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2012 DIGILAW 691 (CAL)

Charan Roy v. Shyamal Kanti Bandhyopadhyay

2012-07-26

PRASENJIT MANDAL

body2012
Judgment :- Prasenjit Mandal, J. 1. This Second Appeal is directed against the judgment and decree dated September 23, 2003 and October 28, 2003 respectively passed by the learned Judge, Small Causes Court, Sealdah in Title Appeal No.97 of 2000 thereby affirming the judgment and decree dated April 25, 2000 and April 29, 2000 respectively passed by the learned Civil Judge (Junior Division), 1st Court, Sealdah in Title Suit No.361 of 1991. 2. The plaintiff/respondent herein instituted a suit being Title Suit No.361 of 1991 against the defendant/appellant herein for recovery of possession of the suit premises as described in the schedule of the plaint on the ground of reasonable requirement. The defendant/appellant herein contested the said suit by filing a written statement denying the material allegations raised in the plaint. 3. Upon analysis of evidence on record, the learned Trial Judge decreed the suit on contest. Being aggrieved, the defendant/tenant preferred an appeal being Title Appeal No.97 of 2000 which was also dismissed on contest thereby affirming the decree of eviction passed by the learned Trial Judge. Being aggrieved, this application has been preferred. 4. At the time of admission of the appeal, the following substantial questions of law are framed for decision in this second appeal:- a) Whether the learned court of appeal below committed substantial error of law in not considering the case of partial eviction of the appellant from the suit property when it had come to the conclusion that the plaintiffs were in occupation of four rooms and kitchen; b) Whether the learned court of appeal below committed substantial error of law in holding that the suit was not hit by Section 13(3A) of the West Bengal Premises Tenancy Act. 5. After making submission over the entire matter, Mr. Amal Krishna Saha appearing for the appellant has contended that the number of members of the plaintiff/respondent herein has been decreased by the fact that during the pendency of the first appeal, the mother of the plaintiff had expired and the daughter of the plaintiff had been married about eight years ago and as such, the allocation of the rooms as provided by the Courts below is not required. The plaintiff is not required accommodation for those two persons and as such, the impugned judgment cannot be sustained. The plaintiff is not required accommodation for those two persons and as such, the impugned judgment cannot be sustained. He has also contended that in view of such situation, the application under Order 41 Rule 27 of the C.P.C. filed by his client should be allowed for recording evidence before the learned Trial Judge. 6. Mr. Aniruddha Chatterjee, learned Advocate appearing for the plaintiff/respondent herein has vehemently raised objection against the prayer for adducing further evidence on the ground that the allegations made in the said application are frivolous and misconceived. The marriage of the said daughter was held on February 11, 2004 and after her marriage, she comes to the house of the plaintiff with her husband and child. So, the plaintiff requires rooms for them. He has contended that the accommodation for the married daughter is now a settled position of law and the daughter has every right to come to father’s house and to stay thereat and for that reason, the accommodation of the daughter should be considered. The mother of the plaintiff died during the pendency of the first appeal and so, if the accommodation of the mother of the plaintiff is not considered, yet the plaintiff should get the decree of eviction as prayed for. Thus, he has vehemently raised objection against the application for recording evidence under Order 41 Rule 27 of the C.P.C. 7. Thus, having considered the submissions of the learned Advocates of both the sides, I find that Mr. Saha appearing on behalf of the appellant did not make any argument on the substantial questions of law as framed. Therefore, admitting the position as narrated in the application under Order 41 Rule 27 of the C.P.C. relating to the death of the mother of the plaintiff and the fact of marriage of the daughter of the plaintiff, I should consider whether the First Appellate Court was justified in the matter of allocation of rooms as suggested by the Courts below. 8. From the findings of the lower Courts, I find that the plaintiff requires seven rooms reasonably as their accommodation for leading a comfortable life. At present, the plaintiff is in occupation of four rooms only. 8. From the findings of the lower Courts, I find that the plaintiff requires seven rooms reasonably as their accommodation for leading a comfortable life. At present, the plaintiff is in occupation of four rooms only. The plaintiff has stated that he requires one room for himself and his wife, one room for his son, one room for his married daughter, one study room for himself and one study room for his wife and another study room for his children, one kitchen, one thakur ghar, one dinning and one drawing room. The plaintiff requires a separate room for pathological test and his wife coaches Madhyamik and H.S. students. Thus, I find that while dealing with the first appeal, the learned First Appellate Court did not take into consideration of the accommodation for the plaintiff’s mother as she died during the pendency of the first appeal. 9. So far as accommodation for the daughter is concerned, according to the decision of Debabrata Gupta v. Nanigopal Bhattacharjee reported in 2005(3) CHN 95 , the daughter of the plaintiff is now married and she comes to the house of the plaintiff along with her husband and the child. So, the daughter though married requires one room for their stay at the house of her father. In paragraph no.34 of the said decision, one of the Hon’ble Judges (as His Lordship then was) has observed that the accommodation of the married daughter needs to be considered. 10. Similar view was also expressed in the decision of Trilok Chandra Jain @ Tilak Chand Jain v. Hirendra Kumar Mitter & ors. reported in 90 CWN 1086. In the said decision it has also been held that the tenant even cannot take recourse to Section 23 of the Hindu Succession Act, 1956. Now, the Section 23 of the Hindu Succession Act, 1956 has been abolished w.e.f. September 9, 2005. Therefore, the plaintiff also requires one room for the married daughter reasonably. 11. Thus, on the basis of the materials on record, I find that the prayer for decree of ejectment is not a mere desire of the plaintiff but a genuine need for the plaintiff to lead a comfortable life as observed by the Courts below. Both the Courts below have come to the concurrent findings based on materials on record on the issue of reasonable requirement. Both the Courts below have come to the concurrent findings based on materials on record on the issue of reasonable requirement. The said findings cannot be said to be perverse at all. Since, Mr. Saha has not pressed for any other ground as noted above, the substantial questions of law and the ownership of the plaintiff relating to the suit property, remains unchallenged in this second appeal. The institution of the other suit for declaration has no bearing at present so far as the dispute between the landlord and the tenant is concerned. The ground of ownership of the plaintiff in respect of the suit premises has not been challenged by Mr. Saha in this second appeal. So, the finding of the lower Courts in this regard are supported. The substantial question of law on pertial eviction need not be considered, this question is answered accordingly. Similarly, the other substantial question no. (b) is decided in favour of the plaintiff. 12. There is no ground for allowing the application under Order 41 Rule 27 of the C.P.C. as prayed for by the appellant in such circumstances. 13. Accordingly, the second appeal fails to succeed and the same is dismissed. 14. The judgment and decree dated September 23, 2003 and October 28, 2003 respectively passed by the learned Judge, Small Causes Court, Sealdah in Title Appeal No.97 of 2000 are hereby affirmed. The defendant / appellant is directed to deliver vacant possession of the suit premises in favour of the plaintiff / respondent within 30 days hereof failing which the plaintiff / respondent will be at liberty to execute the decree through the Court. 15. The application under Order 41 Rule 27 of the C.P.C. being the C.A.N. No.1896 of 2012 stands rejected. 16. Considering the circumstances, there will be no order to as costs.