M.S. Liberahan, J.@mdashThe tenant has impugned the order dated September 7, 1988, for ejectment by the Appellate Authority.
2. The factual matrix relevant for the decision of this revision petition is:
3. The ejectment of the Petitioners was sought by the Respondent, inter alia, on the grounds of subletting by Kewal Chand to Nasib, structually changing the demised premises resulting in material impairment of its value and utility and the premises becoming unfit for human habitation.
4. The Petitioners refuted the grounds of ejectment. The premises tenanted were known as Tabela, taken for tethering cattle by Kewal Chand. Nasib was an employee of Kewal Chand who had been employed for the last 30 years to look after the cattle as well as other work of Kewal Chand and his family. The occupation of Nasib was admitted but his possession as sub-tenant was denied. Alteration, impairment in value and utility and damage to the building were refuted. The building was stated to be fit for human habitation.
5. The Rent Controller, on appreciation of oral as well as documentary evidence, came to the conclusion that there was no subletting as there was no transfer of exclusive possession nor creation of interest of Nasib in the premises was proved; the building was fit for human habitation; no changes had teen made nor any impairment in its value and utility had taken place. Nasib was found to be the servant of Kewal Chand. Resultantly, ejectment was declined.
6. On appeal, the appellate Court reversed the findings of the Rent Controller and held, that the landlord was able to prove transfer of exclusive possession by Kewal Chand to Nasib if not the subletting; and since the tenant failed to prove the nature of possession of Nasib as servant, it was inferred that the demised premises were sublet to Nisib. It was held that the southern wall was reconstructed by the tenant at the cost of one Des Raj neighbourer and therefore, it was presumed that some area must have been included towards the premises of Des Raj and since the impairment in value and utility on account of the change was to be seen from the view point of the landlord; hence the value and utility of the demised premises was impaired. Further relying on the report of the Expert produced by the landlord and the reasons recorded therein. the building was held to be unfit for human habitation. In view of the findings recorded by the lower appellate Court, an order of ejectment was passed.
7. The counsel for the Petitioners challenged the findings arrived at by the Appellate Authority inter alia contending, these were neither legal nor based on the pleadings and the evidence on the record. The propriety of the inferences drawn by the Appellate Court was challenged. It was urged that the lower Appellate Court lost sight of the peculiarity of the facts in this case and while appreciating the oral as well as documentary evidence failed to give due weightage to the findings of fact arrived at by the trial Court after appreciation of evidence. in particular when the trial Court had an opportunity of observing the demeanour of the witnesses. The reasoning and inference drawn by the trial Court were ignored. The nature of evidence the conduct of witnesses and the essence of their statements in the background of pleadings was not taken note of in its true prospective. The findings were in no way congruent either with the requirement of law rules or the principles established by various pronouncements of the Supreme Court and this Court. The ingredients envisaged by the statute for the grounds for ejectment were not taken note of The trial Court''s reasoning had not been specifically dealt with before reversing its findings. The object of the Rent Act being a social enactment to protect the interest of the tenants was lost sight of while appreciating the evidence.
8. In the course of arguments, the counsel for the Petitioners contended that in order to prove the subletting as the ground for ejectment, it was for the landlord to establish the subletting, i.e. that the tenant has either in part or in whole parted with the interest to a third person without the consent of the landlord. It is the creation of an interest of a third person in the demised premises for a consideration which was envisaged as a default on the part of tenant rendering him liable for ejectment It has been observed by various judgments that in order to establish the subletting, the landlord has to prove that the exclusive possession of the premises was delivered to the sub-tenant for a consideration. The sub-tenant acquired a legal right to be in possession of the demised premises in his own right. It has to be established that the sub-tenant has been virtually substituted in part or in whole for the tenant. It was further observed that since creation of subtenancy is a secret contract between the tenant and the sub-tenant to which the landlord is not a party, the same can be proved by leading circumstantial evidence which leads to an inference that the interest of the sub-tenant has been created in the demised premises. The inference is to be drawn in the peculiar facts and circumstances of each case.
9. The counsel for the Petitioners relied on the following decisions:
(i)
(ii)
(iii)
(iv)
(v)
10. In Dipak Banerjee''s case (supra) it has been observed:
But in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent.
