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2006 DIGILAW 203 (CAL)

Raj Kumar Dutta v. Bimal Kumar Dhar

2006-04-03

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2006
Judgment : BHASKAR BHATTACHARYA. J. (1) THIS first appeal is at the instance of a tenant-defendant in a suit for eviction decree on the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act and reasonable requirement and is preferred against the judgment and decree dated 5th July, 1991 passed by the learned Judge, 5th Bench, City Civil Court at Calcutta in ejectment Suit No. 191 of 1982. (2) THE plaintiff filed the aforesaid Ejectment Suit No. 191 of 1982 for eviction of the appellant by describing him as monthly tenant under him in respect of the two rooms which had been partitioned and made into four rooms, one common bath and privy with open terrace on the first floor of the Premises no. 5a, Bhowani Dutta Lane, Calcutta 700073. (3) SO far the ground of reasonable requirement is concerned, the specific case of the original plaintiff was that he required the suit property for accommodation of himself and his wife who were then staying as licensee of his brothers house. The plaintiff due to strained relationship with his son was unable to stay in the house of his son. (4) AS regards the allegation of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act, it was stated that the defendant had encroached the open terrace on the first floor and raised a pucca wall and he also obstructed common bath and privy and another tenants kitchen on the first floor. (5) THE suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint and so far the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of property Act was concerned, his specific defence was that he did not make any addition and alteration and that the bath on the first floor was part of his tenancy and was not a common one. So far the ground of reasonable requirement is concerned the defendant denied that the plaintiff reasonably required the suit property for his own use and occupation and according to him, he had sufficient accommodation not only in the suit property but also in the property where he is actually staying. So far the ground of reasonable requirement is concerned the defendant denied that the plaintiff reasonably required the suit property for his own use and occupation and according to him, he had sufficient accommodation not only in the suit property but also in the property where he is actually staying. It was further pointed out that a tenant during the pendency of the suit had already vacated four rooms in favour of the landlord. (6) THE plaintiff admitted that a tenant vacated the property during the pendency of the suit but according to him, two of the rooms were further let out to the sub-tenant under the said tenant. (7) THE learned Trial Judge on consideration of the materials on record arrived at the conclusion that the plaintiff reasonably required the suit property for his own use and occupation and he has no other suitable accommodation elsewhere. (8) AS regards the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act, the learned Trial Judge accepted the allegation of the plaintiff and in holding that the defendant constructed a new wall relied upon the Commissioners report who indicated that a newly constructed wall was apparent. (9) BEING dissatisfied, the tenant-defendant has preferred the present first appeal. During the pendency of the appeal, the original plaintiff and his wife have died and on his death, his son was substituted. Subsequently, the substituted defendant came up with an application under Order 41 Rule 27 of the Code of civil Procedure for the purpose of taking into consideration the probate granted by the Appropriate Court of the last Will of the original plaintiff showing that the suit property has been given to his grandson and, thus, according to the substituted respondent, the grandson should be said to be the owner of the property for the time being. By filing another application, the substituted respondent has tried to show that the grandson of the original plaintiff, although, he is now staying in America wants to come back and for his accommodation the suit property is necessary. (10) MR. By filing another application, the substituted respondent has tried to show that the grandson of the original plaintiff, although, he is now staying in America wants to come back and for his accommodation the suit property is necessary. (10) MR. Jana, the learned Advocate appearing on behalf of the appellant has at the first instance submitted that so far the ground of reasonable requirement is concerned, on the death of the original plaintiff the said ground is no longer available to the substituted respondent who was his son as the son has separate house of his own use and occupation and due to strained relationship with his father, his father could not stay with him. Mr. Jana points out that even the wife of the original plaintiff has died and therefore, the entire requirement pleaded in the original plaint has wiped out. Mr. Jana submits that requirement of grandson who has become the owner during the pendency of the appeal cannot be taken into consideration in this appeal as this is a totally new cause of action accrued, accrued in favour of the grandson. (11) AS regards the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act, Mr. Jana submits that even the commissioner was not called upon to decide whether there was any new construction on the first floor of the building and, therefore, the report on that point that there was a new construction is not acceptable. Mr. Jana further submits that it would appear from the field note that in the said field note there is no indication as regards the inspection of the said new wall and the commissioner has admitted such fact in his cross-examination. Mr. Jana, therefore, prays for setting aside the judgment and decree passed by the learned trial Judge. (12) MR. Ghosh, the learned Advocate appearing on behalf of the respondent, on the other hand, tried to impress upon us that so far the ground of reasonable requirement is concerned, this Court should allow his clients application for taking note of subsequent events and should remand the matter back to the trial Court. Mr. (12) MR. Ghosh, the learned Advocate appearing on behalf of the respondent, on the other hand, tried to impress upon us that so far the ground of reasonable requirement is concerned, this Court should allow his clients application for taking note of subsequent events and should remand the matter back to the trial Court. Mr. Ghosh, however, tried to convince us that the decree on the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of property Act should be maintained as it has been well-established