C.M. Lodha, J.
1. This is a defendant-tenant's second appeal arising out of a suit for ejectment from a shop situated to Nala Bazar, Ajmer.
2. The plaintiff claimed ejectment on three grounds, namely:--
(i) That the defendant has erected a wooden cabin on the 'chabutra' adjacent to the shop leased out to the defendant without the permission of the landlord:
(ii) That the shop is required reasonably and bona fide for the personal necessity of the plaintiff for opening a passage to her residence up-stairs and
(iii) That the defendant has sublet the shop.
The defendant denied all the above mentioned three allegations.
3. After recording the evidence produced by the parties the learned Munsiff, Ajmer dismissed the plaintiff's suit. On appeal by the plaintiff's learned Additional Civil Judge, Ajmer held that the plaintiff had failed to prove bona fide and reasonable necessity for the shop in question. He also held that the cabin constructed by the defendant did not materially alter the premises. But on the question of subletting he found that the defendant had parted with possession of a part of the leased shop and was consequently liable to be elected. In this view of the matter the learned Additional Civil Judge set aside the judgment and decree by the trial court and decreed the plaintiff's suit for ejectment. Consequently, the defendant has come in second appeal.
4. Learned counsel for the appellant has urged that the finding of the lower court that the defendant parted with possesssion of the leased premises without the permission of the landlord is erroneous. It is submitted that Mohan to whom possession of a part of the leased premises is alleged to have been given is defendant's nephew and has been living in commensality with the defendant. The learned counsel for the respondent, however, tried to justify the decree of the lower appellate court not only on the ground decided in his favour by it, but also on the other two grounds decided against him. It has, therefore, become necessary to deal with all the three grounds relied upon by the plaintiff in the plaint.
5. I would first take up the question whether the plaintiff has succeeded in proving that the defendant has sublet or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord as contemplated by Section 13 (1) (e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. In this connection it may be stated at the very outset that the name of the person to whom the shop is said to have been sublet was not mentioned in the plaint, and the defendant too simply denied the allegation of subletting in his written statement. However, in the better particulars suppliedby the plaintiff the name of the alleged tenant was disclosed as Mohan. In her statement as P. W. 1 Smt. Govindi Bai has expressed complete ignorance as to the relationship of Mohan with the defendant. She is also not in a position to state whether Mohan lives in commensality with the defendant. On the other hand, the defendant Madhav Lal in his statement as D. W. 1 has deposed that Mohan is his nephew and is joint in food and business with him, and that he had put up a betel shop for Mohan in a cabin which he had constructed on the 'Thala', that is, a raised platform adiacent to the shop which had been leased out to the defendant along with the main shop. This statement of the defendant has been corroborated by his witness D. W. 4, Asandas, who has also a shop in front of the suit shop. In face of this uncontro-verted evidence led by the defendant, it must be accepted that Mohan was not a sub-tenant of the defendant and that he had not parted with the possession of the whole or any part of the shop in question. The learned Additional Civil Judge has recorded a finding against the defendant on the ground that the defendant had not produced his account books to show that the investment for the betel shop was made by him or the Joint Hindu Family Funds were utilised for the purpose of starting a betel shop by Mohan It may be pertinent to point out that it has nowhere been brought out in the cross-examination of the defendant that he maintains account-books. Therefore no adverse inference can be drawn against him for non-production of the account books to show that the investment for the betel shop was made out of the joint family funds. The observation of the lower appellate court that even if Mohan was a member of the family of the defendant, he could not be permitted to occupy a portion of the shop does not appear to be correct. Consequently, I reverse the finding of the first appellate court on this point, and hold that the plaintiff has not succeeded in establishing that the defendant has parted with the possession of the whole or any part of the premises in question.
6. As regards the alleged personal necessity of the landlord there is undoubtedly a clause in the rent note (Ex. 4) that in case the landlord desires to open a door in the shop in dispute for building a staircase to go up-stairs she would be entitled to ask the defendant to vacate the shop for that purpose. It is conceded before me by the learned counsel for the respondent that there is an alternative way for going to the residential portion of the plaintiff's house situated on the back of the shop in question. It further appears that the plaintiff gave a notice Ex. A. 1 as far back as on 27-3-1963 calling upon the defendant to vacate the shop as the same was required for purposes of building a staircase for going to the upper storey of the house, but no suit was filed in pursuance of that notice and the present suit has been instituted on 19-12-1966, that is after about three years of the notice Ex. A. 1. Besides that in the facts and circumstances of the present case I am inclined to hold in agreement with the court below that the plaintiff has failed to prove her reasonable and bona fide personal necessity for the shop in question.
7. Now it remains to deal with the last contention raised on behalf of the plaintiff-respondent that the tenant has without the permission of the landlord made or permitted to be made such construction as has materially altered the premises and is therefore liable to be ejected. It is not disputed on behalf of the appellant that a cabin was constructed on the raised platform adjacent to the shop. The finding of the lower court that this was done without the permission of the landlord has not been challenged before me, and in my opinion rightly so.
