N.D. Ojha, J.
1. This is a defendant's appeal arising out of a suit for ejectment from an accommodation. The suit was filed on various grounds mentioned in Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, including the ground that the defendant had made material alterations in the accommodation. The trial Court found in favour of the plaintiff on the last mentioned ground, viz., that the appellant had made material alterations in the accommodation and, consequently, decreed the suit for ejectment. The Lower Appellate Court agreed with the finding of the Trial Court and dismissed the appeal filed by the appellant. He has now come up in second appeal. The plaintiff-respondent purchased the accommodation by a sale deed dated May 30, 1966. In regard to the constructions, which according to him had the effect of making material alterations in the accommodation, the case of the plaintiff was that these constructions had been made by the appellant in 1967, i.e., after he had purchased the accommodation. It was further mentioned in the plaint that the constructions had been made without his permission.
2. The defence on this point set up by the appellant in brief was that these constructions had been made by him not in 1967, but in 1964 with the full knowledge and consent of the then owner of the accommodation. It was also pleaded that the constructions did not amount to making any material alterations in the accommodation. The Trial Court accepted the version of the plaintiff and held that these constructions had been made in 1967. The Lower Appellate Court, however, agreed with the defence version that the constructions had been made in 1964. It, however, still maintained the decree for ejectment passed by the Trial Court on the view that the bar created by Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, having been lifted in 1964, as a result of the defendant's making the constructions in question, which amounted to making material alterations in the accommodation, the right which accrued in favour of the then landlord to sue the appellant for his ejectment could be availed of even by the plaintiff, even though he was not the owner of the accommodation ha 1964.
3. Counsel for the appellant in support of the appeal has made the following submissions; (1) that the constructions complained of do not amount to material alterations; (2) even if they amounted to material alterations, on the finding recorded by the Lower Appellate Court that they were made in 1964, the suit should have been dismissed inasmuch as the ground on which it was filed, namely, that the constructions were made in 1967 had not been substantiated; and (3) that in any view of the matter, the right which may have accrued in favour of the erstwhile owner of the accommodation as a result of the appellant's making the constructions in question, could not be availed of by the plaintiff, who purchased the accommodation after the said constructions had been made.
4. Counsel for the respondent, on the other hand, not only supported the findings recorded by the Lower Appellate Court on the question that the constructions made by the appellant amounted to material alterations and that the respondent was entitled to institute the suit even though he purchased the accommodation in May, 1966, he alsourged that the finding recorded by the Lower Appellate Court that the constructions were made in 1964 was erroneous in law.
5. The constructions in question were, on the case of the parties, made by the appellant in order to install an ice candy plant, and such of these constructions which have been found to have made material alterations in the accommodation are: (1) breaking open the roof and fixing a 3 ft. x 3 ft. window in it to enable the appellant to reach the said roof; and (2) constructing a water tank, fixing a condenser and making of enclosures on the roof of the accommodation.
6. It may also be pointed out that) in order to connect the water tank and the condenser with the ice candy plant, two holes were made in the roof in order to fix pipes carrying hot and cold water separately. It would be seen that the constructions referred to above had ex facie the effect of altering the form and structure of the accommodation. Not only the roof was broken open in order to have a passage for going over it and to fix two pipes, but even a water tank, was constructed, which according to the evidence of D. W. 3 Uma Shanker produced by the appellant himself was 4' X 4' with a depth of 3'. These constructions obviously have the effect of making material alterations in the accommodation in view of the criteria laid down in M.D. Shah v. Bishun Das : 1SCR836 and Sita Ram Saran v. Johri Mal : AIR1972All317 .
