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2002 DIGILAW 236 (CAL)

Netai Chandra Sarkar v. Kazi Sarfuddin

2002-04-08

Narayan Chandra Sil

body2002
JUDGMENT Narayan Chandra Sil, J. This appeal is directed against the judgment and decree passed on 2.1.1993 by Sri P. K. Das, learned Assistant District Judge, Baruipur, 24-Parganas (South) in connection with Title Appeal No. 19 of 1992 affirming the judgment and decree dated 21.12.1990 passed by Sri Amitabha Das, learned Munsif, 1st Court, Baruipur in connection with Title Suit No. 242 of 1988. 2. The suit before the trial court was for eviction on the ground of default in payment of rent, reasonable requirement, building and re-building, damage and nuisance caused to the suit property etc. The learned trial court decreed the suit only on the ground of reasonable requirement which was affirmed by the learned lower appellate court. 3. The fact of this suit in brief is that the plaintiffs are the joint owners of the suit premises and the defendant was a monthly tenant in respect of the suit premises which is a shop room. The plaintiffs required the suit premises for building and re-building in order to save dilapidated condition of the same. It is further stated that the plaintiff Nos. 1 to 3 sell shoes while the plaintiff No.4 sells readymade garments in different Huts by hawking and thus the plaintiffs reasonably required the suit premises for carrying on their business. It is also asserted that the plaintiffs have no other suitable accommodation elsewhere within the municipal town of Joynagore. The defendant contest the suit by filing written statement denying all the material allegations. 4. The following substantial question of law has been formulated for the purpose of determination of the present appeal: "Whether in view of the subsequent development on the death of the father of the plaintiffs leaving some properties, the ground of reasonable requirements of the suit premises still exists." 5. Mr. A. K. Bhattacharya (III), learned Advocate appearing for the appellant/defendant/tenant submits before me that during the pendency of this appeal father of the plaintiffs/respondents died in the year 1995 and the petition under Order 41 Rule 27 of the Civil Procedure Code filed by the appellant was disposed of by this court. It is pointed out by Mr. Bhattacharya that admittedly the father of the plaintiffs had a two-storied building at Dhosarhat and the said building is sufficient to meet the reasonable requirement of the plaintiffs. Mr. It is pointed out by Mr. Bhattacharya that admittedly the father of the plaintiffs had a two-storied building at Dhosarhat and the said building is sufficient to meet the reasonable requirement of the plaintiffs. Mr. Bhattacharya has then taken me through the evidence of the P. W. 1 where the P. W. 1 stated that they run a grocery shop from their residential house. 6. Mr. Bhattacharya has then referred to the ratio decided in the case of Mattulal vs. Radhe Lal, AIR 1974 SC 1596 . In the said case the finding reached by the Additional District Judge, the First Appellate Court, on an appreciation of evidence that the landlord does not bona fide require the premises in question for the purpose of starting business as a dealer in iron and steel materials is a finding of fact and not a finding of mixed law and fact and it cannot be interfered with by the High Court in the second appeal unless it is shown that in reaching it a mixed of law is committed by the Additional District Judge or it is based on no evidence or is such as no reasonable man can reach. It was further held by the Hon'ble Apex Court in that case that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the court to determine the truth of the assertion and also whether it is bona fide. 7. Mr. Jyotirmoy Bhattacharya, learned Advocate appearing on behalf of the plaintiffs/respondents/landlords submits before me that the plaintiffs had given up the ground of building and re-building. It is pointed out by him that the suit property is a shop room in the market place of Joynagore Municipality. It is further pointed out by him that the plaintiffs have different business at different places but so far the plaintiff Nos. 1,3 and 4 are concerned, they have no place to carryon business, although they have already been doing the business by hawking. Mr. Bhattacharya has then argued before me that the father of the plaintiffs had one shop room at Dhosarhat but the plaintiffs require a suitable shop room within Joynagore Municipality and that is the suit premises. 1,3 and 4 are concerned, they have no place to carryon business, although they have already been doing the business by hawking. Mr. Bhattacharya has then argued before me that the father of the plaintiffs had one shop room at Dhosarhat but the plaintiffs require a suitable shop room within Joynagore Municipality and that is the suit premises. It is also pointed out by him that the concurrent findings of the courts below cannot be interfered for not being the question of law. It is also pointed out by Mr. Bhattacharya that the defendant could not show/establish that the plaintiffs have any other reasonably suitable accommodation. 8. Both the learned lower courts came to the concurrent findings that the plaintiffs reasonably required the suit premises and as such the suit was decreed by the trial court which was subsequently affirmed by the lower appellate court. Subsequent development is the death of the original plaintiff who was the father of the present substituted plaintiffs and while disposing of a petition under Order 41 Rule 27 it was observed by this court that the said fact of the death of the father of the present plaintiffs can be taken into consideration at the time of final hearing of the appeal. In fact, the said fact of the death of the father of the present plaintiff is not denied. But what has been established in the order passed by this court in disposing of the petition under Order 41 Rule 27 of the Code of Civil Procedure is that the father had left a 'challa' at Dhosarhat. But in the instant case the suit premises is situate within Joynagore Municipality and that is what is required by the plaintiffs for their business. It has been established in the evidence adduced by the parties that the plaintiffs have already got their business but in the absence of fixed place of business they are to dispose of their articles by way of hawking. 9. Both the learned lower courts appear to have taken the evidence placed before it into consideration and accordingly I do not find any application of the ratio decided in the case of Matuulal (supra) as referred to by the learned Advocate for the appellant. I do not find anything also to interfere with the judgment and decree passed by both the courts below. 10. I do not find anything also to interfere with the judgment and decree passed by both the courts below. 10. Accordingly, the appeal fails and dismissed on contest. The judgment and decree passed by the lower appellate court is hereby affirmed. The suit is accordingly decreed. 11. Parties are directed to bear their respective costs. 12. A copy of this judgment along with the L.C.R. be sent down to the learned lower courts forthwith. Appeal dismissed.