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TMI Blog1973 (5) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... the accommodation. It was further mentioned in the plaint that the constructions had been made without his permission. 2. The defence on this point set up by the appellant in brief was that these constructions had been made by him not in 1967, but in 1964 with the full knowledge and consent of the then owner of the accommodation. It was also pleaded that the constructions did not amount to making any material alterations in the accommodation. The Trial Court accepted the version of the plaintiff and held that these constructions had been made in 1967. The Lower Appellate Court, however, agreed with the defence version that the constructions had been made in 1964. It, however, still maintained the decree for ejectment passed by the Trial Court on the view that the bar created by Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, having been lifted in 1964, as a result of the defendant's making the constructions in question, which amounted to making material alterations in the accommodation, the right which accrued in favour of the then landlord to sue the appellant for his ejectment could be availed of even by the plaintiff, even though he was not the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously have the effect of making material alterations in the accommodation in view of the criteria laid down in M.D. Shah v. Bishun Das, AIR 1967 SC 643 and Sita Ram Saran v. Johri Mal, 1972 All LJ 301 = (AIR 1972 All 317) (FB). 7. The next question to be considered is about the time when these constructions were made. The Lower Appellate Court has, as already pointed out above, held that these constructions were made in 1964. It has been mainly relied on some documents by which the appellant was permitted to install initially a three horse power motor and subsequently a five horse power motor for purposes of ice candy industry. Even the Trial Court had found in favour of the appellant on the point that the five horse power connection which according to the appellant was installed for purposes of ice candy industry, was installed on 6-8-64. The Trial Court, however, come to the conclusion that it was apparent from the deposition of Hafiz All (P. W. 1) who was an Assistant Engineer in Water Works, Aligarh, that the water connection for ice candy plant was granted to the appellant on 22nd April, 1967, and since without a water connection the ice candy plant could not be used, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be drawn against that party. Consequently, from the conduct of the appellant in not producing the receipts for the purchase of the ice candy and ice cream plants, even though he was admittedly possessed of these receipts, an inference can be drawn adverse to the appellant, viz., that if these receipts had been produced they would have substantiated the case of the plaintiff. Hafiz Ali (P. W. 1) was an Assistant Engineer of the Water Works. He was in no way connected with either party, and was an independent witness. His statement that when he made an inspection of the accommodation on 27th June, 1966 there was only a cane crusher, and there was no water connection, was material for the determination of the question as to whether any ice candy plant was being run in the accommodation on or before 22nd April, 1967, when water connection was granted by the Water Works. A perusal of the deposition of Hafiz Ali further shows that towards the end of his cross-examination he has stated that the cane crusher which was fixed in the accommodation was being run by electric power. The fact that before starting the ice candy plant, the appellant was running a cane crusher by electric powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an amin in Suit No. 183 of 1963 of the Court of Munsif, Koel, Aligarh. From its perusal, it appears that the amin had inspected the accommodation in question on 22nd July, 1964. At one place in the said report it is stated that there was a small wooden ladder in side the accommodation for going over the roof, and the opening was covered by a wooden khirki. It is possible that this khirki may be the same which is in dispute. However, since the amin who gave this report has not been produced in evidence in the present case, so that the correct facts could be ascertained, it cannot be said with certainty that the khirki mentioned in the report of the amin was necessarily the same which is in dispute. Even if it be so, that will not make much difference in the result of the appeal, firstly, in view of my finding given earlier that at least the water tank etc. referred to above came into being in 1967 and, secondly, because I am of the opinion, in view of the discussion which is to follow, that the plaintiff can take advantage of the right that accrued in favour of the previous owner on account of material alterations having been made in the accommodation. 11. Before dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of another and different issue, which was not present to the minds of the parties, and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto. In order to determine the question whether the constructions in question amounted to making material alterations in the accommodation, it is not of much consequence whether these constructions were made in 1964 or 1967. In whichever year they were made, if they satisfy the criteria laid down to determine whether a construction amounts to material alteration, the finding has necessarily to be that it amounts to making material alterations. The nature of evidence which the appellant would be required to produce in order to prove that the constructions do not amount to material alterations would be the same irrespective of the year in which they were made. The only plea which could have saved the appellant from the consequences of making material alterations was that the constructions in question were made with the permission in wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all liabilities of the lessor as to the property or part transferred, so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him; Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased. 13. A plain reading of Section 109 aforesaid, indicates that, but for the right to recover the arrears of rent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abaleshwar, AIR 1918 Bom 79 it was held that a transfer of the revision of a lease carries with it the right to enforce forfeiture of the lease for breach of a condition, even where the breach has occurred prior to the transfer. In Mannikkam v. Rathnaswami, AIR 1919 Mad 1186 it was held that the words all the rights in Section 109 of the Transfer of property Act include the right to recover possession by terminating tenancy of a previous lessee by giving the necessary notice to quit. In Somesundaran v. M. P. Co-operative Society, AIR 1950 Mad 711 while dealing with the provisions of Section 7 of the Madras Buildings (Lease and Rent Control) Act of 1946, it was held: No doubt the landlord who is seeking eviction, must satisfy the controller that the tenant has done one or other of the things mentioned in the several clauses in Sub-section (2) of Section 7, One of such things is that the tenant has after the commencement of the Act transferred his right under the lease or sublet the entire building or any portion thereof. There is nothing from which it can be urged with any force that the transfer or subletting must have been made not merely after the commencement of the Act, b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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