Shri Kishan Agarwal (Modi) Vs. Dr. Pitambar Dayal - Court Judgment

Goyal, J.

1. The defendant-tenant has filed this appeal against the judgment and decree of eviction passed by learned Additional District Judge No. 8, Jaipur City, Jaipur on 21.2.2002. The parties in this appeal would be referred as arrayed in the plaint.

2. The relevant facts in brief are that the plaintiff- respondent filed a civil suit for eviction on 12.8.1998 with the averments that the suit house No. H3, Chitranjan Marg, C-Scheme, Jaipur was let-out to the defendant in the year 1962 on monthly rent of Rs. 265/-. Present rate of rent is Rs. 2000/- per month. The plaintiff sought eviction on the grounds of reasonable and bonafide requirement, material alterations, assigning, sub-letting or parting with the possession of some parts of the suit premises giving the details with regard to each of the grounds of eviction.

3. The defendant in his written statement while admitting the tenancy denied all the grounds of eviction with pleas that the plaintiff is in possession of his own accommodation which is sufficient and the plaintiff either wants to let out this house on higher rent or wants to sell it out,

4. On the basis of the pleadings of the parties following issues were framed:

1- D;k oknh dks oknxzLr ifjlj dh Lo;a o viuhifRu ds fuokl gsrq ;qfDr;qDr ,oa ln~Hkfod vko';drk gS

&oknh;

2- D;k oknxzLr ifjlj ls izfroknh dksfu'dkflr u djus ij oknh dks izfroknh dks fu'dkflr djus ij gksus okyhdfBukbZ rqyukRed :i ls vf/kd dfBukbZ gksxh

&oknh;

3- D;k oknxzLr ifjlj ds vkaf'kd fu'dklu lsoknh dh vo';drk dh iwfrZ gksuk laHko gS

&oknh;

4- D;k izfroknh us oknxzLr ifjlj esa oknh dhlgefr ds fcuk lkjHkwr ifjorZu@ifjo/kZu oknds in la- 12 esa of.kZr izdkj ls fd;k gS

&oknh;

5- D;k izfroknh us oknxzLr ifjlj dks oknh dhlgefr ds fcuk okn ds en la- 13 esa of.kZr izdkj ls vU; dEifu;ksa dks lcysV]vlkbu ;k ikVZfoFk its'ku dj nh gS

&oknh;

6- D;k oknh izfroknh ls okn ds in la- 14 esaof.kZr izdkj ls 30]000@&:i;s dk gtkZuk izkIr djus dk vf/kdkjh gS

&oknh;

7- D;k oknxzLr ifjlj dk ekud fdjk;k 662-50 :i;sfu/kZfjr fd;s tkus ;ksX; gS

&izfroknh;

8- vuqrks'k

5. Evidence of both the parties was recorded and vide impugned judgment dated 21.2.2002 issues No. 4 & 6 were decided against the plaintiff and while deciding remaining issues in favour of the plaintiff a decree of eviction against the defendant was passed.

6. The defendant vide this appeal has challenged the findings of the Trial Court on issues No. 1, 2, 3 & 5 while the plaintiff in cross-objections has challenged the findings of the Trial Court on issue No. 4.

7. I have heard learned counsel for the parties and have gone through the entire evidence. On the basis of the submissions made before this Court following points arise for consideration:-

(i) Whether the decision of the Trial Court with regard to issues No. 1 to 3 relating to reasonable and bonafide requirement, comparative hardship and partial eviction is justified ?

(ii) Whether the decision on issue No. 5 on the point of sub-letting, assignment or parting with the possession of the portion of the suit house is justified ?

(iii) Whether the decision on issue No. 4 with regard to material alterations is justified ?

(iv) Whether the plaintiff was estopped on the basis of the acquiescence and waiver in seeking the eviction ?

8. First Point:-Section 13 (1) (h) and (h) (i) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) is as under:-

Section 13. Eviction of tenants :-(l) Notwithstanding anything con- tained in any law or contract, no Court shall pass any decree, make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act unless it is satisfied;

(h) that the premises are required reasonably and bonafide by the landlord:-

(h) (i) for the use or occupation of himself or his family.

9. According to the averments made in the plaint, the plaintiff along with his wife his son Jaideep, son's wife and two daughters is residing in his ancestral house No. 8, Bhagat Niwas, C-Scheme, Jaipur. A family partition of this ancestral house took place in March, 1995 between the plaintiff, his wife and two sons Jaideep and Jayesh. This family partition was oral. The portion marked with red colour on ground floor came to the plaintiff's share and portions on the first floor marked with green, badami and yellow colour respectively came to the shares of Jaideep, plaintiff's wife and Jayesh as shown in the annexed site-plan Annexure-B. The plaintiff's portion on ground floor consists of three bed rooms, one Pooja room and drawing-cum-dining room. One bed room is occupied by the plaintiff and his wife, the other bed room is in possession of the plaintiff's son Jaideep and his wife and the third bed room is occupied by two grand daughters of the plaintiff. The remaining portions in the shares of the plaintiff's wife and two sons are on rent. The plaintiff has three daughters-all married. Two daughters and one son Jayesh are residing in America. They come with their family members and stay with the plaintiff. Friends of the plaintiff as well as his son Jaideep also come to the plaintiff's house but the plaintiff has no guest room. Kitchen as well as dining-cum-drawing room are common. Both the daughters of Jaideep are learning music and dance and operate T.V. and thus the atmosphere has become noisy. It is also pleaded that the relations between the plaintiff's wife and daughter-in-law are not cordial for last some time and thus the plaintiff and his wife in old age want to live separately in peace. Open heart surgery was also performed on the plaintiff and thus this noisy atmosphere creates tension. It is also pleaded that the plaintiff is a retired Director, Medical and Health Department, Rajasthan and now is carrying on private practice but has no room for that purpose. Therefore, the plaintiff requires the suit house reasonably and bonafide. It is also averred that the defendant has constructed a double storied house on plot of 800 sq. yards purchased in C-Scheme, Jaipur and thus no comparative hardship would be caused to the defendant and the defendant mostly resides at Neem Ka Thana where he has got a big house of his own,

10. In written statement all the facts as stated hereinabove have been denied. It has been denied that the house No. 8. Bhagat Niwas is the ancestral house and any oral partition took place as pleaded and the entire facts have been pleaded only for the purpose of evicting the tenant. All the averments with regard to requirements of the plaintiff have been denied in toto.

