GHANSHYAM Vs. SARDARMAL

JUDGEMENT

(1.) THIS appeal has been filed by the defendant, against the judgment and decree of the learned courts below, whereby the plaintiff respondent's suit for eviction has been decreed by both the learned courts below.

(2.) THE facts of the case are, that the plaintiff filed a suit for eviction and arrears of rent, pleading interalia, that the plaintiffs had a joint property comprising of big Kotha, which was let out on 30. 3. 1984, to the defendant for storing his goods of Tent House etc. , at a monthly rent of Rs. 200/ -. It was stipulated that the defendant will not materially alter the premises. The measurement of the Kotha is given as 34 x 24 ft. , and was one apartment, having main gate in the North, which door was measuring about 10 x 8 ft. having wooden shutters, on the side of this opening there was one window, measuring 3 x 4 ft. having Teak wood fittings. It is alleged that about a Week ago, the plaintiff had materially altered this wall, by demolishing certain portion, and instead of window, a new big door has been opened, whereon iron shutter has been installed. Inside the Kotha a permanent partition wall of stone and cement has been constructed, and thereby a shop has been constructed, and thereby size of Kotha has been reduced, and a new shop has been constructed, having opening in the wall. Existing cement flooring has been demolished, and two separate rooms have been constructed. Lofts have been placed, and thus the entire Kotha has been substantially and materially altered, unauthorisedly. It was then alleged, that the shape of the Kotha has been brought to an end. Its utility has been substantially reduced, and the original accommodation has been divided into rooms. Thus, the act of the defendant was contended to be giving rise to the ground of eviction, as contemplated by Section 13 (1) (b) and 13 (1) (c) of the Rajasthan Premises (Control of Rent & Eviction) Act, hereafter referred to as the Act. It was then alleged, that Kotha was let out for Tent House business, which has been closed by the defendant, and instead, by altering the premises, he has opened a Tea Stall, and is doing photography business. Tea Stall is creating nuisance, and therefore, eviction was claimed on the ground of it falling under Section 13 (1) (d) of the Act. Then, the arrears of rent for a period of three months was claimed. It was also alleged, that in the Eastern wall there was a gate, which always remained closed, and towards further East, there is plaintiff's other premises, in the tenancy of Banshilal, the defendant has made alternations, and has opened this gate also anew, and is out and out to disturb the possession of other tenant Banshilal. Interalia with these averments the suit for eviction was filed, and injunction was also prayed, to restrain the defendants from making further alterations. The defendant contested the suit by filing written statement on 29. 4. 1992. Therein execution of rent note, and taking of the premises as mentioned in Para-1 of the plaint was admitted. It was pleaded that at the time of letting out, the property was not measured, and it is wrong to contended, that it is one apartment. Existence of door in the North was admitted. It was pleaded that the door was also not measured at that time, and there was no window as alleged. Making of any alteration by the defendant was denied, erection of partition was also denied, and placing of lofts was also denied. It was maintained, that the premises are in the same shape and condition, in which they were, at the time of commencement of tenancy. Placing of shutter at the place of window was also denied. It was denied that the premises were taken on rent for Tent House. However, it was pleaded, that the defendant is carrying on business in the name of Laxmi Tent House, and he was earlier also doing photography business, which is in continuance, so also the Tea business was being carried on since beginning. It was then pleaded, that the defenant is entitled to use the eastern gate, and is using it. It was alleged, that it was at the behest of the plaintiff, that in January, 1991, Banshilal had closed this door, and when the defendant asked to open the door, the plaintiff resented against it to the tenant, and the plaintiff assured the defendant to open the door, but i was not opened till the date, with the result, that the defendant is not able to use the entire property. It was pleaded, that the defendant had taken suit premises on rent for earning livelihood, but looking to the increase in the rental value, the plaintiff wanted to increase the rent, to which the defendant did not agree, and therefore, a false suit has been filed. In additional pleas maintaining substantially the pleadings taken in the earlier part of the written statement, it was pleaded that if the defendant had done any material alteration, the plaintiff would have objected to it at that time, and would have given notice to stop, but nothing was done. Likewise it was pleaded, that earlier the premises was not yielding any return, and with a view to have good return, it was the plaintiff, who made desired alteration in the premises, and then had let it out to the defendant. Interalia with these pleadings it was prayed, that the suit be dismissed.

(3.) I have considered the submissions, have gone through the entire record, so also various judgments cited by both the counsel for the parties.