Sunday, 17 November 2019

Whether tenant can take alternative plea that additions and alteration are not of permanent nature and if it is so,it is for beneficial use?

 It was next urged by Shri Vashi that after the issue was remitted back to the Appellate Court by this Court by its judgment dated 28.9.1990, the tenant has submitted an application for permission to amend his written statement, taking a pleas that as the alterations and additions that were made, were for the better enjoyment of the suit premises, the landlord is not entitled to a decree for possession under Section 13(1)(b) of the Act. The application for amendment in the writing statement sought by the tenant was rejected by the Appellate Court. However, this Court allowed the amendment on the condition that no additional evidence would be led. Shri Vashi. urged that though this Court allowed the tenant to amend their written statement, it is clear from the observations in paragraph 19 of the order of the Appellate Court dated 1st November, 1993 that this plea was not considered by the Appellate Court on the ground that the plea taken by the tenant was an inconsistent plea. In the submission of Shri Vashi the plea taken by the tenant was not an inconsistent plea, but was an alternate plea whereby the tenant urged that if the Court holds that the additions and alterations carried out by the tenant in the suit premises are of permanent nature then they were necessary for better enjoyment of the properly. He further urged that basically it was the contention of the tenant that the additions and alterations carried out in the suit premises were not of permanent nature. In my opinion, these two submission of Shri Vashi that additions and alterations made in the suit premises by the tenant were not of permanent nature and that even if they were assumed to be so they were necessary for beneficial enjoyment of the property, can be conveniently considered together with reference to each of the additions and alterations made in the premises. Before proceeding to do so, I may observe here that the Appellate Court, was not right in refusing to consider the plea of the tenant that additions and alterations were for the beneficial enjoyment of the property. 
Bombay High Court
Ramrao Balaji Kothare And Ors. vs Lila, Widow Of Dr. Yeshwant ... on 28 January, 1997
Equivalent citations: (1997) 99 BOMLR 400

Bench: D Deshmukh


1. The present petition has been filed by the original plaintiffs seeking to challenge the judgment dated 9th March, 1988 passed by the Appellate Court of the Small Causes in Appeal Nos. 591/84 and 674 of 1984.
2. By the said judgment the former appeal of defendant No. 3 and latter appeal of defendants Nos. 1(a) to 1(c) and defendant No. 2 were allowed and the suit of the plaintiffs for possession was dismissed. The premises in dispute are the 3rd floor premises in the building 'Shri Krishna Pant Nivas' situated at 204, Raja Ram Mohan Roy Road. Girgaum, Bombay-400 004. The said building was originally owned by one Khanderao Krishnanath Kirtikar who died in or about 1948 leaving behind a will under which the plaintiffs were appointed as executors and trustees. One Dr. Narayan V. Ajinkya was a tenant in respect of a portion of the said building till his death in or about the year 1944. The original defendant Dr. Yeshawant Narayan Ajinkya was the son of Dr. N.V. Ajinkya.
3. The present suit i.e. RAIE Suit No. 912/7611 of 1966 was filed on 7th December, 1966 against the original defendant Dr. Y.N. Ajinkya for possession on the ground that the suit premises namely, the third floor of 'Shri Krishna Pant Nivas' had not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the dale of the suit. On 20th January, 1971 the original defendant died leaving behind him defendant Nos. 1 (a) to 1 (c) as his heirs and legal representatives. By an amendment carried out to the plaint the defendant Nos. 1(a) to 1(c) were impleaded in the suit. By the said amendment possession was claimed on two additional grounds, namely, unlawful subletting in favour of defendant No. 2 Ajinkya General Nursing Home, which was also impleaded in the suit. The possession was also claimed on the ground that the defendants had carried on the demised premises various additions and alterations amounting to erecting of structure of permanent nature and also amounting to acts of waste contrary to the provisions of Sub-section (o) of Section 108 of the Transfer of Property Act. Hence the possession was claimed under Section 13(1)(a)(c) and (k) of the Bombay Rent Act. Pending the suit, defendant No. 3 who happens to be the brother of the original defendant got himself impleaded in the suit. According to him, he was in occupation of a portion of the second floor and was interested in the tenancy in respect of the suit premises.
