Karnataka High Court
Sumithra Bai vs M. Vasantha Shet on 29 October, 1998
Equivalent citations: 1999(2)KARLJ140
Author: P. Vishwanatha Shetty
Bench: P. Vishwanatha Shetty
ORDER
1. The tenant is the petitioner in H.R.R.P. No. 1650 of 1996 and the landlord is the petitioner in H.R.R.P. No. 1809 of 1996. Since both the petitions arise out of a common order made in H.R.C. No. 235 of 1987 by the Court of Principal Munsiff at Mangalore, both the petitions were taken up for final hearing together and disposed of by this common order.
2. The parties, in the course of this order, will be referred to as 'the landlord' and 'the tenant'.
3. A few facts which may be relevant for the disposal of these revision petitions may be stated as hereunder:
(a) The landlord sought eviction of the tenant under Section 21(1)(c) and (h) of the Act. It is the case of the landlord that he is a hereditary trustee of his family deity Sri Mahalaxmi Ravalanatha Devaru and the said deity is installed in a portion of the residential building wherein he is residing and the premises presently occupied by him is totally insufficient and inconvenient for the purpose of his occupation. It is his further case that on the occasion of the festival, he is feeding a number of people and, a number of people visit his premises. It is also his case that the lady members of his family find the present accommodation totally inconvenient during their pollution period (period of menses) since their entry near the deity is prohibited by custom. For all these reasons, he sought eviction of the tenant under Section 21(1)(h) of the Act. However, insofar as eviction sought under Section 21(1)(c) of the Act is concerned, it is his case that during the month of July 1987, the tenant, without the written consent of the landlord, got fixed iron grills with a door opening to the chavadi/verandah; and while so fixing the iron grills, the tenant has damaged the building; and fixing of iron grills as stated above, amounts to erection of permanent structure within the meaning of Section 21(1)(c) of the Act.
(b) The tenant resisted the claim of the landlord. She disputed the claim made by the landlord that he requires the petition schedule premises reasonably and bona fide for his use and occupation. She also claimed that the accommodation in the premises already occupied by the landlord is sufficient. It is her further case that during the pendency of the proceedings, the landlord having secured possession of the other vacant premises, the requirement of the landlord for additional accommodation, if any, is satisfied. She also pleaded that the chavadi of the petition schedule premises had a bamboo diamond shaped 'Thatti', which had become old and rickety and it required replacement and, therefore, in its place, she had put up the iron grills, which had absolutely become necessary for safety purposes. She also contended that the landlord was not entitled to maintain the petition in his personal capacity since the petition schedule premises did not exclusively belong to him.
(c) On behalf of the landlord, he examined himself as P.W. 1 and got marked six documents as Exhibits P-1 to P-6. However, on behalf of the tenant, her son one Sri Umesh Pai was examined as D.W. 1.
(d) On appreciation of the evidence on record, the learned Munsiff, while rejecting the claim of the landlord for eviction of the tenant under Section 21(1)(h) of the Act, granted an order of eviction under Section 21(1)(c) of the Act.
(e) Aggrieved by the order rejecting the claim of the landlord for eviction of the tenant under Section 21(1)(h) of the Act, the landlord had filed RRP No. 197 of 1989 before the learned District Judge and aggrieved by the order of eviction passed by the learned Munsiff against the tenant under Section 21(1)(c) of the Act, the tenant had filed RRP No. 14 of 1990. The learned District Judge, by his order dated 2nd of August, 1996, rejected both the revision petitions confirming the order passed by the learned Munsiff.
(f) Both these revision petitions are directed against the said common order dated 2nd of August, 1996 made in RRP Nos. 197 of 1989 and 14 of 1990 by the learned District Judge.