11. The Trial Court having considered the evidence came to the conclusion that the plot No. 8, Bhagat Niwas was ancestral properly of the plaintiff and it was received by the plaintiff in partition vide partition deed Ex. 16 dated 30.4.1963. This partition took place between the plaintiff and his brothers. This property was further partitioned in March, 1995 between the plaintiff, his wife and two sons and this oral partition was reduced to writing on 15.7.1995 which is Ex.1. The shares of the plaintiff, his wife and two sons have been separately marked in the site-plan Ex.2. According to learned senior counsel for the defendant the transaction of partition between the plaintiff, his wife and two sons is a sham transaction and the tenant has a right to say so in an eviction suit. Reliance is placed upon Moolchand v. Prakash Motor Stores, Neemuch Cantt. and Anr. (1), and Devi Das v. Mohan Lal (2). It was held by M.P. High Court that in an eviction suit tenant's interest being involved, he could not be precluded from questioning the validity of the genuineness of the gift deed while Hon'ble the Supreme Court held that in eviction suit plea of the tenant that the sale was sham transaction should have been considered by the Court. Thus, the tenant had a right to question the validity of the said partition as pleaded by the plaintiff. But according to learned counsel for the plaintiff and rightly so this objection was not pressed by learned counsel for the defendant before the Trial Court as observed at page 26 of the impugned judgment of the Trial Court. Even otherwise, on perusal of the entire evidence-oral as well as documentary the transaction of partition between the plaintiff, his wife and two sons in March, 1995 as pleaded in the plaint is found well proved. The plaintiffs version has been supported by P.W.5 Sh. B.D. Mathur younger brother of the plaintiff and there is no evidence in rebuttal.

12. The Trial Court further came to this conclusion that the premises in the plaintiff's possession consists of three bed rooms one Pooja room, common drawing- cum-dining room, kitchen and store and the plaintiff along with his wife, son, son's wife and two grand daughters is residing there. It was also found by the Trial Court that the remaining portions of this house were let Out in the year 1993. The portion of plaintiff's son. Jayesh Dayal was first let out in the year 1993 and the same portion was again given on rent to another tenant in 1997. It was also held by the Trial Court that previously the portion occupied by the plaintiff was sufficient for them but now both the grand daughters of the plaintiff became older and one bed room is occupied by them and the Pooja room is being used now for learning music and dance by the grand daughters and thus premises occupied by the plaintiff fell short. It was also held that on account of noisy atmosphere as pleaded and proved the requirement of the plaintiff to live separately with his wife in the suit house appears to be both reasonable and bonafide and more so when the plaintiff is a heart patient. It was also held that the plaintiff's requirement for guest room is also reasonable and bonafide and the portion of plaintiff's son Jayesh Dayal residing in America is not in possession and control of the plaintiff and the same was and is on rent. It was, thus observed that looking to the living standard of the plaintiff, the Court cannot dictate him to perform his Pooja, meditation and Yoga in his bed room. It was also held that there arises dispute between the plaintiff's wife and daughter-in-law and on account of this noisy atmosphere the plaintiff's requirement to live with his wife separately is both reasonable and bonafide. It was also held that the plaintiff requires one room for consulting his patients.

13. Learned senior counsel Sh. Agarwal contended that the accommodation available with the plaintiff is sufficient for the plaintiff and his family members; that the requirement of the plaintiff can be considered only with reference to the require- ment of the plaintiff and his wife and not for his son, son's wife and grand daughters as plaintiff's son has got his separate portion in Bhagat Niwas; that it is the case of mere desire and not reasonable and bonafide requirement, otherwise the remaining portions of Bhagat Niwas would not have been let out to the tenants; that the plaintiff's desire either is to enhance the rent or to sell it out and in support of his contention he referred agreement of lease Ex.3 dated 13.7.1993 that the property on lease was given on monthly rent of Rs. 16, 500/-; that the portion in the share of the plaintiff's son Jayesh Dayal was given on rent to other tenant in 1997 and in case the plaintiff's requirement was genuine, there was no occasion to let it out again; that according to the statement of P.W.10 Brijesh who is music teacher, he is imparting training for music and dance only for one hour in the evening and thus this room can be used for Pooja purpose; that the statement of the plaintiff that on account of noisy atmosphere in the house and casual quarrels between his wife and the daughter-in-law and on account of that they want to live separately from his son and grand daughters is not natural and reliable as in this old age of about 80 years every person including the plaintiff would like to stay with his family members; that the statements of the plaintiff that he requires one room for consulting his patients is also not reliable as in this old age it is not believable that he carries on his private practice as a doctor.

14. In support of his contentions reliance was placed upon some of the judgments. In Mst. Bega Begum and Ors. v. Abdul Ahad Khan (dead) by L.R's and Ors. (3), it was held that the words 'reasonable requirement' which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between the desire and need should be kept in mind but not so as to make even the genuine need as nothing but a desire. Learned senior counsel Sh. Agarwal referred para 14 of the judgment wherein it was held by Hon'ble Supreme Court in Phiroze Bamanji Desai v. Chandrakant N. Patel (4), that the true meaning of the word 'requires' is that there must be an element of need before a landlord can be said to require premises for his own use and occupation. It is not enough that the landlord should merely desire to use and occupy premises. What is necessary is that he should need them for his own use and occupation. In M.M. Quasim v. Manohar Lal and Ors. (5), the observations of the First Appellate Court were that 'It is for the plaintiffs to decide whatever they think fit and proper. It is not for the defendant to suggest as to what they should do.' But the defendant has led evidence to show that the plaintiffs have got some more houses and they have got a decree for eviction with respect to the other house. The Hon'ble Supreme Court observed that this approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States of the country. The plea that the landlord has unfettered right to re-enter premises of his choice is not maintainable. He must prove that available vacant premises is not suitable for his purpose. In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkune and Anr. (6), it was held that reasonable and bonafide requirement means really genuine requirement from any reasonable standard, but not on standard of dire need. In Deena Nath v. Pooran Mal (7), it was held that the finding of the Trial Court with regard to bonafide requirement of the landlord must be consonant with the statutory mandate. If the court does not apply the statutory provisions to the evidence on record in its proper perspective then a finding regarding bonafide requirement ceases to be a mere finding of fact. Such an erroneous and illegally arrived at finding would vitiate the entire judgment. Where it is proved that the landlord had alternative available accommodation in the same building and also an allotted shop room in a local market complex, the requirement of the landlord could not be termed bonafide within the meaning of Section 12 (1) (f) of M.P. Rent Act, 1961 which stipulates that only a landlord having no alternative accommodation in the town concerned may file for eviction.

