Himachal Pradesh High Court
Beli Ram & Sons vs Balbir Singh Thakur & Anr on 16 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 200 of 2018 .
Reserved on: 04.07.2019 Date of decision: 16.07.2019.
Beli Ram & Sons .......Petitioner
Versus
Balbir Singh Thakur & Anr. ......Respondents
Coram
Whether approved for reporting?1
For the Petitioner
No.
:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Mr. N. K. Sood, Sr. Advocate with Mr. Aman Sood, Advocate, for the petitioner.
For the Respondents : Mr. Pratap Singh Thakur, respondent No. 2 in person.
Tarlok Singh Chauhan, Judge The petitioner is the landlord, who aggrieved by the judgment passed by the learned Appellate Authority whereby the eviction petition as was ordered to be dismissed by the learned Rent Controller has been partially modified on the ground of arrears of rent and the findings on the other ground of material alterations and additions in the premises without the consent of the landlord has been affirmed.
2. The brief facts of the case are that the petitioner a joint Hindu family concern through its Managing Coparcener 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 2have filed a petition under Section 14 of the Rent Act (for short the 'Act') qua the premises consisting of two room set in St. .
Alban's (near Government Higher Secondary School), Lal Pani, Shimla (hereinafter referred to as the 'demised premises'). It is further averred that the demised premises was residential in nature and the same consist of two rooms, bathroom and kitchen, in which facility of electricity and water has been provided. The rate of rent was pleaded as Rs.660/- per annum and according to the petitioner, the father of the respondents was inducted as tenant and after his death the tenancy had been inherited by the respondents.
3. The eviction was sought on the ground that the respondents had failed to make payment of arrears of rent to the petitioner w.e.f. 01.01.2005 to the date of filing of the petition.
The default of the respondents was to be willful. The statutory increase was also sought and the other ground, upon which the eviction was sought was that the respondents without the consent of the petitioner had made additions and alterations, which had materially impaired the value and utility of the building. It is pleaded that the respondents have removed the wooden planks and constructed a permanent brick walls and thereby extended the construction by 1 foot x 14 feet on one side and 1 foot x 10 feet on the other side. Other structural changes have also been made in the demised premises. On all ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 3 these submissions, a prayer has been made to allow the eviction petition.
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4. Respondents contested the petition by filing reply wherein preliminary objections with regard to the petition not being maintainable, estoppel, petition being barred by the principles of resjudicata and non-joinder of the necessary parties etc. were raised.
5. On merits, it is contested that the relationship of the landlord and the tenant was disputed. The rate of rent was also disputed by pleading that the same was Rs. 540/- per month. It is claimed that the eviction petition had been filed with the sole motive of just enhancing the rent. The allegations of non-
payment of rent was also denied and it was contested that some additions and alterations had been made in the demised premises. Hence, a prayer has been made to dismiss the petition.
6. From the pleadings of the parties, the learned Rent Controller, vide order dated 26.08.2009, framed the following issues:-
(i) Whether the respondents have not paid the rent of the demised premises to the petitioner from 01.01.2005, if so, its effect?OPP
(ii) Whether the petitioner is also entitled to increase in rent @ 10% w.e.f. 01.01.2005, as alleged?OPP ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 4
(iii) Whether the respondents have made material alterations and additions in the demised premises without .
the consent of the petitioner and have thereby materially impaired the value and utility of the demised premises as alleged?OPP
(iv) Whether the petition is not maintainable in view of the principle of res-judicata as alleged?OPR
(v) Whether the petitioner is estopped to file the petition by its acts, conducts, commission etc.? OPR
(vi) Whether the petition is bad for non-joinder of necessary parties as alleged?OPR
(vi) Relief.
7. After recording evidence and evaluating the same, the learned Rent Controller, allowed the petition partly by ordering the eviction of the respondents on the ground of arrears of rent with costs of Rs.3000/- whereby it was held that the respondents were in arrears of Rent since 2005 at the rate of Rs.
540/- per annum with interest and statutory increase at the rate of 10% after five years, which comes out to Rs. 27,905/- (rent Rs.
6805.95 + interest Rs.21096.45) calculated till 31.12.2016. The respondents were directed to pay the arrears of rent alongwith interest and statutory increase within 30 days from the date of order and in case the same is paid within the stipulated time, then the respondents would not be evicted from the premises. As ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 5 regards the eviction sought by the petitioner on the ground of material additions and alterations, the plea was dismissed.
