JUDGMENT J.C. Gupta, J.
1. This is tenants' writ petition for quashing the judgment and decree dated 28.8.89 passed by Judge. Small Causes Court. Moradabad, respondent No. 1 and confirmed by the judgment dated 11.5.90 passed by Xllth Additional District Judge. Moradabad, respondent No. 2.
2. Respondent No. 3, the landlord, filed suit for rent and ejectment against the tenants/petitioners seeking eviction on two grounds, namely ; that defendant No. 1 has sub-let a portion of the tenanted accommodation to defendant No. 2 and that the tenant has constructed a new partition wall in the said house in November, 1975 dividing the accommodation in two separate portions and thereby the value and utility of the building have been diminished and the same has also disfigured the building.
3. The defence was that no portion has been sub-let to defendant No. 2 who is his real younger brother and he has been in occupation since the inception of tenancy. The allegation of causing material or structural alteration was also denied and according to him in the year 1975 in rainy season the western wall of the house fell down and due to its fall old latrine and bathroom towards north-west portion of the house and kotha towards south-west portion also fell down. When the defendant asked the plaintiff to get the necessary repairs done, he allowed defendant No. 1 to carry out repairs himself and the partition wall was erected with old material and bricks in the presence and under permission of the landlord.
4. The trial court on consideration of evidence rejected the defence that the partition wall was raised with the permission of the landlord. However, the trial court was of the view that the raising of partition wall did not amount to material alteration nor the value or utility of the tenanted house was diminished. The trial court, however, decreed the suit on the ground of sub-letting holding that since the defendant No. 2 was inducted in the premises in question in the year 1975 and has been allowed to occupy a separate portion exclusively which was divided by a partition wall, this act of defendant No. 1 amounted to subletting.
5. Aggrieved by this judgment, the tenant preferred revision before the District Judge which has also been dismissed. The revislonal court agreed with the finding of the trial court on the question of sub-letting. However, on the question of material alteration, the revislonal court observed that the conclusion of the trial court was not correct as the raising of partition wall which divided accommodation in two separate portions amounted to disfigurement of the building and the said construction also diminished the utility of the building.
6. Challenging the aforesaid judgments, the tenant has filed the present writ petition.
7. Learned counsel for the petitioners canvassed before this Court the following points :
(1) That the finding that the tenant was liable to eviction on the ground of sub-letting is manifestly erroneous being based on assumption of facts against the petitioners which did not exist on record ;
(2) That mere raising of partition wall was not sufficient to attract the provisions of Section 20 (2) (c) of the U. P. Act No. 13 of 1972,,and the inferences drawn by the revisional court are erroneous in law.
POINT NO. 1:
8. Learned counsel for the petitioner contended that Section 20 of the Act imposes restriction on the rights of landlords of instituting suits for eviction of their tenants. By virtue of this section, landlord can file a suit for eviction against his tenant only on the existence of any of the grounds enumerated in clauses (a) to (g) of sub-section (2). in this way, landlord's right to evict his tenant by merely terminating his tenancy at his will under the provisions of the Transfer of Property Act has been curtailed.
9. Section 20 (2) (e) permits a landlord to file a suit for eviction on the ground of sub-letting. It says that if the tenant has sub-let, in contravention of the provisions of Section 25 or, as the case may be, of the old Act, the whole or any part of the building, suit for eviction may be filed by the landlord.
10. Section 25 provides that no tenant shall sub-let the whole of the building under his tenancy, however, he may sub-let a part of the building with the permission in writing of the landlord and of the District Magistrate, meaning thereby that in the absence of such a permission, even a part of the building cannot be sub-let by a tenant. Explanation of Section 25 is also very relevant for examining the controversy involved, hence it is reproduced as under ;
Explanation-- For the purpose of this section-
(i) Where the tenant ceases, within the meaning of clause (b) of subsection (1) or sub-section (2) of Section 12, to occupy the building or any part thereof he shall be deemed to have sub-let that building or part;
(ii) lodging a person in a hotel or a lodging house shall not amount to subletting.
11. Clause (b) of Section 12 (1) of the Act gives rise to a presumption of deemed cessation of occupation where any person, other than the member of his family, has been allowed by the tenant to occupy the tenanted accommodation of any part thereof. It reads as under:
" The landlord or a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family."
12. It is clear from a plain reading of Explanation of Section 25 of the Act that where provisions of Section 12 (1) (b) are found attracted, a presumption of sub-letting may be drawn but such a presumption can be raised only in those causes where the third person or another person not being a member of the family of the tenant was inducted in occupation after the commencement of the Act and not to those cases where such a person has been in occupation of the building since before the commencement of the Act in such cases, question of sub-letting has to be decided on the facts of the case without the aid of any presumption as available by virtue of Section 25 read with Section 12 (1) (b) of the Act.
