Shri. Bajrang K. Mhapsekar (Deceased By His Heirs)& Ors. vs. Shri. Kishore Pandurang Mantri

IN THE HIGH Court OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO. 649 OF 2011

Bajrang K. Mhapsekar (deceased by his heirs) chandrakala B. Mhapsekar (deceased) and others ....Applicants. Versus Kishore Pandurang Mantri ....Respondent. ____________

Mr. Y. S. Jahagirdar, Senior Counsel i/b A. A. Basudkar for the Applicants.

Mr. P. K. Dhakephalakar, Senior Counsel i/b M/s. A. V. Jain Associates for the Respondent.

CORAM: K. K. TATED, J. DATED : FEBRUARY 13, 2012.

P.C.:

Heard learned senior counsel appearing on behalf of the parties.

2. Rule. By consent, rule is made returnable forthwith. At the request of parties, the matter is taken up for final hearing at the stage of admission.

3. By this Revision Application under Section 115 of the Code of Civil Procedure, the Applicants/original Defendants challenge the concurrent findings of both the Courts below, i.e., the judgment and decree dated 8th July, 2005 passed by the learned Judge, Court of Small Causes at Bombay in R.A.E. & R. Suit No.1643 of 1995 and the judgment and decree dated 29th March, 2011 passed by the Appellate Bench of the Court of Small Causes at Bombay in Appeal No. 613 of 2005 granting decree of eviction against the Petitioner in respect of the suit premises, i.e., Block No. 1, ground floor of Mantri Building, situated at Bhendi Lane, Gamdevi, Mumbai – 400 001.

4. For the sake of convenience, the nomenclature of the parties as stated in the Plaint are hereinafter referred to as the Applicants are the original Defendants and the Respondent is the original Plaintiff.

5. The Plaintiff had filed R.A.E. & R Suit No. 1643 of 1995 against the Defendant for possession of the suit premises on the ground that the Defendant has carried out the work of additions and alternations of permanent nature without his prior permission and the Defendant changed the user of the suit premises from residential to commercial. The conduct of the Defendant and his family members amounts to the nuisance to neighboring occupiers and the Defendant has failed to observe and perform the terms and conditions of tenancy which are consistent with the provisions

of the Bombay Rent Act. The Trial Court, by its oral judgment and decree dated 8th July, 2005 decreed the Plaintiff's suit on the ground that the Defendant has carried out the work of additions and alternations of permanent nature without his prior permission and the Defendant has changed the user of the suit premises from residential to commercial.

6. Being aggrieved by the judgment and decree passed by the Trial Court, the Defendant had preferred Appeal No. 613 of 2005 before the Appellate Bench of Small Causes Court at Mumbai and the Plaintiff had also preferred cross objection no. 18 of 2005. The Appellate Bench of Small Causes Court at Mumbai, by its judgment and decree dated 29th March, 2011, held that the Defendant has carried out additions and alternations of the permanent nature without prior permission of the Plaintiff and, therefore, the Plaintiff is entitled for vacant and peaceful possession of the suit premises. Hence, the present Civil Revision Application.

7. The learned counsel appearing on behalf of the Defendant submits that both the judgments and decrees passed by the lower Courts are against the justice, equity and good conscience and is liable to be set aside. He submits that the

Appellate Bench of the Small Causes Court erred in holding that the Defendant has carried out additions and alternations of permanent nature without prior permission of the Plaintiff. He further submits that the Appellate Bench erred in holding that the Defendant has committed an act contrary to the provisions of Section108 (o) of the Transfer of Property Act. He submits that both the Courts below erred in placing the burden on the Defendant to prove that no additions and alterations were made in the suit premises. He further submits that both the Courts below have failed to appreciate that the Plaintiff ought to have examined the witnesses from MHADA and produced the sanctioned plan to prove the structural additions and alterations, if any, made in the suit premises. Further failure to examine any witness from MHADA and failure to produce the sanctioned plan, an adverse inference ought to have been drawn against the Plaintiff. He submits that whatever alternations and/or repairs carried out by the Defendant were necessary for enjoyment of the suit premises and, therefore, those cannot be termed as carrying out work of additions and alternations of permanent nature under Section 13 (1)(b) of the Rend Act. He submits that the Plaintiff in his plaint alleged that the Defendant has carried out following repairs to the suit premises in violation of Section 13(1)(b) of the Rent Act.