It was further observed:
There is another aspect of the matter, i.e., the payment of rent for sub-tenancy or consideration for sub-tenancy. Undoubtedly the alleged sub tenant rendered certain services to the landlord but can the same be considered as rent under the Rent Act? Section 14(1) of the said Act prohibits sub-tenancy and it was pointed out before us the receipt of service in lieu of the occupation of a part of the premises as a licensee did not amount to the payment or receipt of rent. Sub-tenancy as such is not defined in the Act. The sub-tenancy under the Transfer of Property Act, 1882, is governed by Section 105 of the said Act and it defines sub-lease as a lease of immovable property as a transfer of right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Keeping the facts and circumstances of the case in view, it was further observed:
The question is whether in the context of the provisions of Rent Act, services can be consideration for sub-tenancy? In other words, whether in view of the provisions of the Rent Act, services can be a good or any consideration for sub-lease is the question while returning a finding.
After noticing the various provisions of the Act, the Hon''ble Supreme Court observed:
It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent under the Rent Act to create sub-tenancy. This frustrates and defeats the purpose of the Rent Act. Take for instance a case where a person renders services to the landlord in lieu of rent but this will completely erode the provisions of Rent Act and defeat the claims for services. Work performed by sub-tenants and the wages paid by doing certain kind of services may be in lieu of rent as in the case of agricultural tenancies. But in urban area in civilized time that cannot be so.
It is obvious that by reading the provisions of the East Punjab Urban Rent Restriction Act, 1949, which are also almost parallel and in pari materia with the provisions of West Bengal Premises Tenancy Act, 1955, it cannot be disputed that under the Rent Act it is the monetary quantification of the rent or any agreed method of quantification which can create lease/tenancy/sub-tenancy. Rendering services in lieu of occupation cannot be quantified in terms of money. Consequently, the occupation cannot be raised to the status or a position as of a right or creating any interest in the premises.
In Associates Hotels'' case (supra) it was observed:
Where the question is whether the document is a lease or a license it is the substance of the agreement that matters and not the form, for otherwise clever drafting can camouflage the real intention of the parties.
Further, in order to make the distinction between the lease and the license, the following propositions were pointed out to be well established:
(1) To ascertain whether a document creates a license or lease the substance of the document must be preferred to the form;
(2) the real rest is the intention of the parties whether they intended to create a lease of a license;
(3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property of which the legal possession continues with the owner, it is a license: and
(4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease.
In Khalil Ahmed''s case (supra) it was observed:
If an interest in immovable property entitling the transferee to enjoyment was created, it was a lease; if permission to use land without exclusive possession was alone granted, a licence was the legal result.
In Narinder Nath Saini''s case (supra) the basic ingredients for license and lease as laid down in Associated Hotel''s case (supra) have been reiterated.
In Smt. Rajbir Kaur''s case (supra) it was observed:
Execlusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of a parties" and that there is no single, simple litmus test to distinguish one from the other.
It was further observed that in the circumstances when parties had gone to trial with full knowledge of the ambit of the case of each other, strict construction of the pleadings is not called.
It was further observed by relying on Marchant v. Charters (1977) 3 All E.R. 918, that:
Gathering the cases together, what does it come to? What is the test to see whether the occupier of one room in a house is a tenant or a licences? It does not depend on whether he or she has exclusive possession or not. It does not depend on whether the room is furnished or not ft does not depend on whether the occupation is permanent or temporary. It does not depend on the label which the parties put on it. All these are factors which may influence the decision but none of them as conclusive. All the circumstances have to be worked out. Eventually the answer depends on the nature and quality of the occupancy. Was it intended that the occupier should have a stake in the room or did he have only permission for himself personally to occupy the room whether under a contract or not, in which case he is a licensee.
Finally, in the said judgment it was observed:
It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent Act to create subtenancy. This frustrates and defeats the purpose of the Rent Act.
11. The learned Counsel for the Petitioners contended that herein the landlord has not stepped into witness box. Though he is a practising lawyer and was present in Court when the proceedings were taking place, bat for the reasons best known to him he produced his Clerk as his attorney in the witness box. It was vehemently contended that adverse inference should be raised to the effect that the landlord was unable to support his case. In order to support the said contention, the counsel for the Petitioners relied on Nanak Chand v. Sansar Chard and Anr. (1982) P.L.R. 515, wherein it has been observed as under:
It is also relevant to point out that the landlord himself did not appear in the witness box and produced bis attorney Bal Raj Krishan, aged only 20 years. That shows that he was unable to support his case.
