Rajasthan High Court - Jodhpur

Sushil Kumar vs Chiranjilal on 17 May, 2022

Bench: Vinit Kumar Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2619/2019

Sushil Kumar S/o Chunnilal, Aged About 56 Years, By Caste Chopra, R/o Near Hari Ramji Mandir, New Lane, Gangashahar, Bikaner, District Bikaner.

----Petitioner Versus

1. Chiranjilal S/o Late Manaklal, By Caste Srimali, R/o Acharaya Ki Ghati, Bikaner, District Bikaner.

2. Kamalkant W/o Late Nandkishore, By Caste Srimali, R/o Acharaya Ki Ghati, Bikaner, District Bikaner.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Nishank Madhan
For Respondent(s)        :     Mr. Suresh Shrimali


        HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
                                    Order

17/05/2022

     Heard learned counsel for the parties.

The present writ petition has been filed against the order

dated 08.11.2012 passed by the Rent Tribunal, Bikaner, whereby

the application preferred by the respondents was allowed and a

decree for eviction was passed against the petitioner. The order

dated 08.11.2012 was challenged by the petitioner by filing an

appeal before the Appellate Rent Tribunal and the same has been

rejected vide order dated 09.01.2019. Aggrieved by the orders

passed by the Rent Tribunal as well as the Appellate Rent Tribunal,

the present writ petition has been preferred by the petitioner.

Brief facts giving rise to the present writ petition are that the

petitioner being a tenant of the respondent's shop is enjoying the

suit property since the year 1990. The respondents preferred an

(2 of 5) [CW-2619/2019]

application before the Rent Tribunal in the year 2007 for getting

the shop vacated and for handing over the peaceful possession of

the same to the respondents. The learned Rent Tribunal framed

issues and after discussion on each issue, recorded the findings on

Issue Nos. 3 & 4 against the petitioner.

Learned counsel for the petitioner has attacked the findings

of the Rent Tribunal on Issue No. 3 & 4 on the ground that the

alteration which has taken place in the suit premises cannot come

within the definition of "material alteration" and therefore, the

learned Rent Tribunal committed an error while recording the

findings against the petitioner on these two issues. He submits

that in the suit premises i.e. shop, the petitioner has changed the

floor by putting the glazed tiles and got installed an Air

Conditioner. He further submits that it has enhanced the value of

the suit property and has rather consolidated the premises in a

better way. He, therefore, submits that the finding recorded by the

Rent Tribunal on Issue No. 3 & 4 is perverse and it committed an

error by passing an order of eviction in this case.

Learned counsel further submits that even the Appellate Rent

Tribunal has not appreciated the contentions raised before it and

affirmed the findings recorded by the Rent Tribunal on Issue Nos.

3 & 4. He, therefore, submits that the present writ petition may be

allowed and the orders passed by the Rent Tribunal as well as the

Appellate Rent Tribunal may be quashed and set aside.

In support of his contentions, the learned counsel for the

petitioner relied upon the following judgments :-

1. Om Pal V/s. Anand Swaroop ::- 1988 SCC(4)545

2. Smt. Supyar Bai V/s. Smt. Gordhan Bai through her L.Rs.:: S.B.Civil Appeal No. 56 of 1989

(3 of 5) [CW-2619/2019]

3. Amar Singh V/s. Sheetal Prasad through L.Rs.::

2010(3) RLW 2571 (Raj.)

4. Om Prakash Vs. Amar Singh :: 1987 (1) RCJ 629

Per contra, learned counsel for the respondents submits that

that findings of the fact recorded by the Rent Tribunal on Issue

Nos. 3 & 4 is perfectly justified as it has come on record that

besides the changing of the floor and installing an Air Conditioner,

the petitioner had also affixed furniture and damaged the walls of

the shop and, therefore, the same falls in the definition of

"material alteration". Thus, the findings recorded by the Rent

Tribunal are just, proper and correct.

