Milan Kr. Sinha v. Amar Kr. Roy — 1999 DIGILAW 578 (CAL)

JUDGMENT 1. This appeal from appellate judgment and decree is at the instance of a tenant-defendant and is directed against a judgment passed by Sri S.K. Bhattacharyya, Additional District Judge, 10th Court, Alipore, affirming the judgment passed by P.S. Dutta, Munsif, 2nd Court, Alipore. 2. The plaintiff, who happens to be the respondent before this Court filed a suit for eviction of the defendant, on the ground of reasonable requirements of the beneficiaries in her capacity as a trustee in terms of a deed of trust executed by her husband on 24.12.75, whereby the Settlor Panchanan Roy conveyed the suit property for the benefit, use and occupation of his two sons by the second wife, namely, Anil and Amar. The defendants were tenants in the suit premises at a monthly rental of Rs. 90/- payable according to English Calendar month. Their tenancy was determined by a notice asking them to quit and vacate, but they having failed to vacate the suit premises, the suit, out of which this appeal had arisen, was filed praying for eviction. The plaintiff's further case is the said beneficiaries have no other reasonably suitable accommodation for their residence. 3. In contesting the claim of the plaintiff, the defendants denied the case of the plaintiff and they also denied the plaintiff to be the sole trustee in respect of the suit premises and the plaintiff did not require the suit premises for their own use and occupation. The suit premises is not at all required for accommodation of Anil and Amar. The suit is therefore, liable to be dismissed. 4. On the pleadings of the parties, the learned Munsif framed 8 issues and the suit was heard on those issues. The Munsif after having considered all aspects of the case found that the suit premises is reasonably required for accommodation of Anil and Amar, the beneficiaries, as they had no suitable reasonable accommodation elsewhere and accordingly the Munsif decreed the suit asking the defendants to quit and vacate within two months from the date of the decree. On being aggrieved by such judgment and decree, the defendant preferred an appeal before the District Judge which was ultimately heard by the learned Additional District Judge, 10th Court, Alipore, who in his turn affirmed the findings of the learned Munsif and dismissed the appeal asking the tenant-defendant to give delivery of possession within six months. On being aggrieved by such judgment and decree, the defendant preferred an appeal before the District Judge which was ultimately heard by the learned Additional District Judge, 10th Court, Alipore, who in his turn affirmed the findings of the learned Munsif and dismissed the appeal asking the tenant-defendant to give delivery of possession within six months. Thus, so far as the findings of the facts are concerned, both the Courts below found that the suit premises is reasonably required for the accommodation of Anil and Amar, two beneficiaries of the trust executed by the Settlor Panchanan Roy. In any way the tenant-defendant brought this appeal before this Court and this Court by order dated 11.4.90 admitted the appeal on the Ground No. 11 as per Memorandum of Appeal. Therefore, this appeal is heard on Ground No. 11 which runs as follows: – For that the suit premises being a trust property and the beneficiaries of the trust being the two sons of the earlier predeceased wife of the dead trustee, it is their reasonable requirement which is relevant for determination of issues involvement in the suit. In the instant case, the reasonable requirement of the respondent who is practically a stranger in relation to the suit premises, her and her family's reasonable requirement are not at all germane. 5. Sri A.K. Sengupta, learned Advocate appearing for the defendant-appellant has submitted before me that the plaintiff failed to make out any case for the reasonable requirement in respect of the beneficiaries. Be it noted here that the suit property originally belonged to Sri Panchanan Roy, who happens to be the father of Anil and Amar and the husband of plaintiff Smt. Tara Roy. Smt. Tara Roy is the second wife of the said Panchanan. Exhibit-1 is the original deed of trust. By this deed of trust, the Settlor Panchanan Roy for making provision of his two sons by the first wife namely, Anil and Amar settled the property by executing deed of trust and making Smt. Tara Roy, his second wife as the trustee who shall execute the trust for the benefit of the two sons namely, Anil and Amar and put them in the possession in the suit property. This Settlor executed another trust on 31.3.64 whereby the Settlor Panchanan Roy made provision for the children by the second wife and as at that time he could not make any provision for these two sons by the first wife so he executed the present deed of trust (Vide Exhibit-1) for the benefit of Anil and Amar, who happens to be the children of his first wife. When this