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2009 DIGILAW 881 (CAL)

Jugal Krishna Sarkar v. Ranjit Kumar Das

2009-12-07

PARTHA SAKHA DATTA

body2009
Judgment :- (1.) This is the defendants second appeal preferred against the judgment and decree dated 29th of May 2002 passed by the learned Civil Judge (Senior Division), 9th Court at Alipore in Title Appeal No. 330 of 2000 whereby the judgment and decree dated 22nd September, 2000 passed by learned Civil Judge (Junior Division), 1st Additional Court, Alipore in Title Suit No. 108 of 1987 decreeing the suit for eviction against the appellant herein was affirmed. (2.) The original plaintiff was one Ashalata Das who instituted the suit being Title Suit No. 108 of 1987 against the appellant herein for eviction on the ground of default and of reasonable requirement of the suit premises for her own use and occupation. The suit premises is the western portion of the premises No.43/K, Tallygunge Road under Police Station Tallygunge, Calcutta-26 consisting of two bedrooms, a kitchen, a bath and privy. Smt. Malina Das was the sister of Ashalata. Ashalata and Malina out of their joint fund constructed a one storied building at premises No. 43K, Tallygunge Road. They effected partition mutually between themselves on 1st of January, 1977 whereby the eastern portion of the premises was allotted to Malina and the western portion was allotted to Ashalata. Ashalata inducted the appellant in the suit premises in February., 1978 at a monthly rental of Rs.230/-payable according to the English calendar month. The appellant is stated have defaulted in payment of rent since 1986. As the suit property was tenanted to the appellant, Ashalata had no accommodation and she would reside in the tenanted house of her sister Malina. Malina asked her to vacate, and moreover Malinas tenanted house was in a bad shape and it was impossible as also unsafe for Ashalata to live in the tenanted house of her sister. Accordingly, she reasonably required the suit premises for her own use and occupation. Tenancy was determined by a notice to quit under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (for short, the Act). (3.) The suit was instituted on 5th of March, 1987. Ashalata died leaving a Will whereby Ranjit Kr. Das who is the substituted plaintiff No.1 was made an executor and by the said Will property was bequeathed to the plaintiff No.2 Supratim Ghosh. In the amended plaint it has been reiterated that the defendant was defaulter since April 1986. (3.) The suit was instituted on 5th of March, 1987. Ashalata died leaving a Will whereby Ranjit Kr. Das who is the substituted plaintiff No.1 was made an executor and by the said Will property was bequeathed to the plaintiff No.2 Supratim Ghosh. In the amended plaint it has been reiterated that the defendant was defaulter since April 1986. Supratim Ghosh now the sole legatee under the Will executed by the original plaintiff has been residing in a rented house with his parents, and he requires the suit premises for his own use and occupation as also that of his family members. His father is a heart patient and mother a patient of cancer. In the rented house they have only one room and a kitchen with common user of bath and privy. Therefore Supratim requires a bed-room for himself, a bed-room for his father, a bed-room for his mother, a drawing room, a Thakurghar, a store besides a kitchen and a privy. Supratim has no other reasonably suitable accommodation. The amended plaint was filed on 23.07.1994. (4.) The defendant filed a written statement denying the plaint case to be true. He denied the existence of relationship of landlord and tenant. He denied himself to be a defaulter. He denied that the plaintiff reasonably requires the suit premises. In the amended written statement which followed the amended plaint the same pleas have been reiterated. He contended that he was unaware of existence of any deed. The substituted plaintiffs do not have any reasonable requirement of the suit premises. The notice of eviction was bad in law. (5.) The learned trial Court framed a number of issues, namely, existence of cause of action, maintainability of the suit in law and in present form, service and validity of the notice, alleged default in payment of rent, ownership of the plaintiffs in the suit premises, reasonable requirement of the plaintiff and availability or otherwise of any other accommodation of the plaintiff. (6.) On the point of notice learned trial Court found that the notice was served upon the defendant within due time and even the evidence