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2014 DIGILAW 354 (CAL)

Niranjan Khan v. Thakur Prosad Bhagat

2014-04-16

DEBANGSU BASAK

body2014
JUDGMENT Debangsu Basak, J. 1. The second appeal was at the instance of a tenant against a judgment of confirmation. 2. The second appeal was admitted by an Order dated March 30, 2004. The second appeal was directed to be heard on four substantial questions of law framed. The first two questions of law framed on March 30, 2004 related to the subletting of the suit premises. The next two substantial questions of law related to reasonable requirements of the Respondent Nos. 1 to 4. 3. It was contended on behalf of the appellant that, no evidence was adduced by the Respondent Nos. 1 to 4 to establish that, the suit premises was reasonably required by the Respondent Nos. 1 to 4. It was submitted that, the ingredients of Section 13 (ff) of the West Bengal Premises Tenancy Act, 1956 was not implied with. 4. It was contended on behalf of the appellant that, the Respondent Nos. 1 to 4 as plaintiff failed to discharge their burden of proof. The Respondent Nos. 1 to 4 could not establish that, the suit premises were reasonably required by him. The Respondent Nos. 1 to 4 also failed to establish subletting. Reliance was placed on Sections 102 and 104 of the Evidence Act, 1872 in that regard. 5. It was contended on behalf of the appellant that, the Respondent Nos. 1 to 4 was guilty of suppression of material facts. The Respondent Nos. 1 to 4 did not disclose the area under occupation, the rooms under their occupation at the suit premises as well as other relevant factors which would go to show that the Respondent Nos. 1 to 4 required the suit premises reasonably in the plaint. It was contended that, reasonable requirement must be bona fide and not arbitrary and whimsical. 6. On the issue of suppression of fact the appellants relied upon the decision reported at 2008 Volume 3 West Bengal Law Reports Calcutta page 733 (Sri Ratan Chandra Nath v. Sri Ranjit Kumar Nath). 7. It was contended on behalf of the appellant that the averments made in the plaint were vague. On the basis of such vague averments the Respondent Nos. 1 to 4 were not entitled to the decree for eviction. Reliance was placed on All India Reporter 1993 Calcutta page 144 (Ratanlal Bansilal & Ors. v. Kishorilal Goenka & Ors.) in that regard. 8. On the basis of such vague averments the Respondent Nos. 1 to 4 were not entitled to the decree for eviction. Reliance was placed on All India Reporter 1993 Calcutta page 144 (Ratanlal Bansilal & Ors. v. Kishorilal Goenka & Ors.) in that regard. 8. On behalf of the appellant it was next contended that, the Respondent Nos. 1 to 4 failed to establish subletting. The issue of subletting was raised at trial. The judgments of the Trial Court as also of the Appeal Court were placed. It was submitted that, the ingredients of subletting were not established. Reliance was placed on All India Reporter 1987 Supreme Court page 2055 (Dipak Banerjee v. Smt. Lilabati Chakraborty). 9. On behalf of the Respondent Nos. 1 to 4 it was submitted that, the impugned judgment was of affirmation. The impugned judgment was detailed and with reasons. No perversity existed in the impugned judgment. The Respondent Nos. 1 to 4 established both subletting as well as reasonable requirement before the two Courts below. The findings returned by the two Courts below could not be faulted. Nothing was shown either in the course of hearing of the second appeal to dislodge such view. 10. I have considered the rival contentions of the parties, the material on record and the impugned judgment. The suit was for ejectment on the ground of subletting and reasonable requirement. Issues with regard thereto were framed. Before the Trial Court 9 issues were framed. Out of the 9 issues an issue with regard to subletting was framed as issue no. 5. The issue of reasonable requirement was framed as issue no. 6. Both the aforesaid two issues were considered by the Trial Court at great detail. On the issue of subletting the Trial Court found that the appellant inducted the Respondent No. 5 as sub-tenant. The Trial Court was satisfied that there was subletting by the appellant. On the issue of reasonable requirement the case of the Respondent Nos. 1 to 4 were that the shop room, being the subject matter of the suit, of which the appellant was a tenant, was required for the son of the Respondent No. 1. On consideration of the evidence led the Trial Court was of the view that the Respondent Nos. 1 to 4 established the need of the shop room for the business of the son of the Respondent No. 1. On consideration of the evidence led the Trial Court was of the view that the Respondent Nos. 1 to 4 established the need of the shop room for the business of the son of the Respondent No. 1. The Trail Court found that the building consisted of 5 rooms in the ground floor and 3 rooms on the first floor. All the 5 rooms on the ground floor were possessed by the appellant and other businessmen. The contention of the appellant that the Respondent Nos. 1 to 4 could make arrangement for the business of the son of the Respondent No. 1 in a room on the first floor was negated by the Trial Court on the ground that the requirement of the landlord, was much more important than that of the tenant. The Trial Court also found that, the Respondent Nos. 1 to 4 did not have sufficient accommodation elsewhere. The Trial Court was also satisfied that the Respondent Nos. 1 to 4 required the shop room for his son. The Trial Court found that, the appellant claimed to run a chemical business from the shop room which he failed to establish by evidence. The Respondent Nos. 1 to 4 were, therefore, found to establish that they required the suit property to carry on business thereat. 