Lakshminarayan Ramnivas v. Dwarka Nath Ghosh — 1968 DIGILAW 124 (CAL)

JUDGMENT 1. THIS appeal is from the judgment and decree of the Additional District judge, Alipore, dated 8 August 1966. 2. THE appeal arises out of a suit filed by the respondent against the appellants. The respondent is the owner of premises No. 137, Lasdowne Road. The appellants became tenants under the plaintiff according to the English calender at a monthly rental of Rs. 475/-in respect of the second floor of the flat and one garage at the said premises. There are two respondents. The defendant no. 2 is the managing partner of defendant No. 1. The only point which was canvased in this appeal was whether the plaintiff respondent reasonably required the premises for his own occupation. 3. COUNSEL appearing for the defendants appellants contended first that the plaintiff respondent did not reasonably require the premises. Secondly, that exhibit A (8) dated 17 March 1960 was not at all taken into consideration by the court below. Thirdly, that the plaintiff respondent had no present need or requirement of the premises by reason of the fact that the written contract with regard to the plaintiff's working in Ethiopia was not tendered in evidence and oral evidence of the terms of the contract was given and as such oral evidence was inadmissible. 4. IT was contended that reasonable requirement would be a question of law. Counsel for the respondent relied on the decision of the Supreme Court in (1) Deity Bhattabhiramaswamy v. S. Hanymayya and Ors., reported in AIR 1959 SC 57 , in support of the contention that in second appeal findings of fact based upon appreciation of evidence would not be liable to be disturbed. In the Supreme Court case, reference was made to the old decision of the Judicial Committee in (2) Durga chowdhurani v. Jawahir Singh reported in 17 IA 122 and another decision of the Judicial Committee in (3) Midnapore zemindari Co. Ltd. v. Uma Charan, reported in 29 CWN 131 in support of the proposition that erroneous findings of fact, however, gross the error might be, would not be within the scope of a second appeal. In (3)Midnapore Zamindari case it was said that where question to be decided was one of fact, it did not involve an issue of law merely because documents, which were not instruments of title or otherwise the direct foundations of rights but were really material, had to be construed. In (3)Midnapore Zamindari case it was said that where question to be decided was one of fact, it did not involve an issue of law merely because documents, which were not instruments of title or otherwise the direct foundations of rights but were really material, had to be construed. The finding would none-the-less be a finding of fact. Relying on these decisions, counsel for the respondent contended that the finding as to reasonable requirement was one of fact and it could not be gone into in the second appeal. Counsel for the appellants, on the other hand, relied on the earlier decisions of the Judicial Committee in (4) Maharajah Sir Luchmeswar Singh bahadoor v. Sheikh Manowar Hossain and ors. reported in 19 IA 48; in (5) Ram gopal and anr. v. Shamskhaton and ors. reported in 19 IA 228; the decision of the Judicial Committee in (6) Lala beni Ram and anr. v. Kundan Lall and anr., reported in 26 IA 58; the decision of the Judicial Committee in (7) Dhanna Mal and ors v. Moti Sagar, reported in 31 CWN 677; the decision of the judicial Committee in (8) Amiruddi gazi and ors. v. Makhan Lal Chatterjee, reported in 34 CWN 285; the decision of the Judicial Committee in (9) Shankarrao daga Dujirao Jahagirdar v. Sambhu Wallad Nathu Patil reported in 45 CWN 57; a Bench decision of this court in (10) Atul Chandra Lahiri v. Sonatan Daw, reported in 65 CWN 626 and the recent Supreme Court decision in (11) Nedunuri Kameswaramma v. Sampati Subba Rao reported in AIR 1963 SC 884 . In these decisions it will appear that when a finding is a mixed question of law and fact depending upon the proper legal conclusion to be drawn from the findings as to facts, a second appeal will lie. To illustrate, a question as to whether there was ratification of a mortagage deed became a mixed question of fact and law by reason of the consideration that a finding that the mortgage deed was accepted by the defendant as a binding obligation would depend upon the question as to whether it was a case for ratification by reason of a new agreement or obligation having arisen to bind him. Again, a question as to what would be the proper effect of a proved fact was held by the Judicial Committee in 31 CWN 677 to be a question of law. In the case reported in 34 CWN 285 the nature of an estate was also held to be a question of law. In the case reported in 45 CWN 57 a presumption as to record-of-rights was also held to be a question of law. In the Bench decision reported in 65 CWN 626 the question as to whether a structure was premanent or not was held to be a question of law. The entire law is summed up in the recent Supreme Court decision in AIR 1963 SC 884 where the Supreme court said that a construction of documents (unless they are documents of title) produced by the parties to prove a question of fact does not involve an issue of law unless it can be shown that the material evidence contained in them was misunderstood by the court of fact. The legal inference from the proved facts may, however, still raise a question of law. 5. IN the light of these decisions, counsel for the appellants contended that the conclusion of reasonableness with regard to requirement would be a question of law. Requirement is, in my opinion, a question of fact. Reasonableness of such requirement would be in my opinion an objective determination of the facts of requirement. The West Bengal Premises Tenancy act, 1956 contemplates reasonable requirement for own use and occupation. The element of reasonableness is in relation to requirement. Reasonableness is not subjective determination. Facts should establish reasonableness of requirement. In the Bench decision of (12) Bhulan Singh v. Ganendra kumar Roy Chowdhury