Kerala High Court · 2008

P.R.Raman &T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - -R.C.R. Nos.270 & 385 of 2004 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2008.O R D E RRamachandran Nair, J.The premises in question was rented out to the tenant as per leasedeed dated 23.9.1969. The tenant is conducting a hotel there. It was ownedby a partnership firm named as M/s. M.C. Vareed and Company. Thepresent landlord was one of the erstwhile partners. The monthly rentclaimed is at the rate of Rs.225/-. The partnership was dissolved on16.10.1999 and the schedule building was set apart to the present landlord.The eviction petition was filed raising various grounds under Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease & RentControl) Act, 1965 (hereinafter referred to as 'the Act'). The trial courtgranted eviction under Section 11(4)(ii) of the Act and rejected the othergrounds. Both sides appealed against the said order passed by the RentControl Court.2. The Appellate Authority by a common judgment, partly allowedthe appeal filed by the landlord in regard to the ground pleaded underSection 11(2)(b) and thus ordered eviction on the ground of arrears of rent. RCR 270 &385/2004-2-The order passed by the Rent Control Court rejecting the ground underSection 11(3) and 11(4)(i) was confirmed. As regards the ground underSection 11(4)(ii), accepting the plea of the landlord, the matter standsremanded to the Rent Control Court for fresh consideration. Both sideshave come up in revision challenging the above judgment of the AppellateAuthority.3. We have heard Shri Mathew John, learned counsel appearing forthe landlord and Shri M.A. Abdul Hakhim who appeared for the tenant.4. The necessary facts for the disposal of the revision petitions showthe following: According to the landlord, on dissolution of the partnership,he has become the absolute owner of the tenanted premises. An amount ofRs.5,275/- remained as arrears of rent for the period 23.9.1969 to March1987. From April 1987 onwards no amount has been paid towards rent.The premises have been subleased to the second respondent in the RentControl Petition who is conducting a hotel in the name and style of 'SagarHotel'. The bonafide need pleaded is for own occupation by the landlord toconduct business in sanitary items as he has no other avocation in life. It isalleged that the tenant has effected certain alterations which have reducedthe value and utility of the building. Two steps leading to the front room RCR 270 &385/2004-3-stands demolished, a new wash basin with bricks was constructed by him inone room, a new latrine was constructed in the corner of one of the rooms,another water tank was constructed and a new pipe connection was taken toit. For driving out water from the said water tank a drainage has also beenlaid. These are the grounds under under Section 11(4)(ii) of the Act.5. In his objections, the tenant mainly contended that the right, if anyof the landlord is only upon dissolution of the partnership on 16.10.1999and he cannot maintain a petition for eviction for any alleged arrears of rentprior to the said period during which the partnership was owning thebuilding. The original rent was only Rs.200/- and it was agreed that certainconstructions mentioned in the lease deed had to be undertaken by thelandlord and on completion of the same, the rent will be increased toRs.225/- and when the father of the present landlord was informed about it,he refused to receive rent from him. The arrears of rent from 16.10.1999 tilldate of petition was deposited along with the objection. The ownoccupation for bonafide need of the landlord was disputed by the tenant inhis objections. It is stated that the landlord and his wife are doing variousbusinesses in Aluva and Varappuzha. Apart from that, three roomsnumbered as 195, 197 and 198 in Ward No.VIII are remaining vacant in the RCR 270 &385/2004-4-possession of the landlord and the tenant of one of the rooms was evictedthrough court by filing R.C.P.No.9/2000. This is an up stair room of thepetition schedule building and there is a stair leading to the said room andthis is sufficient for doing his proposed business. The allegation that he hadeffected material alterations was also denied and according to him, the leasedeed permits seven items of works for improving the facilities of thebuilding. The Municipality, by a notice, instructed him to do certain workswhich alone have been attended. He had made this construction as enjoinedby the terms of the lease deed and as directed in the notice of theMunicipality. The allegation that the value and utility of the building havebeen reduced by the said alteration, is denied by him. It was also pointedout in para 14 of the objection that the bathroom was already existingwhich was only repaired by him and the latrine was also there. Theallegation of sub-lease was also denied by him.6. The evidence consists of the oral evidence of P.W.1 and R.Ws.1and 2 and documentary evidence by way of Exts.A1 to A13 and Exts.B1 toB6. As already noticed, the Rent Control Court found in favour of thetenant on the ground pleaded under Sections 11(2)(b), 11(3) and 11(4)(i) ofthe Act. It was found that the partnership was dissolved only on 16.10.1999 RCR 270 &385/2004-5-and relying upon the dictum laid down by this court in Suhara v. AbdulShukkur (1996 (2) KLT 836) it was held that the landlord is