4. The suit was initially resisted by the original defendant by filing his written statement. After his death, the suit was resisted by defendant Nos. 1A to 1C by filing their independent written statements. Defendant Nos. 1A to 1C inter alia contended that the suit premises on the third floor, certain portion of the second floor, and small room on the ground floor were subject matter of one tenancy. Consequently, the suit notice and the present suit filed for possession of the third floor being part of the premises let was not maintainable in law. The allegations regarding the non user, unlawful sub-letting and erection of a permanent construction were denied.
5. At the trial, the plaintiffs examined Ramrao Balaji Kotharc (P.W. 1), Suresh Hari Kalhathkar (P.W. 2) a Photographer, Sam P. Rao (P.W. 3) an Architect and Vinod Atmaram Desai (P.W. 4) another Architect for proving the plan of the suit premises, Exh. M', which had been drawn in the year 1949. The defendants in rebuttal examined defendant No. 1 D.K. Singh (D.W. 1) a partner of defendant No. 2 Shriram S. Joshi (D.W. 2). an Architect, who proved his report, Exh. 17, dated 14th April, 1980, and Defendant No. 3, K.N. Ajinkya (D.W. 3). It may be observed that recording of the evidence in the case commenced on 29th March, 1974 and concluded on 9th July, 1982. Hence the evidence was being recorded for over eight long years.
6. By a judgment and decree dated 29/30th June, 1984 the learned Judge of the Trial Court negatived the contention of the defendants that the suit premises were only a part of the demised premises. The suit filed for possession was, therefore, held to be maintainable. The learned Judge held that the plaintiffs had failed to prove that the defendants had not used the suit premises without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit, He held that the plaintiffs failed to prove that the defendant had unlawfully sublet the suit premises. He however, held that the plaintiffs had proved that defendants had erected a permanent structure on the suit premises and were guilty of waste and damage, in view of the aforesaid findings, a decree for possession was passed under Section 13(1)(a)(b) of the Bombay Rent Act with no order as to costs.
7. Being aggrieved by the aforesaid judgment and decree, defendant No. 3 preferred Appeal No. 59 I of 1984 whereas defendant Nos. 1A to 1C and defendant No. 2 preferred Appeal No. 673 of 1984. The Appellate Court of the Small Causes by its judgment and decree dated 26th February, 1988 confirmed the findings of the Trial Court in regard to the maintainability. Of the suit as also the non-user and unlawful subletting. It however, held that the defendants were guilty of putting up structure. But they were not of permanent nature as contemplated under Section 13(1)(a)(b) of the Bombay Rent Act. Defendants were held not liable for committing any act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act so as to attract the mischief of Section 13(1)(a). Consequent upon the said findings the appeals of the defendants were allowed and the suit of the plaintiffs for possession was dismissed with no order as to costs.
8. Feeling aggrieved by the aforesaid judgment and decree of the Appellate Court the plaintiffs have preferred the present petition.
9. This petition after being admitted for final hearing was heard finally by Hon'ble Mr. Justice Ashok Agarwal. By its Judgment dated 28th September, 1990 this Court confirmed the finding in relation to the maintainability of the suit on the ground of non-user and subletting. In so far as the ground of breach of the provision of Clause (o) of Section 108 of the Transfer of Property Act and the ground under Section 13(1)(a)(h) of the Bombay Rent Act is concerned, this Court remitted the issue back for arriving at a fresh finding in the light of the observations made in the Judgment of this Court dated 28th September, 1990. Pursuant to the directions, the Appellate Court remitted its finding back to this Court by its judgment dated 1.11.1993. The Appellate Court has held that there is no sufficient evidence on the record to show that the alterations and additions made in the premises amount to the damage to the property as contemplated under Section 108(o) of the Transfer of Property Act. It is further held that the tenant had effected alterations and additions in the suit premises, which are of permanent nature. Thus the Appellate Court has recorded one finding, namely, the finding that the additions and alterations in the suit premises carried on by the tenant were of permanent nature, in favour of the landlord and therefore, consequent upon that finding the suit for possession filed by the landlord stands decreed by the Appellate Court. However, since the issue was remitted for consideration and for recording finding, after the findings was received from the Appellate Court the tenants filed their affidavits, assailing the finding recorded by the Appellate Court against them. The landlord also filed the affidavits assailing the findings recorded by the Appellate Court on the ground of damage to the property as contemplated by Section 108(o) of the Transfer of Properly Act. Shri Rane, appearing for the petitioner however, at the time of final hearing stated before me that he docs not press his challenge to the findings of the Appellate Court on the question of damage to property as contemplated under Section 108(o) of the Transfer of Properly Act. Therefore, now all that remain to be considered is whether the finding recorded by the Appellate Court under Section 13(1)(b) is to be accepted or not. In short now this becomes the petition filed by the respondent-tenant, challenging the finding recorded by the Appellate Court under Section 13(1)(b) of the Act.
