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2014 DIGILAW 688 (CAL)

Debshankar Kundu v. Jharna Chowdhury

2014-07-25

TAPAN KUMAR DUTT

body2014
JUDGMENT Tapan Kumar Dutt, J. This Court has heard the learned Advocates for the respective parties in both the appeals as both the appeals have been heard together. Facts of the case, briefly, are as follows : The plaintiffs-appellants filed a suit (Title Suit No. 282 of 1991) against one Kali Prasad Chowdhury (predecessor-in-interest of the present defendants/respondents) praying for a decree for khas possession of the suit premises by evicting the said defendant and for mesne profits. The said suit was ultimately placed before the learned 5th Civil Judge (Junior Division) at Alipore. In the said suit the plaintiffs-appellants prayed for eviction of the original defendant on several grounds and one of such grounds was that the plaintiffs reasonably require the suit premises for own use and occupation. It is not necessary to discuss the other grounds because the present second appeal has been heard only on the question as to whether the plaintiffs-appellants reasonably require the suit premises. The defendant in the said suit died during the pendency of the suit and the present defendants-respondents were substituted in place and stead of the said defendant. The defendants contested the said suit by filing written statement denying the material allegations made in the plaint and prayed for dismissal of the suit. The said suit came up for hearing when evidence was adduced on behalf of the parties and the learned Trial Court by judgment and decree dated 30th July, 2009 dismissed the said suit. Challenging such judgment and decree passed by the learned Trial Court, the plaintiffs-appellants filed Title Appeal No. 267 of 2009 which was placed before the learned 3rd Court of Civil Judge (Senior Division), Alipore and the learned First Appellate Court allowed the said Title Appeal in part and set aside the judgement and decree passed by the learned Trial Court. The learned First Appellate Court granted a decree for partial eviction in favour of the plaintiffsappellants and the defendants-respondents were directed to vacate and deliver one room out of the suit premises in favour of the plaintiffs. It may be noted here that the learned Trial Court had passed the said judgement and decree on 30th July, 2009 in Title Suit No. 304/282 of 1991 and the learned First Appellate Court passed a judgement and decree on 8th September, 2010 in Title Appeal No. 267 of 2009. It may be noted here that the learned Trial Court had passed the said judgement and decree on 30th July, 2009 in Title Suit No. 304/282 of 1991 and the learned First Appellate Court passed a judgement and decree on 8th September, 2010 in Title Appeal No. 267 of 2009. Challenging the said judgement and decree passed by the learned First Appellate Court, the plaintiffs preferred the Second Appeal being S.A. 88 of 2011 and the defendants preferred S.A.T. 47 of 2011. The said S.A. 88 of 2011 (S.A.T. 22 of 2011) was admitted by an order dated 13th April, 2011 passed by a learned Division Bench of this Court on the following substantial questions of law : “I) Whether the learned Judge in the lower appellate court substantially erred in law in squeezing requirements of the landlord by not allowing a drawing room, a dining room, a room for occasional visit of the married sister and a thakurghar? II) Whether the learned Judge in the lower appellate Court substantially erred in law in decreeing the suit partially without adhering to the basis for partial eviction inasmuch as the learned judge in the lower appellate court granted a decree in relation to one room in a flat without considering that it might not be convenient for the landlord to live together with a tenant without any arrangements for securing privacy and secrecy?” The aforesaid S.A.T. 47 of 2011 filed by the defendants were admitted by an order dated 11.2.2014 by a learned Division Bench of this Court on the grounds on which the other appeal was admitted and also on the following additional grounds : “I. For that the learned Appellate Court erred in partially reversing the finding of the Trial Court that there is no dearth of accommodation of the plaintiffs, without taking into consideration that the Advocate Commissioners’ reports had not used a single word that a single room was kept under lock and key by the plaintiff no. 1. II. For that the learned Appellate Court ought not to have partially reversed the finding of the Trial Court without coming to a definite finding after considering the evidence on record that the room allegedly under the possession of the plaintiff no. 1 was under lock and key as claimed by the plaintiffs. III. 1. II. For that the learned Appellate Court ought not to have partially reversed the finding of the Trial Court without coming to a definite finding after considering the evidence on record that the room allegedly under the possession of the plaintiff no. 1 was under lock and key as claimed by the plaintiffs. III. For that the learned Appellate Court ought not have partially reversed the finding of the Trial Court after coming to a finding that since the plaintiff witness no. 2/plaintiff no. 1 is one of the joint owner of the suit premises he has every right to keep the room under lock and key, especially when he has specifically admitted in one of his pleading that he ceased to have any requirement in the suit house or suit premises, having acquired a separate flat of his own at Salt Lake and has since been residing there with his family. IV. For that he learned Appellate Court below erred in holding that there is any reasonable requirement of