4. Sri Gopal Hegde, learned Counsel appearing for the tenant, submitted that the finding recorded by the Courts below that the tenant had erected a permanent structure on the petition schedule premises, is vitiated on account of serious material irregularities and illegalities committed by the Courts below while considering the said question. Elaborating this submission, he submitted that on undisputed facts, both the Courts below ought to have held that replacing a diamond shaped Thatti', which had become old and rickety and which required replacement by iron grills, did not amount to 'erecting a permanent structure' within the meaning of Section 21(1)(c) of the Act. It is his submission that the Courts below, on a total wrong understanding of what is meant by 'erecting on the premises any permanent structure', have held that the replacement of bamboo diamond shaped Thatti' with iron grills amounts to permanent structure. He pointed out that by misunderstanding and misreading what is meant by 'erecting permanent structure', the Courts below have exercised the jurisdiction which they did not possess to order eviction against the tenant. In support of this submission that putting up of iron grills will not amount to permanent structure, he relied upon the decision of the Supreme Court in the case of Om Prakash v Amar Singh and Another, and the decision of this Court in the case of Bhandary v Lobo.
5. However, Sri Padubidri Raghavendra Rao strongly supported the order of eviction passed against the tenant under Section 21(1)(c) of the Act. He submitted that both the Courts below, on appreciation of the evidence on record, having concurrently held that putting up of iron grills is a permanent structure and as such, the tenant is liable to be evicted under Section 21(1)(c) of the Act, it is not permissible for this Court to interfere with the said finding in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). In support of his plea, relied upon the decision of the Supreme Court in the case of Venkatlal G. Pittie and Another v M/s. Bright Brothers (Private) Limited. He further submitted that the claim of the tenant that there was a bamboo diamond shaped 'Thatti' erected to the chavadi, which came to be replaced by iron grills, is totally baseless. He also further pointed out that even that be so, putting up of iron grills to the chavadi/verandah, which is of permanent nature, must be held as erecting a permanent structure within the meaning of Section 21(1)(c) of the Act, for which the tenant is liable to be evicted from the petition schedule premises.
6. Sri Rao, learned Counsel appearing for the landlord, challenging the finding recorded against the landlord by the Courts below in respect of his claim for eviction of the tenant under Section 21(1)(h) of the Act, submitted that the findings recorded by the Courts below on this question is totally erroneous in law and they are liable to be set aside as the said findings are vitiated on account of serious material irregularities and illegalities committed by the Courts below. He pointed out that the premises presently occupied by the landlord is totally insufficient for the purpose of the landlord and since the family deity is installed in a portion of the residential building and every year 300 to 400 people gather in the premises of the landlord, the accommodation available with him is totally insufficient. He further pointed out that the assumption made by the Courts below that the premises occupied by one Kanaka Bai had fallen vacant on her death and the landlord has taken possession of the said premises, is totally erroneous in law. He also submitted that if an order of eviction is not passed against the tenant, the landlord will be put to greater hardship than the tenant.
However, Sri Hegde, while strongly countering the argument of Sri Rao, submitted that there is absolutely no error much less an error which calls for interference by this Court in exercise of its revisional jurisdiction against the finding recorded by the Courts below that the landlord has failed to establish that he reasonably and bona fide requires the petition schedule premises for his use and occupation. He further pointed out that both the Courts below have taken into consideration the accommodation available in the premises presently occupied by the landlord; and his need and the number of family members in his family; and also the fact that he has come into possession of the premises occupied by three tenants during the pendency of the proceedings and also that the landlord having constructed a new building, has let out the same to one Ashok Shet; and, therefore, when the Courts below, on proper appreciation of the evidence on record, have held that the claim of the landlord is not genuine, there is no justification for this Court to interfere with the said finding. He also submitted that the tenant being a very poor lady, if an order of eviction is passed, she will be put to greater hardship than the landlord. In this connection, he pointed out that even according to the landlord, he is a PWD contractor, who, according to his own version, is a very rich person.
7. In the light of the rival contentions made by learned Counsel appearing for the parties, the two substantial questions that would arise for consideration in this petition, are.-
(1) Whether the erection of iron grills to the chavadi of the petition schedule premises with opening of a door, amounts to erecting a permanent structure within the meaning of Section 21(1)(c) of the Act, and as such, the tenant is liable for eviction from the petition schedule premises?
