JUDGMENT Asok Kumar Ganguly, J. This appeal is directed against the judgment and decree dated 19th December, 1994 passed in Ejectment Suit No. 745 of 1980 by the Eighth Bench of City Civil Court decreeing the suit on contest against the tenant/defendant who is the appellant before us. 2. The suit was for eviction and recovery of khas possession in respect of premises No. 54B, Shyampukur Street, Calcutta - 700 004 (hereinafter called the suit premises). The appellant was a tenant of the said premises at a rent of Rs. 30/- per month according to English Calendar in respect of four rooms, bathroom, privy in the ground floor of the said premises. The suit was filed on grounds of default and reasonable requirement, sub-letting and also waste and negligence. The plaint in the case was amended twice. 3. The defendant/appellant contested the plaint case by filing written statement denying therein the case made out in the plaint. 4. The following issues were framed by the trial Court : “1. Is the suit maintainable? 2. Whether notice of ejectment and of suit dated 5th June, 1980 has been duly served upon the defendant? If so, is it legally valid and sufficient? 3. Whether the plaintiff reasonably requires the suit premises for her own use and occupation and for the occupation of her family member? Whether the plaintiff is in possession of any reasonably suitable accommodation? 4. Whether the defendant is a defaulter in payment of rent since May 1980? 5. Whether the defendant is guilty of causing wastes and negligence resulting in material deterioration in the condition of the suit premises as alleged? Whether the defendant is also guilty of causing nuisance and annoyance on the main entrance passage? 6. What other relief or relieves is the plaintiff as may be found entitled to? 7. Is the plaintiff landlord and owner of the suit premises? 8. Has the defendant sublet or part with possession of any part of the premises?" 5. Out of those issues, the first two issues were not pressed by the parties. The Court held that the notice to quit was validly served. The fourth and the fifth issues were decided in favour of the defendant/appellant. The third issue along with the sixth and seventh issues were considered in detail and were decided in favour of the plaintiff/respondent. Hence, this appeal by the tenant/appellant. 6. The Court held that the notice to quit was validly served. The fourth and the fifth issues were decided in favour of the defendant/appellant. The third issue along with the sixth and seventh issues were considered in detail and were decided in favour of the plaintiff/respondent. Hence, this appeal by the tenant/appellant. 6. Before proceeding to discuss the evidence adduced by the parties, this Court proposes to consider the plaint case as amended twice. Initially the plaint was filed on 5th August, 1980 in which, the landlord/respondent stated that she was in possession of two rooms and one kitchen on the 1st floor and one small room on the ground floor for the use and occupation of herself and her family. At this stage it was stated that the family of the plaintiff consists of herself, her husband, two sons and one married daughter. The plaintiffs eldest son was carrying on business of printing press and had 5/6 employees for the said purpose. The plaintiffs eldest son purchased a Feddle machine and accessories for printing purpose and in view of shortage of accommodation the said machineries could not be installed and were lying idle. The accommodation available to the plaintiff on the ground floor of the suit premises was insufficient. Both the sons of the plaintiff attained marriageable age, but for the shortage of accommodation the marriage could not be finalised. 7. During the pendency of the suit an amendment was prayed for and was allowed vide order No. 92 dated 9th March, 1990. In the said amendment certain portions in para 6 of the original plaint were deleted and new para 6A was inserted. Vide para 6A the amendment which was prayed for and allowed, contained averments to the effect that the plaintiff had in possession four rooms. Even though there are two rooms on the ground floor, and two rooms on the first floor but the plaintiff had no kitchen and the water tap was common with the defendant and as such was causing hardship to the plaintiffs family. The plaintiff as a worshipper of "Sree Sree Gopal", requires one room for Thakur Ghar and one for kitchen. The plaintiff is aged 55 years and her husband is aged 60 years and both were suffering from several ailments and as such two separate rooms for plaintiff and her husband are required for their accommodation. 8. The plaintiff as a worshipper of "Sree Sree Gopal", requires one room for Thakur Ghar and one for kitchen. The plaintiff is aged 55 years and her husband is aged 60 years and both were suffering from several ailments and as such two separate rooms for plaintiff and her husband are required for their accommodation. 8. During the pendency of the suit two sons of the plaintiff namely Sri Sitangshu Basak and Sri Ashim Basak were married and one grandson Sriman Subhamoy Basak, son of Sitangshu Basak was born. Plaintiffs daughter Smt. Anupama Basak got married and she gave birth to a child. Anupama was frequently coming to her paternal house to see her ailing parents but could not stay for a single night due to the scarcity of rooms. The plaintiff, therefore, required in addition to the requirement mentioned in the plaint one room for her eldest son Sitangshu and his wife and minor son Subhamoy, one room for her younger son Ashim Basak and his wife, one more room for dining-cum-store room and one room for accommodation of married daughter during her visit to the paternal house and which is to be treated as a guest room. The plaintiff also has a full time maidservant staying with her family. The business of the plaintiffs family is also to be expanded and the machines are lying idle and due to shortage of accommodation and they cannot be installed. 9. Thereafter, another amendment was prayed for by the plaintiff which was allowed vide order No. 112 dated 14/11/1991. By the said amendment the plaintiff made averments about her sole ownership of the said premises. After para 9, a para was added by way of amendment as para 9A in which the plaintiff averred that the defendant in the first week of July, 1990 left the suit premises along with the family members and was permanently residing at Rabindra Pally, Kestopur, Calcutta - 57. Thereafter, the defendant allegedly sublet, assigned and/or transferred the premises to one Sri Kanai Das, Sri Sudpir Das, Sri Biswanath Das without the consent of the plaintiff. It was also stated that Ashim Basak, the second son of the plaintiff after his marriage was blessed with a daughter. 