JUDGMENT
Ranjit Singh, J.
1. The landlord and tenant, distantly related to each other, are in second round of litigation before this Court. They are contesting over a tenancy of a piece of land measuring 80 x 25 yards. It may not be very convenient to notice that the rent application is of 1978 and was decided on 26.7.1985 by the Rent Controller, Amritsar. In the present revision, the status of the parties has reversed. The finding of the Rent Controller in favour of the present respondent was. reversed by the Appellate Authority on 2.5.1986, which he impugned by filing Civil Revision No. 2459 of 1986. The said revision petition was partly allowed by this Court on 4.8.2004, restoring the finding of the Rent Controller on issue Nos. 1, 2 and 4 by holding that relationship of a landlord and tenant between the parties was not proved on record and the finding of a Rent Controller on these issues had been wrongly reversed by the lower Appellate Authority. Since issue No. 6 concerning the ejectment of the petitioners had been reversed merely as a sequel to the findings returned on issue Nos. 1 and 2 and had not been examined by the Appellate Authority on merits, this Court had remanded the case back to the Appellate Authority to record its finding on issue No. 6. This time, however, the Appellate Authority has up-held the finding of the Rent Controller on issue No. 6 as well and has directed ejectment of the petitioners from the demised property. Hence, the second round at the instance of the petitioners to impugn the said finding over again.
2. The facts, as would emerge from the pleadings, were noticed in detail while disposing of Civil Revision No. 2459 of 1986 but would need a mention here now to decide the challenge raised by the petitioners against the fresh finding returned by the Appellate Authority.
3. Respondent-landlord had sought eviction of Nand Kishore, the proprietor of Jag-damba Tea Factory, from a portion of the building situated in Khasra No. 2418, outside Ghee Mandi Gate, Bagh Raja Ralia Ram, Amritsar. The eviction was sought on two grounds i.e. non-payment of rent since 1.1.1974 and on the ground of unauthorised addition and alteration having been made in the demised premises, which according to the respondent had damaged the property and had materially diminished its value.
4. Hari Chand and Maharaj Chand originally owned the property in dispute, which was a vacant piece of land, rectangular in shape and measuring 80 x 25 yards. This property was leased to Seth Radha Kishan, father of respondent Parshottam Kishan on 6.8.1935 for 50 years at an annual rate of Rs. 320/-. Lessees was given right to raise construction on the said plot and also to sublet it. Seth Radha Kishan, as such, had raised construction on the land in the form of one shed alongwith office room, which was then sublet to the present petitioners, Jagdamba Tea Factory through Nand Kishore who was none other than his nephew (brother’s son) on rent of Rs. 200/- per month. The tenancy was oral and was accompanied by delivery of possession. Seth Radha Kishan died on 12.4.1972, learning behind respondent, Parshotam Lal, as his only son as his legal heir. He had filed the present eviction petition, as already noticed.
5. The present petitioners contested the claim of the respondent. The basic plea raised was that there was no relationship of landlord and tenant between the parties and, thus, respondent Parshotam Kishan had no locus standi to file the eviction petition against the petitioners. The case set-up by the petitioners was that Nand Kishore was a direct tenant under the original owner w.e.f. 1.2.1977 through a duly executed rent note in his favour by owner Maharaj Chand. Nand Kishore also denied if he had paid any rent-either to Radha Kishan or his son Parshotam Kishan at any point of time. On the basis of respective stands of the parties the Rent Controller framed the following issues:
1. Whether there is relationship of landlord and tenant between the parties and the applicant has got locus-standi to file the application? OPA
2. Whether there was a relationship of landlord and tenant between Seth Radha Kishan and respondent?
3. Whether the application is bad for non-joinder of necessary parties? OPR
4. Whether the Court has got jurisdiction to hear this petition? OPA
5. Whether requisite particulars of the lease deed have not been furnished by the applicant. If so, to what effect? OPR
6. Whether the respondent is liable to ejectment on the grounds as mentioned in para Nos. 6 and 7 of the application? OPA
6A. Whether no notice of termination of tenancy was necessary before filing of the ejectment application? OPA
6B. Whether the petitioner is a lessee in the land described in para No. 2 of the petition? OPA