entitled to getarrears of rent only subsequent to the execution of partition deed. As thelandlord was only a partner prior to 16.10.1999, he had no exclusive right tocollect rent during that period.7. While examining the ground pleaded under Section 11(3) of theAct, the Rent Control Court found that the landlord is having in hispossession building Nos.6/570 and 6/574 and as no special reasons havebeen proved by the landlord, he is not entitled to get eviction under Section11(3) of the Act.8. Regarding the ground under Section 11(4)(ii) of the Act, viz.material alteration made by the tenant, the Rent Control Court, relying uponclause 4 of the lease deed, found that constructions have been effected bythe tenant without any permission from the landlord. It was found thateven if there is failure on the part of the landlord to carry out improvementsas described in clause 13 of Ext.A1 lease deed, the tenant will not get anyright to do the same without the consent of the landlord. Relying uponExts.A4 and A5 which are the reports of the Commissioner inO.S.NO.335/2000 filed by the landlord against the tenant, it was found that RCR 270 &385/2004-6-the improvements effected are material alterations. Ultimately, it was foundthat as the tenant has effected material alterations without the consent of thelandlord, it has to be held that the tenant uses the building in such a manneras to destroy and reduce its value and utility materially and permanently.Therefore, eviction was ordered under Section 11(4)(ii) of the Act. The pleaof sub-lease was rejected for lack of any evidence on that aspect.9. Before the Appellate Authority, the contention raised by the tenantthat Exts.A4 and A5 cannot be relied upon without examining theCommissioner, was accepted by the Appellate Authority. On the requestmade by the landlord that the matter may be remanded to adduce freshevidence on that aspect, the Appellate Authority vacated the order passed bythe Rent Control Court and remanded the matter for fresh consideration.The Appellate Authority was of the view that the landlord is entitled tosucceed on the plea under Section 11(2)(b). It was held that the landlordbeing one of the co-owners of the building, is entitled to get an order ofeviction on the ground of arrears of rent.10. The Appellate Authority also confirmed the finding that thelandlord is having other buildings in his possession and Ext.B1 certifiedcopy of the relevant pages of the assessment register maintained by the RCR 270 &385/2004-7-municipality was relied upon. It was held that the tenant is entitled to getthe protection under the first proviso to Section 11(3) of the Act. TheAppellate Authority confirmed the finding under Section 11(4) (i) of the Actalso. These orders are under challenge in the revision petitions filed by thetenant as well as the landlord.11. Elaborate arguments were raised by the learned counselappearing on either side in regard to the ground pleaded under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Act. Learned counsel for the landlordsubmitted that as far as the plea under Section 11(4)(ii) is concerned, he isnot placing reliance upon Exts.A4 and A5 reports of the Commissioner inthe civil suit and therefore the matter need not be remanded back to the RentControl Court and that the same can be considered in the revision petitionsby this court. Accordingly, arguments were raised by either side on thesustainability of the ground under Section 11(4)(ii) of the Act. The findingrendered by the Rent Control Court and the Appellate Authority rejectingthe plea of the landlord for eviction under Section 11(3) was also attackedby learned counsel appearing for the landlord.12. First we will consider the ground pleaded under Section 11(3) ofthe Act. Herein, the plea raised by the landlord is that he wants to start a RCR 270 &385/2004-8-business in sanitary items, as he is not having any avocation in life. Inreply, the tenant contended that he has got various businesses like 'JayasreeHardwares' and 'Cement and Asbestos Shop' very near to the petitionschedule building. Apart from that, it is contended that the landlord ishaving vacant possession of rooms numbered as VIII/195, 197 and 198 ofWard No.XVIII. One of the rooms, viz. room No.198 was evicted throughcourt in R.C.P.No.9/2000. Apart from these rooms, he is having anotherroom, viz. room No.VI/501 and he purchased room Nos.XVIII/429 andXVIII/430 which are godown rooms. It is stated that these facts have beensuppressed in the eviction petition. When the landlord was examined asP.W.1, in his proof affidavit it is stated that room No.VIII/195 is not vacant,room No.VIII/197 is not owned by him and room No.VIII/198 is in theupper floor and there is only a stair having a width of 3 ½ ft. leading to thesaid room. After his cross examination, he was again examined, and heproduced Exts.A9 and A9(a) certified copy of the profession tax demandregister to show that building No.VIII/195 (new number VI/567) is in thepossession of one Muraleedharan as a tenant.13. We will now advert to the view taken by the authorities below.Both the authorities below concurrently found against the landlord stating RCR 270 &385/2004-9-that he is having in his possession vacant rooms and going by the firstproviso to Section 11(3) of the Act, in the absence of any special reasons,eviction cannot be ordered. The tenant had produced Ext.B1 copy ofbuilding