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2011 DIGILAW 521 (CAL)

Nani Kundu v. Bani Bhadra

2011-04-08

RAGHUNATH BHATTACHARYA

body2011
JUDGMENT 1. THE instant appeal has been preferred against a judgment and decree dated 25.03.2008 passed by Sri B. Das, learned A.D.J., Alipore in appeal No. 236 of 2007 thereby affirming the judgment and decree dated 29.06.2007 passed by the learned Civil Judge (Junior Division), First Court at Alipore. 2. THE thumbnails sketch of the plaintiff's case is as follows :- Plaintiff Smt. Bani Bhadra is the owner of the suit premises. She acquires a property by way of partition with her co-sharer on the strength of registered deed of partition dated 05.09.1981. Defendant No. 1 Sri Sankar Kundu was a monthly tenant in respect of the suit premises at a monthly rental of Rs. 135 payable according to English Calendar month. It is the plaintiffs specific case that the defendant is a habitual defaulter in payment of rent in respect of the suit premises from November 1982 onwards. It is further alleged that the defendant Sri Sankar Kundu sublet or assigned the suit premises to defendant No. 2 Sri Nani Kundu without any written / verbal consent of the plaintiff. Defendant No. 1 was not residing in the suit premises and he shifted to a different place after subletting the tenanted portion to Sri Nani Kundu. THE tenancy of the defendant No. 1 was terminated by way of notice of ejectment under Section 13 of W.B.P.T. Act, 1956. Plaintiff Smt. Bhadra required the suit premises for her own use and occupation as she has no other suitable alternative accommodation. THE defendant refused to vacate the suit premises in spite of receipt of the notice. Hence the suit. Defendant contested the suit by filing a written statement, inter alia, deny all the material allegations made in the plaint. The defendant/ appellant denies the ownership of the respondent in respect of the suit premises. The contention of the appellant is that he himself along with one Kartick Chandra Kundu was the real tenant and the defendant No. 1 was the benamdar. It is the specific plea of the appellant/defendant since the inception of the tenancy defendant along with his brother Kartick lived in the suit premises and paid rents though the tenancy stood in the name of the defendant No. 1 with the knowledge and consent of the erstwhile landlord Sri Anil Bhadra. The defendant categorically denies the plaintiff's claim for reasonable requirement of the suit premises. The defendant categorically denies the plaintiff's claim for reasonable requirement of the suit premises. Hence the suit merits dismissal. 3. THE instant suit was contested before the Civil Judge (Junior Division), First Court at Alipore both party adduced evidence and after hearing both side and after conclusion of the trial learned Trial Court decreed the suit and directed the defendant/appellant to vacate the suit premises within 60 days from the date of passing of the judgment. 4. BEING aggrieved by and dissatisfied with the judgment of the learned Civil Judge (Junior Division), first Court at Alipore defendant/ appellant being a tenant preferred an appeal before the learned District Judge, Alipore same was transferred to the A.D.J. (16th Court) Alipore and learned A.D.J, after hearing both side came to a finding that appellant/ defendant is a sub-tenant in respect of the suit premises. The notice to quit and vacate was duly served upon the defendant. Plaintiff/respondent who was occupying a rented house at Konnagar reasonably required the suit premises for her personal use and occupation and as a result learned A.D.J. (16th Court) Alipore dismiss the appeal on contest but without cost on 25.03.2008. Being aggrieved by and dissatisfied with the finding of the learned A.D.J., Alipore the defendant preferred the present second appeal before this Court. Appeal was admitted and it was decided the instant appeal be heard on the following substantial question of law : 1) Whether the learned Court below went beyond the jurisdiction in any of the finding of sub-tenancy had been holding Kartick Kundu and Nani Gopal Kundu as sub-tenants in a proceeding under Section 17(2) of the West Bengal Premises Tenancy Act and without holding the regular trial on evidence. At the time of hearing it was submitted by the learned Counsel appearing for the appellant in addition to the substantial question of law framed by the Hon'ble Court in admitting instant appeal the following further ground may be formulated and learned Counsel for the respondent in his usual fairness did not oppose the submission made by learned Senior Counsel for the appellant Mr. S.P. Roy Chowdhury. Thus the following grounds are being formulated:- i) Whether the Courts below committed a substantial error of law in deciding the question of reasonable requirement without adhearing to or applying the established legal test. S.P. Roy Chowdhury. Thus the following grounds are being formulated:- i) Whether the Courts below committed a substantial error of law in deciding the question of reasonable requirement without adhearing to or applying the established legal test. ii) Whether the Courts below committed substantial error of law in holding sub-tenancy without deciding the questions of intention, payment of consideration and exclusive possession etc. iii) Whether the Courts below committed a substantial error of law in not holding that the suit is not maintainable in its present form and further that the same is not barred on account of defect of parties. 