The landlord bears the burden of proving that the tenant has impaired the value and utility of the premises, and the High Court will not appoint a Local Commissioner to determine the condition of the premises subsequent to the filing of a revision petition if the landlord has not raised this issue before the Rent Controller or the Appellate Authority.

V.K.Jhanji, J.

1. This is tenants revision against the order of the Appellate Authority ordering his ejectment. Ejectment of the petitioner was sought by the respondent on the ground that tenant has removed wall A B C D and converted two rooms into one hall. Allegation was also made that he had constructed three Parchhatis and these alterations had impaired the value and utiliy of the premises. Petition was contested by the tenant who denied having impaired the value and utility of the premises. His case in the written statement was that the tenanted premises are in the same condition in which it were let out to him. With regard to Parcahatis, it was stated that the same were already in existence when he took the premises on rent. The Rent Controller, on appreciation of the evidence on record, returned a finding in favour of the tenant and in consequence thereof petition for ejectment was dismissed. On appeal by the landlord, the order of the Rent Controller was set aside. The Appellate Authority ordered ejectment of the tenant on the ground that he had removed the wall and also constructed Parchhatis thereby impairing the value of and utility of the premises. The order of the Appellate Authority is impugned here in this civil revision.

2. Counsel for the petitioner read in extenso the evidence on record and also made reference to plans, Exhibits A-5, A-6, A 9 and A-10 to contend that the landlord has miserably failed to prove on record the allegation with regard to impairing the value and utility of the premises by the tenant. The landlord in his statement has admitted that the tenant has constructed only one Parchhati whereas in his original petition, he never made any grievance with regard to construction of Parchhatis but it was only by way of amendment that existence of Parchhatis was brought in. According to him, it was an afterthought as it was to the knowledge of the landlord that the Parchhatis were already in existence and that too were temporary in nature.

3. On the other hand, learned counsel for the respondent has contended that the order of the Appellate Authority is not liable to be interfered with as the same is based on appreciation of evidence. He also contended that the building has become unfit and unsafe for human habitation and the revision be remanded or a report be called in order to determine as to whether the building has become unfit and unsafe for human habitation. His contention was that this ground was taken in the petition and the landlord failed to prove this before the Rent Controller but nevertheless because of the subsequent events, ejectment on this ground be considered

4. After hearing the learned counsel for the parties at length and perusal of the record, I am of the considered view that this civil revision deserves to succeed.

5. The Appellate Authority in order to arrive at a finding that the wall A B C D was removed and a big room was converted from two rooms, relied upon plans, Exhibits A-9, A-10, A-6 and A-5 prepared in this years 1958, 1962, 1965 and 1980 respectively. According to the Appellate Authority, wall was in existence in the years 1958, 1962 and 1965 but the same was not there at the time when plan. Exhibit A-5 was prepared by the draftsman at the time of filing of the petition. In my view, this approach of the Appellate Authority is clearly erroneous. Bare perusal of plans, Exhibit A-9, A-10, A-6 and A-5 shows that they are not according to the scales and thus it cannot be said with certainty that the wall A B C D was in existance. The landlord in his statement has admitted that at the time when he purchased these premises in auction, plan of the premises was prepared. This plan has been withheld by the landlord. No explanation whatsoever has been offered as to why this plan was not brought in evidence. In absence of the plan which was prepared at the time of auction, tenant cannot be ejected on the ground that the walls were in existence before the purchase of th