• (a) The Defendant removed the Burma Teak wood doors with frame permanently of the Bed room No.1 leading to passage. The Defendant No.1 made cement material partition wall of permanent nature in the said Bed room No.1. The said wall is touching the ceiling and admeasures about 10 ft. X 9 ft. By the said wall, the Bed Room No.1 is divided into one room and a passage. The Defendant has also removed two windows of Bed room No. which were admeasuring 3 ft. X 5 ft. and 3 ft. X 8 ft. The said windows were made of Burma teak wood. The Defendant has changed the size of smaller window to 3 ft. X 2 ft. The second window is covered into a cupboard and thus the second window is closed permanently by the Defendant. The depth of the said cupboard is about 1 ft. and it is in the open chowk whereby the Defendant has encroached upon the open chowk. The Defendant has made a passage of about 3 ft. wide in Bed room No.1 and also constructed a loft upon the said passage. The said loft admeasures about 3 ft X 10 ft. The Defendant has embedded the joist of the said passage in the East side wall by embedding the same and on the West side wall which is constructed illegally.

• (b) The Defendant has raised the flooring of the open chowk by about 6" admeasuring to 10 ft. X 6 ft. and also constructed a cupboard in the open chowk. the Defendant has also put up a shed above the said encroached portion of the chowk, which is of permanent nature and thus converted above said open chowk into a store room. The Defendant has constructed a door in the said open chowk and on both the sides there are sliding windows which is of permanent nature. The said frame work is up to height of the ceiling which fixed on the beam of the suit premises.

• (c) The Defendant has raised the flooring of the open chowk by about 6" admeasuring 10 ft. X 6 ft. and also constructed a cupboard in the open chowk. The Defendant has also put up a shed above the said encroached portion of the chowk, which is of permanent nature and thus converted above said open chowk into a store room. The Defendant has constructed a door in the said open chowk and on both the sides there are sliding windows which is of permanent nature. The said frame work is up to height of the ceiling which fixed on the beam of the suit premises.

• (d) In the second Bed room there were two windows, one admeasuring 3 X 5 feet and another 3 X 8 feet. The Defendant has changed the size of the smalled window to 2 X 3 feet.

• (e) The Defendant has closed another window permanently and made a cupboard of size 3" X 8" in the place of the said window. The depth of the said cupboard is one ft. which encroached in the open chowk. The Defendant has taken out Burma teak wood doors with frames and windows permanently of Bed room No.2 and made a cement material partition wall touching the ceiling admeasuring 10 ft X 9 ft. thereby said Bed room No.2 is divided into one room and a passage. The Defendant has constructed a loft of permanent nature admeasuring 3 X 10 in the said passage in second Bed room. The said loft is constructed by embedding in second bed room. The said loft is constructed by embedding the joist in East and West load bearing walls.

• (f) The Defendant has removed the door and window with frames between kitchen and bath room which were made of Burma teak wood

and closed permanently with brick masonry wall. The Defendant made and entirely new entrance of kitchen to bath room by breaking wall between former place of door and window. The Defendant has also constructed a cement partition wall and thus divided earlier bath room into two bathrooms cum w.c. The Defendant has made and additional w.c. cum bathroom of European style at south side. The Defendant has removed the Burma teak wood doors along with framed of original Indian style w.c. and constructed in plastic material door to east side by around 5 ft. away from its original place by constructing cement wall of permanent nature. The Defendant also removed rear road door with frame which opens in the rear open chowk which were made Burma teak wood and closed the same permanently by brick masonry wall. Whatever the salvage material taken out from the suit premises is illegally sold by the Defendant and pocketed the money.