7. Relief.
6. Initially, only 6 issues had been framed whereas issues at 6A and 6B were subsequently framed. issue No. 1, 2, 4, 6, 6A and 6B were decided by the Rent Controller in favour of the respondent-land lord whereas Issue No. 3 and 5 were decided against the tenant-petitioners. The Rent Controller accordingly directed eviction of the petitioners on 26.7.1985. This order was taken in appeal, which was allowed on 2.5.1986 and the finding retuned by the Rent Controller were reversed. The Appellate Authority accepted the contention raised by the petitioners that Nand Kishore was a direct tenant under the original owner Maharaj Chand and was not tenant under Seth Radha Kishan. It is accordingly held that Parshotam Kishan, respondent, was not entitled to file eviction petition against Nand Kishore. Since the relationship of landlord and tenant has not been established between the parties, as a necessary consequence, it was held that there was no question of the petitioners being in any arrears of rent. This finding of the Appellate Authority was challenged before this Court through Civil Revision No. 2459 of 1986, which was, as already noticed, was accepted and the case remanded back to the Appellate Authority for deciding issue No. 6 afresh.
7. It may be noticed that the petitioners did not challenge the decision of this Court on Issue Nos. l, 2 and 4 while deciding Civil Revision No. 2459 of 1986. Thus, these findings have acquired finality. Accordingly, there is no dispute between the parties about the relationship of landlord and a tenant and about the locus standi of the respondent in filing the eviction petition. The only issue for which the case was remanded back to the Appellate Authority was to see if the petitioners is liable to ejectment on the grounds as mentioned in Paras 6 ad 7 of the application. In para 6 of the petition, the respondent-landlord had sought ejectment of the petitioners-tenant on the ground that he had not paid rent w.e.f. 1.1.1974. The Rent Controller had held that the rent was due w.e.f. 1.4.1975 and not from 1.1.1974 besides finding that the rate of rent was Rs. 80/-and not Rs. 200/- as claimed by the respondent-landlord. During the resumed hearing of the appeal on these issues, the respondent contested the finding returned by the Rent Controller on the rate of rent as well; which was allowed.
8. While challenging the finding returned by the Rent Controller, it is pointed out that the Court of Rent Controller has found that the rent was paid upto to 31.3.1975 on the basis of income-tax record, which is factually incorrect. Referring to the deposition in this regard, it was submitted before the Appellate Authority that in the income-tax record, the rent was only shown as due and not as paid. Finding force in this contention raised on behalf of the respondent, it is held that the entries as proved only showed that the claim made was on account of arrears of rent to the extent of Rs. 9607- for the year 1974-75 and this amount had been claimed as loss of rent arrears. This amount is shown due on 31.3.1975. Neither there is any evidence to show that the payment had actually been made nor amount due is shown paid on that score. The Appellate Authority has, thus, held that it can not be said that the arrears had been paid upto 31.3.1975. It is accordingly found that the rent due was w.e.f. 1.1.1974, as claimed by the respondent-landlord.
9. Coming on to the rate of rent, the Appellate Authority has noticed that finding that the rate of rent was Rs. 80/- per month is simply on the basis of a returned filed by the petitioners before the Income-tax Authority, where he had claimed rent as Rs. 960/- per annum. It has rightly been noticed that there is no lease deed between the parties nor any receipt has been produced and in this background, the rate of rent could well be determined on the basis of a tax register, which was the next best evidence available. The entries in the house-tax register in the absence of any cogent evidence otherwise available on record could very well be taken into consideration for determining the rate of rent. The support in this regard can be had from a law laid down in Gurinder Singh and Ors. v. Kundan Lal 2005(2) C.C.C. 128. As per the entries in the municipal record i.e. the house tax register, the rate of rent is Rs. 200/- per month. Surender Kumar, Bill Clerk, in the House Tax Department examined as AW 12, deposed that the petitioners-Company was tenant at the rate of Rs. 200/- per month. Accordingly, the Appellate Authority came to conclude that the rate of rent is Rs. 200/- and set-aside the finding of the Rent Controller in this regard.
10. Proceeding further, the Appellate Authority found that the rent had not been tendered on the first date of hearing and relationship of landlord and tenant having now been established, the allegations of arrears of rent due would stand proved, leading to eviction of the petitioners. Of course, the petitioners made a strong plea that the rent deposited under the order of the Court should be taken as tender of arrears of rent, which contention has been repelled by the Appellate Authority. The petitioners was accordingly not granted any opportunity to make a tender of rent, leading to passing of the impugned order of eviction.
