HUKAM SINGH Vs. RAMAN LAL AGARWAL

JUDGEMENT

(1.) These are two connected second appeals filed by defen dant Hukam Singh, arising out of two suits i. e. suit no 626 of 1967. and 627 of 1967 filed by Raman Lal plaintiff for ejectment of the defendant from two adjacent shops Nos. 6201/3 and 6201/4. The two suits were tried by the same Munsif. However, he delivered on the same date two separate judgment dismissing the plaintiff's suit for ejectment of the defendant. The suits were however decreed for recovery of arrears of rent. Two appeals were thereafter filed by the plaintiff which have been allowed by the same Civil Judge on the same date by passing exactly similar judgment. Both the appeals have been allowed and the suit of the plaintiff for ejectment of the defendant was also decreed. The plaintiff's case in both the suits was identical. It was alleged that the defendant was tenant of the two shops of the plaintiff and that he had not paid rent and had illegally removed the partition wall in between shops Nos. 6201/3 and 6201/4. The ejectment was sought on the ground that the defendant had substantially and materially altered the accommodation and had caused substantial damage to the shops. It was also alleged that the tenancy of the defendant had been terminated by notice dated 8-5- 1967 but despite notice he had neither paid the rent nor vacated the premises. The two suits were contested by the defendant on identical grounds, and it was pleaded that formerly the two shops were one shop and the same was let out to a single tenant. Later on, one portion was let out to the defen dant and the other portion was let out to another tenant. According to the defendant, both the portions were separated by temporarily fixing stones in the groove made in the floor and an angle iron fixed in the beam so that structurally the two shops were one shop. According to the defendant, later on the other shop in the tenancy of the other tenant fell vacant and the defendant was let out the other shop also and after the defendant had become tenant of both the shops, the intervening stones were removed by the landlady Smt. Priya Devi. The notice of terminating the tenancy was also challeng ed on the ground that the same was illegal and invalid. Before the lower appellate Court in both the appeals filed by the plain tiff the only point which was pressed was of material alteration. The lower appellate Court found that it is the defendant and not the plaintiff who removed the wall in question and that the demolition of the partition wall has materially affected the structure of the accommodation. Both the suits were, therefore, decreed. In the present second appeal the learned counsel for the appellant has firstly urged that the finding of the lower appellate Court that there was a permanent partition wall in between the disputed shops is erroneous in law. ' I am unable to agree with the aforesaid contention raised by the learned counsel for the appellant. The finding on the aforesaid question is a pure finding of fact which has been recorded by the lower appellate Court on appraisal of the oral evidence. The learned counsel for the appellant has not been able to show as to how that finding of fact is either perverse or based on no evidence. I have also gone through the findings recorded by the lower appellate Court and, in my opinion, the finding has been recorded after correctly appraising the evidence. The learned counsel for the appellant has then urged that the finding of the lower appellate Court that the defendant removed the wall in question is erroneous in law. The lower appellate Court has held that there was no need for Smt. Priya Devi to get the partition wall in question demolished and that the theory set up by the respondents was unbelievable. Great stress was laid before the lower appellate Court that the plaintiff was not able to establish as to when the partition wall was removed and thus the plaintiff's case would not be held to have been proved. The lower appellate Court has rightly observed that the shops were admittedly in possession of the defendant and that the landlady reasonable could not come to know as to when exactly the partition wall had been demolished. The finding recorded on the aforesaid question is essentially a finding of fact which, in my opinion, has been recorded on a correct appraisal of evidence. Lastly, the learned counsel for the appellant has challenged the finding of the lower appellate Court on the question as to whether by removal of partition wall the defendant has materially affected the structure of the two accommodations or not. It has been that admittedly the wall was not united on either side of the wall and was purely a temporary wall and the removal of the aforesaid wall would not amount to material alteration. The learned counsel for the appellant has relied on a decision of the Supreme Court reported in Man Mohan Das v. Bishun Das A. I. R. 1967 S. C. 643, and decisions of this Court reported in Jai Bhagwan v. Padam Sen and another 1964 A. L. J. 991, Dr. Jai Gopal Gupta and others v. Bodh Mal 1969 A. L. J. 477, and Moinuddin v. Ch. Mohd Imam Uddin Ashraf A. I. R. 1972 Alld. 25. The lower appellate Court while recording a finding on the aforesaid question had strongly relied on a decision of this Court reported in Kishan Lal v. Ram Baboo 1970 A. L J. 1154. The Supreme Court in the case of Man Mohan Das Shah (supra) held:- ". . . . . . . . . . . . The question taken is whether they were such that they materially altered the accommodation as provided by clause (c) without attempting to laydown any general definition as to what material alterations mean, as such a question would depend on the fact and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation. The expression "material alterations" in its ordinary meaning would mean important alterations such as those which materially or substan tially change the front or the structure of the premises. " From the aforesaid it is thus clear that for finding out whether the removal of the partition wall amounted to material alteration it will have to be found out whether there had been change in the structure of the building. As far as Jai Bhagwan's case (supra) is concerned, it has also laid down that if the alteration is necessary for proper enjoyment of the accommodation and does not change its structure or nature or cause any damage and can be removed without much expense, the same will not be material alteration. As for as Dr. Jai Copal's case (supra) is concerned, a Division Bench of this Court held;- "in a suit based on material alterations, the lower appellate Court has first to