K.S. Lodha, J.
1. This is a defendant's second appeal in a suit for ejectment. The ejectment was sought on three grounds, namely, personal necessity, default and material alterations made by the defendant in the suit premises. The trial court found the grounds of personal necessity, as well as material alterations in favour of the plaintiff and decreed the plaintiff's suit. On the defendant's appeal, the learned District Judge, Pali, found against the plaintiff on the ground of personal necessity, but up held the finding of the trial court in respect of material alterations and confirmed the decree. The defendant has come up in second appeal.
2. The following substantial questions of law had been framed at the admission of this appeal:
(i) Whether, there was no specific pleadings about material alterations and, therefore, the findings of the courts below in this respect are vitiated?
(ii) Whether, the change in the situation of the door in the circumstances of the case, amount to material alterations?
3. I have heard the learned counsel for the parties and have gone through the record.
4. Looking to the aforesaid two questions, I may only mention the relevant averments in the pleadings of the parties relating to the question of material alterations. In para two of the plaint the plaintiff has stated that the defendant had changed the old door of the latrine and had thereby put an end to the plaintiff's rights (easementary rights) and this has also resulted into increasing insantitary condition. In reply to this, defendant has stated that he had not changed any door of the latrine, nor has he affected the plaintiff's right on the western side, nor has caused increase in the insanitary condition. Looking to these pleadings it is quite clear that the parties very well knew what the case was. The learned Counsel for the appellant has however, urged that there is no averment in the plaint that the so called alterations amounted to material alterations. I do not find force in this contention. In the first place when all the material facts have been stated, it is a matter of inference, whether those facts constitute material alterations or not and in the circumstances even if it is not specifically stated in the plaint that the alterations was material, it would not be a sufficient ground to non-suit the plaintiff. In the second place, the plaintiff has clearly stated in para two of the plaint that on account of the change of the place of the door, his rights towards the west have been jeopardized or put an end to and, therefore, this averment must mean that the alteration was deemed to be material by the plaintiff. Not only this, the defendant has also stated that the plaintiff's rights on the west have not been affected and, therefore, the defendant also was olive to the question that the plaintiff's rights towards the west were involved in the suit and, therefore, he also knew that according to the plaintiff the alleged alteration was material. In these circumstances, it cannot be said that the plaintiff hid failed to plead that the alteration was material.
5. It was then urged by the learned counsel for the appellant that what was pleaded in the plaint, was that the door of the latrine had been changed, whereas at the stage of evidence, the plaintiff has come out with a new case to the effect that it was not the door of the latrine, which had been changed, but it was only the sweeper's door and that also really speaking was not a door, but only an opening in the wall. It is urged that the plaintiff could not have, thus, led evidence against his pleadings and the courts below could not have taken note of such evidence against the pleadings. I do not find force in this contention either. It does not appear to me a case, where the plaintiff can be said to have put up a new case at the stage of evidence and that too against the pleadings in the plaint. The plaint stated, that the door of the latrine has been changed and the plaintiff's rights towards the west have on that account, been jeopardized. It is nobody's case that there was any other door towards the west, except the opening for the sweeper, as has been stated by the defendant, and these circumstances when the plaintiff had stated that the door on the west has been closed and shifted to the north, in his evidence, it cannot be said that he has put up a new case. It is not uncommon that even an opening in a wall meant for the ingress and egress of a sweeper, is called a door, which is commonly know as the sweeper's door. In these circumstances, the courts below could very well have taken note of this evidence. It would not be out of place here to mention that the defendant had totally denied having closed any door and he did not come forward with the plea that he had only opened an opening for the entry of the sweeper towards the north, as such, an opening towords the west had been closed by the neighbour Mohandass, as has now been shown by him in the evidence. Therefore, when the defendant admits the change of the place of the sweeper's door, he cannot be said to have been in any way misled by the averments in the plaint and, therefore, even if there was some defect in the pleadings, that could not be of such consequence. Reference in this connection may be made to Khinya Rom v. Lakhi Prashad ILR (1964) 14 Rajasthan 819.
6. For the reasots, stated above, the first question, therefore, must be decided against the defendant-appellant.
7. Now, I shall come to the second question.
8. It is contended by the learned counsel that mere change of passage of the sweeper, cannot be said to be a material alteration. In the first place it was contended that the original passage towards the west, had been closed by a construction, raised by the neighbour Mohandass and the defendant himself had not closed that passage. He had merely opened a new passage towards the north and, therefore, in these circumstances it cannot be said that the defendant had raised any construction. I cannot agree with this contention. Construction does not necessarily mean only raising of some structure. An opening of a door is also a part of the construction. Where a new passage is opened, it means a new door had been constructed. The only question, therefore, is whether this construction amounts to material alteration. Now in this connection it may at once be stated that admittedly the plaintiff had been using the western door or passage for the ingress and egress of the sweeper for cleaning the latrine and the defendant tenant was also doing the same, when he took the premises on rent from the plaintiff. If any neighbour encroached upon that right of the plaintiff, it was the duty of the tenant defendant to immediately give notice to the plaintiff-landlord, because it was the plaintiff-landlord, whose right was likely to be jeopardized. Section 108(n) of the Transfer of Property Act, clearly enjoins upon the tenant that if he becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor's rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor. The purpose behind such a provision is that on account of the laches or negligence of the lessee the lessor's rights are not jeopardized or affected. Now, when in this case the defendant admittedly did not give such a notice or approached the plaintiff, when the plaintiff's right to use the western door or passage was being encroached upon by the neighbour Mohandass and silently suffered the neighbour's closing that passage and he also himself opened a new passage towards the north, the alteration, thus, made, certainly amounts to material alteration. It not only changes the position of the premises, but also affects the rights of the landlord, and, therefore, it clearly amounts to material alteration. In these circumstances, the courts below were perfectly justified in holding that the defendant had made material alteration in the premises.
9. If may of course be added that the learned Counsel for the appellant, when faced with this position, contended that there was no pleading by the plaintiff that he had not been given a notice Under Section 108(n) of the Transfer of Property Act, and, therefore, such a new case cannot be made out at the stage of second appeal. The short answer to this contention is that as a matter of fact the defendant had totally denied in his written statement having made any alteration, but at the stage of evidence, he admitted that this alteration was made. A justification for this alteration was, of course, tried to be shown, namely, that the neighbour had obstaructed the original passage. In these circumstances, the defendant, who himself had not raised the plea of changing the place of the door on account of the closer of the original door by the neighbour, cannot now turn round and say that the plaintiff had not pleaded this fact. Further, the defendant has himself clearly admitted in his answer to the Court question, after his re-examination, that he had not approached the plaintiff when the original passage (Mokha) was being closed, nor did he approach the plaintiff after it had already been closed. It is not his case that the closer was already within the knowledge of the plaintiff. In these circumstances the inference, which already arises, has to be drawn under the law.
10. For the reasons, stated above, I do not find any force in this appeal and hereby dismiss the same with costs.
11. I allow three months' time from today to the defendant appellant to hand over vacant possession of the suit premises to the plaintiff-respondent.