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2008 DIGILAW 699 (CAL)

Ratan Chandra Nath v. Ranjit Kumar Nath

2008-07-16

KALIDAS MUKHERJEE

body2008
Judgment :- (1.) THIS appeal is directed against the judgment and decree passed by learned Civil Judge (Senior Division), 9th Court at Alipore in Title Appeal No. 385 of 2001 reversing thereby the judgment and decree passed by learned civil Judge (Junior Division), 3rd Court at Alipore in Title Suit No. 145 of 1997. The suit was instituted for eviction and recovery of khas possession. The case of the plaintiff/respondent, in short, is that the suit premises originally belonged to four brothers, namely, Nani Gopal Nath, Surya Kanta Nath, Pulin Chandra nath and Lalit Mohan Nath. Lalit Mohan Nath, one of the co-sharers, left the aforesaid premises No. 108/m, Monohar Pukur Road about 40 years ago and he did not possess the said premises and was ousted therefrom. The plaintiff purchased the 3/4th. share of the said premises from the remaining three owners by a deed of conveyance dated 10. 5. 1978 and got his name mutated in the records of the Municipal Corporation and the said premises has been re-numbered as 108/m/1, Monohar Pukur Road, P. S. Tallygunge, Kolkala 700 026, The defendant was a monthly tenant at a rental of Rs. 24/- per month payable according to English calendar month in respect of one brick built room and walls, tile shed roof along with verandah under the plaintiff in respect of the premises No. 108/m/1, Monohar Pukur Road which is the subject matter of the suit. The plaintiff reasonably requires the suit premises for his own use and occupation including his family members. The family of the plaintiff consists of himself, his wife and the son aged about 24 years who is now employed. The plaintiff wants to arrange the marriage of his son, but, it could not be settled for want of accommodation. The plaintiff has a family deity and a whole time maidservant. The plaintiff is in possession of one room in premises no. 108/m, which is wholly insufficient for the accommodation of his family members. He requires at least one room for himself with his wife, one room for his grown up son, one room to receive the guest and relations and one dining room one small room for the deity and a space for the whole time maidservant. The plaintiff does not possess any alternative accommodation and he reasonably requires the suit premises. He requires at least one room for himself with his wife, one room for his grown up son, one room to receive the guest and relations and one dining room one small room for the deity and a space for the whole time maidservant. The plaintiff does not possess any alternative accommodation and he reasonably requires the suit premises. The defendant has caused damages to the suit premises and violated the provisions of (m) (o) and (p) of Section 108 of the T. P. Act. The plaintiff through his Advocate sent a registered notice to quit and vacate the suit premises terminating thereby the tenancy. The defendant received the said notice, but did not vacate the suit premises. For the said reasons, the suit was instituted in the learned Trial Court praying for a decree of eviction and for recovery of khas possession and mesne profits against the defendant. (2.) THE case of the defendant/appellant, in short, is that he is a monthly tenant in respect of one room made of brick built wall along with a verandah being a portion of 108/m, Monohar Pukur Road at a rental of Rs. 24/-per month. The plaintiff does not reasonably require the suit premises for his own use and occupation and the alleged causing of damages is false. (3.) THE learned Trial Court dismissed the suit, holding that the plaintiff is in possession of one room in the original holding No. 108/m and one more room in his purchased property under holding No. 108/m/1. It has been held by the learned Trial Court that the inspection was held as to the room in possession of the plaintiff, but, there are seven rooms in the suit holding and the plaintiff did not pray for inspection of the other rooms in the suit holding. The learned Trial Court further held that in the plaint no averment was made as to the other rooms in the suit holding bearing No. 108/m/1 and, as such, the learned Trial Court held that apart from possessing one room in the original holding No. 108/m, the plaintiff is in possession of six other rooms in the suit holding bearing No. 108/m/1. The learned Trial Court held that the plaintiff failed to prove his case of reasonable requirement and/or that he has no alternative accommodation elsewhere. The learned Trial Court dismissed the suit. The learned Trial Court held that the plaintiff failed to prove his case of reasonable requirement and/or that he has no alternative accommodation elsewhere. The