tax assessment register for the period 1999-2000 to 2003-04 of theAluva Municipality relating to door Nos.VI/567 to VI/580 and going by thesame, three vacant rooms pointed out by the tenant are in occupation of thelandlord. This was the clinching evidence against the plea raised by thelandlord. Learned counsel for the landlord submitted that Ext.A9 will showthat building No.VI/567 is in occupation of one Muraleedharan andtherefore the findings rendered by the authorities below are vitiated. Ext.A9is the register showing payment of profession tax for the year 2001-02. Thiswas not accepted by the authorities below in view of the fact that the sameis not conclusive in the absence of production of the lease deed in respectof the said room and the non-examination of the alleged tenant. Learnedcounsel for the petitioner pointed out that the eviction petition itself is dated11.4.2001. The proof affidavit of the landlord is dated 11.12.2002 and hewas further examined on 17.12.2002 and at that point of time only the saiddocument was marked. Further, it is pointed out that the date of remittanceof the profession tax is noted as 13.12.2002 and therefore merely on the RCR 270 &385/2004-10-basis of Ext.A9, it cannot be conclusively found that the building wasoccupied by Shri Muraleedharan as a tenant on the date of filing of theeviction petition. We see much force in the submission made by thelearned counsel for the tenant that Ext.A9 cannot be relied upon in the lightof the above facts as well as due to the non-examination of the allegedtenant and the non production of the lease deed in respect of the saidtenancy. Apart from that, Ext.B1 shows that the same is for the period1999-2000 to 2003-2004 and room Nos.567, 570 and 574 are remainingvacant. In the light of the said document, the contention raised by thelandlord was rightly rejected by the court below. Room No.198 wasobtained by the landlord by filing R.C.P.No.9/2000. It is in the first floor ofthe building wherein the petition schedule room is situated. Admittedly, inthe pleadings nothing has been mentioned by way of special reasons as towhy any of these rooms could not be used by the landlord. Even in thedeposition the landlord only says that it cannot be used and no cogent andconvincing reasons have been stated as to why it cannot be used for thebusiness proposed to be done by the landlord. Even though learned counselfor the landlord states that the stair to that room is only 3 ½ ft. width, we areunable to accept the same as a special reason because of the fact that it was RCR 270 &385/2004-11-already outstanding with a tenant who was evicted by filingR.C.P.No.9/2000. As to why the stair cannot be used or as to itsinconvenience, if any, there is no reliable evidence and no Commission wastaken out. He has no plea that it cannot be repaired before using the same.Thus, the faint plea raised by the landlord that it cannot be used, was notaccepted by the authorities below. In the light of the clear evidence againstthe landlord by way of Ext.B1 and in the absence of any special reasonspointed out by him worthy of acceptance, we find that the authorities belowhave not acted perversely in reaching these conclusions.14. Learned counsel for the landlord, relying upon the decision of aDivision Bench of this court in Jerry Joseph v. Selvaraj (2002 (2) KLT129), contended that even if the landlord failed to mention in the petition,the details of vacant rooms in his possession, that cannot be treated as fatal.In the said decision, this court by relying upon the decision of the ApexCourt in M.L. Prabhakar v. Rajiv Singal {(2001) 2 SCC 355} in para 18,held that “even if the landlord failed to mention in the petition for evictionabout the other premises belonging to him, if materials about those alternateaccommodation have been placed before the court and the matter has beenadequately considered by the court without causing any prejudice to the RCR 270 &385/2004-12-tenant, the non-disclosure of the availability of buildings in the petition isimmaterial.” We fail to appreciate how the said dictum will apply to thefacts of this case. Herein, on the evidence it is found by the authoritiesbelow that the landlord is having vacant possession of three rooms and noconvincing reasons have been pointed out by him for not occupying it. Theway in which he has come out with the case now pleaded is also worthy ofmention. In the eviction petition nothing was mentioned. The tenant hadincorporated sufficient data in para 8 of his objections. No amendment inthe pleadings was attempted by the landlord and no replication/reply wasfiled. In the proof affidavit, it was merely stated that room No.VIII/195 isnot vacant, room No.VIII/197 is not owned by him and is not vacant, roomNo.VIII/198 is in the upper floor and is not suitable for the business and thatthe stair leading to it is only having a width of 3 ½ ft. After hisexamination, he was recalled for producing Exts.A9 and A9(a). The tenantwas examined as R.W.1 on 7.1.2003. Hence, we are of the view that noeffective attempt was made by the landlord to have any cogent andconvincing reasons for not occupying the vacant rooms. The authoritiesbelow have held against the landlord not for the reason that there were nopleadings, but for the reason that there was no cogent and convincing RCR 270 &385/2004-13-evidence on his part. It was further held that building Nos.VI/567, 570 and574 are outstanding in his possession which is proved by Ext.B1 certifiedcopy of the relevant page of the assessment register of the Municipality.The alternate plea made by the landlord that one building was leased out toShri Muraleedharan, was not substantiated by proper evidence. Therefore,the court below was of the view that going by the first proviso to Section 11(3) of the Act, the tenant is entitled to get protection. 