12. Construing the petition for ejectment most liberally, the only allegation made by the landlord is "that the Respondent No. 1 has sublet the property in dispute to the Respondent No 2 without the permission of the applicant and has transferred the possession of the property in dispute to the Respondent No. 2." There is no averment in the petition that Nasib Chand is either in exclusive possession of the property in dispute or there is any consideration for the possession nor there is any allegation that any interest of Nasib Chand was created in the premises ia dispute It was not averred that Nasib Chand was in exclusive possession of the premises in his own right for a consideration. The best evidence produced by the landlord is of Bal Kishan A. W. 4 who is none else but the clerk of the Respondent, and has been examined as the attorney of the Respondent. I have been taken through the entire statemeit of A. W. 4. He does not state that Nasib is in exclusive possession of the property in dispute. He says "no Respondent No. 2 is in possession of this house. I cannot state his name. He is Nasib Chind''. He has not stated even a word with respect to the creation of any interest of Nasib in the premises in dispute. Rather he showed his ignorance with respest to Nasib Chand being the servant of Kewa! Chand and said. "I do not know that Nasib Chand is a servant of Kewal Chand. I do not know if he looks after the do Tiestic affairs, cleansing of utensils, sweeping etc. I do not know for how long Nasib Chand is with Kewal Chand as his domestic servant".
13. In whole of the evidence of all the witnesses of the landlord not even a suggestion has been put that the cattle belonged to any other person other than Kewal Chand. The trial Court, after appraising the oral evidence, taking into consideration the report of the Local Commissioner, the nature of business the Respondent is carrying on non-denial of ownership of the cattle, evidence of the persons from whom the petitioner used to purchase cattle feed i.e. Khal Chokar, etc., non-appreance of the landlord and reading Exhibit R-3 the rent note from where it was extracted that the premises in dispute were taken on lease for tethering cattle an i reproducing exact words in the judgment:
Chunancheh Ab Barazamandi Khud Bagarz Rihaish Dangar Waghiaira Rakhne Ke Liye Manzil Makan Pukhta Meh S. ehan Teh Zimin Mazkur Bala...
and further no complaint being made by the predecessor-in-icterest of the Respondent landlord, from whom he purchased the property in 1985 and further finding that Nasib Chacd Defendant No. 2 is an employee of Kewal Chand-Defendant No. 1, came to the conclusion that there is no sub-tenancy.
14. The lower appellate Court after noticing the judgment in Pal Bhusar v. Dawa AIR 1986 Sik 18, and the judgment of this Court reported as Pushpa Devi v. Jiwan Dass 1988 R.L.R. 249, held that no adverse inference can be raised against the landlord on account of his non appearance in the witness box. The lower appellate Court observed that "landlord was able to prove the transfer of possession if not subletting." After making these observations, the lower appellate Court assumed that tie burden of proof is on the tenant to prove the nature of possession of Defendant No. 2 and explain the circumstances under which he was in possession of the property. Another reason adopted for reversing the finding of the trial Court is that the witnesses had stated that Defendant No. 2, Nasib Chand, was living in the premises in order to guard the same, but this was not the plea taken in the written statement. Noticing the fact that other family members of Defendant No. 2 resided in the premises the lower Appellate Court inferred that Defendant No. 2 is in exclusive possession of it in his own right and the possession having not been explained inferred that Defendant No. 2 was a sub tenant. The lower appellate Court further corroborated the observations made above by observing that since the R. Ws. deposing with respect to the purchase of the cattle feed had not produced account books, therefore, their evidence cannot be relied upon. In my considered view, the reasoning adopted by the lower appellate Court cannot be sustained. It has been specifically averred in the written-statement that Defendant No. 2 was the servant of the tenant. The object for which servant was employed is not a fact required to be pleaded. It is in evidence which by no standard can form a part of the pleadings. Since the burden of proof never shifts though the onus may shift in peculiar circumstances, it was for the landlord to prove that possession had been transferred to Defendant No. 2 for a consideration. The counsel for the Respondent has failed to point out any circumstance by which the burden of proof stood discharged and the onus shifted. No reasons have been given by the lower appellate Court in coming to a different conclusion than that arrived at by the Rent Controller, who had the opportunity to see the demeanour of the witnesses. There can be no gainsaying that the landlord though present in Court chose not to appear in the witness box and affirm his allegations on oath in order to avoid the cross-examination or may be having some love for truth. The statement of the attorney cannot be relied upon because he is an employee of the landlord and appears to be his decoy witness. Apart from the fact that he has not stated either with respect to the exclusive possession or creation of any interest or the relation of Defendant No. 2 with Defendant No. 1 i.e. of a servant and employer, the finding returned by the lower appellate Court cannot be sustained because the petition as well as the evidence suffers from lack of basic material which can form ingredients of transfer of exclusive possession or creation of interest of Defendant No. 2.