that a new wall was constructed on the first floor. He, therefore, prays for dismissal of this appeal by affirming the decree on the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. (13) AFTER hearing the learned Counsel for the parties and after going through the materials on record, we are of the view that the substituted respondent or the grandson of the plaintiff cannot avail of the decree granted in favour of the original plaintiff on the ground of reasonable requirement. In the original plaint, the plaintiff restricted his requirement for himself and his wife and no other person, and not even his son or grandson as the son had a separate house in his own name although it appeared from the evidence that the plaintiff himself purchased the said house in the name of his son when the latter was a student. Therefore, the moment both the original plaintiff and his wife had died during the pendency of this appeal, the substituted respondent or the legatee of the plaintiff cannot get the benefit of the decree passed on the ground of reasonable requirement as the plaintiff did not claim reasonable requirement for their need and it will be a totally new cause of action of the legatee. (14) WE are quite conscious that in an appeal preferred against grant of a decree on the ground of reasonable requirement an Appellate Court can take into consideration the subsequent events but in such a case, the subsequent event must have relation with the original claim of requirement made in the plaint. (14) WE are quite conscious that in an appeal preferred against grant of a decree on the ground of reasonable requirement an Appellate Court can take into consideration the subsequent events but in such a case, the subsequent event must have relation with the original claim of requirement made in the plaint. In the case before us, the original case of the plaintiff has totally wiped out and instead of that, the subsequent owner during the pendency of the appeal wants to assert his claim, which was not there in the original pleading. This is not a case of additional requirement but is one where the original requirement is abandoned and a totally new requirement of the subsequent owner is sought to be incorporated. The grandson is not an heir of the grandfather when his father is alive and at the same time, the original plaintiff never pleaded requirement for the said legatee and as such, by virtue of testamentary succession he having acquired title to the property, his position is no better than that of a transferee landlord and he cannot continue with the suit on the original ground of reasonable requirement although the provisions of section 13 (3a) will have no application if he intends to me a fresh suit on the ground of reasonable requirement as the said provision is attracted only in case of transfer inter vivos. (15) WE, therefore, find that the grandson of the original plaintiff can only get the benefit of the decree passed in favour of the grandfather on the other ground than that of reasonable requirement. (16) THE next question is whether the decree passed on the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act should be maintained. (17) THE learned Trial Judge, as it appears from the judgment impugned, relied upon Exbt.-7, the report of the pleader Commissioner, where he mentioned that he found a wall containing a door and a nameplate attached to the wall in the name of the defendant on the first floor and according to him, the wall appeared to have been newly constructed. The learned Trial Judge further found that if the bathroom, privy and kitchen were not common and were included in the defendants tenancy, it was not understood why the defendant raised brick built wall encroaching upon the open terrace. The learned Trial Judge further found that if the bathroom, privy and kitchen were not common and were included in the defendants tenancy, it was not understood why the defendant raised brick built wall encroaching upon the open terrace. (18) WE find that the original plaintiff in his evidence stated that the originally there were two rooms which were partitioned into four rooms and there was also bath and privy included in his tenancy. It is further asserted that there is an open terrace in front of this room, which is also within this tenancy. In cross-examination, the said plaintiff specifically admitted that the tenancy of the defendant comprised of four rooms, privy and one terrace and there was no statement that privy and bath are common with others. (19) THE Advocate-Commissioner, who proved Exbt.-7, in his cross-examination admitted that his remark about the nameplate and the newly constructed wall had not been recorded in the field note. In our view, as he was not entrusted to consider whether a new wall had been constructed or not nor was he directed. to give report even on any local feature, he had no justification of including such fact in his report when in the field note there is no indication that he ever observed such new wall. The learned Trial Judge, as it appears, solely relied upon the Exbt.-7, in arriving at the conclusion that the tenant-defendant was guilty of violation of clauses (m), (o) and (p) of section 108 of the transfer of Property Act. It may be mentioned here that the tenant-defendant has specifically asserted that there is only one bath, privy on the first floor over which he had exclusive right of user and there was no new construction. (20) THEREFORE, we are unable to come to the conclusion that the appellant, by making addition and alteration, has encroached the tenancy of others or has deprived other tenants of the right of using common bath. (21) WE, therefore, find that the learned Trial Judge erred in law in passing a decree for eviction on the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. (21) WE, therefore, find that the learned Trial Judge erred in law in passing a decree for eviction on the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. (22) WE, thus, set aside the judgment and decree on the ground that the decree of reasonable requirement now cannot be enjoyed by the grandson of the original plaintiff, as indicated above and, at the same time, the ground of violation of clauses (m), (o) and (p) of section 108 of the Transfer of Property act has not been established. (23) WE, further, make it clear that we have not gone into the question of requirement of the grandson of the original plaintiff and dismissal of the appeal will not stand in the way of the said grandson in filing a fresh suit on such ground. In view of the disposal of the appeal itself, we dismiss the application for vacating the stay filed by the respondent. (24) IN the facts and circumstances, there will be, however, no order as to costs. Appeal disposed of.