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2009 DIGILAW 95 (CAL)

Binode Bihari Das v. Kashi Nath Mukherjee

2009-02-13

JYOTIRMAY BHATTACHARYA

body2009
Judgment : JYOTIRMAY BHATTACHARYA, J. (1) This Second Appeal is directed against the judgment of affirmance passed by the learned Assistant District Judge, 3rd Court at Alipore in Title Appeal No.31 of 1996 affirming the judgment and decree dated 21st September, 1995 passed by the learned Munsif, 3rd Court at Alipore in Title Suit No.471 of 1987. (2) The plaintiffs suit for eviction on the ground of reasonable requirement of the plaintiffs and the members of their family was allowed on contest by the learned Trial Judge. Being aggrieved by the judgment and decree of the learned Trial Judge, the defendant/appellant preferred an appeal before the learned First Appellate Court. Two applications were filed by the appellant in the said appeal. One of such application was filed under Order 8 Rule 9 of the Code of Civil Procedure seeking leave to file an additional written statement for bringing on record certain facts which according to the appellants, could not be brought on record at the time of filing original written statement through inadvertently. In the other application which was filed under Order 39 Rule 7 of the Code of Civil Procedure, the appellant prayed for appointment of an Advocate Commissioner for ascertaining the existing accommodation available to the plaintiffs/respondents at their various premises such as 11G, B.L. Ganguly Lane, 11L, B.L. Ganguly Lane and 11M, B.L. Ganguly Lane and the size and mode of user thereof. (3) The learned First Appellate Court rejected both the aforesaid applications filed by the appellant and ultimately affirmed the judgment and decree of the learned Trial Judge. The learned Appeal Court rejected the appellants application for leave to file additional written statement on various grounds such as:-1. If the amendment as prayed for is allowed, there will be de novo trial of the suit. 2. The facts which were sought to be introduced are not subsequent events. These events were within the special knowledge of the defendant/appellant even at the time of filing his written statement in the suit. But in spite of such knowledge, why those events were not disclosed by the defendant in his original written statement has not been disclosed by the defendant in its application for leave to file additional written statement. These events were within the special knowledge of the defendant/appellant even at the time of filing his written statement in the suit. But in spite of such knowledge, why those events were not disclosed by the defendant in his original written statement has not been disclosed by the defendant in its application for leave to file additional written statement. The learned Appeal Court, was of the view, that permission for filing additional written statement cannot be granted unless the reasons for non-disclosure of those events in the original written statement, are disclosed in the leave petition. 3. The facts which were sought to be introduced by way of filing additional written statement are already on record as the parties have given their evidence on those events though those facts were not specifically pleaded by any of the parties in their pleadings. The learned Trial Judge has also considered the effect of such evidence of the parties while disposing of the said suit. As such, according to the learned First Appellate Court, those facts need not be brought on record by amendment of written statement and/or by filing additional written statement in the suit. Thus, the defendants application for leave to file additional written statement was rejected by the learned First Appellate Court with the aforesaid findings. (4) The defendants application for local inspection was also rejected by the learned First Appellate Court by holding inter alia that since the facts which were sought to be elucidated by way of local inspection are all admitted facts, no further elucidation of those points by way of local inspection is necessary. As such, the defendants application for local inspection was rejected by the learned First Appellate Court. The learned Appeal Court was also pleased to dismiss the said appeal by affirming the findings of the learned Trial Judge on the ground of reasonable requirement. The findings of the learned Trial Judge on all the issues such as the ownership of the plaintiff in the suit property, reasonableness of the requirement of the plaintiff and availability of any other alternative suitable accommodation to the plaintiffs/respondents elsewhere, were all affirmed by the learned Appeal Court below. 4. The propriety of the said judgment and decree of the learned First Appellate Court is under challenge in this Second Appeal before this Court. 