of D.W.1 (defendant) does not show any denial of notice. No argument was put forward challenging the legality, validity and sufficiency of notice. Further the learned trial Court examined the notice and found it to be legal, valid and sufficient. No argument was put forward challenging the legality, validity and sufficiency of notice. Further the learned trial Court examined the notice and found it to be legal, valid and sufficient. (7.) On the question of default which is the issue No.4 learned trial Court found that the defendant did not produce any document/challan to show that he deposited rent since October, 1996. learned trial Court found the defendant to be defaulter since October, 1996. (8.) On the issues of reasonable requirement the learned trial Court found that Exbt. 2 was the original sale deed of the original plaintiff Ashalata and her sister Malina. They were the joint owners of the premises No.43K, Tallygunge Road. Tax receipts (Exbt.3) were produced to show that as owners they deposited tax with the Calcutta Corporation. Evidence was led to show that Ashalata and Malina effected mutual partition in respect of the building by virtue of which Ashalata was allotted the western portion of the premises which is the suit premises. Ashalata before her death executed a Will in favour of Supratim Das, the plaintiff No.2 herein bequeathing the suit premises to him and in that will Ranjit Kr. Das, the plaintiff No.1 was made the executor. Supratim thus became the owner of the suit premises. Learned trial Court found that Supratim requires one room for himself, one for his father, one for his mother, one drawing and other accessories. Now, during the pendency of the suit his mother Ira Ghosh died and plaintiffs No.2s family consisted of himself, his wife and father. Now plaintiff No.2 resides in a rented house at 21/A, Piyari Mohan Roy Road. Learned trial Court having found that the plaintiff No.2 has been residing in a rented premises he was entitled to an order of eviction. Accordingly, the suit was decreed. (9.) In appeal before learned Civil Judge (Senior Division) it was ventilated that the substituted plaintiffs could not have any cause of action with the death of the original plaintiff Ashalata and cause of action as was alleged in the original plaint is no longer available to the substituted plaintiffs. Learned trial Court found the grounds to be not sustainable and further found that the argument of the appellant that he was not a defaulter was not correct and accordingly the judgment of the learned trial Court was affirmed. Learned trial Court found the grounds to be not sustainable and further found that the argument of the appellant that he was not a defaulter was not correct and accordingly the judgment of the learned trial Court was affirmed. (10.) The Division Bench of this Court while entertaining appeal formulated the following points: - (1) "Whether the learned Court below erred in Law in allowing the suit for eviction inter alia: On the finding that the tenant/defendant defaulted in payment of rent under Section 17(2) of the Act on the ground that few deposits were delayedly made without the defence been struck off and whether such insignificant delay could be ignored that defence was not struck of." (2) "Whether the learned Court below erred in Law in not considering the extent of reasonable requirement having regard to the fact that the plaintiff who had pleaded the reasonable requirements died following which the present plaintiffs were substituted and whether the requirement of the present plaintiffs were gone into." (11.) Certain facts remain undisputed. Ashalata and Malina were two sisters. Ashalata was issueless. Malina died leaving son Ranjit and daughter Ira. Iras husband is Nirmal. Supratim is the son of Ira and Nirmal. The premises 43K, Tallygunge Road was constructed by the two sisters as aforesaid on 1 Cattah and 9 Chitthaks of land out of the joint fund. Later, they effected a mutual partition of the building as a result of which the western portion consisting of two bed-rooms, a kitchen, a bath and a privy fell into the allotment of Ashalata. Ashalata put up herself with Malina. Ashalata inducted the defendant/appellant in the suit premises at a monthly rental of Rs.230/- payable according to English calendar month in February, 1978. Ashalata died leaving a Will bequeathing the property in favour of Supratim, the son of Ira. In that Will Malinas son Ranjit i.e. the brother of Ira was made an executor. As evidence goes unchallenged Ranjit applied for probate of the Will which