15. Per contra learned counsel for the plaintiff contended that the findings of the Trial Court are based on proper appreciation of the entire evidence; that (he available accommodation with the plaintiff has been found insufficient in all for the six members including the plaintiff; that in view of the entire evidence it is not a case of mere desire of the plaintiff, rather it is well proved that the plaintiff's requirement is both reasonable and bonafide; that no portion of the accommodation available with the plaintiff was let out by him and the portions of the plaintiff's wife and both sons which fell to their respective shares were also let out in the year 1993-much before the filing of the present suit; that the portion of Jayesh Dayal residing in America was also let out in the year 1993 to Coates Vayella and on vacating of the same in the year 1997 it was let out to Rahul Tea Company; that the plaintiff had no control and possession over the portion of Jayesh Dayal and the plaintiff has submitted income-tax returns of his wife and his son which are Ex. 18 & Ex. 19 showing the income from house property; that there is no evidence that the plaintiff ever pressurised the defendant to enhance the rent and this fact is evident from these undisputed facts that the suit house was let out to the defendant in January or February, 1962 at monthly rent of Rs. 265/- and now the monthly rent is only Rs. 2000/- payable w.e.f. 1.2.1995 and the present suit was filed after a period of more than 36 years from the commencement of the tenancy; that the plaintiff never expressed his desire to sell this house to the defendant or anybodyelse; that there is nothing unnatural when the plaintiff states that he along with his wife wants to reside separately in a peaceful atmosphere as the defendant himself about 80 years of age admitted in his statement that he resides alone in the suit house and he does not want to live with his two sons at Jaipur as he cannot carry on well with them and thus the plaintiff's requirement was rightly found proved by the Trial Court. He placed reliance upon some of the judgments. In Prativa Devi (Smt.) v. T.V. Krishnan (8), it was held that the landlord is the best judge of his residential requirement. He has complete freedom in the matter. It is no concern of the courts to dictate to the landlord how and in what manner he should live. The High Court was rather solicituous about the age of the appellant and thought that because of her age she needed to be looked after. That was a look out of the appellant and not of the High Court. There is no law which deprives the landlord of the beneficial enjoyment of the property. The High Court was in error in laying down that the test is availability of alternative accommodation and not the legal right of such occupation in adjudging the bonafides of the claim of the landlord. Similar view was taken by the Hon'ble Supreme Court in Ragavendra Kumar v. Firm Prem Machinery & Co. (9), In Ram Pratap Sharma v. Smt. Rukmani Devi (10), it was held that the landlord's requirement for separate Pooja room is bonafide requirement as in present day society landlord cannot be compelled to have Pooja room in a dining room or bed room. In Siddalingamma v. Mamtha Shenoy (11), the Hon'ble Supreme Court held on the point of bonafide requirement of the landlord that the trial Judge should put himself in place of the landlord and then decide the question of bonafide requirement whether the need of the landlord was natural, real, sincere and honest. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell into lesser premises so as to protect the tenant's continued occupation in the tenancy premises. In Sarla Ahuja v. United India Insurance Company Ltd. (12), it was held that the tenant cannot dictate how landlord should adjust himself. Facts like cordial relationship between the landlady and her son and daughter-in-law and that the landlady living comfortably in present accommodation are not relevant. Development of discord in relationship is also not pre-requisite for proving bonafide requirement when a landlord asserts that he requires his building for his own occupation. In Devi Ram v. Ram Kapoor (13), the Delhi High Court held that additional accommodation required for three minor children cannot be rejected on the ground that minor children can be accommodated with elders as the landlord cannot be dictated the way he shall reside nor the mode of division of rooms can be prescribed for each family member. In Madan Mohan Kaphai v. Amar Nath Malhotra (14), facts were that the landlord was 85 years old living in Delhi with his son. The landlord was not having good relations with his son and daughter-in-law and wanted to live in his own house at Ambala. In view of these fact the Punjab & Haryana High Court held that need of the landlord is bonafide and his testimony could not be disbelieved as it is not unusual in modern trend of society that the concept of joint family living is not liked now and grown up children like to live independently. In R.C. Tamrakar and Anr. v. Nidi Lekha (15), it was held that the landlord himself is the best judge of his own requirement and he cannot be compelled to reside with her son.

