Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 689 (CAL)

Anna Purna Shaw v. Ananta Roy

2008-07-15

PARTHA SAKHA DATTA

body2008
Judgment :- (1.) THIS appeal at the instance of the defendant is against the judgment and decree dated 29. 06. 1996 passed by the learned Judge, Small Causes court, Sealdah in Title Appeal No. 23 of 1996 affirming the judgment and decree dated 28. 12. 1994 of the Additional Court of the Munsif at Seajdah in Title Suit No. 165 of 1995 whereby decree of eviction was passed against the appellant. (2.) THE suit for eviction was on the ground of default in payment of rent since 1977 and of reasonable requirement of the plaintiffs. The defendant/appellant having found entitled to the protection under Section 17 (4) of the West Bengal Premises Tenancy Act, 1956, the only question that calls for consideration is whether the ground of reasonable requirement on which the decree is based was legally proved by the respondents herein. The plaint was presented on 05. 06. 1981. The original plaint underwent amendment on 16. 05. 1994. In terms of the amended plaint, plaintiff No. 1 whose family consisted of five members has been residing at a Government quarter by virtue of his employment from which he would be retiring on 1st of July 1987, while plaintiff Nos. 2, 3 and 4 along with the wives and one son of each of them have been residing in the premises at 107a/h/1, Narkeldanga Main Road by occupying two rooms with an additional accommodation of a small kitchen therein. The said plaintiff Nos. 2, 3 and 4 require at least three bed rooms one each for themselves and their respective wives and one bed room each for their three sons, one reading room for two school going sons of the plaintiff nos. 2 and 3 and a drawing room for attending to the visitors. The suit premises which is a car shed at premises No. 107a/h/1, Narkeldanga Main road may easily be converted into a bed room with a little change therein and the plaintiffs may somehow manage to utilize the suit premises to meet their requirements. Furthermore, the plaintiffs are willing to proceed with addition and alteration of the said suit premises to meet their acute necessity by necessary building and re-building and they have sufficient funds for the purpose. Thus, the plaintiffs reasonably require the suit premises for their own use and occupation and also for the building and re-building. Furthermore, the plaintiffs are willing to proceed with addition and alteration of the said suit premises to meet their acute necessity by necessary building and re-building and they have sufficient funds for the purpose. Thus, the plaintiffs reasonably require the suit premises for their own use and occupation and also for the building and re-building. Plaintiff No. 1 along with his family members has been residing in a rented accommodation at 7/34 C. I. T. Building, Kankurgachi under calcutta Improvement Trust and the said tenancy stands in the name of the wife of the plaintiff No. 1. Plaintiff No. 4, an employee of I. B. , Ministry of Home has been residing in Delhi but all his belongings are lying in one room of the suit premises and the said room is under lock and key but the said plaintiff No. 4 along with his family occasionally comes to Calcutta and lives in his own room but he is expected to be transferred from Calcutta to Delhi very soon and at least one room is required for the plaintiff No. 4 who has two sons besides his wife. Plaintiff No. 1 and his wife require one room. His son aged 30 years who has attainted marriageable age requires one room, youngest daughter of the said plaintiff No. 1 aged about 23 years requires one room. Plaintiff No. 3 and his wife require one room and his son, an undergraduate student requires one room. Plaintiff No. 2 (a), son of late Niranjan Roy who was a H. S. examinee in 1994 requires one room and Rita Roy, wife of late Niranjan Roy requires one room. One room is also required for plaintiff, one room is required for Thakurghar, one room is required for the plaintiffs sister and plaintiffs daughter and if they get the suit premises they can make necessary addition and alteration therein. At present three rooms are under the occupation of the plaintiffs. (3.) OWNERSHIP of the plaintiffs in respect of the suit premises is not denied. Learned Trial Court found from the Commissioners report that the plaintiffs are in occupation of three rooms and a varandah. One room is 14 x 9, another is 94" x 62" and yet the third one is 126"x 97", while the covered varandah is 10 x 59". This is available in the suit building. Learned Trial Court found from the Commissioners report that the plaintiffs are in occupation of three rooms and a varandah. One room is 14 x 9, another is 94" x 62" and yet the third one is 126"x 97", while the covered varandah is 10 x 59". This is available in the suit building. In terms of the plaint, plaintiff No. 1 resides at 7/34, C. I. T. Building, kankurgachi, Calcutta -53 which is a tenanted accommodation allotted in the name of the plaintiff No. 1s wife. The plaintiff No. 1s family consisted of himself, his wife, one son, one unmarried daughter aged 23 years and a married daughter. This rented premises is a flat which was not got inspected at the instance of the plaintiff by commission. The learned Trial court observed that the plaintiff No. 1 had not stated in his evidence as to how many rooms are available to him in the said flat and in absence of any local inspection through commission it was held that the plaintiff No. 1 s accommodation was sufficient. There was no evidence that the accommodation in the tenanted premises