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8. Aggrieved by the order passed by the learned Rent Controller, the landlord approached the appellate authority by filing an appeal and the same after contesting was partly allowed and the order passed by the learned Rent Controller was modified. The rate of rent was determined at the rate of 660/-
per annum and the respondents were held to be in arrears of rent w.e.f. 01.01.2005 till the date of passing of the order and this amount worked out to Rs. 21,667.60. However, it is clarified that in case the amount is paid within 30 days from the passing of the order, then the respondents would not be evicted. As regards, the plea of the landlord regarding material additions and alterations having been made by the respondents in the demised premises, the plea was dismissed, constraining the landlord to file the instant revision petition.
9. The parties are ad idem that the only ground subsisting for eviction is the one regarding material alterations and additions, if any, carried out in the demised premises.
10. Regarding this ground, the learned trial Court framed issue No. 3, which reads thus:-
"3. Whether the respondents have made material alterations and additions in the demised premises without the consent of the petitioner and have thereby ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 6 materially impaired the value and utility of the demised premises, as alleged?OPP"
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11. This issue was decided against the landlord and the said finding has been affirmed by the learned appellate authority.
12. It is vehemently argued by Shri N. K. Sood, learned Senior Advocate duly assisted by Shri Aman Sood, learned Advocate, that the findings rendered by the learned Courts below are not only perverse but are based on a complete misreading of the oral and documentary evidence and, therefore, deserve to be dismissed. On the other hand, respondent No. 2, who appeared in person, argued that since judgments passed by authorities below are based on correct appreciation of the pleadings and evidence, therefore, the same warrants no interference.
I have heard learned counsel for the petitioner as also respondent No. 2 and have gone through the records of the case.
13. At the outset, the scope of revisional jurisdiction which Court can exercise must borne in mind, as the Constitution Bench of the Hon'ble Supreme Court in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh (2014) 9 SCC 78 laid down certain broad principles for exercise of revisional jurisdiction which can be summarized as under:
(i) The term 'propriety' would imply something which is legal and proper.::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 7
(ii) The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate .
Authority.
(iii) Such power cannot be exercised as the cloak of an appeal in disguise.
(iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority.
(v) The expression "revision" is meant to convey the idea of much narrower expression than the one expressed by the expression "appeal". The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC 246.
(vi). The meaning of the expression "legality and propriety"
so explained in Ram Dass vs. Ishwar Chander, (1988) 3 SCC 131 was only to the extent that exercise of the power is not confined to jurisdictional error alone and has to be "according to law".
(vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 8 finding contrary to the findings returned by the authority below.
(viii) In exercise of its revisional jurisdiction High Court shall .
not reverse findings of fact merely because on reappreciation of the evidence it may have a different view thereupon.
(ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law.
(x) Pure findings of fact are not to be interfered with.
Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal.
(xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order.
(xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence."
14. In the aforesaid decision, the Hon'ble Supreme Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the Hon'ble Supreme Court in Rukmini Amma Saradamma vs. Kallyani Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 9 called upon to decide the scope of the revisional jurisdiction and the expression "legality and propriety" provided in the relevant .
statues. The essential question being as to whether in exercise of such powers, the revisional authority could reappreciate the evidence or not. Finally the Hon'ble Supreme Court answered the reference by making the following observations:-
"43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 10 for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first .
appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers."
15. It is vehemently argued by Shri Naresh K. Sood, Advocate that the findings regarding material alterations and additions as contained in paras 43 to 46 are totally perverse and based upon the complete misreading of the evidence.
16. In order to appreciate this contention, it would be necessary to reproduce the paragraphs referred to and the same read thus:-
43. The onus is upon the landlord to plead and prove the material facts in order to succeed on the said ground. It is the case of the petitioner that the respondents have raised the construction on the west side of the building, in which, the demised premises is situated. In the pleadings, it has been pleaded that one additional room has been constructed by the respondents besides the accommodation which was originally rented to late Shri Jai Singh Thakur. Apart from this, it has been alleged that they have raised the construction of permanent brick walls, by virtue of which, the construction has been extended by 1 foot x 14 feet on one side and 1 foot x 10 feet on the other side. Although AW-1 has mentioned these facts in his affidavit Ex. AW-1/A, but the report of the expert of the petitioner has given a different picture as it has been mentioned that the additions and alterations is about 10 feet x 11 feet. The evidence of the ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 11 expert is beyond the pleadings and the same is not liable to be taken into consideration.
