NAND KISHORE Vs. LILA

JUDGEMENT

(1.) AFTER having been defeated in the two Courts below the plaintiff appellant has come up before this Court in second appeal in a suit for ejectment and mandatory injunction filed by him against the defen dant respondent. In brief the relevant facts are that the plaintiff as Manager of Dharam-shala Mukandi Devi in the town of Meerut filed this suit against the defendant on the allegation that a quarter shown by letters A B C D and a verandah shown by letters C D E F was let out to the defendant at the rate of Rs.2.50 per month. The defendant also held the right of egress and ingress over the land lying towards north through a door shown by letter D in the plaint map. It was stated that over this open land the defen dant had merely right of egress and ingress but the defendant had illegally raised certain constructions in the nature of a tin shed, a thatch and a big platform and some drain and in this manner it is alleged that the defendant had materially altered the position and as such was liable to ejectment. The defendant contested the suit and asserted that the constructions that exist on spot have been continuing from the time of the inception of the tenancy and no material alteration has been done by the defendant and therefore the suit was liable to be dismissed. The trial Court framed as many as 9 issues but the relevant once are issue No. 1 and 7 which are as under: 1. Whether the defendant has made any material alterations in the accommodation in suit as alleged in the Plaint ?

(2.) WHETHER the suit for mandatory injunction is not maintainable ? While deciding issue No. 1 the trial Court came to the conclusion on the basis of the contents of the original rent note Ex. 3 that the demised premises merely included one room and verandah and no other constructions. The Commissioner's report on the record also show that there was a row of quarters, verandah behind them and in these quarters there exist no other constructions except the open land. From all this the trial Court concluded that the structures were not in existence at the time of the inception of the tenancy and to that extent the allegation of the defendant was found to be incorrect. Further relying upon 1969 A.L.J. p. 477 the trial Court held that since these constructions were of a temporary nature, therefore, it cannot be held that any material alteration has been made by the defendant. On issue No. 7 the Court came to the conclusion that since the plaintiff was not in possession over the land and did not claim any relief of possession in the suit therefore the mandatory injunction for demolition of the illegaly raised construction cannot be granted to the plaintiff. In that view of the matter the Court dismissed the suit for ejectment etc. When the matter was taken to the lower appellate Court at the instance of the plaintiff it considered mainly two questions as under: 1. The defendant has raised constructions over the land which was not part of his tenancy thus he has caused material alterations; and 2. The defendant has caused nuisance and due to this he is liable for ejectment. The lower appellate Court proceeded on the ground that the rent note Ex. 3 cannot be relied upon for the reason that rent of Rs.2/- was reserved for the demised premises while admittedly the rent payable at the time of the suit was Rs,2.50 per month. From this the lower appellate Court concluded that there must have been novation of the contract subsequent to the execution of Ex. 3 by which the rent was enhanced from Rs.2/- per month to Rs.2.50 per month and since no rent note was forthcoming therefore the Court concluded that the plaintiff had suppressed this document otherwise it would have been shown that the disputed constructions had also been let out to the defendant. The reasoning thus adopted by the Court does not, however, appear to be in accordance with the evidence on record. In para 10 of the statement of P. W. 1 it has specifically come that the rent was enhanced to Rs. 2.50 per month about 10 or 12 years ago and at that time the tin shed and thatch was not in existence. It has further come in his statement that at that time no rent note was also executed. The defendant has not either disputed this position in his statement nor he has suggested that any other rent note had been executed after Ex. 3 at the time when the rent was enhanced from Rs.2/- per month to Rs.2.50 per month. Under these circumstances, I find it difficult to agree with the lower Court's finding on this point. In my opinion Ex. 3 was an important document for considering as to whether the land where disputed constructions were raised did not form part of the defendant's tenancy. Proceeding further the lower appellate Court has held that according to the defendant the accommodation is found under U. P. Act 3 of 1947 the material alterations ought to have been made in the demised premises and not outside it. He further agreed with the trial Court that the cons tructions are of a temporary nature and could be removed without any difficulty and as such applying the ruling reported in 1969 A.L.J. 477 the lower appellate Court also dismissed the suit. On the question of nuisance also the Court has held that the raising of construction etc. does not amount to nuisance as such the plaintiff's suit was liable to fail. The learned counsel for the appellant in this Court has argued that the ruling which has been relied upon by