(2) Whether the finding recorded by the Courts below that the landlord has failed to make out a case for eviction of the tenant under Section 21(1)(h) of the Act, is liable to be interfered with by this Court in exercise of its revisional jurisdiction under Section 115 of the Code?
Re: Question (1):
8. Now, the question is whether putting up of iron grills to the chavadi/verandah of the petition schedule premises amounts to erecting a permanent structure? It is the case of the landlord that the chavadi was an open chavadi wherein the tenant has erected iron grills by plastering the same to the walls of the chavadi. However, while the tenant admits that she has put up iron grills, it is her case that it was necessitated in the place of old bamboo diamond shaped 'Thatti' for the purpose of security. Sri Hegde submitted that both the Courts below having proceeded on the basis that there was bamboo diamond shaped 'Thatti' and it has been replaced by 'iron grills', this Court should proceed on the basis that the tenant has put up the iron grills in the place of bamboo diamond shaped 'Thatti'.
9. However, Sri Rao very strongly submitted that there is no clear finding recorded by the Courts below that there was earlier existing a bamboo diamond shaped 'Thatti' at the place where iron grills are now fixed. It is no doubt true that there is no specific finding recorded by the Courts below that in the place of the bamboo diamond shaped 'Thatti', the iron grills have been put up. But, it is necessary to point out that in paragraph 14 of the judgment, the learned District Judge has referred to the claim made by the tenant that she had put up the iron grills in the schedule premises at the place where diamond shaped Thatti' was in existence and it had become old and rickety. Similarly, the learned Mun-siff, at paragraph 22 of the judgment, proceeds on the basis that the tenant has removed the old diamond shaped 'Thatti' and has fixed the iron grills. Therefore, even if there is no positive finding that the 'Thatti' was replaced by iron grills, I find considerable force in the submission of Sri Hegde that both the Courts below proceeded on the basis that there was a diamond shaped 'Thatti'. Even otherwise, on the basis of the evidence on record, I have no hesitation to come to the conclusion that the iron grills are put up to the chavadi/verandah of the petition schedule premises in the place where bamboo diamond shaped 'Thatti' was in existence. It is not in dispute that without the bamboo 'Thatti', the chavadi/verandah in question would be only an open verandah/chavadi without there being any protection for anybody to get into the verandah. In addition to the verandah, there is only one other room in the petition schedule premises. Under these circumstances, I am inclined to accept the case of the tenant that there was a bamboo diamond shaped 'Thatti' fixed to the chavadi/verandah at the place where 'iron grills' are now fixed. Therefore, the question that would now arise for consideration is whether replacing of 'iron grills' in the place of bamboo diamond shaped 'Thatti' would amount to erecting a permanent structure within the meaning of Section 21(1)(c) of the Act?
10. Before I proceed to decide the said question, it is useful to refer to the decisions relied upon by Sri Hegde.
(a) In Bhandary's case, supra, this Court has taken the view that the nature of the material used alone cannot be the basis to decide whether the erection of a structure is a permanent structure or not; and the type of the material used coupled with the intention of the maker of the alteration would be more rational than the test for deciding the permanent structure merely on the material used. It is useful to refer to the observations made by this Court at paragraph 3 of the judgment, which reads as hereunder:
"In other words, what is admitted is that he has created additional accommodation of a type which was not intended under the terms of the lease apart from interfering with the access that was available to all users of the rear terrace. In such a situation it will not be difficult for the Court to reach a conclusion whether a structure is a permanent structure or not as along as the intention is clear to use such structural alteration reasonably for a long period. The fact that the destructible material was used to create such a structural change, does not, in my opinion, render such a structure any the less permanent. In fact, there is no structural building material which can claim absolute permanency. Even a concrete wall made of cement can be destroyed by using appropriate instrument. A brick wall can be bulldozed. A ply board can be burnt. Type of the material used coupled with the intention of the maker of the alteration would be a more rational test than the test for deciding the permanent structure merely on the material used".
