BALDEV DAS Vs. RAM KHELAWAN

JUDGEMENT

(1.) THE plaintiff-applicant is the landlord of the shop in-dispute which has been in the tenancy of the defendant-opposite party. THE plaintiff-filed a suit for defendant's ejectment on the ground that the defendant had made material alterations in the tenanted shop. THE defendant contested the suit and asserted that he had not made any material alterations. He further asserted that the plaintiff's suit was not maintainable as no valid notice termina ting his tenancy had been served on him as contemplated by section 106 of the Transfer of Property Act. THE trial court decreed the plaintiff's suit. On appeal the Additional District Judge, Varanasi set aside the order and decree of the trial court and dismissed the plaintiff's suit. Now the plaintiff has preferred this revision under section 115 of the Code of Civil Procedure, against the judgment and decree of the Additional District Judge. On the finding recorded by the courts below the shop in dispute had been let out to the defendant for running a flour mill. THE lower revisional court held that the lease was for manufacturing purposes and since the defen dant had not been given six months' notice as contemplated under section 106 of the Transfer of Property Act the plaintiff's suit was not maintainable. Learned counsel for the plaintiff challenged this finding and urged that grinding of wheat or corn by means of power driven machine did not amount to manufacturing process. He placed reliance on Allenbury Engineerers v. S. R, K. Dalmia, A. I. R. 1973 S.C. 425 in supprt of his contention. Having given my anxious consideration to the question raised by the plaintiff-applicant, I find no merit in the same. THE burden of proving that the tenancy was for manufacturing process lies on the party who claims it to be so. THEre is no dispute on this question. Both the parties proceed on the assumption that the tenancy was let out for running a flour mill. In Allenbury Engineer's case, the Sup reme Court observed : "THE Word 'manufacture' implies a change but a mere change in the material is not manufacture. THEre must be such a transformation that a new and different article must emerge having a distinctive name, character or use." Applying the test laid down by the Supreme Court, I have no doubt in my mind that a flour mill involves manufacturing process. Wheat, corn or any other grain after grinding by the machines of the mill produce flour which is a different article. As a result of grinding process a new article emerges which is quite different from the original article. It has distinct name, chara cter and use. Wheat corn or any other grain cannot be put to the same use to which flour is put. In substante, the test laid down by the Supreme Court is fully satisfied in the instant case. In Behari lal v. Smt. Chandrawati, A. I. R. 1966 All. 541 It was observed that running a flour mill is substantially a process of manufac ture, as the mill grinds corn into flour and thereby makes a new product. I am in complete agreement with the view taken by the learned Judge. I, therefore, hold that running of flour mill involves manufacturing process, therefore, the defendant was etnitled to six months' notice. Learned counsel then urged that the lower revisional court exceeded its jurisdiction in interfering with the findings of fact recorded by the trial court on the question of material alteration in the shop by raising a partition wall inside the shop without permission from the landlord. THE Additional District Judge held that mere raising of partition wall did not amount to material altera tion in the form and structure of the building in question. THE findings record ed by the lower revisional court are in accordance with Supreme Court decision in, Man Mohan Das Shah v. Bishi A. I. R. 1967 S. C. 643, and a Division Bench decision of this court in, Jai Gopal Gupta v. Bodh Mal 1969 A. L. J. 477. THE lower revisional court while exercising jurisdiction under section 25 of the Provincial Small Causes Court Act acted within its jurisdiction in interfering within findings of the trial court as those findings were contrary to law. THE question whether raising a partition wall within the tenanted shop would amount to material alteration is essentially a mixed question of fact and law. THE trial court had wrongly held that merely by raising a partition wall, there was material alteration, since this find ing was not in accordance with law, the lower revisional court had jurisdiction to interfere with the findings of the trial court. In the result, the revision fails and is accordingly dismissed but there will be no orders as to costs.