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MOHAMMAD SHAMIM versus VIITH ADDL. D.J. & OTHERS

High Court of Judicature at Allahabad

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Mohammad Shamim v. Viith Addl. D.J. & Others - WRIT - A No. 47692 of 1999 [2005] RD-AH 446 (18 February 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 47692 of 1999

Mohd.Shamim      Vs.     VIIth Addl.District Judge, Kanpur                         Nagar and others        

Hon'ble Vikram Nath J.

The present writ petition has been filed by the tenant petitioner against the judgment and order dated 28.2.1997 and 26.10.1999 whereby the suit for recovery of arrears of rent and ejectment on the ground of default, material alteration and change in user filed by the respondents 3 to 5 has been decreed against the petitioner and the revision against the same has also been dismissed.

The facts giving rise to the present petition are that there is a bungalow no. 108, Horden road, Meerpur, Cantt. Kanpur Nagar (hereinafter referred to as the house in dispute) of which one Smt. Jeen M. Beglin was the owner and landlady. The total area of the land of the bungalow comprising of the constructed and the open land measured 0.76 acre. Smt. Jeen M. Beglin is alleged to have executed a deed in favour of the petitioner letting out 368 sq.yard of open land of the bungalow on rent of Rs.75/- per month. The agreement further provided that the petitioner could construct temporary construction with the permission and under the byelaws of the cantonment Board and use it for business/residential purposes. The petitioner alleged to have raised construction and was using the same for business of bakery, Printing Press, and Rickshaw repairs. Subsequently Smt.Jeen M.Beglin sold the bungalow in favour of the respondent 3 to 5 by means of registered sale deed dated 22.08.1983. It is alleged that the petitioner who was paying rent to the erstwhile landlady Smt.Jeen M.Beglin after the sale deed started paying rent to respondent 3 to 5 and they accepted the same.

The respondent 3 to 5 filed a suit for ejectment of the petitioner on three counts firstly, that there was default in payment of rent of more than four months w.e.f. 01.04.1985, secondly material alteration had been made in the premises in dispute thereby diminishing it value and thirdly, the user of the premises in dispute had been changed from residential to commercial. This was registered as J.S.C.C. Suit no. 635 of 1985. The suit was apparently filed on the foundation that the constructed portion had been let out to the petitioner and not any open piece of land on which the petitioner would have made construction.

The petitioner contested the suit and filed written statement. It was denied that any material alteration was made in the premises whereby the value had been diminished, it was also denied that the user of the premises had been changed and thirdly it was stated that even though there was no default on his part but still the entire amount claimed in the suit along with interest and tax etc. have been deposited before the first date of hearing and therefore, benefit of Section 20(4) of the U.P.  Act No. 13 of 1972( hereinafter referred to as the Act) be allowed. The written statement was based mainly upon the agreement dated 5.12.1976 and it was also contended that the suit itself for ejectment was not maintainable as the building had not been let out and only the open piece of land has been let out on which the construction had been made by the petitioner himself and not by the landlord/ landlady.

The trial court after considering the material on record came to the conclusion that the petitioner was entitled to the benefit of Section 20(4) of the Act, however, the petitioner had made material alteration thereby diminishing the value of the premises in dispute and that the user of the premises in dispute had also been changed from residential to commercial which was contrary to the Rules and Byelaws of the Cantonment Board.

Aggrieved by the judgment of the trial court dated 28.02.1987,the petitioner filed revision under section 25 of the Provincial Small Causes Court Act 1887( hereinafter referred as to as 1887 Act) it was registered as J.S.C.C. Revision No. 113 of 1997. The revisional Court vide judgment dated 26.10.1999 confirmed the findings of material alteration and changed of user of the premises in dispute and at the same time also recorded a finding that the petitioner was not entitled to benefit of Section 20(4) of the Act as no evidence had been filed by the petitioner to prove /establish the deposit was required had been made. Aggrieved by the same, the present writ petition has been filed by the tenant-petitioner.

I have heard Sri H.N.Singh, learned counsel for the petitioner and Sri Iqbal Ahmad, learned counsel appearing for respondents no.3 to 5.