15. The first proviso to Section 11(3) states as follows:“11(3).................Provided that the Rent Control Court shall not give any suchdirection if the landlord has another building of his own in hispossession in the same city, town or village except where the RentControl Court is satisfied that for special reasons, in any particularcase it will be just and proper to do so.”In fact, in Janatha Drugs v. Maithri Construction (2007 (4) KLT 625)while examining the legal effect of the said provision, it was held by aDivision Bench of this court consisting one of us (T.R. RamachandranNair, J.), as follows:“It is clear that the special reasons should be germane to the issue inquestion and should not be evasive reasons shown by the landlord.When the landlord came into possession of rooms which are having RCR 270 &385/2004-14-more or less equal space in the very same building, where the tenantalso is occupying a similar room, the question is whether thelandlord was justified in letting out the rooms for a higher rentwhile requiring the eviction of the tenant herein....................Theburden is on the landlord to plead and prove special reasons whenhe gets possession of other rooms. The landlord has got a duty toexplain the special reasons for not choosing to occupy the premiseshe has come into possession. We are adverting to the above in thelight of the fact that when in a case where the first proviso isattracted, eviction can be ordered only if the court is satisfied thatthere are special reasons enabling the landlord not to choose tooccupy the vacant premises. That the landlord will get more rent ifthose premises are rented out, rather than occupying one of therooms for the business proposed to be started, cannot be a specialreason for the purpose of the 1st proviso. It prohibits the power ofthe court to order eviction unless acceptable special reasons exist.”If acceptable reasons are not there, going by the first proviso, the courtcannot order eviction. In view of the accepted legal position, we are ofopinion that the authorities below have not acted perversely in denyingeviction under Section 11(3) of the Act. It cannot be said that theappreciation of evidence is in any way vitiated. Therefore, we reject thesaid argument raised by the learned counsel for the landlord.16. The other main ground on which eviction sought for is under RCR 270 &385/2004-15-Section 11(4)(ii) of the Act. The respective contentions in the pleadingshave been stated by us already. The landlord contends that the workseffected amounts to material alterations, and the tenant disputes the same.His case in para 14 of the objection is that already there was a bathroom anda latrine for common use. Only repair works alone have been effected byhim. No other independent evidence by way of report of the Commissioneris there. 17. The landlord had filed a suit earlier, seeking for an injunctionagainst the tenant from making out material alterations of the building.Exts.A4 and A5 are the reports of the Advocate Commissioner. TheCommissioner was not examined. It is in that view of the matter, theAppellate Authority after setting aside the finding rendered by the RentController, remanded the matter for fresh consideration. Significantly, theAppellate Authority was of the view that if Exts.A4 and A5 are eschewed,there is no material evidence on record to show that there was any alterationor addition to the building. But the learned counsel for the landlordsubmitted that even without looking into Exts.A4 and A5 it can beconcluded that the constructions made are material alterations and thereforethe grounds pleaded under Section 11(4)(ii) of the Act have been proved by RCR 270 &385/2004-16-him. Reliance was placed on the decision of this court in SeethalakshmiAmmal v. Nabeesa Beevi (2003 (1) KLT 391) to contend that as regardsmaterial alterations, the view of the landlord has to be taken and as he hasnot consented to the alterations and as there is prohibition against the samein the lease deed, the tenant is liable to be evicted. 18. Per contra, learned counsel for the tenant relied upon thedecisions of the Apex Court in Om Prakash v. Amar Singh and others{(1987) 1 SCC 458} and Reghunathan v. Varghese (2005 (4) KLT 147(SC) and the following decisions rendered by this court, viz. Aboobacker v.Nanu (2001 (3) KLT 815) and Lakshmi v. Labbah Kunju Ameer Hamsa(2005 (3) KLT 627) to contend for the position that the alterations, if any,made will not reduce the value and utility of the building materially andpermanently. It is submitted that by making improvements in thebathroom, addition of the facility by providing a wash basin and a watertank for storing water to clear the utensils, no damage has been caused tothe structure or to the front of the building and therefore no eviction can beordered.19. Going by Section 11(4)(ii) of the Act, the requirement will besatisfied only if the tenant has used the building in such a manner as to RCR 270 &385/2004-17-cause damage or has reduced its value and utility materially andpermanently. Going by the decision of this court the words 'materially' and'permanently' are not disjunctive. 