4. The propriety of the said judgment and decree of the learned First Appellate Court is under challenge in this Second Appeal before this Court. At the time of admission of the appeal substantial question of law was not formulated by the Division Bench of this Honble Court. Accordingly in course of hearing of this appeal the following substantial questions of law were formulated by this Court and the same was circulated amongst the learned Advocates appearing for the parties:-1. "Whether the learned Judge of the Lower Appellate Court, being the last Court of facts, committed a substantial error of law in granting an eviction decree on the ground of reasonable requirement without considering the exact extent and mode of user of the existing accommodation of the plaintiff/respondent. 2. In view of the non-compliance of Section 123 of the Transfer of Property Act, as is evident from the alleged donor of the plaintiff having continued to exert his ownership rights by filing an eviction suit and obtaining possession in respect of a portion of the suit property much after the alleged execution of the Gift Deed dated 1974, the learned Courts below committed a substantial error of law in holding the plaintiff/respondent to be the owner of the suit property by virtue of such Gift Deed. 3. Whether the learned Judge of the Court of appeal below committed a substantial error of law in refusing the defendant/appellants prayers for amendment of written statement/filing additional written statement and for local inspection in view of the settled liberal principles of law governing amendment of written statements as well as the well-settled legal principle that subsequent events are to be considered even at the second appellate stage when those go to the root of the lis. 4. Whether the learned Courts below committed a substantial error of law in not exploring the possibility of partial eviction in terms of the mandate embodied in Section 13(4) of the West Bengal Premises Tenancy Act, 1956. (5) Whether in view of the absence of any real and sincere requirement of the plaintiff/respondent on the face of his available accommodation, the learned Courts below were justified in granting eviction on the ground of reasonable requirement." 5. This appeal was, thus, heard with reference to the aforesaid questions of law. Let me now discuss the merit of the instant appeal with reference to the aforesaid questions of law. This appeal was, thus, heard with reference to the aforesaid questions of law. Let me now discuss the merit of the instant appeal with reference to the aforesaid questions of law. At the time of filing of the suit the plaintiffs family consisted of plaintiff nos.1 and 2 who are husband and wife and their one grown up daughter. The brother of the plaintiff no.1 who along with his wife and children were staying in the Government quarter during the tenure of his service now after his retirement is desirous of coming down to Calcutta to settle permanently in the suit house. The plaintiffs claim that they are in possession of a bedroom, a drawing room and a kitchen with common user with bath and privy at 11G, B.L. Ganguly Lane, Kolkata and one room in premises no.11L, B.L. Ganguly Lane, Kolkata. The existing accommodation which is available to the plaintiffs is insufficient to satisfy the basic need of the plaintiffs as they reasonably require one bedroom for the plaintiff nos.1 and 2, one bedroom for their grown up daughter, one drawing room to meet their requirement for residential purpose. Both the plaintiffs are music teachers by profession and as such, for imparting training and/or giving lesson in music to their students, two additional rooms are required by them. The plaintiffs claim that imparting training and/or giving lesson of music to their students in the bedroom disturbs the privacy of the plaintiffs and as such, their requirement of those two additional rooms is just and reasonable. The plaintiffs also alleged that sharing of the bath and privy in common with the defendant/appellant in the suit premises causes inconvenience to the plaintiffs/respondents and as such, the plaintiffs prayed for a decree for eviction against the defendant/appellant on the ground of reasonable requirement. The plaintiff also stated that the plaintiffs became the owner of a suit property by virtue of a deed of gift executed by one Ratneswar Mukherjee in their favour. The plaintiffs also claimed that they are also co-sharers of the other premises, being premises no.11L, B.L. Ganguly Lane, Kolkata. (6) The defendant/appellant contested the said suit by filing written statement. The plaintiff also stated that the plaintiffs became the owner of a suit property by virtue of a deed of gift executed by one Ratneswar