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2005 DIGILAW 11 (CAL)

SHRIMATI LLA GUHA v. SHYAMAL BHATTACHARYA

2005-01-10

S.K.GUPTA

body2005
S. K. GUPTA, J. ( 1 ) THIS Second Appeal has been preferred against the judgment and decree passed by Civil Judge, Senior Division, Alipore, 7th Court in Title appeal No. 44 of 1998 whereby the decision of the Civil Judge, Junior division, Second Court, Alipore passed in Title Suit No. 71 of 1988 was reversed. The case of the plaintiff/appellant is that, she instituted the ejectment suit praying for eviction of the defendants/respondents from the suit premises. According to the plaintiff, the defendants were the tenant under her in respect of the suit premises for a monthly rent of Rs. 80/- payable according to English calendar month. As the plaintiff required the suit premises for her own use, so she requested the defendants to vacate the suit premises. But as the defendants refused to vacate, so the plaintiff served a notice of eviction on the defendants asking them to vacate the suit premises. In spite of that, the defendants did not vacate the suit premises and as such the plaintiff was compelled to file the suit for eviction against the defendants. The plaintiff also prayed for eviction against the defendants claiming that they are guilty of causing nuisance and annoyance. ( 2 ) THE defendants contested the suit by filing written statement wherein they denied the plaintiff's claim that she required the suit premises for the use of herself and for her family members. According to the defendants, there are sufficient spaces available to the plaintiff to accommodate herself and her family members and for that eviction of the defendants from the suit premises was not at all required. The defendants also denied that they are guilty of causing nuisance and annoyance in the suit premises. ( 3 ) UPON the above pleadings, the learned Trial Court framed several issues and thereafter, after considering the materials-on-record, he was pleased to decree the suit in favour of the plaintiff/appellant as according to the Trial Court, the plaintiff required the suit premises for her own use and occupation. Being aggrieved by the said judgment, the defendants preferred an appeal. The learned First Appellate Court also was of the opinion that the plaintiff required the suit premises reasonably for her and her family members' use and occupation. Being aggrieved by the said judgment, the defendants preferred an appeal. The learned First Appellate Court also was of the opinion that the plaintiff required the suit premises reasonably for her and her family members' use and occupation. But as it transpired before the learned First appellate Court that during the pendency of the litigation, the appellant let out a room which fell vacant, so according to the learned First Appellate court, the plaintiff was not entitled to get a decree for eviction. As such, said Court was pleased to allow the appeal of the defendants/tenants and dismiss the suit. ( 4 ) BEING aggrieved and dissatisfied with the said finding of the learned first Appellate Court, this second appeal was preferred by the plaintiff/ appellant. According to the appellant, the learned First Appellate Court was not at all justified in reversing the decision of the trial Court. It has been alleged that the learned First Appellate Court failed to appreciate the materials before him properly and as such the decision of the learned First appellate Court is liable to be set aside. ( 5 ) THE appeal was heard on the following questions :-1) Whether the judgment of the Court of Appeal below was a proper judgment of reversal in view of the fact that the Appellate court had not considered that even if one room which was let out by the plaintiff/appellant during the pendency of the present litigation would sufficiently meet the reasonable requirement of the plaintiff/ appellant within the meaning of Section 13 (1) (ff) of the Act. 2) Whether the Court of the appeal below ought to have considered that the plaintiffs/appellants' need could not be satisfied in full even in case the plaintiff/appellant occupied one room which was vacated by the tenant during the pendency of the appeal or not. 3) Whether the appellate Court ought to have come to a finding that even if a room was vacated by a tenant during the pendency of the appeal, the vacation of such room could not be considered that in view of the fact that the said room would only be utilised for using it as a 'store room'. ( 6 ) IT has already pointed out that the suit was filed by the plaintiff praying for eviction of the defendants/tenants from the suit premises on the ground of reasonable requirement. ( 6 ) IT has already pointed out that the suit was filed by the plaintiff praying for eviction of the defendants/tenants from the suit premises on the ground of reasonable requirement. As per provisions of Section 13 (1 ) (ff) of the West Bengal Premises Tenancy Act, the plaintiff can pray for eviction of the tenant on the ground of his reasonable requirement. The term 'reasonable requirement' has been well defined in various decisions of the hon'ble Supreme Court as well as of this Court. It is now settled position that in order to come to a decision in respect of the need of the owner, it must be looked into as to whether he/she actually needs