JUDGMENT
Goyal, J.
1. The plaintiff appellant has preferred this second appeal against the judgment and decree dated 21.7.1984, whereby Civil Judge, Ajmer, set-aside the judgment and decree of eviction passed by Additional Musnif No. 1, Ajmer City, Ajmer, on 31.7.1979.
2. The relevant facts in brief are that the plaintiff as receiver instituted a suit on 2.12.1970, for eviction with the averments that the suit premises situated in Ajmer was let out for residential purposes to the defendant in 1957 on monthly rent of Rs. 60/-. The defendant without the consent of the plaintiff got constructed more than one poultry farm by raising permanent structure inspite of the protests made by the plaintiff. This the defendant is making commercial use of the premises which is inconsistent with the purpose for which she was admitted to the tenancy. The defendant has also committed default in payment of rent.
3. The defendant vide written statement while admitting the tenancy denied the description of the premises let out and also denied the grounds of eviction.
4. On the basis of the pleadings, the trial court framed following issues:-
” 1. Whether defendant is tenant of the plaintiff in respect of premises detailed in para 11 of the written statement?
2. Whether the premises were let out to defendant for residential purposes only ? If so to what effect?
3. Whether they tenancy starts from 1st of every English Calendar month?
4. Whether the defendant has committed default?
5. Whether notice dated 11th August 1970 is illegal?
6. Whether the plaintiff has waived his objection if any by continued acceptance of rent without a demur after knowledge of construction and whether doctrine of estoppel, waiver and acquiescence are applicable?
7. Whether the alleged construction has materially altered the premises or is likely to diminish the value thereof?
8. Whether verification of the plaint is not in accordance with law? If so, what is its effect?
9. Relief?
5. Having recorded the evidence of the parties the trial court vide judgment dated 31.7.1979, decided all the issues in favour of the plaintiff and by giving benefit or first default passed decree of eviction. The first appeal preferred by the tenant was allowed vide impugned judgment. The findings of the trial court on Issue Nos. 3, 4, 5 and 8 were not challenged. While affirming the findings on Issue Nos. 1 and 6, the findings on Issue No. 2 and 7 regarding commercial use and material alteration were set- aside and thus the suit for eviction was dismissed.
6. The following questions of law were framed by this Court on 12.8.1985:-
“(1) Whether the lower appellate court could ignore the clear and categorical admission of defendant in her written statement?
(2) Whether the lower appellate court could mark a totally new case neither pleaded in the written statement nor averred in the oral statement before the court?
(3) Whether and, while granting a decree for eviction of the premises, the court can ignore the occupation of the appurtenant lands and allow the tenant to remain in occupation of such appurtenant land and grant a decree only of the disputed premises?
7. At the very out-set learned counsel for the plaintiff appellant did not press first two questions. Regarding third substantial question of law, two submissions were made on behalf of the plaintiff appellant. The first is that in first appeal the findings of the trial court on the point of material alteration were set-aside only on the ground that poultry farms were established over the open land which was not the part of rented premises.
8. Section 3(v) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) defines the term “Premises” as under:-
“Premises” means
“(v)(a) any land not being used for agricultural purposes; and
(v)(b) any building or part of a building other than a farm building, lei or intended to be let for use as a residence or for commercial use or for any other purpose, including:-
(v)(b)(1) the gardens, grounds, godowns, garages and out house, if any, appurtenant to such building or part,
(v)(b)(ii) any furniture supplied by the landlord for use in such building or part.
(v)(b)(iii) any fitting affixed to, and amenities’ provided in, such building or part for the more beneficial enjoyment there of, and
(v)(b)(iv) any land appurtenant to and let with any such building or part, put does not, includes a room or other accommodation in a hotel, dharamshala, inn, sarai, lodging house, boarding house or hotel.”