Mukherjee in their favour. The plaintiffs also claimed that they are also co-sharers of the other premises, being premises no.11L, B.L. Ganguly Lane, Kolkata. (6) The defendant/appellant contested the said suit by filing written statement. In the said written statement though the ownership of the plaintiff in respect of the suit property was denied but the extent of accommodation available to the plaintiffs at premises no.11G and 11L, B.L. Ganguly Lane, Kolkata was not denied in the written statement. In fact, the defendant admitted in his written statement as well as in his evidence that the plaintiffs are in possession of two rooms and the kitchen at premises no.11G and one room at premises no. 11L at B.L. Ganguly Lane, Kolkata. The defendant, however, claimed that the existing accommodation available to the plaintiffs in those two premises is sufficient enough to meet their requirement. Thus, the defendant/appellant prayed for dismissal of the said suit. (7) Though the trial of the said suit commenced on the aforesaid pleadings of the parties but, in fact, the parties brought various other materials in their respective evidence apart from the pleadings as aforesaid. Fact remains that the daughter of the plaintiffs/respondents has since been married and is now residing with her husband at her matrimonial home at Nainital. The appellant, thus, claimed that the plaintiffs/respondents do not require any bedroom for their married daughter. The defendant further stated in his evidence that since the marriage between the plaintiff nos.1 and 2 was held within the prohibited decree, the relatives of the plaintiffs boycotted them socially and as such, the plaintiffs do not require any drawing room for attending their guests and relatives there. The defendant also stated in his evidence that in addition to the accommodation available to the plaintiffs at premises no.11G and 11L, B.L. Ganguly Lane, Kolkata, they have another accommodation available to them at premises no.11M, B.L. Ganguly Lane, Kolkata wherein a music school is being run under the name and style of Anandam with which the plaintiffs are associated and as such, the plaintiffs do not require any additional room for imparting lesson and/or giving training of music to their students. Thus, the defendant claimed that the accommodation which is available to the plaintiffs in the aforesaid premises, is sufficient to meet their present requirement. (8) The defendant/appellant further stated in their evidence that the deed of gift which was executed by Ratneswar Mukherjee in favour of the plaintiffs/respondents was not acted upon as the said donor, even after execution of the said deed of gift in 1974, continued to exercise his right of ownership and possession in the suit property and, in fact, he recovered possession of a part of the suit property by evicting a tenant therefrom in execution of a decree through Court in 1978. The defendant/appellant, thus, claimed that the said deed of gift was never acted upon and as such, the plaintiffs cannot claim title over the suit property through the said deed of gift. (9) In fact, the trial of the said suit proceeded with in the aforesaid background and the learned Trial Judge after taking into consideration the aforesaid pleadings and evidence of the respective parties came to the conclusion that the deed of gift was duly acted upon as the acceptance of the said gift was not only recorded by the donees in the deed itself but also they mutated their names as owners thereof in the Municipal records and have also realized rent from the tenant of the said premises. The issue regarding ownership of the plaintiffs in the suit property was, thus, decided in favour of the plaintiffs/respondents. (10) The learned Trial Judge held that the plaintiffs require one bedroom for the plaintiff nos.1 and 2, one bedroom for the married daughter of the plaintiffs, one drawing room for attending the guests and relatives therein and two rooms for imparting training and/or giving lessons in music to the students by the plaintiffs. Thus, the learned Trial Judge held that the plaintiffs reasonably require at least five rooms to meet their requirement. The learned Trial Judge also held that joint user of the common bath and privy with the tenant causes inconvenience to the plaintiffs and as such, they also require the suit premises for convenient use of the same. The learned Trial Judge, thus, held that the three rooms and the kitchen which are in possession of the plaintiffs in the aforesaid two premises no.11G and 11L B.L. Ganguly Lane, Kolkata is not sufficient to meet their requirement. The learned Trial Judge, thus, held that the three rooms and the kitchen which are in possession of the plaintiffs in the aforesaid two premises no.11G and 11L