11. The Appellate Authority has also held against the petitioners on the ground of unauthorised addition and alteration having been carried out in the demised premises. The petitioners had set up furnaces in the Court yard and water tank between the office and the shed, which according to the respondent landlord are likely to materially impair the value and utility of the premises. It is stated that the alterations have also been done without the consent of the landlord. In view of the nature of stand taken by the petitioners, the allegation of addition or alteration were not seriously disputed. According to the petitioners, the respondent landlord had no concern with the property and it was further pleaded that these additions/alterations were done with the express consent of the owner, whose tenant the petitioners claimed himself to be. Obviously, the petitioners had conceded that the addition and alteration had been carried out but were with the consent of the original owner. The petitioners, as such, was left with limited defence to urge that the additions and alterations were of such a nature that they would not show that the value of the properly or its utility has in any manner been impaired. The Appellate Authority, however, differed with the contention made by the petitioners and held that the additions and alterations as done were bound to diminish the value and utility of the demised premises and this issue was accordingly decided against the petitioners.
12. Mr. R.K. Chhibber, learned senior counsel appearing for the petitioners, would first contend that the Appellate Authority is not justified in declining the prayer of the petitioners for granting them permission to tender rent. His plea is that the petitioners was under a bonafide belief that he is not tenant under the respondent-landlord and hence, was justified in not tendering the rent as required. According to the counsel, the finding returned by the earlier Appellate Authority would stand in support of his submission that he could hold this belief bonafidely that the respondent is not his landlord. He accordingly pleads that the present Appellate Authority is not alive to this peculiar situation, which normally may not otherwise exist in a case. He would also contest the approach adopted by the Appellate Authority in deciding the issue relating to rate of rent. The learned Counsel has also challenged the finding returned by the Appellate Authority regarding the material impairment of the demised premises. According to the counsel, even the respondent-landlord has not given evidence to the effect that additions and alterations had impaired the value and utility of the demises premises. The counsel would say that the finding by the appellate Authority in this regard is purely conjectural and, thus, can not be sustainable.
13. Mr. M.L. Sarin, learned senior counsel representing the respondent-landlord, would equally oppose all the submissions made on behalf of the petitioners-tenant, by making reference to the limited jurisdiction that this Court is to exercise in such like matters. The counsel has referred to various judgments to urge that the petitioner have rightly been declined permission to tender rent since he had denied the relationship of landlord and tenant and, thus, took the calculated risk of being evicted by not tendering the arrears of rent while denying the relationship of landlord and a tenant. In fact, Mr. Sarin was seen raising a grouse that the matter was not required to be remanded back to the Appellate Authority for deciding this issue, which has made the present rent petition to pend for decision for another four years. The learned Counsel has also referred to various judgments to say that the additions and alterations as done by the petitioners were certainly led to impairing the value of the demised premises which were let out as a vacant plot.
14. I have considered the respective submissions made by learned senior counsel representing the parties. I am not inclined to accept the view canvassed by counsel for the petitioners. Once the relationship of landlord and tenant has been established between the parties and the same is not challenged, the necessary consequences on account of non-payment of arrears of rent has to follow. The desperate attempt by the petitioner to say that he was required to be given a chance to deposit the arrears of rent would show the extent of calculated risk he took and failed in that regard. The counsel has relied upon Som Dutt and Ors. v. Jagdish Ram (a) Jagdish Rai (2006-3)144 P.L.R. 163 to say that the entries in the municipal house-tax assessment register is not a conclusive evidence. This observation made by this Court appears in a different context. This was a case where other evidence was also available and had been appreciated to return a finding that the rate of rent is Rs. 70/- per month. The plea was that rate of rent is Rs. 185/-as per the entries in the municipal house tax register, which was canvassed as a reason to interfere with the finding recorded by the Court in regard to rate of rent. In this context, it is observed by this Court that entries in the house tax register are not conclusive about the rate of rent and declined to interfere by observing that the entire evidence had been appreciated by the Courts to come to a conclusion that the rate of rent was Rs. 70/-per month. No such consideration arises in the present case. Here there is no evidence in regard to rate of rent except for the oral assertions made by the parties. There is no written rent agreement, tenancy being admittedly oral. In this context, the evidentiary value of the entries in the house tax register is required to be appreciated. It may not otherwise be conclusive evidence in regard to rate of rent but in the present case it is the only evidence on record, which is neutral and as such, has been rightly relied upon by the appeU late Authority. Such a course was adopted by this Court in the case of Gurinder Singh (supra). In this case, in the absence of a rent note or a rent receipt, entries in the house tax assessment register was held rightly relied upon to determine the rate of rent in this case.