15. The learned Counsel for the Petitioners urged that the position which emerged from the evidence of A. W. 1 to A W. 4 and R. W. 1 to R. W. 7 read with the report of the Local Commissioner is that the premises in dispute are constituted of three big rooms and ore small room with open courtyard and verandah as is obvious from Exhibit A-1 which was not disputed. A few utensils and one or two cots belonging to Defendant No. 2 were in the premises. The cattle which were tethered in the premises were the ownership of Defendant No. 1 No evidence has been led that Defendant No. 2 was running any business of a dairy farm. Rather sufficient evidence has been put on the record to prove that Defendant No. 1 is a Municipal Commissioner and has large family constituted of sons and grand sons and hence needs sufficient quantity of milk. So keeping of five or six milch cattle cannot be considered to be running a dairy farm. There is no evidence on the record either of the neighbourers or any other person who has ever purchased milk from either of the Defendants. The tenant has come forward truthfully with respect to the residing of Nasib Chand, bis servant in the premises in dispute. There are no reasons to disbelieve that Nasib Caand was not the employee of the tenant Kewal Chand. Even assuming that the onus of proving and explaining the nature of possession shifted to the tenant, in my considered opinion he has fully discharged the same. There is a ring of truth in the version set up by the tenant. The landlord though an Advocate himself did not have the audacity of appearing in the witness box from which a reasonable adverse inference can be raised that the version set up by him is not truthful. In the ordinary course of human conduct, it is not expected that a person shall maintain accounts with respect to small purchases of feed for two/three/four cattle and keep the receipts for long period in particular when the tethering of cattle of the tenant Kewal Chand in the premises in dispute was never challenged. Their presence itself shows that the tenant has never parted with the exclusive possession of the premises in dispute. Living of a servant to look after the catlle of the tenant cannot lead to an inference of subtenancy. The Voters'' List and the ration card do not prove anything beyond the occupation of Defendant No. 2 and certainly not his possession. In my considered view subletting has not been proved on the record and the version of subletting trumped by the landlord I fails.
16. To be fair to the counsel for the Respondent, the following judgments have been noted as there have been cited at the bar.
(1) R. Santhan Kumar Nadar v. The Indian Bank Ltd. Madras (1967) P.L.R.S.N. 60.
(2) Naresh Chand v. Kishan Lal 1984 (1) R.C.R. 443.
17. There is no dispute with the proposition of law laid down in the said judgments. The learned Counsel further relied upon Rampsh Chond v. Om Parkash and Ors. 1987 (2) R.L.R. 541, wherein it has been observed that Local
Commissioner''s report can be considered in the evidence. Again, there is no dispute with respect to that.
18. The learned Counsel for the Petitioners challenged the findings of the lower appellate Court with respect to the changes brought about in the premises by the tenant, which resulted in impairment in value and utility. In short, the fact pleaded by the landlord was that the tenant has broken various portions of the four walls and reduced the size of the rooms by making alterations in the basic structure of the rooms and further he constructed a new wall without the permission and shortened the length and breadth from their original size. The changes, it was pleaded, materially impaired the value and utility of the property in dispute.
19. The allegation is vague. No judicial notice of such a vague plea should have been taken. However, the parties are aware of the facts and the case they had to meet. The parties led their evidence to prove the alleged changes, though no evidence was led how the alleged assumed changes impaired the value and utility of the building in dispute. In view of this, the plea taken in the petition loses much of the significance.
20. The changes could be judged only if some evidence was produced in the form of a site plan or other documentary or oral evidence to prove the condition of the building at the time of its letting out on April 25, 1967. Their is not even an iota of evidence even in the form of oral evidence to show the size of the rooms, conditions of floors etc. at the time of leasing them out with which the alleged changes could be compared. The landlord examined Dharam Pal, Advocate, A. W. 2 who visited the premises on August 20, 1986. There is nothing in his report with respect to the condition of the building prior to April 25, 1967 nor he stated any thing with respect to the same. Similarly Girdhari Lal Sharma. A. W. 3, Photographer produced the photographs of the premises as they stood. The attorney Bal Kishan A. W. 4, who claims to be 27 years of age cannot state what was the condition of the building, what were the sizes of the rooms, when the premises was leased out in 1967. Additionally in his statement he admitted that prior to giving the statement in the Court he had not visited premises in dispute. There is not an iota of evidence on the record and even the statement of the attorney did not spell out any impairment to the building or its utility though word ''impaired'' has been used. A.W. 4 only stated on oath that the building was constructed with old bricks and only one new wall was constructed in room No. 3 by Defendant No. 2.