the plaintiffs in the instant case even after existence of the present residential accommodation. V. For that the Learned Judge erred in law in overlooking the evidence as adduced by the parties and Commissioner report and passed an order of partial eviction which is total perverse. VI. For that the learned Appellate Court erred in law in not appreciating the evidence and thereby passed an order of partial eviction which is contrary to the evidence.” The said two second appeals have been heard together and the learned Advocates for the respective parties have made their respective submissions and this Court has also considered the relevant materials on record. At the very outset it may be noted that the learned Advocates for the respective parties submitted that the present second appeals are only concerned with the question as to whether the plaintiffs reasonably require the suit premises and as to whether or not the decree for partial eviction granted by the learned First Appellate Court is sustainable. According to the learned Advocate for the plaintiffs-appellants, the learned Courts below should have granted full decree in favour of the plaintiffs i.e. defendants should have been directed to vacate the entire suit premises as the plaintiffs are in need of the entire suit premises. According to the learned Advocate for the plaintiffs-appellants, the learned Courts below should have granted full decree in favour of the plaintiffs i.e. defendants should have been directed to vacate the entire suit premises as the plaintiffs are in need of the entire suit premises. The learned Advocate for the defendants-respondents, however, submitted to the effect that the learned First Appellate Court should not have even granted a partial eviction decree in favour of the plaintiffs and the suit for eviction should have been dismissed as done by the learned Trial Court. It will appear from the pleadings and evidence on record that there is no dispute with regard to the fact that the plaintiffs are two bothers who had purchased the suit holding which is a two storied building and the first floor of such building is the suit premises where the defendants reside. The plaintiffs have their possession and/or occupation in the ground floor of the said holding. There is also no dispute with regard to the fact that the structural design of the ground floor construction and the first floor construction are more or less similar and each floor comprises of three rooms with kitchen, bath and privy. There is also no dispute with regard to the fact that the plaintiff no. 2 is an Advocate and he lives in the suit holding with his wife. It also appears from the records that the plaintiff no. 1 is at present residing at Salt Lake with his family. It is also not disputed that the original tenant in the suit premises was the predecessor-in-interest of the present defendants against whom the suit was filed originally. The learned Trial Court was of the view that the requirement of the plaintiff no. 2 has to be considered only and not that of the plaintiff no. 1. The learned Trial Court believed the fact that the plaintiff no. 2 is an Advocate. The learned Trial Court also took note of the fact that out of the three rooms on the ground floor it is the case of the plaintiffs that the plaintiff no. 1 has kept one room under lock and key and under his occupation. It appears from the records that a number of Commissioners’ reports were filed in the said suit as local inspections were held at different points of time. 1 has kept one room under lock and key and under his occupation. It appears from the records that a number of Commissioners’ reports were filed in the said suit as local inspections were held at different points of time. The learned Trial Court in its judgement came to a finding that after going through all the evidences he has to hold that the suit premises is required for the plaintiff no. 2 only. The learned Trial Court found that there is not a single room in possession of the plaintiffs which can be described as the chamber of the plaintiff no. 2 and the two rooms under plaintiff no. 2’s occupation are used as bed rooms. The learned Trial Court further found that there is make-shift arrangement for the plaintiffs’ deity after altering one of the windows to an Almirah. The learned Trial Court also found that the plaintiffs could not prove that the plaintiff no. 2 has any client and ultimately the learned Trial Court was of the view that the plaintiff no. 2 has failed to prove that he is a practising Advocate. The learned Trial Court dismissed the suit holding that the plaintiffs have failed to prove their case of reasonable requirement of the suit premises. The learned First Appellate Court granted the partial eviction, as aforesaid, after holding that even if the plaintiff no. 2 has failed to prove that he has any law books and/or chamber in the suit holding, it cannot be ipso facto held that he is a non-practising Advocate. The learned First Appellate Court was of the opinion that the observations made by the learned Trial Court that many lawyers are mere enrolled but they do not practise is uncalled for. The learned First Appellate Court took into consideration the various Commissioners’ reports and took into consideration the evidence of P.W. 1 where he said that he had pointed out the law books during the earlier commissions but it appears to have been omitted in the Commissioners’ reports. However, the learned First Appellate Court was of the view that the requirement of the plaintiffs is a bona fide and a reasonable one and the said Court has no hesitation to hold that the plaintiff no. 2 is a practising Advocate. Thus, the learned First