20. Before going into the contentions raised by the parties, we willrefer to the legal position declared by the Apex Court in Om Prakash'scase {(1987) 1 SCC 458} and Reghunathan's case (2005 (4) KLT 147SC). In the former case, after considering the meaning of the word'materially' and 'alter', their Lordships laid down in para 6 the legal positionthus:“In determining the question the court must address itself to thenature, character of the constructions and the extent to which theymake changes in the front and structure of the accommodation,having regard to the purpose for which the accommodation may havebeen let out to the tenant. The legislature intended that only thoseconstructions which bring about substantial change in the front andstructure of the building should provide a ground for tenants'eviction, it took care to use the word “materially altered theaccommodation”. The material alterations contemplate change ofsubstantial nature affecting the form and character of the building.Many a time tenants make minor constructions and alterations forthe convenient use of the tenanted accommodation. The legislaturedoes not provide for their eviction instead the construction so made RCR 270 &385/2004-18-would furnish ground for eviction only when they bring aboutsubstantial change in the front and structure of the building.Construction of a chabutra, almirah, opening a window or closing averandah by temporary structure or replacing of a damaged roofwhich may be leading or placing partition in a room or makingsimilar minor alterations for the convenient use of theaccommodation do not materially alter the building as in spite ofsuch constructions the front and structure of the building may remainunaffected. The essential element which needs consideration is as towhether the constructions are substantial in nature and they alter theform, front and structure of the accommodation. It is not possible togive exhaustive list of constructions which do not constitute materialalterations, as the determination of this question depends on the factsof each case.”21. In Reghunathan's case (2005 (4) KLT 147(SC)), the Apex Courtconsidered the various aspects concerning the interpretation of Section 11(4)(ii) in detail. It was held that “the question depends on the facts of thecase. The nature of the building, the purpose of the letting, the terms of thecontract and the nature of the interference with the structure by the tenant,are all relevant. The destruction or damage has to be adjudged from thestand point of the landlord.” After referring to the nature of theconstructions made by the tenant, viz. bricking up of the western wall and RCR 270 &385/2004-19-the door and windows on the northern, western and eastern walls, it washeld that the bricked up portions can be removed and the doors andwindows restored without weakening the structure. Referring to theconstruction, viz. fixing up a rolling shutter, it was held that the sameprovides more security to the premises. Ultimately, while referring to themeaning of the words “material and permanent”, it was held that “the wordsare not disjunctive, like in some other Acts. Here, the landlord has notproved the material and permanent impairment in value or utility. Onesuspects that the value and utility are enhanced. The landlord has failed toprove that the acts of the tenant constitute the user of the building in such amanner as to destroy or reduce the value or utility of the building materiallyand permanently.” The order of eviction was set aside by the Apex Court.22. In Aboobacker's case (2001 (3) KLT 815), a Division Bench ofthis court approved the decision reported in Shanmugam v. Rao Saheb(1988 (1) KLT 86). In that decision it was held that “the expression“materially and permanently” in clause (ii) of sub-section (4) of the Actwould certainly indicate that a landlord cannot get an order of eviction onthat ground by mere proof of minor a destruction, or alteration, even if itresults in marginal reduction of value or utility. As the expression was RCR 270 &385/2004-20-used conjunctively the legislature has indicated that even materialalterations of a temporary nature would not help the landlord in getting anorder of eviction. The destruction or reduction of utility or value of thebuilding must be of a reasonably substantial magnitude.”23. In Lakshmi's case (2005 (3) KLT 627), after referring to theevidence available in the case, it was held that “minor alterations, even ifmade by the tenant to suit his hotel business is no ground for orderingeviction.” The Division Bench relied on the decision of the Apex Court inOm Prakash's case {(1987) 1 SCC 458). Learned counsel for the tenantrelied upon the said decision to contend that in this case also the tenant isconducting a hotel business and the constructions, if any, will amount tominor alterations only for the convenient conduct of the hotel business.24. Bearing in mind the principles discussed above, we will nowadvert to the allegations in the eviction petition and the evidence adducedby the parties, to consider whether the alleged constructions amount tomaterial alterations which reduce the very utility and value of the building.As we have noted