44. The much relied document of the petitioner to prove .
the additions/alterations is Ex. AW-3/B, the copy of which is Ex.RW-5/A. Much has been argued by the learned counsel for the petitioner that it has been proved in this case that the notice under Section 254(1) of the H.P.M.C. Act is issued after the visit by the concerned authority of M.C., but no evidence has been led by the appellant to prove the fact that any authority of M.C. had visited the spot and found the illegal construction at the spot. Even otherwise, there is nothing on the file to show about the fate of the proceeding, if any initiated on the basis of the notice under Section 254(1) copy of which is Ex. AW-3/B
45. Although the learned Rent Controller has relied upon the report of process server Shankar Lal made over Ex.RW-5/A, but leaving apart the said report, it was incumbent upon the petitioner to prove the fact that on its complaint, the proceedings for removal of unauthorized construction has been initiated and the unauthorized construction has been removed. No inference about the unauthorized construction can be drawn merely on the basis of the notice Ex.AW-3/B
46. Moreover, the unauthorized construction is there in the building in question, in which, the demised premises is situated from the year 1930, as depicted in the notice Ex.RW-5/B as well as the report Ex.RW-5/C. The learned counsel for the petitioner could not probablise from the evidence on record that the alleged additions or alterations have not been mentioned in these two documents. The unauthorized construction/additions and alterations in the building in question, in which, the demised premises is situated as mentioned in the documents Ex.RW-5/B and Ex.RW-5/C stood proved from ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 12 the letter written by M/s Beli Ram and Sons in the letter dated 23.04.1930 Ex.RW-5/D, in which, the prayer for compounding of the 'petty alterations' has been made.
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17. Adverting to para-43, it would be noticed that the evidence of the landlord has been discarded by the learned appellate authority only on the ground that the evidence of the expert is beyond the pleadings and the same was liable to be excluded from consideration. This principle equally applies to the case of the tenant who has tried to lead evidence beyond his pleadings.
18. As per para-8 of the eviction petition, it has been specifically mentioned that only two rooms, kitchen and bathroom were let out to the tenant whereas the tenant disputed this and in his reply stated that three rooms, kitchen and bathroom had been in the tenancy of the respondents/tenants since the inception of tenancy i.e. 1978.
19. However, while leading evidence, the tenant in his examination- in-chief by way of affidavit dated 14.03.2013 claimed that right from the inception of tenancy he was having three rooms, kitchen, bathroom and in addition was also having toilet and one store, which otherwise is not the pleaded case of the tenants, because as mentioned above in the reply to the eviction petition, the tenant has specifically stated in para-8 and 18(a)(2) that it is three rooms, kitchen and bathroom that have ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 13 been in the tenancy of the tenants since the inception of the tenancy i.e. 1978 by their father late Shri Jai Singh Thakur. There .
is no mention of either toilet or store in the pleadings.
20. Thus, it is clear that the evidence by way of affidavit by the tenants is beyond pleadings and appears to be an after thought, hence, cannot be looked into as it is settled law that no amount of evidence beyond pleadings can be looked into.
21. It is further well settled principle of law that evidence adduced beyond the pleadings would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The Court at a later stage of the trial as also appellate Court or revisional Court having regard to the rule of pleadings would be entitled to reject the evidence wherefore there does not exist any pleadings.
22. Even though no fault can be found with the principle applied by the learned appellate authority, nonetheless it was incumbent upon the tenants to have proved that in addition to the three rooms set alognwith kitchen and bathroom, a store and toilet had also been let out to him by the landlord.