(b) The Supreme Court, in Om Prakash's case, supra, while considering the question as to what is the material alteration of the accommodation or is likely to substantially diminish the value of an accommodation has at paragraph 6 of the judgment, observed thus:
"6. In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction, it took care to use the word 'materially altered the accommodation'. The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a chabutra, almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation. It is not possible to give exhaustive list of constructions which do not constitute material alterations, as the determination of this question depends on the facts of each case. In S.B. Mathur v K.P. Gupta, construction of temporary wall enclosing verandah and putting up an iron jungala and placing a partition wall, temporary in nature, was held not to constitute material alteration of the accommodation".
11. Sri Rao submitted that the principle laid down by the Supreme Court in Om Prakash's case, supra, cannot be made use of as the binding precedent to decide the question as to what is meant by 'erected on the premises any permanent structure'. According to him, the decision of the Supreme Court was decided only on construction of the provisions under the U.P. Rent Control Act, wherein the question which came up for consideration, was with regard to the interpretation 'has materially altered the accommodation or is likely to substantially diminish its value'. It is true, as contended by Sri Rao, that the question which came up for consideration before the Supreme Court in Om Prakash's case, supra, was what is the interpretation to be placed on the expression 'has materially altered the accommodation or is likely to substantially diminish its value' and the question as to what is the interpretation to be placed on 'erected on the premises any permanent structure' was not under consideration. But, to my mind, it appears that though the language employed in the U.P. Rent Control Act and the Karnataka Rent Control Act is different, but what really the legislature has intended while conferring right on the landlord to seek eviction of the tenant under Section 21(1)(c) of the Act, is similar to the right provided under Section 14(c) of the U.P. Rent Control Act where the language employed is 'has materially altered the accommodation or is likely to substantially diminish its value'. In my view, erection of permanent structure on the tenanted premises contemplated under Section 21(1)(c) of the Act must be of such nature which would materially alter the leased premises. On account of development in technology, the material used for construction of a structure cannot be a deciding factor to decide as to whether the construction put up is a permanent structure or not. The language employed 'erected on the premises any permanent structure' implies that the erection of a permanent structure on the premises must be of permanent nature irrespective of the nature of the material used for such a construction. In other words, it must be either an addition to the premises by way of putting up a new construction which is of permanent nature or it should materially alter the existing building. Any temporary arrangement made or any structure put up which is of temporary nature or made as a stopgap arrangement for security or safety, is not made as a ground for eviction of a tenant. As noticed by me earlier, it is the case of the tenant that she has replaced bamboo diamond shaped 'Thatti', which had become old and rickety, with iron grills. In this connection, it is useful to refer to the evidence of the landlord. According to the landlord, there were wooden pillars for supporting the roof of jagali i.e., chavadi. The grills fixed to the jagali is about 30 feet, in length and 5 feet in width. However, he states that the grills are put for making it a permanent structure and iron pieces of the grills are fixed inside the parapet wall. However, he admits in paragraph 17 of his evidence that the extent of the building is not changed due to fixing the iron grills though he states that the open jagali is converted into an enclosed jagali. However, though the landlord asserts that it was an open jagali, as observed by me earlier, the jagali was not an open jagali, but the jagali was covered by bamboo diamond shaped 'Thatti' and it has been replaced by 'iron grills'. By replacing the bamboo diamond shaped 'Thatti' by iron grills, what has been done is to provide little more security to the premises. It is common knowledge and experience would tell us that such an iron grill fixed to the verandah could be removed without causing any damage to the building or its structure. In the premises let out, if the tenant makes minor alterations without changing the structural alterations to the leased premises for the purpose of enjoying the premises taken on lease, in my view, such an alteration cannot be considered as a permanent structure erected on the premises. As observed by the Supreme Court in Om Prakash's case, supra, in a matter like this, the essential element which needs consideration is as to whether the