21. Undisputedly the landlord did not appear in the witness box in spite of his being present in Court. A. W. 4 is an interested witness being the employee of the landlord as his professional clerk (Munshi). He does not make us wiser except to state the fact that one wall with new bricks was raised though he could not tell when the wall was constructed and by whom. He further admitted that beyond this wall in room No. 3, there is the property of Amar Nath. The trial Court after comparing the statement of A. W. 4 and the pleadings threadbare rightly came to the conclusion that there were no changes which had been brought about by the tenant. The lower appellate Court laid much stress on an alleged admission with respect to the construction of the Southern wall which is common with the house of Amar Nath, to take a view that changes were brought about. In my view the appellate court has surmised with respect to the inference drawn about the changes made in the building as a result whereof the value and utility was impaired without there being any evidence on the record In spite of the fact that after accepting the version that even the alleged wall was constructed by Amar Nath the neighbourer, no finding was given by the lower appellate Court with respect to any other alteration nor any other alteration was pointed out in the course of arguments.
22. The counsel for the Respondents took me through the statement of A. W. 1 Jiwan Kumar who was examined as an Overseer to prove the condition of the premises in dispute. He further proved his report Exhibit A-2. He admitted himself to be a client of the landlord. He admitted that on all the three sides of the disputed premises there are buildings which are double storeyed and the double storeyed buildings are supported by common walls. He further pointed out that the roof was Kacha and was supported by two wooden beams and planks in between. On planks earth was there He admitted that tilting of Balas etc. was not shown in his report though he had stated in his statement. He further stated that no holes in the roof in room No. 3 was shown by him in the plan because they could not be shown though he attempted to depict the points of leakage. He admitted that there were superficial cracks in some of the walls. A lot was elicited in his cross-examination in order to belie his report. The witness attempted to put up a trumped up report with respect to ti e condition of the building and conveniently ignored the facts relevant to determine the condition of the building and the changes bi ought about in the building. Assessing his ocular account and keeping in view his entire fabric of narration his statement does not inspire confidence to return a finding that the building was unfit for human habitation.
23. Minds of human beings are well known to register and get influenced by the fact what it wants to believe in view of particular interest in the version one wants to support. Interestedness of a witness may not itself be sufficient to disbelieve the statement, but it does put Court on its guard to seek corroboration or examine it with little caution and critically. Before believing an interested witness his version, attending circumstances and probabilities have to be kept in view.
24. A. W. 2 Dharam Pal, Advocate, Ropar who was appointed as Local Commissioner in another suit brought by the landlord was examined. The witness stated in his cross-examination that there were few brieks which were missing and had not mentioned about any cracks, nor he remembers whether there were any cracks in the walls or not, nor lie remembers that he observed any cracks at all. A vague statement was given that BaIas of the roof were broken, but of which room he failed to point out. He stated in positive terms that he went upstairs, saw the roof and found the roof to be intact from the upper side. He further stated that he did not observe any new construction except that at some places large bricks were used. He further testified that the roofs were resting on the wooden beams but refused to state with respect to the condition of the beams. He further testified with respect to the floor being brick laid. He visited the spot in the presence of the parties. No re-examination was sought. Taking the sordid statement of his, it supports the tenant''s version in particular that the building is not unfit for human habitation.
25. The statement of attorney, A. W. 4 was again referred to, who stated in examination in chief that the property was in dilapidated condition and Nasib Chand had raised a new wall in room No. 3 without the consent of the landlord, which materially in: paired the value and utility of the demised premises. In cross-examination he admitted that he had not seen the property before it was purchased by the landlord about a year back. He admitted that beyond the alleged newly constructed wall is the property of Amar Nath and the property in dispute on three sides is constructed by Sirhindi bricks It is further admitted by him that on two sides of the building in dispute there are double storey buildings constructed. He has admitted in categorical terms that except the one wall stated, the entire construction is in Sirhindi bricks and the walls are 12 to 13 inches thick. The roofs are made of Balas of irregular thickness. He has further stated "Amar Nath constructed the wall leaving some space between the common wall and his house."
26. Not a word was said how the reconstruction of the wall even if assumed to have been constructed by the tenant impaired the value or utility of the premises in dispute. He does not state that the area of the building or the room has either increased or decreased by the reconstruction of the wall. Though he admits of visiting the premises along with the Local Commissioner, but not a word was stated with respect to the cracks in the wall or the dilapidated condition of the floors. In such a state of affairs of the evidence of the landlord, the lower appellate Court has fallen in error in inferring, at surmises and conjectures that the value and utility of the building was impaired. Nothing was pointed out in the judgment that how and in what manner the value and utility of the building was impaired. No reason was given in coming to the conclusion that the trial Court was in error in apperciating the evidence and returning a finding other wise. In view of the fact that the landlord though physically present in Court and had been conducting his case throughout did not have the audacity to support his claim and offer himself for cross-examination and produced his clerk only as his attorney to support his assertions even if his statement is taken to be correct in its letter and spirit, no finding can be returned nor it can be reasonably inferred that the changes averred in the ejectment petition were brought about and they impaired the value and utility of the building. The report of the Local Commissioner can be used as a corroborative piece of evidence in order to appreciate the substantive evidence on record. It was held that A. W. 1 examined as an expert witness was an interested person and was disbelieved for the cogent reasons by the trial Court. Nothing has been pointed out to take a different view by the appellate Court. Even the expert witness of the landlord did not state that there was any structural change from which any impairment in value and utility could be inferred.