23. Adverting to paras-44 & 45, it is vehemently argued by learned counsel for the petitioner that the plea of the landlord to prove that there is an addition and alteration as reflected in Ext. AW-3/B has been negated by the Appellate Authority by holding that it has not been established as it does not prove that ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 14 the notice under Section 254(1) of the Act had been issued after the visit by the concerned authority of the M.C. Such findings, .
according to him, are not only perverse but based on total misreading of the evidence. He has invited attention of this Court to the statement of PW3-Jamna Dass, who has specifically stated from the record that the concerned J.E. of the Corporation had visited the spot and only after satisfying himself that the repair work was being carried out without permission of the Corporation had issued the notice under Section 254(1) of the Act. This factual position could not be disputed by the tenants.
24. It is further contended by the landlord that even the subsequent observations made in the para regarding there being nothing on the file to show about the fate or outcome of the proceedings, if any, initiated on the basis of the notice under Section 254(1) are again perverse and based upon misreading of the evidence. He particularly invited the attention of this Court to the statement of PW-3 who has specifically stated that the proceedings were pending before the competent authority. Even this contention of the petitioner/landlord could not be contradicted by the tenant.
25. Now adverting to the para-46 of the findings recorded by the learned Appellate Court, it is vehemently contended that no inference could have been drawn by the learned Courts below on the basis of the notice Ext. RW-5/B as ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 15 also report Ext.RW-5/C that the addition and alteration in question had already been carried out by the landlord as is .
evident from the letter dated 23.04.1930 Ext.RW-5/D.
26. In order to appreciate this argument, it would be necessary to refer to these documents. Ext. RW-5/B is the notice issued to the landlord on 10.04.1930 regarding the unauthorised construction being carried out by him, which have been set out in detail at the back of the notice itself and are as follows:-
1. Glazed verandahs and passage on either sides have been enlarged and converted into rooms and position of the passages and latrines has been changed.
2. Two extra latrines towards east and west have been built.
3. Open verandahs 4 ft. wide on either sides have been made in the first floor and the back balcony having been converted into verandah has been made 2" - 9" in width instead of 2 ft.
4. Two extra latrines have been built in the back verandah in the first floor.
5. Four bridges have been made over the dry area in place of 2 staircases.
27. Ext. RW-5/C bears the details of the deviations which have been made in the residential quarters below St. Alban's Cottage and the same has been given in detail at serial wise 1 to 9 and read as under:-
"E.R.B. ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 16 I give below the detail of all the deviations which have since been made in constructing Residential Quarters below St. Alban's cottage, out of which items .
marked 'x' are compoundable and the remaining which are required to be removed have been entered at the back of notice.
1. total length of the building has been made 43 ½ ft. instead of 41 ¼ ft and width 32 ft instead of 30 ft.
2. Dimensions of all the rooms, kitchen etc, have slightly been changed.
3. Glazed verandahs and passages on either sides have been enlarged and converted into rooms and position of the passages and latrines has been changed.
4. Dry area at the back towards north has been made 5ft instead of 3 ft.
5. Foundations for an extra latrine towards west have been laid.
6. Open verandah 4 ft wide on either sides unauthorised had been made in the first floor and in the back balcony having been converted into verandah has been made 2 ft-
9" in width instead of 2 ft.
7. Two extra latrines have been built in the back verandah in first floor.
8. Four bridges have been made over the dry area in place of 2 stair cases.
9. Total height of the building has been increased by one foot."
28. And lastly Ext. RW-5/D is the letter written by the landlord dated 23.04.1930 and reads as under:-
"To The Secretary, Municipal Committee, Shimla Sir, ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 17 With reference to your Notice No. 23, dated 10 April, 30 I beg to state that the petty additions th and alterations mentioned therein have been no doubt carried out by us and it is impossible for us to .
dismantle the said work, because in doing so it will heavily damage the whole building and we therefore approach you with the request that your goodself will very kindly and sympathatically allow the petty alterations to remain as it is, and decide the case yourself by compounding it for which act of kindness we shall be ever grateful to you.
We beg to remain Sir, Your most obedient errants Sd/-
Beli Ram and Sons 136 Lower Bazar Shimla"
29. Firstly, it needs to be noticed that the demised premises even as per the tenants are comprised in building known as St. Alban's whereas the notice relates to some construction being carried out below the Alban estate. Thus, it is established that the above notices do not pertain to the premises in dispute. That apart, it would be noticed that the premises admittedly are located in the ground floor whereas even as per the notice Ext.RW-5/B, the unauthorised works no. 3 and 4 are being carried out in the first floor whereas no details of the floor have been given with regard to works no. 1 and 2. As regards unauthorised work no. 5 the same has no relevance to the present case.