was a precarious one and the plaintiff is in immediate threat of eviction. So far as the original plaintiff no. 2 is concerned, his heirs plaintiff No. 2 (a) and 2 (b), require two rooms-one for the widow and the other for the son who was at the material time a H. S. examinee. This went undisputed at the trial. Plaintiff No. 3s family consisted of himself, his wife and a son aged 21 years then in undergraduate study. The plaintiff No. 4 is the youngest brother of plaintiff no. 1 residing in New Delhi by virtue of his employment. The plaintiff Nos. 5 and 6 are the married sisters. Thus, plaintiff No. 2 (a) and 2 (b) require one room each. Plaintiff No. 3 requires two rooms -one for himself and wife and another for a son who was in college at the relevant time. One room must be there for plaintiff No. 4. So far as married daughters are concerned, plaintiff Nos. 5 and 6 reside in their matrimonial houses and the suit premises do not stand in their favour. According to the learned trial Court, the plaintiffs immediate requirement is of five rooms. One room must be there for plaintiff No. 4. So far as married daughters are concerned, plaintiff Nos. 5 and 6 reside in their matrimonial houses and the suit premises do not stand in their favour. According to the learned trial Court, the plaintiffs immediate requirement is of five rooms. The room allotted to the plaintiff No. 4, according to the learned Trial Court could be used as a guest-cum-drawing room as well. Thus, according to the learned Trial Court, besides the tenanted accommodation of the plaintiff no. 1 the other plaintiffs have no other accommodation other than the suit house. The requirement was accordingly reasonably proved. On the issue of addition and alteration of the suit premises the learned Trial Court held that no finding on that issue was necessary because plaintiffs have already been able to prove their case of reasonable requirement and moreover, after the plaintiffs get the vacant possession of the suit premises it is upto them to reside in the suit premises as it is or make any addition and alteration whatever they feel like. Had it been a suit for eviction on the ground in Section 13 (1) (f) of the Act the question of infrastructure, existence of plan etc. should have been taken into consideration; but since the plaintiffs have already established their case under Section 13 (1) (ff)Section 18 A would not have any application. (4.) THE learned First Appellate Court in Title Appeal No. 23 of 1995 while dismissing the appeal and affirming the judgment and decree of the learned Trial Court decided the issue No. 5 i. e. "does the plaintiff require the suit premises for building and rebuilding purpose?" against the plaintiff on the ground that there was no sanctioned plan, no source of money disclosed nor any positive endeavour was made for the purpose of building and rebuilding. On the ground of reasonable requirement of the suit premises the learned First Appellate Court held that when the landlord resides in a tenanted accommodation it is sufficient to accept that he has no accommodation available in the suit premises, and that by itself is a good ground to have his requirement of the suit premises. Learned First appellate Court further observed that from the report of the learned commissioner it would appear that the rooms in the suit building are very meagre. Learned First appellate Court further observed that from the report of the learned commissioner it would appear that the rooms in the suit building are very meagre. Room No. 2 (94" x 62") cannot be treated as a bedroom. Thus, the available accommodation are not sufficient for the six plaintiffs. (5.) THE Division Bench of this Court, while admitting the appeal felt that the appeal would be heard on the grounds as were averred in the memo of Appeal as the said grounds raised substantial question of law. (6.) IN the memorandum of appeal it was contended that neither the ground of reasonable requirement, nor the ground of building and rebuilding could be established and with the failure of the ground of building and rebuilding the ground of reasonable requirement would automatically fail. Exhibit 3, the deed of settlement does not create any ownership in favour of the plaintiffs. The landlords residing in the tenanted premises cannot by itself in the absence of any threat of eviction and in absence of any evidence that such accommodation was insufficient be a ground for eviction of the tenant from the suit premises. The learned Appellate Court was further wrong in rejecting the amendment of written statement treating the same as afterthought. All the necessary parties instituted in the suit premises have not been parties to the suit. Thus, in broad terms the grounds of appeal are (a) ground of reasonable requirement for the purpose of building and rebuilding fail, (b) the ground of reasonable requirement for occupation of the plaintiff and all the members of the families as under Section 13 (1) (ff) must fail with the failure of the ground in Section 13 (1) (f) of the West Bengal Premises Tenancy Act, 1956, (c)the ground of reasonable requirement for the occupation of the plaintiff and the members of his family cannot be a ground independent of the ground of reasonable requirement for building and rebuilding, (d) plaintiff no. 1 s tenanted accommodation must be taken to be a ground for sufficient accommodation of the plaintiff No. 1, (e) want of proof of ownership of the suit premises of the plaintiff, (f) unlawful rejection of the prayer for amendment of written statement by the learned First Appellate Court during the pendency of the appeal. 