13. Learned counsel for the petitioner argued that defendant No. 2, who is undisputedly younger brother of the petitioner was only permitted to use a portion of the tenanted accommodation and, therefore, he could not be classified as a sub-tenant of the petitioner and the courts below have erroneously held that the petitioner was liable to eviction on the ground of sub-letting.
14. There is a marked distinction between licence for exclusive possession and licence to use. There is a demise where a right is granted to have exclusive occupation of a separate tenement. A grant of such exclusive possession is a lease whereas no exclusive possession is given in case of a licence. As per the findings recorded by the courts below, defendant No. 2 was inducted in the house in question in 1975 after the commencement of the Act and he was having exclusive possession of a separate tenement, which was separated by raising a partition wall in 1975 and the defence case that defendant No. 2 has been living in the house in question with defendant No. 1 from the inception of tenancy has not been believed and found to be false. There can, therefore, be no doubt that defendant No. 2 was in occupation of a separate portion of the tenanted accommodation to the exclusion of defendant No. 1 and it was not a case of merely permitting the defendant No. 2 to use a portion of the building. Tenant's brother does not fall within the category of member of tenant's family as per the definition of 'family' as contained in clause (g) of Section 3 of the Act. The case is, therefore, squarely covered by clause (b) of sub-section (1) of Section 12 of the Act and by a legal fiction, it would be deemed that defendant No. I ceased to occupy that part of the tenanted accommodation. And further by virtue of the provisions of Section 25 read with its Explanation, such cessation of occupation leads to a presumption of 'sub-letting'. The effect of a legal fiction by a deeming clause is well known. Legislature can Introduce a statutory fiction and courts are bound to proceed on the assumption that such state of affairs exists. Undisputedly, there was no permission in writing of the landlord in favour of the defendant No. 1. The courts below, therefore, have correctly held that the case was fully covered by clause (e) of Section 20 (2) of the Act and the landlord was entitled to Institute suit for eviction on the ground of 'sub-letting'.
15. Learned counsel for the petitioner contended that before the revisional court, some documents were filed on behalf of the petitioner as additional evidence but those documents have not been taken into consideration while affirming the finding of the trial court that the defendant No. 1 came into occupation in the year 1975. This submission of the learned counsel for the petitioner does not appear to be correct. In the impugned Judgment, the learned Additional District Judge has observed :
"The learned lower court has held that defendant No. 2 occupied the disputed property in 1975 which is a finding of fact and cannot be interfered in the revision. Although defendant has tried to prove that defendant No. 1 is living in the disputed accommodation since the inception of the tenancy, but that fact is immaterial and is not believable. Papers A.D. and electoral card etc. cannot be given more weight in this regard."
It, therefore, cannot be said that there has been no consideration of those documents. In any view of the matter when this Court wanted to know as to what those documents were, photostat copies of those documents were filed on behalf of the petitioner through supplementary affidavits. Those copies are illegible and it is very difficult to decipher them. First paper is a copy of F.I.R. which was lodged against the sons of one Majid Ali said to be defendant No. 2. This F.I.R. was made on 18.1.67 but from this document. It cannot be inferred that defendant No. 2 was at that time residing in the disputed accommodation. The papers filed with supplementary affidavit dated 17.1.96 are also not sufficient to disturb the finding of fact recorded by the courts below that the defendant No. 2 was inducted in the house in question in the year 1975 and not before the commencement of the Act.
16. For the above reasons, this Court finds no sufficient reason to interfere with the above concurrent findings of fact recorded by both the courts below and their conclusion that the tenant/petitioner was liable to eviction on the ground of sub-letting requires no intervention.
17. The revisional court has also held that the defendant/petitioner is liable to ejectment on the ground of causing material structural alteration in the tenanted accommodation by raising a partition wall in the house which has resulted in its disfigurement and in diminution of its utility.
18. As already stated above, the concurrent finding of fact of the courts below is that a partition wall was raised by the tenant in 1975 which divided the tenanted house into two portions. There is also a concurrent finding that the said construction was raised without the permission of the landlord. The trial court took the view that the mere raising of partition wall was not sufficient to constitute material alteration. However, the revisional court took a contrary view and concluded that the said partition wall has not only caused disfigurement of the building by dividing the same into two separate tenaments but has also diminished its utility. The question that arises for consideration is whether the view taken by the revisional court is incorrect in law ?
19. Learned counsel for the petitioner relied upon the decision in Baldev Das v. Ram. Khelawan, 1979 (5} ALK 44. In this case, it was held that the question whether raising of a partition wall within a tenanted shop would amount to material alteration is essentially a mixed question of fact and law. The revisional court in this case had come to the conclusion that there was no material alteration and this Court refused to upset the finding of the revisional court.