30. On persistent and repeated query made by this Court to the tenant to link these notices with the premises in dispute, ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 18 he failed to do so. Surprisingly, not only the first appellate Court but even the Rent Controller have failed to take into .
consideration all these documents (supra) in their right perspective as these specifically relate to the residential quarter below St. Alban's cottage and not the premises in question.
31. Even though the pleadings recorded by the Appellate Authority are perverse, yet the further question that still remains to be considered is whether the tenant has committed such acts as are likely to impair materially the value or utility of the building in terms of Section 14.(2)(iii), which reads as under:-
14.(2)(iii). That the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or
32. In Kartar Singh vs. Kesar Singh (1980) 2 RCJ 1, the alterations made by the tenant was that a partition wall between two doors had been demolished. Thus, turning the two shops into one. The tenant had also made an opening in the partition wall of the rooms behind the front room. The tenant had removed the "Chaukhats" and "Takhats" of the four doors. The tenant had included the verandah in the front room and has fixed a shutter one one of the doors of the verandah and a tin door on the other. It was held by the learned Single Judge of the Hon'ble Punjab and Haryana High Court that this amounted to additions and alterations, which impair the value and utility of the building.
::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 1933. In Naraian Singh vs. Bakson Laboratories etc. (1981) CLJ 414, it was held by the Hon'ble Punjab and Haryana .
High Court that permanent conversion of a verandah into rooms and the installation of door by the tenant are acts of that materially impair the value and utility of the building.
34. In Om Pal vs. Anand Swarup (dead) by LRs (1988) 4 SCC 545, the Hon'ble Supreme Court observed that every construction or alteration does not impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building.
35. In Ram Singh vs. Banarasi Dass (1989) 2 PLR 119, the Hon'ble Punjab and Haryana High Court held that raising of construction in respect of rented land impair the value and utility of the building. Here in the instant case, the land has not even been rented out to the respondents.
36. In Vipin Kumar vs. Roshan Lal Anand and others (1993) 2 SCC 614, it was held by the Hon'ble Supreme Court that the impairment of the value or utility of the building is from the point of view of landlord and not of the tenant. The acts of the tenant must be such that erection of the wall had materially impaired the value or utility of the demised premises.
By constructing the wall, whether the value or utility of the ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 20 building has materially been impaired is an inferential fact to be deducted from the proved fact. In the said case, the tenant .
without the consent of the landlord had constructed a wall and put up a door therein, which has stopped the flow of air and light.
The Hon'ble Supreme Court held that the value and utility of the premises had been materially effected.
37. In Kharar Saw Mill Industry vs. Prem Kaur (1995) 3 PLR 345, it was held by the Punjab and Haryana High Court, as under:-
"No doubt, these words are not pleaded by the landlord that by constructing these rooms these persons have done acts which are likely to impair materially the value or utility of the demised land, but nevertheless the fact remains that when the premises were leased out, there was only one room constructed thereon. Now they have constructed five big rooms thereon. Even in the absence of pleading to that effect that this construction is likely to impair materially the value or utility of the rented land, it can safely be concluded that this construction is likely to impair materially the value or utility of the rented land.
Hence, on this ground also the Courts below have rightly held so."
38. In Gurbachan Singh vs. Shivalik Rubber Industries (1996) 2 SCC 633, a number of shops had been let out to the tenants alongwith some open space. The tenants had removed the roof of the shops, partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 21 the doors and opening new doors and windows and converting the premises altogether, giving a new and different shape by .
alterations. On these facts, it was held by the Hon'ble Supreme Court that the tenant had impaired the value and utility of demised premises must be judged from the point of view of the landlord and none else.
39. In Shivala Damodar Dass vs. Shankar Dass (2003) 1 RCR Rent 224, it has been held by the Hon'ble Punjab and Haryana High Court that construction of structure over the vacant piece of land without the consent of the landlord amounts to materially impairing the value and utility of the property in dispute.
