G.M. LODHA, J.—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, Ajmer 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:—

3. 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 sub-let, assigned or otherwise parted with the possession of the part of the premises. That rent from 12.8 72 is due.

4. 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/-.

5. 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 sub-let, assigned or otherwise parted with the possession of the suit premises?

4. What should the relief be?

6. 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.

7. I have heard the arguments and perused the record of the trial Court.

8. 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.

9. Mr. Maloo, 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.

10. In support of his contention Mr. Maloo relied upon the judgment of this Court in Raghunath Singh v. Balabux (1). Mr. Maloo 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.

11. I have carefully considered the submissions of Mr. Maloo and also gone through the record of the case as the case was heard exparte because no-one appeared to appose the appeal. Sub-clause (1) (c) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act reads as under:-

"Sec. 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 by construction of this wall the defendant converted it into two shops. If the defendant would have put o

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