16. I have considered the rival submissions in the light of the judgments relied upon and the evidence on the record. The facts with regards to accommodation available with the plaintiff and the number of his family members residing there are not in dispute. Now at this time the age of both the grand daughters of the plaintiff comes to respectively 14 & 9 years, The accommodation available with the plaintiff is situated on the ground floor of Bhagat Niwas. The statement of the plaintiff has rightly been relied upon by the Trial Court that the remaining portions of Bhagat Niwas situated on first floor fell to the shares of his wife and two sons and those portions were let out in the year 1993 and thus no other accommodation in Bhagat Niwas was available with the plaintiff when the present suit for eviction was filed in August, 1998. The submissions made by learned counsel for the plaintiff appear to be justified that the plaintiff has no control over the portions of his son Jayesh Dayal residing in America. It is not in dispute that portion belonging to son Jayesh fell vacant in 1997 but in the same year it was let out to other tenant and this portion of Sh. Jayesh Dayal cannot be said to be available to the plaintiff. The plaintiff reiterated in his statement before the Trial Court what was pleaded on the point of reasonable and bonafide requirement. It is not the case of mere desire of the landlord as contended by learned senior counsel Sh. Agarwal. Rather the Trial Court has rightly came to this conclusion that the plaintiff's need has been proved both reasonable and bonafide. The plea taken by the defendant that the plaintiff either wants to let out this house after getting the vacant possession on higher rent or he wants to sell it out is not proved at all. There is no evidence that the plaintiff ever put any pressure upon the defendant to enhance the rent. The submissions in this regard made by learned counsel for the plaintiff appear to be justified that the suit house was let out more than 42 years ago at monthly rent of Rs. 265/- and the rent at the rate of Rs. 2000/- per month is being paid from February, 1995 and this fact in itself is sufficient to show that there was no motive of the plaintiff to get the rent enhanced. According to the statement of the defendant the plaintiff had a conversation with him in the year 1976 for selling this house and still friends of the plaintiff and property dealer come to him. The defendant did not disclose the names of any of the friends of the plaintiff or the property dealer and according to his own statement it is clear that the plaintiff had a talk in this regard in the year 1976 and the present suit was filed in the year 1998. Therefore, the statement of I he defendant on this point is not reliable at all that the plaintiff wanted to sell the suit house. D.W.2 Sh. Ghasi Ram Gupta is an employee of the defendant. At the end of his cross-examination he stated that the plaintiff told him that he is going to America alter selling the suit house and for the last time he met with the plaintiff in the year 1996 and at that time this fact was told by the plaintiff. But even the defendant did not state like that and further there was no occasion of the plaintiff to had such a conversation with D.W.2 Ghasi Ram Gupta. D.W.3 Sh. Shanker Lal is the son-in-law of the defendant, although he denied this suggestion in cross- examination that he has come to support the defendant only on account of being his son-in-law. He also stated that the plaintiff expressed his desire to sell this house for a sum of Rs. 2 lacs in the year 1976 in his presence as well as in the presence of the defendant, but this statement cannot be relied upon as within a period of about 22 years from 1976 to 1998 when the suit was filed no further step was taken in this regard by the plaintiff. D.W.3 has gone to this extent that this conversation took place in the dining hall in the afternoon. His statement was recorded on 30.10.2001 and such statement to remember such conversation after such a long time does not appear to be reliable at all. He further stated that deal of this house for a sum of Rs. 2 lacs was settled but he is not aware as to why the sale deed was not executed. Thus, his statement on this point cannot be relied upon at all. This submission made by learned senior counsel Sh. Agarwal is also not acceptable that in view of the statement of P.W.10 Sh. Brijesh music teacher that he imparts training for music and dance only for one hour in the evening, Pooja room is available with the plaintiff. Further this submission is also not acceptable that the plaintiff at the age of 80 years is unable to do private practice. On the basis of the entire evidence available on the record the Trial Court came to this conclusion and rightly so that the plaintiff has no room for consulting his patients and for that he sits in the Varandah. This statement of the plaintiff was corroborated by P.W.2 Sh. Ganpal Lai, P.W.3 Sh. Dilip Singh, P.W.4 Sh. Tara Singh, P.W.5 V.D. Mathur and P.W.8 Smt. Vimla Dayal who is wife of the plaintiff. It is no ground that the plaintiff after retirement of 25 years and at the age of 80 years cannot carry on private practice. The Trial Court further arrived at this conclusion that relations between the plaintiff's wife and daughter-in- law are not cordial and a' account of playing T.V., coaching of dance and music noisy and uncomfortable atmosphere exists in Bhagat Niwas and thus the plaintiff along with his wife wants to reside separately in the suit house. The findings of the Trial Court on this point are based on evidence available on the record. The statement of the plaintiff in this regard has been corroborated by his brother P.W.5 Sh. V.D. Mathur and his wife P.W.8 Smt. Vimla Dayal and there is nothing unnatural in the statement of the plaintiff as the defendant himself admitted this fact that till 1990 his sons were residing with him in the suit house and thereafter they shifted to their own newly constructed house in C-Scheme over a plot of 800 sq. yards. He further admitted this fact that his wife expired in the year 1996 and he is residing alone in suit house. He categorically admitted this fact that he is not living with his sons as he is not carrying on well with them. According to the statement of the defendant his two sons along with their wives and two sons and one daughter-in all seven family members are residing in newly constructed house in C- Scheme. If the defendant himself at the age of about 80 years cannot live with his sons and grand sons and daughter, how the statement of the plaintiff in this regard can be treated to be unnatural as held by the Hon'ble Supreme Court in Prativa Devi (Smt)'s case (supra), that the landlord is the best judge of his requirement and it is not for the tenant or the Court to say that the landlord needs to be looked after in the old age. According to the judgment in Ram Pratap Sharma's case (supra), the landlord's requirement for separate Pooja room is bonafide requirement as in present day society landlord cannot be compelled to have Pooja room in a dining hall or bed room. The landlord cannot be compelled to squeeze himself and dwell into lesser premises so as to protect the tenant's continued possession in the tenancy premises. In view of the judgment of the Hon'ble Supreme Court in Sarla Ahuja's case (supra), facts like cordial relationship between the landlord and his son and daughter-in-law are not even relevant while in the instant case, there is evidence that the relations between the plaintiff's wife and daughter-in-law are not so cordial and Hon'ble Punjab & Haryana High Court in Madan Mohan Kaphai's case (supra), held that the requirement of the landlord who was 85 years old to live separately from his son and daughter-in-law was found to be reasonable and bonafide and further the Hon'ble Supreme Court also held in R.C. Tamrakar and another's case (supra), that the landlord is the best judge of his own requirement and he cannot be compelled to reside with her son. Thus, in view of the entire discussion made hereinabove, I find no reason to interfere with the findings of the Trial Court on this point.

17. Second aspect on this point relates to comparative hardship. It is not in dispute that the defendant alone is living in the suit house. It is also not in dispute that according to own statement of the defendant his two sons have got double storied house in C-Scheme in plot area of 800 sq. yards. He further admitted that he did not make any search for any other house. Further on the basis of the evidence of the defendant and his witnesses it is well proved that the defendant is a rich man. He is Managing Director or Chairman of a number of private limited companies according to his own statement. According to the statement of D.W.4 Sh. Shambhu Dayal he has been the advocate of the defendant since 1962 and the defendant has engaged 5 or 6 drivers, 4 servants and has got 5 or 6 cars and he has engaged about 25 employees in various companies at Neem Ka Thana. Thus, there is no doubt that the defendant is a well to do person. The plaintiff is a retired Director, Medical and Health Department and is a person of more than 80 years of age and thus keeping in view the entire facts and circumstances as stated hereinabove, the question of comparative hardship was also rightly decided in favour of the plaintiff.

