Snehalata Mukherjee v. Ajit Behari Mukherjee — 1977 DIGILAW 176 (CAL)

JUDGMENT 1. THIS appeal is at the instance of the defendants and it arises out of a suit for eviction and manse profits. 2. THE case of the plaintiffs was that Premises no. 8/13, Creek Lane, Calcutta belonged absolutely to their father Basanta Behari Mukherjee, who died on March 5, 1964, leaving behind him a Will dated January 23, 1959. By the said Will, the said premises was bequeathed absolutely to the plaintiffs. The plaintiffs had taken probate of the said Will on September 30, 1967. Under the terms of the Will, the said premises was to be divided into two equal portions-northern and southern. Either of the plaintiffs would get one such portion. The defendants were monthly tenants in respect of the first floor of the said premises. The plaintiffs determined the tenancy of the defendants by the service of a notice to quit. They required the suit premises, that is, the portion of the first floor in occupation of the defendants, for the purpose of giving effect to the amicable partition of the said premises made by and between them by a Deed of Partition in accordance with a plan. It was alleged that the plaintiffs reasonably required the said premises for purposes of building or rebuilding or for making substantial additions or alterations thereto for their own occupation. Further it was alleged that the defendants were defaulters in payment of rents. As the defendants did not vacate the suit premises in spite of the service of the notice to quit, the plaintiffs instituted the suit for eviction. The defendants entered appearance and contested the suit by filing a written statement. They denied the allegation that the plaintiffs required the suit premises for purposes of building or re-building so as to effect partition in accordance with the partition plan prepared by the plaintiffs. 3. THE learned Judge, Eleventh Bench, City Civil Court, Calcutta came to the finding that the defendants were not defaulters in payment of rent. Be, however, held that the plaintiffs required the suit premises for purposes of building or re-building and that such building or re-building or additions or alterations could not be effected unless the defendants vacated the suit premises. Upon the said finding, the learned Judge decreed the suit. Hence, this appeal by the defendants. Be, however, held that the plaintiffs required the suit premises for purposes of building or re-building and that such building or re-building or additions or alterations could not be effected unless the defendants vacated the suit premises. Upon the said finding, the learned Judge decreed the suit. Hence, this appeal by the defendants. It may be mentioned here, that the finding of the learned Judge that the defendants were not defaulters in payment of rent has not been challenged before us on behalf of the respondents. 4. THE only question that is involved in this appeal is whether the plaintiffs have been able to make out a case under clause (f) of section 13 (1) of the West Bengal Premises tenancy Act, 1956. Clause (f) contains one of the grounds for ejectment and it provides as follows : " (f) subject to the provisions of sub-section (3a) and section 18a, where the premises are reasonably required by the landlord for purposes of building or rebuilding or for making thereto substantial additions or alterations, and such building or re-building, or additions or alterations, cannot be carried out without the premises being vacated. " In our view, the building or re-building referred to in clause (f) must be of such nature and of such significance and importance which would justify the landlord to say that he reasonably requires the premises. Under clause (f), the paramount consideration is building or re-building or making substantial additions or alterations to the premises. For instance, if the premises is in a dilapidated condition, the landlord may ask for securing the premises by building or rebuilding or making substantial additions or alterations to the same. Again, the requirement of the landlord may be said to be reasonable if by building or re-building he wants to put the premises to a more profitable use. There may be other instances where the requirement of the landlord for purposes of building or re-building may be considered as reasonable. The purpose of building or re-building must be the primary purpose and not a collateral or subsidiary purpose. Under clause (ff), one of the grounds for ejectment is that the landlord reasonably requires the premises for his own occupation. So, under clause (ff), the primary purpose is the occupation of the premises by the landlord. The purpose of building or re-building must be the primary purpose and not a collateral or subsidiary purpose. Under clause (ff), one of the grounds for ejectment is that the landlord reasonably requires the premises for his own occupation. So, under clause (ff), the primary purpose is the occupation of the premises by the landlord. It may be that for such occupation a landlord may have to effect some additions or alterations or even to build or re-build the premises. But such building, or rebuilding or additions or alterations will not be the primary purpose under clause (ff. Clause (f) is also subject to another restriction. Even if a landlord proves reasonable requirement for purposes of building or re-building or making substantial additions or alterations to the premises, still he will not be entitled to a decree for eviction of the tenant unless he proves that such building or re-building or additions or alterations cannot be carried out without the premises being vacated. If such building or re-building etc. can be effected without the necessity of the tenant vacating the premises, no decree for eviction of the tenant will be passed by the Court. Where the co-sharer landlords partition the premises, a suit for the eviction of the tenant on the ground of partition alone cannot, in our view, be considered as a suit on the ground as mentioned in clause (f), namely, for purposes of building or re-building or making substantial additions or alterations to the premises. The primary purpose in such a case is the partition and not building or re-building. There may be a case where, after effecting a partition, the landlords require the premises for their own occupation within the meaning of clause (ff. In that case, a decree for eviction may be passed under clause (ff), but not under clause (f) although, after the landlords obtain possession of the premises, they will have to effect additions or alterations or building or re-building for the purpose of effecting the partition. In these circumstances, we do not think that the plaintiffs have been able to make out a case under clause (f) of section 13 (1) of the Act. 5. EVEN assuming that the case comes under clause (f), the question is whether the plaintiffs have proved that the building or re-building or additions or alterations cannot be carried out without the defendant's vacating the suit premises. 