ASHOK KUMAR Vs. FAQIR CHAND

JUDGEMENT

(1.) THIS is landlords, petition in whose favour ejectment order was passed by the Rent Controller, but was set aside in appeal. Ashok Kumar and Pardeep Kumar landlord filed the ejectment application on 23.8.1972, for the ejectment of their tenants Faqir Chand and others. Originally, the premises in dispute was rented out in the year 1948 to Roshan Lal. Later on vide rent note dated 11.1.1945, Exhibit A-2, an additional room was given to the tenant Roshan Lal and the rent for the entire premises was fixed at Rs. 80/- per month, which was exclusive of water and electricity charges. Roshan Lal died in the year 1965 and thereafter his son Faqir Chand became tenant under the landlords. He started paying rent to them. The ejectment was sought, inter alia, on the ground of nuisance to the occupiers of the building in the neighbourhood including the landlords themselves as the tenants operated machinery installed therein for all the 24 hours and on the further ground that the tenants have impaired materially the value and utility of the building in dispute by making structural alterations, as detailed in paragraph No. 12 (iii) and also on the ground that they had blocked the passage by storing their dirty refuse either paper cuttings or other material in the main passage. It was specifically stated that the material structural alterations and additions have been effected by the tenants without the consent in writing of the landlords or of their father Lal Chand who was the original landlord and the said alterations have materially impaired the value and utility of the demised premises. In the written statement filed on behalf of the tenants the said allegations were controverted. It was pleaded that the tenants have not made any structural alterations not did any act, which has materially impaired the value or utility of the building in dispute. According, to the allegations in the written statement, in paragraphs 3 and 4 particularly, the tenants have not effected any alterations alterations and they have been using the property as it existed at the time when they took over after the death of their father Roshan Lal.

(2.) ON trial, the learned Rent Controller, came to the conclusion that all these alterations made in the building are material structural alterations, which have impaired the value and utility of the building in dispute. It has been further found that the presence of cement in patches in the building, the erecting of walls, the installation of shutter and the construction of slabs, the erection of doors and the Mianis, both with the help of the wood and cement, opening of holes in the wall for putting rafters for a support to the Mianis, all amount to material alterations. In view of that finding, an ejectment order was passed on 30.5.1983. It is surprising that the ejectment application filed in August, 1972, remained pending for more than 10 years before the Rent Controller.

(3.) IT is the common case of the parties that certain additions and alterations do exists in the premises in dispute, the details of which are given in the ejectment application. Two alterations i.e. construction of a room for a generator and putting a shutter after removing the window and the two steps thereunder were done during the pendency of this petition in the year 1973. According to the tenants the said alterations made in the year 1973, have not materially impaired the value and utility of the demised premises and the other alleged alterations were never made by them. They took the premises as it existed at the time of its leasing out. According to the learned counsel for the tenants, the present tenants came into picture in the year 1965, on the death of their father Roshan Lal and, therefore, any alterations etc. if made, may have been done by Roshan Lal and not by them. Since the landlords accepted them as the tenants, those alterations etc. made by Roshan Lal will be deemed to have been acquiesced by them and, therefore, on that ground no ejectment order could be passed against them. On the other hand, the learned counsel for the landlords submitted that from the written statement filed by the tenants and the statement of Shri Faqir Chand tenant as RW-1 the case set up by them was that no additions or alterations were ever made by them and the building existed as it was in the year 1955, when rent was enhanced to Rs. 80/- per month vide rent note Exhibit A-2 dated 11.1.1985. Thus, the main controversy between the parties in this petition is as to when the said alterations were made and by whom. According to the findings of the Rent Controller the said allegations were made by the tenants after the year 1955 and the same have materially impaired the value and utility of the demised premises. This finding was mainly based on the comparison of the two plans filed by the parties i.e. site plan Exhibit RW-1/1, which was got filed by the landlords from the tenants and the site plan Exhibit A-5. Whereas according to the Appellate Authority, since the landlords have specifically pleaded that the alterations were made about 10 months prior to the filing of the ejectment application i.e. in October, 1971 and the landlords having failed to prove the same, their ejectment application was liable to be dismissed.