18. As far as the partial eviction is concerned, learned senior counsel Sh. Agarwal submitted that at the most requirement for one room as guest room may be taken to be reasonable and one room in the suit house may be given to the plaintiff. Per contra learned counsel for the plaintiff submitted that only one room would not meet the requirements of the plaintiff. It was also submitted that the suit house consists of only two bed rooms as shown in the site-plan Ex.6 and thus, partial eviction would not serve the purpose of either party. This submission has got merit and the Trial Court having taken into consideration held that the plaintiff needs one guest room, one Pooja room and one room for consultation work. Therefore, the partial eviction of the suit house would not serve the purpose of the plaintiff.

19. Thus, in view of the entire discussion made hereinabove, the decision of the Trial Court on issues No. 1 to 3 is justified.

20. Second Point:-As per Section 13(l)(e)of the Act in case the landlord proves that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord, the landlord would be entitled to decree of eviction. According to learned senior counsel Sh. Agarwal these three expressions deal with three different concepts and apply to different circumstances as held by the Division Bench of Delhi High Court in Hazari Lal and Ram Babu v. Shri Gian Ram and Ors. (16). In sub-letting there should exist the relationship of the landlord and the tenant as between the tenant and his sub-tenant. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. The expression 'parted with possession' undoubtedly postulates the parting with legal possession. Parting with possession means giving possession to persons other than those to whom the possession has been given by the lease and 'the parting with possession' must have been by the tenant. The mere user by other persons is not parting with possession so long as the tenant retains the legal possession himself.

21. In para 13 of the plaint it has been pleaded that the suit house was given on rent only for residential purpose while the defendant without the permission of the landlord has assigned, sub-let or parted with the possession of the suit house to six private limited companies as described in this para. It is also stated that the plaintiff came to know about this fact very recently. Some additional facts came on the record in reply of application filed by the defendant under Order 6 Rules 5 C.P.C. According to better particulars supplied by the plaintiff there was no office of any company in the year 1962 when the suit house was let out. It was also stated that the plaintiff had seen sign- boards of the companies about 15 days prior to filing the present suit and thereafter he made an inquiry from the office of the Registrar of Companies and came to know that these companies were established in the suit house in the years 1966, 1968, 1976, 1977, 1983 and 1985 and the defendant is either Director or Chairman in all these companies.

22. In para 13 of the written statement it was pleaded that at the time of commencement of the tenancy there was no such condition that the suit house would be used only for residential purpose, rather it was let out for both residential and business purposes and the office of Oriental Talc Products Pvt. Ltd. Co. was established since the beginning of the tenancy and no other office of any other company was ever opened in the suit house. It was admitted that in all.these companies stated in para 13 of the plaint the defendant is the Chairman-cum-Managing Director and family business of the defendant is being carried out in these companies.

23. The Trial Court arrived at this conclusion that offices of two companies namely Lucky Minimat Company and Best Chemical Limestone Industries Pvt, Ltd. were established from 1.1.1997 in the garage of the suit premises and the registered office of the third company i.e. Oriental Talc Products Pvt. Ltd. was shifted from the disputed premises to Udaipur in the year 1972. The plaintiff failed to prove this fact that offices of six companies in all were established in a portion of the suit house. A perusal of the oral as well as documentary evidence goes to show that the findings of the Trial Court with regard to establishment of the offices of these three companies in the garage of the suit house do not call for any interference. The plaintiff in his statement though stated that offices of these six companies were opened in the garage but this statement does not find any corroboration from any other witness or the documents. The defendant himself admitted the establishment of offices of three companies in the garage of the suit house. It was admitted by him that offices of two companies Lucky Minimat Company and the Best Chemicals Limestone Co. were transferred from Neem Ka Thana to the suit house w.e.f. 1.1.1997 and the third company namely M/s Oriental'Talc Products Pvt. Ltd. though was established in the garage of the suit house in the year 1967- 1968. Its office was transferred to Udaipur in the year 1972. Ex.47 is the certified copy of form No. 18. It shows that registered office of Lucky Minimat Company was at Neem Ka Thana since 1.9.1976. As per Ex.49 another form No, 18 under the Companies Act, 1956 office of this company was transferred in the suit house w.e.f. 1.1.1997. As per Ex.54 office of the Best Chemical Limestone Co. was established at Neem Ka Thana in the year 1971 and office of this company was shifted to the suit house w.e.f. 1.1.1997 according to Ex.56. Copies of the resolutions for shifting the offices of these two companies have also been produced and proved. According to the document Ex.60 it is also well proved that the office of M/s Oriental Talc Products Ltd. Company was shifted from the suit house to Udaipur w.e.f. 3.3.1972.

24. Now the question arises is as to whether this act of the defendant-tenant amounts to sub-letting According to learned senior counsel Sh. Agarwal it is admitted case that the defendant is the Chairman-cum-Managing Director of these three companies and all these three companies are private limited companies and thus no case of sub-length assignment or parting with possession is made out as the legal posses- sion of the entire suit house was and is with the defendant-tenant. He placed reliance upon Amir Ahmed v. Yusuf (17), wherein the Hon'ble Division Bench of this Court held that where a tenant merely allows another person to use the premises or its part, he cannot be said to have parted with possession of the premises or part of the premises so as to entail the liability of eviction under Section 13 (1) (e) of the Act. Similar view was taken by this Court in Bhomle Ram v. Mahesh Chand and Anr. (18). In Dipak Banerjee v. Smt. Lilabati Chakraborty (19), it was held that to prove sub- letting it is necessary to prove that the alleged sub-tenant is in exclusive possession of the portion of the suit premises and there was no evidence of payment of any rent and acceptance of service in lieu of right to occupy does not amount to acceptance of rent under the Rent Act. In M/s Delhi Stationers and Printers v. Rajendra Kumar (20), while dealing with the provisions of the Act, 1950 it was held that mere occupation by alleged sub-tenant is not sufficient to infer either sub-tenancy or parting with the possession of the rented premises by the tenant without the permission of the landlord. In Hardev v. Jaidev through his legal representatives (21), it was held that in case the members of Hindu jointly family are looking after the business will not mean that they are strangers and it does not amount to parting with possession.

