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2012 DIGILAW 271 (CAL)

Sudhamyee Biswas v. Jyotsna Das

2012-03-30

SOUMITRA PAL

body2012
Judgment 1. THIS second appeal is against the judgment and decree dated 28th February, 2007 passed by the learned Additional District Judge, 3rd Court at Alipore, District-South 24-Parganas in Title Appeal No. 110 of 2006 affirming the judgment and decree of eviction dated 21st February, 2006 passed by the learned Civil Judge (Junior Division), 4th Court at Alipore, District- South 24-Parganas in Title Suit No. 31 of 2005. 2. FACTS are that the plaintiff, that is the respondent in the appeal, filed the title suit on the ground of reasonable requirement as the accommodation available to her was not sufficient and she had no other reasonable suitable accommodation elsewhere. As the defendant, that is the appellant herein, being the tenant, did not vacate the suit premises even after getting the ejectment notice dated 14th August, 1990, the said suit was filed. 3. THE defendant contested the suit by filing written statement denying the material allegations contained in the plaint and contended, inter alia, that it was. collusive and the suit was not maintainable and liable to be dismissed. 4. LEARNED Trial Court framed nine issues. After contested hearing the learned Trial Court passed a decree holding that the plaintiff reasonably required seven rooms besides kitchen and bath/privy for own use and occupation for herself and for her family members. 5. BEING dissatisfied the defendant preferred appeal which was dismissed on contest by the learned Lower Appellate Court confirming the judgment and decree of eviction on the same ground. 6. 5. BEING dissatisfied the defendant preferred appeal which was dismissed on contest by the learned Lower Appellate Court confirming the judgment and decree of eviction on the same ground. 6. BEING aggrieved, the appellant preferred the second appeal which was admitted on the following questions of law:- (a) Whether the learned Courts below committed substantial error of law in holding that the plaintiff reasonably required the suit property for her own use and occupation by totally misreading the Commissioner's report and mis-appreciating the need of the respondents; (b) Whether the learned Courts below committed substantial error of law in overlooking the fact that the plaintiff's family being consisting of her husband and unmarried daughter and she being in - possession of three bed rooms and a drawing room-cum-dining room apart from bath privy and kitchen, there was no necessity of evicting the appellant from the suit property; (c) Whether the learned Courts below committed substantial error of law in not even considering whether the requirement of the plaintiff can be satisfied by partial eviction of the appellant from the suit property; (d) Whether the learned Courts below committed substantial error of law in totally ignoring the accommodation available to the plaintiff in the premises at Sambhu Nath Pandit Street; (e) In view of the admitted fact that the married daughter of the plaintiff has her father-in-laws house in Kolkata itself, whether the learned Courts below committed substantial error of law in holding that she also required a separate room for her occasional visit from Orissa. 7. MR. Probal Kumar Mukherjee, learned Advocate for the appellant, referring to the report of the Commissioner submitted that though requirement must be reasonable and should be based on actual necessity, however, the claim for one room for dinning and another for drawing room is inflated. Admitting that the married daughter is a part of the family of the respondent, submission was at the most, and if at all, one room is enough for her when she visits Kolkata. Since it appears from the report of the learned Commissioner that there are three entrances and rooms can be severed, the matter may be remanded for considering the issue whether partial eviction can serve the purpose of requirement. Since it appears from the report of the learned Commissioner that there are three entrances and rooms can be severed, the matter may be remanded for considering the issue whether partial eviction can serve the purpose of requirement. Moreover, the judgment and decree of the Lower Appellate Court holding that the respondent required eight rooms cannot be sustained as it replaced the view of the learned Trial Court holding that the plaintiff reasonably required seven rooms besides kitchen and bath/privy. 8. MR. Bagchi, learned Advocate for the respondent submitted, since at no stage objection was taken to the report of the learned Commissioner and appeal was not admitted on the ground of perversity, the question is whether requirement of rooms is inflated and whether the plaintiff reasonably requires the rooms. Since both the learned Courts passed judgments considering the report of the learned Commissioner which was not objected to by the appellant, at this stage factual aspect regarding requirement cannot be gone into as it is beyond the scope of the second appeal. When both the learned Courts below found that the entire building is required and the appellant did not plead partial eviction and all along the entire thrust of argument of the appellant was that the respondent does not require the premises, the appeal does not involve substantial question of law. 9. LEARNED Advocates for the parties had relied on several judgments which shall be dealt with appropriately. 