reported in 84 C. L. J. 157 it was held that the reasonableness of the requirement was a question of fact to be determined in each case as at the date of the hearing on the facts and circumstances of each case. In the present case, the findings of the court below which were sought in aid of the contention on behalf of the appellants were that the respondent let out the ground floor in the month of December 1958 and therefore it was submitted that there would be no intention of reasonable requirement in the latter part of 1958 or early in 1959. Secondly, it was said that notices of ejectment were not given to other tenants and therefore it would not be reasonable requirement. The third and the most important ground that was canvassed was that the plaintiff respondent made the case in the plaint that there was requirement of the premises in the year 1959 but that case is negatived by oral evidence as well as by the plaintiff respondent's letter dated 17 March 1960. The letter dated 17th March 1960 was interpreted by counsel for the appellants to repel not only the case of requirement but also to establish the fact that there was an agreement between the plaintiff respondent and the appellants defendants that the premises would be in occupation of the defendants at a higher rent. All the contentions are determination of facts by the courts below. 6. THE plaintiff did not make the case in the plaint of reasonable requirement in the year 1959. The plaintiff alleged in the plaint that in 1959 the plaintiff requested the defendants to quit and vacate the premises in suit as the plaintiff was proposing to relinquish his post at Delhi and to return to Calcutta when he would require the premises in suit for his own use and occupation. The plaintiff further alleged that the defendants verbally promised to quit the premises. In paragraph 7 of the plaint the plaintiff alleged that relying on the said promise the plaintiff took no steps to terminate the tenancy at, that time. The further allegations in the plaint are that in the month of may 1961 the plaintiff relinquished his service with the Government of India at New Delhi. The plaintiff found that the defendants were not vacating the premises. The plaintiff was compelled to look for another job outside Calcutta as the plaintiff could not have suitable accommodation at Calcutta. The plaintiff alleged that the plaintiff proposed to leave that job and return to Calcutta. The plaintiff gave particulars in the plaint of the accommodation required. The plaintiff further alleged that the plaintiff determined the tenancy by a notice dated 26 August 1961. It, therefore, follows that the plaintiff's case as to reasonable requirement is, as alleged in the plaint, that in the year 1959 the plaintiff made request but nothing materialised. The plaintiff thereafter in 1961 left the employment of the Government of India and returned to Calcutta. It, therefore, follows that the plaintiff's case as to reasonable requirement is, as alleged in the plaint, that in the year 1959 the plaintiff made request but nothing materialised. The plaintiff thereafter in 1961 left the employment of the Government of India and returned to Calcutta. The plaintiff found no accommodation at Calcutta. The plaintiff sought another employment outside calcutta. The plaintiff wanted to return to Calcutta. The plaintiff, then gave notice to the defendants. The plaintiff gave the requirements in relation to the premises. On this pleading the findings of fact are that the plaintiff's entire requirement will not be met if he gets possession of the suit premises but a good part of it will be met thereby. It was contended that the plaintiff had 1/3rd share in an ancestral house. The plaintiff's evidence was considered and the court came to the conclusion that only three or four living rooms might be available at the ancestral house and the court below came to the conclusion that in assessing the reasonableness of his requirement, the plaintiff could not be asked to split his family into two parts for accommodating one part at premises No. 137 Lansdowne Road in south Calcutta and another part at the ancestral premises at No. 11b ramkhrishnadas Lane in North Calcutta. 7. THE court below decided on the legal basis that the reasonableness of requirement is to be determined as a fact as at the date of hearing and on the existing accommodation. That is the correct approach. The request that was made in 1959 to vacate could not be said to found any legal right or obligation. It is not the plaintiff's case that the requirement was in the year 1959. The plaintiff's case is that the requirement was in the year 1961 when the plaintiff gave notice to quit. The plaintiff had required the premises in 1959 and that is why the plaintiff made the request but it was of no effect. That does not take away the right of the plaintiff to require the premises in the year 1961 when the plaintiff in fact required it. That again is a question of fact. 8. THE court below came to the conclusion that the reasonableness of requirement could not be judged from the fact of or re-letting the flat in 1958. That is again a correct finding of fact. That again is a question of fact. 8. THE court below came to the conclusion that the reasonableness of requirement could not be judged from the fact of or re-letting the flat in 1958. That is again a correct finding of fact. Counsel for the appellants placed emphasis on exhibit A (8) dated 17 march 1960 in support of the contention that the court below did not at all take into consideration the evidence and therefore there was error of law. The letter (Ext. A (8) ) dated 17 March 1960 was written by the respondent to the appellants. The respondent stated in that letter that the appellants agreed to pay the increased rent of Rs. 500/- per month. Thereafter, the respondent wrote to the appellants : "I hope this has not made you decide to leave the flat. As I told you on an earlier occasion I have been quite happy with you as my tenant. However, the decision is yours. You may please let me know when you are in a position to move