deed of trust is executed, Anil and Amar were residing in the property of his stepbrother and admittedly, Anil and Amar had no right, title and interest in respect of that property. This deed of trust (Exhibit-1) recites that trustee Smt. Tara Roy should execute the trust so as to accommodate Anil and Amar in the suit property which is governed by the present deed of trust. This promoted trustee Smt. Tara Roy to file this suit. 6. Let us now see how far the requirements of Anil and Amar have been made out in the pleadings. Now in concluding of portion of para 6, the plaintiff Smt. Tara Roy has sought to prove her case in this way: – "The plaintiff's other two sons have been compelled to live outside the premises No. 125, Ballygunge Gardens, Calcutta-29, due to paucity of accommodation. The plaintiff has been compelled to accommodate Anil and Amar in their present accommodation where the said Anil and Amar by virtue of another deed of trust dated 31.3.64 executed by Sri Panchanan Roy, since deceased, having no right, title and interest whatsoever and the said Amar Kr. Roy and Anil Kr. Roy are not in possession of any reasonably suitable accommodation and they are in occupation as licence and monthly tenant respectively. The plaintiffs as the trustees on behalf of the beneficiaries, Anil and Amar files this suit for eviction for the use and occupation of Anil and Amar. Their wives and children and the plaintiff reasonably required the suit premises for the use and occupation of the said Amar Kr. Roy and Anil Kr. Roy, their wives and children." 7. The plaintiff's evidence on this point had proved her case as it appears from the concurrent findings of the Court below. This position appears to have been admitted by defendant No.1 himself when he stated in his deposition that the plaintiff's purpose will not be satisfied with the rooms under their occupation. Roy, their wives and children." 7. The plaintiff's evidence on this point had proved her case as it appears from the concurrent findings of the Court below. This position appears to have been admitted by defendant No.1 himself when he stated in his deposition that the plaintiff's purpose will not be satisfied with the rooms under their occupation. The D.W. 1 further admitted that the rooms now occupied by Anil and Amar and where they were living now, do not belong to them. 8. The learned advocate appearing for the defendant-appellant has submitted before me that the plaintiff cannot sue in view of the provision of Section 51 of the Indian Trust Act. He further contends that the trustee cannot be the owner. In this connection, he has drawn my attention to a decision of Orissa High Court reported in K. Chitti Babu vs. K. Anjaneyelu & other, AIR 1978 Orissa 233, wherein it was held that trustee-landlord cannot evict on the ground of personal requirement. But in Tarasundar vs. Dookkhram, 79 CWN 638, our High Court held that if a person is in possession of same premises of sufference that is to say under live and licence which may be revoked at the pleasure of the licence and it cannot be said that it is in possession of reasonably suitable accommodation because his right to remain depend entirely on sufference and his possession is precarious and insecure in the extreme and therefore not reasonably suitable. 9. In another case of this High Court reported in Jaibunnissa & other vs. Lalankumar & other, AIR 1979 NOC 188 (Cal), it was held that if the plaintiff is living elsewhere as a licensee that itself is a good ground on which he can bring a suit for eviction. Thus, the landlord has only to prove a negation of the fact that he has no other reasonably suitable accommodation. 10. In the instant case the Courts below have found on examination of the evidence that Anil and Amar have been residing elsewhere and they are residing there only as a licensee liable for eviction at any moment. This itself proves that they reasonably require the suit premises. 11. Mr. 10. In the instant case the Courts below have found on examination of the evidence that Anil and Amar have been residing elsewhere and they are residing there only as a licensee liable for eviction at any moment. This itself proves that they reasonably require the suit premises. 