already, the allegations are mainly that the tenant hasconstructed a new latrine in one of the rooms, a water tank for storing waterwas made and a drain has been put obviously to drain out water from the RCR 270 &385/2004-21-tank, a new wash basin with bricks has been put in one room and a pipeconnection was also taken to the water tank. The tenant did not admit thathe had made all such constructions. According to him, he had only repairedthe existing bathroom and latrine and no new constructions have been madein that regard. Except the oral evidence of P.W.1, the landlord, there is noother independent evidence in support of these allegations, as he is notrelying upon Exts.A4 and A5. In the proof affidavit in para 2 he hasreiterated the same.25. Even if the allegations are accepted in its entirety, there is noallegation that the tenant has made any structural alterations. No walls havebeen demolished, no construction affecting the roof or altering the front andstructure of the building has been made. Going by the principles stated bythe Apex Court in Om Prakash's case {(1987) 1 SCC 458) and inReghunathan's case (2005 (4) KLT 147), what is important is to seewhether any interference has been made by the tenant with the structure.The nature of the building and the nature of the purpose for which it was letout, have also to be considered. Herein, the building has been let out forconducting a hotel. A bathroom, a wash basin and a water tank, obviouslyfor storing water to clean the utensils will provide necessary convenience RCR 270 &385/2004-22-for the conduct of the hotel. It cannot be said that these constructions willinterfere with the structure of the building itself or as a result of which, anydamage has been caused to the building. As held by the Apex Court, thenature and character of the constructions and the extent to which they makechanges in the front and structure of the accommodation, having regard tothe purpose for which the accommodation may have been let out to thetenant, have to be considered. We are of the view that substantial change inthe front and structure of the building have not been resulted by theconstructions made by the tenant in this case. The nature and character ofthe building have not been changed substantially. The construction cannot,therefore, be characterised as material alteration which has resulted inreducing the value and utility of the building as such. Of course, the tenantwas not successful in his plea that there was consent of the landlord andthere was a permission as per the terms of the lease deed. Even thoughgoing by the terms of the lease deed the landlord had agreed to make certainconstructions listed therein, obviously he cannot raise a contention that suchimprovements will amount to material alteration. Herein, going by the casepleaded by the tenant, he had only repaired the existing bathroom andlatrine and cement plastering was made. That will not, at any rate, amount RCR 270 &385/2004-23-to any structural alterations of a substantial nature. Apart from that, there isno evidence to show that the constructions made have resulted in reducingthe value and utility of the building materially and permanently. How theutility and value has been reduced, are not explained by the landlord in hisproof affidavit also. Actually, a bathroom and a wash basin can only betermed as amenity and the water tank is obviously for storing water for theuse of the hotel. There is no evidence to show that a drain that is made todrive of water from the water tank has been constructed by destroying anyportion of the wall of the building also. As evidence is lacking in all theserespects, we are of the view that either due to the construction or in case ofremoval of the same, no damage will be caused to the structure and theutility and value of the building cannot be said to be reduced by theconstruction. As held by this court in Shanmugam v. Rao Saheb (1988(1) KLT 86), the destruction or reduction of utility or value of the buildingmust be of a reasonably substantial magnitude. Since the expressions“materially and permanently” are used conjunctively, the legislature hasindicated that even material alterations of a temporary nature would not helpthe landlord in getting an order of eviction. Since we are of the view that nointerference has been caused to the structure and that the alteration, if any, RCR 270 &385/2004-24-effected has not affected its utility or value, the landlord is not entitled foreviction under Section 11(4)(ii) of the Act. Therefore, the view taken by theRent Control Court in that regard cannot be sustained. These aspects havenot been considered in the correct legal perspective by the Rent ControlCourt and the Appellate Authority. They have jumped into the conclusionthat the improvements will automatically amount to material alterationsresulting in reduction in value and utility of the building, in the absence ofany consent or permission granted by the landlord expressly or by the termsof the lease deed. That not being the sole test, we are of the opinion that theview taken by the authorities in that respect is perverse and we set aside thesame.26. The other question is regarding the claim foreviction under Section 11(2)(b) of the Act. Here, the Rent Control Courtfound in favour of the tenant and the said view has been reversed by theAppellate Authority. The arrears claimed, going by the