7. The next question to be considered is about the time when these constructions were made. The Lower Appellate Court has, as already pointed out above, held that these constructions were made in 1964. It has been mainly relied on some documents by which the appellant was permitted to install initially a three horse power motor and subsequently a five horse power motor for purposes of ice candy industry. Even the Trial Court had found in favour of the appellant on the point that the five horse power connection which according to the appellant was installed for purposes of ice candy industry, was installed on 6-8-64. The Trial Court, however, come to the conclusion that it was apparent from the deposition of Hafiz All (P. W. 1) who was an Assistant Engineer in Water Works, Aligarh, that the water connection for ice candy plant was granted to the appellant on 22nd April, 1967, and since without a water connection the ice candy plant could not be used, it was more probable that the constructions in question were made near about 22nd April, 1967, when the water connection was granted. The Trial Court also relied upon the further statement of Hafiz Ali (P. W. 1) to the effect that he had made an inspection, of the accommodation on 27th June, 1966, when there was only a cane crusher in the accommodation, and there was then nowater connection. Learned counsel for the respondent pointed out that the lower appellate Court has ignored that part of the statement of Hafiz Ali, wherein he has stated that when he inspected the accommodation on 27th June, 1966, there was only a cane crusher in the shop, and that there was then no water connection. He also referred to the deposition of the appellant himself wherein he had admitted in the cross-examination that he was in possession of the receipts for the purchase of ice candy and ice cream plants. Learned counsel urged that the fact that the appellant was possessed of these receipts, and yet he kept them back and did not produce them in Court, clearly indicated that if these receipts had been produced, they would have supported the case of the plaintiff-respondent that the ice candy plant was purchased and set up near about 22nd April 1967, when water connection was given for the purpose of running the said plant. Pannalal, (D. W. 4) a witness for the appellant, has stated in his cross-examination that the water works gave connection in 1964, and at that very time the water tank was constructed. From his statement this much is clear that giving of the water connection by the Water Works and constructing the water tank by the appellant were simultaneous. His assertion that these were done in 1964, on the face of it is belied by the statement of Hafiz Ali (P. W. 1), the Assistant Engineer of the Water Works, who has stated with reference to the material record on the point that water connection for ice candy plant was granted to the appellant on 22nd April, 1967. If the grant of the water connection and the construction of the water tank were simultaneous as deposed by Pannalal (D. W. 4), it seems reasonable to infer that both these things took place in 1967, and not in 1964.
8. In Raghavamma v. Chenchamma : 2SCR933 it was held that if relevant documents admitted to have been in existence were not placed before the Court by the party concerned, adverse inference has to be drawn against that party. Consequently, from the conduct of the appellant in not producing the receipts for the purchase of the ice candy and ice cream plants, even though he was admittedly possessed of these receipts, an inference can be drawn adverse to the appellant, viz., that if these receipts had been produced they would have substantiated the case of the plaintiff. Hafiz Ali (P. W. 1) was an Assistant Engineer of the Water Works. He was in no way connected with either party, and was an independent witness. His statement that when he made an inspection of the accommodation on 27th June, 1966 there was only a cane crusher, and there was no water connection, was material for the determination of the question as to whether any ice candy plant was being run in the accommodation on or before 22nd April,1967, when water connection was granted by the Water Works. A perusal of the deposition of Hafiz Ali further shows that towards the end of his cross-examination he has stated that the cane crusher which was fixed in the accommodation was being run by electric power. The fact that before starting the ice candy plant, the appellant was running a cane crusher by electric power, has been admitted by the appellant himself in his deposition. It is not his case that the cane crusher and the ice candy plant were being simultaneously run on 27th June, 1966, when Hafiz Ali (P. W. 1) had inspected the accommodation. If the statement of Hafiz Ali who was an uninterested witness and was an Assistant Engineer in the Water Works is believed, and there seems to be no reason why it should not be believed, it is clear that the ice candy plant was not being run on 27th June, 1966, and only a cane crusher was being run in the accommodation by electric power. From the record it appears that not only the five horse power motor which was installed in 1964 was meant for the purpose of ice candy plant, but even the three horse power motor which was sanctioned to be installed in the accommodation by the District Magistrate, Aligarh, by his order dated 10th May, 1963 (Ex. A-21) was for the same purpose. Even on the appellant's own case, the ice candy plant was not being run prior to 1964. It would thus be seen that even though the three horse-power motor had been sanctioned for the purposes of ice candy industry the appellant was using it not for the said purpose, but for running a cane crusher. Consequently, the mere fact that the five horse power motor which was installed in 1964, had been sanctioned for ice candy industry does not lead to the conclusion that the appellant must necessarily have started that ice candy plant in 1964. In this background the statement of Hafiz Ali (P. W. 1) that when he inspected the accommodation on 27th June, 1966 only a cane crusher was being run in the shop by electric power, assumes importance and was material for the determination of the point in issue. In Smt. Sona-wati v. Shri Ram : 1SCR617 it was held that since the first Appellate Court did not refer to important pieces of evidence, the conclusions reached by it cannot be regarded as binding upon the High Court in second appeal.
9. In view of the foregoing discussion, I am inclined to agree with the finding of the Trial Court that at least the water tank and the enclosures were constructed over the roof, and the condenser and the water pipes were fixed near about 22nd April, 1967.