constructions bring about substantial changes in the front and structure of the building. Opening of a window, closing a window by temporary structure or replacing a damaged roof, which may be leaking or placing partition in a room or making similar alterations for the convenient use of the accommodation, in my view, cannot be considered as erecting permanent structure on a premises taken on lease. If every minor alteration, which does not substantially or materially alter the structure of the accommodation or the building taken on lease, is treated as 'erection on the premises as permanent structure', it would be impossible for a tenant to enjoy the leasehold interest in a premises which he has taken on lease, as, in the course of using the premises, due to wear and tear and aging of the building, minor repairs the tenant may have to carry out. The right given to a tenant under Section 44 of the Act to get the premises repaired by himself and deduct the cost of such repair from the rent on the landlord's failure or neglect to make within a reasonable time after the tenant gives a notice to the landlord calling upon him to carry out the repairs, cannot be put against the tenant as has been done by the Court below; and an order of eviction cannot be made against the tenant under Section 21(1)(c) of the Act merely on the ground that the tenant has failed to give a notice to the landlord calling upon him to carry out the repairs. Sub-section (1) of Section 44 of the Act makes it obligatory on the part of the landlord to keep the building in reasonably good repair. On the failure of the landlord doing so, sub-section (2) thereof enables the tenant to carry out the repairs by himself and recover the cost of such repairs from the landlord if the landlord, in spite of the notice being served on him by the tenant to carry out the repairs, fails to do so. Section 44 of the Act provides for keeping the tenanted premises in reasonably good repair by the landlord and on his failure to do so, the right is given to the tenant to carry out the repair work and recover the cost of such repair from the landlord. Therefore, while considering the question whether the structure put up by the tenant is in the nature of a permanent structure or not, the Courts cannot come to the conclusion that the structure put up by the tenant is a permanent structure on the ground that it is not a repair work as the tenant has failed to give a notice under sub-section (2) of Section 44 of the Act, to the landlord. The learned District Judge, in paragraph 14 of the order, proceeded to reject the claim Of the tenant that the replacement of iron grills in the place of old bamboo diamond shaped 'Thatti' on the ground that the tenant has failed to call upon the landlord to carry out the repair work. While considering the question whether the tenant has erected permanent structure or not, the nature of the construction put up has to be independently examined without being influenced by the fact that the tenant, who had a right to recover the cost of carrying out the repairs of the premises from the landlord, has failed to issue a notice to the landlord calling upon him to carry out the repair work. The learned District Judge has also taken the view that putting up of iron grills amounts to permanent structure on the ground that the terms of the rent bond did not empower the tenant to carry out any alterations or improvement to the schedule premises. This is clear from the observations made in paragraph 15 of the order of the learned District Judge, which read as hereunder:
"15. One of the terms of the rent bond Ex. P. 3 provides that the tenant is not entitled to alter the schedule premises or to carry out any improvements therein. When the terms of the written rent bond does not empower the tenant to carry out any alterations or improvements to the schedule premises, the erection of grills and the fixation of grill door being of permanent nature, there is no doubt that the respondent had put up permanent structure to the schedule premises without the petitioner's consent".
In my view, this approach made by the learned District Judge is totally erroneous in law. He has failed to consider that the provisions contained in Section 21 of the Act provides that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for recovery of possession of any premises be made by any Court or authority in favour of the landlord against the tenant except under the grounds set out in the proviso given to Section 21 of the Act. Therefore, what the Court is required to consider is with regard to the nature of the construction put up by the tenant and not with reference to the terms provided in the agreement. Therefore, in my view, the entire understanding of the legal principle governing as to what is the erection of permanent structure to a premises, by the learned District Judge is erroneous in law. Further, even assuming that there was no old dia-
mond shaped 'Thatti' at the place where 'iron grills' are now placed as claimed by the landlord, is true, in my view, iron grills fixed by the tenant to the verandah/chavadi cannot be treated as a permanent structure.