Appellate Court granted a decree for partial eviction as already noted above. However, the learned First Appellate Court was of the view that the requirement of the plaintiffs is a bona fide and a reasonable one and the said Court has no hesitation to hold that the plaintiff no. 2 is a practising Advocate. Thus, the learned First Appellate Court granted a decree for partial eviction as already noted above. It may be noted here that the learned First Appellate Court also recorded that a covered passage is being used as a dining space and the plaintiff no. 2 is using one bed room as drawing-cum-guest roomcum- place of worship (Thakur Ghar). The learned First Appellate Court was of the view that the plaintiff no. 2 requires one room for using it as a chamber for the betterment of his profession as well as his livelihood. The learned Advocate appearing on behalf of the plaintiffs-appellants in S.A. 88 of 2011 submitted that the requirements of the plaintiffs are indicated in the plaintiffs’ pleadings. The said learned Advocate submitted that it will appear from the records that the plaintiff no. 1 was compelled to leave the suit holding and shift to Salt Lake for the purpose of accommodating his family. He submitted that there is no dispute with regard to the fact that the suit holding was purchased by the two brothers i.e. the plaintiffs, and since it was not known when litigations would come to an end or when the plaintiffs would be able to recover the possession of the suit premises, the plaintiff no. 1 had no option but to make his own arrangements at Salt Lake keeping one room under his occupation in the suit holding. The said learned Advocate for the plaintiffs-appellants submitted that the plaintiff no. 2 is a practising Advocate and he definitely requires the rooms mentioned in the plaint for his own purpose. Even though the said learned Advocate had also attempted to submit that the plaintiff no. 1 also requires the suit premises but it appears from the amended plaint that the requirement of the plaintiff no. 1 has been given a go-by. It would be better to note down the requirement pleaded in the amended plaint. The plaintiffs have stated that the following are the requirements of the plaintiffs; (i) one bed room for plaintiff no. 2 and his wife, (ii) one lawyer’s chamber for the plaintiff no. 1 has been given a go-by. It would be better to note down the requirement pleaded in the amended plaint. The plaintiffs have stated that the following are the requirements of the plaintiffs; (i) one bed room for plaintiff no. 2 and his wife, (ii) one lawyer’s chamber for the plaintiff no. 2, (iii) one bed room for one nephew, (iv) one drawing room, (v) one Thakurghar, (vi) one dining room, (vii) one room for the married sisters and for their family during their occasional visit to the suit house at Kolkata, (viii) store room and (ix) kitchen. The said learned Advocate submitted that the view taken by the learned Trial Court is absolutely wrong and all the requirements pleaded by the plaintiffs are absolutely genuine and bona fide and since the plaintiff no. 2 is at present in occupation of only two bed rooms (as described by the learned Commissioners), one kitchen, bath and privy, it is absolutely imperative that the defendants should vacate the suit property. According to the said learned Advocate, the requirements of the plaintiffs cannot be met until and unless the entire suit premises is vacated by the defendants. The said learned Advocate submitted that the learned First Appellate Court failed to take into consideration the requirement of the plaintiff no.2, apart from the requirement of a chamber in the suit holding. The said learned Advocate submitted that the Commissioners’ reports would clearly indicate, as found by the learned First Appellate Court also, that the plaintiffs particularly, the plaintiff no. 2 who is now regularly residing in the suit holding does not have a separate drawing room, Thakurghar, dining room, store room, another room for accommodating the married sisters and one room for accommodating one nephew. According to the said learned Advocate, the learned First Appellate Court should have granted a full decree for eviction in respect of the entire suit premises. The said learned Advocate also submitted that the plaintiff no. 2 was enrolled in the year l982 and even after putting in so many years of practice, the said learned Advocate has to continue without a chamber. The said learned Advocate also submitted that the plaintiff no. 2 was enrolled in the year l982 and even after putting in so many years of practice, the said learned Advocate has to continue without a chamber. The said learned Advocate also submitted that the learned First Appellate Court failed to consider the fact that it would be very much inconvenient for the landlords-plaintiffs to reside in one of the rooms which is now comprised in the suit premises on the same floor as that of the defendants. The said learned Advocate submitted that the plaintiffs being the landlords of the suit holding have every right to live comfortably and the plaintiffs cannot be squeezed into any accommodation only to allow the defendants to continue with their occupation. The said learned Advocate cited a decision reported at 2001 (8) SCC 561 (Siddalingamma & Anr. –vs- Mamtha Shenoy) and referred to paragraph – 9 of the said reports wherein it has been observed by the Hon’ble Court that if the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself or dwell in lesser premises so as to protect the tenant’s continued occupation in tenancy premises. The said learned Advocate cited a decision reported at 2001 (3) CHN 244 (Jagat Bandhu Batabayal –vs- Jiban Krishna