CHANDRA PRAKASH Vs. SARDAR JAIMAL SINGH

JUDGEMENT

(1.) N. N. Mithal, J. This second appeal is by the plaintiffs in a suit filed by them for eviction of the respondent from the house in question. The cause of the filing of the suit was that the defendant had unautho-risedly and without the consent of the plaintiffs constructed one pucca bath room and one kitchen in the sahan of the house causing the sahan as unusable and that it has also affected the light and air in the residential portion of the house and the utility of the entire property has been thus damaged. By notice dated 19-10-1967 the defendant was required to restore the property to its original condition within one month but the defendant did not comply and, therefore, the defendant's tenancy stood terminated by the same notice. The defendant contested the suit on the ground that the bath room and the kitchen had been constructed with the consent of the plaintiff's guardian in January 1966 temporarily and in doing so the defendant had not made any change in the structure of the house. It was also alleged that the value of the property has not been diminished on account of the alleged construc tions and that the offending constructions can be removed without causing any damage to the main property easily within one hour. On these grounds it was contended that the defendant was not liable for eviction as the constructions did not amount to "material alterations" within the meaning of Section 3 of U. P. Act III of 1947. The trial Court dismissed the suit and the lower appellate Court also maintained the same holding, on the basis of the decision in Dr. Jai Go pal Gupta v. Both Mai 1969 A. L. J. 477 that the constructions in question did not amount to material alterations and as such the defendant was not liable for the ejectments, which is still relied upon by the counsel for the respondent. Being aggrieved by the decisions of the Courts below, the plaintiffs have come up in second appeal before this Court. In this second appeal, the only point which comes up for consideration is as to whether the constructions in question amounted to material alterations within the meaning of Section 3 of the U. P. Act III of 1947. It is admitted that these constructions had been made by the defendant. A commission was issued whose report is Ex. 60-C on the record along with a site plan. The Commissioner has reported that the constructions of the kitchen as well as of the bath room has not been made by breaking any portion of the existing structure and the entire offending constructions are separate. The bath room is without roof while the kitchen is covered but the roof is quite separate from the Sahadari adjoining it. The floor of both the constructions are about 2" higher than the floor of the Saban. Bath room is 6' in height and the kitchen is T6" in height. No objection appears to have been filed against this report and it was confirmed by an order dated 17-3-1969. The only question that now remains for consideration is as to whether these admitted constructions amount to material alterations or not. The learned counsel for the appellant has relied upon the case of Manmohan Das Shah v. Bishan Das A. I. R. 1967 S. C. 643 while the learned counsel for the defendant has relied on the case of Jai Gopal Gupta v. Both Mai (supra) decided by a Division Bench of this Court. It may be stated that on the facts, the case of Jai Gopal Das v. Both Mai is almost at par with the case in question. However, it was submitted by the learned counsel for the appellants that the principles laid down in this case are quite contrary to the later decisions of this Court and also to the case of Manmohan Dass Shah v. Bishan Das (supra ). The main argument was that the six principles which have been carved out in the case of Sardar Bahadur Mathur v. Kali Prasad Gupta 1961 A. L. J. 137 are no longer valid except only grounds No. 1 and 6. Grounds No. 2 to 5 now stand over-ruled owing to the decision in Sf ta Ram Saran v Johari Mai 1972 A. L. J 301. This situation was considered in Ratan Singh v. Khudaband Hayyul Qayyum 1976 A. L. R. 766 and on a review of the case law on the point in the light of the case of Man Mohan Das Shah v. Bishan Das (supra) it was held that out of the following six conditions for holding a particular alteration to be a material alteration grounds No. 2 to 5 are no longer applicable. These grounds may be enumerated as under:- 1. "whether the constructions have in substantial manner changed the form or structure of the building.

(2.) WHETHER the constructions are consistent or inconsistent with the reasonable user of the premises for the purposes permissible under the lease.

(3.) WHETHER the constructions are separable and removable and if removed, can be removed without any way affecting the premises pre judicially.