(g) Thus the five costly and valuable Burma Teak wood doors along with frames have been removed completely. The first such door was of bed room No.1 leading to passage. The second such door was of bed room No.2 leading to passage. The third such door was of Bed room No.2 leading to kitchen. The fourth such door was of bathroom leading to kitchen. The fifth such door was of bathroom leading to rear side open chowk. Out of said five doors space of First three doors mentioned above is kept open. The Defendant has constructed brick masonry wall in place of 4th and 5th door, thus closed the same permanently. There was window of Burma Teak wood between kitchen and bathroom. The Defendant has removed the same along with frame and flaps and closed permanently the same by constructing brick masonry wall in its first place.

(h) The Defendant has also removed main entrance door along with frame of the suit premises made of Burma Teak wood having ventilation above the said door. The Defendant has replaced the same by making door of plywood and used inferior quality of door frame. The size of the said door is also reduced by about one feet in height. Now there is no ventilation about the said door. Two hall room windows of Burma teak wood having ventilation above them along with frame – have been removed and in place of that inferior quality of aluminum frames and windows have been fixed and iron grill has been put outside without any ventilation above them. Thus the Defendant has caused waste to the suit premises and suit property. Further the Defendant has changed the identity and specification of the suit premises. The Defendant has sold illegally the salvage material taken out from the suit premises.

8. He submits that whatever repairs are carried out by the Defendants were only for better enjoyment of the suit premises and, therefore, that cannot be termed as an additions and alternations of the permanent nature. In support of this contention, the relies on the judgment in the matter of Alisaheb Abdul Latif Mulla V/s. Abdul Karim Abdul Rahman Mulla and others reported in AIR 1981 Bom. 253. In that case, our Bombay High Court held that extension of Mori and erection of wall did not constitute a permanent structure because construction was for better enjoyment and was being put to sent a better. Head note A of that judgment reads thus:

"Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), S. 13 (I)(b) – Permanent structure – What is – Existing mori on premises completely dug out – mori area extended and 3 purposes for which single mori was used now divided into 3 parts for said 3 purposes, viz., one for bathing by erection of 6' high wall to provide privacy, another for washing clothes, 3rd for washing utensils – Held extension of mori and erection of wall did not constitute a permanent structure because construction was for better enjoyment and was being put to same use as before."

9. He also relies on the judgment in the matter of Somnath Krishnaji Gangal V/s. Moreshwar Krishnaji Kale and others reported in 1995 (1) Mh.L.J. 675. In that case, our High Court held that while determining whether the permanent structure has been erected the mode and degree of annexation and intention of the party putting up the structure should be considered. The construction should be substantial in nature and alters the form, front and structure of the accommodation. Minor repairs for better enjoyment of premises not of permanent structure. Paragraph 14 of the said judgment, reads thus:

"14. I may also refer to the Supreme Court decision in the case of Om Prakash v. Amar Singh and another. That was a case under U.P. Cantonments (Control of Rent and Eviction) Act, (10 of 1952). All that the tenant had done in the said case was that he had constructed a partition wall in the hall and a

tin shed in the open Courtyard adjacent to the building. It was held that the partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling. The partition wall did not make any structural change of substantial character either in the form or structure of the accommodation. The Supreme Court observed that meaning of the words "materially altered" would show that the expression means a substantial change in the character, form and structure of the building without destroying its identity. It means that the nature and character of change or alteration of the building must be of essential and important nature. The Supreme Court then referred to its earlier decision in the case of Manmohan Das Shah's case, and observed in para 6 of the judgment at page 619 as under :

"In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction, it took care to use the word "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as inspite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation."