5. SRI S.P. Roy Chowdhury, learned Senior Counsel appearing for the appellant/defendant assailed the judgment of the Trial Court as well as that of the first Appellate Court on several points. According to Mr. Roy Chowdhury, learned Senior Counsel there was an inherent defect at the inception of the suit and according to him the suit itself was bad for defect of parties as because Kartick Kundu the tenant was not made a party to the suit and no notice under Section 13(6) of W.B.P.T. Act, 1956 was served upon him. Secondly he pointed out to the Court in respect of exhibit J and K, according to him as per recital of exhibit J and K it was crystal clear that Nani Kundu was the tenant under the plaintiff and said Nani Kundu was not a benamdar or sub-tenant in respect of the suit premises. Thirdly Mr. Roy Chowdhury has contended that the suit property was not reasonably required by the plaintiff. Though plaintiff was staying at in a rented house at Konnagar yet the same was suitably for plaintiff's stay than that of the suit plot as reported in AIR 1987 Supreme Court 2055. Mr. Bagchi, learned Counsel appearing for the respondent/plaintiff give reply to all those points as raised by learned Counsel for the appellant. 6. AFTER giving anxious thinking over the submissions made by the two Senior Counsel namely Mr. S.P. Roy Chowdhury and Mr. A. Bagchi I like to mention that plaintiff was residing in a tenanted house at Konnagar. The plaintiff was the owner of the suit premises. The word 'reasonable requirement' in my opinion is a relative term. What was reasonably required by 'A' the same might not be reasonably required by 'B'. S.P. Roy Chowdhury and Mr. A. Bagchi I like to mention that plaintiff was residing in a tenanted house at Konnagar. The plaintiff was the owner of the suit premises. The word 'reasonable requirement' in my opinion is a relative term. What was reasonably required by 'A' the same might not be reasonably required by 'B'. In my humble opinion reasonable requirement depends upon the status of the parties financial ability and local environment. Admittedly the distance between Konnagar and Kolkata is not very far. But everyone, in my opinion, wants to stay or reside in his own house than in a rented house. So, in my humble opinion plaintiff being the owner of the suit property reasonably required the suit land for her own use and occupation. The learned Counsel for the respondent has categorically stated that 17(2) and (2A) was duly contested in the Court below and learned Court below has come to a definite finding. It is pointed out by Mr. Roy Chowdhury that the appellant/tenant has every right to agitate this point in the Second Appeal. It is needless to mention that an application under Section 17(2) and 17(2A) of the Act and decision taken by learned Court below in respect of the said application is a fact in issue and same cannot be agitated at the time of second appeal. It was categorically decided not only by the trial Court but also by the first Appellate Court that defendant No. 2 i.e. the appellant was a sub-tenant and the defendant No. 1 Shankar Kundu was the tenant in respect of the suit property under the plaintiff. It was also observed by the learned First Appellant Court 'neither the original tenant nor the appellant preferred any revision against an order of the learned Trial Court. No document has been field by the defendant No. 1 to show that he paid rent for the suit premises to the plaintiff after she becoming the owner in respect of the suit premises in the year 1981. So from this finding it is crystal clear that appellant is a sub-tenant in respect of the suit premises. In my humble opinion the relationship of landlord and tenant is essentially an issue of fact, that issue, regarding relationship being essentially a question of fact. So from this finding it is crystal clear that appellant is a sub-tenant in respect of the suit premises. In my humble opinion the relationship of landlord and tenant is essentially an issue of fact, that issue, regarding relationship being essentially a question of fact. The same cannot be agitated in the second appeal as it