10. In her evidence before the court, the plaintiff gave the details of her family. It was also stated that Ashim Basak, the second son of the plaintiff after his marriage was blessed with a daughter. 10. In her evidence before the court, the plaintiff gave the details of her family. Her family consists of herself, her husband and two married sons and their wives, one grand son and two grand daughters. It was obvious that with the passage of time, of the three grand children of the plaintiff, two have become major. Therefore, the family members now are about 9 apart from one whole time maidservant. 11. The accommodation which was available to the plaintiff appeared from the Commissioner's report and which is as follows : 12. In the first floor of the suit premises there are two rooms with covered verandah and the said verandah is used as a passage for the purpose of ingress into and egress out of those two rooms. The kitchen is at the north-west corner of the verandah. The verandah is measuring about 19 ft x 5 ft 10 inches. The said verandah is also used for the purpose of cooking and keeping utensils and other domestic articles. There is one room on the first floor in the occupation of the plaintiff which is measuring about 14 ft 5 inches x 9 ft. There is another room in the plaintiffs occupation which is also measuring about 13 ft 5 inches x 9 ft. According to the Commissioner's report these two rooms in the first floor are in the possession of the plaintiff and are used as bed rooms. There are two rooms in the ground floor in which the business of printing press is carried on by plaintiffs son. Room No. 1 measures about 5 ft. 4 inches x 10ft. The other room where business is carried on is measuring about 5 ft. x 7 ft. In the occupation of the defendant there are four rooms. One of them is measuring about 7 ft. 2 inches x 6 ft. The said room is facing the entrance of the ground floor. There is another room which is also in the possession of the defendant in the ground floor measuring about 7 ft. 2 inches x 6 ft. 6 inches. There is a third room measuring about 12 ft. x 7 ft. 2 inches. There is also another room which is measuring about 5 ft x 7 ft. There is another room which is also in the possession of the defendant in the ground floor measuring about 7 ft. 2 inches x 6 ft. 6 inches. There is a third room measuring about 12 ft. x 7 ft. 2 inches. There is also another room which is measuring about 5 ft x 7 ft. Apart from that there is a space in front of one of the rooms measuring about 6 ft. x 5 ft. which is used for keeping utensils and for cooking purposes. 13. It is quite clear from the aforesaid disclosure that having regard to the requirement of the plaintiff and the family, the accommodation available to them is inadequate. The learned Counsel for the appellant however, submitted that in the case of reasonable requirement, the plaintiff filing a suit must establish that there is no other suitably reasonable accommodation available to the plaintiff. In the instant case, the same has been clearly established by the plaintiff that apart from the suit premises no other accommodation is available to the plaintiff. In fact, there is a clear averment in para 8 of the plaint where the plaintiff has stated that she had no other reasonable suitable accommodation in any place in Kolkata. In her evidence also the plaintiff has stated that she has no other alternative premises for accommodation. This part of evidence given by the plaintiff was not challenged in cross-examination nor was it ever argued before us by the learned Counsel for the appellant that the plaintiff has any other suitable accommodation. 14. Therefore, on this point this Court holds that plaintiff has succeeded in proving before the first court and also before us that she has no other suitably reasonable accommodation. 15. The next point which is urged by the learned Counsel for the appellant is that there is discrepancy between the evidence of the plaintiff and materials on record including the case made out in the plaint. The learned Counsel submitted that in her evidence the plaintiff submitted that her family has no separate kitchen and her evidence is that they cook on the verandah. 16. The plaintiff in her evidence stated about the ownership of her property and also about the service of the notice to quit. She also gave a proper description of the members of her family and about the rooms in the possession of her family. 16. The plaintiff in her evidence stated about the ownership of her property and also about the service of the notice to quit. She also gave a proper description of the members of her family and about the rooms in the possession of her family. She also stated about the printing business on the ground floor of the suit premises. In her evidence she also stated about the requirement of one room for Thakur Ghar for worshipping her deity. She also stated that all the members of her family are in a joint mess and for the requirement of the members of her family all the seven rooms are needed. She also stated that for printing business her sons obtained trade licence from Calcutta Corporation and for want of accommodation the installation of new machine could not be made. She also deposed that she had no other alternative accommodation. She also stated that the defendant-tenant was no longer residing in this suit premises and had been living at Kestopur from the middle of 1990. 