N.M. Kasliwal, J.
1. In the above appeal a caveat had been filed on behalf of the respondent under Rule 159 of the Rajasthan High Court Rules. The counsel for both the parties had agreed to argue the appeal itself. The record of the case was, therefore, called and both the learned Counsel for the parties were heard at length.
2. The plaintiff landlord filed a suit against the defendant-tenant for eviction of certain premises situate at Ladpura Kota The only ground on which the plaintiff landlord has sought eviction is of material alteration in the Premises as contained in Section 13(1)(c) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, (hereinafter called 'the Act'). It was alleged the plaint that in January, 1973, the defendant tenant made the following material alterations in the suit premises:
(i) the back wall and the two side walls of one Kelu Posh' room were raised;
(ii) the 'Kelu Posh' roof of the room was removed and it has been replaced with cement sheets;
(iii) Formerly the slope of the roof of the 'Kelu Posh' room was on both the sides i.e. on the northern and southern side but now it, has has been totally changed and the entire slope of the roof has been made on the northern side;
(iv) the door of the room in the southern wall has been raised after demolition.
It was alleged by the plaintiff that the above constructions were made by the defendant without obtaining any permission from the plaintiff and these constructions fall within the definition of material alternations. The defendant written statement took the plea that the 'Kelu Posh' room was being used as a kitchen. The roof and its support had become dilapidated and the defendant was experiencing greats difficulty on account of the sun shine and rains and when he made a request to the plaintiff to make necessary repairs, the plaintiff refused to make the necessary repairs at his expenses and there-after the plaintiff agreed in presance of Deshraj and Khyali Ram that the defendant may himself make the necessary repairs at his own expenses and such expenses will not be adjusted in the amount of rent. The defendant had thus made the necessary repairs with the consent of the plaintiff and in any case the above alterations do not come within the purview of material alterations but can only be called as improvements. The defendant admitted having made all the constructions as alleged by the plaintiff except the raising of the height of the door of the room. The learned trial Court held that the constructions were made by the defendants without the permission of the plaintiff and came within the purview up material alterations and as such decreed the suit of the plaintiff. The learned Civil Judge, Kota, who heard the first appeal also upheld the judgment and decree passed by the learned trial Court and hence this second appeal by the defendant-tenant.
3. Learned Counsel for the appellant first contended that the plaintiff has not been able to prove that the height of the door was raised by the defendant and an regards the other constructions his argument is that the constructions must be of permanent nature and the alterations in the present case, were not of material nature. It is also contended that the nature of the constructions are merely in the form of repairs and had been made merely to safeguard from rains and sun shine. According to the learned Counsel the earthen tiles (Keli Posh) on the roof of the kitchen were converted into cement sheets and the change of the slope from two sides to only one side does not amount to any material alteration. It is also submitted that there was no change in the frontage or in the main structure of the building and as such the constructions cannot fall within the purview of Section 13(1)(c) of the Act.
4. On the other band, Mr. Jain, learned Counsel for the respondent has argued that under Section 13(1)(c) the words used are any such construction as, in the opinion of the court has materially altered the premises, and all constructions whether of permanent or temporary nature fall within the purview of the above clause. It is further submitted that the plaintiff has proved that the defendant had also raised the height of the door which has not been rebutted by any evidence from the side of the defendant and the defendant has raised the height of the walls and has not only put the cement sheets in place of the earthen pots but has also made the slope of the IOOI on the northern side only when formerly the slope was on two sides and thus according to the learned Counsel these constructions clearly amount to material alterations in the premises and the court blow have not committed any error which may call for any interference by this Court in second appeal. It is contended that the question whether the alleged constructions amount to material alterations in the premises is purely a question of fact and cannot be interfered in second appeal.