was duly obtained. Meanwhile, sometime in June 1994 the plaint was amended to incorporate the substitution of Supratim the sole legatee as plaintiff No.2 and Ranjit Kr. Das the executor of the will as the plaintiff No.1. As evidence goes unchallenged Ranjit applied for probate of the Will which was duly obtained. Meanwhile, sometime in June 1994 the plaint was amended to incorporate the substitution of Supratim the sole legatee as plaintiff No.2 and Ranjit Kr. Das the executor of the will as the plaintiff No.1. In the amended plaint the plea of reasonable requirement was put forward in the manner that Supratim has been residing with the members of his family in a rented accommodation and the landlord of the rented accommodation has asked him to quit the premises and since he has no other reasonably suitable accommodation elsewhere he requires the suit premises for his.....use and occupation and for the use and occupation of the members of his family. (12.) Mr. G. C. Ghosh, learned Advocate argued the appeal for the appellant for a couple of days and then he retired. Then, Mr. Debapratim Banerjee appeared for the appellant again to argue and he has concluded his argument. Mr. Banerjee submitted that with the death of Ashalata the cause of action that arose according to Ashalata on 1st of March, 1987 died and it is no longer available to the present plaintiffs. Secondly, the ground of reasonable requirement which was one of the grounds in the suit for eviction expired with the expiry of Ashalata and the substituted plaintiffs cannot, on the basis of the same cause of action, plead for their alleged reasonable requirement. This point needs to be addressed. Mr. Jiban Ratan Chatterjee, learned Advocate appearing for the respondent submitted, rightly indeed, that the submission of Mr. Banerjee is no longer the law. I have been taken to, in this connection, the decision in Shantilal Thakurdas v. Chimanlal Maganlal, reported in AIR 1976 Supreme Court 2358 where it was held that the cause of action for the suit grounded on the personal requirement would not die with the person who instituted the suit but would survive to his heirs who can maintain the action and the suit can be decreed in their favour provided it is proved that they themselves required the suit premises. The learned Court of appeal below also referred to this decision. The learned Court of appeal below also referred to this decision. Their lordships of the Supreme Court observed as follows in the said decision: - "If the law permitted eviction of the tenant for the requirement of the landlord for occupation as a residence for himself and members of his family then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family. Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the ceased landlord". (13.) This principle is applicable to the instant case. The original plaintiff Ashalata instituted this suit on the ground of reasonable requirement. The cause of action cannot die with death of Ashalata. The legatee, now the plaintiff-cum-landlord, can continue with the suit to plead for his reasonable requirement. Once this is so held that the cause of action would survive to the heirs of the deceased plaintiff the second branch of argument of Mr. Banerjee that the notice under Section 13(6) of the Act can no longer said to be valid with the death of Ashalata is also not maintainable. It is the determination of tenancy that constitutes the cause of action and by a valid notice to quit under Section 13(6) of the Act the tenancy was determined and, as said above, the learned trial Court has correctly found that the notice did not suffer from any illegality, invalidity or insufficiency. Once it is held that the immediate cause of action survives to the surviving heirs it automatically comes to the proposition that the notice on which the suit was instituted will also be made available to the substituted landlords-cum-owner. Once it is held that the immediate cause of action survives to the surviving heirs it automatically comes to the proposition that the notice on which the suit was instituted will also be made available to the substituted landlords-cum-owner. Law has made no distinction between the-substituted plaintiff who succeeds to the estate by testamentary disposition and the one who succeeds by inheritance. (14.) Mr. Banerjee argued that an owner acquiring interest in the property by transfer cannot maintain an action or cannot continue with suit for eviction within three years from the date of acquisition of interest on the ground of reasonable requirement. It