25. Per contra, it was submitted by learned counsel for the plaintiff that it is not the case of business of joint Hindu family or a partnership firm, rather it is an admitted case of the defendant-tenant that he established offices of three private limited companies in the portion of the suit house and the status of the company is independent and it is a separate legal entity and the possession of the companies does not amount to possession of the defendant. He placed reliance upon Kerala State Cooperative Coir Marketing Federation Ltd. v. Santokh Singh Saroya & Ors. (21), wherein it was held that the shop was originally let out to a cooperative society (tenant) which passed on its possession to new society which came into existence as a result of amalgamation and it amounted to sub-letting. In Roop Chand v. Gopi Chand Thelia (23), while dealing with the provisions of the Act, 1950 it was held that the tenant parted with the possession of a portion of the rented premises to a club registered under the Companies Act, it amounts to parting with possession under the Act, 1950. In M/s Cox and Kings Agents Ltd. and Anr. v. Smt. Chander Malhotra (24), the Delhi High Court held that when the premises were let out to a company-the appellant No. I and the business of this company was transferred to another company-the appellant No. 2 and the appellant No. 1 was holding 40% share capital in appellant No. 2-company and one of the directors of both the companies is common, it amounts to a case of sub-letting and parting with the possession of the rented premises by the tenant-company to the second company. In Ram Saran v. Payare Lal and Anr. (25), it was held that the tenant forming a society registered under the Societies Registration Act and as the society has a distinct legal entity, it amounted to sub-letting. In M/s Bharat Sales Ltd. v. Life Insurance Corporation of India (26), it was held that it is difficult for the landlord to prove sub-letting by direct evidence or whether sub-tenant had paid monetary consideration, deal is struck behind the scene and there is no law that payment of consideration should be proved by any affirmative evidence. In Central Warehousing Corporation v. Indersain Goyal (27), the Madras High Court held that the landlord cannot claim eviction for the company as it is the business of the company and not of the landlord and the case of partnership firm is entirely different from the company.

26. I have considered the rival submissions in the light of the judgment relied upon. It is not the case of mere user by other persons as contended by learned senior counsel Sh. Agarwal. In the instant case, the tenant has not permitted another person or the member of his family to use the portion of the suit premises. Rather in view of the judgments relied upon by learned counsel for the plaintiff it.is a clear case of sub-letting and parting with the possession of the portion of the suit house. It is not in dispute that the office of M/s Oriental Talc Products Pvt. Ltd. was shifted in the year 1972-26 years ago before filing the present suit but the offices of two companies namely Lucky Minimat and Best Chemicals were shifted in the suit house w.e.f. 1.1.1997 and thus the possession of a portion of the suit house by these two companies clearly amounts to sub-letting and parting with the possession. The mere fact that the defendant-tenant is Managing Director/Chairman in these companies does not alter the legal preposition as each company is a separate legal entity. Thus, the decision of the Trial Court on this point is justified.

27. Third Point:-Section 13 (1) (c) provides that if the tenant has without the permission of the landlord made or permitted to be made any such construction as in the opinion of the Court has materially altered the premises or is likely to diminish the value thereof, the landlord shall be entitled to a decree of eviction on this ground. In para 12 of the plaint, the plaintiff has given the details of the constructions made by the defendant. It has been pleaded that one tubewell was dug, one Pakka platform was enclosed by raising the walls, three rooms in eastern side and two rooms in southern side and one garage were got constructed by the tenant. The defendant in his written statement admitted that two small rooms in southern side Were constructed and it was also admitted that brick walls were raised over the platform but all this construction work is of temporary nature and can be removed at any time. It was also pleaded that such permission was given by the plaintiff at the time of the tenancy and further he did not raise any objection when this construction took place. It was also pleaded that three rooms in eastern side and the garage were already in existence when this house was given to him on rent.

28. The plaintiff Dr. Pitambar Dayal has exhibited the map of the suit house which is Ex.6. According to his statement, the portion marked with pink colour was let out to the defendant while the construction shown in yellow colour was not existing at that time and the new construction was got done by the defendant without his permission. This fact is not in dispute that construction in the eastern as well as southern side shown in yellow colour in Ex.6 exists in the suit premises. The plaintiff also got exhibited certain documents with regard to this new construction. The oral testimony of the other witnesses on this point is not material. P.W.6 Sh. Rajendra and P.W.7 Sh. Brij Bhushan stated that some new construction was raised by the defendant in the suit house after commencement of the tenancy. D.W.I is the defendant-tenant Sh. Kishan. He admitted that two small rooms in southern side were got constructed by him and he also got the platform enclosed by brick walls but new construction was made without any foundation and is of temporary nature and the plaintiff himself permitted him to raise new construction according to his convenience at the time of the commencement of the tenancy. He was cross-examined with regard to certain documents which are Ex.12 to Ex.15 with regard to new construction and he admitted these documents in in his statement, although he denied this suggestion that entire construction shown in yellow colour in Ex.6 was raised by him without the permission of the landlord and after commencement of the tenancy, D.W.2 Ghasiram Gupta, D.W.3 Shanker Lal and D.W.4 Sh. Shambhu Dayal supported the defendant's statement in this regard.

29. The Trial Court having considered the evidence on this point came to this conclusion that the plaintiff accorded the permission of the tubewell though sub- sequent. It was also held that on account of admission of the defendant himself and on the basis of Ex.12 construction in southern side of the suit house was raised in September, 1993. It was also held that this construction was gone done without the permission of the plaintiff-landlord. It was also found that vide letter Ex.23 dated 2.7.1992 the plaintiff informed the defendant that the defendant would raise no construction or make any alteration in any manner whatsoever without his prior permission in writing and thus this new construction in the southern side was raised without the permission of the plaintiff-landlord. But the Trial Court came to this conclusion that construction of two rooms and third room after raising walls on the platform does not amount to material alterations as this construction was raised without any foundation and it can be removed at any time.