10. He also relies on the judgment of of the Apex Court in the matte of Waryam Singh V/s. Baldev Singh reported in JT 2002 (9) SC 189**.** In that judgment, the Apex Court held that order for eviction under Section 13 (2) of the Rent Act could be passed only if the landlord proves that the tenant had made construction that such construction was without the consent of landlord and that such construction had material affected the premises. Head note of that judgment, reads thus:

"Section 13 Tenancy – Eviction of tenant on the ground of making unauthorized addition or alteration to the rented premises – What constitutes material impairment in the value or utility of the rented building Appellant landlord letting out a shop with verandah to the respondent – Respondent constructing walls on the two sides of the verandah and fixing a rolling shutter in the front – Appellant seeking eviction of the respondent on the ground that such alterations amounted to impairing materially the value or utility of the shop – Rent Controller rejecting the eviction petition holding that the alterations were not material and did not impair the value or utility of the shop – Appellate Court however reversing the decision and ordering eviction of tenant – High Court allowing the civil revision filed by the tenant and holding that the alterations had not materially impaired the

value or utility – Whether High Court right in arriving at the conclusion that the alterations did not materially impair the value or utility of the shop. Held that an order for eviction under section 13 (2)(iii) could be passed only if the landlord proves that the tenant had made construction; that such construction was without the consent of the landlord and that such construction had materially affected the premises. Since the shop in the instant case was located in business locality and the area of the shop got increased by covering the verandah, the alteration would increase the value and utility of the shop and there being no proof of any material impairment in the value or utility like blocking of free flow of light or air, the High Court was justified in refusing a decree for eviction."

11. He also relies on the judgment in the matter of Smt. Laxmiben Mavjibhai and Another V/s. Shankarbhai Mulubhai reported in Volume XXXVI (2) Guj.L.R.1320. In that case, the Gujrat High Court has held that minor alternation in a tenanted premises if does not cause damage to the premises, then, the same cannot be treated as material alterations to the suit premises under Section 13 (b) of the Rent Act. On the basis of these authorities, the learned counsel appearing on behalf of the Defendants states that the findings given by both the Courts on the point that the Defendant carried out the work of additions and alterations of permanent nature without Plaintiff's prior permission is liable to be set aside.

12. On the other hand, the learned senior counsel appearing on behalf of the Plaintiff, vehemently, opposed the present Civil Revision Application. He submits that both the Courts, rightly, held on the basis of evidence and documentary proof that the Defendant had carried out additions and alternations of permanent nature in the suit premises without prior permission of the Plaintiff and therefore, he is liable to be evicted from the suit premises. He further submits that the Trial Court also relied on the Commissioner's report for coming to the conclusion about carrying out additions and alterations of permanent nature by the Defendant in the suit premises. He submits that the Court Commissioner, categorically, stated in his report that the Defendant carried out several unauthorized alterations to the suit premises causing damage to the property. He further submits that in revision under Section 115 of the Code of Civil Procedure, there is no question of reappreciation of the evidence on record and, therefore, the revision is liable to be dismissed with costs.

13. I have gone through the copy of the Plaint, Written Statement, order passed by both the Courts, Court Commissioner's report and maps placed on record by the parties. Both the Courts below on considering the evidence on record all the authorities

cited before them by the counsel appearing for the parties have, concurrently, held:

• (a) that the Defendant carried out the work of additions and alterations of permanent nature without the Plaintiff's prior permission.
• (b) that the Defendant has committed the act contrary to clause (o) of Section 108 of the Transfer of Property Act.

14. I have gone through the pleadings, evidence on record and the judgments of the Courts below. The abovementioned findings of the Courts below are challenged by the Defendant in this Revision Application. In this revision under Section 115 of the Code of Civil Procedure, it is necessary to consider whether the Courts below have acted in exercise of their jurisdiction illegally or with material irregularity. There is enough evidence on record which consists of oral as well as documentary evidence and if the finding reached by the Appellate Court are supported by the evidence on record, the evidence on the basis of which those findings are recorded cannot be reappreciated by this Court. Therefore, this Court can only consider whether the First Appellate Court on the facts and circumstances ought to have been established on the evidence on record acted illegally or with

material irregularity in reaching the conclusion that the Plaintiff is entitled to the decree of eviction of the Defendants and recovery of possession of the suit premises.