the suit premises for the benefit of his/her family members. The owner must prove that the size of his family is such that it cannot be accommodated in the existing accommodation and for that, said owner requires other accommodation. The owner must also prove that he/she has got no other reasonably suitable accommodation elsewhere. This duty to prove this necessity certainly lies on the owner. Simply because, the owner desired the suit premises, which is under the occupation of the defendant/tenant, cannot be a sufficient ground for eviction of the tenant from the suit premises. Keeping the above principle in mind, let us now see whether the demand of the plaintiff/appellant for eviction of the defendants from the suit premises is reasonable or not. For that purpose, first of all, we are to look into the size of the family of the plaintiff. It appears from the judgment of the First Appellate Court that there are in all nine family members in the family of the plaintiff. The plaintiff has claimed that she is in possession of two bed rooms, one covered veranda, one kitchen and two small incomplete tiles shed room on the southern side and two rooms on the western side of the building made of brick walls and tiles shed with one kitchen in the down stairs and one covered veranda. It has already been pointed out that the plaintiff's family consist of nine members. The learned First Appellate Court, after considering the materials-on-record, was of the opinion that the plaintiff reasonably required at least 11 rooms to meet the need of her family members. It has already been pointed out that the plaintiff's family consist of nine members. The learned First Appellate Court, after considering the materials-on-record, was of the opinion that the plaintiff reasonably required at least 11 rooms to meet the need of her family members. Almost same reasoning has been given by the learned Trial Court while decreeing the suit in favour of the plaintiff. Both the Courts below extensively discussed about the need of the plaintiff in respect of those rooms. I find no reason whatsoever to disagree with the said finding of the Courts below. Whether the plaintiff requires more rooms or not in order to accommodate his/her family members is certainly a question of fact. In orderto come to a decision that the plaintiff's family requires more rooms than what is in their possession now, the Courts below, as already pointed out, gave sufficient reasoning in arriving at such a conclusion. The reasoning as given by the Courts below in this respect appears to me to be perfectly justified. It is the settled principle that in a second appeal it is not permissible for the High Court to look into the question of fact which has been decided by the Courts below. In the decision reported in AIR 1999 Supreme Court, Page 2213, Kondiba Dagadu kadam v. Savitri Bai Sopan Gujar it has been clearly laid down by the Hon'ble supreme Court to the effect that the concurrent findings of facts however erroneous, cannot be disturbed by the High Court, in exercise of the powers under Section 100 C. P. C. The substantial question of law has to be distinguished from a substantial question of fact. The ratio, decided in the said decision has clearly stated that it is not within the domain of the High court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the First Appellate Court. It will not be a ground for interference in second appeal when it is found that the Appellate Court has given satisfactory reasons in its judgment. In case where from a given set of circumstances two inferences are possible, one drawn by the Lower appellate Court is binding on the High Court in second appeal. Any other approach is not permissible. In case where from a given set of circumstances two inferences are possible, one drawn by the Lower appellate Court is binding on the High Court in second appeal. Any other approach is not permissible. The High Court cannot substitute its own view against the opinion of the First Appellate Court, unless it is found that the conclusions drawn by the Lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or against the settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. I have already pointed out that the learned First Appellate Court came to such conclusion that the plaintiff required the suit premises reasonably, after properly considering the materials-on-record. I find no illegality whatsoever in the decision in this respect, given by the learned First Appellate Court. In fact, this decision of the learned First Appellate Court actually confirmed the decision given by the learned Trial Court. So, under such circumstances, i do not think that it is permissible for this Court to interfere into the concurrent findings of the learned Courts below. ( 7 ) BUT it appears that the learned First Appellate Court although was of the opinion that the plaintiff required the suit premtses for her own use and occupation reasonably, still he preferred to dismiss the suit of the plaintiff on the ground that although a room of the suit house fell vacant, the plaintiff failed to occupy the same and instead she preferred to let out the said room in favour of another person. As such, he was of the opinion that as the plaintiff did not avail of this opportunity, so it must be held that the requirement of the plaintiff