Roy) and referred to paragraph – 26 of the said reports wherein it has been observed by the Hon’ble Court that in today’s world, one cannot insist the landlord that the landlord is entitled to one study-cum drawing room only where television will be running and the children will attempt to study in an extremely competitive world. Their Lordships were also pleased to observe that to maintain healthy relation with the relatives, inlaws and friends, one needs a guest room and the landlord is entitled to a comfortable living though may not be a luxurious one. The said learned Advocate also cited an unreported decision of the Hon’ble Supreme Court of India and it appears that the said decision is dated 9th May, 2013 in Civil Appeal No. 4539 of 2013. The said learned Advocate also cited an unreported decision of the Hon’ble Supreme Court of India and it appears that the said decision is dated 9th May, 2013 in Civil Appeal No. 4539 of 2013. The said learned Advocate has referred to the said decision wherein it has been observed inter alia that “it would be too harsh if the flat which consists of three rooms is divided and a decree in respect of the portion of the flat is passed which will result in inconvenience for both the parties”. The said learned Advocate submitted that it would be very much inconvenient for the plaintiffs to live along side the defendants on the first floor of the suit holding and, thus, the said learned Advocate submitted that the learned First Appellate Court ought to have decreed the suit in full. The said learned Advocate also cited a decision reported at AIR 1999 Supreme Court 2507 (Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta) and referred to paragraph – 13 of the said reports wherein it has been observed, inter alia, that the Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself – whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest and if the answer be in the positive, the need is bona fide. It may also be recorded here that the Hon’ble Court was also pleased to observe in the said paragraph that the failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. It may also be noted that in the very same paragraph the Hon’ble Supreme Court was also pleased to observe that in Law Dictionary, Mozley and Whitley define bona fide to mean good faith, without fraud or deceit and the requirement should not be mere desire. It may also be noted that in the very same paragraph the Hon’ble Supreme Court was also pleased to observe that in Law Dictionary, Mozley and Whitley define bona fide to mean good faith, without fraud or deceit and the requirement should not be mere desire. The said learned Advocate for the plaintiffs-appellants also cited a decision reported at 1996(5) SCC 353 (Prativa Devi –vs- T. V. Krishnan) in support of his contention that the landlord is the best judge of his residential requirement. The said learned Advocate for the plaintiffs-appellant by referring to the various Commissioners’ reports, the pleadings and the evidence of the parties submitted that it would be absolutely clear that unless and until the plaintiffs recovered the possession of the entire suit premises, the plaintiffs’ requirement cannot be met and it would not be sufficient to grant only a decree for partial eviction as done by the learned First Appellate Court. The learned Advocate appearing on behalf of the defendants-appellants in S.A.T. 47 of 2011 drew the attention of this Court to paragraph – 11 of the amended plaint and submitted that the plaintiffs’ requirement has been pleaded in the said paragraph and it would appear from the said paragraph that the plaintiff no. 1 has ceased to have any requirement in the suit premises as he has already shifted to his Salt Lake premises. According to the said learned Advocate, the requirement of the plaintiff no. 2 should only be considered and nothing more than that. The said learned Advocate referred to the application for amendment of the plaint filed by the plaintiffs and it would appear from the schedule of the said application that in the proposed amendment the plaintiffs intended to plead that due to acute shortage of accommodation in the suit house wherein the plaintiff no. 1 used to reside in only one room on the ground floor with his wife and two daughters with immense hardship has since shifted to a separate flat at Salt Lake but has got one room under his lock and key. The said learned Advocate emphasized on the fact that the requirement of the plaintiff no. 1 has ceased in terms of the said application for amendment of the plaint itself. The said learned Advocate submitted that even during the commission work the plaintiff no. The said learned Advocate emphasized on the fact that the requirement of the plaintiff no. 1 has ceased in terms of the said application for amendment of the plaint itself. The said learned Advocate submitted that even during the commission work the plaintiff no. 1 was not present and it was not found that one room was kept under lock and key. The said learned Advocate also submitted that the married sisters of the plaintiffs are living in their respective matrimonial homes and the nephews of the plaintiffs were also not residing with the plaintiffs and, therefore, the requirement of one room for such married sisters and the nephews are also baseless. The said learned Advocate further submitted that the said married sisters are not the members of the plaintiffs’ family and, therefore, the requirement of the married sisters cannot be taken into consideration. The said learned Advocate submitted that excepting oral submissions the plaintiffs could not prove by any documentary evidence that either their married sisters or their nephews