15. The learned Counsel has then referred to the case of Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and Ors. (2002-2) 131 P.L.R. 370 (S.C.) : A.1.R. 2002 S.C. 2004 in support of his contention that an opportunity to deposit the rent was required to be extended to the petitioners. I am afraid that ratio of Rakesh Wadhawan’s case (supra) would not come to support the stand of the petitioners. This aspect has been considered on the basis of law laid down in Rakesh Wadhawan’s case (supra) and number of other cases subsequently. Some of these cases have even been referred to by the counsel for the petitioners. This Court in Devinder Singh Puri v. B.N. Rampal (2004-3)138 P.L.R. 591 has held that where the tenant denies relationship of landlord and tenant, in such cases Rent Controller is not required to draw a provisional order of assessment of rent and give an opportunity to make payments of arrears of rent. This has been so held by considering the ratio of law laid down in Rakesh’s Wadhawan’s case (supra) as can be seen from the following:
10. It is also well-settled that in cases where the tenant raises dispute with regard to the status of his landlord and alleges that intact the respondent is not his landlord then he would obviously be not required to make any payment of rent. In such circumstances he cannot expect the Rent Controller to first draw a provisional order of assessment and then claim an opportunity to make payment of arrears of rent. In other words, the judgment of the Supreme Court in the case of Rakesh Wadhawan v. Jagdamba Industrial Corporation and Ors. (2002-2)131 P.L.R. 370 (S.C.) : , interpreting Section 13(2)(i) of the Act would not be applicable. This Court has taken the afore-mentioned view in the case of Rama Nand Shastri v. Gian Singh 2003(1) R.C.R. 734 (P&H). Therefore, the plea which could have been raised on the basis of the judgment of the Supreme Court in Rakesh Wadhawan’s case (supra) would not be available to the tenant-petitioner in the instant case.
16. Mr. Sarin has also referred to number of judgments in support of the proposition that in such an eventuality the Rent Controller was not under any obligation to assess the provisional rent as the relationship of landlord and tenant was denied. He would refer to the case of Hukma Devi v. Bhagwan Dass (2003-2)134 P.L.R. 371, Raghubir Singh v. Sansar Chand 2004(2) R.C.R. 670 and Jagdish Singh v. Manohar Singh (2004-3)138 P.L.R. 78. Thus, in this view of the law, as would emerge from the judgments as noticed above, the plea of the petitioners for grant of opportunity to deposit the arrears of rent or that the deposit of rent by him under the orders of the Courts be taken as a valid deposit can not be accepted.
17. In the course of his submissions, Mr. Sarin has also touched upon the aspect of jurisdiction, which is exercised by this Court, while dealing with the petitions arising under the Rent Act. He would, thus, co-relate this aspect with the scope of the interference in the finding of fact recorded by the Courts below that alterations and additions, which have been admitted by the petitioner-tenant need not be re-appreciated while exercising revisional jurisdiction as that course may not be permissible under law. Both the sides have also referred to certain judgments in regard to the import of the words “to impair materially” as used in the Rent Act to support their respective submissions made in this regard.
Mr. Sarin has referred to the case of Shiv Lal v. Sat Parkash and Anr. to say that revisional jurisdiction of the High Court can not be used to act as a third Appellate Court and the Court is not entitled to reverse concurrent finding of fact. He has also referred to Dev Kumar (died) through L.Rs v. Smt. Swaran Lata and Ors. to say that the revisional power of the High Court can not be equated with the appellate jurisdiction. It is further observed in this case that in the absence of perversity in the matter of appreciation of evidence or unreasonable conclusion by the Appellate Authority, the High Court can not interfere in the same.
18. Mr. Chhibbar, however, would refer to Satyanarayan Laxminarayan v. Mallikar-jun Bhavanaap A.I.R. I960 Supreme Court 137, Achulananda Baidya v. Prafullya Kumar Uayen , S.J. Ebenezer v. Velayudhan and Ors. 12 1998(1) R.C.R. 138 (S.C.), Mohan Amba Prasad v. Bhaskar Balwant Aher 2002(2) S.C.C. 558, A. Venkatasubbiah Naidu v. S. Chellappan and Ors. 14 , Sugarhai M. Siddiq v. Ramesh S. Hankare , Surya Dev Rai v. Ram Chander Rai and Ors. in support of his submissions made in regard to jurisdiction exercised by the High Court under Article 227 vis-a-vis Section 115 CPC.
