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Second Rent Appeal No. 450 of 1980, decided on 15th August, 1982.

S. 13-Eviction proceedings-Additions and alterations in pre mises-Premises in occupation of tenant for last 40 years and evidence f showing additions and alterations made by way of repairs - Landlord admitting that by making additions and alterations value of premises increased and utility of building not adversely affected-One of con ditions printed on back of rent receipt that "no additions or altera tions be effected in the premises by the tenant without the consent of all the landlords" found unilateral and nothing on record to show tenant abiding by such conditions -Eviction of tenant declined, in circumstances.

-- S. 2 (a)- Hotel'- Musafirkhana'-Distinction-Hotel, held. not distinguishable from Musafirkhona.-[Words and phrases).

-- S. 15-Second appeal-Plea not raised in lower Courts, held, can not be allowed to be raised in second appeal.

Shamsuddin Memon for Appellant.

Jhamat Jethanand for Respondents.

Date of hearing : 15th August, 1982.

This is IInd appeal from the order of learned IVth Additional District Judge, Hyderabad dated 11th October, 1980 whereby he had upheld the order of the VIlth Extra Joint Civil Judge and Rent Controller, Hyderabad dated 24th July, 1978. The learned Rent Controller had, vide the above dated judgment, dismissed the ejectment application of the applicants filed against the respondents in respect of the premises known as Sind Zamindar Hotel situated at Hyderabad.

2. The case of the appellants before the Rent Controller was that the premises were rented out to the respondents by their father Akbar Ali, After the death of Akbar Ali the respondents attorned to the appellants and started paying rent of the same. It is alleged that according to terms and conditions of the tenancy agreement which were printed on the reverse of the rent receipts, the appellants were not entitled to make any additions or alterations in the premises without the consent of the appellants. In spite of this condition, the respondents it is alleged, made considerable alterations and additions in the premises and thereby diminished or impaired the value as well as utility of the premises. The appellants; therefore, prayed that the respondents may be ejected from the premises and possession may be handed over to them.

3. After recording evidence of the parties, the learned Rent Controller carne to the conclusion that the additions and alterations made by the res pondents did not impair the value or utility of the building. On the con trary, the value and utility has increased thereby. In view of this finding the ejectment application was dismissed. The First Appellate Court agreed with the above finding of the Rent Controller and dismissed the appeal.

4. The case of the respondents had been that about 60 years back they had only taken on lease a vacant plot from the ancestor of the appellants i.e. late Akbar Ali. They further alleged that the entire construction was raised by them on the plot which partly belongs to the appellants and partly to the Government. They have, however, admitted that they had made alterations and additions in the building which were by way of repairs and which had not been effected by the landlords ever before i.e. since the inception of the lease.

5. Only one issue in this case was framed namely whether the respon dents have made alterations and additions in the premises in question so as to reduce its utility and value.

6. In support of this issue appellant Amir Ali has examined himself. He has stated that the wooden roof of the first floor has been removed and in its place R. C: C. roof has been constructed and that the hotel has been changed into a Mosafir Khana'. He further states that by making the above alteration the value of the property has been decreased. Nowhere in his statement does he say that the utility of the building has also been impaired. On the contrary, in cross examination he has contradicted himself by say ing that by carrying out additions in the building the value of the premises has been enhanced. The same is the statement of his witness Baqar Hussain, who has admitted in his cross-examination that by additions and alterations effected by the respondents in the premises, the value of the same has been increased.

7. Learned counsel for the appellants has argued that although the value of the building might have been increased by the additions and alterations, this would not necessarily imply that the utility of the building has also been increased thereby. From the evidence of Amir Ali and his wit ness Baqar it does not transpire at all that the utility of the building has been adversely affected by alterations made by the respondents. They have not. said a word about the utility of the building having been impaired as a: result of the additions and alterations made by the respondents. They have only stated about the value of the building, which according to both of them, has increased as a result of alleged action of the respondents. No exception can, therefore, be taken to the findings of the Courts below on this point.

8. It has further been alleged that the respondents are responsible for violating a condition of the tenancy agreement as printed on the reverse of the rent receipt. There are several conditions printed on the reverse, one of them being that no additions or alterations shall be effected in the premi ses by the tenants without the consent of all the landlords. This condition appears to be unilateral because the original tenancy agreement between the parties was oral. There is nothing on record to suggest that the respondents had also agreed to abide by such condition. From the evidence it appears that the appellants bad never effected repairs during the last 40 years, The additions and alterations which were effected by the respondent appear to be by way of repairs, because the wooden roof was replaced by R. C. C. roof. This cannot be said to have materially altered the nature of the building.

9. The next point urged by learned counsel for the appellants is that the hotel has been converted into a Musafir Khana' by the respondents, who were not entitled to do so. This plea has not been raised in the eject ment application by the appellants. Moreover, the hotel is not distinguish able from a 'Musafir Khana. It is not the case of the appellants that Sind Zamindar Hotel was only a catering hotel and not a hotel meant for lodging and boarding. Masafir Khana' would also fall under the definition of a hotel Moreover the appellants cannot be allowed to raise this plea in IInd Appeal.

For the above reasons, I do not see any substance in this appeal which is dismissed with cost.

M. Y. M. Appeal dismissed.

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