used to stay in the suit premises. The said learned Advocate referred to the three Commissioners’ reports - one is of the year 1997, the second one is of the year 2005 and the third one is of the year 2007. The said learned Advocate submitted that the Commissioners’ reports of the year 1997 and 2005 do not show that there were any law books in the portion occupied by the plaintiffs but in the Commissioners’ report of the year 2007, suddenly we find, appearance of 30 law books in the Commissioner’s report. Thus, the said learned Advocate submitted, that is was an after-thought and mala fide act on the part of the plaintiffs. The said learned Advocate submitted that it was only after the defendants gave their evidence in the year 2006 that the plaintiffs came up with a fresh application for local inspection and got an inspection done in the year 2007 and in the meantime the plaintiff no. 2 had procured those law books for the purpose of strengthening his case. The said learned Advocate also submitted that the Commissioners’ reports would indicate that the plaintiff no. 2 has a place of worship in the suit holding where idols of certain deities are kept for worshiping purpose and there is no need of any “Thakur Ghar” as such. 2 had procured those law books for the purpose of strengthening his case. The said learned Advocate also submitted that the Commissioners’ reports would indicate that the plaintiff no. 2 has a place of worship in the suit holding where idols of certain deities are kept for worshiping purpose and there is no need of any “Thakur Ghar” as such. The said learned Advocate further submitted that in respect of the evidence given by the defendants with regard to the law books and the said “Thakur Ghar”, the plaintiffs did not cross-examine the defendants on such point and, therefore, the case of the defendants that the plaintiffs do not require any “Thakur Ghar” has to be accepted and the case of the defendants that the law books were subsequently brought into the suit holding as an afterthought and with mala fide motive has also to be accepted. The said learned Advocate submitted that the attempt of the plaintiffs to bring those law books subsequently in the portion occupied by them was only attempt to prove a certain allegation which is not true. The said learned Advocate submitted that the Commissioners’ reports would indicate that particularly the plaintiff no. 2 does have space for dining and space to be used as drawing room and also space where the plaintiff no. 2 can worship. The said learned also points out that the plaintiff no. 2 has a store room, a kitchen and also a bath and privy and, therefore, the plaintiffs do not require any part of the suit premises at all. The said learned Advocate also submitted that before granting a decree for partial eviction, the learned First Appellate Court should have taken the consent of the defendants but according to the said learned Advocate, the learned First Appellate Court should not have granted even the partial eviction decree as the plaintiffs do not require at all any part of the suit premises. The said learned Advocate cited a decision reported at (2003) 2 SCC 355 ( B. L. Sreedhar & Ors. –vs- K. M. Munireddy & Ors. The said learned Advocate cited a decision reported at (2003) 2 SCC 355 ( B. L. Sreedhar & Ors. –vs- K. M. Munireddy & Ors. ) and referred to paragraph – 13 of the said reports wherein it has been observed, inter alia, that “estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Indian Evidence Act, 1872 which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing”. It appears to this Court that the requirement of the plaintiff no. 1 has not been pleaded in the amended plaint and thus this Court cannot permit the plaintiffs to canvass the requirement of the plaintiff no. 1 in the suit premises. The said learned Advocate also cited a decision reported at AIR 1961 Calcutta 359 ( A. E. G. Carapiet –vs- A. Y. Derderian ) and referred to paragraph – 10 of the said reports in support of his contention that if the plaintiffs have failed to cross-examine the defendants on certain facts, it should be presumed that the said facts are true. This decision was cited by the said learned Advocate while arguing that the evidence of the defendants to the effect that the plaintiffs do not require any “Thakur Ghar” and the plaintiffs with an ulterior motive have subsequently brought law books into existence were not made subject to cross-examination by the plaintiffs. The said learned Advocate also cited a decision reported at AIR 2002 SC 3652 (Sarwan Singh –vs- State of Punjab) and referred to paragraph – 8 of the said reports wherein it has been observed, inter alia, that it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. The said learned Advocate also cited a decision reported at AIR 1975 SC 926 (Bachan Singh & Anr. –vs- Prithvi Singh & Ors.) for the same purpose for which the decision reported at AIR 1961 Calcutta 359 was cited. The said learned Advocate also cited a decision reported at AIR 1975 SC 926 (Bachan Singh & Anr. –vs- Prithvi Singh & Ors.) for the same purpose for which the decision reported at AIR 1961 Calcutta 359 was cited. The said learned Advocate also cited a decision reported at 1989(2) CLJ 170 (Hiralal Roy –vs- Sm. Arati Chatterjee & Ors.) and referred to paragraph – 4 of the said reports in support of his contention that the requirement of the landlord must be genuine and bona fide and not fanciful or a ruse to get a decree for eviction. There can be no dispute with regard to the propositions of law laid down by the said decisions but the question is how far such decisions can give any aid of the defendants in the said suit for eviction. The