9. According to learned counsel for the appellant, the building includes the grounds as well as the land appurtenant to the premises let out to the tenant. He placed reliance upon LRS. of late Jaswant Mal v. Kailash Narayan, 2001(5) WLC (Raj.) 31, Shridhar Govind Natu v. Ankush Krishnaji Sawant, AIR 1985 Bombay 267, Md. Ahmed Amelia and Ors. v. Nirmal Chandra Roy and Ors., AIR 1978 Calcutta 312, Chapsibhai Dhanjibhai Danad v. Purushottam, 1971(2) Supreme Court Cases 205. On behalf of the respondent-defendant it was submitted that the findings of the first appellate court on this point are not perverse at all and the construction made by the tenant on the land not on the rent can be no ground of eviction and the first appellate court rightly decided this point placing reliance upon Banarasi Das v. Rameshwar Das, 1980 RLW 476.
10. The first appellate court placing reliance upon the judgment of this Court delivered in Banarasi Das’s case (supra) held that since construction of poultry farms was on the land which was not on rent, hence decree of eviction cannot be passed in favour of the landlord as such construction refers to construction made in the demised premises. This judgment was considered by this Court and distinguished in LRS. of Late Jaswant Mal’s case (supra), and it was held that material alteration over piece of land adjacent to the premises on rent would afford this as a ground of eviction. The Bombay High Court in Shridhar Govind Nathu’s case (supra) held that erection of bathroom on appurtenant gallery not let out to the tenant can be considered as ground of eviction. The Calcutta High Court in Ramendra Mohan Datta’s case (supra) held that when a tenant encroaches on land outside his tenancy but belonging to his landlord the cannot acquire absolute title thereto by adverse possession but obtain only that right of tenancy. The Hon’ble Supreme Court in Chapsibhai’s case (supra) held that if any accession is made to the leased property during the continuance of a lease, such accession is deemed to be comprised in the lease. In view of the provisions of the Act and the judgments relied upon on behalf of the appellant, it is clear that the construction made by the tenant if found to be material on the land appurtenant to the premises let-out would afford a ground of eviction and thus the conclusions arrived at by the first appellate court cannot be legally upheld.
11. The next point for consideration is as to whether the construction of poultry forms amounts to material alteration?
12. Section 13(1)(c) provides that where the tenant has without the permissions 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. The trial court while deciding Issue No. 7 held that the defendant tenant constructed a number of poultry farms in a large area of compound, which amounts to material alteration. In first appeal while dealing with this issue, is was held that since poultry farms have not been constructed in any part of the rented premises, the decree of eviction could not have been passed. But the first appellate court did not record any finding as to whether construction of poultry farms amounts to material alteration or not?
13. Since both parties have led evidence on this point, this court may consider whether the construction of poultry farms amounts to material alteration in the instant case. Learned counsel for the appellant contended that poultry farms were .constructed over large area of compound and it has materially altered the front and form of the area on rent and thus it amounts to material alteration. He placed reliance upon Badri Narain Tak v. Shyam Narain, AIR 1982 Rajasthan 287, wherein it was held that construction of brick wall in a shop amounts to material alteration, In Madhav Lal v. Smt. Govindi Bai, AIR 1971 Rajasthan 260, it was held that construction of a cabin fixed up and attached to the Chabutra is an alteration of structural nature and hence amounts to material alteration even if it is of a temporary nature and the same has been put up merely for the better enjoyment of the chabutra. In Kesar Das v. Harish Chandra Vyas, 1979 RLW 201, this Court held that the words used in Section 13(1)(c) of the Act merely refer to ‘any such construction as in the opinion of the Court has materially altered the premises’ do not make any distinction between the constructions of a permanent or temporary nature. On the other hand, it was contended on behalf of the respondent that there was no plea in the plaint regarding material alteration as a ground for eviction and this has been observed by the first appellate court while deciding Issue No. 7 and thus the issue was framed beyond the scope of the pleadings, evidence was also recorded beyond the pleadings and thus the finding of the trial court on the issue is clearly beyond the pleadings. According to learned counsel for the respondent rather it was a case of the plaintiff landlord that the land use has been changed from the residential to commercial but it was not taken as a ground of eviction, neither any issue was framed and thus no finding was also recorded. In reply it was submitted that the defendant respondent was conscious of these facts from the very beginning and no objection whatsoever was taken in this regard prior to submissions made in this Court. He referred the pleadings and evidence and findings of the courts below.