B.L. Ganguly Lane, Kolkata is not sufficient to meet their requirement. (11) The learned First Appellate Court also affirmed the aforesaid findings of the learned Trial Judge. Re: Question Nos.1, 3 and 5. Mr. Bhattacharya, learned Advocate appearing for the appellant, impeached the propriety of the said judgment and decree of the learned First Appellate Court by submitting firstly that the learned First Appellate Court committed an illegality by not granting the appellant leave to file additional written statement as the facts which the appellants wanted to bring on record are all relevant consideration in the lis as in a suit for eviction on the ground of reasonable requirement, the Court is required to consider the extent of requirement of the plaintiffs and/or the availability of the accommodation in their hands as on the date of passing of the decree. As such, according to Mr. Bhattacharya, the learned First Appellate Court ought to have permitted the appellant to file the said additional written statement in the said appeal. Mr. Bhattacharya further submitted that since the facts which were sought to be brought on record by way of filing the additional written statement are already on record in the evidence adduced by the parties in the suit, the learned First Appellate Court erred in holding that if the appellant/defendant is permitted to file the said additional written statement, then there will be de novo trial in the said suit. Mr. Bhattacharya, thus, submitted that since the evidence on the events which were proposed to be brought on record by filing additional written statement, are already on record, the parties need not be given any further opportunity to give evidence in the suit. (12) Mr. Bhattacharya further submitted that even the Honble Supreme Court in a very recent decision in the case of Usha Balashaheb Swami and Ors. Vs- Kiran Appaso Swami and Ors. (12) Mr. Bhattacharya further submitted that even the Honble Supreme Court in a very recent decision in the case of Usha Balashaheb Swami and Ors. Vs- Kiran Appaso Swami and Ors. reported in (2007)5 SCC 602 held that the Court should be very liberal in allowing amendment of written statement and the addition of a new ground of defence or substituting or altering a defence or taking inconsistent plea in written statement can also be allowed as long as the amended pleadings do not result in causing grave injustice and irretrievable prejudice to the plaintiff or displacing him completely. Relying upon the said decision Mr. Bhattacharya submitted that the learned Appeal Court ought to have allowed the appellants prayer for filing of additional written statement in the suit. (13) I, however, do not find much substance in such submission of Mr. Bhattacharya, as admittedly though those facts which were sought to be brought on record by way of additional written statement, do not find any place in the pleadings of the parties but those facts are all brought on record by the parties elaborately by leading evidence in the suit and the learned Trial Judge, in fact, considered the effect of the evidence of the parties and ultimately decided the issue of reasonable requirement of the plaintiffs by taking note of the entire evidence of the parties including the evidence given by the parties on the facts which the defendant is now seeking to introduce by filing additional written statement. This Court, thus, cannot hold that the defendant suffered any prejudice for not allowing him to file additional written statement by the learned First Appellate Court. (14) Mr. Bhattacharya, learned Counsel, also submitted that in every suit for eviction on the ground of reasonable requirement the extent of accommodation available to the plaintiffs and the mode of user thereof are required to be brought on record by way of local inspection for assessing the reasonableness of requirement of the plaintiffs. Mr. (14) Mr. Bhattacharya, learned Counsel, also submitted that in every suit for eviction on the ground of reasonable requirement the extent of accommodation available to the plaintiffs and the mode of user thereof are required to be brought on record by way of local inspection for assessing the reasonableness of requirement of the plaintiffs. Mr. Bhattacharya, thus, submitted that when the plaintiffs did not take any step for bringing such a report on record by way of local inspection in the suit, the learned First Appellate Court ought to have allowed the application for local inspection filed by the defendant/appellant as the reasonableness of the requirement of the plaintiffs could have been assessed only after taking note of the measurement of the rooms in occupation of the plaintiffs and the mode of user thereof. (15) Mr. Bhattacharya further submitted that the existing accommodation