averments in thepetition for eviction, have occurred between 23.9.1969 till April, 1987, i.e.an amount of Rs. 5,725/- after adjusting the amount paid, along with itsinterest and the rent accrued from April, 1987. The objection raised by thetenant is that admittedly the partnership was dissolved only on 16.10.1999 RCR 270 &385/2004-25-and the landlord cannot claim the arrears, if any, prior to the said date.Reliance is placed on the dictum laid down in Suhara's case (1996 (2) KLT936). Learned counsel for the tenant submitted that the said dictum doesnot apply herein, as here there is no assignment. The learned counsel forthe landlord relied upon the decisions of the Apex Court in Shri RamPasricha v. Jagannath and others (AIR 1976 SC 2335) and Smt. KantaGoel v. B.P. Pathak and others (AIR 1977 SC 1599). Learned counsel forthe tenant relied upon the decision of the Apex Court in N.M. Engineerand others v. Narendra Singh Virdi and another (AIR 1995 SC 448) toargue for the position that rent due before assignment do not constitutearrears of rent and it was merely an actionable claim.27. The Rent Control Court took the view that as the partnership wasdissolved only on 16.10.1999 and as the landlord became the owner of theproperty only by the said dissolution, the claim raised for eviction underSection 11(2)(b) cannot be sustained. The Appellate Authority took theview that even prior to 16.10.1999 the landlord being one of the co-ownersof the building, is entitled to get an order of eviction on the ground ofarrears of rent, since there is no evidence to show that the tenant has paidrent to other co-owners also. In Suhara's case (1996 (2) KLT 936), a RCR 270 &385/2004-26-Division Bench of this court held that “a petition for eviction under Section11(2)(b) of the Act cannot be filed by an assignee landlord allegingexistence of arrears of rent which fell due prior to the assignment of thebuilding in his favour even if the right to recover such prior arrears of rentwas later assigned to him by a separate assignment deed.” Their Lordshipshave referred to the provisions of Section 109 of the Transfer of PropertyAct and its proviso. The proviso to Section 109 of the T.P. Act reads thus:“ Provided that the transferee is not entitled to arrears of rent duebefore the transfer, and that, if the lessee, not having reason to believethat such transfer has been made, pays rent to the lessor, the lesseeshall not be liable to pay such rent over again to the transferee.”28. The plea raised by the learned counsel for the landlord is thateven prior to 16.10.1999 the landlord was a co-owner and as a co-owner, hewas entitled to maintain an application for the defaulted rent and that rightsurvives after the dissolution of the partnership when he has acquired theownership of the entire property and therefore the claim under Section 11(2)(b) can be sustained. It was argued that as a partner, he was a co-owner onthe assets of the partnership. Learned counsel referred to para 28 of thedecision of the Apex Court in Shri Ram Pasricha's case (AIR 1976 SC2335) in support of the above plea. We extract para 28 below: RCR 270 &385/2004-27-“Mr. V.S. Desai reads to us from 'Salmond in Jurisprudence' (13thedition) and relies on the following passage in Chapter 8(Ownership), paragraph 46 at page 254:“As a general rule a thing is owned by one person only at atime, but duplicate ownership is perfectly possible. Two or morepersons may at the same time have ownership of the same thingvested in them. This may happen in several distinct ways, but thesimplest and most obvious case is that of co-ownership. Partners, forexample, are co-owners of the chattels which constitute their stock-in-trade, of the lease of the premises on which their business isconducted, and of the debts owing to them by their customers. It isnot correct to say that property owned by co-owners is dividedbetween them, each of them owning a separate part. It is anundivided unity, which is vested at the same time in more than oneperson .......... The several ownership of a part is a different thingfrom the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it,the co-ownership has been dissolved into sole ownership by theprocess known as partition. Co-ownership involves the undividedintegrity of what is owned.”In that case the question which came up for consideration is whether alandlord who is a co-owner of the premises with others is the 'owner' withinthe meaning of Section 13 of the West Bengal Premises Tenancy Act, 1956.The contention raised by learned counsel for the landlord, relying upon the RCR 270 &385/2004-28-above quoted para, is that a partner is also a co-owner and the sameprinciple will apply. We propose to consider it in the light of certainaspects considered in other decisions.29. The Apex Court in Champaran Cane Concern (dissolved) v.State of Bihar and another (AIR 1963 SC 1737) considered the differencebetween a partnership and co-ownership and laid down the legal position inpara 8 thus:“The main differences between a partnership and co-ownership are:(1) co-ownership is not necessarily the result of an agreement,whereas partnership is; (2) co-ownership does not necessarily involvecommunity of profit or loss, but partnership does; (3) one co-ownercan, without the consent of the other, transfer his interest etc. to astranger, a partner cannot do this; and lastly but prominently, (4)while