Bharati Industries v. Nirmal Kumar Bhattacherjee — 1982 DIGILAW 229 (CAL)

JUDGMENT 1. THIS is an appeal by the defendants from the decision of the learned Additional District Judge, 6th Court at Alipore, 24-Parganas affirming the decree for ejectment and mesne profits passed by the court of first instance. 2. IT is no longer disputed that the defendants who are a proprietor firm and its proprietor were monthly tenants in the suit premises under the plaintiffs who are the owners thereof, at a rent of Rs. 65/- per month and that a valid notice to quit dated 25. 7. 1970 was served on the defendants on behalf of the plaintiffs calling upon them to vacate the suit premises on the expiry of april 1971. The alleged grounds of ejectment which are material for the present purpose are that the plaintiffs who are two brothers reasonably require the suit premises for their own occupation and they are not in possession of any reasonably suitable accommodation and that the defendant no. 2 sublet portions of the suit premises to sevetal sub-tenants from 1965 onwards, without the consent of the plaintiffs. The defendants have contested the suit and in their written statement denied the aforesaid grounds. 3. THE trial court passed a decree for ejectment on the ground that the plaintiffs reasonably require the suit premises for their own occupation and they are not in possession of any reasonably suitable accommodation. It held that the plaintiffs have not succeeded in proving the ground of subletting. The defendants appealed from the decision of the trial court and the plaintiffs filed a cross objection. The first appellate Court has dismissed the appeal and allowed the cross-objection in part. The learned Judge has affirmed the decree of the trial Court and held that the plaintiffs have also proved the ground of subletting mentioned in Section 13 (1) (a) of the West bengal Premises Tenancy Act, 1956. 4. THE suit premises at 118a, Matilal nehru Road, Calcutta comprise a two storied building with two rooms in each floor and a one storied building with two rooms one of which is of tiled roof. The suit building has been partitioned between the two plaintiffs who are brothers and as a result, the northern portion has fallen to the allotment of the plaintiff no. 1 and the southern portion with staircase has been allotted to the plaintiff no. 2. The family of the plaintiff no. The suit building has been partitioned between the two plaintiffs who are brothers and as a result, the northern portion has fallen to the allotment of the plaintiff no. 1 and the southern portion with staircase has been allotted to the plaintiff no. 2. The family of the plaintiff no. 1 consists of himself, his wife, his two adult sons who are aged 31 and 26 respectively and a sister's son who has been living with the plaintiff no. 1 since his childhood had who has also attained marriageable age. The plaintiff no. 1 is living with his family as a monthly tenant in a ground floor flat at premises no. 117a, matilal Nehru Road, Calcutta. His tenanted accommodation consists of one room measuring 16'3" x 8'2 1/2", another room measuring 12'9 1/2" x 10 1/2" and a covered verandah measuring 8'5 1/2"x5'9 1/2" (where the Commissioner for local inspection found one cot, two chairs and one table) apart from kitchen and open space. Having regard to the size of the plaintiffs' family and the fact that his elder son and nephew are of marriageable age and the second son is also aged 26, the evidence that the rented accommodation available to the plaintiff no. 1 is insufficient causing hardship to him has been accepted by the first appellate Court. The learned Judge has relied on the evidence of P. W. 6 Utpal bhattacherjee, son of the plaintiff no. 1 that the tenanted rooms are ill ventilated, one of them is adjacent to a privy and drain and the flat is damp and dilapidated. The learned Judge has observed as follows : "The position therefore is this. The plaintiff no. 1 now resides with insufficient accommodation at 117a, Matilal Nehru road in the midst of unhealthy conditions'. It has been submitted by the learned Advocate for the appellants that the learned judge has not considered the fact that the commissioner for local inspection has not states in his report anything about the alleged unhygienic condition of the plaintiff no. 1's accommodation. But it has been observed by the learned Judge that the commissioner was not directed to report on the point whether or not the accommodation in question was unhygienic in character." The learned Judge has further found that the plaintiff no. 1 is under threat of eviction as indicated by a notice to quit served on him. 1's accommodation. But it has been observed by the learned Judge that the commissioner was not directed to report on the point whether or not the accommodation in question was unhygienic in character." The learned Judge has further found that the plaintiff no. 1 is under threat of eviction as indicated by a notice to quit served on him. In this connection it has been submitted on behalf of the appellants that the said notice dated 12. 