available to the plaintiff must be disclosed fully in his pleadings as consequence of non-disclosure of the existing accommodation available to the plaintiff in its entirety has been dealt with by a Division Bench of this Honble Court in the case of Lakshman Chandra Saha Vs-Smt. Bansari Mukherjee reported in AIR 1992 Calcutta page 148 wherein it was held that the ground of reasonable requirement cannot be accepted when the plaintiff has failed to prove that she is not in occupation of a reasonable suitable accommodation by disclosing his entire accommodation before the Court. (16) This Court also does not find any substance in such submission of Mr. Bhattacharya as this Court finds from the pleadings of the parties as well as from their respective evidence in the suit that the extent of accommodation available to the plaintiffs is not disputed by the defendant who in his evidence stated that the plaintiffs have only two rooms and a kitchen at premises no.11G and one room at premises no.11L, B.L. Ganguly Lane, Kolkata in their possession. Even the size of the rooms in the possession of the plaintiffs at premises no.11G, B.L. Ganguly Lane, Kolkata has also been mentioned by the defendant in his evidence. Thus, when the extent of accommodation available to the plaintiffs including the number of rooms and the size thereof are already on record, no useful purpose could have been served by allowing the application for local inspection filed by the appellant. Thus, when the extent of accommodation available to the plaintiffs including the number of rooms and the size thereof are already on record, no useful purpose could have been served by allowing the application for local inspection filed by the appellant. (17) The appellant never claimed that the plaintiffs have any accommodation available at premises no.11M, B.L. Ganguly Lane, Kolkata. The appellant simply stated that the plaintiffs are associated with the music school run under the name and style of Anandam at premises no.11M, B.L. Ganguly Lane, Kolkata. In my view, mere association with an institution in any capacity whatsoever cannot satisfy the requirement of the plaintiffs for the two rooms which they require for imparting lesson and/or giving training in music to their students. Admittedly both the plaintiff nos.1 and 2 are music teachers. The plaintiff no.2 (wife) is a music teacher in a school at Kolkata. As such, their requirement for two additional rooms for imparting training in music to their students cannot be brushed aside. In the absence of any proof as to any right, interest and/or exclusive possession in any capacity whatsoever in any premises, this Court cannot hold that mere association with any institution can satisfy the aforesaid requirement of the plaintiffs. Thus, this Court holds that the plaintiffs require two rooms for imparting music training to their students. (18) The requirement of one bedroom for the plaintiff nos.1 and 2 cannot be denied. Similarly, the requirement of one bedroom for the married daughter of the plaintiffs cannot be ruled out inasmuch as when the said married daughter will come to his paternal house with her husband and her children, they will have to be accommodated in one exclusive room during their stay. The requirement of one bedroom for the married daughter of the plaintiffs cannot be denied in view of the following decisions of the Honble Court:- 1. In the case of M.S. Arora and Sons Vs-Debiprosad Khanna reported in AIR 1990 Calcutta 216. 2. Devokinandan Boobna Vs- Harasundar Sarkar reported in (1988)1 CLJ page 278. (19) Both the Courts below also found that the plaintiffs require one drawing room for attending their guests and relatives therein. In my view, such concurrent findings of fact arrived at by the learned Courts below on materialson-record is not vulnerable in Second Appeal under Section 100 of the Civil Procedure Code. (19) Both the Courts below also found that the plaintiffs require one drawing room for attending their guests and relatives therein. In my view, such concurrent findings of fact arrived at by the learned Courts below on materialson-record is not vulnerable in Second Appeal under Section 100 of the Civil Procedure Code. Both the Courts below disbelieved that because of the marriage between the plaintiff nos.1 and 2 within the prohibited decree, their relatives boycotted them. Such findings of fact, in my view, cannot be interfered in the second appeal. This Court holds that every family requires one drawing room for attending their guests and relatives therein who cannot be attended in the bedroom to maintain privacy. Accordingly, requirement of the guest room of the plaintiffs/respondents cannot be ruled out. Re: Question No.4. (20) Besides all these, common user of bath and privy by the landlord with