Whether burden is on landlord to prove that tenant has caused damage to premises by making alterations?

In so far as the other ground viz. raising of permanent structure is concerned it was the case of tenants that as one block was divided into two blocks and was let out to two tenants, suitable alterations were made by the previous landlord and that they have not made any alterations in the suit premises. The Appellate Court has set aside the findings recorded by the trial Court in this regard by observing that the trial Court has cast burden of proof wrongly on the defendants. The Appellate Court has observed that as the plaintiff had come to the Court with a specific case that it is the tenants who have done these alterations, it was for the landlord to lead evidence to establish that it is the tenants who have done alterations. However, the landlord has not led any evidence in this regards as even according to the landlord, the alterations were made before November, 1976, when he purchased the property, obviously, the landlord does not have personal knowledge therefore, it is for the landlord to lead evidence and the Appellate Court has held that the landlord has not led any evidence adequate to establish that the alterations were made by the tenants, it is further to be seen here that even if it is assumed that alterations were made by the tenants in the suit premises, does not entitle the landlord to decree of eviction against the tenant. As observed by the Supreme Court in its judgment in the case of Venkatlal G. Pitti and another v. M/s. Bright Bros. Pvt. Ltd. MANU/SC/0824/1987 : [1987]3SCR593 the landlord has further to establish that because of the alterations, damage is caused to the building itself. The observations of the Supreme Court in paragraph 21 read as under:

"There are numerous authorities dealing with how the question whether the structure is a permanent structure or not should be judged. It is not necessary to deal with all these. One must look to the nature of the structure, the purpose for which it was intended and take a whole perspective as to how it affects the enjoyment, the durability of the building etc. and other relevant factors and come to a conclusion."

In the present case, it is not even the allegation of the landlord that because of the alleged alterations, any damage is caused to the building or its utility is impaired in any way. In these circumstances, therefore, in my opinion no fault can be found with the findings recorded by the Appellate Court in this regard also.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 4600 & 4599 of 1986

Decided On: 05.02.1998

Sukhlal Chunilal Ghagani Vs. Harish Suvarne & another

Hon'ble Judges/Coram:

D.K. Deshmukh, J.

Citation: 1998(3) ALLMR 761.

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