8. 1976 shows that the ground of eviction was reasonable requirement for building and re-building and that there is no evidence to show the service of similar notices on three other tenants of the same building or filing of any suit for- eviction against the plaintiff no. 1 during the period after the service of. notice. It seems that the notice to quit served on the plaintiff no. 1 has not been followed up by similar notices on other tenants for eviction on the ground of building and rebuilding or the institution of any suit for eviction. But the fact remains that the possession of a tenant is precarious and subject to eviction on any of the statutory ground. It has been held by the Division bench in the case of Dr. Haraprasad Vs. Bamdeb, reported in 1977 (2) CLJ 19 that the possession of a tenant is some: what vulnerable and the tenant is potentially in danger of being evicted from the tenanted premises and so the possession as a tenant cannot be equated with the possession of the owner. An accommodation held in absolute ownership has an edge over the accommodation available as a tenant. The decision in the case of Raj Kumar Ms. Ashalala, reported in 68 cwn 299 relied on by the appellants is distinguishable as the facts in that case are far removed from the facts of the present case. In the present case the accommodation available to the plaintiff no. 1 as tenant is insufficient to meet his reasonable requirement besides the risk of eviction attached to it. It is also unhygienic The fact that the plaintiff will have to construct a stair case to use his partitioned northern portion of the suit building makes no difference to the genuineness of his requirement of the suit premises for his own occupation as it includes possession after necessary additions and alterations. It is also unhygienic The fact that the plaintiff will have to construct a stair case to use his partitioned northern portion of the suit building makes no difference to the genuineness of his requirement of the suit premises for his own occupation as it includes possession after necessary additions and alterations. This position in law follows from the decision, in Krishnadas vs. Bidhan, reported in 63 C. W. N. 29' gogesh vs. Kiranbala, reported in 81 C. W. N. 505 and R. P. Mehta vs. A. Shek, reported in AIR 1964 S. C. 1676 (para 16 ). 5. COMING to the question of requirement of the plaintiff no. 2 Bimal Kr. Bhattacherjee, there is evidence accepted by the court below that he lives in a rented flat near Tala Bridge and is now posted as manager of United Bank of India, Belgachia branch. He has to pay rent Rs. 300/- per month for his rented accommodation but he gets Rs. 90/- per month only from his employer as House Rent Allowance. His family consists of himself, his wife and two daughters who were students in Schools in central Calcutta and a nephew. He will be financially benefited if he resides in the suit premises which fetches a rent of Rs. 65/- per month, half share of which belongs to the plaintiff no. 2. The evidence is that he requires the suit premises for his own occupation as he will get financial benefit by such occupation apart from his statement that his present accommodation is insufficient and unsuitable. There was local inspection of the accommodation available to the plaintiff no. 2 in his rented flat and the details thereof are not in evidence. In my view, the financial benefit is an important element for consideration to decide the genuineness of the landlord's. Requirement of the suit premises for his own occupation. It has been held by the punjab and Haryana High Court in Hukam rai vs. Chhail, Bihari, reported in 1978 (2) R. C. J. 254 that the landlord living in a rented house and paying much higher rent for the same then what he was getting form the demised premises is entitled to evict the tenant as his requirement is reasonable. In Bega Begum vs. Abdul Ahad Khan, AIR 1979 SC 272 the Supreme Court has held that the necessity of the suit premises for augmenting the income of the landlord whose income was insufficient to make the two ends meet is a genuine and reasonable requirement and a ground for eviction of the tenant. In the present case the courts below do not appear to have given much importance to the aspect of financial benefit to be derived by the plaintiff no. 2 from his occupation of the suit premises and have relied on his version that his present rented accommodation is insufficient and unsuitable. There is no doubt, that the evidence of the plaintiff no. 2 regarding insufficiency of his accommodation is not quit adequate as he has not given the details of the accommodation available to him in his rented flat. But mere insufficiency or inadequacy of evidence in coming to a question of fact as to reasonable requirement does not by itself involve an error of law open to interference in Second Appeal. That apart, in the present case the concurrent findings of the courts below regarding reasonable requirement