14. I have considered he submissions. In para 4 of the plaint it was averred that the defendant has constructed more than one poultry farms by way of permanent structure and thus started commercial use of the premises let out for residential purposes. In para 4 and 12 of the written statement, construction of poultry farms in the year 1967 was admitted. In para 14 of the written statement, it was pleaded that the use of the land for the purposes of poultry farms can not be termed as unreasonable use of the land for a porpoise other than that for which it was let out. it was further pleaded that in no case the alleged constructions have in any way materially altered the premises nor have diminished the value thereof nor in any way prejudicially affected the interest of the plaintiff in the tenancy under defendants. Issues including issue No. 7 regarding material alteration were framed on 7.12.1973, Thereafter evidence of both the parties was recorded. The statement of the defendant-tenant was recorded in may 1977, wherein the admitted the constructions of three poultry farms, although she was not able to state the area over which these constructions were raised. The trial court gave its verdict on 31st July 1979. This makes it clear that the defendant-appellant from the very beginning was conscious of the fact of material alteration as a ground to eviction. No objection was raised on behalf of the defendant tenant regarding this point. Even the observations on this issue by the first appellate court are self contradictory. On the one hand it was observed that Issue No. 7 of material alteration does not come out of the pleadings of the parties and in the next line it was observed that ‘however, in the plaint it has been pleaded that the defendant has materially altered the rented premises. Thus the objection regarding the want of plea of material alteration does not carry any weight in the instant case. It was next submitted by learned counsel for the respondent that erection of poultry farm over the open land does not amount to material alteration and construction of these poultry farms had already been removed in the year 1973. He placed reliance upon Waryam Singh v. Baldev Singh, 2003(1) Supreme Court Cases 59, wherein it was held that enclosing verandah by constructing walls and placing a rolling shutter in front, in themselves is not sufficient to justify inference that value or utility has been impaired. This judgment is not applicable to the facts of the present case as the diminishing of the value of the rented premises has not been taken as a ground of eviction. In Khureshi Ibrahim Ahmed v. Ahmed haji Khanmahommad, AIR 1965 Gujarat 152, it was held that structure made of bamboos and iron sheets was not permanent structure, in the instant case the facts are quite distinct and secondly the provisions of Section 13(1)(c) of the Act do not make any distinction between the permanent or temporary nature as held in the case of Kesar Das (supra). In Pali Ram v. Hira Lal, RLW 1989(1) 66, it was held by this court that the tenants have put a wooden ‘Khokha’ and for that purpose they-have also constructed a wall in the side measuring 10′ of height of 3′. In view of these facts, it was held that this does not amount to material alteration as such alteration should be of substantial character which changes the from and character of the building. Similar view was taken by the Hon’ble Supreme Court in Om Prakash v. Amar Singh and Ors., 1987(1) Supreme Court Cases 458.
15. I have considered the rival submission in the light of the judgments relied upon. The trial court having considered the entire evidence held that it amounts to material alteration as it has changed the form and character of the premises. The first appellant court did not record any finding on this aspect of the matter. Keeping in view the entire material available on the record, I find no reason to interfere with the findings of the trial court and thus the construction of poultry farms over the land has rightly been held as material alteration by the trial court.
16. In view of the entire discussion made hereinabove the third question is decided in favour of the plaintiff appellant.
17. Consequently, this second appeal in allowed. The judgment and decree of the first appellate court stand set-aside and the judgment and decree of the trial court stand restored with no order as to costs.