Judgment

OZA, J.:- This is an appeal filed by the tenant after obtaining leave from this Court against a decree for eviction granted by the trial Court and ultimately affirmed in second appeal by the High Court of Rajasthan by its judgment dated 26-8-83. It appears that the appellants became tenants in 1947 but in 1958 the predecessors-in-title of the respondents one Shri Bhonri Lal Surender Kumar and Rajinder Kumar purchased the property and thereafter in 1959 they became the tenants of Bhonri Lal and others. It is alleged that originally the rent was Rs. 135/- but later on was raised to Rs. 145/-. The premises in question is a showroom and apparently is a business premises.

2. In the year 1974, Bhonri Lai, Surendra Kumar and Rajinder Kumar filed a suit for eviction against the present appellant in respect of this showroom which is situated at M. I. Road, Jaipur, on the ground of bona fide need, material alterations in the premises and default in payment of rent. During the pendency of this suit the present respondent purchased the property from Bhonri Lal and others in 1979. In substance the present respondent Harsh Wardhan Himanshu and Smt.Ritu Kasliwal purchased this property during the pendency of the suit and continued with the suit but the only ground on which eviction was granted and which was pressed before us and also before the High Court was the ground that the tenant present appellant without the premission of the landlord had made material alterations in the premises. The learned Judge of the High Court has maintained the finding of the construction of a balcony (Dochatti) and maintained the order of eviction on the ground that it is material alterations in the premises. The decree has been passed under S. 13(l)(c), Rajasthan Premises (Control of Rent and Eviction) Act, 1950 which reads as under :

"13(l) (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."

It is only on this ground that the decree has been passed which has been challenged by the appellant before us.

3. It is contended by learned counsel for the appellant that in the plaint what was alleged by the plaintiff was as stated in Para 5:

"Para 5- That the defendants had constructed one Ducbatti as balcony which is covering good area and is utilising this Duchhati for his business. This work done by defendant is material alteration in the rented premises and this being without permission of plaintiffs is against the law and on this count the plaintiffs are entitled to get eviction decree for tenanted property.

In the written statement this Para 5 after amendment reads thus

"Firm Oriental Engineering Co. constructed a storey like balcony over the disputed showroom in 1958 with the permission of the plaintiff."

4. It was contended by learned counsel that what the Courts below have tried to infer on the basis of some inspection note and some affidavit filed at the back of the appellant and on the basis of no other evidence that it is a structure permanent in nature and that it has been affixed in the wall and that it has also been affixed on the floor, this according to learned counsel, is all based on no evidence at all. It was contended by the learned counsel that the only pleading was that this wooden balcony (Dochhatti) has been raised by the tenant. It is significant that even this is not alleged in the plaint when this was done whereas in the written statement it was clearly stated that this Dochhatti was made in 1958. It was further contended that in fact there is no material or evidence to come to the conclusion that this was constructed at what time. It is significant, according to the learned counsel for the appellant, that the two notices which were given before filing of the suit by the predecessors-in-title of the respondent this was not alleged as one of the grounds of eviction a