SUNDER DAS Vs. ZANNAT BEGUM

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit for ejectment. The ejectment was sought on three grounds, namely personal necessity, default and material alterations made by the defendant in the suit premises. The trial Court found the ground of personal necessity, as well as material alterations in the favour of the plaintiff and decreed the plaintiff's suit. On the defendant's appeal, the learned District Judge, Pali, found against the plaintiff on the ground of personal necessity, but upheld the finding of the trial Court in respect of material alterations and confirmed the decree. The defendant has come up in second appeal.

(2.) THE following substantial questions of law had been framed at the admission of this appeal :-

(3.) LOOKING to the aforesaid two questions, I may only mention the relevant averments in the pleadings of the parties relating to the question of material alterations. In the para two of the plaint the plaintiff has stated that the defendant had changed the old door of the latrine and had thereby put an end to the plaintiff's rights (easementary rights) and this has also resulted into increasing insanitary condition. In reply to this, defendant has stated that he had not changed door of the latrine, nor has he affected the plaintiff's right on the western side, nor has caused increase in the insanitary condition. Looking to these pleadings it is quite clear that the parties very well knew what the case was. The learned counsel for the appellant has, however, urged that there is no averment in the plaint that the so-called alterations amounted to material alterations. I do not find force in the contention. In the first place when all the material facts have been stated it is a matter of inference, whether those facts constitute material alterations or not and in the circumstances even if it is not specifically stated in the plaint that the alteration was material, it would not be a sufficient ground to non-suit the plaintiff. In the second place, the plaintiff has clearly stated in para two of the plaint that on the account of the change of the place of the door, his rights towards the west have been jeopardized or put an end to and, therefore, this averment must mean that the alteration was deemed to be material by the plaintiff. Not only this, the defendant has also stated that the plaintiff's rights on the west have not been affected and, therefore, the defendant also was alive to the question that the plaintiff's rights towards the west were involved in suit and, therefore, he also knew that according to the plaintiff the alleged alteration was material. In these circumstances, it cannot be said that the plaintiff had failed to plead that the alteration was material.