1 s tenanted accommodation must be taken to be a ground for sufficient accommodation of the plaintiff No. 1, (e) want of proof of ownership of the suit premises of the plaintiff, (f) unlawful rejection of the prayer for amendment of written statement by the learned First Appellate Court during the pendency of the appeal. (7.) AS to the ownership of the plaintiff in respect of the suit premises both the Courts below have concurrently found in favour of the plaintiffs. Four deeds of lease were executed on 12. 09. 1951, 19. 04. 1965, 05. 04. 1966 and 17. 06. 1970 in favour of the predecessor of the plaintiffs by the Khas mahal Authorities (Exbt. 1 series). Under Exbt. 3, a letter written to the plaintiffs by the Additional District Magistrate (L. R.) Alipore had transpired that a long term settlement was made in their favour of the land in question and subsequent to such settlement the plaintiffs have been paying rent to the Government. The structure was raised by the plaintiffs predecessor and it was not denied by the defendant. Both the Courts have correctly found that the ownership rests with the plaintiffs. (8.) MR. J. R. Chatterjee, learned Advocate appearing on behalf of the appellant submitted at the outset that the suit premises which is a car shed at premises No. 107a/h/1 Narkeldanga Main Road, Calcutta-54 cannot be reasonably required by the respondent in view of the nature of the premises which is quite unsuitable for human occupation. Therefore, the suit for eviction on the ground of alleged reasonable requirement is a mala fide one. Secondly, it has been contended that even if it is assumed for the sake of argument that the said suit room is badly needed by the plaintiffs for their own use and occupation then obviously one such room alone in the context of the finding of the learned Trial Court would not be at all sufficient given the size of the members of the family of the plaintiffs. Thirdly, it has been contended that it is not a case of reasonable requirement of the plaintiffs for their own use and occupation and it was a case of reasonable requirement for the purpose of building and rebuilding and only when such building and rebuilding and the very plea of building and rebuilding has been a hoax in view of the plaintiffs having not been able to produce any sanctioned plan or disclose" the source of fund for such building and rebuilding; and moreover there is no evidence that the corporation of Kolkata issued a notice upon the plaintiffs under Section 401 of Kolkata Municipal Corporation Act asking the plaintiffs to dismantle the suit room on the ground of the same being in precarious condition. It has been further argued by the learned Advocate appearing for the appellant that once the plea of requirement on the ground of building and rebuilding fails the ground of reasonable requirement of the suit premises for use and occupation of the members of the family of the plaintiffs falls to the ground and neither of the grounds is really tenable particularly in view of the fact that the plaintiff No. 1 who has been residing in a tenanted accommodation following his retirement from the Government Service did not avail himself of the opportunity of inspection of the said tenanted premises through any Advocate Commissioner so much so that it could not be said that such tenanted accommodation of the plaintiff No. 1 who does not suffer any threat of eviction from his landlord, is insufficient for his accommodation and of his family. It is argued that even if it is assumed for the sake of argument that the plaintiff No. 1 reasonably required the suit premises for use and occupation of the members of his family then the question would arise whether the plaintiff No. 1 would be agreeable to split his family in order that some of the members of the plaintiff No. 1s family would go on staying in the tenanted accommodation, while some others pursuant to any decree of eviction may come to occupy the suit room. Therefore, it is argued that both the learned Courts below were not justified in passing a decree of eviction on the alleged ground of reasonable requirement of the suit premises of the plaintiffs and the members of the family. Therefore, it is argued that both the learned Courts below were not justified in passing a decree of eviction on the alleged ground of reasonable requirement of the suit premises of the plaintiffs and the members of the family. Further, it is argued that the learned Appellate Court below was not justified in rejecting the prayer for amendment of the written statement which was filed during the pendency of the first appeal. (9.) MR. S. BHATTACHARYA, learned Advocate appearing for the respondent submitted that this Court hearing second appeal must not again analyze the findings of fact arrived at by the two Courts below and in the face of the concurrent findings of the two Courts below on the question or reasonable requirement of the suit premises for use and occupation of the plaintiffs and the members of their families which cannot be said to be unjust or perverse or manifestly absurd no interference with the concurrent finding of fact does really call for. It has been argued that it is not the business of the respondent to think whether in the event of any decree being passed the plaintiff No. 1 would split his family so as to keep members in this tenanted accommodation and some others in the suit room because it is the plaintiff who will decide how he will occupy the suit premises or which of the members of his family would like to stay in the suit premises. It has been argued in great details