this Court is of opinion that the substantial questions of law Nos. Thus, such objection of counsel for appellant is of no consequence in the present case. (R) Therefore, this Court is of opinion that the substantial questions of law Nos. (III) & (IV) as suggested by the counsel for appellant are not required to be framed as the same are not involved at all in the present matter. 11. The Hon’ble Supreme Court in case of Umerkhan Vs. Bismillabi Shaikh & Ors. Reported in [ (2011) 9 SCC 684 ] has observed that if a second appeal is admitted on substantial question of law, while hearing the second appeal finally, the court can re-frame the substantial question of law or can frame new substantial question of law or even can hold that the substantial question of law as already framed do not fall within the purview of substantial question of law but the High Court cannot exercise its jurisdiction under Section 100 CPC, without formation/involvement of substantial question of law. 12. The scope of interference by the High Court in second appeal under Section 100 CPC has been discussed by the Hon’ble Supreme Court in umpteen number of cases. It is no more res integra that the jurisdiction is strictly confined to the case, involving substantial question of law. In the foregoing discussion, this Court has observed that the substantial questions of law as framed and as suggested additionally are not the substantial questions of law. It has also said that as a whole second appeal under Section 100 CPC it is not permissible for the High Court to re-appreciate evidence on record and interfere with the findings recorded by the courts below and/or the first appellate court. If the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffered from an error either of law or of procedural require interference in the second appeal. Ordinarily, the High Court should not interfere with the concurrent findings of fact unless the same suffer from grave perversity or based on the inadmissible evidence or have been passed without evidence. In support of such proposition of law, the judgment of Hon’ble the Supreme Court in case of Narayanan Rajendran and Anr. Vs. Lekshmy Sarojini and Ors. Reported in [ (2009) 5 SCC 264 ] and Gurnam Singh and Ors. Vs. Lehna Singh Reported in [ (2019) 7 SCC 641 ] may be referred. 13. In support of such proposition of law, the judgment of Hon’ble the Supreme Court in case of Narayanan Rajendran and Anr. Vs. Lekshmy Sarojini and Ors. Reported in [ (2009) 5 SCC 264 ] and Gurnam Singh and Ors. Vs. Lehna Singh Reported in [ (2019) 7 SCC 641 ] may be referred. 13. Before parting with the present judgment, this Court would also like to consider the aim and object of the rent control legislation in order to consider that as to whether the appellant tenant who has completed the tenure of tenancy for more than 40 years in the rented shops (the tenancy of appellant commenced w.e.f 17.11.1978) are enacated to seek protection under the Rent Control Act, 1950. It may be noticed that the rent control legislation was entitled to strike a reasonable balance between the landlord and tenant. At one hand where the tenant requires adequate protection against his eviction at the hands of aggressive designed greedy landlord, at the same time rights of landlord also require protection to increase the rent reasonably and to evict tenant on the grounds permissible in law. The basic object of the Rent Control Act, 1950 is to save the harassment of tenant from unscrupulous landlords. The object of the Rent Control Act, 1950 may not be misconstrued to deprive the landlords of their bona fide properties for all times to come. Such proposition of law was expounded by the Hon’ble Supreme Court in case of Shakuntala Bai Vs. Narayan Das reported in [ (2004) 5 SCC 772 ], Satyavati Sharma Vs. Union of India Reported in [ (2008) 5 SCC 287 ] & State of Maharashtra Vs. Super Max International Private Limited Reported in [ (2009) 9 SCC 772 ]. 14. Having discussed the sustainability of the impugned decree for eviction on the merits in detail as also considering the aim and object of rent control legislation, this Court is not inclined to interfere with the decree for eviction passed against appellant-tenant, at least at the stage of second appeal. As a consequence, this second appeal is dismissed and the decree for eviction is sustained. 15. There is no order as to costs. 16. Application for vacation of stay order as well as any other pending application(s), if any, also stand(s) disposed of. 17. Record of both courts be sent back.