12. In the above view of mine that the construction in question is not a permanent structure, I am also supported by the decision of this Court in the case of Somavathi and Another v Kalikamba Vinayaka Temple, and in the case of Edmond C. Fernandes and Another v Milagres Church. In the case of Mrs. Somavathi, supra, fairly under similar circumstances, the questions which came up for consideration, were-
(1) Whether renovating the existing bathroom by putting up a pent roof partly by tiles and galvanized sheets with some new rafters amounts to erection of permanent structure? And (2) Whether the alteration of the front portion of a jagali i.e., similar to the chavadi/verandah of the premises by closing it by a 'dhali' and wire mesh amounts to erecting permanent structure?
Justice S.A. Hakeem (as he then was), after referring to the decision of the Supreme Court in Om Prakash's case, supra, and also the earlier decision of this Court in the cases of Padmanabha Shettigara v Srini-vasa Acharya and Panduranga Mallya v Alphonso A. Rodrigues, has taken the view that it will not amount to permanent structure and in the light of the said view, reversed the finding recorded by the Courts below granting an order of eviction under Section 21(1)(c) of the Act, in exercise of this Court's revisional jurisdiction under Section 115 of the Code. It is useful to refer to the observations made by the Court at paragraphs 7 and 8 of the judgment, which read as hereunder:
"7. Similar view has been taken by this Court in Padmanabha's case, supra and Panduranga Mallya's case, supra. In the first of the two cases, it is observed, the expression "erected on the premises a permanent structure" necessarily refers to some material alteration made in the building. In other words, there should be an addition or substraction in the building which would lead to alteration in the character of enjoyment. Such an alteration in the building or in its user will amount to a permanent structure. In the said case, the tenant had constructed a wooden frame, which could easily be removed and the 'jagali' portion had been covered for a temporary need. It was held that such an alteration is not of a permanent nature. In the second case referred to above, it was held that replacement of the sheets by zinc sheets over an open space cannot be a permanent construction.
8. In the instant case, having regard to the nature of the alterations and in the light of the Commissioner's report, such alterations would not amount to a permanent structure as long as it can be removed without causing any damage to the premises. In the circumstances, I am unable to agree with the finding of the learned District Judge that the said change brought about by the alteration in the front portion of the verandah would attract the provisions of clause (c) of Section 21(1) of the Act".
The said decision was also followed by this Court in the case of Edmond, supra, and this Court has taken the view that erection of the wooden frame with iron bars to cover the open verandah does not amount to erecting a permanent structure. The question decided by this Court in Edmond case, supra, is fairly identical to the facts of the present case. In the said case, the question that came up for consideration was whether the erection of iron bars covered by wooden framework on all sides on the parapet wall in an open verandah with a door fixed to it with wire-mesh in the middle of the said wooden framework for opening, which has resulted in covering an open verandah, amounted to permanent structure. This Court, following the earlier decision of this Court in Somavathi's case, supra, has taken the view that it will not amount to a permanent structure. I am respectfully in agreement with the views expressed by this Court in the aforesaid two decisions. In my view, that is the correct approach to be made while considering the question what is meant by erection of permanent structure. Therefore, I am of the view that the finding recorded by the Courts below is totally erroneous in law and liable to be set aside.