clear fact that emerges from the submissions made by the learned Advocates for the respective parties and the materials on record is that the plaintiff no. 1’s requirement need not be considered in the present appeals and it is the plaintiff no. 2’s requirement which has only to be considered as would appear from the amended plaint itself. There is no dispute that there are three rooms which have been described as bedrooms by the learned Commissioner on the ground floor of the suit holding. There is also no dispute that there is one kitchen, bath and privy on the ground floor. There is also no dispute with regard to the fact that one room, out of the said three rooms, is being used as a bed room and also for the purposes of worshiping of deities i.e. the “Thakurghar”, drawing room and dining purposes. There is no dispute with regard to the fact that the plaintiff no. 2 is an Advocate. It also appears from the evidence on records that the plaintiff no. 2 is an Advocate since 1982. It appears from the records that as noted by the learned Commissioners in their respective reports that the plaintiff no. 2 is in possession of certain things like colour television, telephone, fans, lights, gas oven, gas cylinder, bathroom with shower, basins, writing table, dressing table, sofa-cum-bed, scooter, two refrigerators etc. The D.W. 1 has also stated in his evidence that the plaintiff no. 2 has a car. Thus, it will appear from the records that the plaintiff no. 2 is in possession of certain things like colour television, telephone, fans, lights, gas oven, gas cylinder, bathroom with shower, basins, writing table, dressing table, sofa-cum-bed, scooter, two refrigerators etc. The D.W. 1 has also stated in his evidence that the plaintiff no. 2 has a car. Thus, it will appear from the records that the plaintiff no. 2 is accustomed to a decent living. The learned Advocate for the defendantsappellants in S.A.T. 47 of 2011 has laid much emphasis on the point that the plaintiff no. 1 was not present during commission work and one of the rooms alleged to have been occupied by the plaintiff no. 1 was not under lock and key. It is not understood as to how the fact that one of the rooms was not found under lock and key would assume much importance - after all, the plaintiff no. 1 happens to be the brother of the plaintiff no. 2 and even if he had delivered the key to his lock to his brother i.e. the plaintiff no. 2 for enabling the learned Commissioner to hold the commission work it does not necessarily mean that the plaintiff no. 1 is not in possession of one room in the said property. The question whether the plaintiff no. 1 was present during the commission work or not is also immaterial. It was sufficient if one of the plaintiffs was present during the commission work for lending necessary assistance to his learned Advocate and/or the learned Commissioner. Similar is the case with the defendants where presence of one of the defendants during the commission work would have been sufficient. In the application for amendment of the plaint, the plaintiffs had clearly stated that owing to compelling circumstances the plaintiff no. 1 had to shift to the Salt Lake property. The plaintiff no. 1 as P.W. 2 stated in his evidence that he shifted to the Salt Lake premises in the year 2000 and the suit for eviction was filed in the year 1991. The question is after a lapse of about 9 years from the filing of the suit if one of the plaintiffs asked himself as to when the litigation would come to an end, can he be faulted if he makes separate arrangements for living with his family. The question is after a lapse of about 9 years from the filing of the suit if one of the plaintiffs asked himself as to when the litigation would come to an end, can he be faulted if he makes separate arrangements for living with his family. The harsh reality is that the time does not stop and a person has to grow in age if he is alive. It would appear from the records that the plaintiff no. 1 has two daughters and they are also growing up. It is clear from the records that both the brothers, that is the plaintiffs, are the owners of the entire suit holding. The question is: is it unreasonable if one of the co-owners decide to keep one room in his possession in the property in which he has a share. If the relation between the two brothers remained to be good, it does not necessarily mean that the room under occupation of the plaintiff no. 1 has to be kept under lock and key. Thus, this Court does not find any substance in such point taken by the learned Advocate for the appellants in S.A.T. 47 of 2011. The learned First Appellate Court has found that it is only expected that the plaintiff no. 1 i.e. the P.W. 2 being one of the joint owners of the suit premises can keep one room under his control and possession wherein he used to live with his family prior to shifting to his new flat and he has got every right to hold the said room. It thus appears that it is a concluded finding of fact that the plaintiff no. 1 has in his occupation one room in the suit holding. It would be absurd to suggest that the plaintiff no. 1 should vacate the said room in favour of the plaintiff no. 2 in spite of the fact that he is also a co-sharer in respect of the suit holding. 