of the plaintiff no. 2 gets additional support from the evidence of financial benefit which the plaintiff no. 2 will get by occupying the suit premises. Thus, the evidence considered as a whole is quite sufficient to justify the finding regarding reasonable requirement of the plaintiff no.2 6. IN my view, there is no substance in the submission made on behalf of the appellants that the appeal court below have not approached the case correctly. hold that there is no sufficient ground to interfere with the concurrent findings of the courts below, that both the plaintiffs' reasonably require the suit premises for their own occupation and that they are not in possession of any reasonably suitable accommodation. On the ground of subletting, the first appellate Court has held, reversing the finding of the Court of first instance that the plaintiffs have succeeded in proving it. There is evidence of P. W. 4 Tapan Chatterjee that his father Bishnupada Chatterjee (since decease) was a sub-tenant in the suit premises under the defendant no. 2 since 1965. This fact has not been denied by the defendant no. 2, (D. W. 3) in his evidence. There is also evidence of several post Cards and Inland letters (Ext. There is evidence of P. W. 4 Tapan Chatterjee that his father Bishnupada Chatterjee (since decease) was a sub-tenant in the suit premises under the defendant no. 2 since 1965. This fact has not been denied by the defendant no. 2, (D. W. 3) in his evidence. There is also evidence of several post Cards and Inland letters (Ext. 11 series) of 1971-1978 (June) sent to bishnupade Chatterjee or Tapan Chatterjee alias Babu at the address of the suit premises and delivered by post as shown by the postal seals appearing thereon. The learned judge of the appellate Court has rightly relied on them as their genuineness is not open to question. It appears that when another Commissioner for local inspection visited the suit premises in the last week of august, 1978 he did not find Tapan Chatterjee or his mother and sister living there. The explanation given on the side of the plaintiffs is that the defendant no. 2 had in the meantime persuaded Tapan Chatterjee to leave the portion in the suit premises occupied by him as sub-tenant. There is further evidence of P. W. 4 to the effect that Raj Kumar Burmah, Pradip Babu and dipak Babu were three other sub-tenants in the suit premises. Raj Kumar Burman has deposed on the side of defendants to the effect that he was not a sub-tenant under the defendant no. 2. The learned judge has not thought much of his evidence. According to him, it has not an effect of weakening the plaintiffs' case. It has been submitted on behalf of the appellants that the learned Judge of the appellate Court has not considered the second commissioner's report (Ext. F) or the report of the Inspector of Rationing (Ext. G) who visited the suit premises on 21. 7. 1978 to enquire into the defendant no. 2's complaint that Tapan Chatterjee was holding three ration Cards of himself, his mother and sister with address as 118a, Matilal Nehru road on Ration Shop No. A. R. 562 and found no such person there and no drawl of ration from that shop. But the evidence of D. W. 4 Tapan Chatterjee is that he drew ration against the Ration Cards in question (Ext. 10 series) from Shop No. A. R. 3146 and this fact has not been verified by the inspector of Rationing. But the evidence of D. W. 4 Tapan Chatterjee is that he drew ration against the Ration Cards in question (Ext. 10 series) from Shop No. A. R. 3146 and this fact has not been verified by the inspector of Rationing. The learned Judge has inferred subletting from the articles which were found inside each of the rooms of the suit premises by the Commissioner for local inspection. But on scrutiny I find such inference cannot be reasonably drawn. Although I do no agree with all that has been stated by the learned Judge on this point, I find on a survey of an evidence as a whole on the point of subletting that his commission to consider Ext F and G has not let to any miscarriage of justice, and that there is sufficient evidence to prove that bishnupada Chatterjee was a sub-tenant in the suit premises under the defendant no. 2 since 1965 and the said sub tenancy continued after his death till about June, 1978. It has been held in S. B. Sen vs. Tejendra Bhowmick, reported in ILR 1969 (1) Calcutta 582 that to avail of the ground mentioned in Section 13 (1) (a) of the Act, subletting need not subsist till the date of the institution of the suit and it is sufficient that sub-letting is proved. In my view, the learned Judge is right in so far as he has found that the defendant sub-let the suit premises in 1965 without the consent of the plaintiffs and this additional ground of eviction has also been established in this case. 7. I, therefore, conclude that this appeal cannot succeed. The appeal is dismissed. No order is made as to costs. The defendants are allowed time till 1st October, 1982 to vacate the suit premises. Appeal dismissed without costs.