of the suit premises was not genuine. Due to this fact, the learned First Appellate Court was pleased to dismiss the suit, filed by the plaintiff against the defendants. It is the admitted position that during pendency of the suit, one room on the Sripur Road of the suit house fell vacant. The P. W. 2 in his evidence has clearly admitted this fact by saying that said room was let out as a store room: But at the same time he also claimed that the room was not habitable. There was no denial or suggestion given in cross-examination to this witness. The P. W. 2 in his evidence has clearly admitted this fact by saying that said room was let out as a store room: But at the same time he also claimed that the room was not habitable. There was no denial or suggestion given in cross-examination to this witness. As such, this claim of the P. W. 2 that said room was not habitable and consequently not suitable for the purpose of the plaintiff, remained unchallenged and I find no reason to disbelieve that statement. It appears that in order to come to such a decision, the learned First Appellate Court relied upon the decision reported in AIR 1987 Supreme Court, Page 741, Amarjit Singh v. Smt. Khatoon quamarain. It has been laid down in the said decision in Para 19 to the effect:- "if the landlady or the landlord could have reasonable accommodation after his or her need arose and she by her own conduct disentitled herself to that property by letting it out for higher income, she would be disentitled to evict her tenant on ground of her need. " ( 8 ) IF we look into this ratio decided by the Hon'ble Supreme Court, then it will appearthat in order to take advantage of the said ratio it must be proved that the accommodation which came in the hand of the plaintiff during the pendency of the suit was reasonable and suitable accommodation. In the decision reported in AIR 1987 Supreme Court, Page 2131 Dr. Saraj kumar Das v. Arjun Prasad Jogani it appears that the Hon'ble Supreme court held that in order to take advantage of the subsequent event that another room came into possession of the landlord during the pendency of the suit or appeal it must first of all be decided as to whether said accommodation was reasonably suitable for the purpose of landlord or not in order to deprive the landlord from the decree of eviction against the tenant. It appears that the learned First Appellate Court simply decided against the plaintiff without considering the fact as to whether the room which came into the hands of the paintiff during the pendency of the suit, was reasonably suitable or not. "there is no discussion whatsoever in this respect by the learned First Appellate Court. It appears that the learned First Appellate Court simply decided against the plaintiff without considering the fact as to whether the room which came into the hands of the paintiff during the pendency of the suit, was reasonably suitable or not. "there is no discussion whatsoever in this respect by the learned First Appellate Court. Simply because the landlord got possession of another room during the pendency of the suit, that does not necessarily mean that the landlord should be deprived of the decree of eviction. What is required for the Court is to see as to whether that room was suitable for the purpose of the landlord or not. In other words, it must be seen as to whether the owner's requirement would be satisfied by the said room or not. So far as the present case is concerned, it appears that according to the Court below, the requirement of the plaintiff is not less than 11 rooms considering the size of her family. The plaintiff is in possession of 9 rooms only and as such it must be said that by the said room, which came into the hands of the plaintiff during the pendency of the suit, would not serve the purpose of the plaintiff at all. Moreover, I have already pointed out that from the evidence on record, it appears that the room in question was on the back side of the suit house and it was not habitable. Under such circumstances it must be held that by that room the plaintiff's requirement could not have been served. To my mind, the learned First Appellate Court was not at all justified in ignoring all these facts while reversing the decision of the learned Trial Court although he was of the opinion, that the plaintiff reasonably required the suit premises. The judgment as passed by the learned First Appellate Court, in this respect, appears to me to be the result of non-appreciation of the evidence properly and as such, I think that it is a fit case where this Court should interfere into the said finding of the learned first Appellate Court as per provisions of Section 100 C. P. C. and the decision of the learned First Appellate Court, in this respect, in my considered opinion, is liable to be set aside. All the questions are answered accordingly. All the questions are answered accordingly. ( 9 ) IN the result, the appeal succeeds. The judgment passed by the learned Civil Judge, Senior Division, Alipore in Title Appeal No. 44 of 1998 is set aside. The judgment passed by the learned Civil Judge, Junior Division, second Additional Court, Alipore in Title Suit No. 71 of 1988 is confirmed. ( 10 ) SEND back the Lower Court Record at once. Xerox certified copy, if applied, may be handed over to the parties on urgent basis.