17. In her cross-examination, she also stated that in the said suit premises Kanai Das, Sujit Das and Biswanath Das are living and she denied that they are the brothers of the defendant Gopal Chandra Das. In her cross-examination the landlady also stuck to the stand taken in examination-in-chief that the defendant-appellant with his family left the suit premises for Rabindra Pally, Kestopur. In her cross-examination she spoke of the running of the press from the suit premises. She also stated that formerly the press of the plaintiff was running at premises No. 29, Goabagan Street, but at present no press is running at Goabagan Street. She also stated that machineries related to the printing business were lying in the suit premises and her son would be able to enlighten in detail on the transaction of business from the suit premises. She also stated that there is a Corporation licence for carrying on the said business. She deposed that her husband lived at Cuttak for a long time and occasionally he would come to the suit premises. Her husband looked after the business at Cuttak. The only daughter of the plaintiff was married and living at Salkia. But some time she used to come to the plaintiffs house but she could not stay there in the absence of a living room for her. Her husband looked after the business at Cuttak. The only daughter of the plaintiff was married and living at Salkia. But some time she used to come to the plaintiffs house but she could not stay there in the absence of a living room for her. In the cross-examination the plaintiff reiterated that she had no separate kitchen and they cook in the verandah. She did not depose anything falsely about the kitchen. She denied that she could not live in Cuttak as in Cuttak there is no living room excepting a shop room. 18. The next witness for the plaintiff is her son, Ashim Basak (P.W.2). In his evidence P.W.2 said that he had printing press at two places, one at 54B, Shyampukur Street and the other at 29, Goabagan Lane. He has one daughter who was born in September, 1981. He also produced bills for purchasing of machinery for the press. He also produced the challans issued by the company. Those documents were signed by the officers on behalf of the company and were marked Ext. 10 collectively. He also produced several money receipts for payment of money. The trade licence was also produced in respect of the suit premises. P.W.2 further stated that Calcutta Corporation gave notice in respect of trade licence. He also stated that there is one factory at Goabagan Lane. But apart from that there is printing business in the suit premises also. P.W.2 also repeated that the tenant did not live in the suit premises but he was living in Kestopur, Rabindra Pally. In the cross-examination, the evidence of the P.W.2 about the suit premises was not assailed. P.W.2 made it clear in cross-examination that the elder brother of P.W.2 was the owner of the press running from suit premises and both the business at the same time was carried on by the two sons of the plaintiff. P.W.2 also proved that they obtained licence from the Calcutta Corporation and Deep Printers which is running from the suit premises obtained industrial meter from C.E.S.C. Those electrical bills on industrial meter were marked Ext. 12. This Court finds from page 12 of the part II of the paper book that electricity bill for such industrial meter has been annexed. In his evidence it was further stated that in the suit premises there are 7 rooms and for that there is a separate domestic meter. 12. This Court finds from page 12 of the part II of the paper book that electricity bill for such industrial meter has been annexed. In his evidence it was further stated that in the suit premises there are 7 rooms and for that there is a separate domestic meter. 19. The evidence of P.W. 3 was by one Subhas Chandra Chatterjee who submitted the first report on commission. P.W.4, the second Commissioner also gave the second report. 20. Next let us consider the evidence of the tenant/defendant. In his evidence the tenant has asserted that he had been living in the suit premises in respect of 4 rooms on the ground floor at a rental of Rs. 30/- per month. He denied that he had sublet in respect of the suit premises. His case is that he is living with wife, daughter and three brothers. He stated that his son lives at Rabindra Pally. In his evidence he deposed that there was a press in the suit premises but at present for the last 14/15 years there was no press. He suggested that the books and documents which were produced in the court to show that the press is running in the suit premises are manufactured. He further admitted that when the first commission was held in the suit premises the press was running but when the Commissioner went for the second time the press was not running and the plaintiff brought some materials and men from Goabagan Press and showed them to the Commissioner in order to justify the running of the press from the suit premises. He denied that the plaintiff had no kitchen. The defendant further submitted that previously the tenancy was in the name of his father Sri Narayan Chandra Das and the landlord was one Sri Rajat Kanti Bandopadhyaya. In cross-examination the defendant admitted that his father died in 1971 and since then he has been paying rent to the landlord. He also admitted that he did not remember if any of his heirs ever wrote any letter to the landlord to the effect that they inherited the tenancy in question. In his cross-examination the defendant however, denied that he was a defaulter. 21. The evidence of D.W.2 is that of a neighbour who lives at 16, Shyampukur Street, Calcutta - 4. In his cross-examination the defendant however, denied that he was a defaulter. 21. The evidence of D.W.2 is that of a neighbour who lives at 16, Shyampukur Street, Calcutta - 4. In his examination-in-chief he deposed that there is no press running for the last 8/10 years in the suit premises. In his cross-examination he of course, admitted that he sells bananas on the pavement in Hatibagan bazaar area. He has no fixed shop and no licence for his business. From the nature of the cross-examination it appears that a suggestion is given by the plaintiff that he was a tutored witness. However, the next witness for the defendant is another neighbour who resides at 47/1A, Shyambazar Street, Calcutta - 4. He also deposed that the press is not functioning at present. To this witness also there was a suggestion that this witness was also deposing as a tutored witness. 22. On the aforesaid state of evidence, the finding of the learned Court below on the question of sub-letting is against the plaintiff/landlady and in favour of the appellant. 23. But, on the question of reasonable requirement, the learned Judge of the Court below decided in favour of the plaintiff-respondent and the court below decided that there is existence of printing business in the suit premises. The said finding is based on Corporation trade licence also on the fact that there is industrial meter, in the suit premises for carrying on that business. Such a finding is also supported by the Commissioner's report. Therefore, on the basis of the finding and having regard to the size of the family of the plaintiff/landlady, the learned Judge of the court below held that in addition to the available accommodation to the plaintiff/landlady, her family requires three more rooms from the possession of the defendant. 