Learned counsel further submits that the Appellate Rent

Tribunal has taken into consideration the contentions raised before

it and has reiterated the fact that affixing of the furniture and

damaging the walls of the shop does constitute the material

alteration of the shop in the present case. He, therefore submits

that no infirmity has been committed by the Appellate Rent

Tribunal while rejecting the appeal of the petitioner. He prays that

the present writ petition is baseless and in view of the concurrent

findings of the fact recorded by the courts below, there is no

material before this court to re-appreciate the evidence and reach

to a different conclusion. He, therefore, prays that the writ petition

may be dismissed.

I have considered the submissions made at the bar and have

gone through the relevant record of the case as well as the

impugned orders passed by the courts below.

The findings of the fact recorded by the learned Rent Tribunal

on Issue No. 3 & 4 is to the effect that besides affixing the glazed

tiles on the floor and installing the Air Conditioner, the petitioner

(4 of 5) [CW-2619/2019]

also affixed/placed furniture damaging the walls of the shop and

after a detailed discussion, learned Rent Tribunal arrived at a

conclusion that the construction activities undertaken by the

petitioner in the suit property amounts to the material alteration

of the shop which resulted into damage of the suit property. For

better appreciation of the facts, the findings recorded by the

learned Rent Tribunal are reproduced as under:-

"36 & mHk; i{kdkjku dh cgl ds lacaèk esa ;fn i=koyh dk vè;;u fd;k tkos rks çdV gksrk gS fd vtÊnkj dh vksj ls ;g dgk x;k gS fd çR;FkÊ us oknxzLr fdjk;s'kqnk ifjlj esa rksM+QksM+ dj bPNkuqlkj QuÊpj yxk fy;k gS] nhokjsa {kfrxzLr dj nh gS vkSj iqjkus Q'kZ dks rksM+ dj u;k Q'kZ cuk fy;k gSA bl lacaèk esa lk{kh ih MCY;w ,d fpjath yky ds dFkuksa esa Li"V dFku vafdr fd;s x;s gSaA vè;;u ls çdV gksrk gS fd blds eqrfYyd çR;FkÊ us dksbZ ftjg ugha dh gSA dkuwu dh LFkkfir O;oLFkk ds çdk'k esa vtÊnkj ds dFku bl fcUnq ij v[kf.Mr gSaA eSa fo}ku vfèkoäk çR;FkÊ ds bl rdZ ls lger gw¡ fd tgka ifjlj esa mlds Lo:i dks cnys fcuk dksbZ ifjorZu fd;k x;k gS] og ifjlj dks etcwr djrk gS vkSj mlds Lo:i dks vPNk djrk gS] ftls lkjHkwr ifjorZu vFkok {kfrdkfjr ifjorZu ugha dgk tk ldrkA fuf'pr rkSj ls iqjkus Q'kZ dks gVk dj u;k Q'kZ cuk;k tkuk lkjHkwr ifjorZu vFkok {kfr dkfjr djus okyk ifjorZu ugha dgk tk ldrk ijarq vtÊnkj us viuh lk{; esa Li"V rkSj ls ;g dgk gS fd çR;FkÊ us nqdku esa txg txg rksM+ QksM+ dj viuh lqfoèkkuqlkj QuÊpj yxk;k gS ftlls nqdku dh nhokjsa {kfrxzLr gks x;h gSaA esjs fouez er esa ;g ,d ,slk fcUnq gS] ftls vfHk[kf.Mr fd;k tkuk pkfg;s Fkk] fdUrq blds lacaèk esa dksbZ Hkh ç'u çR;FkÊ dh vksj ls ih0 Mh0&1 lk{kh fpjath yky ls ugha iwNk x;k gS blfy;s ;g foUnq v[kf.Mr jg x;k gSA vkSj v[kf.Mr lk{; dks gqcgw i<+k tkdj lgh ekuk tk;saxk] ,slh fofèk dh LFkkfir O;oLFkk gS vkSj ;fn ,slk gS rks esjs fouez er esa ;s nksuksa gh fcUnq çkFkÊ ds }kjk çekf.kr ugha ekus tk;saxs D;ksafd nhokuh ekeyksa esa fdlh Hkh rF; dks leLr lansgksa ls ijs gksus dh vis{kk dkuwu esa ugha dh x;h gSA vfirq çh i‚Mjsal v‚Q ,ohMsal ds vkèkkj ij fu"d"kZ èkkfjr djus dh vis{kk dkuwu esa dh x;h gS vkSj bl -f"V ls ns[kk tk; rks çdV gksrk gS fd oknh lk{kh ih MCY;w ,d fpjath yky ls mä rF;ksa ds lacaèk esa ftjg ugha djus ls oknh ds dFku v[kf.Mr gSa blfy;s eSa bl fopkj dk gw¡ fd ;g fcUnq fd çR;FkÊ us oknxzLr fdjk;s'kqnk ifjlj esa çkFkÊ dh vuqefr ds fcuk txg txg rksM+ QksM+ dj nhokjksa dks {kfrxzLr fd;k gS-