11. Mr. Sengupta, learned Advocate appearing for the defendant-appellant has submitted that there was no finding that the two sons namely, Anil and Amar reasonably require the suit premises, but I am unable to accept this contention because in a second appeal there is no scope to enter into the findings of fact. Both the Courts below have found that beneficiaries Anil and Amar reasonably require the suit premises and therefore this contention that there is no finding as above has no legs to stand upon. 12. Sri Sengupta further submits that the plaintiff Smt. Tara Roy had no authority to file this suit. On perusal of the deed of trust, it appears that to put the beneficiaries in possession she was given the right to execute that trust and to put Anil and Amar in possession. This has prompted her to institute the suit so as to carry out this desire of the Settlor that is her husband Panchanan Roy. The deed of trust recites that the trust would come to an end as soon as Anil and Amar are given to possession of the suit property. But, by the deed of trust, the trustee Smt. Tara Roy was given unfettered power to evict for the accommodation of the beneficiaries. Thus, the suit was filed to execute the trust only. On a perusal of the plaintiff, it appears that the trustee Smt. Tara Roy filed a suit only for the purpose of putting the beneficiaries into possession of the trusted property. Therefore, the trustees being the legal owners of the trust property can maintain the suit to recover possession of the property of the trust from the tenants under the law. 13. Mr. S.P. Roychowdhury, learned Advocate appearing for the respondents contended that Appellate Court could not examine the plaintiff's title or interest in the suit property when admittedly it is a trust property. The question is whether the plaintiff is an owner so as to able to seek eviction on the grounds specified under Section 13(1)(ff)? 14. 13. Mr. S.P. Roychowdhury, learned Advocate appearing for the respondents contended that Appellate Court could not examine the plaintiff's title or interest in the suit property when admittedly it is a trust property. The question is whether the plaintiff is an owner so as to able to seek eviction on the grounds specified under Section 13(1)(ff)? 14. Ownership denotes the relation between a person and an object forming the subject-matter of his ownership. It consists of a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. There are various tights or incidents of ownership all of which need not necessarily be present in every Case. They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it. Such a right may be indeterminate in duration and residuary in character. A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event. 15. An that the plaintiff needs to prove is that he has a better title than the defendant. He has no burden to show that he has the best of all possible titles. His ownership is good against all the world except the true owner. The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute. The question, however, is whether he has a superior right or interest vis-a-vis, the person challenging it. Therefore, even in this case, the suit though filed by a trustee is maintainable in view of the fact eviction was sought for the benefit of the beneficiaries. It is in evidence that those beneficiaries reasonably require the suit room for their own use and occupation as they have no suitable alternative accommodation. 16. Therefore, even in this case, the suit though filed by a trustee is maintainable in view of the fact eviction was sought for the benefit of the beneficiaries. It is in evidence that those beneficiaries reasonably require the suit room for their own use and occupation as they have no suitable alternative accommodation. 16. The learned Advocate appearing for the appellant has raised some points touching the maintainability of the appeal on the ground that the learned Courts below did not record findings with regard to some allegations, but in the case reported in the Supreme Court reported in Kshitish Chandra Purkait vs. Santosh Kumar Purkait & other, 1997(5) SCC 438 , held that in the second appeal, a substantial question of law is to be examined and High Court should be satisfied that the case involved a substantial question of law and not mere question of law. A duty casts upon the High Court to formulate the substantial question of law and to put the opposite party on notice and give fair and proper opportunity to meet the point. In the absence thereof the second appeal would be illegal. Since, it is a second appeal and when the scope of this appeal was limited to Ground No. 11 only, I am unable to go into those question which was attempted to be raised by the learned Advocate appearing for the appellant. 17. In a more recent decision of the Supreme Court reported in Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar & other, 1999(3) SCC 722 , it was held that in second appeal High Court cannot substitute its own opinion for that of the first appellate Court unless it finds that the conclusions drawn by the lower Court were erroneous being contrary to the mandatory provisions of applicable law, contrary to the law as pronounced by the Apex Court or based upon any in admissible evidence or no evidence. Therefore, the appellant's contention that there was neither any issue nor any findings with regard to reasonable requirement of the beneficiaries cannot be accepted because those contentions were not permitted to be raised when the appeal was admitted. We should not forget that this appeal was admitted only on Ground No.11. 