24. At the hearing of the appeal, the learned Counsel for the appellant urged that his client is prepared to vacate two rooms. The learned Counsel for the respondent made it clear that the said offer of vacating two rooms will not serve the purpose of the plaintiff/ landlady. According to the learned Counsel, the plaintiff/landlady prayed for the vacating of all the rooms in the possession of the tenant/appellant and the requirement of the landlady will not be met unless all the rooms are vacated. 25. According to the learned Counsel, the plaintiff/landlady prayed for the vacating of all the rooms in the possession of the tenant/appellant and the requirement of the landlady will not be met unless all the rooms are vacated. 25. The learned Counsel for the appellant raised mainly three questions and other ancillary questions in support of his appeal. His first point was that in the facts of the case, the reasonable requirement of the plaintiff had not been proved. 26. Now coming to the question of requirement, the learned Counsel for the appellant urged that requirement must be a case of genuine need. The requirement must not mean any fanciful desire or whim of the landlord for evicting his tenant. 27. In support of this contention, the learned Counsel for the appellant relied on a decision of Supreme Court in the case of Shiv Sarup Gupta vs. Mahesh Chand Gupta, reported in AIR 1999 SC 2507 . In that case the Hon'ble Supreme Court was considering the question of bona fide need or genuine need in the context of section 14 of Delhi Rent Control Act, 1958. While doing so the learned Judges held that what was bona fide requirement was not defined in the Delhi Rent Control Act but the words 'need' and 'require' express a certain degree of want with a thrust for demanding fulfilment. 'Need' or 'requirement' qualified by word 'bona fide' or 'genuine' was an expression often used in Rent Control Laws. Therefore, by the said expression what is meant is an accommodation which is genuinely required or bona fide required by the landlord. Such requirement is not a mere desire. A mere desire which is the outcome of whim or fancy has not been accepted in the Rent Control Legislation. Such a requirement is merely a pretext to evict a tenant. We are in respectful agreement with the aforesaid proposition laid down by the Hon'ble Supreme Court in Shiv Sarup Gupta. 28. But in the facts and circumstances of this case, the need or bona fide requirement of a family consisting of 9 members staying in two bed rooms and a covered verandah is a genuine need. In the facts of this case, the need of the plaintiff which has been established in the Court below and also before us is a genuine need. In the facts of this case, the need of the plaintiff which has been established in the Court below and also before us is a genuine need. Therefore, we are of the view that the decision in the case of Shiv Sarup Gupta does not support the case of the appellant. 29. The learned Counsel for the appellant on this point also relied on the judgment of the Hon'ble Supreme Court in the case of Kempaiah vs. Lingaiah & Ors., reported in 002 SAR (Civil) 98. In that case, the appellant prayed for eviction of the tenant on the ground of bona fide personal requirement within the meaning of section 21(1)(h) of Karnataka Rent Control Act, 1961. The trial Court allowed the landlord's plea. But on revision, the High Court reversed the same and the High Court held the reasonable bona fide requirement of the premises by the landlord was not proved. 30. That was challenged before the Hon'ble Supreme Court by the appellant/landlord. 31. In that context, the learned Judges of the Supreme Court considered the meaning of the expression 'bona fide requirement' in paras 6 and 7 of the judgment. The learned Judges held that a mere wish and impulse or desire on the part of the landlord is not sufficient to constitute bona fide requirement. The learned Judges held that there is an element of "must have" in the case of "require" which is not present in the case of a mere desire. The learned Judges, therefore, came to the conclusion that in the facts of that case the interference caused by the High Court in revision was perfectly justified and if eviction is ordered greater hardship will be caused to the tenants who were poor people. 32. There can be no dispute with the aforesaid proposition. But in the facts of this case which are discussed above, the genuine need of the landlord has been well established. 33. The learned Counsel for the appellant also placed reliance on a judgment of the Division Bench of this Court rendered in the case of A.K. Mukherjee vs. Pradip Ranjan Sarbadhikari. In that case, the learned Judges of the Division Bench held that in a suit for ejectment on the ground of reasonable requirement, the landlord has to answer two questions, firstly, why does he require and secondly, how much does he require. In that case, the learned Judges of the Division Bench held that in a suit for ejectment on the ground of reasonable requirement, the landlord has to answer two questions, firstly, why does he require and secondly, how much does he require. The learned Judges held that of the two questions, the first one is a question of law. This Court is unable to appreciate the relevance of the ratio rendered in that decision to the facts of this case. The facts of this case clearly answer both the questions which a landlord has to prove. 34. On this aspect the learned Counsel for the respondent also placed reliance on a judgment of the Hon'ble Supreme Court in the case of Mst. Bega Begum & Ors. vs. Abdul Ahad Khan (dead) by L.R.s & Ors., reported in (1979) 1 SCC 273 . In that judgment the learned Judges of the Supreme Court were considering the provision of Jammu & Kashmir Houses and Shops Rent Control Act, 1966. In that context the learned Judges, considering the meaning of the expression of genuine need, came to the conclusion that the Rent Control Legislation has struck a balance between the genuine need of the landlord on the one hand and the great inconvenience and trouble of the tenants on the other. Therefore, in every case of reasonable requirement there must be an element of need as opposed to a mere desire or wish. This court while respectfully accepting this proposition is of the view that in the instant case the need of the plaintiff is based on a genuine need and it is not a case of a desire or whim or fancy. 