10. Shri Vashi, the learned Counsel appearing for the respondents, first urged before me that perusal of the judgment of this Court, dated 28.9.1990 shows that finding was called from the Appellate Court by this Court only on one question, namely, whether particular alterations or additions have been put up by the tenant. In the submission of Shri Vashi, the further question whether that construction was of permanent nature or not was to be considered by this Court and not by the Appellate Court. In the submission of Shri Vashi, therefore, the finding of the Appellate Court on the question of the nature of the construction is contrary to the order of this Court dated 28.9.1990.
11. Shri Rane, appearing for the landlord, however, contended that perusal of paragraphs 14 and 15 of the judgement of this Court dated 28.9.1990 shows that in so far as the ground under Section 13(1)(b) is concerned, the Appellate Court was to remit finding on the question whether additional and alterations have been made by the tenant as also the nature of those constructions. In my opinion, the following observations of this Court in paragraph 14 of its judgement leave no manner of doubt that the Appellate Court was to remit findings on both the questions.
I am of the view that the Appellate Court has not given the specific findings as to whether the plaintiffs have proved that the defendants have carried out additions or alterations as alleged by the plaintiffs. In my view, the Appellate Court was bound to give specific findings in respect of each of the additions and alterations which are alleged to have been put up by the defendants. After specific findings arc recorded on the issue whether the additions and alterations have been proved to have been put up or not, the further issue that would be required to he answered is whether each one of them or all put together constitute additions and alterations of a permanent nature. It would thereafter be required to be found whether the said additions and alterations constitute acts which arc contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act. Unfortunately the Appellate Court has not given specific findings on the above issues.
12. It is thus clear that this Court wanted the Appellate Court to record a finding in so far as ground under Section 13(1)(b) is concerned, both on the questions whether the additions and alterations have been made by the tenant as also in relation to the nature of those additions and alterations. In my opinion, in any case both these questions are linked up with each other in such a manner that one cannot be separated from the other. This Court has directed the Appellate Court to consider each additions and alterations made in the premises separately and specifically. Now, while considering the additions and alterations, specifically the nature of the construction has necessarily to be considered. Therefore, in my opinion, the learned Counsel for the petitioner- tenant Shri Vashi is not right in contending that it was not necessary for the Appellate Court to record a finding on the nature of the construction carried out in the suit premises.
13. It was next urged by Shri Vashi that it is clear from the finding recorded by the Appellate Court, that the Appellate Court has relied on the maps at Exhs. 'M' &'L' and by comparison of the two maps the Appellate Court has recorded finding on the question of additions and alterations. It is urged by Shri Vashi that the map at Exh. 'L' shows that it was drawn by one Rao. who was an Architect. Shri Vashi drew my attention to the observations of the Appellate Court in paragraph 27 of its findings dated 1st November, 1993 where the Appellate Court has observed that the two plans, namely, the map at Exh. 'M' and the map at Exh. 'L' and the evidence of Shri Sam Rao, the Architect, arc the only material which throw light on the additions and alterations carried out in the suit premises. In the submission of Shri Vashi, Shri Desai, who had drawn the plan at Exh. 'M' was not alive when the evidence was recorded. To prove the signature of Shri Desai, his nephew Shri Vinod Atmaram Desai was examined. In the submission of Shri Vashi, identification of the signature of Shri Desai by his nephew does not prove the contents of the map at Exh. 'M'. In the submission of Shri Vashi, the observations of the Appellate Court, relying on a case of Mahadeo Prasad and Anr. v. Mussamat Nasiban and Anr. 54 Indian Cases page 368 : AIR 1920 Oudh 411 (i) that because a document is more than 30 years old, it has presumptive value in view of the provisions of Section 90 of the Evidence Act, is not correct. In the submission of Shri Vashi, it is clear from Section 90 of the Act, that even if the document is taken to be more than 30 years old then also what is proved and what has presumptive value is the signature and the writing. So far as other contents of the document are concerned, in the submission of Shri Vashi they still are required to be proved. In the submission of Shri Vashi as plan at Exh. 'M' has not been proved in accordance with law, the reliance placed by the Appellate Court on the plan 'M' is erroneous.