out. " The court below has taken into consideration the entire oral evidence as well as the documents which were placed. Perhaps there was no specific mention of Exhibit A (8) but it is manifest that the subject-matter of exhibit A (8) has been considered. The court below considered the contention on behalf of the appellant that the enhancement of rent would give rise to an assurance that the appellant would have undisturbed possession of the premises for an indefinite period. The court below held that the assurance was improbable because the reason for enhancement of rent was increase in the municipal rates. That is a question of fact. A contention was advanced by counsel for the appellants that the increase in the municipal rates did not justify the enhancement of rent. That is a pure question of fact. The finding of the court below is that the case that the defendant made namely that the increased rent led to an assurance of undisturbed possession was unacceptable. That finding has not been impeached. What was really contended was that the letter dated 17 March 1960 repelled any case of reasonable requirement. That is a pure question of fact. The finding of the court below is that the case that the defendant made namely that the increased rent led to an assurance of undisturbed possession was unacceptable. That finding has not been impeached. What was really contended was that the letter dated 17 March 1960 repelled any case of reasonable requirement. But, there, the plaintiff's case in the plaint, the plaintiff's evidence that the requirement arose, as the plaintiff said after the plaintiff left the employment of the government of India in the year 1961 and that the plaintiff gave the notice to quit in the year 1961, established the reasonable requirement of the plaintiff. These are all findings of fact. 9. THE contention on behalf of the appellants that there was no notice to other tenants does not have any merit and substance. What is to be judged is the reasonable requirement of the plaintiff in relation to the premises forming subject-matter of the suit. These are all questions of facts. 10. THE contention on behalf of the appellants that the plaintiff has no present need is answered by the finding of fact that the plaintiff has need in praesenti. The finding of the court below is that in the month of April 1961 the plantiff took a job outside calcutta. In the month of May 1961 the plaintiff became Director of Institute of Gandhian Studies at Banaras. In the month of May 1962 the plaintiff joined the temporary post of U. N. Consultant and Economic Adviser to the Government of Ceylon. The plaintiff's employment with the Government of Ceylon was up to the end of 1964. The plaintiff thereafter accepted the temporary employment under the United Nations in Ethiopia in the beginning of 1965. The finding of the court below is that although the written contract with the United Nations has not been produced, the testimony of p. w. 2 that the plaintiff could terminate the contract of service under the United Nations at Ehiopia by one month's notice was accepted. The finding of fact is that the plaintiff was keen to come back to Calcutta and settle down with his family. The plainitiff is over 65 years and spent quite a long time abroad. The court below came to the conclusion that the plaintiff had a genuine desire to settle down with the members of his family at Calcutta. The finding of fact is that the plaintiff was keen to come back to Calcutta and settle down with his family. The plainitiff is over 65 years and spent quite a long time abroad. The court below came to the conclusion that the plaintiff had a genuine desire to settle down with the members of his family at Calcutta. It was suggested to the plaintiff that the plaintiff was working outside for the sake of gain and reputation. The court below accepted the evidence and explanation of the plaintiff that the plaintiff accepted the job to serve the country and not for remuneration because the plaintiff resigned the permanent job of the United Nations which carried a tax-free salary two and half times as large as the salary that the plaintiff received from the government of India, subject to payment of tax. The suggestion that was made to the plaintiff was unworthy and unmeritorious. That is the finding of the court below. The further finding is that the job in the United Nations which the plaintiff was holding was temporary. It is not that the plaintiff has given any evidence with regard to any term of contract in aid of the suit. The contract is not an issue in the suit. The oral evidence is that the plaintiff's employment was temporary. That evidence has been found as a fact. The other part of the evidence that the contract could be terminated by one month's notice was in aid of the plaintiff's intention to return to India after leaving the temporary work. Counsel for the respondent rightly contended that there was no suggestion in cross-examination that the plaintiff could not come back. The plaintiff did not have to prove the terms of contract. That was not the subject-matter of the suit. That is not the controversy between the parties. The real controversy is reasonable requirement. In aid of that dispute the plaintiff's evidence was that the work was of a temporary nature and the plaintiff wanted to return to India. The court below found the facts in favour of the plaintiff. 11. FOR these reasons, I am of opinion that the contentions advanced on behalf of the appellants fail. 12. THE appeal is dismissed with costs. The judgment and decree of the court below are affirmed. The court below found the facts in favour of the plaintiff. 11. FOR these reasons, I am of opinion that the contentions advanced on behalf of the appellants fail. 12. THE appeal is dismissed with costs. The judgment and decree of the court below are affirmed. In determining the amount payable by the appellant defendant to the plaintiff respondent in regard to mesne profits under the decree the court below will take into consideration the amount deposited in court by the appellants defendants.