5. Both the learned Counsel have placed reliance on a series of authorities which I shall discuss at the appropriate place. As regards the question whether the defendant raised the height of the door, the plaintiff has clearly stated that the defendant had raised the height of the door by 1' or 1 1/4'. In cross examination it was further stated that the door of the room was about 4 1/2' high and 1 1/4' in breadth, while at present the height of the door is about 5 1/4'. There is no change in the length and breadth of the room. From the side of the defendant there is no rebuttal of this evidence and even the defendant himself has not come in the witness box to deny the above statement In these circumstances I hold that apart from the other constructions, the the defendant has also raised the height of the door. The next question whether the finding regarding material alteration is purely a question effect or a mixed question of fact and law. Their lordships of the Supreme Court in Sri Meenakshi Mills Ltd. v. Commissioner of Income-tax 1956 SCR 69 observed, as under:
In between two domains occupied respectively by questions of fact & of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known a mixed question of law and fact. These questions involve first the ascertainment of facts on the evidence and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse procession. It is found on the facts that the land is a vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession, the Court has firstly to find on an appreciation of the evidence what the facts are. So far it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law. The ultimate finding on the issue must therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law, and it will be correct to say in such cases that an inference from facts is a question of law.
Thus in a suit based on material alterations the Court has first to record a finding about the actual construction made by the tenant and therefore has to form an opinion as to whether these constructions have materially altered the premises. The expression 'materially altered' finds place in Section 13(1)(c) of the Act. Its meaning has to be ascertained and then the Court has to see whether the constructions made amount to material alterations within the meaning of the Act, This will, in my opinion, be a finding of law.
6. The next point for consideration is whether the constructions of a permanent nature alone fall within the meaning of material alteration or constructions both of the permanent and temporary nature will fall within the purview of material alterations. Mr. Bhandari, learned Counsel for the appellant placed strong reliance on a decision of the Allahabad High Court in Dr. Jai Gopal Gupta and Ors. v. Bothmal 1969 RCJ 717, in which it was held:
In this case the tenant had made alterations in the building which was let to him. And they were to be material alterations. In the case before us the tenant has not touched the house which was not let to him. It remains as it was when it was let out to him. He has, however, added two rooms on a portion of the courtyard. These additions are kitchen and a bath-room. They appear, to be necessary for the proper and convenient use of the house let out to him. They have no foundations, although they are built of pucca bricks and have been plastered with cement. Essentially they are of a temporary character. They can be demolished at any time without causing any damage to the accommodation. Their temporary character is also evinced by the tenant's use of a side of a bed as a support for the roof of one of them. They also occupy only a small portion of the courtyard. It cannot be said that they have changed the front or the structure of the house let to the tenant. It is difficult to say on the facts of this case that the constructions made by the tenant have materially altered the accommodation.
It was also submitted that except in one of this Court Madhu Lal v. Smt. Govindi Bai 1971 RLW 64, decided by Hon'ble Lodha, J. (as he then was) in which his Lordship no doubt held that the words 'permanent structure' do not occur in the Rajasthan Act which only makes a mention of such construction as in the opinion of the Court has materially altered the premises There is no other case of this Court in which the above view has been upheld. I do not agree with the submission made by the learned Counsel for the appellant. Dr. Jai Copal's case (supra) relied upon by the learned Counsel for the appellant has been distinguished by a Full Bench decision of the Allahahad High Court in Sita Ram Sharma and Anr. v. Johri Mal and Anr. 1972 RCR 542. It has been observed in the above case:
Where the constructions made by a tenant were substantial in nature and they converted the single strayed shops into double storeyed structures and materially and substantially changed the front as well as the structure of the shops, the mere fact that the constructions could be removed did not alter the situation as almost any construction, permanent or temporary, could be removed. Whether a construction is permanent or temporary is only a question of the intention of the person making it. It does not affect the question whether the construction materially alters the accommodation or not.