Learned counsel for the petitioner has raised the following questions; firstly that it is not sufficient to establish material alteration in the premises in dispute but it should also be proved that the value of the building had diminished and utility had been reduced by the landlord to get a decree for eviction. According to him, the ingredient and essential conditions mentioned in Section 20(2)( C) of the Act were neither existing nor the courts below recorded the finding entitling the landlord for a decree of ejectment on this ground. The second contention of the counsel for the petitioner is that under the agreement dated 05.12.1976 he was permitted to use the land in accordance with the permission and under the Rules and bye-laws of cantonment Board, in any matter he like and therefore, there could not be any change in the user and the finding to this effect recorded by the courts below were incorrect. The third contention of the learned counsel for the petitioner is that the findings recorded by the trial court in his favour on the issue relating to deposits on the first date of hearing could not have been up set in the revision filed by the petitioner himself and where the landlord had not filed any revision or cross objection against the said findings. No arguments on the maintainability of the suit has been raised in this petition.

The question relating to material alteration resulting into diminishing of the value of the building and its utility flows from the provisions contained u/s 20(2)( c) of the Act. The said provision is quoted hereunder:

Section 20 (2) ( 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 Section 20(2)( c) of the Act clearly states that on account of material alteration the value of the building has been diminished or its utility is diminished or there is disfigurement of the building, the land lord would be entitled for decree of ejectment. The loss of value, utility or disfigurement are separateand independent of ech other. Even if one of them is established the condition for ejectment would be fulfilled. So on a plain reading of the Section 20(2)( c) of the Act what is required is that firstly there should be material alteration and secondly as a result of this material alteration there should be either loss in value of the building or loss in its utility or there should be disfigurement.

Counsel for the respondent has contended that both the courts below have recorded concurrent finding that because of the material alteration made by the petitioner it has lowered the value of the premises in dispute and has also reduced its utility. The trial court had considered the report of the Commissioner ( Paper no. 12-C) and has also referred to the various construction/ alteration made by the petitioner and has theereafter arrived at the conclusion that the petitioner had completely altered the face lift of the premises of dispute and also the ceiling of the premises in dispute without any permission of the landlord and further the extra/ additional construction made clearly disfigured the building and has also diminished the value of the bungalow by causing obstruction to its view. The petitioner contended that whatever alteration he had made only added to the value of the premises in dispute and in fact enhanced its value and utility. A perusal of Section 20(2)( C ) of the Act referred to material alteration of such construction which is likely to diminish its value or utility or to disfigure it. Thus even where the alteration made did not diminish the value and utility but disfigured the building; even then the landlord would be entitled to a decree of eviction. In the present case disfigurement caused was substantial in nature, as both the courts below have concurrently held that the building started looking ugly after the alteration Alteration in the building in dispute is admitted by the petitioner himself..

Counsel for the petitioner has relied upon 1996(6) ARC(S C)264, Pratap Narain and another Vs. District Judge, Azamgarh and another and also on 1999 (1) AWC page 841(LB) Abid Ali Vs. Vith a.D.J.Lucknow and others for the proposition that for a decree of ejectment on the ground of Section 20(2)(c ) of the Act could not be granted until unless it resulted in diminishing the value of the building. These cases do not help the petitioner, as they are distinguishable on facts. They do not deal with disfigurement but only deal with diminishing of the value.

In the present case assuming that permanent construction made by the petitioner did not diminish the value but none the less the manner in which the alteration were carried out completely disfigured the building and therefore, also the landlord was entitled to decree of ejectment on this ground. The findings of both the courts below on disfigurement are based upon the evidence on record and being findings of fact cannot be interfered into by this Court under Article 226 of the Constitution.

The other questions raised by the petitioner lose their importance and even in their absence the writ petition has to fail as the landlord was entitled to decree of ejectment on any of the three grounds taken. Since the landlord succeeds for decree of ejectment on the ground mentioned in Section 20(2)( c) of the Act, the other grounds under section 20(2)(a) and 20(2)(d) of the Act need not be examined.

The petition lacks merit and is liable to be dismissed.

Dt.18.2.2005

Hsc/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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