10. As regards the window fixed in the roof, however, I am doubtful whether that too was fixed in 1967. Ex. A-29 is certified copy of the report of an amin in Suit No. 183 of 1963 of the Court of Munsif, Koel, Aligarh. From its perusal, it appearsthat the amin had inspected the accommodation in question on 22nd July, 1964. At one place in the said report it is stated that there was a small wooden ladder in side the accommodation for going over the roof, and the opening was covered by a wooden khirki. It is possible that this khirki may be the same which is in dispute. However, since the amin who gave this report has not been produced in evidence in the present case, so that the correct facts could be ascertained, it cannot be said with certainty that the khirki mentioned in the report of the amin was necessarily the same which is in dispute. Even if it be so, that will not make much difference in the result of the appeal, firstly, in view of my finding given earlier that at least the water tank etc. referred to above came into being in 1967 and, secondly, because I am of the opinion, in view of the discussion which is to follow, that the plaintiff can take advantage of the right that accrued in favour of the previous owner on account of material alterations having been made in the accommodation.
11. Before dealing with the legal question referred to above, it seems necessary to dispose of the technical objection raised by the counsel for the appellant, namely that since that plaintiff had come with a categorical case that the constructions were made in 1967, it would be prejudicial to the appellant if a decree is passed, even though the case of the plaintiff has been found not to have been substantiated in view of the finding of the Lower Appellate Court that the constructions were made in 1964. One of the requirements in order to lift the embargo placed by Section 3 of U. P. (Temporary) Control of Rent and Eviction Act upon the right of a landlord to institute a suit for eviction of a tenant is that the tenant has, without the permission in writing of the landlord, made or permitted to be made any such construction as, in the opinion of the court, has materially altered the accommodation. The tenant can escape the consequences by making a construction which has materially altered the accommodation, only by proving that he had done so with the permission in writing of the landlord. Learned counsel for the appellant urged that after finding that the constructions were made in 1964 if a decree is passed for ejectment of the appellant, it would be setting up a new case. He relied upon certain observations made in Bhagwati v. Chandramaul : 2SCR286 where it was held that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. In the same case, however, it was further observed:--
'If a plea is not specifically made, and yet it is covered by an issue by implication,and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings, would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.'
In Nagu Bai v. B. Shama Rao : 1SCR451 while considering the scope of the rule that no amount of evidence can be looked into upon a plea which was never put forward, it was observed:
'The true scope of this rule is that evidence let in on issues on which the parties actually went to trial, should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties, and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto.'
In order to determine the question whether the constructions in question amounted to making material alterations in the accommodation, it is not of much consequence whether these constructions were made in 1964 or 1967. In whichever year they were made, if they satisfy the criteria laid down to determine whether a construction amounts to material alteration, the finding has necessarily to be that it amounts to making material alterations. The nature of evidence which the appellant would be required to produce in order to prove that the constructions do not amount to material alterations would be the same irrespective of the year in which they were made. The only plea which could have saved the appellant from the consequences of making material alterations was that the constructions in question were made with the permission in writing of the landlord. It is not the appellant's case that he made these constructions with the permission in writing of the plaintiff. In fact, his case is that these constructions were made before the appellant purchased the accommodation, and so, no question of any permission in writing having been given by the plaintiff arises. In the written statement, the appellant has stated that the constructions in question were made with full knowledge and consent of the then owner. It shows that he was aware of the necessity of proving that the constructions were made with the consent of the landlord. Even so, he did not plead that the consent referred to by him in his written statement was by way of 'permission in writing of the landlord' as contemplated by Section 3 (c) of the aforesaid Act. In cross-examination in reply to a specific question having been put in this behalf, he categorically stated that he had not taken any permission in writing from the then owner. It is clearly a case where the appellant was from the very inception aware that he had to prove not only that the constructions inquestion did not amount to material alterations, but also that they were made with the permission in writing of the landlord. In this view of the matter, the present case is fully covered by the observations made by the Supreme Court in the cases referred to above. It cannot be said that the Lower Appellate Court set up any new case for granting a decree to the plaintiff respondent, as a result of which the appellant was in any way prejudiced.
12. Last comes the question as to whether the plaintiff respondent could avail of the right which came into being in favour of the previous owner to seek for the appellant's ejectment on account of material alterations having been made by him in the accommodation. It having been found that the constructions in question did amount to material alterations, it cannot be denied that the embargo placed by Section 3 aforesaid upon the rights of the landlord stood lifted inasmuch as the case fell within Sub-clause (c) of the said action. The plaintiff, as already pointed out above, purchased the accommodation by a sale deed dated 30th May, 1966. Section 109 of the Transfer of Property Act deals with the rights of lessor's transferee. It reads:
'If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all liabilities of the lessor as to the property or part transferred, so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him;
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased.'
