ABDUL KAYUM Vs. ANAND PRAKASH

JUDGEMENT

(1.) HEARD learned counsel for the parties. This appeal is of the plaintiff-landlord against the judgment and decree of the first appellate court dated 3.4.1993 by which the first appellate court allowed the appeal of the respondents-tenant and dismissed the suit filed by the plaintiff for obtaining decree for eviction against the defendants- respondents sought on the ground of alleged material alteration in the premises in dispute which was let out to the defendants-respondents in the year 1941. It appears that the plaintiff-appellants filed the suit alleging that defendants-respondents, in the year 1977, raised parafit wall by 4 ft. height and by putting iron angles and cement sheets over the iron angles converted the part of the premises which was open to sky, into two rooms, and in one of the rooms they also constructed a bathroom. The defendants also, in the same manner of putting cement sheets, raised construction of one kitchen which materially altered the premises in question.

(2.) THE defendants-respondents submitted reply in detail that they have never raised any construction nor materially altered the premises, but in fact the said structure was covered by "shirkian" (dead bushes wood) from the time of start of tenancy. In the year 1942 that temporary roof was replaced by cement sheets and in the year 1952 with the consent of the landlord, without any addition or alteration, with the help of iron angles, certain more iron sheets were put. In the year 1957, because of storm the part of cornish and the projection was destroyed, therefore, with the consent of the then landlord, they were again repaired. In this way, the tenant explained how the present structure came into existence in the present form from 1941 to 1977. The trial court, after recording the evidence found the alteration as subsequent one and not as alleged by the defendants and also found that the structure materially altered the premises, therefore, held the plaintiff is entitled for decree for eviction and the trial court decreed the suit by judgment and decree dated 29.2.1987. The appellate court reversed the decree holding that though the structure was raised subsequently, but whatever structure is there, it does not constitute any material alteration as the structure is of temporary nature and can be removed without any expenditure and by removal also, there will be no loss to the property.

(3.) THIS Court, while admitting the appeal, framed the following issues on 16.9.1993 :-