19. The counsel have further made reference to some judgments to show that the alteration or addition done in the case would either lead to impairing the value or would not be so as is respectively canvassed by them. Mr. Sarin in this regard refers to the case of Gurbachan Singh and Ors. v. Shivalak Rubber Industries and Ors. (1996-2) 113 P.L.R. 694 to urge that expression to impair materially in common parlance would mean to diminish in quality, strength or value substantially. According to the counsel the expression does not have a fixed meaning but a relative term having different meanings in different contexts and the impairing of the building is to be judged from the point of a view of the landlord and not of a tenant or anyone else. The counsel also relies upon Vipin Kumar v. Roshan Lal Anand to say that where tenant had constructed a wall in the Verandah and put up to door, the value and utility of the building was found materially effected.
20. On the other hand, Mr. Chhibbar would refer to the case of Om v. Amar Singh and Ors. to point out that the Act does not define either the word “materially” or the word “altered” and, thus, the meaning has to be understood as given in the dictionary. He would accordingly submit that expression “materially” alternated means substantial change in the character from the structure of the building without destroying its identity. As held by the Hon’ble Supreme Court in this case, it means that nature and character of change or alteration of the building must be a essential and important nature. In this regard, the counsel has placed reliance on Brijendra Nath Bhar-gava and Anr. v. Shri Harsh Wardhan and Ors. . In this case, the tenant had constructed wooden cabin inside the showroom, which could not be said to be leading to material alteration in the premises in question. The counsel has also relied upon Charan Singh v. Shrimati Ananti and Ors. (1966)68 P.L.R. 780 to say that small alteration by the tenant for his convenience is not ground for his eviction on the ground of impairing materially the value and utility of the building. Reference is further made to the case of Waryam Singh v. Baldev Singh (2003-1)135 P.L.R. 154, where alteration by enclosing the Verandah was found to have increased the utility of the shop. Another judgment relied upon by the counsel is in the case of Svraj Bhan v. Dewan Chand and Ors. (2006-2)143 P.L.R. 611, where the tank in open area for the purpose of utilisation of the building was constructed and it is held that by merely putting a water storage tank, which is for the purpose of utilising the building, it can not be said that the tenant has impaired the value and utility of the building.
21. In the present case, admittedly the vacant land was leased on rent. It is conceded that a water tank has been constructed. It is also on record that furnaces had been set up in the court yard and a water tank had been constructed between the office and the shed. The petitioners while appearing as a witness admitted in his cross-examination that one shed, one room, one office, one godown had been constructed by him at the site. This has been done without getting it sanctioned from the Municipal Committee.
22. The tenant can not be permitted to use the property in the manner he likes. It has been recorded as a finding of fact by both the courts that this construction carried out by the tenant leads to impairing the value of the demised property materially. The power of revision, as exercised by this Court, can not be equated to re-appreciate the evidence analyzed by both the Courts concurrently to come to a conclusion that alteration and addition led to materially impairing the value of the property. As observed by the Hon’ble Supreme Court in Gurbachan Singh’s case (supra) that the impairment of the building is to be judged from the point of view of the landlord and not of the tenant or anyone else. A vacant land, which was leased to the petitioner-tenant, has been constructed to make a godown, room, water tank and even furnaces. From the point of view of the landlord, it would certainly amount to material impairment. It is not a case where the water tank has been constructed for putting water storage for use of building that it can be said that the same would not materially impair the value of the property. The ratio of Waryam Singh’s case (supra) would also not advance the case of the petitioners as there only verandah has been enclosed and it was found that there was no proof that the free flow of light or air was stopped. The ratio in this case, as such, can not help the cause of the petitioners. The alteration done by the petitioners can not also be termed as a small one or for his convenience to bring his case at par with the ratio of law laid down in Charan Singh’s case (supra). Similarly, the alteration or addition noticed in the case of Brijender Nath Bhargwa (supra) is not common with the facts in the present case to lend any support to the cause of the petitioners. The finding of the Courts regarding constructions certainly is a finding of fact and whether these would materially alter the accommodation is a mixed question of fact and law. As observed by the Supreme Court in the case of Parkash (supra), this is to be determined on the application of correct principle. The alterations done by the petitioners are such, which can not be removed. These are structural changes where water tank has been constructed, sheds have been made and office constructed besides putting furnaces. It is not possible to hold that this would not lead to material impairment of the utility and value of the property from the point of a view of the landlord. This again, being a mixed question of fact and law, has rightly been assessed and appreciated by the two courts to arrive at a concurrent finding which would dissuade this Court to interfere in the same in exercise of the revisional jurisdiction.
The revision, as such, accordingly is dismissed.