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“... In my opinion the evidence that had been presented before the subordinate court, the subordinate court has not made any mistake in coming to the conclusion that the tenant has made structural changes in the rented accommodation. The appellant tenant has not been able to present any evidence to show that the consent of the land lord had been taken before making structural changes. ...” On such findings, the appeal was dismissed. Thus, there are two findings of fact against the tenants/respondents.

(2) Whether on the facts of this case, the learned courts below have erred in not drawing adverse inference for non-appearance of the plaintiff Damodar Lal in the witness box?” The High Court, in the second appeal, came to the conclusion that the concurrent finding on structural change, in the absence of the statement of the plaintiff before the court, cannot be treated to be trustworthy. The High Court went further and held that adverse inference should have been drawn for the non-appearance of the plaintiff in the witness box, and in such circumstances, the finding on material alteration is totally perverse.

“10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent.” In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the defendants/respondents to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.