10. IT is an admitted position that the learned Trial Court had decreed the suit holding that the plaintiff reasonably required the entire premises consisting seven rooms besides kitchen and bath/privy after considering the evidence of DW-1 Prasanta Biswas, who on examination admitted that the plaintiff required four rooms, and also after considering the evidence of both sides and on the basis of the report of the learned Commissioner, which was not objected to by the appellant. The Lower Appellate Court also after considering the report and after considering whether accommodation is sufficient for the use and occupation of the respondent, concurred with the factual finding and dismissed the appeal filed by the tenant.- So there is no dispute regarding the requirement of the respondent. Now it is to be examined whether the question of partial eviction, as urged by the appellant, can be considered. Now it is to be examined whether the question of partial eviction, as urged by the appellant, can be considered. It is evident that at no stage the appellant pleaded for partial eviction; rather the case was, as evident from the judgment of the Lower Appellate Court, that "the appellants agitated only one point that the plaintiff does not require the suit premises for her own use and occupation and present accommodation of the plaintiff is sufficient for their requirement. So the only question for determination in this appeal whether the learned Civil Judge (Jr. Divn.) was justified in decreeing the suit on the ground of reasonable requirement". It was submitted on behalf of the appellant that the report of the Commissioner was misread by the learned Courts below. Since I find that on the basis of the report it was held by the learned Trial- Court "that the entrance of the suit property is through one passage and as such this Court is of the opinion that three rooms cannot be severed from the suit property" such submission is without basis. So far as the issue of availability of accommodation at Sambhunath Pandit Street is concerned, as I find that the entire factual aspect was gone into by the Courts below, it cannot be gone into at this stage. Since the learned Advocate for the appellant, conceded that in view of the law laid down in Himenshu Bikash Das v. Ramendra Mohan Dutta, 1991 (1) CLJ 392 a married daughter is a part of the family, ground 'e' of the appeal requires no consideration. So far as the judgments relied on behalf of the appellant are concerned, since the learned Commissioner's report was not challenged and the question of partial eviction was not at all raised and all along the appellant had pleaded that the respondents did not require the premises, the unreported judgment in S.A. No. 17 of 2001, Brojo Krishore Boral v. Smt. Ranu Nandi and Another wherein admittedly the extent of requirement of plaintiff's son for running the multimedia business was not stated during evidence, is not applicable to the facts of the case. The principles of law in Paragraphs 24 and 25 in the judgment of the Supreme Court in Dinesh Kumar v. Yusuf Ali, 2010 (12) SCC 740 are not applicable as in the case in hand the finding of facts have not been challenged on the ground of perversity. Since the appellant evidently at no stage raised the issue of partial eviction and only questioned the reasonable requirement of the respondent and as the Courts below after going through evidence and the report of the Commissioner had upheld the contention of the respondents, the principles of law in the judgment of the Apex Court in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, 2003 (2) SCC 320 are not applicable. It is to be noted that in second appeal generally Court does not interfere with the concurrent finding of facts arrived at by the Courts below unless it is shown that findings are perverse and inferences drawn and conclusion reached are based on no evidence. If findings are based on no evidence and perverse, in that event, Court can re-appreciate evidence. As in this instant case, as evident, the appellant pleaded that the respondent did not require the premises and the issue of partial eviction was not raised at any stage before any of the Courts below and as the report of the Commissioner was not challenged, in my view this second appeal does not involve any substantial question of law. Therefore, the second appeal is dismissed. Accordingly, the application is disposed of. The Department is directed to send down to the Lower Court Records along with a copy of this judgment to the Lower Court within a week without fail. No order as to costs. Urgent Photostat certified copy of this judgment and order, if applied for, be given to the appearing parties on priority basis.