Makundi Lal vs Om Prakash And Another
2013 Latest Caselaw 3642 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Civil Misc. Writ Petition No. 48034 of 2003
 
Mukundi Lal 			-------				Petitioner
 
					Versus
 
Om Prakash & Anr.		-------				Respondents
 

 
Hon'ble Krishna Murari, J.

Heard Shri S.C. Verma, learned counsel for the petitioner and Shri K. Shailendra appearing for the contesting respondents.

This is a tenant's petition arising out of suit filed by respondents-landlord on the ground of default in payment of rent and structural alteration in the premises in dispute. It was pleaded that tenant was in arrears of rent and had made material alteration by diminishing the wall partitioning the shop and the gallery and the door, amalgamating the area of the gallery in the shop without any permission from the landlord. Petitioner-tenant contested the proceedings by filing written statement denying the allegations. It was pleaded therein that there was no default in payment of rent and no structural alteration has been done. It was further pleaded that landlord-respondent filed an earlier Suit No. 80 of 1976 on the allegation that tenant was in arrears of rent and has opened a door in the eastern wall without permission. The dispute was compromised between the parties and under the terms of the compromise deed dated 21.05.1980, petitioner was allowed to continue as a tenant of shop and gallery on eastern side on enhanced rent of Rs.115/- per month and, thus, it cannot be said that alteration by demolition of partition wall was without the consent of the landlords.

In so far as the issue of arrears of rent is concerned, trial court recorded a finding that entire outstanding has been deposited on the first date of hearing, as such, the tenant was entitled to be extended the benefit of Section 20 (4) of the U.P. Act No. 13 of 1972 (for short the Act). However, on the issue of material alteration, trial court decreed the suit. Tenant-petitioner went up in revision, which was dismissed by the revisional court vide judgment and decree dated 10.10.2003. Both the courts below have held that tenant-petitioner has demolished the partition wall between the shop and gallery and has amalgamated the area of the gallery in the shop which has resulted in diminishing its value.

Shri S.C. Verma, learned counsel for the petitioner contended that wall partitioning the shop and the gallery situate behind the back side was already demolished by the landlord-respondents themselves and the petitioner-tenant was allowed to continue on the basis of the compromise between the parties and, thus, there was no material alteration made by the petitioner-tenant and both the courts below have wrongly and illegally decreed the suit on this ground.

In reply, it has been submitted that earlier suit was filed on the ground of structural alteration by fixing a wooden 'taand' in the western portion of the shop damaging northern and southern walls and opening door in the partition wall on eastern side of the shop without permission. In the earlier suit, there was no allegation of demolition of the partition wall between the shop and the gallery. It has also been pointed out that compromise filed as Annexure 3 to the writ petition has no reference about the demolition of the partition wall between the shop and the gallery, rather a perusal of the same goes to show that it was agreed between the parties that the petitioner-tenant shall continue as a a tenant on payment of Rs.100/- for the shop and with respect to the disputed gallery, Rs.15/- per month was fixed as rent. The fact clearly goes to show that two tenements were different.

The question which arises for consideration is as to whether wall partitioning the shop and the gallery was demolished earlier in point of time by the landlords themselves, as alleged by the petitioner-tenant, and the area of gallery was also let out to him under the compromise on an enhanced rent, or it has been demolished subsequently as alleged by the respondents-landlord. A perusal of Annexure 1, which is plaint of earlier Suit No. 80 of 1976 demonstrates that said suit was filed on the ground of arrears of rent and structural alteration in the building diminishing its value and utility and disfigurement. It was specifically pleaded in paragraph 3 of the plaint that tenant has made structural alteration in the building without permission of the landlord by fixing a wooden 'taand' in the western portion of the shop in question damaging northern and southern wall and has also illegally opened a door, in the partition wall, on the eastern side, separating the shop and the gallery. There is no reference whatsoever with respect to demolition of partition wall. Even in the written statement filed by the tenant in the earlier suit, there is no reference of demolition of the partition wall. A perusal of the compromise deed filed as Annexure 3 to the writ petition also goes to show that it was agreed between the parties that the tenant will pay Rs.100/- as rent of the shop and Rs.15/- for the gallery, which was occupied by him. The terms of the compromise deed also go to show that shop and the gallery were two different tenements and there was a wall existing in between at the time of earlier litigation between the parties. There appears to be no dispute about the fact that gallery is situate on the eastern side of the shop partitioned by a wall.

One of the allegation in the earlier suit was that tenant has illegally and without permission of the landlord opened a door in the wall on the eastern side of the shop.

In the present suit, the allegation is that he has demolished the partition wall and the door affixed in the said wall. Thus, it appears that the tenant had opened a door in the partition wall between the shop and the gallery and had occupied the area of the gallery and had also made certain other structural alteration by fixing a 'taand', on the basis of which earlier suit was filed which ended in a compromise. Subsequently, the tenant-petitioner demolished the partition wall along with the door affixed therein on the basis of which the present proceedings were initiated by the landlord. It is to be taken note of that there is no allegation made by the tenant-petitioner either in the reply to the notice or in the written statement filed in the present suit that partition wall was demolished by the landlord-respondent himself before the compromise in the earlier suit. This fact has come on record for the first time in the oral testimony of the petitioner-tenant and his witnesses. The fact mentioned in the compromise deed in the earlier suit that tenant shall continue in possession of the area of the gallery on payment of Rs.15/- per month as rent, is clear indicative of the fact that at that point of time, a partition wall was in existence and the shop and the gallery were two different tenements.

In the said facts of the case, both the courts below have rightly reached the conclusion that the shop and gallery were two different tenements partitioned by a wall and there existed a door, which have been demolished by the petitioner-tenant.