was contended that Section 13(3A) of the Act constituted bar to eviction on the ground of reasonable requirement within three years from acquisition of interest in the premises. This point was earlier examined by a Division Bench of this Court in Indian Oil Corporation v. Himanshu Kumar Ghosh, reported in 86 CWN 1099. In this decision it has been held by this Court that the word transfer in Section 13 (3A) was not wide enough to incorporate testamentary succession under a Will and the suit so instituted cannot be said to be barred on the date of its institution under sub-section (3A) of Section 13 of the Act. Their Lordships held that the provision of sub-section (3A) of Section 13 of the Act was not provided in so wide a term as in the case of Section 13(1) (a) or Section 14 of the Act. The term transfer in the context of sub-section (3A) means a transfer inter vivos between the existing landlord and a transferee landlord who obtains the transfer to use his requirements. Similarly, in the said decision a decision of a learned Single Judge of this Court in Gorachand Dey v. Chhaya Bagchi, reported in 17 CWN 77 was also referred to wherein it was held that similarly partition is not a transfer. Therefore, the submission of Mr. Banerjee fails. Moreover, the ground was pleaded by amendment which was allowed by the learned trial Court long ago and the order allowing the amendment was not challenged before any higher forum. In Uma Mishra (Sanyal) v. Manoranjan Sinha, reported in 1992 (2) CLJ 215 it was held inter alia that amendment to include reasonable requirement for own use and occupation after lapse of three years from the date of acquisition of interest was permissible. In Uma Mishra (Sanyal) v. Manoranjan Sinha, reported in 1992 (2) CLJ 215 it was held inter alia that amendment to include reasonable requirement for own use and occupation after lapse of three years from the date of acquisition of interest was permissible. This decision is no longer relevant at all in the context of the decision in Indian Oil Corporation (supra) where will has been excluded from the ambit of transfer in the context of sub-section (3 A) of Section 13 of the Act. (15.) So far as the plea of reasonable requirement is concerned, there is evidence of the plaintiff No. 1 as P.W.1, and Supratim Ghosh as P.W.2. Unquestionably, the plaintiff No.2 has been residing in a rented accommodation. Unquestionably, there is no evidence that the said plaintiff No.2 has any other reasonably suitable accommodation elsewhere. Evidence has been led to show that the plaintiff No.2 has been residing as a tenant at 22/1, Piyari Mohan Roy Road, Calcutta. A suggestion was given that P.W.2 is the owner of that house. It was a wild suggestion which could not be established. Now, before the learned trial Court P.W.2 has stated that his family consists of he himself, his wife and father. He and his wife require a room, father requires a room, they require a drawing room apart from a Thakurghar, a kitchen, a store, bath, privy etc. and according to the plaintiff No.2 sufficient accommodation is not available to him in the rented premises. P.W.2 produced the rent receipts showing his tenancy at 21/A Piyari Mohan Roy Road. However, P.W.2s mother died during the pendency of the suit. No amount of cross-examination could demolish the basic fabric of the case of the plaintiff No.2. Argument was advanced that no commission was taken out either for inspection of the alleged tenanted accommodation of P.W.2 or of the suit premises. The argument is of no avail because admittedly the suit premises consisted of two bed rooms, one drawing room, one kitchen, one store, bath, privy etc. The extent of accommodation of the suit premises is known to the defendant. The argument is of no avail because admittedly the suit premises consisted of two bed rooms, one drawing room, one kitchen, one store, bath, privy etc. The extent of accommodation of the suit premises is known to the defendant. Secondly, there was no necessity for holding local inspection of the rented accommodation of the plaintiff No.2 because undoubtedly it was rented accommodation and the law is very well settled that a landlord residing in a tenanted accommodation is entitled to the eviction of the tenant of his own house on the ground of reasonable requirement. (16.) As said above, the probate of the will was obtained on 24th of September, 1993, which was during the pendency of the suit and before the decree was passed by the learned trial Court. Exhibit-4 is the probate of the Will. Exbt.2 is the original deed