the tenant causes severe inconvenience in enjoyment of the premises. Sharing the use of the bath and privy by the landlord along with the defendant/tenant should be avoided as far as possible. Thus, the suggestion of partial eviction as given by Mr. Bhattacharya also cannot be accepted as a decree for partial eviction entails sharing of same bathroom and privy by two families. Thus, following the decision of this Honble Court in the case of Piari Mohan Kapoor Vs- Sudhindra Nath Saha and Anr. reported in (1989)1 CLJ page 131, this Court holds that the suggestion of Mr. Bhattacharya regarding partial eviction cannot be accepted. That apart, when this Court finds that the plaintiffs are in possession of three rooms altogether and they require five rooms, this Court holds that the requirement of the plaintiffs cannot be satisfied by passing a decree for partial eviction as the suit premises consists of only two rooms. As such, the decision which was cited by Mr. Bhattacharya in the case of Krishna Murari Prasad Vs-Mitar Singh reported in 1993 Supp.(1) SCC 439, in my view, is not applicable in the facts of the instant case. Re: Question No.2. This Court finds that the deed of gift through which the plaintiffs are claiming title in the suit property, was executed by Ratneswar Mukherjee in 1974. The said gift was accepted by the donee and such acceptance was recorded in the deed itself wherein acknowledgement of acceptance of the gift was recorded by the donees themselves in writing. This Court finds that the deed of gift through which the plaintiffs are claiming title in the suit property, was executed by Ratneswar Mukherjee in 1974. The said gift was accepted by the donee and such acceptance was recorded in the deed itself wherein acknowledgement of acceptance of the gift was recorded by the donees themselves in writing. After accepting the said gift, the plaintiffs recorded their names as owner thereof in the Municipal records and also paid rent and taxes thereof regularly. The plaintiffs have also realized rent from the defendant after acceptance of such gift. (21) The defendant never disputed the existence of relationship of landlord and tenant between the parties though the defendant claimed that the plaintiffs were not the inducting landlord. The ascertainment as to who inducted the defendant is immaterial in such a suit. What is material is to ascertain as to whether the relationship of landlord and tenant existed between the parties as on the date of institution of the suit or not. Here both the Courts found that relationship of landlord and tenant exists between the parties and the plaintiffs have become the owner of the suit premises by virtue of the said deed of gift which was duly acted upon. Though the defendant claimed that even after execution of the said deed of gift the donor recovered possession of a part of the said premises from another tenant in execution of a decree through Court but, in my view, for recovery of possession of a part of the suit premises from one of the tenants, in execution of a decree which was passed in a suit filed prior to the execution of the deed of gift, no Court can come to the conclusion that the deed of gift was not acted upon as it is settled law of the land that even after transfer of ownership, the landlord can proceed with the suit which was filed prior to such transfer and even can evict the tenant in execution of a decree passed in such a suit. There is no material on record to show that even after execution of the said deed of gift, the donor exercised his right of ownership in the suit property or he filed any suit against his tenant for his eviction even after the execution of the said deed of gift. There is no material on record to show that even after execution of the said deed of gift, the donor exercised his right of ownership in the suit property or he filed any suit against his tenant for his eviction even after the execution of the said deed of gift. (22) In the aforesaid facts and circumstances, this Court concurs with the finding of the learned Courts below that the plaintiffs/respondents are the owners of the suit property. This Court, thus, finds no merit in this appeal. The appeal, thus, stands dismissed. The judgment and decree of the Court below are hereby affirmed. The defendant/appellant is given two months time to vacate the suit premises and to deliver vacant and peaceful possession to the plaintiffs/respondents and in default thereof, the plaintiffs/ respondents will be at the liberty to recover khas possession of the suit premises by executing the decree through Court in accordance with law. (23) The appeal, thus, stands dismissed on contest. Let the Lower Court records be sent down to the Court below. Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.