35. The learned Counsel for the appellant has also relied on two other judgments in order to point out the duty of the appeal court in appreciating the evidence and the documents on record. 36. In so far as appreciation of evidence on a question of fact by the appeal Court is concerned, reliance was placed on the judgment of the Supreme Court in the case of Serju Pershad Ram Deo Sahu vs. Jwaleshwari Pratap Narain Singh & Ors., reported in AIR 1951 SC 120 . In fact, the decision in that case goes against the contention of the learned counsel for the appellant. In fact, the decision in that case goes against the contention of the learned counsel for the appellant. In Sarju Pershad (supra), the Apex Court held that an appeal Court should observe some restrain in revising the finding of fact reached by the trial Court which had the benefit of seeing the demeanour of witnesses. Of course, the Apex Court hastened to add that it does not mean that when an appeal lies on facts, the appeal Court is incompetent to reverse a finding of fact reached by the trial Court. But before such finding of the trial Court is interfered, the Apex Court held, the appeal Court must ensure that there is a sufficient balance of improbability to dislodge the credibility of witness on whose evidence finding has been reached by the trial Court. 37. In the instant case, it is impossible for this Court to interfere with the findings reached on reasonable requirement of the plaintiff by the learned trial Judge. 38. The next decision cited was in the case of Meherunnisa & Ors. vs. Vishram Kumari & Anr., reported in AIR 1998 SC 427 . 39. In that case, the landlady issued several notices to the tenant for ejectment. The first notice dated 12.7.76 stated that the premises was required for the office of the landlady's husband who was a lawyer. The second notice dated 09.07.77 stated that the suit premises was required for the cloth business of the landlady. But, no suit was filed by the landlady pursuant to those notices. The third notice dated 12.10.79 was issued repeating the same purpose as was mentioned in the second notice and a suit was filed. The trial Court decreed the suit on the ground of bona fide requirement of the landlady. The tenant appealed against the judgment and the lower appellate Court reverse the same. The landlady preferred a second appeal to the High Court. According the High Court, the judgment of the lower appellate Court is vitiated as it had given undue importance to the first notice and ignored the subsequent notices. The High Court thus decreed the suit. On appeal to the Supreme Court, the High Court's judgment was affirmed and the Supreme Court held that the lower appellate Court failed to take into account the documents necessary for giving a finding on the issue of bona fide requirement of the premises by the landlady. The High Court thus decreed the suit. On appeal to the Supreme Court, the High Court's judgment was affirmed and the Supreme Court held that the lower appellate Court failed to take into account the documents necessary for giving a finding on the issue of bona fide requirement of the premises by the landlady. 40. It is clear from the aforesaid discussion that the ratio in Meherunnisa (supra) has no application to the facts of the case. In the case in hand, the trial Court considered all the documents and came to a correct finding. 41. The learned Counsel for the appellant submitted that the judgment of the learned trial Judge is erroneous, as the learned Judge had not given the appellant any chance to vacate the premises on a partial basis. The learned Counsel submitted that under section 13(4) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said 'Act'), there is an obligation cast upon the court to form an opinion whether or not the requirement of the landlord can be substantially satisfied by evicting the tenant from a part of the premises and allow the tenant to continue in occupation of the rest of the tenanted premises. After formation of such opinion, the Court shall, if the tenant agrees to such occupation, pass a decree and proportionately fix the rent of the portion remaining in the occupation of the tenant. 42. The learned Counsel further submits that in the facts of this case, the learned trial Judge, without asking the tenant to agree to such partial eviction, passed a decree for partial eviction which is bad in law. 43. In support of this contention, the learned Counsel for the appellant has relied on certain decisions. Reliance was placed on a decision of the Division Bench of this Court in the case of Krishna Das Nandi vs. Bidhan Chandra Roy, reported in 63 C.W.N. page 29. In Krishna Das Nandi, the Court was considering the provision of section 12(1) of the West Bengal Premises Rent Control (Temporary Provision) Act, 1950. That section is not on similar terms with the provision of section 13(4) of the said Act. In Krishna Das Nandi, the Court was considering the provision of section 12(1) of the West Bengal Premises Rent Control (Temporary Provision) Act, 1950. That section is not on similar terms with the provision of section 13(4) of the said Act. In the case of Krishna Das Nandi, what was decided was that the statutory provisions which were considered in the judgment gave ample justification to a tenant to take before the appeal Court for the first time a plea of partial eviction. This Court does not find any relevance of the aforesaid ratio to the facts of this case. The other judgment cited by the learned Counsel on the question of partial eviction was rendered in the case of Dukhharan Mukherjee vs. Tarasundari Dasi, reported in 83 C.W.N. 147. In that case, the trial Court recorded a finding that the requirement of the plaintiff/landlord would be substantially satisfied by eviction of the tenant/defendant from one of the three rooms in his occupation. On appeal, the High Court disagreed with the finding of the trial Court and dismissed the suit. Then the plaintiff/landlord preferred an appeal under clause 15 of the Letters Patent. On such appeal, the Division Bench exercising its jurisdiction under the Letters Patent, agreed