15. It is to be noted that the authorities relied by the learned senior counsel appearing on behalf of the Defendants as stated hereinabove are not applicable on the facts and circumstances of the present case. In the matter of Alisaheb Abdul Latif Mulla (Supra), the issue was about extension of mori area i.e., not the case in the present matter. In the matter of Somnath Krishnaji Gangal (Supra), the issue was about the removal of window frame and the closer was for safety of inmates of the premises and that is not the issue in the present matter. In similar way, in the matter of Waryam Singh (Supra), the issue was about blocking the free flow of light and air by carrying out some construction work and that is not the case in the present matter. In similar way, in the matter of Smt. Laxmiben Mavjibhai (Supra), the issue was about removal of front door of the shop and fixing rolling shutter. In that case, the Court held that the same was done for safety of the shop premises and that is not the case in the present matte. Therefore, the authorities cited by the Defendants are not applicable in the present case.

16. In this case, the Commissioner was appointed by the Trial Court to inspect the suit premises and to submit the report. In the opinion of the Commissioner, the following works, additions and alterations found at the suit premises falls under the category of additions and alterations under the provisions of Bombay Municipal Corporation Act.

• "(i) Renovation of toilet has been found constructed in place of original bathroom in front of old w.c.
• (ii) The conversion of door into wall and wall into door, in the original wall between kitchen and the toilet.
• (iii) Providing water storage tank on the loft.
• (iv) Closing of existing windows of bed rooms into cupboards.
• (v) Dividing the existing room by erecting partitions into passage and room.
• (vi) It is also observed that the original brick masonry wall between the chowk and the passage has been found demolished and a new wall of about 3' height has been constructed in the chowk. The top portion is found covered with plastic sheets roof as shown in the photographs. While sanctioning plans, this chowk area is not considered in the FSI calculation, as per the D.C. Regulations. Since the chowk was found covered with plastic sheet roof, it appears from the nature of renovation

work done, namely demolition of existing masonry wall between the chowk and passage and construction of new parapet wall inside the chowk, that this encroachment is being done may be with intentions of slowly occupying the common chowk area and to convert the same into room, some time in the near future. Thus the covering of common chowk area, will amount to increase of existing FSI of the building and is a serious offence under M.R.T.P. Act. In his opinion these additions, alterations require a regular permission u/sec. 342 of the BMC Act. Architect has also taken photographs of the suit premises. From his report it further appears that he has inspected the suit premises only in the presence of defendant and his representative and not in presence of plaintiff as the representative of the defendant did not allow plaintiff to enter the suit premises. So all these inspections has been carried out in presence of defendant and his representative."

17. On considering the evidence on record regarding the

above additions and alterations the Appellate Court in paragraphs

38 and 39 of the judgment observed thus:

"38: The work carried out by the defendant cannot be taken into consideration in isolation, but the cumulative effect of all the work carried out by the defendant has to be taken into consideration. If such a cumulative effect is taken into consideration coupled with the evidence of the plaintiff, complaints filed by him to various authorities, photographs and report of architect at Exh. KKK, the only inference which can be drawn is that defendant without the permission of the landlord and competent authority has carried out the work of additions and alterations of permanent nature in the demised premises which caused damage not only to the suit premises but to the suit building

also."

"39: Therefore, in the light of our above discussion we are of the opinion that plaintiff has proved that defendant has carried out the work of additions and alterations of permanent nature and has caused damage contrary to the provisions of section 108(o) of Transfer of Property Act. Hence, we answer both the points in the affirmative."

18. In the present case, admittedly, the Defendant encroached on the common space, i.e., chowk and constructed a wall, by which the FSI increased. In similar way, as stated hereinabove, he carried out alterations in the suit premises of structural nature.

19. The findings given by the Appellate Court in paragraphs 38 and 39 has reproduced above, are fully supported by the evidence on record and, there is nothing to indicate that the Court below acted illegally in exercise of jurisdiction or acted that material irregularity.

20. Therefore, there is no substance in the Revision. In the result, the Civil Revision Application is dismissed, with no order as to costs.

21. On the oral application of the learned counsel appearing on behalf of the Defendant, the operation and implementation of this order is stayed for a period of eight weeks from today.

(K. K. TATED, J.)