13. A plain reading of Section 109 aforesaid, indicates that, but for the right to recover the arrears of rent referred to in. the proviso to the said section, the transferee in the absence of a contract to the contrary, shall possess all the rights of the lessor. It is nobody's case that there was any contract to the contrary. The sale deed is on the record and on its perusal, it does not appear that there was any contract to the contrary.Apparently, therefore, all the rights of the previous owner of the accommodation except that mentioned in the proviso, stood vested in the plaintiff. However, notwithstanding the very wide language used by Section 109 aforesaid there have been cases in which a distinction has been made between a right which is personal to the transferor and a right which is attached with the property, or which, if arising out of a contract, can be said to be a covenant running with the land.
14. In Abdul Rahman v, Phiroze Cursetji, AIR 1936 Bom 88 it was held that the words
'all the rights of the lessor as to the property' in Section 109 of the Transfer of Property Act, clearly include rights of the lessor under covenants affecting the demised property, i.e.,--to use the English expression--under covenants which run with the land and that no other rights pass. Only covenants the benefit of which passes to the transferee, are covenants running with the land. A purely personal right against the original lessee who has parted with the land is not a right of the lessor as to the property.
In Phool Rani v. Naubat Rai Ahluwalia : 3SCR679 construing the provisions of Section 14(1)(e) of the Delhi Rent Control Act, 1958, it was held that if the plaintiff landlord based his claim for ejectment of the tenant on the ground of his personal requirement of the accommodation, the right to sue was personal in nature to such plaintiff, and on his death, his legal representatives could not avail of the said right.
The right to sue on the ground of any material alteration having been made in the accommodation, however, clearly stands on a different footing. It is not something personal to the landlord as in the case of obtaining permission on the ground of personal need, the accommodation, yet the purchaser may not have any such need. But, so far as the right to file a suit on the ground of making material alterations in the accommodation is concerned, it is a right of the lessor as to the property. In Vishveshwar v. Mahabaleshwar, AIR 1918 Bom 79 it was held that a transfer of the revision of a lease carries with it the right to enforce forfeiture of the lease for breach of a condition, even where the breach has occurred prior to the transfer. In Mannikkam v. Rathnaswami, AIR 1919 Mad 1186 it was held that the words 'all the rights' in Section 109 of the Transfer of property Act include the right to recover possession by terminating tenancy of a previous lessee by giving the necessary notice to quit. In Somesundaran v. M. P. Co-operative Society : AIR1950Mad711 while dealing with the provisions of Section 7 of the Madras Buildings (Lease and Rent Control) Act of 1946, it was held: 'No doubt the landlord who is seeking eviction, must satisfy the controller that the tenant has done one or other of the things mentioned in the several clauses in Sub-section (2) of Section 7, One of such things is that the tenant has after the commencement of the Act transferred his right under the lease or sublet the entire building or any portion thereof. There is nothing from which it can be urged with any force that the transfer or subletting must have been made not merely after the commencement of the Act, but also after the date on which the petitioning landlord became a landlord. According to the definition the term 'landlord would include both the vendor and the purchaser. It appears to be an unreasonable construction to confine the rights of the landlord to rights which accrued to him only after he became a landlord. In the clause 'without the written consent of the landlord' the obvious reference is to the landlord at the material time who could have given Ms written consent, that is to say, the landlord at the time of the alleged transfer or subletting. If such landlord had given his written consent, then, of course, his successor or his assignee would be bound by that consent. He cannot be heard to say that after the accrual of rights in his favour, the tenant had again to obtain his written consent.'
In view of the aforesaid discussion, I am of the opinion that the right which came into being in favour of the previous owner of the accommodation on account of the material alterations made by the appellant, was not a right personal to the previous owner, but was a right in respect of the property, and on the sale of the accommodation in his favour, the plaintiff could avail of the said right by virtue of Section 109 of the Transfer of Property Act. In this view of the matter, even if the constructions in question, either wholly or in part had been made in 1964, the present suit filed by the transferee of the accommodation would still be maintainable. It was faintly submitted that the previous owner not having filed any suit for ejectment of the appellant from 1964 to 1966 when he transferred the accommodation to the plaintiff, he will be deemed to have acquiesced in the making of the constructions in question, and the present suit would be barred by estoppel. Firstly, no such plea seems to have been pressed before either of the Courts below. Secondly, such a plea is not even legally maintainable. Section 3 (c) of the Act aforesaid specifically requires permission in writing, and acquiescence by the landlord cannot be placed on the same footing as permission in writing. Moreover, there would be no estoppel in such matters. In J.R. Sethi v. D.D. Jain : AIR1972SC1727 while considering the provisions of Section 111 of the Transfer of Property Act, it was held that the lessor is not debarred from determining the lease or filing a suitfor ejectment merely because the lessee has made constructions to the knowledge of the lessor.
In view of the foregoing discussion, I find no substance in the various submissions made by the learned counsel for the appellant. In the result, the appeal fails and is dismissed with costs.