I am further in agreement with the view taken by Hon'ble Lodha, J. in the case of Sitaram and Anr. v. Johri Mal and Anr. (supra). The words used in Section 13(1)(c) of the Act merely refer to any such construction as in the opinion of the court has materially altered the premises and do not make any distinction between the constructions of a permanent or temporary nature. In Sukhlal v. Bhopal Singh 1973 RCJ 323 Hon'ble Kan Singh, J. held that mere act of putting up fixtures in the opening or entrance will not be making of construction as may materially alter the premises. Also the making of a 'Kucha' floor 'Pucca' or that of pleasing a 'Kucha' wall will not be making of such a construction as would be materially altering the premises The earlier two cases of this Court reported in Khinaram v. Lakhi Prasad 1964 RLW 213 and Madhav Lal's case (supra) were distinguished The constructions made in the case before Hon'ble Kansingh J., were that of making a floor pucca, plastering Kucha wall of the shop and putting of a door in the verandah. For the above constructions his Lordship held that these constructions did not amount to materially altering the premises. Thus the above case is clearly distinguishable from the facts of the present case.
7. In Ved Prakash and Anr. v. Khushi Ram and Anr. 1973 RCJ 548, it was held that replacement of a kucha part of the roof of a room by a new kucha part amounts to necessary repairs within the meaning and scope of Section 12 of the East Punjab Urban Rent Restriction Act, and is not a structural alteration. Thus in the above case the shirt question for determination was whether replacement of the kucha part if the roof of the room by a new kucha part was structural alteration or not. The nature of the constructions before me are entirely different and the above case can be of no help to the appellant.
8. In Roghunath Singh v. Balabux 1976 RCJ 191 the defendant had constructed a wall in the tin-shed 5' in length, 4' in breadth and 3' in height and this was meant to protect the premises under the tin-shed firm rains and son His Lordship Jain, J. for the above constructions held that 'Pardi' wall in question cannot be said to be of a permanent character and it does not materially alter the suit premises. Thus in the above case only a 'Pardi' wall was constructed on one side in the tin-shed to the extent of 5' in length 4' in breadth and 3' in height. The constructions for consideration before me are of entirely different nature and the above case is clearly distinguishable.
9. The next case Sampat Raj v. Bhagwati Lal 1976 RCJ 259, has been decided by Hon'ble Modi, J. wherein it was held that the tenant closed the western window with bricks with-out the permission of the landlord. This was held to be a construction in the demised premises of material alteration in the structure of the shop Learned Counsel for the appellant has tried to distinguish the above case and I also agree that the above case is distinguishable from the facts of the case before me.
10. The case of alterations or constructions made by a tenant whether amounts to material alteration or not has to be decided in each case on its own facts. It has been observed by their Lordships of the Supreme Court in Manmohan Das Oboh v. Bishan Das AIR 1967 SG 643:
Without attempting to lay down any general definition as to what material alterations mean as such a question; would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations, to the constructions carried out by the respondent had the effect of altering the form and structure of the accommodation. The expression 'material alterations' in its ordinary meaning would mean important alterations, such as those which materially or substantially change the front or the structure of the premises.
In the case before me the tenant has not only raised the height of the said walls of the room but has also raised the height of the door. He has totally changed the slope of the; roof from two sides to one side only. The earthen pots on the roof have been changed by cement sheets. Thus the structure of the room has also been changed. These constructions cannot be said to be merely ordinary repairs or improvements but amount to material alterations in the suit premises. It has been observed in Sita Ram Sharma's case (supra) that the mere fact that the constructions can be removed does not alter the situation as almost any construction, permanent or temporary, can be removed. Whether a construction is permanent or temporary is only a question of the intention of the person making it. It does not affect the question whether the construction materially alters the accommodation or not. Both the lower Courts have held that these constructions were made by the defendant appellant without the permission of the plaintiff. Learned Counsel for the appellant has not been able to assail the above finding. Both the lower Courts have held that the above constructions fall within the meaning of material alterations as contemplated under Section 13(1)(c) of the Act. I see no error of law committed by the lower courts in the view taken by them.
11. In the result this appeals fails and is dismissed. However the parties are left to bear their own costs.