14. Now, it is to be seen that the Appellate Court has taken assistance of the plan at Exh. 'M' and to find out what are the additions and alterations made by the tenant in the suit premises. In my opinion, in this case it is not necessary to refer to the plan at Exh. 'M' and 'L' to find 0111 what are the additions and alterations made in the plan, because it is not in dispute between the parties that additions and alterations have been made in the premises and it is nobody's case that the landlord has done these additions and alterations in the suit premises. It is to be noted here that though it was the case of the landlord that the original tenant has sublet the premises, by the Courts below had negatived that contention of the landlord and have held that there is no subletting. It is held that the original tenant and his heirs entered into partnership and therefore, it does not amount to subletting. The finding of the Courts below that there is no subletting involved is final and binding on the parties. Therefore, it is admitted position that additions and alterations have been made in the suit premises and that they have not been made by the landlord then, the only inference that is possible is that the additions and alterations were made by the tenant. It is further to be seen that the Appellate Court has referred to the letter at Exh. 'G' dated 25th September, 1968 written by Dr. Y.N. Ajinkya, who was the tenant of the landlord. Perusal of that letter shows that Dr. Ajinkya as a tenant, was seeking permission of the landlord to carry out certain additions and alterations in the suit premises and thus it is clear from this letter Exh. 'G, that it is the tenant who wanted to carry out additions and alterations in the premises. In this view of the matter, therefore, it is not necessary for me to find out whether the reliance can be placed on the plan at Exh. 'M'. Because, in my opinion to arrive at the finding that the alterations and additions have been made by the tenant, it is not necessary to refer to any plans in as much as it is an admitted position that the additions and alterations have been made in the suit premises and as 1 have observed above, the only inference possible is that those additions and alterations were made by the tenant.
15. It was next urged by Shri Vashi that after the issue was remitted back to the Appellate Court by this Court by its judgment dated 28.9.1990, the tenant has submitted an application for permission to amend his written statement, taking a pleas that as the alterations and additions that were made, were for the better enjoyment of the suit premises, the landlord is not entitled to a decree for possession under Section 13(1)(b) of the Act. The application for amendment in the writing statement sought by the tenant was rejected by the Appellate Court. However, this Court allowed the amendment on the condition that no additional evidence would be led. Shri Vashi. urged that though this Court allowed the tenant to amend their written statement, it is clear from the observations in paragraph 19 of the order of the Appellate Court dated 1st November, 1993 that this pica was not considered by the Appellate Court on the ground that the plea taken by the tenant was an inconsistent plea. In the submission of Shri Vashi the plea taken by the tenant was not an inconsistent plea, but was an alternate plea whereby the tenant urged that if the Court holds that the additions and alterations carried out by the tenant in the suit premises are of permanent nature then they were necessary for better enjoyment of the properly. He further urged that basically it was the contention of the tenant that the additions and alterations carried out in the suit premises were not of permanent nature. In my opinion, these two submission of Shri Vashi that additions and alterations made in the suit premises by the tenant were not of permanent nature and that even if they were assumed to be so they were necessary for beneficial enjoyment of the property, can be conveniently considered together with reference to each of the additions and alterations made in the premises. Before proceeding to do so, I may observe here that the Appellate Court, was not right in refusing to consider the plea of the tenant that additions and alterations were for the beneficial enjoyment of (he property. However, though the Appellate Court has not considered this aspect of the matter, in my opinion, this can be dealt with by this Court as entire material and evidence is already before this Court. This takes me to consider each of the additions and alterations, which according to the Appellate Court have been made by the tenant in the suit premises and which according to the Appellate Court are of permanent nature, I will also consider whether the additions and alterations were necessary for beneficial enjoyment of the premises.