40. Bearing in mind the aforesaid exposition of law, now in case the pleadings regarding additions and alterations are adverted to, the same are contained in para-18(2) of the petition, which read as under:-
"2. That the respondents in connivance with the late father and at his instance have carried out various material additions and alterations in the premises in question without the consent of the petitioner and which additions and alterations have materially impaired the value, utility of the building. It is worthwhile to mention here that while carrying out such additions and alterations, wooden planks have been removed and instead permanent brick walls have been constructed thereby extending the construction by 1' ft. x 14; ft on one side and 1' ft. x 10 ft on the other side. One ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 22 additional room has been constructed besides the accommodation which was originally rented to the later Sh. Jai Singh Thakur. Other related additions and .
alterations and structural changes have also been carried out which have also resulted in materially impairing the value utility of the premises. With the carrying of such unauthorized work the outlook of the building has been completely changed from the point of view of the petitioner keeping in view the existing old structure and its outlook."
41. Respondents in their reply of allegations as set out in the petition have denied the same and in the rejoinder filed to the reply the averments as contained in the aforesaid the reply are reiterated verbatim.
42. Dr. Saful Kumar son of late Shri Rajinder Lal Sood, Managing Coparcener of the petitioner has filed his affidavit in examination-in-chief, wherein it has been stated as under:-
3. That in the first week of April 2005, when I was informed that drain pipe towards the set of Smt. Veena Sood has been diverted I visited the site and was accompanied by S/Shri Jewanoo and Vishnu Ram and during this visit I noticed that unauthorized construction work was being carried out by the respondents in connivance with their late father and at his instance they have carried out various material additions and alterations including structural changes in the premises in question without our consent and which additions or alterations and structural changes have materially impaired the value and utility of the building. It is worthwhile to mention that while carrying out such ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 23 additions & alterations, wooden planks which were in existence have been willfully removed and instead new brick walls have been constructed whereby the existing .
construction has been extended by 1' x 14' ft. on one side and 1' x 10' ft. on the other side. Further the respondents have added additional one room into the already existing and tenanted premises which were originally let out to their father Sh. Jai Singh Thakur. Besides, these additions and alterations and structural changes other material changes have also been made in the premises without our consent. Not only this while carrying of such unauthorized construction work no permission was ever taken from the Municipal Corporation, Shimla and the said additions, alterations and structural changes carried out have totally changed the outlook of the premises. I also got the premises inspected from Sh. B. C. Sharma, Engineer. I also reported the matter to the Municipal Corporation, Shimla at the relevant time when the said unauthorized work in progress.
43. In cross-examination, he denied the suggestions that he had let out three rooms, one kitchen and bathroom to the father of the respondents. He further denied the suggestions that the father of the tenants had not carried out any additions or alterations and the same was in its original condition.
44. PW-2 B. C. Sharma is the Technical Expert examined by the petitioner who stated that he had inspected the premises to see whether any addition or alteration has been carried out in the said premises by the respondents. He further stated that he was informed in the month of April, 2005, when Shri Jai Singh ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 24 Thakur, the original tenant was alive, the respondents have carried out various acts of additions and alterations in their .
existing set of two rooms, kitchen and bathroom. The building in question is a load bearing building and seems to be approximately 80 years old or more and from the visual inspection, it could be made out that one additional room has been added to the existing accommodation as was evident from the photographs Ext. D1 to Ext. D7. It was averred that said work seems to have been carried out 5-6 years back and while raising this accommodation the vacant place which is still in the shape of path has been encroached upon and the outlook of the premises had been completely changed. He further stated that he was informed that a complaint to this effect had been made to the Commissioner, Municipal Corporation. Lastly he stated that he had prepared the Technical Report and had taken photographs at the time of inspection and attached with the plan of premises prepared as per site condition.
45. In cross-examination this witness admitted that at the time of inspection, he has not shown the plan of the building and had, in fact, been shown the building alone. He admitted that owner was not possessing any old Plan of the building though this area where the building was situated was in the Municipal Area for quite some time. He stated that the building in question was three storeyed which had a basement, ground and ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 25 first floor. He stated that he came to know about the additions and alterations as the plasters on the wall was new and it was .
otherwise different from the rest of the building as the old building had mud plaster. He denied the suggestion that the photographs Ext. D1 to Ext. D7 had not been taken on the spot.
