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2004 DIGILAW 1178 (SC)

NISHA RANI MOOKHERJEE v. PURAN CHAND JAIN

2004-09-09

ARIJIT PASAYAT, C.K.THAKKER

body2004
Order ARIJIT PASAYAT, J.- These four appeals are interlinked. Civil Appeals Nos. 5460-61 of 2000 have been filed by Nisha Rani Mookherjee (hereinafter referred to as the landlady). In these appeals Puran Chand Jain, the appellant in Civil Appeals Nos. 5462-63 of 2000 (hereinafter referred to as the tenant) is the respondent. All these appeals have a common matrix Le. the judgment of the Calcutta High Court dated 1-3-2000. Two appeals were filed before the a Calcutta High Court which were numbered as FMAs Nos. 693-94 of 1991. 2. The factual background needs to be noted in brief: The landlady filed Title Suit No. 117 of 1988 before the trial court i.e. the Court of Additional Munsif, Sealdah. Though filed in the year 1982, at the time of disposal by the trial court i.e. the Additional Munsif, same was renumbered as Title Suit No. 117 of 1988. The suit was filed for eviction of the tenant from the premises on three grounds i.e. (a) reasonable requirement for self, (b) for unauthorised construction on the roof of the first floor, and (c) sub-letting without consent. The ground of sub-letting was abandoned. Five issues were framed by the trial court. The major issues related to alleged unauthorised construction and bona fide requirement for personal use. On consideration of the evidence led by the parties, the trial court found that thec plaintiff was the owner of the suit premises by virtue of registered deed of gift from her husband. The decree of eviction was passed against the tenant on the ground of bona fide requirement of the plaintiff and for raising unauthorised construction on the roof of the suit premises. The tenant preferred an appeal against the decree of eviction and the first appellate court affirmed the findings of the trial court on the issues of reasonable requirement and raising unauthorised construction. However, it felt that the question of validity of the deed of gift was to be examined by examining the attesting witnesses. Accordingly, the appellate court remanded the matter to the trial court with, inter alia, the following directions: "That the appeal be and the same is allowed in part on contest as against the respondent but in the circumstances without cost. The e judgment and decree of the learned Munsif in TS No. 117 of 1988 are set aside on a particular point, adjudicating ownership of suit property." 3. The e judgment and decree of the learned Munsif in TS No. 117 of 1988 are set aside on a particular point, adjudicating ownership of suit property." 3. Both the landlady and the tenant preferred appeals before the Calcutta High Court but on different grounds. According to the tenant there should not have been restricted remand and it should have been left open to the trial court for adjudicating all issues. The landlady on the other hand challenged f the remand for the purpose of examining the validity of the deed of gift. According to her, even if the ownership is considered to be not there for the sake of arguments, yet in view of the provisions of the West Bengal Premises Tenancy Act, 1956 (in short "the Act") finding regarding the unauthorised construction was sufficient to direct eviction. The High Court by the impugned judgment set aside the order of remand passed by the appellate court as also the "order" portion of the judgment without disturbing the finding of the first appellate court on other issues except the issues relatingto the ownership. 4. Learned counsel for the tenant submitted that the findings have been recorded by the courts below regarding the unauthorised construction without properly considering evidentiary value of testimony of the witnesses and the documents placed on record. It was pointed that what was ultimately found to have been constructed is one room with roof which cannot be treated to be a permanent construction, it did not damage the property i.e. tenanted premises in any way. Neither the landlady nor any person on her behalf objected to the construction when it was taken up. Even the Calcutta Corporation Authorities did not raise any objection to the construction. That being so, the equity is in favour of the tenant and merely because the findings have been recorded about the unauthorised construction, that is not sufficient for an order of eviction. In response learned counsel appearing for the landlady submitted that a bare reading of Section 13(1) of the Act shows that for the purpose of order of eviction when there is unauthorised construction ownership is really of no consequence. The question revolves around who is the landlady in terms of the Act. In response learned counsel appearing for the landlady submitted that a bare reading of Section 13(1) of the Act shows that for the purpose of order of eviction when there is unauthorised construction ownership is really of no consequence. The question revolves around who is the landlady in terms of the Act. The undisputed position being that the plaintiff landlady was receiving the rent, the question of ownership should not have been gone into and the order of eviction had been rightly passed by the trial court. 5. In order to appreciate the rival submissions it would be necessary to take note of Section 13(1) of the Act which appears in Chapter 3 i.e. "Suits and proceedings for eviction". Relevant provisions read as follows: "13. Protection of tenant against eviction.-(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds, namely- (a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sub-lets in whole or in part the premises held by him; (b) where the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions of clause (m), clause (0) or clause (P) of Section 108 of the Transfer of Property Act, 1882 (4 of 1882); (c)-(e) * * * (f) subject to the provisions of sub-section (3-A) and Section 18-A, where the premises are reasonably required by the landlord for purposes of building or rebuilding or for making thereto substantial additions or alterations, and such building or rebuilding, or additions or alterations, cannot be carried out without the premises being vacated; (ff) subject to the provisions of sub-section (3-A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation;" 6. Section 13(1)(b) in turn refers to several clauses of Section 108 of the Transfer of Property Act, 1982 (in short the TP Act). 7. Section 13(1)(b) in turn refers to several clauses of Section 108 of the Transfer of Property Act, 1982 (in short the TP Act). 7. Undisputedly the question relates to clause (P) of Section 108 of the TP Act which reads as follows: "108. (P) he must not, without the lessors consent, erect on the property any permanent structure, except for agricultural purposes;" 8. The expression "landlord" has been defined in the Act in Section 2(d) and reads as follows: "2. (d) landlord includes any person who, for the time being, is entitled a to receive or but for a special contract would be entitled to receive the rent of any premises, whether or not on his own account;" 9. In view of the undisputed position that the landlady was receiving rent, she is certainly covered by the definition of "landlord" as appearing in the Act. 10. Categorical findings have been recorded by the trial court and the first appellate court about the unauthorised construction taking into account the pleadings, the evidence of PW 6 i.e. the employee of the Corporation. These findings are essentially factual findings. Though the appellate court did not deal with the question of unauthorised construction in detail, it affirmed the conclusions because it restricted the order of remand to the question of ownership only. Though elaborate reference was made by learned counsel for the tenant to the evidence of PW s 1, 2 and 6 we find nothing unfair in the conclusions of the courts below regarding the unauthorised construction. That being so Section 13(1)(b) read with clause (P) of Section 108 of the TP Act apply to the facts of the case. Therefore, Civil Appeals Nos. 5462-63 of 2000 filed by the tenant stand dismissed. 11. In view of the dismissal of the tenant the natural corollary is that thelandlady is entitled to order of eviction in terms of Section 13(1)(b) of the Act. So the question of ownership is really of no consequence and the order of the first appellate court as affirmed by the High Court in considering the question of ownership stands nullified. The appeals filed by the landlady are allowed to the aforesaid extent. 12. So the question of ownership is really of no consequence and the order of the first appellate court as affirmed by the High Court in considering the question of ownership stands nullified. The appeals filed by the landlady are allowed to the aforesaid extent. 12. Though we dismiss the appeals of the tenant considering the fact that e the tenant was occupying the premises for nearly a quarter of a century, we grant time till the end of 2005 for vacation subject to the filing of the usual undertakings before the trial court within three weeks. There shall be no order as to costs in these appeals.