16. Now the first addition or alteration which has been held to be of permanent nature by the Appellate Court is removal of the door in the hall and constructing the wall in place of that door. The door has been blocked by brick masonary. Now closing of the door by erecting a wall by brick masonary would be definitely be an alteration of the structure of permanent nature. In my opinion that finding has been correctly reached by the Appellate Court. Now considering the question whether it was necessary for the tenant to do so for beneficial enjoyment of the property is concerned, in my opinion, if it is the case of the tenant that he was not in need of that particular door then the door could not have been closed by the tenant. There was no justification whatsoever for removing the door and putting up a wall. Finding of the Appellate Court that the intention of the tenant behind doing this alteration is to change user of the premises itself, in my opinion, is correct.
17. The second alteration which has been held to be of permanent nature by the Appellate Court is to be found in paragraph 31 of the findings of the Appellate Court dated 1st November, 1993. It relates to pulling down of a wall between 'labour room and sterlisation room for creating one room in place of two rooms.
Now it is to be seen that converting two rooms in the tenanted premises in a single room by removing the wall is definitely an alteration of a permanent nature. There is no material placed by the tenant on record to show that this became necessary for beneficial enjoyment of the properly.
18. The next alteration that has been considered by the Appellate Court to be of a permanent nature is to be found in paragraph 32 of the Appellate Court's finding dated 1.11.1993. The Appellate Court has found that on the north side of the suit premises, the entire terrace was open to sky. The open terrace now is covered with A.C. sheets. The tenant has raised east side external parapet wall by using brick masonary and portion of the said terrace has been converted into a kitchen by mergering it into a passage by knocking down external load bearing wall of that passage. The wall of about 9' to 10' feet in length has been knocked out. The result is that the entire open terrace is now covered, a portion of which is attached to the operation theatre and a partition of its is attached to the kitchen, parapet wall was also increased and the roof was also put over the said structure. It is clear from these findings of the Appellate Court that the tenant has covered open terrace and has created rooms there. This definitely is errecting the structure of a permanent nature. It was urged by Shri Vashi that it became necessary to cover the terrace to protect the wall of the operation theatre from rain water. However, Shri Vashi is not in a position to explain as to how the creation of rooms in that covered portion and using those rooms are absolutely necessary for beneficial enjoyment. After going through the record, in my opinion, the finding of the Appellate Court that additions and alterations which are made in the premises are of permanent nature, is based on the evidence on record. The Appellate Court, in my opinion, has correctly observed that the construction carried out by the tenant in the suit premises amounts not only altering the suit premises but even the additions have been made to it. I find that the findings recorded by the Appellate Court are supported by material on the record and therefore, the findings can be safely accepted.
19. In the result, therefore, I accept the findings recorded by the Appellate Court and hold that the tenant has without landlord's consent in writing, errected a permanent structure in the suit premises and therefore, the landlord is entitled to a decree of possession. In the result, therefore, the petition succeeds and is allowed.
20. The suit, being RAE Suit No. 912/761 1 of 1996 filed by the petitioner is decreed in favour of the plaintiffs in terms of prayer Clause (a) of the Civil Suit with cost. The Rule is thus made absolute in the above terms with no order as to costs.

21. At this stage Shri Vashi, the learned Counsel appearing for the tenants urges that the tenant should be given a reasonable time to vacate the premises. In his submission, time up to 30th June, 1998 would be a reasonable time. The learned Counsel appearing for the landlord does not oppose this request. Therefore, it is directed that the possession of the tenants of the suit premises shall not be disturbed for the period ending with 30th June, 1998 subject to the tenants submitting an undertaking to this Court in the usual form within the period of two weeks from today. Failure of the tenant to submit undertaking as aforesaid within the aforesaid period, shall entitle the landlord to execute the decree immediately.
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