record a finding about the actual constructions made by the tenant: and that finding will be a finding of fact. After the lower appellate Court has ascertained the actual constructions made by the tenant, it has to form an opinion as to whether these constructions have materially altered the accommodation. The expression 'materially altered' find place in a statute. Its meaning has to be ascertained first. And then the lower appellate Court has to see whether the constructions made amount to material alterations within the meaning of the Act. This will as already stated, be ordinarily a finding of law. The next question is whether the constructions made in this case have materially altered the accommodation. Admittedly, the respondent has constructed a new bathroom and a new kitchen. They are, how ever, separate from the structure of the house. They cover about 1/3rd portion of the Courtyard. They have no foundation. They were built of pucca bricks and are plastered with cement. The tenant has used the side of a bed for giving support to the roof of one of the rooms. The accommodation as let has no separate bathroom. It has a separate kitchen but it appears that it could not be conveniently used. These are the findings of the lower appellate Court in regard to the constructions made by the tenant. The question is whether on these facts it can be held that the respondents has materially altered the accommodation. According to the Concise Oxford Dictionary, the word "alter" means change in character, position etc. The word 'materially' means 'important, essentially, concerned with matter not with form. In Mathur's case Mr. Justice Srivastava took the view that that the expres sion 'materially altered' should be held to mean 'a change in the character' or position of the accommodation which is essential or important. According to the Supreme Court if the constructions have the effect of altering the form and structure of the premises, they will be material alterations. In Man Mohan Das Shah v. Bishan Das, the Supreme Court said. "without attempting to lay down any general definition as to what material alteration means, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the constructions carried out by the respondent had the effect of altering the form and structure of the accommodation. Expression 'material alterations' in its ordinary mean ing could mean important alterations, such as those which materially or substantially change, the front or the structure of the premises. " From the aforesaid decision it is clear that the Bench followed the decision of the Supreme Court in Man Mohan Das Shah's case and held that if there is important alterations such as those which materially or substantially change the front of the structure of the premises, the same will be material alteration. In Moinuddin's case (supra) it was held that mere closing of four out of five openings of a Kothari and fitting the rest with shutters cannot be considered to be material alteration of the form or structure of the building. It may be noticed that in the aforesaid case a decision of this Court reported in M/s Delhi Iron Syndicate (Private) Ltd. Ajmeri Gate Delhi v. Sidha Nath and another 1965 A. W. R. 211, was also noticed. The facts of the present case are similar to the facts present in the aforesaid case. There also a wall existing between two rooms was demolished and the two rooms were converted into a single bedroom and in these circumstances it was held that the conversion of two rooms into a single bedroom amounted to material alteration in the building. From the cases cited above by the learned counsel for the appellant, it is therefore, clear that it will have to be determined in each case whether the alterations made by the tenant amounted to material alterations and that they will amount to material alterations if they materi ally and substantially change the front or the structure of the premises. The lower appellate Court has relied on a decision of this Court reported in Kishan Lal case (supra) and in my opinion, the aforesaid case squarely applies to the facts of the present case. In the aforesaid case also the tenant had demolished the partition wall between the two shops and converted them into one accommodation. It was held that any change made in an accommoda tion so that it loses its original identity and converts it into different accom modation would amount to material alteration within the meaning of Sec tion 3. Oa the finding recorded by the lower appellate Court, it is established that there was a permanent partition wall between the two shops and that the defendant had removed it. The effect of the removal of the wall was that the structure of both the shops changed. At the time of the letting out of the defendant there were two separate shops and after the removal of the partition wall, the two shops got converted into one big shop. The two shops in that sense lost their identity as a new big shop because of the removal of the partition wall had come into existence. This, in my opinion is an impor tant change in the structure of the two shops and would definitely amount to material alteration. The argument raised by the learned counsel for the appellant that the partition wall was not united on either side of the wall and thus would be treated to be a temporary wall and its removal cannot amount to making of important change in the structure of the two shops, cannot be accepted. The partition wall was made of bricks and even though it had not been united in the other walls, it cannot be said that it will cease to have a permanent character. Even though a wall is united in other wall, the same can be removed. But that does not mean that it will cease to have a permanent character because of that fact. The two shops which were let out to the defendant were given to him under different agreement and two. district tenancies were created under which specified portion of the shops enclosed by four walls were given. By removing the partition wall the identity of the two shops have been completely lost and a big shop has come into existence which was never given in tenancy of the defendant. This clearly is a material alteration in the structure of the two shops. The finding record ed on the aforesaid question, in my opinion, cannot be said to suffer from any error of law requiring interference in these second appeals. For the reasons stated above the two second appeals fail and are accord ingly dismissed. No one has appeared on behalf of the respondents in these second appeals. Looking to the facts and circumstances of these cases, the parties shall bear their own costs. .