13. This takes me to consider the contention of Sri Rao that it is not permissible for this Court in exercise of its revisional jurisdiction under Section 115 of the Code to interfere with the concurrent finding recorded by the Courts below that putting up of iron grills to the petition schedule premises by the tenant is a permanent structure. No doubt, the decision of the Supreme Court, in the case of Venkatlal, supra, relied upon by Sri Rao, while considering the scope of power of this Court under Article 227 of the Constitution of India to interfere, has taken the view that it is not permissible for this Court to reverse the finding of fact recorded by the authorities below. But, in my view, that is not the position in this case. The position in this case is what amounts to erection of a permanent structure? If totally on a wrong understanding of the law, the erection of a structure, which is not a permanent structure, is held to be a permanent structure and on that basis, if an order of eviction is passed thereby taking away the protection given to the tenant from eviction, can this Court still refuse to interfere with such a finding on the ground that the finding recorded by the Courts below is a question of fact? In my view, this Court should not do so. Whether, on accepted or undisputed facts, erection of a structure amounts to a permanent structure or not, is purely a question of law. However, the finding of facts, which constitute to decide the question of law, no doubt, is not liable to be interfered with by this Court in exercise of its revisional jurisdiction. But, on admitted or accepted facts, whether a construction amounts to a permanent structure or not, this Court has certainly the power to go into that question. Otherwise, it amounts to refusing to exercise jurisdiction conferred on this Court even when the Courts below clutched at the jurisdiction to pass an order of eviction on wrong application of law governing the rights of the parties. It is necessary to point out that the landlord gets a right to evict a tenant only if the tenant erects a permanent structure to the premises let out by him. In Somavathi's case, supra and Edmond case, supra this Court, in exercise of its revisional jurisdiction, reversed the finding recorded by the Courts below and held that the structures put up in that premises were not permanent structures and set aside the order of eviction passed against the tenants in those petitions under Section 21(1)(c) of the Act. Further, the observations made by the Supreme Court in Om Prakash's case, supra, also support my view. In the said decision, at paragraph 6, the Supreme Court has observed thus:
"The findings of the Court regarding constructions would be finding of fact, but the question whether the constructions materially alter the accommodation is a mixed question of fact and law, which should be determined on the application of the correct principles".
In the light of the above conclusion reached by me, I am unable to accede to the submission of Sri Rao that this Court, in exercise of its revisional jurisdiction, cannot reverse the finding recorded by the Courts below that the structure in question is a permanent structure.
14. In the light of the discussion made above, I am of the view that the order of eviction passed against the tenant under Section 21(1)(c) of the Act is liable to be set aside.
Re: Question (2):
15. Insofar as the second question is concerned, I am of the view that the finding recorded by the Courts below under Section 21(1)(h) of the Act is unexceptionable and not liable to be interfered with by this Court. The learned Munsiff, while considering the claim of the landlord that the petition schedule premises is reasonably and bona fide required by him, at paragraphs 15 and 16 of the order, has held that the claim of the landlord is neither reasonable nor bona fide. He has found that the accommodation available in the premises occupied by him is 1,300 square feet, whereas the requirement of the landlord, according to the evidence given by him, was only 1,100 square feet. He has also found that the landlord has come into possession of the premises leased out to M/s. Ashok Shet, Adinarayana Shetty and Late Kanaka Bai, which had fallen vacant. Though the landlord asserted that on account of the death of Kanaka Bai, who was all alone living in the premises occupied by her, the premises occupied by her was kept locked by her daughter who is admittedly residing separately with her husband, the learned Munsiff has negated the said version of the landlord. He has also found that all the said three premises of which the landlord has come into possession, are in the same compound where the landlord is residing. He has also found that there is absolutely no truth in the claim made by the landlord that during the pollution period (period of menses), the women folk cannot go to the portion where the family deity is installed; and, therefore, he wants the petition schedule premises. He has found that the said ground is sought to be made out only for the purpose of seeking eviction of the tenant. He has also disbelieved the version of the landlord that a separate premises is required for the family deity. The learned Munsiff has also found that an attempt was made by the landlord to suppress about the time of lease of the premises belonging to the landlord, to one Adinarayana Shetty. In this connection, at paragraph 18 of his order, the learned Munsiff has found that the claim made by the landlord that the premises was leased to Adinarayana Shetty in the year 1980 is false. It is useful to refer to the relevant portion of the observations made by the learned Munsiff in his order at paragraph 18, which reads as hereunder:
"18. Nextly, P.W. 1 wants to suppress as to when the premises was leased to Adinarayana Shetty. Firstly P.W. 1 has stated that the premises was leased to Adinarayana Shetty in the year 1980. When it was suggested to him, in the cross-examination, that it was leased in the year 1984, he denied the suggestion. But, when he is told, what evidence was given in H.R.C. Case No. 145 of 1980, he admitted that he was examined on 8-4-1985 and he has stated that one premises was leased six months back to Adinarayana Shetty. Hence, if we calculate six months prior to that, it will be in November 1984. Hence, the contention of the P.W. 1 saying that it was leased in the year 1980, is false. It throws light on the reliability of the witness. Hence, when the evidence of P.W. 1 is seen, I do not find any eminent need for the petitioner to occupy the petition schedule premises. The burden of proof is cast on the petitioner and in this way the petitioner has failed to discharge the burden cast on him".