30. In view of the admission of the defendant in the written statement, in his oral testimony and Ex.12 which is an application in prescribed form submitted by the defendant in the name of the plaintiff to the Assessing Authority under Section 15 F of the Rajasthan Lands and Buildings Tax Act, 1964 it is clearly proved, that two rooms for drivers measuring 8ft. x 12ft. Unshed and one kitchen for servants 14ft. x 6ft. in measurements were got constructed by the defendant in September, 1993. On the basis of this information given by the defendant to the Assessing Authority, the concerned inspector conducted survey in August, 1994 and prepared report which is Ex.13. Thereafter, notice Ex.15 was issued in the name of the plaintiff on 20.8.1994 by the Assessing Authority and this notice was received by the defendant and thereafter, the assessment order was passed which is Ex.14. Thus, the admission of the defendant himself vide Ex.12 leaves no room for doubt to hold that at least two rooms each measuring 8ft. x 12ft. one Unshed and one kitchen measuring 14ft. x 6ft. were got constructed by the defendant in September, 1993 and I see no reason to interfere with the findings of the Trial Court this new construction was got done without the permission of the landlord particularly in view of the letter Ex.23 addressed by the plaintiff and its receipt by the defendant is not disputed.

31. Now the important question is as to whether it amounts to material alterations or not? Learned senior counsel appearing for the defendant submitted that the findings of the Trial Court are justified as this new construction was got done without any foundation and it is of temporary nature and can be removed at any time and it has not made any change in character or structure of the suit house. He placed reliance upon Om Prakash v. Amar Singh and Anr. (28), wherein it was held that material alterations means substantial change in character, the form, the front and structure of the accommodation. He also placed reliance upon one judgment of this Court in Bhanu Prakash Sharma v. Smt. Khudeja Khatun and Anr. (29), wherein it was held that tinshed having no doors does not amount to material alteration. In Waryam Singh v. Baldev Singh (30), the Hon'ble Supreme Court while dealing with the provisions of Section 13(2) (Hi) of the E.P. Urban Rent Restriction Act, 1949 held that enclosing of verandah by walls and placing a rolling shutter in front in themselves are not sufficient to justify the inference that value or utility of the premises has been impaired.

32. Per contra, it was submitted by learned counsel for the plaintiff that any construction whether of permanent nature or temporary nature may be removed at any time, therefore, there was no justification for the Trial Court to say that this construction is of a temporary nature and without foundation and can be removed at any time, hence it does not amount to material alteration. It was also contended that . no evidence was adduced on behalf of the defendant-tenant that these new constructions were raised without any foundation and ail this construction is Pakka and without foundation such construction could have not been raised and this new construction still exists after a period of more than ten years. He placed reliance upon Triyugi Narain Mishra v. Dr. (Mrs.) Kala Mehta (31), wherein this Court held that the tenant is liable to eviction even if additions and alterations may not have diminished the value and the construction of brick, cement and lime with R.C.C. sheets is permanent structure. In Ram Singh v. Banarsi Dass (32), Punjab & Haryana High Court held that where the tenant raises two Chhapars, it amounts to change in the very nature of the premises. In Manmohan Das Shah and Ors. v. Bishun Das (33), it was held that material alteration and the material alteration likely to diminish its value-both are independent grounds for eviction and the meaning of material alteration depends on facts and circumstances of each case. In Sitaram Sharan and Anr. v. Johri Mal and Anr. (34), it was held that question whether a construction is permanent or temporary is only a question of the intention of the person making it and it does not affect the question whether the construction materially alters the accommodation or not. The mere fact that the constructions can be removed does not alter the situation as almost any construction- permanent or temporary can be removed. In Prabhu Lal v. Kalu Ram (35), this Court held that closing of verandah on both the sides by Pucca walls of brick amounts to material alterations of property and the premises and the tenant is liable to ejectment on this ground. It was also submitted that the judgment of the Hon'ble Supreme Court delivered in Om Prakash's case (supra), is not applicable as the facts of both the cases are quite distinguishable. In case before the Hon'ble Supreme Court a partition wall of 6ft. height in a hall converting the same into two portions was held to be not material alterations as it can be removed at any time without any damage to the building and such partition wall in the hall did not make any structural change of substantial character either in the form or structure of the accommodation.

33. I have considered the rival submissions and am of the considered view that the decision of the Trial Court with regard to material alterations cannot be justified at all. The constructions of three Pakka rooms as admitted by the defendant in his oral testimony and as stated in Ex. 12 amounts to material alteration as these constructions have entirely changed the form and structure of the building. These rooms were constructed for the residence of his servants etc. and in view of the judgments of this Court and the Hon'ble Supreme Court as cited hereinabove and relied upon by learned counsel for the plaintiff clearly make out a case that these constructions have materi- ally altered the form and the structure of the suit house and the same amounts to material alteration as provided under Section 13 (1) (c) of the Act. Thus, the decision of the Trial Court on this issue cannot be justified. Consequently, this issue is also decided in favour of the plaintiff-landlord.

34. Fourth Point:- It was submitted by learned senior counsel Sh. Agarwal that the office of Oriental Talc Products Pvt. Ltd. Co. was established in the garage of the suit house in the year 1967 and offices of Best Chemical Company and Lucky Minimat Company were established in January, 1997 according to the plaintiff-landlord himself and no objection was raised by him prior to filing the present suit, hence it amounts to acquiescene and waiver. It was also contended that even according to the plaintiff three rooms in southern side of the suit house were constructed in September, 1993 and no objection was raised by him before filing the present suit, hence it also amounts to acquiescence and waiver and thus the plaintiff is estopped in seeking the eviction on these two grounds. He placed reliance upon Babulal v. Rajendra Singh & Ors. (36), Mahabir Singh v. Anant Ram and Ors. (37), Reoti Pershad v. Ajai Pal Singh and Ors. (38), and A.S. Sulochana v. C. Dharmalingam (39).

35. Per contra, learned counsel for the plaintiff submitted that no case of acquiescence or waiver is made out. He placed reliance upon Prakash Chandra v. Bhajan Singh (40), Pulin Behari Lal v. Mahadeo Dutte and Ors. (41), and Ram Saran's case (supra).