1 has in his occupation one room in the suit holding. It would be absurd to suggest that the plaintiff no. 1 should vacate the said room in favour of the plaintiff no. 2 in spite of the fact that he is also a co-sharer in respect of the suit holding. The learned Advocate for the defendants-appellants in S.A.T. 47 of 2011 submitted that the married sisters are not the family members and the nephews are also not the family members of the plaintiffs and no room need be allotted in favour of such married sisters and/or the nephews, particularly, when the plaintiffs have failed to prove that such married sisters and/or the nephews used to live in the suit holding and/or visit the suit holding. Even if it is assumed that the said married sisters are not the family members of the plaintiffs in the strict sense of the word ‘family’, it cannot be denied that such married sisters and/or nephews can visit the premises where the plaintiffs live, as guests. The learned First Appellate Court has come to a finding that the plaintiff no. 2 is a practising Advocate and/or professional person and he has got every right to build his carrier and develop his livelihood. This Court is of the view that it will not be very unusual for the plaintiff no. 2 to entertain guests whenever the occasion requires. The married sisters of the plaintiffs can also visit the plaintiffs and may also express their desire to stay for a few days with the plaintiffs even if not as family members of the plaintiffs but as guests of the plaintiffs. So is the case with the nephews. Even if the plaintiffs have not proved that the married sisters used to stay with them in the suit holding, there is nothing on record to show that the relation the plaintiffs have with their married sisters are in any way strained and the married sisters are not at all inclined to visit the premises of the plaintiffs. If the plaintiffs can entertain the guests in their premises, the married sisters do have every right of entry into the premises even as guests. It is not absolutely necessary that they have to be the family members of the plaintiffs. For such purpose the plaintiffs do require a guest room. If the plaintiffs can entertain the guests in their premises, the married sisters do have every right of entry into the premises even as guests. It is not absolutely necessary that they have to be the family members of the plaintiffs. For such purpose the plaintiffs do require a guest room. Even though in paragraph – 11 of the plaint, the plaintiffs have not used the word ‘guest room’ but they have pleaded that one room is required for the married sisters and one room for the nephew. Thus, on this ground the plaintiffs have pleaded that they required two rooms. This Court is of the view that if only one room is allotted for the purpose of to be used as a guest room, it would be sufficient for the plaintiffs. In such guest room the plaintiff no. 2 can allow his guests and/or his married sisters and/or nephew to stay for temporary periods if they so like. The learned Advocate appearing on behalf of the defendants-appellants in S.A.T. 47 of 2011 laid much emphasis on the point that there was no crossexamination of the defence witness by the plaintiffs with regard to the stand taken by the defendants that - the law books were procured subsequently as an after thought and with a mala fide motive and there was no cross-examination with regard to the case of the defendants that the plaintiffs do not require the “Thakurghar”. It appears from the cross-examination of one of the defence witnesses that he was asked a question about the said “Thakurghar” and he said that on the south west corner of the portion occupied by the plaintiffs, the plaintiff no. 2 uses the said space for dining-cum-Thakurghar. So it appears that on behalf of the plaintiffs some questions were asked with regard to the said Thakurghar and its location. With regard to the law books, whether such law books were brought to the suit holding subsequently, after the earlier commissions were held or not, is not a very material point as this Court is of the view that the absence of law books in the suit holding where the plaintiff no. 2 resides does not necessarily make him a non-practising Advocate. It is the case of the plaintiffs that the plaintiff no. 2 requires the suit premises for his chamber so that he may practise his profession of law. 2 resides does not necessarily make him a non-practising Advocate. It is the case of the plaintiffs that the plaintiff no. 2 requires the suit premises for his chamber so that he may practise his profession of law. The plaintiffs have filed the suit, inter alia, on the ground of reasonable requirement and it has been pleaded that the plaintiff no. 2 requires one room for his chamber. Obviously in the absence of such chamber the question would arise where would the plaintiff no. 2 keep his law books. Even if it is assumed for the sake of argument that the law books which were shown to the learned Commissioner in the year 2007 were procured subsequently it does not necessarily mean that the plaintiff no. 2 has not been practising up till that date. Even the absence of the chamber cannot necessarily mean that the plaintiff no. 2 has not been practising law. It would be an absurd proposition to suggest that in the absence of such chamber and law books in the suit holding, it has to be presumed that the plaintiff no. 2 has never practised law. The very purpose of filing the suit was to get a room for chamber where the plaintiff no. 2 can house his books. It may be that the books were not there in the suit holding when the earlier commissions were held but it does not disprove the fact that the plaintiff no. 2 is a practising Advocate. The last court of fact being the First Appellate Court found that the plaintiff no. 2 is a practising Advocate. The said learned Court also found that one of the rooms in the suit premises is required for the plaintiff no. 2 for the purpose of his chamber and thus granted a decree for partial eviction. The evidence will have to be read as a whole. The evidence on record shows that the plaintiff No. 2 did