N. N. Mithal, J.
This second appeal is by the plaintiffs in a suit filed by them for eviction of the respondent from the house in question.
The cause of the filing of the suit was that the defendant had unauthorisedly and without the consent of the plaintiffs constructed one pucca bathroom and one kitchen in the sahan of the house causing the sahan as unusable and that it has also affected the light and air in the residential portion of the house and the utility of the entire property has been thus damaged. By notice dated 19101967 the defendant was required to restore the property to its original condition within one month but the defendant did not comply and, therefore, the defendant''s tenancy stood terminated by the same notice.
The defendant contested the suit on the ground that the bath room and the kitchen had been constructed with the consent of the plaintiff''s guardian in January 1966 temporarily and in doing so the defendant had not made any change in the structure of the house. It was also alleged that the value of the property has not been diminished on account of the alleged constructions and that the offending constructions can be removed without causing any damage to the main property easily within one hour. On these grounds it was contended that the defendant was not liable for eviction as the constructions did not amount to "material alterations" within the meaning of Section 3 of U. P. Act III of 1947. The trial Court dismissed the suit and the lower appellate Court also maintained the same holding, on the basis of the decision in Dr. Jai Go pal Gupta v. Both Mai 1969 A.L.J. 477 that the constructions in question did not amount to material alterations and as such the defendant was not liable for the ejectments, which is still relied upon by the counsel for the respondent. Being aggrieved by the decisions of the Courts below, the plaintiffs have come up in second appeal before this Court.
In this second appeal, the only point which comes up for consideration is as to whether the constructions in question amounted to material alterations within the meaning of Section 3 of the U. P. Act III of 1947. It is admitted that these constructions had been made by the defendant. A commission was issued whose report is Ex. 60C on the record along with a site plan. The Commissioner has reported that the constructions of the kitchen as well as of the bath room has not been made by breaking any portion of the existing structure and the entire offending constructions are separate. The bath room is without roof while the kitchen is covered but the roof is quite separate from the Sahadari adjoining it. The floor of both the constructions are about 2" higher than the floor of the Saban. Bath room is 6'' in height and the kitchen is T6" in height. No objection appears to have been filed against this report and it was confirmed by an order dated 1731969. The only question that now remains for consideration is as to whether these admitted constructions amount to material alterations or not.
The learned counsel for the appellant has relied upon the case of Manmohan Das Shah v. Bishan Das A.I.R. 1967 S.C. 643 while the learned counsel for the defendant has relied on the case of Jai Gopal Gupta v. Both Mai (supra) decided by a Division Bench of this Court. It may be stated that on the facts, the case of Jai Gopal Das v. Both Mai is almost at par with the case in question. However, it was submitted by the learned counsel for the appellants that the principles laid down in this case are quite contrary to the later decisions of this Court and also to the case of Manmohan Dass Shah v. Bishan Das (supra). The main argument was that the six principles which have been carved out in the case of Sardar Bahadur Mathur v. Kali Prasad Gupta 1961 A.L.J. 137 are no longer valid except only grounds No. 1 and 6. Grounds No. 2 to 5 now stand overruled owing to the decision in Sf ta Ram Saran v Johari Mai 1972 A.L.J 301. This situation was considered in Ratan Singh v. Khudaband Hayyul Qayyum 1976 A.L.R. 766 and on a review of the case law on the point in the light of the case of Man Mohan Das Shah v. Bishan Das (supra) it was held that out of the following six conditions for holding a particular alteration to be a material alteration grounds No. 2 to 5 are no longer applicable. These grounds may be enumerated as under:
1. "Whether the constructions have in substantial manner changed the form or structure of the building.
2. Whether the constructions are consistent or inconsistent with the reasonable user of the premises for the purposes permissible under the lease.
3. Whether any harm has been done to the building if so, to what extent ? Is the injury irreparable ? At what cost can the premises be restored to its former constructions ?
4. Whether the premises have been rendered unfit in any way for being used for the purposes for which they were intended to be used.
5. Whether the constructions are separable and removable and if removed, can be removed without any way affecting the premises prejudicially.
6. Whether the landlord could prevent the building of the constructions by any injunction and claim damages if they were constructed."
In view of the above position of law the argument of the learned counsel for the appellants was that what had weighed with the Court was, firstly that the offending constructions were separate from the structure of the house, secondly, they covered only 1/3 portion of the Courtyard and, thirdly, that they have no foundation although they were built of pucca bricks and were plastered with cement and that without the kitchen and the bath room the accommodation could not be used conveniently, that the constructions are temporary in character and can be demolished at any time without causing any damage to the accommodation. In Man Mohan Das Shah v. Bishan Das (supra), however, the Supreme Court held that merely because a particular alteration (1) does not cause damage to the premises or affects its value or does not cause unreasonable user thereof or (3) does not result in change of purpose are not valid consideration for holding that the particular construction was material alteration or not.
In Sita Ram Saran v. Johari Mai (supra), these principles were further extended and it was held that in considering as to whether the constructions are material alterations or not the following consideration will not be material.
1. That the offending constructions are not confined to the constructions within the demised premises and they can be inside or outside or even over the demised premises, and they must have some sort of connection with the demised premises.
2. That the offending constructions can be removed without causing damage to the building because almost every construction either permanent or temporary can be removed so.
3. Whether the construction is permanent or temporary is merely a question of (sic) and does not affect the question whether the construction materially alters the accommodation or not.
Therefore, in view of the decision in Manmohan Das Shah v. Bishan Das (supra) and the Full Bench decision by this Court in Sita Ram Saran v. Johari Mai (supra) the decision in Dr. Jai Gopal Gupta v. Both Mai (supra) is no longer a good law.
In these circumstances, I find that the constructions made by the defendantrespondent in the premises in dispute amount to material alterations and as such the appeal has force and succeeds.
The appeal is accordingly allowed and the suit of ''the plaintiffs for eviction of the tenant, defendantrespondent is decreed with costs throughout. The defendant is, however, granted six months time for vacating the disputed premises failing which the plaintiffsappellants will be entitled to execute the decree.
