B.N. Nigam, J.
1. Ram Swarup Gupta filed civil suit No. 588 of 1949-50 against the Cantonment Board, Lucknow, He stated that he had been given a notice regarding certain constructions made by him. The transgressions alleged were:
(1) Changing of roof of one room on the second storey by replacing wooden beams by terrace and brick work.
(2) Constructing brick wall by removing temporary tin sheets on the east side of the kitchen overhanging the public street.
(3) Constructing pardah wall, 5 Ft. in height on the third storey of the building with two openings therein,
(4) Constructing Chhajja on south, and east side of the house measuring 4'-6' width (the former Chhajja was 2 1/2') supported on iron poles and thus encroaching on Government land comprising S. No. 111/822, Class B-4 land. The plaintiff claimed the relief that the defendant he restrained from taking any steps for the demolition of any structures whatsoever of the building known as No. 7, Napier Road, Sadar Bazar Cantonments, Lucknow. After hearing the parties, the learned Munsif dismissed the plaintiff's suit for permanent injunction but directed the defendant not to demolish the purdah, wall on the second floor in the plaintiff's house at No. 7, Napier Road, Luck-now.
Against that judgment and decree, i.e., dismissal of the plaintiff's suit in the main but allowing him a decree only in respect of one of the four alleged transgressions, Ram Swarup Gupta preferred an appeal. The Cantonment Board submitted to the decree granted by the learned Munsif This appeal No. 234 of 1951/11 of 1952 came up for hearing before the learned Civil Judge, Maliha-bad and was dismissed by judgment dated 30th May, 1952. Now Ram Swarup Gupta, the plaintiff, has come up in second appeal. I have heard the learned counsel for the parties.
2. The provision of law, that falls for my interpretation, is Section 179 of the Cantonments Act (Act II of 1924). The section so far as it is relevant for our purposes reads :
'179(1) Whoever intends to erect or re-erect any building in a cantonment shall apply for sanction by giving notice in writing of his intention to the Board.
(2) For the purposes of this Act, a person shall be deemed to erect or re-erect a building who-
(a) makes any material alteration or enlargement of any building, or
(g) makes any alteration to any building which increases or diminishes the height of, or area covered by, or the cubic capacity of, the building, or which reduces the cubic capacity of any room in the building below the minimum prescribed by any bye-law made under this Act.'
Four transgressions, were alleged against the plaintiff. It was alleged that he bad changed the roof of the room on the first floor by replacing wooden beams by terrace and brick work. (Now the allegation is that reinforced cement concrete slab has been put instead of a roof supported on wooden beams).
It was further stated that he had constructed a wall on the second storey mentioned as the purdah, wall. In respect of this the Cantonment Board has already submitted to the decree granted by the first court. The third allegation was that the plaintiff had replaced one of the tin sheet walls of a kitchen overhanging the public street by a brick wall, and the last allegation was that he had extended his Chhajja by a further two feet.
3. Two questions arise for my consideration. One is a question of fact as to whether the Chhajja has been extended and the other is a question of law as to whether these allegations. If proved, amount to erection or re-erection within the terms of Section 179 of the Cantonments Act. As regards the first question, I am of opinion that the finding of fact recorded by the learned Civil Judge is binding on me. At one stage the learned counsel urged that the learned Civil Judge had relied on an inadmissible plan. I am of opinion that there is no force in that suggestion. The learned Civil Judge has clearly stated :
'Moreover the statement of a person who had Seen the house before the repairs were carried out and who saw it again after the repairs will be good piece of evidence to show as to what changes had been made. The Overseer was such a person and he has deposed on the point.'
A few lines later the learned Civil Judge stated :
'The second transgression, viz., constructing brick wall by removing temporary tin sheets on the east side and the kitchen over-hanging on the street also stands proved by the testimonies of D. W. 2 and D. W. 1.'
From these extracts, it as clear to me that the learned Civil Judge was accepting the testimony of D. W. 1 Mirza Ahmad Ali. He was quite within his rights in doing so. This finding' of fact has not been shown to be vitiated for any reason. It is, therefore, binding on me.
4. As regards the second question as to what amounts to erection or re-erection within the meaning of the words as used in Section 179 of the Act, I have been referred to several rulings by the learned counsel for the parties. In Gaya Municipality v. Sham Lal Gupta, AIR 1917 Pat 6 it was stated :
'As I understand the finding of the Munsif which was accepted by the District Judge no new structure was erected by the respondent. He intended to repair the upper storey or the roof of his house and! in the course of making the repairs he found it necessary to renew some of the walls or parts of the walls of the upper storey and also to renew some of the woodwork of the balcony. In order to do this he had to pull down and put up again the whole balcony. In my opinion he did not erect or re-erect his house within the meaning of Section 240.