enroll himself as an Advocate and it has been his consistent case that he wants one room for his chamber. There is nothing on record to show that the plaintiff no. 2 has any other profession and/or avocation to pursue. The things noted down by the learned Commissioner in the Commissioner’s report indicates that the plaintiff no. 2 is accustomed to a decent living. There is nothing on record to show that the plaintiff no. 2 has any other profession and/or avocation to pursue. The things noted down by the learned Commissioner in the Commissioner’s report indicates that the plaintiff no. 2 is accustomed to a decent living. Thus, even if no question was put to one of the defendants in crossexamination with regard to the procurement of law books subsequently, it does not obliterate the other evidence on record. Thus, this Court is of the view that the decision cited by the learned Advocate for the defendants/appellants in S.A.T. 47 of 2001 cannot be of any assistance to the appellants in the said appeal. Thus, it is clear that the plaintiff no. 2 requires one room for his chamber purpose. The Commissioner’s report clearly indicates that the plaintiff no. 2 is using one room which has been described to be a bedroom by the learned Commissioner also for the purpose of worshiping his deities, dining purpose and drawing room purpose. This is what has been deprecated in the decision reported in (2001) 8 S.C.C. 561 , that is, the landlords should not be squeezed into accommodation only to allow the tenant to continue with his occupation. The relevant portion of paragraph 9 of the said reports has already been noted above. The learned First Appellate Court should have taken into consideration such aspect of the matter while deciding the title appeal. The plaintiff no. 2 has already put in about 33 years of practice as a lawyer and a requirement for separate dining room, separate Thakurghar and separate drawing room cannot be denied. Out of three living rooms on the ground floor, one is occupied by the plaintiff no. 1. The other rooms are available with the plaintiff no. 2. One of such rooms will have to be used for bedroom by the plaintiff no. 2 and his wife, and the other room may be used by the plaintiff no. 2 either for the purposes of drawing room or dining room or Thakurghar as the plaintiff no. 2 would prefer according to his convenience. Thus, the plaintiff no. 2 requires seven rooms on the whole. One room for bedroom purpose, one room for plaintiff no. 2’s chamber, one guest room, one drawing room, one dining room, one Thakurghar and also one store room. Out of such required seven rooms, the plaintiff no. 2 would prefer according to his convenience. Thus, the plaintiff no. 2 requires seven rooms on the whole. One room for bedroom purpose, one room for plaintiff no. 2’s chamber, one guest room, one drawing room, one dining room, one Thakurghar and also one store room. Out of such required seven rooms, the plaintiff no. 2 has at present two rooms as it appears from the Commissioner’s report. The plaintiff no.2 has already a kitchen. However, the store room pointed out by the learned Advocate for the appellants in S.A.T. 47 of 2011 has been shown in the Commissioner’s report which contains a sketch plan and it has been shown to be a space with asbestos roof. It may be noted from the said sketch plan that it is only a space with asbestos roof but the rest portion is open to the sky and it has been shown to be a passage. This can hardly be called a storeroom. The said learned Advocate for such purpose referred to page 147 of the informal paper book filed by the learned Advocate for the appellants in S.A.T. 47 of 2011. Thus, the plaintiffs’ requirement for storeroom shall remain. Having considered the materials on record and the submissions made by the learned Advocates for the respective parties, this Court is of the view that the learned First Appellate Court instead of granting a decree for partial eviction only should have taken into consideration the other requirements of the plaintiff no. 2 and should have granted a decree for eviction in respect of the entire suit premises considering the number of rooms required by the plaintiff no. 2 and the present occupation of the plaintiff no. 2 in the suit holding. It is quite reasonable for the plaintiff no. 2 who happens to be in the profession of law for the last 33 years to require one separate room for dining purposes, one separate room for drawing room, one separate room as Thakurghar and one store room and one separate room for guest and also one bed room for the plaintiff no. 2 and his wife and a room for plaintiff no. 2 to be used as his chamber. In view of the discussions made above, the judgments and decrees passed by the learned Courts below are set aside. 2 and his wife and a room for plaintiff no. 2 to be used as his chamber. In view of the discussions made above, the judgments and decrees passed by the learned Courts below are set aside. The S.A. 88 of 2011 which has been filed by the plaintiffs/appellants is allowed and the S.A.T. 47 of 2011 which has been filed by the defendants/appellants is dismissed and it is hereby decreed that the plaintiffs do get a decree for eviction against the defendants in respect of the suit premises and the defendants are directed to vacate and deliver up vacant and khas possession of the suit premises in favour of the plaintiffs within 31st December, 2014. If the defendants fail to vacate the suit premises within the time stipulated above, the plaintiffs will be at liberty to put the decree into execution in accordance with law. There will be, however, no order as to costs. Let the lower court records be sent back to the learned Court concerned.