was already decided not only by the learned Trial Court but also by the learned First Appellate Court, learned Senior Counsel Mr. Roy Chowdhury has contended that as per recital of exhibit J and K it is crystal clear that Nani Kundu is a tenant whereas while disposing of the application under Section 17(2) and (2A) of the Act learned Trial court as well as the learned First Appellate Court have come to definite finding that Nani Kundu is a sub-tenant. Now the moot question is whether this Court will rely upon the recital of exhibit J and K or upon the finding of the learned Trial Court and that of the learned First Appellate Court. In my humble opinion a legal find carries much weight than a factual finding. Moreover, I have carefully gone through the recital of Exhibit J and K and from this it cannot be definitely concluded that Nani Kundu is a tenant in respect of the suit premises. Learned Lawyer for the respondent as well as learned Lawyer for the appellant referred to several decision. Learned Lawyer for the respondent has cited several decisions reported in (2010)10 SRJ 178, AIR 1970 SC 1 , AIR 1988 SC 396 and 1987 Cal WN Page 92 and some other decisions. I do not find any reason to elaborate my judgment. The learned Counsel for the appellant Mr. S.P. Roy Chowdhury has categorically contended that as the suit is bad for defect of parities so this Court being the second Appellate Court has no other alternative but to allow the appeal or at best sent the suit back on remand for fresh decisions in the light of the observation made by this Court on the point that suit is bad for defect of parties and recital of exhibit J and K are not duly considered. The submissions made by senior Counsel Mr. Roy Chowdhury has been- vehemently opposed by learned Counsel for the appellant Mr. Bagchi. The submissions made by senior Counsel Mr. Roy Chowdhury has been- vehemently opposed by learned Counsel for the appellant Mr. Bagchi. It was decided in a decision reported in AIR 1988 SC 396 that 'the appellant/landlord sought eviction of the respondent tenant on four grounds but the two grounds found favour with the trial Court and the Appellate Court were that the tenant had sublet the premises to his brother without consent of the landlord and the landlord bona fide required the leased portion of the house for the use and occupation of the members of his family. It was found that the tenant had given possession of the leased portion of his brother and shifted his residence without intention to return. The landlord had grown up children and they could not get married for want of accommodation. The High Court In Second Appeal interfered with the concurrent finding of fact.' 7. IT was further decided in the said judgment that "On the question of subletting also the Courts below had adequate material to conclude that the respondent had sublet the premises, albeit to his own brother and quit the place and the subletting was without the consent of the appellant. The High Court was in error in holding that the tenant's brother was in occupation as a licensee and not as a sub-tenant". 8. HELD, that the High Court was not justified in attributing perversity to the finds of the lower Courts and setting them aside. In the instant case also First Appellate Court has confirmed the judgment and decree of the learned trial Court in view of the aforesaid decision I do not find any justification to interfere with the judgment passed by the learned trial Court. 9. IN my humble opinion learned trial Court as well as the First Appellate Court on the basis of the evidence and on the basis of the fact of the case have come to a definite conclusion that appellant/defendant is a sub-tenant and plaintiff is entitled to get a decree. I have already mentioned that plaintiff reasonably required the suit premises not only because she is staying in a rented house at Konnagar but also she is the owner of the suit property. Secondly it was duly proved that the respondent is a sub-tenant. I have already mentioned that plaintiff reasonably required the suit premises not only because she is staying in a rented house at Konnagar but also she is the owner of the suit property. Secondly it was duly proved that the respondent is a sub-tenant. So I do not like to interfere with the judgment passed by the trial Court as well as First Appellate Court. 10. THE cases cited by the learned Advocate for the appellant cannot be by any assistance to the appellant in the fact and circumstances of the present case. In view of the aforesaid discussion made above this Court is not inclined to interfere with the impugned judgment and decree. The present appeal is without any merit. So the instant appeal be and the same is dismissed on contest but without cost. 11. JUDGMENT and decree passed by the First Appellate Court is hereby confirmed.