SITARAM SHARAN Vs. JOHRI MAL

JUDGEMENT

(1.) THESE are two second appeals arising out of two suits filed by the appellants against the res pondents for their eviction from two shops numbered 278 and 279.

(2.) THE appellants are owners of a row of shops numbered 277. 278. 279, 280 and 281 which are single storeyed-The respondents are tenants of shops Nos. 278 and 279. Apparently, the tenancies were created at different times. The ap pellants filed the two suits out of which these two appeals arise for the eviction of the respondents from these two shops, inter alia on the ground that the res pondents had made certain constructions over all the five shops without the con sent of the appellants and had thereby materially altered the accommodation. In the plaint, the appellants alleged that the roofs of the two shops were not included in the tenancy of the respondents. The respondents admitted having made the constructions but pleaded that they had done so with the consent of the appel lants. They further pleaded that the roofs of shops Nos. 277. 280 and 281 were included in the tenancy of shop No. 279. It was also denied that the constructions materially altered the accommodation.

(3.) THE only question, which arises for determination in these appeals, is whether the appellants' case was covered by the provisions of S. 3 (1) (c) of the U. P. (Temporary) Control of Rent and Eviction Act, that is to say. whether the appellants have succeeded in establishing that the tenants had. without their permission in writing, made any such constructions as, in the opinion of the court, had materially altered the accom modation. Admittedly no written consent of the appellants had been taken by the respondents before making the construc tions. Therefore, the question for con sideration was whether the constructions made by the respondents had materially altered the accommodation. The learned Single Judge, before whom these two appeals came up for hearing referred them for decision to a Bench as. in his opinion, they involved questions of con siderable importance. The appeals then came up for hearing before a Bench consisting of Gupta and Kirty, JJ. Gupta. J. was in favour of allowing the appeals. In his opinion even though the respondents were not entitled to use the roof of the shop, the material constitut ing the walls and roofs etc. must be treated as part of the structure let out to the respondents and that he could not conceive of a grosser case of material alteration in the accommodation let out to the respondents. He observed:-