G.M. Lodha, J.
1. This is a civil second appeal against the judgment and decree of the Additional District Judge, Ajmer in civil appeal No. 187 of 1974 confirming the decree for ejectment of the Additional Munsiff, Aimer City (West) Jaipur in Civil Suit No. 400 of 1972.
2. The facts of the case as noticed by the first appellate Court are as under:--
That the defendant is his tenant rent being Rs. 100 per month. The tenancy commences on 12th day of every month. That a notice terminating the tenancy dated 16-10-72 has been served on the defendant by his refusal to accept it. Thereafter another notice was sent to him by ordinary post and it has been served on the defendant. That the defendant has raised constructions of permanent nature in the suit shop dividing the shop into two. He has, therefore, carried out the constructions without the permission of the plaintiff and has materially altered the premises, which is likely to diminish the value thereof. That the defendant is using the said premises in the manner which is inconsistent with the purpose for which he was admitted to the tenancy. The premises were let out to run a restaurant, but he is carrying on wine shop in a part of the building. That the defendant has sublet, assigned or otherwise parted with the possession of the part of the premises. That rent from 12-8-73 is due.
3. The defendant admitted the tenancy and receipt of notice by ordinary post. All other allegations are denied. It is alleged that he had put up a temporary brick wall between the two portions of the shop for convenience. It is denied that he is using the shop for any purpose other than for which it was let out. Subletting is also denied. It is alleged that the plaintiff wants to increase the rent from Rs. 100 to Rs. 200,
4. The following issues were framed:
1. Has the defendant materially altered the suit premises which is likely to diminish the value thereof?
2. Is the defendant using the premises in the manner inconsistent with the purpose for which suit premises were let?
3. Has the defendant sublet, assigned or otherwise parted with the possession of the suit premises?
4. What should the relief be?
5. After recording evidence and hearing the arguments, the learned Munsiff decreed the suit of the plaintiff. Aggrieved by this judgment, the defendant filed first appeal and that appeal was dismissed by the first appellate Court.
6. I have heard the argument and perused the record of the trial Court.
7. It is not in dispute that a pucca wall of bricks was constructed in the shop. The disputed premises is a shop. The shop was divided into two shops and the defendant wanted to use one as a Tea-stall and the other one for selling of liquor.
8. Mr. Mallo, learned counsel for the appellant, submitted that construction of a wall of this nature cannot be called material alteration within the meaning of Rajasthan Premises (Control of Rent and Eviction) Act.
9. In support of his contention Mr. Malloo relied upon the judgment of this Court in Raghunath Singh v. Balabux. 1975 WLN 427. Mr. Malloo also pointed out that the wall which was constructed was removed after a month and therefore, also the plaintiff was not entitled to a decree on this ground.
10. I have carefully considered the submissions of Mr, Malloo and also gone through the record of the case as the case was heard ex parte because no one appeared to oppose the appeal. Sub-clause (1) (c) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act reads as under:--
'Section 13 (1) (c) That the tenant has without the permission of the landlord made or permitted to be made any such construction as in the opinion of the Court has materially altered the premises or is likely to diminish the value thereof'.
Whether an alteration in premises is material or not is a mixed question of fact and law. In the instant case the premises is one shop and out of that one shop by construction of this wall the defendant converted it into two shops. If the defendant would have put only one wooden plank for such temporary division, probably there would have been some room for argument that there was no material alteration. Contrary to it a pucca wall of brick was constructed. There cannot be any doubt that construction of a brick wall in a shop for converting the shop into two shops instead of one shop is an alteration which materially alters the premises as contemplated by Sub-clause (c) of Sub-section (1) of Section 13 of the Act. Undoubtedly it was done without permission of the landlord.
11. Mr. Maloo's reliance on the decision of Raghunath Singh cannot be of any assistance or help to him. In Raehunath Singh's case there was a three-storey building. In this three-storey building in the third floor there was a tin-shed. It was held proved that a 'Pardi' which was 5' in length 4 in width and 3' in height was constructed to provide protection from rains and sun because the tin-shed was being used as a kitchen. It was also held that the 'Pardi' was not of permanent character.
12. In view of the above findings of fact in that case it was held that neither the 'Pardi' was of permanent character nor it materially altered the premises.
13. In view of the above it is clear that the construction of 'Pardi' did not, in any way, materially alter the tin-shed which was already being used as a kitchen and the only benefit which was obtained was to protect it from rains and sun.
14. There is no analogy between the facts of two cases because in the instant case as mentioned above a pucca brick wall was constructed and further due to this the shop was changed into two shops. There cannot be any doubt that when one shop is converted into two shons by defendant it would be an alteration which would materially affect the shop.
15. Mr. Maloo's contention that that wall was removed later on cannot be of any assistance because the cause of action arose on making of such constructions which materially alters the premises. By removal, the mischief done earlier cannot be set at naught, as the ground of ejectment under Section 18 nowhere contemplates that material alterations should subsist for all limes.
16. The result of the above discussion is that this appeal fails and is hereby dismissed.
17. Mr. Maloo prayed for time to vacate the shop. In case the defendant submits an undertaking that he would vacate the premises immediately on expiry of six months from today and give vacant possession to the landlord without any protest and without agitating it any further the decree of eviction would not be executed for six months from today. One month's time is given to submit the undertaking in this Court. There would be no order as to costs.