18. Therefore, the appellant's contention that there was neither any issue nor any findings with regard to reasonable requirement of the beneficiaries cannot be accepted because those contentions were not permitted to be raised when the appeal was admitted. We should not forget that this appeal was admitted only on Ground No.11. 18. Thus, upon consideration of the facts and circumstances of the case of having regard to the concurrent findings of the Court below, I am constrained to hold that there is no substance in this second appeal. 19. One Civil Order, bearing No. 2171 of 1999, which is connected with this second appeal, has been assigned to this Bench by the Hon'ble Acting the Chief Justice. 20. This Civil Order relates to an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 84 dated 10.8.98 passed by S.S. Das, Civil Judge, Junior Division, 6th Court, Alipore. In an application before the Executing Court, the petitioner who happens to be the appellant has prayed for restoration of possession of the suit premises on the ground that during pendency of this appeal and during subsistence of the stay order granted by the Court. They were dispossessed by the respondent decree holder and the Court Bailiff ignoring this order of Court gave delivery of possession to the respondent decree holder. The petitioner that is the appellant has sought to establish a case that while this second appeal was pending before this Court and while there was an order of injunction, the respondent decree holder dispossessed him from the suit property with the held of the Bailiff of the Alipore Civil Court. To this, the respondent decree holder has denied the case set up by the appellant judgment debtor. Their case, that there was no mala fide and as the facts of the stay order was known neither to them, nor to the Court officials. So, the decree holder got possession from the Executing Court. 21. Admittedly, the decree obtained by the present respondent was put into execution in Title Execution Case No. 6 of 1999. Now, it appears from the record that this second appeal was dismissed for default by this Court on 13.3.97. So, the decree holder got possession from the Executing Court. 21. Admittedly, the decree obtained by the present respondent was put into execution in Title Execution Case No. 6 of 1999. Now, it appears from the record that this second appeal was dismissed for default by this Court on 13.3.97. One year thereafter, an application for restoration was filed on 30.3.98, the said application for restoration came up for hearing when the Court directed for restoration on condition of payment of cost within a week. The appeal was actually restored by order dated 14.5.99, when the receipt showing the deposit of cost was filed before this Court and on the same day the interim order which was vacated by the Court's order dated 13.3.97, was again given effect to. This fact of restoration and passing of the interim orders were not made known to the Trial Executing Court. In the meantime, the decree was put into execution and on 4.6.99, the decree holder obtained possession through the Court. There is nothing on the record that the interim order granted by this Court on 14.5.99 was communicated to the Executing Court. There was also no communication from the side of the Judgment-debtor's Lawyer to the Executing Court. In that circumstances, the decree obtained by the respondent in this Case was executed and the decree holder obtained delivery of possession. But the learned Munsif by the impugned order dated 10.8.99 directed the decree holder to deliver possession of the suit property to the judgment-debtor within 7 days from the date of that order. On being aggrieved by the order, the decree holder respondent preferred this petition under Section 115 of the Code of Civil Procedure which came up for hearing before Justice B.M. Mitra on 31.8.99 and on that day, His Lordship was pleased to make an order for status quo and directed that the matter be placed before the Acting Chief Justice for assignment of the same to the Bench and in that circumstances, the matter came up for hearing along with this appeal. 22. Thus, when I do not find any merit in the connected second appeal, no order is required to be passed in connection with this Civil order and interference of this Court is not necessary so far as this Civil order case is concerned. 22. Thus, when I do not find any merit in the connected second appeal, no order is required to be passed in connection with this Civil order and interference of this Court is not necessary so far as this Civil order case is concerned. Thus, all the contentions of the appellant as also the judgment debtor fail, they must fail, the appeal fails too. In the result, this appeal is dismissed with all costs throughout. Connected Civil order is also disposed of in terms of the judgment as above. The defendant-appellant is directed to quit and vacate the suit premises by 31.12.99 failing which the decree shall become executable at once.