in a partnership each partner acts as an agent of the other, in aco-ownership one co-owner is not as such the agent, implied or real,of the other, Lindley on Partnership, 12th Edn; page 57, Rel. on.”In Keshavji Ravji and Co. etc. etc. v. Commissioner of Income-tax (AIR1991 SC 1806), the Apex Court, after referring to an earlier decision of theApex Court in Narayanappa v. Krishtappa (AIR 1966 SC 1300),considered the nature of interest of a partner of a firm and held in para 8that “a firm under the general law is not a distinct legal entity and has no RCR 270 &385/2004-29-legal existence of its own. The partnership property vests in all the partnersand in that sense every partner has an interest in assets of the partnership.However, during the subsistence of the partnership no partner can deal withany portion of the property as his own.” The following is the relevantextract from the decision in Narayanappa's case (AIR 1966 SC 1300):“............. The whole concept of partnership is to embark upon ajoint venture and for that purpose to bring in as capital money oreven property including immovable property. Once that is donewhatever is brought in would cease to be the exclusive property ofthe person who brought it in. It would be the trading asset of thepartnership in which all the partners would have interest inproportion to their share in the joint venture of the business of thepartnership. The person who brought it in would, therefore, not beable to claim or exercise any exclusive right over any propertywhich he has brought in, much less over any other partnershipproperty. He would not be also to exercise his right even to theextent of his share in the business of the partnership.......................”We are, therefore, of the view that the concept that a co-owner can maintainan application for eviction of the premises, cannot apply on all fours in thecase of a partner.30. The question to be considered here is whether on the dissolutionof the partnership, the arrears of rent prior to 16.10.1999 still enables the RCR 270 &385/2004-30-landlord to seek eviction under Section 11(2)(b) of the Act.31. The point at issue is not res-integra in the light of the expositionof law in N.M. Engineer's case (AIR 1995 SC 448). Regarding thequestion whether the rent due before the assignment should constitutearrears of rent or it is only a debt, the Apex Court in the above decision,after considering various aspects, held that “the rent is merely a debt.Therefore, whatever might have been due prior to deed of lease dated8.6.67, could not constitute arrears of rent. It was mere actionable claim.That being so, the notice does not satisfy the requirements of Section 12(3)(a).” We are of the view that the said legal position applies to the facts ofthis case and the question whether the landlord was a co-owner in thepartnership and whether he can maintain an application for eviction, is notthe real test. The rent claimed as due prior to 16.10.1999 is a mere debt. Itcannot constitute arrears of rent after that date for an action under Section11(2)(b). It was mere actionable claim as held by the Apex Court in N.M.Engineer's case (supra). The provisions of Section 11(2)(b) shows that alandlord can seek eviction on the ground of arrears of rent. If the amountthat is due prior to 16.10.1999 cannot be termed as arrears of rent,automatically a petition seeking eviction under Section 11(2)(b) cannot be RCR 270 &385/2004-31-maintained. Ext.A13 is the deed of dissolution of partnership dated6.1.2001. It shows that a separate deed of settlement was executed by thepartners on 16.10.1999, wherein the shop rooms have been partitionedamong the partners. Therefore, it is clear that there was a partition on16.10.1999. We notice that in Ext.A13 the relevant clause states that “thefirst, third and fourth parts, their survivors, representatives, assignees and orattorneys are hereby authorised to realise by suit or otherwise the entirearrears of rent due from the tenants of their respective holdings and to giveeffectual receipts and discharge for the same in their individual names.” Asrightly pointed by the learned counsel for the tenant, it can be consideredonly as a debt, going by the implications of the above term. Going bySection 6(a) of the Transfer of Property Act, a mere right to sue cannot betransferred. Whatever was the position of the landlord as a partner before16.10.1999, after dissolution of the partnership with effect from that date,his rights have been crystallised by the above noted clause in Ext.A13.Hence, even if for argument's sake it can be taken that he was entitled toseek for eviction, on the ground of arrears of rent prior to 16.10.1999 onbehalf of the firm, after 16.10.1999 his right to claim arrears of rent iscontrolled by the specific terms in Ext.A13. In that view of the matter, we RCR 270 &385/2004-32-find that the landlord is not entitled to seek eviction under Section 11(2)(b)of the Act for the alleged arrears of rent due prior to 16.10.1999. The rentsubsequent to 16.10.1999 have been deposited by the tenant during thependency of the proceedings. We, therefore, set aside the order of evictiongranted by the Appellate Authority under Section 11(2)(b) of the Act.We, therefore, allow R.C.R.No.270/2004 and dismissR.C.R.No.385/2004. The petition for eviction stands dismissed. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.)kav/