46. PW3 Jamna Dass was working as Mate in the A.P. Branch, M. C. and stated that the spot had been visited by the concerned JE who had found repair work being carried out in the spot and thereafter issued notice under Section 254(1) of the M. C. Act. In cross-examination he feigned ignorance regarding the report having been prepared by the Junior Engineer in connivance with the landlord and further feigned ignorance regarding the JE having, in fact, visited the spot.
47. On the other hand, the respondent No. 2 filed his affidavit in examination-in-chief where in para-2, he stated that at the time of inception of tenancy, there were three rooms, kitchen, bathroom and one store and no additions and alterations were effected by the late father or by the respondents. No additional room was ever added neither any material additions, alterations or structural changes were carried out. In cross-
examination, he denied the suggestion that his father had rented two rooms, kitchen and bathroom. He further denied the suggestion that the accommodation was in L-shape. He further denied the suggestion that he had raised a room over the vacant ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 26 space, however, he admitted that the landlord had filed a complaint before the competent authority regarding .
unauthorised construction being carried out by him but clarified that the same was false. He admitted that he had received a notice in this regard but denied that the said notice had been issued after the engineer had inspected the spot. He further stated that no proceedings were pending against him before the Commissioner, Municipal Corporation. He denied the suggestion that at the time of service of notice he had stated that he was only carrying out repair work. He further denied the suggestion that in the vacant portion he had removed the wooden plank and had raised thereupon one brick wall and further constructed an independent room. It was made of concrete. Self stated that he had not raised any room at the common entrance. He denied the suggestion that PW-2 B. C. Sharma, visited the spot and had clicked photographs. He further denied the suggestion that Engineer S. K. Chauhan had visited the spot and clicked photographs. However, he still stated that photographs annexed with the petition was correct which had been clicked by PW-2 B. C. Sharma and annexed with his report Ext. AW2/B. However, he denied the suggestion that the entrance as depicted in the photographs was raised by him later on and stated that he had been seeing the same in the same condition since the time of his birth. He further denied the suggestion that the portion encircled ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 27 'B' Ext. AW2/D-4 had been raised by him by carrying out additions and alterations. He has stated that this portion was .
existing even at the time when the premises were taken on tenancy by his father.
48. RW-2 Anil Justa, Clerk, Town and Country Planning is not relevant, however, RW-3 Amit Bhatt, Clerk, Tax Department, M. C. Shimla stated that he had brought the summoned record and in terms thereof the building was registered in the name of Beli Ram and Mehar Chand in which Jai Singh Thakur was recorded as tenant in occupation of three rooms at the rate of RS.540/- per annum. During cross-examination he admitted that the entries in the register were not recorded by him and further stated that he was not even in a position to state whether three rooms as stated in the examination-in-chief were authorised or unauthorised. He further admitted that there was no entry regarding kitchen, bathroom and latrine in the said register.
49. RW-4 is the neighbour, who stated that the respondents right from the inception of tenancy had not carried out any additions and alterations work in the premises and the same is in the same condition as was handed over to them.
However, in cross-examination, this witness was not even aware of that who had inducted Jai Singh Thakur as a tenant and the terms and conditions of such tenancy. He further feigned ignorance regarding the accommodation that had been rented ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 28 out and simply stated that three rooms had been rented out to the tenant. He further feigned ignorance regarding the size and .
dimensions of the rooms. He further feigned ignorance regarding having let out two rooms and kitchen and bathroom to the tenants.
50. RW-5 Surinder Singh, Draftman, AP Branch, Shimla proved on record notice issued by the Municipal Corporation Ext.
PW-5/A regarding additions and alterations and the alleged report of the Process-Server Shankar Lal. Since this witness had not visited the spot, therefore, he denied most of the suggestions in the cross-examination but, however, admitted that on the basis of the complaint made by the landlord, proceedings under Municipal Corporation were launched against the tenant by issuing notice.
51. RW-6 Shankar Lal is the Process Server who served notice Ext. RW-5/A on behalf of Municipal Corporation upon the respondent. He proved on record his report encircled Ext. RW-5 over the summons wherein it is stated that the respondents were not carrying out any constructions at the time of serving of the notice. However, in cross-examination, he admitted that he is only Process-Server and had been directed by the Architect Planner to service notice. He further admitted that he had no written authorisation of the report about the condition of the building and stated that this is an oral order. He further admitted ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 29 that notice served upon the respondent was only after the J.E. had inspected the spot but feigned ignorance as to whether the .