learned Trial Court dismissed the suit. Being aggrieved by the said judgment and decree, the plaintiff preferred the appeal and the learned First Appellate Court allowed the appeal and reversed the judgment and decree passed by the learned Trial Court and decreed the suit granting a decree for eviction and recovery of khas possession holding that it was not disputed by the defendant in the written statement that the plaintiff has a maidservant and that the plaintiff has got one room in holding no. 108/m/1 and neither party adduced evidence that the plaintiff has seven rooms in his possession. The learned First Appellate Court further held that from the report of local inspection it was clear that the plaintiff has one room in holding No. 108/m and another room in holding No. 108/m/1. With this observation, the learned First Appellate Court allowed the appeal and decreed the suit reversing the judgment and decree passed by the learned trial Court. (4.) THE learned Advocate appearing on behalf of the defendant/appellant submits that as per the settled principle of law the plaintiff has to prove his own case and the learned First Appellate Court made a wrong approach to the matter in issue. It is submitted that from the evidence it would appear that the plaintiff is in possession of one room in the original holding No. 108/m and another room in his purchased portion under holding no. 108/m/1. It is submitted that from the evidence it transpires that the plaintiff is in possession of another room which was vacated by the erstwhile tenant Tapanbabu. It is contended that from the plaintiffs purchase deed and from the written statement filed by the plaintiff in another Title Suit bearing No. 80 of 1996, it is clear that the plaintiff has seven rooms in the suit premises. It is contended that the plaintiff prayed for local inspection in respect of one room in the suit holding and another room in the original holding No. 108/m, but, no inspection was prayed for in respect of the other rooms in the suit holding. It is contended that the plaintiff prayed for local inspection in respect of one room in the suit holding and another room in the original holding No. 108/m, but, no inspection was prayed for in respect of the other rooms in the suit holding. It is submitted that the plaintiff did not make any averment in the plaint as to the other rooms in the suit holding and from the evidence it is clear that the plaintiff has suitable alternative accommodation. It is further contended that the plaintiff does not reasonably require the suit premises and the need for getting khas possession of the suit premises by evicting the defendant therefrom is not genuine one. The learned counsel appearing on behalf of the defendant/appellant has referred to and cited decisions reported in 81 Cal WN 814 [provash Chandra Chatterjee v. Chand Mohan Basak] ; 91 Cal WN 226 [sm. Bedana Devi and Anr. v. Abdul jawab]; AIR 1989 Calcutta 244 [smt. Bibhabati Ghosh v. Panchu Gopal paul] ; AIR 1987 SC 1320 [daulat Ram (dead) by L. Rs. and another v. Smt. Roop Rani] ; (1988)3 SCC 131 [ram Dass v. Ishwar Chander and Others] ; (2004)8 SCC 490 [pratap Rai Tanwani and another v. Uttam Chand and another]. It is submitted that the learned First Appellate Court erred in law in placing the onus upon the defendant and the impugned judgment and decree should be set aside and the suit should be dismissed. (5.) THE learned Advocate appearing on behalf of the respondent submits that the requirement of the plaintiff has been averred in para 6 of the plaint and as regards such averment there is only general denial in para 12 of the written statement and there is no specific denial about the requirement of the plaintiff. It is contended that in absence of any specific denial and specific contention of the defendant that the plaintiff has suitable alternative accommodation elsewhere, it is not open for the defendant/appellant to show that the plaintiff has other rooms in his possession in the suit holding bearing No. 108/m/1. It is contended that in absence of any specific denial and specific contention of the defendant that the plaintiff has suitable alternative accommodation elsewhere, it is not open for the defendant/appellant to show that the plaintiff has other rooms in his possession in the suit holding bearing No. 108/m/1. It is submitted that from the written statement of the plaintiff filed in another partition suit bearing No. T. S. 80 of 1996, it would appear that the other rooms in the suit holding are in possession of the tenants and that is why the plaintiff did not pray for local inspection of those other rooms in the suit holding No. 108/m/1. It is contended that at the time of local inspection, the defendant did not show the other rooms to the learned Commissioner. It