çekf.kr gksrk] ftlls oknxzLr ifjlj esa u dsoy {kfr igqaph gS vfirq nhokjksa esa VwV QwV gksdj lkj Hkwr [email protected] gqvk gSA vr% ;g nksuksa gh fcUnq vtÊnkj ds i{k esa vkSj çR;FkÊ ds f[kykQ r; fd;s tkrs gSA Similarly, it is noted that the learned Appellate Rent Tribunal

also considered the submissions made before it and rightly

observed that the damage caused by the petitioner by affixing the

furniture and damaging the walls in the suit property comes within

the definition of "material alteration" and, therefore, it cannot be

said that merely installing the Air Conditioner and changing the

floor amounts to the beautification of the shop. The findings

(5 of 5) [CW-2619/2019]

recorded by the learned Appellate Rent Tribunal are also

reproduced as under:-

23- èkkjk&9¼lh½ vfèkfu;e esa fdjk;snkj }kjk Hkw&Lokeh dh fyf[kr vuqKk ds fcuk dksbZ Hkh ,slk lafuekZ.k fd;k gS] ftlls fd ifjlj dks lkjoku :i ls ifjofrZr dj fn;k gS ;k ftlls mldk ewY; de gksus dh lEHkkouk gks] ,sls vkèkkj ij Hkw&Lokeh dks fdjk;snkj dks csn[ky djus dk vfèkdkj mRiUu gksrk gSA orZeku çdj.k esa vçkFkÊ@vihykFkÊ }kjk fyf[kr esa fdlh çdkj dk ifjorZu djus gsrq Hkw&Lokeh ls dksbZ vuqefr fy;k tkuk fl) ugha gksrk gSA Hkw&Lokeh ih-

M-&1 fpjathyky us fdjk;s'kqnk nqdku dh nhokjsa {kfrxzLr djus dk dFku fd;k gS rFkk Q'kZ Hkh rksM+dj u;k cukus dk dFku fd;k gSA

24- tgk¡ rd lkjHkwr ifjorZu fd;s tkus dk ç'u gS] fdjk;s'kqnk ifjlj esa dksbZ Hkh ifjorZu tks fd lkjHkwr ifjorZu dh Js.kh esa vkrk gS] mlds fy, Hkw&Lokeh dh fyf[kr vuqefr fy;k tkuk vko';d gS] ijUrq bl çdj.k esa ,slh dksbZ fyf[kr vuqefr ugha yh xbZ gSA This court finds that the concurrent findings of the fact

recorded by the courts below are perfectly justified and does not

call for any interference. Much less, there is no evidence or

document has been produced before this court showing that the

finding arrived at by the learned Rent Tribunal and affirmed by the

learned Appellate Rent Tribunal are perverse and are not in

consonance with the evidence produced before it.

The judgments relied upon by the learned counsel for the

petitioner has no application in the present case and are

distinguishable on facts as there is a categorical finding of the

courts below that the walls of the suit property i.e. shop have

been damaged by affixing the furniture in the same.

In view of the discussions made above, there is no force in