RAM KISHAN Vs. MAYA DEVI

JUDGEMENT

(1.) THIS is a tenant's petition against whom eviction order has been passed by both the authorities below. Landlady Maya Devi widow of Dev Dayal sought ejectment of her tenant Ram Kishan from a part of the house in dispute, inter alia on the ground that the tenant had constructed kitchen in the courtyard, latrine and bath room in the Dehliz, a big almirah in the room towards the western side and had converted the latrine into store and a tin shed on the first floor. Since all this had been done without the consent of the landlady, it has materially impaired the value and utility of the demised premises.

(2.) THE stand taken by tenant in the written statement was that it is the landlady who carried out additions and alterations. He has not raised any constructions after renting out the premises from the landlady. It was also pleaded that the landlady was estopped by her own act and conduct to file the present petition. The learned Rent Controller after discussing the entire evidence came to the conclusion that the alleged construction of flush latrine, bathroom, kitchen and almirah were made by the tenant after the premises were let out to him on a monthly rent of Rs. 9/-. The Rent Controller further found that "In the result, I hold that the respondent, by raising construction of kitchen and almirah as referred to above has diminished the value and utility of the demised premises and as such, he is liable to ejectment on this ground." It was also found that construction of this almirah has naturally diminished the size of the room and thus has decreased the utility by diminishing the open place i.e. area of the room from the point of view of the landlord. Moreover, the kitchen has been constructed in front of the two rooms which has obviously blocked the air and light of these two rooms as is shown in the site plan Exhibit P.2. Consequently eviction order was passed on 14.12.1985 whereas the ejectment application was filed on 13.11.1981. In appeal, the learned Appellate Authority affirmed the said findng of the learned Rent Controller and thus maintained the eviction order. It was held by the Appellate Authority that "It is to be taken note of that by the construction of almirah in the room the tenant has reduced the length of the room. Similarly, by the construction of the kitchen in the courtyard not only its area has been minimised but also the two windows of the two rooms opening in the courtyard have been blocked thereby preventing the adequate supply of light and air in those rooms. All this certainly amounts to material impairment of the value and utility of the building. The Rent Controller thus came to the right conclusion and no exception can be taken of this verdict." The Appellate Authority categorically held that "here, not only the constructions made by the tenant are permanent in nature but also these have been made in a manner that has materially impaired the value and utility of the building". In paragraph 12 of the judgment, the Appellate Authority observed that "It also deserves to be added that raising of the construction of kitchen and the almirah is not refuted by the tenant. It stands well proved from the evidence on the file and it was not impeached by the learned counsel for the tenant in the course of his arguments."

(3.) ON the other hand, the learned counsel for the landlady submitted that there was no question of any acquiescence or waiver on her part because according to the findings of the authorities below the alterations and construction were made in the year 1979-80. Immediately the landlady resisted and even reported the matter to the police as well as to the Municipal Committee as the construction was raised without any prior permission of the Committee. He further submitted that the acceptance of rent itself does not amount to acquiescence because the landlady was entitled to rent in any case as long as the tenant was occupying the premises. Moreover, no such argument was raised before the Appellate Authority and, therefore, the same could into be allowed to be taken for the first time in this Court. It was further contended that whether a particular construction has materially impaired the value and utility of the demised premises or not is a question of fact in each case and on the appreciation of the entire evidence both the authorities below have categorically found that the construction and alterations made by the tenant have materially impaired the value and utility of the demised premises. The same should not be interfered with in the revisional jurisdiction. He also submitted that the landlady has stated in her statement as A.W.1 that after the construction raised by the tenant, the whole plan of the house has been changed on account of which she has suffered a lot. In order to prove that, during her statement she produced the site plan Exhibit P.2 to show how it has materially impaired the value and utility of the demised premises. In support of his contention, he referred to Ram Parkash v. Smt. Gurdev Kaur, 1984(2) RCR 651, Sudarshan Kumar v. Tejinder Singh, 1987(2) P.L.R. 44 and Firm Sagarmal Vishnu Bhagwan v. Gauri Shanker and others, 1988(2) RCR 444, a judgment of the Supreme Court, to contend that concurrent finding of fact should not be interfered with in the revisional jurisdiction.