with the finding of the trial Court about partial eviction, but, in the concluding portion of the judgment, set aside the judgment and decree of the appeal Court and restored the finding of the trial Court and the decree was put into execution. The tenant/ defendant put an objection under section 47 of the Code of Civil Procedure, 1908 that the decree of the High Court on Letters Patent appeal requires clarification. Application for review of the judgment of Letters Patent Bench was dismissed as barred by limitation Thereafter, the tenant's application under section 47 of the Code was dismissed by the trial Court holding that since the trial Court's decree was in respect of the entire premises and since the same was restored by the Letters Patent Bench of the High Court, the same cannot be challenged in the Executing Court. The tenant/defendant filed a revisional application before the High Court under section 115 of the Code. 44. The tenant/defendant filed a revisional application before the High Court under section 115 of the Code. 44. In that Revisional Application, the learned Judge of the High Court held that the Letters Patent Bench did not intend to pass a decree for eviction of the entire suit premises as it found that the plaintiff/landlord did not require anything more than one room. As such, the revisional Court held that the decree in respect of the entire premises is a nullity and is not executable. From the above discussion, it is clear that the question which are relevant in that decision of Dukhharan are not remotely relevant in the case before us. Therefore, the said decision has no relevance of the facts of this case. 45. The learned Counsel for the appellant relied on another Division Bench judgment of this Court in the case of Sajanendra Nath Tagore vs. Barindra Kumar Dutta Gupta, reported in 92 C.W.N. 758. In that case, the court was considering the provision of section 13(4) of the said Act. In para 8 of the said judgment, the learned Judges held that the trial Court in that case committed an error inasmuch as even though it found that a portion of the premises consisting of 2/3 rooms was not required by the landlord, but the court did not consider the question of partial eviction in the light of provisions of section 13(4) of the said Act. The court did not consider the same on the ground that such a plea was not urged by the tenant. Analysing the provision of section 13(4) of the said Act, the learned Judges of the Division Bench held that it is not possible for the tenant to anticipate the satisfaction of the court that the requirement of the landlord would be substantially satisfied by partial eviction. Therefore, lack of pleading is not decisive in such a situation. The Court further held that section 13(4) of the said Act was enacted to enable the Court to pass a decree for partial eviction and it has thus imposed a statutory obligation on the Court to consider in the light of that provision after evidence is recorded and the Court is not relieved of such obligation, simply because the tenant has not taken such a plea. 46. 46. In the instant case, there is no such finding recording the satisfaction of the Court that the requirement of the landlord will be satisfied by partial eviction. In fact, the direction that the defendant is either to vacate the entire premises or at least three rooms from the tenancy is a direction without a satisfactory finding to that effect. The respondent rightly argued that such a finding is not warranted in the facts of this case. 47. The learned Counsel for the plaintiff/respondent further urged, and in our view rightly, that having regard to the nature of the plaintiffs family and the accommodation available, the respondent requires the entire premises even for the purpose of the residential accommodation without taking into account the requirement for the accommodation needed for the business. The facts of the case, discussed above, would justify this case made out on behalf of the respondent. 48. The learned Counsel for the appellant joined issue and submitted that no cross-objection has been filed in this case in time and the cross-objection which has been filed belatedly is barred and should not be considered by this Court. In fact this was the second point urged by the appellant. The learned Counsel for the appellant also argued that since no cross-objection was filed by the respondent in time the respondent cannot get an order from this Court for eviction of the appellant from the entire premises. On this point, the learned Counsel for the parties cited some decisions. 49. In fact, in the instant case, the cross-objection was filed on 16.09.2002 taking certain grounds to the effect that the learned trial Judge should have held that the plaintiff/ landlady was entitled to get the full decree of eviction of the appellant from the entire area in his possession. The learned Counsel for the respondent submitted that in view of the amended provisions of the Civil Procedure Code, 1908, filing of the cross-objection is optional and the respondent is entitled to contend, without filing the cross-objection, that the decree of the learned trial Judge should have been passed in respect of the entire area in the possession of the tenant/appellant. 50. The learned Counsel relied on the provisions of Order 41 Rule 22 of the Civil Procedure Code, 1908. 50. The learned Counsel relied on the provisions of Order 41 Rule 22 of the Civil Procedure Code, 1908. Relying on the said provisions as amended, the learned Counsel submitted that filing of the cross-objection is no longer mandatory, but, has now become optional in view of the amendment made in 1976. 51. In any event, the alternative submission is that the respondent filed the cross-objection which may be belated. But, the said cross-objection though filed belatedly, and served on either side, does not become barred in view of the fact that the notice of hearing of the appeal was not served upon the respondent. The learned Counsel further submitted that, as a result of belated filing of the cross-objection by him, the appellant has not suffered any prejudice inasmuch as it is clear from the evidence on record that the respondent landlady requires the entire suit premises to satisfy the requirement of her family. 