He carried out thorough repairs. Nor am I able to hold that there was within the meaning of S, 240 any material alteration of the building. These words do not appear to me to refer to the case of a balcony or wall being replaced by another of exactly the same dimensions and on the same site.... There was no 'enlargement' of the building. In ordinary parlance the respondent cannot be said to have erected or re-erected a house.'
Jwala Prasad, J. concurring with this decision stated:
'In the present case it has been found as a fact that there was no new structure constructed and there was no 'erection' or 're-erection'.' The case of Ram Swarup v. Emperor : AIR1926All122 is of no help as it related to a chabutra in front of a house. The third case to which I have been referred is Sh. Mohammad Ata Husain v. Haji Qadir Baksh : AIR1930All560 . This case is also of not much help as it was merely held that the opening of a door in an existing wall does not materially alter the building within the meaning of Section 178 of the U. P. Municipalities Act. In both these Allahabad cases the question that was considered was whether the material alteration was of a building. In King Emperor v. Babu Ram, AIR 1923 Oudh 35 (1) the raising of the plinth and the making alterations in the size, position or number of the doors or windows was taken not to amount to a material alteration in the original plan.
5. In Administrator, Corporation, City of Lahore v. Sampuran Singh, AIR 1947 Lah 172 Abdur Rahinan J. held that merely re-roofing does not fall within the definition of the expression 'erect or re-erect any building' unless premises are materially altered or enlarged. The learned counsel for the respondent has referred me to Nihalchand Harumal v. Karachi Municipality, AIR 1930 Sind 20 and has urged that even the replacement of wooden pillars by masonry pillars would amount to re-erection of a building. I have also been referred to Corporation of Calcutta v. Narsingh Pratap Singh : AIR1954Cal20 . The learned counsel has referred to paragraph 23 and has relied on the following passage :
'The word 'substantial' qualifies 'alteration' and 'improvement' and not the word 'building', .. .... 'Substantial' refers to the fact that the alteration and improvement had neither been illusory nor Inconsiderable, it was not merely nominal or flimsy but it was an alteration and improvement which in comparison with the structures already standing can be deemed to materially alter the previous dispositions of the property, or the conveniences which were available ........ Sometimes, the comparison of the floor area, sometimes the value of the structures and on other occasions other considerations may weigh with the authority for determining whether an the particular facts of a case, the alterations and improvements can or should be deemed to be substantial ones.
The word 'substantial' as it does not qualify the word 'building', does not refer to the strength, and durability of the structure. It cannot always be stated that if in, effecting alteration and improvement, structures of a different type are introduced that by itself will rule out the application of this clause. It is not the nature of the structure, but as stated already, the relative value, the area covered and the material increase of the conveniences which would determine whether the structures raised are substantial or not.'
6. Reverting back to the provisions of Section 179 with which I am concerned, it is clearly stated that a person shall be deemed to erect or re-erect a building if he makes any material alteration or enlargement of any building. Now so far as the present case is concerned it is not a case of erection or re-erection of a building. The only point for my consideration is whether there has been any material alteration or enlargement in building which would, under the deeming clause, amount to erection or re-erection of a building.
There is absolutely no evidence of any increase in height or the area or the cubic capacity or even decrease of the cubic capacity below the minimum prescribed by any bye-law. The Clause (g) is of no help to the respondent. The only question is whether there has been any material alteration. It is true that, in replacing the roof with R. C. C. slab or replacing the tin sheets constituting the eastern wall of the kitchen with a brick wall, alterations have been effected which would normally add to the comforts and safety of the residents.
It is also true that the new construction is more lasting and substantial, but in my opinion they do not amount to any material alteration. Of course, there is no question of any enlargement of any building. The accommodation as was provided before is very much the same as now. There has been no material alteration in the building. I am, therefore of opinion that the plaintiff was also entitled to succeed so far as the roof which he replaced and the tin sheets which have been replaced by erecting a wall are concerned. There can, however, be no two opinions about the Chhajja. There has been a marked increase in its size and this must be held to be a material alteration in the building.
7. No other point has been pressed beforeme. I, therefore, accept this appeal in part. I directthat the plaintiff's suit be decreed in respect of items 1and 2 in paragraph 3 of his plaint also. The defendant will be restrained from taking any steps forthe demolition of the roof on the second storey andthe demolition of the brick wall on the east side ofthe kitchen. The plaintiff's suit in respect of itemNo. 3 has already been decreed by the learnedMunsif. The plaintiff's suit will stand dismissed inrespect of item No. 4, i.e., Chhajja. In this appealthe parties will bear their own costs. Costs in thecourts below will be as directed by them. The stayorder dated 5th March, 1953 is vacated.