20. In the case of Sm. Ram Janki v. 1st Additional District Judge, Banda and others, 1984 (1) ARC 465, it was held that in regard of clause (c) of subsection (2) of Section 20 of the Act the use of the word 'or' towards the end of this clause on two places, namely, before the word 'utility' and the word 'disfigure' makes it clear that the recruitment of Section 20 (2) (c) of the Act will be fulfilled even if the case is brought under any of the three categories mentioned therein, namely :
(1) diminishing the value of the accommodation :
(2) diminishing its utility ; and (3) disfiguring it.
21. Before a landlord becomes entitled to get a decree of eviction on the ground as mentioned under Section 20 (2) (c), he is required under law to establish :
(i) that the tenant has made some construction :
(ii) that the construction has been made in the tenanted accommodation ;
(iii) that the construction has been made without the landlord's written permission :
(iv) that the construction is such as is likely to :
(a) diminish the value of the tenanted building . or
(b) diminish its utility, and
(c) disfigure it.
22. In the case of Mool Narain Mehrotra v. Smt. Gulab Devi, 1987 (2) ARC 411, this Court observed that Section 20 (2) (c) is materially different than what was provided for in Section 7 (1) (c) of the old Act. Under the old Act, a landlord without the permission of the District Magistrate could bring a suit for eviction against a tenant, where he had either caused or permitted to be caused "any material alteration" in the building or any such alteration which was likely to diminish the value of the accommodation. The Legislature has now brought material changes in Section (2) (2) (c). In this case, it was also held that it is not necessary that diminution in its value, or utility or disfiguring it must be present together for the purposes of proving the ground of eviction of the tenant stated in Section 20 (2) (c). Similar view was taken in Shabir Ahmad v. 1st Additional District Judge, Saharanpur, 1983 (1) ARC 145 and Udai Bhan Gupta v. Hari Shanker, 1985 (2) ARC 20, as well as in the case of Smt. Swaran Devi v. Smt. Meenoksht Gautam, 1993(1) ARC 49.
23. In order to examine whether the bar for instituting suit for eviction gets removed under clause (c) of Section 20 (2), at the first instance, the court must find out whether any construction in the demised premises has been made by the tenant without the permission of the landlord. Thereafter, the court has to proceed to examine whether the said construction is of such a nature as is likely to either diminish the value or utility of the building or to disfigure it. Whether a particular construction is likely to diminish the value of the building or its utility or to disfigure it, is a question, whose answer will depend upon various factors and each case has to be decided upon its own facts. No hard and fast rule in this respect can be laid down. In the case of Smt. Rajrani Kapoor v. Bhupinder Singh, 1986 (2) 457, it was held that 'disfigurement' has not been defined in the Act. If the existing shape and the beauty of the building is adversely affected consequent upon raising of disputed construction either in or upon the building, it may amount to disfigurement. It was further laid down that it is neither proper nor possible to lay down any hard and fast rule in this respect and each case must depend upon its own facts.
24. In view of what has been stated above, for determining the question whether the offending construction has caused any disfigurement or not, each case has to be judged in the light of its own facts and circumstances and in the light of the effect which the offending construction has on the mind of an average person on seeing it. Disfigurement does not depend upon any single factor but is the cumulative effect of the variety of circumstances, place, nature, magnitude and its effect on the look of the existing construction and on the overall appearance of the building.
25. In the present case, both the courts below have found as a fact that the construction of the partition wall has divided the tenanted accommodation into two portions, one portion is being used by the tenant in chief, i.e., the petitioner and the other by his sub-tenant. The trial court did not examine the question any further and recorded the finding against the plaintiff by merely concluding that the raising of partition wall was not sufficient to hold that the tenant made any material structural alteration. The trial court did not go into the question whether the construction of the said partition wall was of such a nature as was likely to diminish its value or its utility or to disfigure it. Under law, the court was required to weigh the entire fact and circumstances of the case for examining the question whether the raising of partition wall in the present case resulted attraction of clause (c) of Section 20 (2). Since it was a mixed question of fact and, law, the revisional court went into this question and concluded that the partition wall has diminished the utility of the building inasmuch as the landlord had let out the building for being used as one composite unit but the tenant has raised constructions so as to divide the same into two separate apartments and thereby the utility of the building has been diminished as sizes of the rooms have been made smaller and the tenanted accommodation is now not capable of being utilised in the same shape as was let out to defendant No. 1. It has also been found by the revisional court that the partition wall has resulted in disfigurement of the building inasmuch as instead of having one common entry door, two entry doors have been opened for making entries in two separate apartments. The conclusion arrived at by the revisional court on proved facts cannot be said to be erroneous in law and this Court finds no justifiable reason to take a contrary view.
26. For the above reasons, this writ petition must fall.
27. Writ petition is dismissed. The interim stay order is, vacated. In the circumstances of the case, "parties are directed to bear their own costs.