5. EVEN assuming that the case comes under clause (f), the question is whether the plaintiffs have proved that the building or re-building or additions or alterations cannot be carried out without the defendant's vacating the suit premises. It appears that the plaintiffs have prepared a plan for effecting the partition. In the premises there are two staircases-one leading to the first floor and the other leading to the third floor. The first stair case leads to the first floor and according to the plaintiffs, another staircase has to be constructed up to the third floor in the northern portion. The place from which the proposed staircase will start has been shown in the plan as one of the rooms in occupation of the defendants. It was contended on behalf of the defendants that the proposed staircase could be constructed else where in the premises without disturbing their possession. P. W. 2, Sunit Kumar Biswas, prepared the plan far the proposed additions or alterations His evidence is that he made the partition at the dictates of his clients and not at all to his own skill and discretion. Further, he says that he did not want to make any attempt to make a staircase without disturbing the tenants as the plaintiffs did not want it. It is apparent from his evidence that he had to prepare the plan at the dictation of the plaintiffs. The plaintiffs did not seek his advice but they chose to construct the staircase from one of the rooms in occupation of the defendants. It is contended by Mr. Dutt, learned Advocate appearing on behalf of the plaintiffs respondents, that the defendants have no right to question the propriety and the reasonableness of the plan prepared at the instance of the plaintiffs. He also submits that the court also cannot ask the plaintiffs to change their plan for the purpose of excluding the portion in occupation of the defendants. In support of that contention he has placed reliance on a Bench decision of this Court in Monaharlal Mehta and Ors. v. Raj Mohan Pandey and Ors., 72 C. W. N. 393. In that case, it has been observed that all that the landlord is called upon to show under section 13 (1) (f) of the Act is that he is genuinely building or re-building and in so doing he reasonably requires the eviction of the tenants. v. Raj Mohan Pandey and Ors., 72 C. W. N. 393. In that case, it has been observed that all that the landlord is called upon to show under section 13 (1) (f) of the Act is that he is genuinely building or re-building and in so doing he reasonably requires the eviction of the tenants. There is no law by which the court can direct the landlord to alter his plans or allow the tenants to make alterations in the building. It has no right to direct the landlord to construct new structure and let it out to the tenants. All that the court is required to do is to satisfy its conscience that the proposed building and re-building is not a ruse to get rid of his existing tenants. The said Bench decision relates to the un-amended clause (f) of section 13 (1. Under the amended clause (f), the landlord is not entitled to get a decree for the eviction of a tenant unless he proves that the proposed building or re-building or additions or alterations cannot be carried out without the premises being vacated. By the amended clause (f), in our view, the tenant has been given a right to challenge the propriety and reasonableness of the plan for the proposed building or rebuilding. It is true that the court has no right to direct the landlord to alter his plan or to allow the tenant to make alterations in the building. But at the same time, if the court is satisfied that the plan containing the proposed building or re-building or additions or alterations is not reasonable or where, as in the present case, although the plan showing the proposed constructions, has been prepared by an expert, it is not according to his opinion, but as per the directions of the landlords, and there is no reliable evidence before the court that the portion occupied by the tenant cannot be spared, or where the plan has been prepared in such a manner that it is apparent that the sole object is to evict the tenant, the court will refuse to pass a decree for eviction. In order to found a case on clause (f) of section 13 (1), a landlord has to prove to the satisfaction of the court that the proposed building or re-building or additions or alterations cannot be made in a more reasonable and suitable way than that shown in the plan, and that the works under the plan cannot be carried out unless the tenant vacates the suit premises. In the instant case the plan which has been prepared by the plaintiffs is not in accordance with any expert's opinion. P. W. 2 also does not say that he has approved the plan. On the other hand, it is his positive evidence that he has made the plan according; to the dictates of the plaintiffs. There is no reliable evidence that the staircase cannot be constructed in any other place of the premises. In these circumstances, we do not think that it was justified on the part of the learned Judge to pass a decree for eviction of the defendants The learned Judge took the view that as the staircase could not be constructed without disturbing the possession of the defendants, they have to vacate the suit premises. The learned Judge has not considered the matter in the manner discussed above. In any event, as it has been already found that building or re-building or additions or alterations to give effect to a partition between the landlords is not a ground under clause (f) of section 13 (1) of the Act, they are not entitled to a decree for eviction of the defendants. 6. FOR the reasons aforesaid, we set aside the judgment and decree of the learned Judge and dismiss the suit. The appeal is allowed. But in view of the facts and circumstances of this case, there will be no order as to costs.