is contended that in the Second appeal, question of fact cannot be raised and the appeal should be heard only on question of law. In this connection, the learned Counsel for the plaintiff/ respondent has referred to and relied on the decision reported in 2006 (5) SCC 545 : (2006)2 WBLR (SC) 891 [ Hero Vinothv. Seshammal] and (2001)3 SCC 179 : 2001 WBLR (SC) 270 [santosh Hazari v. Pumshottam Tiwari]. It is submitted that the plaintiff is in possession of one room in the original holding no. 108/m and another room in the purchased portion of the property under holding No. 108/m/1 and this room in the suit holding was vacated by the erstwhile tenant Tapanbabu prior to the institution of the suit, although it was not specifically mentioned in the plaint. It is submitted that the number of rooms in possession of the plaintiff is two and not three. (6.) IN this Second Appeal, the substantial questions of law have been formulated as hereunder :-"(a) Whether the absence of proof of the requirement and existence of reasonable suitable accommodation in the premises itself would be a ground to allow the case of reasonable requirement in favour of the plaintiff when admittedly from the record it was found that the plaintiff was in possession of seven rooms when there was no material to contradict the same. (b) Whether omission to consider Ext. A being the written statement filed by the plaintiff in Title Suit No. 18 of 1996 where the plaintiff had admitted to have in possession seven rooms, renders the Judgment perverse. (b) Whether omission to consider Ext. A being the written statement filed by the plaintiff in Title Suit No. 18 of 1996 where the plaintiff had admitted to have in possession seven rooms, renders the Judgment perverse. " (7.) IN para 6 of the plaint it has been averred that the plaintiff has one room in his possession in holding No. 108/m, Monohar Pukur Road. But from the oral evidence of plaintiff (P. W. 1) it is clear that he has one room in original holding No. 108/m and one more room in his purchased portion under holding no. 108/m/1. The plaintiff, therefore, is in possession of two rooms, although, it has not been stated in the plaint that the plaintiff is in possession of one more room under suit holding No. 108/m/1 which was vacated by the erstwhile tenant Tapan Babu prior to the institution of the suit. (8.) FROM the Ext. No. 5 which is the W. S. filed by the plaintiff in another partition suit and from the purchase deed of the plaintiff (Ext. 1) it is clear that plaintiff has seven rooms in his purchased portion in the suit holding. From ext. 5 it is further clear that the plaintiff is in exclusive possession of 3/4th portion of the purchased property, although, from the evidence it transpires that one Minati Das is possessing one room in the suit holding and an eviction suit has been filed against her. But in order to prove reasonable requirement and to show that there is no suitable alternative accommodation elsewhere, there must be clear and specific averment in the plaint, as to the rooms under the possession of plaintiff, otherwise, from the points elicited in the cross-examination of P. Ws. it would lead to the adverse presumption against the plaintiff negating thereby the case of reasonable requirement. In the instant case, there is insufficient averment in the plaint as to the rooms in possession of the plaintiff and from the evidence it further transpires that the plaintiff is in possession of one room in the suit holding in respect of which there is no specific averment in the plaint. Moreover, Ext. 5 clearly shows that there are other rooms in the exclusive possession of the plaintiff. Moreover, Ext. 5 clearly shows that there are other rooms in the exclusive possession of the plaintiff. The abstinence on the part of the plaintiff from holding local inspection in respect of other rooms of the suit holding goes to show that the plaintiff has suppressed the fact of his possession of other rooms in the suit holding. Both the pleading and the evidence on the part of the plaintiff are insufficient and ambiguous and such being the position, I find that the plaintiff has failed to prove the case of reasonable requirement. From the evidence on record it is clear that he has suitable alternative accommodation. The learned First Appellate Court erred in law holding that it was nobodys case about the seven rooms in the possession of the plaintiff in the suit holding, thereby wrongly placing the onus upon the defendant. (9.) IN view of the discussions aforesaid, I find that the learned First appellate Court was not justified in allowing the appeal and decreeing thereby the suit. The judgment and decree under appeal are set aside. The suit is dismissed. The appeal is allowed. There will be no order as to costs.