that it is not a case alone that subject to the provisions of sub-section (3a) and Section 18a the premises are reasonably required by the landlord for the purpose of building or rebuilding or making thereto substantial additions or alterations, and such building and rebuilding, or additions or alternations, cannot be carried pat without the premises being vacated. The suit for eviction is essentially on the ground of reasonable requirement of the plaintiffs and the members of the families and it is not a case that the suit room has been in such a dilapidated condition that it has to be rebuilt subject to sanctioned plan of the Kolkata Municipal Corporation or for which a colossal amount of money would be required for such building and rebuilding. It is simply a case that the plaintiffs reasonably required the suit premises for use and occupation of them and prior to such occupation following ejectment decree being passed they would alter the same to suit their requirement. It has been contended further that the very submission of the respondent that it is a car shed and not habitable for human occupation is untenable in view of the fact that in the said premises the defendant has been residing for a long time and unless it was fit for human habitation the defendant would not have been in occupation of the premises and the law does not prohibit enjoyment of the car shed for human occupation and occupation of the suit premises is more necessary for the plaintiffs in view of them having no suitable accommodation elsewhere given the size of the families of the plaintiffs. It has been submitted further that the learned Trial Court was quite justified in observing that the question of building and rebuilding is quite redundant in view of the plaintiffs have sufficiently proved their reasonable requirement of the suit premises under Section 13 (1) (ff) of the West Bengal Premises Tenancy Act. It is contended that the learned first appellate Court failed to appreciate the spirit of the case of the plaintiff and was unjustified in holding that the issue of building and rebuilding must fail because the plaintiffs could not produce any sanctioned plan or disclose any source of income. It has been contended that the Clauses 13 (1) (f) and 13 (1) (ff) of the West Bengal Premises Tenancy Act are distinct clauses and one is independent of the other and when the plaintiffs have been able to prove their reasonable requirement of the suit premises it is quite misnomer to go into an exercise as to whether the issue of building and rebuilding has been proved or whether the plaintiffs have sufficient fund for such alteration or addition or whether sanctioned plan has been obtained or not. (10) UPON hearing the learned Advocates for the parties I must observe at the outset that on the issue whether the plaintiffs reasonably required the suit premises for their own use and occupation, which is a ground contained in Section 13 (1) (ff), the concurrent findings of the two courts below must not be disturbed in view of the fact that the evidence is galore to show that even if the family of the plaintiff No. 1 is excluded from the purview of the consideration of reasonable requirement and even if the alleged reasonable requirement of the plaintiff Nos. 5 and 6 is negated, still then the reasonable requirement of the suit premises for use and occupation of the rest of the plaintiffs must stand having regard to the fact that the number of members of the families are so large that in the context of the present accommodation available to them such accommodation at present are quite insufficient. The learned Trial Court as also the learned first appellate Court have exhaustively considered this ground and it is quite unnecessary that the same should be traversed again. At present the plaintiffs are in occupation of three rooms and a varandah. One of the rooms is too small. Plaintiff No.1.s family consists of himself, his wife, his one son and one unmarried daughter. Though the plaintiff No. 1 did not get his flat inspected by a Commissioner such inspection was unnecessary because of the fact as has been rightly held by the learned First Appellate court that he was living in a tenanted accommodation. The question whether one such room will be sufficient for the entire members of the plaintiff No. 1s, family is not for the Court to decide because in the event of the plaintiffs getting a decree of eviction, it is they who will jointly decide which of them would be in occupation of that suit room. Whether any of the members of the plaintiff No. 1s family or which of the other plaintiffs who have been residing in the suit building would occupy the suit room is the business of the plaintiffs and it is they who will decide the matter amongst themselves. Plaintiff No. 2 (a) and 2 (b) must get one room each. Plaintiff No. 3 and his wife require one room and his son requires another room. Plaintiff No. 2 (a) and 2 (b) must get one room each. Plaintiff No. 3 and his wife require one room and his son requires another room. Learned Trial Court has held that one room must be allotted to the plaintiff No. 4 as well. Therefore, on the point whether the plaintiffs reasonably required the suit premises or not, I must hold that they do so require; and the concurrent findings of the two Courts below must not be interferred with no reason whatsoever. On the question of building and rebuilding it has to be held that the requirement of building or rebuilding and reasonable requirement for use and occupation of the plaintiffs can co-exist. The landlord who is the owner of the premises may reasonably