27. It would not be out of place to mention that Amar Nath to whom construction of the new wall has been attributed was not examined as a witness by the landlord to show that any area of the landlord was included in his building or he constructed the wall because the wall already in existence could not bear the burden of the second storey of his house. No neighbourer was examined with respect to the condition of the house or of the common waif.
28. It was observed in Om Pal v. AnandSwarup (1988-2) P.L.R. 699 that every act of waste by the tenant will not entitle the landlord to obtain an order of eviction under the provisions of Section 7 (Madras Buildings Lease and Rent Control Act 1916. It cannot be laid down as a rule of law that a demolition of a wall in a building must necessarily be deemed to be an act of was e which is likely to impair materially the value or the utility of the building. It was further observed that the impairment in value and utility can only be assumed if there are substantial changes in the character, form or structure of the building which destoryed its identity. The consturction, the material alteration and impairment is a question of law and fact. It was observed that material alteration does not mean any construction. It must not only be one affecting or diminishing the value or utility of the building but it nflust also be of a material nature, i.e. of substantial and significant nature, which brought about a substantial change in the structure of the building and that alone would be a around for ejectment. Similar are the observations made in 1987 (4) Judgments Today Page 538. It was observed that material alteration means that the nature and character of the change or alteration of a building must be essential and important in nature affecting the character or the building.
29. The learned Counsel further relied on Ram Dayal v. Ram Ckaran Dass 1984 (1) R.C.R. 282 where in has been observed that impairing of value and utility is a question of fact which has to be decided and inferred in each case on the evidence brought on record. It is for landlord to prove that the effect of changes has resulted in impairing the value and utility of the premises in dispute.
30. The learned Counsel further relied on Madan Lai Saggi and Anr. v. British Motor Car Co. (1934) Pvt. Ltd. G.T. Road, Jullundur 1985 (1) R.L.R. 125 wherein it has been observed:
It is pertinent to note that in the ejectment application these allegations with regard to the material impairment of the value and utility of the building have been made in para 3 (iii). Strangely enough, no date has been mentioned therein as to where the said alterations or constructions were made by the tenants. In the written statement filed it was specifically stated that all the alleged alterations and constructions were made prior to the rent note dated 25th October, 1967. It was specifically stated there in that the landlords have not stated as to when the alleged conversion was made. Even in the replication dated 5th February, 1977, filed on behalf of the landlords, no date was mentioned with respect to the alterations and the constructions alleged. Admittedly, the building was rented out to the tenants for the first time in the year 1958 vide rent note Ex. A7. The second rent note was executed on 16th September, 1961 vide Ex. A9. The third rent note is dated 25th October, 1967 (Ex. A. W. 2/1. In the circumstances, it was obligatory on the part of the landlords to allege as to whan the said alterations and constructions were made by the tenants. If the said alterations and constructions took place prior to 25th October, 1967, no ejectment could be sought on that grouned. For the first time in the statement made by the landlord as A.W. 1 it was stated that the said alterations and construction were raised in the year 1975. As stated earlier, no such averment was made either in the ejectment application oi in the replication filed on behalf of the landlords In the absence of any pleadings and cogent evidence to that effect, it could not be held that the said alterations were made after October, 1967.
5. Apart from the above, there is absolutely no evidence as to in what manner the said alterations and constructions have impaired the value and utility of the demised premises. In this behalf, the learned Rent Controller came to the conclusion that the landlord has nowhere stated that by the said changes, the value and utility of the demised premises had been materially impaired or that these were structural changes in the demised premises. The trial Court further found that the landlord Madan Lal Saggi did not at all state that by these alterations and constructions, the value and utility of the dem-sed premises had been impaired. Not only that, even in the ejectment application there is no allegation as to show the said alterations and constructions were likely to impair the value and utility of the building.