the two Courts below is no longer good law in view of the later Full Bench of this Court decided on February 3, 1972 and reported in Sita Ram Sharon and another v. Johrt Mal 1972 A.L.J. 301 wherein the case 1969 A.L.J. 477 was distinguished. In 1972 A. L. J. page 301 the defendant was a tenant of the two shops out of several shops and he had constructed certain structures on the first floor of the shop. The question arose as to whether the constructions have been made in the accommodation and whether it could be said that the defendant had caused material alterations to the accommodation. It was held that although the roof of the shops was not in the tenancy of the tenant yet the construction made on the roof were such which has some "connection with the accom modation or the premises that have been let out. Such constructions may be inside the demised premises or on the outside or over it. It is not confined to constructions in the demised premises." In view of this observation it was argued by the learned counsel for the appellant that the land which was meant only for the egress and ingress of the tenants for reaching the demised premises though not in the tenancy of the defendant but constructions found as it could amount to alteration in the demised premises within the meaning of section 3 of U. P. Act 111 of 1V47. As held in 1972 A. L. J. page 301, it is not essential that the material alteration should take place only within the demised premises but may be over the demised premises or even outside the demised premises. As an instance, if a shop has been let out to a tenant with an open platform in front of it and the tenant raises some constructions over the open platform it would definitely be not within the accommodation yet it would amount to material alteration in the premises leased out. It is not essential that the construc tions must therefore be confined to the inside of the demised premises to come within the mischief of Section 3 of the U. P. Act No. III of 1947 but even if the constructions are over or outside the demised premises at a place which is inherently connected with the demised premises the structures can be called to have caused material alteration to the accommodation if other conditions are satisfied. That being so I am of the opinion that the learned Court below have erred in holding that the constructions raised on the land towards north of the demised premises and which was meant for the egress and ingress of the tenant would amount to alteration in the accommodation. This brings us to another aspect of the matter as to whether the structures in this particular case amounted to material alteration or not. The word "material alteration" cannot be defined with precision. Every case has to depend on its own facts and the meaning and concept of the words "material alteration" will change from place to place and from building to building and therefore the question whether a particular cons truction amounts to "material alteration" or not will have to be examined in the light of the facts of each case. In the instant case the defendant was let out one room and a verandah behind it on rent. There are two other quarters adjoining the disputed accommodation towards its west and several other buildings existing towards east of the quarters in question. The raising of the new construction has encroached upon the free passage of other tenants also and the construction of the shed or thatch or platform have substantially changed the appearance of the accommodation in possession of the defendant. By any stretch of imagination these constructions cannot be said to be merely of a tempo rary nature. The Supreme Court in AIR 1967 SC 643 observed that the expression "material alterations" in its ordinary meaning would mean important alteration such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case may not cause damage to the premises or its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of the lease." In the light of this observation and the principles laid down by the Supreme Court we have to judge the facts and circumstances of this case and come to the conclusion whether the structures raised by the defendants in the instant case amount to material alteration or not as observed above. The constructions in dispute have been raised on the open land adjoining to the demised premises which was meant only for the purpose of egress and ingress. The constructions are such as a thatch, a platform and a tin shed besides walls etc. have added more accommodation to the demised premises for use by the tenant. The constructions are such which are likely to obstruct in the user of the open land by the adjoining tenants of the same landlord. These structures have raised the level of the ground and the walls have obstructed the free use of the land. All these, in my opinion, amounts to material alterations and as such the defendant was guilty of making material alterations in the accommodation in suit and would be liable for ejectment. The appeal, therefore succeeds and is hereby allowed. The judgment and decree passed by the two Courts below are set aside and the suit of the plaintiff is decreed with costs throughout. The defendant, however, is grant ed three months time to vacate the premises and to remove his malva in the disputed constructions outside the demised premises within that period otherwise the plaintiff will be entitled to take possession over the same also.