JUDGMENT
Rajesh Balia, J.
1. This second appeal is directed against the judgment and decree dated 19-8-93 passed by Addl. Civil Judge No. 3 Udaipur affirming the Judgment and decree passed by Addl. Munsiff and Judicial Magistrate City (South) Udaipur by which Plaintiffs suit for evicting the appellant-defendant from the suit shop has been decreed.
2. The plaintiff has filed the present suit for eviction on the grounds that the defendant has committed default in making payment or tendering the rent of the suit premises and that he has carried out construction in the suit premises without permission of the landlord which has materially altered the premises and also that such alteration is likely to reduce the value of the premises.
3. So far as the default in payment of rent is concerned the trial court found the defendant responsible for’ default but has not passed a decree on that ground by giving benefit under Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950. However, the trial Court found that the alleged construction) in the premises has resulted in altering the premises materially. On that ground the decree for eviction has been passed, findings have been confirmed by the lower appellate court and decree has been maintained. Hence this second appeal.
4. It was contended by learned counsel
for the appellant the lower appellate Court has on more than two occasion agreed ith the appellant’s submission for site inspection yet the appeal has been decided without actually carrying on site inspection by the presiding judge and that has resulted in causing prejudice to the appellant’s case. 1 am unable to agree with the learned counsel. There is no dispute between the parties about the alteration that has been carried out in the suit premises. The Court has found that merely iooking at it the alteration does not appear. Therefore, in my opinion, the absence of site inspection by the lower appellate Court has not resulted in any prejudice to the case of the appellant. As will be presently seen that in view of the facts being undisputed the site inspection was not really required for arriving at the satisfaction of a Court whether the construction carried out by the defendant-appellant resulted in material alteration in premises.
5. The undisputed facts are that the defendant has by breaking the corners of some of the slabs covering the roof has created an opening on the roof through ceiling. The opening has been covered by a door fastened with hinges. A staircase is kept in the premises for going up the terrace through the door on the floor of roof. While the case of the plaintiff is that defendant is using the opening in the terrace for using the terrace which is not a part of premises let out the defendant’s case is that opening is meant only for letting out smoke and is used as ‘smoke chimeny’. The staircase is used only for the purpose of maintenance of the chimeny and securing that the rain water does not conic through the opening.
6. Both the court below have found that smoke chimeny is usually constructed in the wall not by breaking the slabs and leaving a open space in the roof. The fact that the staircase is kept there and is being used for going up the roof land support to the plaintiff’s case that opening is used as way to roof. Smoke can otherwise pass through: ventilations already existing.
7. This, in my opinion, is reasonable conclusion and the satisfaction of the Court’s below that the alteration carried out by
breaking ‘pattis’ (slabs) of roof which has broken the homogenity of terrace left an opening in the roof through the ceiling enabling the defendant to use it as a way for reaching the roof and further that by breaking the slabs of the roof the overall strength of the roof is weakened and that even by closing it cannot be restored to its original strength because a joint will be there cannot be said to be erroneous as to give rise to any substantial question of law.
8. No other point is pressed, the appeal is dismissed.
9. There is no order as to costs.
10. The counsel for the appellant prays for grant of time to vacate the suit premises.
11. In the facts and circumstances of the case the appellant is directed to deliver the possession of suit shop on or before 31st December, 1994 during which execution of the decree shall not be levied provided appellant furnishes an undertaking before trial Court within one month that he shall not alienate or part with the possession of the suit shop or any part of it in any manner except to the plaintiff-decree-holder or his assignee and further he shall deliver voluntarily the vacant possession to plaintiff-decree-holder on or before 31st December, 1994. He shall further undertake to “pay mesne profit for use and occupation of suit shop until it is vacated at the rate at which rent was payable by 10th date of every succeeding month.