The discussion of the learned Munsiff shows that the landlord had leased out the premises to Adinarayana Shetty somewhere in the early part of the year 1984, However, the landlord, in his deposition, has stated that during the year 1982, he felt that he required more accommodation and, therefore, he had purchased the petition schedule premises and other properties by means of sale deed Exhibit P-1. If the landlord felt the need of additional accommodation in the year 1982 and on that basis, he had purchased the petition schedule premises and the need of the landlord is genuine, I am of the view that there cannot be any justification for the landlord to lease out the newly constructed premises to the said Adinarayana Shetty in the year 1984. Further, the landlord also has admitted in his evidence that the said Adinarayana Shetty had subsequently vacated the said premises and he had kept it vacant. The learned District Judge, on a careful examination of the finding recorded by the learned Munsiff, has affirmed it. I have heard the learned Counsel appearing for the parties at a greater detail on this question. I am fully satisfied that there is absolutely no error in the finding recorded by the Courts below that the landlord has failed to establish that the petition schedule premises is reasonably and bona fide required by him for his use and occupation. The finding recorded by the Courts below on this question is purely a question of fact, which does not call for interference by this Court in exercise of its revisional jurisdiction under Section 115 of the Code. The finding recorded by the Courts below is not vitiated on account of any material irregularity or illegality in exercise of their jurisdiction. The evidence on record fully supports the finding recorded by them. Further, it is also necessary to point out that the pleading of the landlord in the petition and also the evidence on record, show that the landlord is financially sound and is capable of putting up a new construction. The sale deed Exhibit P-1, through which the landlord has acquired title to the petition schedule premises, shows that the total extent of the site where the petition schedule premises is located, is 10 cents. This is also admitted by the landlord in paragraph 10 of his deposition. The petition schedule premises is only a small premises. Therefore, it is clear that when there is sufficient vacant land available with the landlord, he could even put up a residential building even if he is in need of additional accommodation as claimed by him. The evidence on record shows that he is financially sound and capable of putting up new construction. Further, even on the ground of comparative hardship, I am of the view that the landlord is not entitled to seek eviction of the tenant from the petition schedule premises. Admittedly, the landlord is already in occupation of a premises. He is also financially sound. In this connection, it is useful to refer to the evidence given by him in para 6 of his deposition, which reads as hereunder:
"6. The house where I am now residing is a old building. 2 rooms of that building are in possession of the tenants. I have filed eviction petition against those two tenants. One of those eviction petitions was allowed and revision is pending. The other eviction petition is pending in the High Court. Greater hardship will be caused to me if I do not get this premises. No hardship will be caused to the respondent if she is evicted. The respondent will get alternative premises. The respondent is financially sound".
The tenant is an old lady. She is only a beedi roller by profession. Her profession itself would indicate her background and financial instability. Therefore, I am totally in agreement with the finding recorded by the learned Munsiff that if an order of eviction is passed, the tenant will be put to greater hardship than the landlord. Further, having regard to the accommodation available in the petition schedule premises, it is not possible to order partial eviction also.
16. In the light of the discussion made above, H.R.R.P. No. 1809 of 1996 filed by the landlord is liable to be rejected.
17. In the light of the above conclusions, H.R.R.P. No. 1650 of 1996 is allowed, order dated 1st of April, 1989 made in H.R.C. No. 235 of 1987 by the learned Principal Munsiff, Mangalore, which has been confirmed by order dated 2nd of August, 1996 made in R.R.P. No. 14 of 1990 by the learned III Additional District Judge, Mangalore, is hereby set aside and H.R.C. No. 235 of 1987 is hereby dismissed; and H.R.R.P. No. 1809 of 1996 is dismissed.
18. However, no order is made as to costs.