The next question which arises for consideration is whether the demolition of the wall partitioning the shop and gallery tentamounts to such structural alteration of the building, which is likely to diminish its value and the utility or results into disfigurement of the premises.

Section 20 of the Act XIII of 1972 prescribes a bar on filing suit for eviction of tenant except for grounds specified therein. Section 20 (2) of the Act relevant for the purpose of the case reads as under.

"(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:

(a) ------------------

(b) ------------------

(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it."

A perusal of the aforesaid provision goes to show that liability for ejectment of a tenant from the let out premises would incur only when the landlord successfully establishes (i) there is no permission in writing; (ii) the tenant has made or permitted to make some construction or structural alteration in the building; and (iii) the construction and structural alteration made is such which results in diminishing the value of the property or utility or disfigures it.

In so far as permission in writing is concerned, it was not even the case set up by the petitioner-tenant that any such consent in writing or even by implication was given by the landlord. It is also not disputed that structural alteration have been made by the tenant in the shop in dispute. In so far as the first two aspects are concerned, the facts are admitted and there is no dispute between the parties. Thus, the only factor left open for consideration of this Court is whether structural alteration by demolition of the partition wall is of such a magnitude that it diminishes the value of the property or its utility or disfigures it and whether the inference drawn by the courts below in this regard is just and valid or is so manifestly illogical or erroneous so as to justify the intervention of this Court.

Whether any act amounts to structural alteration in the building or not is a question of fact to be determined in each case in the light of the circumstances.

In the case of Gurbachan Singh & Anr. Vs. Shivalak Rubber Industries & Ors., (1996) 2 SCC 626, it was held that finding of the trial court in respect of the construction or structural alteration would be finding of fact, but the question whether alleged additional alteration has materially impaired the value and/or utility of the premises in dispute, is a mixed question of law of fact, which requires to be determined in the light of the facts and circumstances of each case.

According to the Blacks Law Dictionary, value means the significance, desirability or utility of something. In other words, the intrinsic worth of a thing. In order to attract the provisions of Section 20 (2) (c) of the Act, it has to be established that the tenant has caused such structural alteration or construction which diminished the quality strength or value of the building let out to him to an extent that intrinsic worth of the rented tenement is considerably affected. The decrease in value of the rented tenement, in other words, the impairment of the usefulness or the value or utility of the rented tenement, is to be tested from the point of view of landlord and not that of the tenant. In the case of Gurbachan Singh (supra), the tenant had removed full size door of the one shop and merged the same into open part of varandah. This was held to be structural alteration impairing material value and utility of the building.

In paragraph 14 of the reports, the Hon'ble Apex Court has observed as under.

" 14. ......... then the rest of the construction, additions and alterations of the five shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. ......... In the present case the removal of the roof of the shops, partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 13(2) (iii) of the Act. "

In the case of Nanak Chand Vs. Om Prakash & Ors., 1983 (2) ARC 135, where the partition wall intervening the two shops was removed, this Court held:

" When a partition wall was constructed between the two shops belonging to co-owners with the result that respondent no. 1 became the owner and landlord of the shop in dispute exclusively and ceased to have any connection with the adjoining shop there can be no manner of doubt that the removal of the partition wall which converted two independent shops into one single unit would come within the purview of structural alteration in the building. Likewise, if the partition wall between the two shops were removed there seems to be no doubt that the value of the shop at any rate, to the extent of the value of the wall removed by the tenant apparently diminished. Thus, it was clearly a case where provisions of Section 20 (2) (c) of the Act were attracted."

In Ashok Kumar & Ors. Vs. Additional District Judge, Bareilly & Ors., 1993 (1) ARC 181, learned Single Judge of this Court held as under.

"In a case where the constructions are demolished and there is no justificable reason to demolish any portion of the building, it is for the tenant to establish that it has not diminished the value, utility of the building or disfigured it. The case where the building or any portion of it is in such a dilapidated condition that the tenant has to remove the same, the position may be different but to demolish any portion of the building for his own purposes shall reduce the utility and the value of property. The value of the shop to the extent of value of the wall removed by the tenant is diminished. Further in case there are two shops and intervening wall is removed, the existence of two shops is reduced into one shop and their utility as two shops are affected."

Applying the above tests, in the case in hand, the shop and adjacent gallery were independent of each other, partitioned by a wall of permanent nature with a door affixed therein. The rent of the two tenements was separate and independent of each other. The petitioner-tenant demolished the permanent partition wall and amalgamated the area of the gallery into the shop, though it was a separate tenement. The same has definitely resulted in diminishing the value of the building.

Reliance placed by the learned counsel for the petitioner on a judgment of the learned Single Judge in the case of Satish Chandra Agarwal Vs. Ist A.D.J., Shahjahanpur & Ors., [2005 (59) ALR 838] is misfounded and has no application as it is clearly distinguishable on facts. In the said case, in place of 'kachha' partition wall, a 'pakka' wall was raised and in place of wooden roof, lintel roof was constructed and in the backdrop of these facts, this Court held that converting a 'kachha' wall into 'pakka' wall and converting the wooden roof into lintel roof has not diminished the value or utility, on the other hand, it strengthened and increased the value and utility and gave it a better look.

In the backdrop of facts of the case and discussions, the irresistible conclusion is that existing partition wall with the door affixed therein has been demolished by the petitioner-tenant, which was resulted in diminishing the value of the building and the concurrent finding recorded by the two courts below in this regard requires no interference.

Accordingly, the writ petition lacks merit and stands dismissed. However, in the facts and circumstances, there shall be no order as to costs.

July, 4th 2013

VKS