36. I have considered the rival submissions in the light of the judgments relied upon. Having considered the judgments of Allahabad High Court delivered in Mahabir Singh and Reoti Pershad's case (both supra), this Court in Babulal's case (supra), held in second appeal that the plaintiff received the rent from the defendant No. 3 regularly and fact of living of the defendants No. I &2 at different places and the defendant No. 3 in the suit premises was in the knowledge of the plaintiff. The appellant raised the pleas in written statement with the intention that the defendant No. 3 is not a sub-tenant and is living as a tenant. In view of these facts and the fact that no issue was framed the judgment and decree were set aside and the case was remanded back to the Trial Court to decide afresh after framing the appropriate issue of acquiescence. In earlier judgment of this Court delivered in Prakash Chandra's case (supra), it was held that the premises were let out for residential purpose and the tenant, started using for advertisement service business without the consent of the landlord, hence it was change of user from residential to non- residential. No objection was raised by the landlord for a number of years. It was held that suit for eviction is not barred by estoppel, acquiescence or waiver. Taking into consideration the various judgments of the Hon'ble Supreme Court it was held that in all cases of Rent Control Acts which are special Acts mere acquiescence, implied consent, waiver or estoppel would not entitle the. Court to pass an order which is not in keeping with the provisions.of Rent Control Act unless it is alleged and proved by a tenant thatl the landlord had given written consent Tor change of user inconsistent with the purpose for which he was admitted to the tenancy. This judgment of this Court was not referred in the judgment delivered in Babulal's case (supra). On the question of unlawful sub-letting in view of the provisions of Section 10 (2) (ii) (a) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 the Hon'ble Supreme Court in A.S. Sulochana's case (supra), on the facts that for as many as 18 years no objection was raised by the landlord against sub-letting and no action was taken for possession during the said period prior to institution of the suit in 1970 and the sub-tenant was openly in occupation of a part of the rented premises during the said period, .held that nothing was on the record to show that the sub-letting was unlawful and the tenant could not be evicted on this ground, The above judgment delivered in A.S. Sulochana's case (supra), was considered and distinguished in a subsequent judgment by the Hon'ble Supreme Court in Pulin Beharl Lai's case (supra), wherein it was held that mere knowledge and/or acceptance of rent cannot defeat ihe landlord's right to get a decree for ejectment on the ground of sub-letting. If the view was contended on behalf of the appellant is accepted the provisions of West Bengal Premises Tenancy, 1956 would become nugatory. There is a clear mandate in Section 13 (1) (a) that the protection against eviction to the tenant shall not be available in case the tenant transfers, assigns or sub-lets in whole or in part the premises held by him without the previous consent in writing of the landlord. With regard to decision in A.S. Sulochana's case (supra), the Hon'ble Supreme Court in para 5 of its judgment delivered in Pulin Behari Lai's case (supra), observed as under:-

'5. We find no force in the above contention. The above case relied on by learned counsel for the appellant is altogether distinguishable. In that case the relevant provision for consideration was Section 10 (2) (ii) (a) of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960. The undisputed facts in that case as observed in the Judgment were that the father of the appellant landlord had granted a lease in favour of the father of the respondent tenant prior to 1952. The father of the appellant as also the father of respondent both had died and respondent was accepted as a tenant upon the death of his father in 1968. The suit for eviction on the ground of unlawful sub- letting was filed in 1970 by the appellant who had inherited the properly from her father. Admittedly, neither the appellant nor the respondent had any personal knowledge about the terms and conditions of the lease nor they had any personal knowledge regarding the circumstances in which the father of the respondent tenant had created a sub-tenancy way back in 1952, 18 years before the institution of the suit, Neither the appellant nor respondent had any personal knowledge as to whether or not the sub-tenancy was created with the written consent of the landlord 18 years back in 1952. On these facts it was held that there was nothing on record to show that the sub-letting which was made 18 years before the institution of the suit was in violation of the relevant provisions of law. There was no evidence direct or circumstantial on the basis of which it could be said that the lease did not confer on the father of the respondent the right to create a sub-tenancy, or that it was done without written consent of the then landlord that is to say, the father of the appellant, Thus in the above case the plaintiff landlord had inherited the property from her father and had brought a suit for eviction on the ground of sub-letting which was created 18 years prior to the suit. This Court held that the flouting of the law, the sin under the Rent Act must be the sin of the tenant . sought to be evicted and not that of his father or predecessor in Interest. Respondent inherited the tenancy, not the sin, if any of his father. The law in its wisdom seeks to punish the guilty who commits the sin and not his son who is innocent of the rent law offence. The above case is further distinguishable because the sub-tenancy was created in 1952 long before the Act which came into force in 1960.'

37. In the instant case, it has been proved that offices of two companies were established in a portion of the suit house in January, 1997 and the present suit for eviction was filed in August, 1998. It has also been found proved that the defendant- tenant constructed .three rooms in the southern side of the suit house in September, 1993 without the permission of the landlord. Therefore, the mere facts that the plaintiff-landlord received the rent in the name of the company M/s Oriental Talki Products Pvt. Ltd. and merely on account of omission in raising any objection when the additional construction was raised does not amount to acquiescence or waiver and estoppel. Waiver is a question of fact which depends on the facts and circumstances of each case. In the case of waiver of any provisions of the statute, it is necessary to prove that there was conscious relinquishment of the advantage of such provisions of the statute. In the case like the present one, it was necessary for the defendant-tenant to prove that the landlord accepted the rent being fully conscious that by this act he was relinquishing the right of eviction available to him on the ground of sub-letting. The Rent Act is for the protection of the rights of the tenant but at the same time it does not permit sub-letting and material alterations by a tenant without the consent of the landlord and these relevant provisions of law on these points can only be negatived by an of conscious relinquishment of such right by the landlord. The Hon'bie Supreme Court in Ram Saran's case (supra) held that in case the tenant forms a society registered under the Societies Registration Act and the tenant is controlling the business of the society as President, it amounts to sub-letting and mere knowledge of the landlord about the occupation of tenanted premises by registered society and acceptance of rent from tenant in the name of the society will not create a lawful sub-tenancy. Thus, in view of the clear findings of the Hon'ble Supreme Court in Pulin Behari Lal and Ram Saran's case (both supra), this point is also decided against the appellant-tenant.

38. Consequently, while allowing the cross-objections this appeal is hereby dismissed with costs.