require the premises for his own use and occupation by making necessary additions or alterations to satisfy his needs. Reference may be had to the decision in Jogesh v. Kiranmala, AIR 1977 Cal 167 . In Arya Samaj v. Pinjamal, AIR 1964 SC 1676 it has been held that once the landlord establishes that he bona fide requires the premises for his own use and occupation he satisfies the condition to evict the tenant irrespective of the fact whether he would occupy the premises either without making any addition or alteration therein or after making necessary additions or alterations to satisfy his needs. It is not a case at all that subject to the provision of Section 18a of the West Bengal Premises Tenancy Act, 1956 the premises are reasonably required by the landlord for the purpose of building or rebuilding and such building or rebuilding cannot be carried out without the premises being vacated. As to non obtaining sanctioned plan from the Kolkata Municipal Corporation I may refer to a Division Bench decision of this Court in Vindeswar Prasad Gupta v. M. M. Bhandari, 1992 (1) CLJ (HC) 48 wherein it has been held that when the landlord has established his own requirements for personal occupation then only because he has to make additions and alterations to the premises, it is not obligatory to produce the plan or the sufficiency of the means for building and rebuilding because of the fact he is under no obligation to comply with the provisions of Section 18a of the West Bengal Premises tenancy Act. The Supreme Court has held in K. A. Anthappai v. C. Ahmed, air 1992 SC 1696 that the claim of the landlord that he needs the building bona fide for his personal occupation cannot be negatived on the ground that the building required repairs and alterations to be landlord can occupy the same. The learned Advocates for the appellant has referred to the decision in Krishna Murari Prasad v. Mitar Singh, 1993 Supp (1) SCC 439 where the respondent-landlord disagreed to the suggestion of dividing the premises into two equal halves for being shared between the parties. This decision has no manner of application to the facts of the case at hand of ours. The decision in Jivram v. Tulshi Ram, AIR 1977 SC 1357 has been cited by the learned Advocate for the appellants where their lordships of the Supreme Court in appeal under Article 136 of the constitution of India making a humanist approach adopted a course of live and let live and directed the tenant in the interest of justice, to surrender the half of the portion after getting it partitioned into equal halves. I do not find how this decision can be of any help to the appellants herein. During the pendency of the first appeal the defendant made an application for amendment of the written statement under Order 6 Rule 17 read with order 41 Rule 27 of the C. P. C. to incorporate a plea that there was no relationship of landlord and tenant between the parties. The plea was sought to be taken belatedly during the appeal that the defendant is a tenant in respect of the land only and the learned first appellate Court rightly held that such a plea was an afterthought and no such dispute as to the relationship of the landlord and tenant was ever taken either in the 17 (2) petition of the Act or in the written statement. That the plaintiffs are both owners of the land and of the building has been established through evidence, oral and documentary. The learned first appellate Court was justified in rejecting the prayer for amendment of the written statement which aimed at just to reopen the case denying the existence of relationship of landlord and tenant which was an illusory one. Learned Advocate for the appellants has taken me to a decision in Gurdev Kaur and Ors. The learned first appellate Court was justified in rejecting the prayer for amendment of the written statement which aimed at just to reopen the case denying the existence of relationship of landlord and tenant which was an illusory one. Learned Advocate for the appellants has taken me to a decision in Gurdev Kaur and Ors. v. Kaki and ors. , reported in 2007 (1) SCC 546 where their Lordships of the Supreme court has reminded the High Court that after the 1976 amendment the scope of Section 100 of the C. P. C. has been drastically curtailed and narrowed down and the High Court would be justified in interfering under section 100 of the C. P. C. only in a case where really substantial question of law is involved. In this reported decision the High Court disturbed the concurrent findings of both the Courts below which was disapproved by the Supreme Court in view of the fact that such concurrent findings of fact needed not be interferred with, as such findings were just and they were pure findings of fact. The decision in Shiv Sarup Gupta v. Dr. Mahesh chand Gupta, reported in 1999 (6) SCC. . . and the decision in Pratibha devi (Smt.) v. T. V. Krishnan, reported in 1996 (5) SCC 353 have been cited. In the latter decision their Lordships held that where Courts below on proper appreciation of evidence come to a conclusion High Court should not on reappraisal of evidence arrive at a different conclusion. Their lordships held that the landlord is the best Judge of his residential requirement and he has a complete freedom in the matter and it is no concern for the Courts to dictate to the landlord how and in what manner he should live or to prescribe for him a residential standard Of their own. In the circumstances, I do not find that the appeal has merit. (11.) I dismiss the appeal and affirming the judgment and decree of the learned First Appellate Court with costs.