11. In the course of argument before me it was contended that, the Respondent Nos. 1 to 4 could easily make arrangements for the business in a room on the first floor. This issue was also considered by the Trial Court. The Trial Court was of the view that the requirement of the owners of the house was much more important than that of the tenant. 12. The Trial Court also found that, the Respondent Nos. 1 and 4 were brothers and that, they were joint owners of the property and hence it could not be said that, they had sufficient spaces in the property since in the near future they may reasonably require the suit property for their own use and occupation. It was also held that, there was no proof that the Respondent Nos. 1 to 4 had sufficient accommodation elsewhere. 13. The findings returned by the Trial Court were affirmed on appeal. On subletting the lower Appellate Court found that, there were materials on record to show that the appellant sublet the suit premises. It was also held that, there was no proof that the Respondent Nos. 1 to 4 had sufficient accommodation elsewhere. 13. The findings returned by the Trial Court were affirmed on appeal. On subletting the lower Appellate Court found that, there were materials on record to show that the appellant sublet the suit premises. On the issue of reasonable requirement the lower Appellate Court concurred with the finding returned by the Trial Court. 14. In Dipak Banerjee (supra) the Supreme Court was of the view that in order to prove sub-tenant two ingredients were required to be established. Firstly the sub-tenant was in exclusive right of possession and interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent. 15. It was claimed on behalf of the appellant that the Respondent Nos. 1 to 4 failed to establish subletting. These two ingredients according to the appellants were not satisfied. Issue of subletting was decided by the Trial Court. The Respondent No. 5 was the sub-tenant. The Trial Court found the appellant to be a heart patient and to have lost capacity to work. There was no person to run his business. It was found that the only source of income of the appellant was the shop room in question. The Respondent No. 5 as the Defendant No. 2 was found to be a Government employee working in different shifts. The Trial Court found that the son of the Respondent No. 5 and another person were connected with the appellant and his business. A power of attorney was found to be created to camouflage the transactions. The Trial Court held that the Respondent No. 5 was the sub-tenant and that, the appellant was trying to make wrongful gain by running his business through his friend’s son. In my view the ingredients spoken off in Dipak Banerjee (supra) were fulfilled. 16. In Ratanlal Bansilal (supra) the Full Bench of this Hon’ble Court held that, future requirement was a factor to reckon in determining the reasonable requirement of a landlord. It was held that, the future requirement was to be determined only with reference to some estimate projected by the prevailing conditions. There should be indication of such requirement available in the present state of things. No vague plea for future requirement could pass the judicial test. 17. It was held that, the future requirement was to be determined only with reference to some estimate projected by the prevailing conditions. There should be indication of such requirement available in the present state of things. No vague plea for future requirement could pass the judicial test. 17. In the instant case, the Courts below found the family of the Respondent Nos. 1 to 4 to be such large to justify the requirement of the shop room on the ground floor as reasonable. Such finding could not be faulted on the ground that the indication for future requirement was not available from the present state of affairs. 18. In Sri Ratan Chandra Nath (supra) the question for decision was whether the plaintiff proved his reasonable requirement of the disputed portion of the premises to be entitled to a decree for eviction. In the facts of the case it was found that, the plaintiff failed to prove the case of reasonable requirement. The fact scenario in the instant case was different. The plaintiff was found to have established his reasonable requirement by two Courts below. There was no perversity in such finding. 19. The judgments of the Courts below were detailed and with reasons. Nothing was shown to demonstrate that any of the findings of the Courts below were perverse or that the Courts below approached the issues raised on wrong appreciation of facts or law. 20. The appellants, therefore, could not sustain any of the questions of law framed at the time of admission of the second appeal by the Order dated March 30, 2004. Therefore, no interference was called for with the judgment and decree impugned. 21. I, therefore, find no merit in the second appeal. S.A. No. 290 of 2004 is, therefore, be dismissed without any order as to costs.