30. The principles laid down in the above judgments are to the effect that impairing the value and utility of the building by alleged changes has to be proved by the landlord by leading cogent evidence. Herein there is nothing on the record to show what alterations and additions were made by the tenant. There is nothing on the record by comparison of which it can be inferred that the alleged alterations inspite of the fact that these were not proved, had been prought about. No date was either pleaded or proved with respect to the alterations. A. W. 1 had no knowledge with respect to the building prior to August 24.1986. Similarly, A. W. 2 and A. W. 3 did not say anything with respect to the alterations. The attorney of the landlord, A. W. 4 who claims to be 27 years of age, only stated that a wall was constructed. He did not utter a word with respect to the other pleas taken by the landlord in particular with respect to material alterations. None of the wit messes of the landlord stated that the assumed alleged changes in the building impaired the value and utility of the building. Even Dharam Pal, A. W. 2 did not give even a single reason to indicate how the value and utility of the building was impaired and in what manner. The evidence led by the landlord with respect to the material alterations and impairing the value and utility is incredulous. On the other hand, the Petitioners admitted that the wall which was alleged to have been raised was raised by Des Raj, a neighbourer.
31. It has been observed in Sadhu Ram v. Niranjan Dass 1983 (85) P.I.R. 673.
In order to succeed it was obligatory on the part of the landlord to prove that the alleged construction, if any, had materially impaired the value or utility of the rented land.
The learned Counsel for the Respondent controverted the submissions made and contended that since the wall was reconrtructed with new bricks, it is the natural inference in ordinary course that the area of the room must have been shortened. It was contended that since the tenant admitted that some construction was raised by demolishing the old wall and the change is to be seen from the view point of the landlord, therefore, the inference drawn by the lower appellate Court with respect to impairment of value and utility is unassailable. The learned Counsel again referred to the statements of A. W. 1 to A. W. 4 and R. W. 1, the Petitioner-tenant. The learned Counsel relied on Khushi Ram and Ors. v. Om Parkash (1985-2) 88 P.L.R. 548 where in it has been observed that the impairment of the value and utility has to be seen from the point of view of the landlord.
33. In my considered view, the contentions raised by counsel for the Respondent has no substance as they are destitute of reasons and evidence on the record. Before adverting to the propriety of findings with respect to the material alterations, the counsel for the Respondent failed to point oat any evidence with respect to material impairment in value and utility of the building. Even in the pleadings except the reproduction of the statutory wording, nothing was pointed out how the value of the building was materially impaired as well as the utility of the same was adversely affected by the trumped up changes stated in the petition. There is no evidence on the record except the statement of A. W. 2, the Local Commissioner, with respect to the changes. He had no personal knowledge adout the changes as he had not seen the building in question prior to the assumed changes. A. W. 2 stated much more thai what the attorney of the landlord stated. The only material at the most on the record with respect to the alteration is that a joint wall was reconstructed by Des Raj at his own cost to which the landlord never objected as it was a common wall. The lower appellate Court entered, into the arena of surmises and conjectures by observing that since Das Raj had constructed a wall, therefore, he must have included some portion of rhe premises in his possession. Though the judgment cited is not attracted to the facts and circumstances of this case, even if is asumed that change is to be seen from the view point of the landlord, nothing has come on the record to show that any changes were brought about or the said changes materially impaired the value or utility of the demised premises Additionally, it would be reasonable to infer adversely against the landlord for his non-apperance in the witness box to support his claim. No reason was given, why the landlord did not step into the witness box and given a chance for cross-examination with respect to the allegations made by him inspite of the fact that he himself was conducting this case and other cases professionally. He was present in Court and still examined his attorney as a witness, who is none else but his Cleric (Munshi). Preponderance of the evidence is to the effect that no change was brought about. The facts stood corroborated by the statements of R. W. 1, R. W. 4, R. W. 5 and R. W. 6. Mere reproduction of the statutory words either in the statements or in the pleadings are of no consequence. The Respondent-landlord was bound to place sufficient facts on record from which the Courts below could hive some basis to infer that the value and utility of the property had been materially impaired. Even simple impairment is of no consequence. The statute envisages the impairment in value and utility substant ally and materially. As already observed above. I am of the considered view that the Respondent has failed to prove the impairment of the value and utility of the demised premises.
34. The learned Counsel for the Petitioners contended that in view of the evidence on record to the effect that the building was an old building and was built up with Nank-Shafai bricks, some bricks having been taken out, the roof being Kacha supported on wooden Fatties end beams, by itself does not make the building unfit for human habitat on. The landlord examined A. W. 1 as the expert witness to show that the premises in dispute are unfit for human habitation and has relied on his report Ex. A. 2.