of conveyance dated 09.03.1960 in favour of Ashalata and Malina with respect to the land on which construction of the building was raised. Tax receipts were produced to show that both Malina and Ashalata exercised their ownership and absolute control over the property after purchase of the land and construction of the building. It further appears that Malina Das made a gift of her eastern portion of the premises No.43K, Tallygunge Road on 19th July, 1990. Therefore, Supratim cannot have any scope of title or interest in respect of his grandmothers interest in the other half of the building. It is no longer necessary to say that so far the plaintiff No.1 is concerned, he has no interest in the property. But as executor he derived his title from the Will immediately after the testators death and the property vested in the executor (See: Baliram Dhote v. Bhupendranath Banerjee, AIR 1970 Cal 559). Since probate has been granted long long before the decree was passed by the trial Court the earlier argument that as probate was not obtained the suit could not be proceeded with is of no avail now. (17.) An argument was advanced by Mr. Banerjee on behalf of the appellant that the reasonable requirement of the premises must subsist, on the date of the decree. It is as is find in Sankutala Bai and Ors. v. Narayan Das and Ors., reported in AIR 2004 Supreme Court 3484. I have earlier found that still the requirement of the plaintiff No.2 is there. Banerjee on behalf of the appellant that the reasonable requirement of the premises must subsist, on the date of the decree. It is as is find in Sankutala Bai and Ors. v. Narayan Das and Ors., reported in AIR 2004 Supreme Court 3484. I have earlier found that still the requirement of the plaintiff No.2 is there. (18.) As to the point of default both the Courts below have found that the defendant was defaulter since October 1996. This being a concurrent finding of fact this Court does not find reason to disturb the same. It was argued by the learned Advocate for the appellant that small amount of default could be ignored by direction upon the tenant to deposit the rent. I am unable to accept the proposition. The learned trial Court decreed the suit on 22nd of September, 2000 and it has been found by the learned trial Court that since October, 1996 the defendant was defaulter. The learned Court of appeal below very exhaustively found on scrutiny of the challans that even certain deposits numbering about 10 were invalid deposits. In such a situation, the tenant is not entitled to protection under Section 17(4) of the West Bengal Premises Tenancy Act. There is also no evidence that any application was made to accept the invalid and belated deposits by condonation of delay. Reference in this connection may had to the decision in Paritosh Kr. Ghosh v. Smt. Shyamali Nandy, reported in AIR 1980 Cal 280 . (19.) As held by the Supreme Court in Gurdev Kaur and Ors. v. Kaki and Ors., reported in AIR 2006 SC 1975 , a concurrent finding of fact should not be interfered with in second appeal within the scope of ambit of Section 100 C.P.C. unless there are compelling circumstances, e.g. material evidence has been ignored, finding is based on inadmissible evidence, there has been gross misappropriation of evidence resulting in miscarriage of justice; law has been incorrectly applied on a set of facts. (20.) Learned Advocate for the appellant Mr. Banerjee submitted that during the pendency of the suit the landlord disconnected the water connection to the peril of the tenant and he moved an application being C.A.N. No. 8491 of 2008 praying for direction for supply of water connection to the defendant. (20.) Learned Advocate for the appellant Mr. Banerjee submitted that during the pendency of the suit the landlord disconnected the water connection to the peril of the tenant and he moved an application being C.A.N. No. 8491 of 2008 praying for direction for supply of water connection to the defendant. This point appears to have been decided by the learned trial Court long ago sometime in the year of 1992 when the trial Court by order dated 6th of January, 1992. Allowed the petition of the appellant directing him to take separate water connection from the Kolkata Municipal Corporation. In such circumstances, the point raised in the C.A.N. No.8491 of 2008 is of no avail. (21.) Situated thus, the appeal fails and is dismissed with costs to the respondent. A decree shall be drawn up. A copy of this judgment along with L.C.R shall be sent down to the learned trial Court for information and necessary action.