52. In support of the contention that the filing of the cross-objection is optional, the learned Counsel relied on a judgment of the Hon'ble Supreme Court in the case of Ravinder Kumar Sharma vs. State of Assam, reported in AIR 1999 SC 3571 . The learned Counsel submitted that the Hon'ble Judges of the Supreme Court construing the provisions of Order 41 Rule 22 of the Code, as amended, held that the respondent/ defendant in an appeal can, without filing the cross-objection, attack an adverse finding on which a decree in part has been passed against the respondent. In coming to this finding, the learned Judges of the Supreme Court considered the provisions of Order 41 Rule 22 of the Code as it stood prior to the amendment in para 10 of the said judgment. Thereafter, the learned Judges considered the exact amendment which was inserted in 1976 in paras 15 and 16 of the judgment and also considered the explanation which was appended to Order 41 Rule 22 of the Code in para 17 of the judgment. The learned Judges also considered the Division Bench judgment of the Calcutta High Court in the case of Nishambhu Jaena vs. Sova Guha, reported in 89 C.W.N 685. In the said judgment, the Division Bench of this Court referred to the report of the Law Commission in respect of the amendment to Order 41 Rule 22 of the Code. The learned Judges also considered the Division Bench judgment of the Calcutta High Court in the case of Nishambhu Jaena vs. Sova Guha, reported in 89 C.W.N 685. In the said judgment, the Division Bench of this Court referred to the report of the Law Commission in respect of the amendment to Order 41 Rule 22 of the Code. The learned Judges in para 22 of the said judgement approved the view expressed by the Division Bench of the Calcutta High Court in Nishambhu Jena's case and the learned Judges ultimately held that, without filing any cross-objection, the respondent/defendant can attack an adverse finding upon which the decree in part has been passed against the respondent/defendant. Thus, the learned Judges clearly held that filing of cross-objection is optional and not mandatory. This Court is in respectful agreement with the view of the Division Bench of the Calcutta High Court in Nishambhu Jena as approved in Ravinder Kumar's case. The filing of the cross-objection being thus optional, this Court holds that the learned Counsel of the respondent/landlady can argue, that having regard to the size of the family of the respondent, discussed above, and having regard to her proved reasonable requirement, the learned Court below ought to have decreed the suit in full. 53. On the question of belated filing of cross-objection, the learned Counsel for the respondent cited a Division Bench judgment in the case of Sabita Dutta vs. Abir Chandra Dutta, reported in 1991(1) CHN 379, to the effect that where the notice of appeal has not been served on the respondent the period 30 days for filing of the cross-objection will not begin to run till such service. In this case, it was urged on behalf of the appellant that assuming the notice of appeal was not served, but, the respondent appeared in Court. So the period of 30 days must be counted from the date of appearance. Rejecting the said contention, the Division Bench held that since the period of limitation was to be counted only from the date of service of the notice of hearing of appeal, it must be held that the period of limitation never started running as the said notice was not served. In view of the aforesaid finding, the cross-objection filed belatedly, was held to be not barred by limitation. In view of the aforesaid finding, the cross-objection filed belatedly, was held to be not barred by limitation. Taking the same view, this Court holds that in the instant case, the cross-objection is not barred. It is an admitted position that the notice of hearing of the appeal was not served upon the respondent or his pleader nor the service of such notice was waived. 54. In any event, since the filing of the cross-objection is itself optional, the question of limitation in case of such filing loses much of its significance. 55. The learned Counsel for the appellant further raised a third point that the suit itself is not maintainable. He submitted that in the instant case the tenancy was in the name of the father of the appellant. The appellant is one of the sons. After the death of the father, all the sons are heirs. Other sons have not been impleaded. So the suit is bad. 56. It is admitted that the father died in the year 1971 and the suit was filed in the year 1980. But, the said suit was filed only against Gopal Chandra Das and not against the other sons of the original tenant. In support of this contention, the learned Counsel for the appellant has relied on certain decision which may be considered now. 57. The learned Counsel first relied on the decision in the case of Jagadsh Chandra Sinha & Ors. vs. Eileen K. Patricia D Rozarie(Mrs.), reported in (1995) 1 SCC 164 . In that decision, the Hon'ble Judges of the Supreme Court considered the question whether the respondent, as a daughter of the deceased tenant, can claim herself to be a tenant under section 2(h) of the said Act (see para 5). The learned Judges held that as a result of the amendment of the said Act in the year 1965, the heirs of a statutory tenant also gets the protection under the said Act. The purpose of amendment was to give to the heir of a statutory tenant the right to retain possession of the premises after the tenant's death. But the questions which were decided in the case of Jagadish Chandra Sinha are not relevant here. In the instant case, it has not been argued by anyone that the appellant has not inherited the tenancy. But the questions which were decided in the case of Jagadish Chandra Sinha are not relevant here. In the instant case, it has not been argued by anyone that the appellant has not inherited the tenancy. In fact, the suit was filed against the appellant and as he inherited the tenancy. But the question which has cropped here is whether other brothers of the appellant should have been impleaded in the suit as they are supposed to have inherited the tenancy also. 58. In order to appreciate that question, the factual aspect of the case must be considered. In the instant case, the father of the appellant died in the year 1971 and the suit was filed in the year 1980. All these days, the appellant used to pay the rent and held himself out as the tenant. In para 1 of the plaint, it has been stated that the defendant/appellant is the monthly tenant under the plaintiff. No one else was described as the