J.E., in fact, had visited the spot or not. He further denied that the repair work has been carried out on the spot and he had prepared a false report.
52. PW-7 S. K. Chauhan is the Civil Engineer, who on the request of respondent No. 2 inspected the premises and prepared a technical report and plan of premises in occupation of respondent No. 2 and stated so in his affidavit submitted in examination-in-chief. As per his opinion and according to the position on spot there was no addition and alteration in the premises in occupation of respondent No.2 and neither any additional room had been added in the existing accommodation.
He stated that there was no change in the nature of the building or premises in occupation of respondent No. 2 which has impaired the value and utility of the premises. However, he also found that there was no blockage in the drainage system and nor any path has been blocked on the spot. In cross-
examination, he admitted that the records of the buildings that have been constructed in Shimla is available and maintained by the Municipal Corporation, however, before inspecting the building he had not checked the said record. He stated that the building is three storeyed and was about 45 years old. He admitted that he had not checked the revenue record of the ::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 30 premises. He further admitted that he had not inspected any other set in the building and volunteered to state that there was .
only set opposite the set in question which was in possession of Mr. Chauhan but was locked. He denied the suggestion that the building was in 'L' Shape. He admitted that he had not seen the drain lay out plan of the building. He stated that he was informed by respondent No. 3 that three rooms had been rented out to him and he had seen those rooms. He further stated that Ext.
AW-1/D-4 encircled portion 'B' is the main entrance of the building but denied that the entire premises therein are in occupation of respondent No. 2. He feigned ignorance regarding the premises shown in encircle 'B' earlier have been a verandah.
He proved on record the photograph Ext. AW2/D-1 to AW-2/D-7 and stated that even though he had taken the photographs but the same are not available on the case file. He denied that portion 'B' in Ext. AW-1/D-4 was having portion of new bricks and roof of new CGI sheets and new plaster on the walls. He denied that portion 10 ft x 18 ft room had been added by respondent No. 2. He denied the suggestion that the father of the respondent had rented out two rooms and the other accommodation. He further denied that the addition and alteration damaged the foundation of the building. He further denied the addition and alteration blocked the drainage system.
::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 3153. From the statement of the witnesses one thing is clear that the veracity and correctness and what appears in the .
photographs Ext. AW-2/D-1 to Ext. AW-2/D-7 are not in dispute. A bare perusal of these photographs would show that the main premises are quite old. Even as per Ext. RW-7 and RW-8, Shri S. K. Chauhan, the premises are more than 80 years old and this fact has also been admitted by respondent No. 2 in his cross-
examination. No concrete is found to be used in the main building and, in fact, the same has been plastered with mud plaster.
54. However, one portion in the ground floor conspicuously stands out and is made of concrete and can definitely be said to have been raised subsequently because at the time when the main building was constructed, no cement whatsoever has been used in the said building and the type of construction which is 'Dhaji', as commonly known in this State.
Dhajji construction is made of highly sub-divided light timber frame with masonary infills. Dhajji most commonly consist of braced timber frame in different patterns. The spaces left between braced and / or frame is filled with thin wall of stones traditionally laid into mud mortar so as to create a patch work of small size masonary panels and completed walls plastering with mud mortar.
::: Downloaded on - 29/09/2019 00:50:37 :::HCHP 3255. In this background, it was incumbent upon the tenant to have proved that a new concrete structure as standing out, in .
fact, was a portion of the tenanted premises that was let out to his father in the year 1936.
56. It is thus proved on record that the tenant has unauthorisedly raised construction over the land that was not even rented to the tenant and thereby changed the character of the land. A vacant land could have been put to many a use by the landlords whereas after the construction the landlord is not only a restricted user but for all practical purposes cannot use the same. The landlord had not permitted the tenant to raise any construction, therefore, the raising construction on vacant land itself in the opinion of this Court will make the tenants liable for ejectment under the provisions of the Act.
57. In view of the aforesaid discussion and foregoing reasons, I find merit in this petition and the same is accordingly allowed and the respondents are ordered to be ejected from the premises in question and directed to handover the vacant possession thereof to the landlord. The parties are left to bear their own costs.
16th July, 2019 (Tarlok Singh Chauhan)
(Sanjeev) Judge
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