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Allahbad High Court
N.D.OJHA
Ram Murty Gupta - Appellant
Versus
Suresh Chandra Agrawal - Respondent
Decided On : 05/21/1973
LANDLORD AND TENANT - EJECTMENT - MATERIAL ALTERATIONS - CONSTRUCTION OF WINDOW, WATER TANK, CONDENSER AND ENCLOSURES ON ROOF - FINDING OF MATERIAL ALTERATIONS - TIME OF CONSTRUCTION - CONFLICTING EVIDENCE - LOWER APPELLATE COURT FINDING CONSTRUCTION IN 1964 - HIGH COURT FINDING CONSTRUCTION IN 1967 - ADVERSE INFERENCE AGAINST APPELLANT FOR NON-PRODUCTION OF RECEIPTS FOR PURCHASE OF ICE CANDY AND ICE CREAM PLANTS - RIGHT OF TRANSFEREE TO AVAIL OF RIGHT TO SUE FOR EJECTMENT ON GROUND OF MATERIAL ALTERATIONS - SECTION 109 OF THE TRANSFER OF PROPERTY ACT, 1882.
Fact of the Case:
Plaintiff-respondent purchased an accommodation in 1966. The appellant, a tenant, made certain constructions on the roof of the accommodation, including a window, water tank, condenser, and enclosures. The plaintiff-respondent filed a suit for ejectment on the ground that the constructions amounted to material alterations made without the landlord's permission, in violation of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. The trial court found in favor of the plaintiff-respondent and decreed the suit for ejectment. The lower appellate court agreed with the finding of the trial court and dismissed the appellant's appeal.
Finding of the Court:
The High Court found that the constructions made by the appellant amounted to material alterations in the accommodation, as they altered the form and structure of the accommodation. The High Court also found that the appellant had not obtained permission in writing from the landlord for making the constructions, as required by Section 3(c) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947.
Issues: 1. Whether the constructions made by the appellant amounted to material alterations in the accommodation? 2. Whether the appellant had obtained permission in writing from the landlord for making the constructions? 3. Whether the plaintiff-respondent, as the transferee of the accommodation, could avail of the right to sue for ejectment on the ground of material alterations made by the appellant?
Ratio Decidendi: 1. The High Court held that the constructions made by the appellant, including the window, water tank, condenser, and enclosures on the roof, amounted to material alterations in the accommodation, as they altered the form and structure of the accommodation. The High Court relied on the criteria laid down in M. D. Shah v. Bishun Das, AIR 1967 SC 643 and Sita Ram Saran v. John Mal, 1972 All LJ 301 : (AIR 1972 All 317) (FB) to determine whether the constructions amounted to material alterations. 2. The High Court found that the appellant had not obtained permission in writing from the landlord for making the constructions, as required by Section 3(c) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. The High Court relied on the appellant's own admission in cross-examination that he had not taken any permission in writing from the then owner. 3. The High Court held that the plaintiff-respondent, as the transferee of the accommodation, could avail of the right to sue for ejectment on the ground of material alterations made by the appellant. The High Court relied on Section 109 of the Transfer of Property Act, 1882, which provides that the transferee of a leased property, in the absence of a contract to the contrary, shall possess all the rights of the lessor as to the property. The High Court found that there was no contract to the contrary in the sale deed between the previous owner and the plaintiff-respondent.
Final Decision: The High Court dismissed the appellant's appeal and upheld the decree of the lower appellate court for ejectment of the appellant from the accommodation.
2. The defence on this point set up by the appellant in brief was that these constructions had been made by him not in 1967, but in 1964 with the full knowledge and consent of the then owner of the accommodation. It was also pleaded that the constructions did not amount to making any material alterations in the accommodation. The Trial Court accepted the version of the plaintiff and held that these constructions had been made in 1967. The Lower Appellate Court, however, agreed with the defence version that the constructions had been made in 1964. It, however, still maintained the decree for ejectment passed by the Trial Court on the view that the bar created by Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, having been lifted in 1964, as a result of the defendant's making the constructions in question, which amounted to making material alterations in the accommodation, the right which accrued in favour of the then landlord to sue the appellant for his ejectment could be availed of even by the plaintiff, even though he was not the owner of the accommodation in 1964.
3. Counsel for the appellant in support of the appeal has made the following submissions : (1) that the constructions complained of do not amount to material alterations; (2) even if they amounted to material alterations, on the finding recorded by the Lower Appellate Court that they were made in 1964, the suit should have been dismissed inasmuch as the ground on which it was filed, namely, that the constructions were made in 1967 had not been substantiated; and (3) that in any view of the matter, the right which may have accrued in favour of the erstwhile owner of the accommodation as a result of the appellant's making the constructions in question, could not be availed of by the plaintiff, who purchased the accommodation after the said constructions had been made.
4. Counsel for the respondent, on the other hand, not only supported the findings recorded by the Lower Appellate Court on the question that the constructions made by the appellant amounted to material alterations and that the respondent was entitled to institute the suit even though he purchased the accommodation in May, 1966, he also urged that the finding recorded by the Lower Appellate Court that the constructions were made in 1964 was erroneous in law.
5. The constructions in question were, on the case of the parties, made by the appellant in order to install an ice candy plant, and such of these constructions which have been found to have made material alterations in the accommodation are : (1) breaking open the roof and fixing a 3 ft. x 3 ft. window in it to enable the appellant to reach the said roof; and (2) constructing a water tank, fixing a condenser and making of enclosures on the roof of the accommodation.
6. It may also be pointed out that in order to connect t
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