tenant. In the written statement which was filed in this case by the defendant/appellant, the said fact was not disputed. On the other hand, the defendant/appellant asserted in para 1 of the written statement that he had been the tenant in the suit premises even before the plaintiff purchased the suit premises. Therefore, in the written statement, no objection was taken that apart from the defendant/appellant, there are other tenants who ought to have been impleaded. In his evidence before the Court, also the defendant in his examination-in-chief stated that he is the tenant (see page 63 of the Paper Book). In cross-examination the defendant admitted that he had been paying rent to the landlord. He further stated that he did not remember if any of the heirs of his deceased father wrote any letter to landlord claiming that they inherited the tenancy (see page 66 of the Paper Book). However, in the suit, an issue was framed, viz. Issue No. 1 as to the maintainability of the suit. But at the time of trial, the said issue was not pressed by the parties and the learned Court below held that the suit is maintainable. 59. In view of such materials on record, it is not possible for this appeal Court to come to a finding that the suit is not maintainable. 60. Law on this aspect is quite clear. 59. In view of such materials on record, it is not possible for this appeal Court to come to a finding that the suit is not maintainable. 60. Law on this aspect is quite clear. If a plea about the maintainability is raised, but the same is abandoned, the said plea cannot be raised again at the appellate stage. Reference may be made to the decision of the Division Bench in the case of Prem Chand Manik Chand vs. Fort Gloster Manufacturing Company Limited, reported in 64 CWN 103. In that decision, Chief Justice Chakraborty held that the question which goes to the validity of the proceeding can be taken for the first time at any stage. But, when such ground was taken in the trial Court, but then it has been abandoned the party cannot be allowed to raise it again at the appellate stage (page 105 of the report). 61. The subsequent decision of this Court in the case of Satyanarayan Shah vs. Star Company Limited, reported in AIR 1984 Cal 399 , also affirms the same position. In para 21 of the judgment, the learned Judges of the Division Bench held that an issue, which was not pressed at the time of hearing of the suit, cannot be raised for the first time before the appeal Court. In the instant case, also, we find that the issue was raised, but was not pressed in the court below. So it cannot be raised again. 62. Reference, in this connection, may also be made to the decision of the Supreme Court in the case of Chander Kali Bail vs. Jagadish Singh Thakur & Ors., reported in AIR 1977 SC 2262 . In that judgment, the learned Judges held that when a claim was not taken in the defence, then in its support no evidence can be looked into since the claim was never put forward. At the appellate stage, the court may not consider such plea which was not advanced at the trial stage (see para 6 of the judgment). Similar view has been taken by the Supreme Court in the case of Sangappa Gurulingappa Sajjan vs. State of Karnataka & Anr., reported in (1994) 4 SCC 145 . At the appellate stage, the court may not consider such plea which was not advanced at the trial stage (see para 6 of the judgment). Similar view has been taken by the Supreme Court in the case of Sangappa Gurulingappa Sajjan vs. State of Karnataka & Anr., reported in (1994) 4 SCC 145 . In para 2 of the judgment, the learned Judges held that when a plea which has available to the parties was not raised at the first instance, such a plea cannot be raised at the stage of filing of S.L.P. 63. On merits on this aspect of the matter, a Division Bench judgment was cited by the learned Counsel for the respondent rendered in the case of Amal Krishna Aditya vs. Ganesh Chandra Das, reported in 1998(1) CHN 521 . In that case, it was held that there is a distinction between joint tenancy and tenancy in common. In the case of joint tenancy, there is unity of title, possession, interest and commencement of the title, whereas in the case of common tenancy, there may be unity of possession and commencement of title, but two other features of the joint tenancy, viz. unity of title and unity of interest are absent. In the instant case, the heirs of the deceased tenant might be called tenants in common but they do not become joint tenants. 64. From the facts of the case as discussed above, it is clear that the defendant alone become the tenant under the plaintiff/respondent after the death of the father of the plaintiff/respondent. This position has been asserted in the plaint and not denied in the written statement. It may be true that his other brothers did relinquish their rights as tenants in respect of the suit premises. It is clear from their conduct and also from the evidence of the appellant. It is clear that they are not claiming the tenancy. In the facts of the case the defendant/appellant represented the entire tenancy and thus, on the principle of representation, any action taken by the landlord against the defendant/appellant alone would also bind the other tenants. The said principles are also applicable in the facts and circumstances of the instant case. In view of the decision of the Division Bench of this Court in the case of Amal Krishna Aditya, this Court is of the opinion that the suit is maintainable. The said principles are also applicable in the facts and circumstances of the instant case. In view of the decision of the Division Bench of this Court in the case of Amal Krishna Aditya, this Court is of the opinion that the suit is maintainable. As such, all points raised by the appellant fail. 65. This Court is of the opinion that the bona fide requirement for accommodation of the respondent cannot be satisfied in the facts of the case, unless the appellant/defendant vacates the entire portion of the suit premises which is under his occupation. Therefore, the appeal fails and the cross-objection is allowed. This Court directs that the appellant/ defendant must vacate forthwith the entire portion in the suit premises which is under his occupation. Accordingly decree may be drawn up expeditiously. 66. There will be no order as to costs. Hrishikesh Banerji, J.: I agree. Appeal fails and cross-objection allowed.

Gopal Chandra Das v. Saraswati Basak