8. The only question, therefore, is whether the construction of the cabin amounts to a material alteration of the leased premises? Learned counsel for the appellant has urged that all that has been stated by the plaintiff in this connection in the plaint is that the defendant has erected a wooden cabin on the 'Thala' and that there is no allegation that the construction of the said cabin has materially altered the premises, and, therefore, the respondent should not be allowed to argue the question of material alteration by construction of this cabin. It may be observed that the point whether the impugned construction of the cabin has materially altered the premises was argued before the trial court as well as before the first appellate court and the parties went to trial with full knowledge of the implications of law in connection with the construction of a cabin by the defendant. It may be technically true that in the plaint it was not stated precisely that the alleged construction had materially altered the premises yet the nature of the construction has been described in the plaint, and it was further alleged that the same was done without the permission of the plaintiff. The nature of the construction is not in dispute, and the question whether it is a material alteration of the premises or not, to only a matter of inference. Consequently, I am unable to accede to the contention raised by the learned counsel for the appellant to the effect that the plaintiff is not entitled to rely on this ground.
9. Learned counsel for the respondent placed strong reliance on a decision of this Court: Khinvaram v. Lakhi Prasad, 1964 Raj LW 213 in support of his contention that the impugned construction has materially altered the premises. In that case the height of the tin shed was raised and the 'chabutra' was closed by fixing doors fitted in a wooden frame. It was observed that by the impugned construction the tenant had divided the betel shop at the 'chabutra' into two portions and the alteration thus made in the leased out premises by the tenant was not merely of decorative nature but of structural nature. It was consequently held that by raising the impugned construction the tenant had materially altered the premises. On the other hand, learned counsel for the appellant placed reliance on Ibrahim v. Khanmahomed, AIR 1965 Guj 152 wherein it was held that the structures made of bamboos and iron sheets described as 'chhapras' did not fall within the ambit of the expression 'permanent structure' used in Section 13 (1) (b) of the Saurashtra Rent Control Act of 1951. This authority in my opinion is not of much assistance to decide the point canvassed before me inasmuch as the language used in Section 13 (1) (b) in the Saurashtra Rent Control Act of 1951 is materially different from Section 13 (1) (c) of the Rajasthan Act of 1950 which I am being called upon to interpret. Section 13 (1) (b) of the Saurashtra Act reads as follows:
'13 (1) (b) that the tenant has, without the landlord's consent given in writing erected on the premises any permanent structure;'
The words 'permanent structure' do not occur in the Rajasthan Act which makes mention of 'such construction as in the opinion of the Court, has materially altered the premises'. The defendant in his written statement has admitted that he has raised 'kacha' construction on the 'chabutra' leased out to him along with the shop. The alteration is therefore of structural nature and has been made for the purpose of increasing the accommodation in the leased out premises. It may be relevant here to point out that the defendant Madhav Lal has admitted in his cross-examination that at the time when he executed the rent note Ex. 4 in favour of the plaintiff, no construction existed on the 'chabutra' and it was agreed that he would use the 'chabutra' in the same condition as it was. It is, however, clear that in contravention of this condition the defendant has constructed a cabin on the 'chabutra' wherein a betel shop was opened. Learned counsel for the appellant is no doubt right in his contention that construction of the cabin is not a permanent structure, and the same has been put up merely for the purpose of better enjoyment of the 'chabutra' by the tenant. Unfortunately for the tenant, however, in the Rajasthan Act the words 'permanent structure' have not been used, with the result that any type of construction whether it be permanent or temporary, if it has materially altered the premises, can be availed of as a ground for ejectment, by the landlord if the same has been made without his permission. In my view the construction of a cabin on the leased out 'chabutra' in the facts and circumstances of the present case has materially altered the leased out premises. In this connection it may be useful to point out that the impugned construction in the present case appears to be of some lasting duration as the defendant has also stated that the cabin has been constructed on the 'chabutra' and the allegation by the plaintiff in the plaint that a cabin has been erected on the 'chabutra' has not been denied. It is not the defendant's case that the cabin is of a mobile nature, and is not attached to the 'chabutra'. On the other hand, from the words used by the defendant in the written statement as well as in his deposition there is reason to believe that it has been fixed up and attached to the 'chabutra' so as to form a part of the leased out premises. In this view of the matter. I have come to the conclusion that the plaintiff has succeeded in establishing that the defendant has made such construction as has materially altered the leased out premises and has thereby incurred the liability of being ejected.
10. The result is that I maintain the decree for ejectment granted by the court below though on different grounds, and dismiss this appeal. But in the circumstances of the case the parties are left to bear their own costs.
11. Learned counsel for the appellant prays for grant of reasonable time to the appellant to vacate the premises. In view of the facts and circumstances of the case, I grant six months' time to the appellant to vacate the premises in dispute provided the appellant pays arrears of rent, if any upto the end of September 1970 within one month from today and goes on paying month by month rent thereafter within 15 days of its falling due.