35. Reading the statement of A. W. 1 in isolation of the other evidence, something may be said though even then no finding can be returned on probabilities that the building has become unfit for human habitation. The only position which emerges by reading the report Ex A-2 of A. W. 1 is that there are superficial cracks and the Southern wall is bulging towards the street. He further sated that the Fatties were broken, condition of the roof was poor and roof was visible. The wooden planks were not fit enough to hold the load of the roof. According to him, the roof can fail at any time. The statement of A. W. 2, apart from being a statement of a witness prima facie interested in the landlord, is belied by the evidence of A. W. 3, an Advocate, who was appointed as a Local Commissioner. He categorically stated that he had gone upstairs and seen the roof. The roof was intact from the upper side. A. W. 2, for reasons best known to him, did take the Court into confidence with respect to the cracks and holes in the structure, though he categorically stated that maximum five or six small bricks were missing from the walls. He denied that he observed any cracks in the walls, though he stated that one or two Bellas of the roof were broken. He categorically stated that he did not observe any new construction in the building except minor repairs having been effected here and there. Again, not even a word was stated by A. W. 4 that the building is unfit for human habitation When it was put to him that premises were given for tethering cattle only, the question was disallowed by the Court. He admitted that walls are about 12 to 13 inches thick. The roof was made of Ballas of irregular thickness. A suggestion that the neighbourers of the adjoining buildings had left space for construction of a wall was refuted by him. There is not a single word stated by the witness that the building is unfit for human habitation. The attorney is the star witness of the landlord. If he does not say that the building has become unfit for human habitation, the alleged interested statement of the expert cannot improve upon the situation. Even otherwise the trial Court was reasonably right, who after observing the demeanour of the witnesses, did not rely on the statement of A. W. 1 in the face of the statements of R. Ws and other A. Ws. Nothing has been pointed out by the lower appellate Court as to how the findings arrived at by the Rent Controller could not be sustained Merely a building being an old one const!ucted with Nanak Shahi bricks does not lead to an inference that it has become unfit for human habitation. Taking the preponderance of the circumstances into consideration i.e. to the effect that no neighbour was examined to prove that the building is in a dangerous coundition and it is unfit for human habitation; no notice was given by the Municipal Committee for demolition of the building being unfit and dangerous; the landlord''s non-appearance in the witness box; attorney''s silence with respect to the nature of the building; expert being an interested witness; and the admissions made by the witnessess of the landlord that except for the wall everything was in order, it cannot be inferred that the building has become unfit for human habitation. Breaking of one brick here and there and uneven flooring is nothing else but minor wear and tear of the building, which cannot be a ground for ejectment.
36. The counsel for the Respondent relied upon 1987 Simla Law Journal 824 in order to press into service the argument that since the building was made of old bricks and the beams were supported by Ballas; major portion of the wall as also the roof was Kacha, therefore the building was unfit for human habitation. The judgment cited has no relevancy with the facts and circumstances of this case as a finding of fact was arrived at by appreciation of evidence in the judgment that the building was unfit for human habitation keeping the facts and circumstances of that case in view. In my view and as observed above, no such finding can be returned in this case. He further relied on Smt. Tirrveni Devi and Ors. v. Babu Lal (1985-1) P.L.R. 497 wherein it has been observed that it was not the intention of the legislature that the tenant cannot be elected till the building has fallen down. There is no dispute with the said proposition, but in view of the peculiar facts and circumstances of this case, as stated above, no finding can be returned that the building is likely to fall down in the near future. There is no quarrel with the proposition of law laid down in the judgment, but it was given on its own facts.
37. Lastly the learned Counsel relied upon 1988 Simla Law Journal 411 in order to canvass that a witness cannot simply be disbelieved because he happens to be a relation. There is again no quarrel with the said proposition of law. The oral evidence has been discussed threadbare by me above. In view of my discussion as also for the reasons given by the trial Court for disbelieving the applicant''s evidence I agree with the trial Court that no finding can be returned that the building has become unfit and unsafe for human habitation. The finding returned by the lower appellate Court that the building has become unfit for human habitation in based on surmises and conjectures. The lower appellate Court has not read the evidence in its totality and has only picked up the report of the interested expert in isolation of the other evidence on the record. It is also not unknown that expert or a witness produced by a party usually supports the party producing him. The expert produced herein can by no means, be considered as an independent and unbiased witness.
38. The learned Counsel has shown me the photographs. I am afraid that by merely observing the photographs a finding cannot be returned that there are cracks of substantial character in the wails or building is unfit for human habitation in particular when the science of photography is not a perfect science and can be manipulated. Photographs in itself are not sufficient to infer that the building is unfit for human habitation. Moreover, when the ocular testimony of the witness has not been accepted, the corroborative evidence of photographs loses its significance.
39. In view of my observations made above, the order of the lower appellate Court is set aside, the revision petition is accepted and the application for ejectment is dismissed with no order as to costs.
