Ajit Kumar Majumdar vs Basudeb Roy

A.M. Bhattacharjee, J.—This second appeal must be dismissed and for more reasons than one, as stated hereunder. The respondent-landlord has claimed eviction of his tenant, the appellant, on the ground that the respondent reasonably requires the same for his own further accommodation as well as for the accommodation of his brother and the latter''s wife and daughter. The concurrent finding of the two Courts below is that the brother is a member of the landlord''s family and that the entire house consisting of the portion in the occupation of the landlord and that in the occupation of the tenant "would be", to quote from the first appellate judgment, "the barest minimum which -the plaintiff requires" for himself and his brother and the other mothers of the family. Both the findings, namely, the brother, his wife and daughter are members of the plaintiff''s family and also the extent of requirement are findings of fact and would accordingly be unassailable in Second Appeal under the provisions of Section 100 of the Code of Civil Procedure, even as it stood before the Amendment of 1976, unless the finding are vitiated by erroneous application of law, or are based on no evidence, or are such as could not be arrived at by any reasonable person From the manner in and the advertence with which the Courts below have considered the materials on record, namely, the two brothers residing together in joint mess for long length of time, the Ration Cards of the brother, his wife and daughter showing the landlord as the head of the family, the number of members and the rooms and space available, the report of the Commission and all that, we have no reason to hold that the findings suffer from any such infirmity and the findings therefore must remain undisturbed. As has been pointed out by a Division Bench of this Court in Deokinandan Boobna v. Harasondar sarkar (1988 1 Cal High Court Notes 130 ) relying on the decisions of the Supreme Court in Mattulal Vs. Radhe Lal, and Sarvate T.B.v. Nemichand ( 1966 MP LJ 26), a finding as to the reasonable requirement of the tenanted premises would be open to challenge in Second Appeal (under the provisions of Section 100 of the CPC as it stood before the Amendment of 1976) only when the same is based on no evidence or is otherwise inconceivable or manifests an erroneous application of law. In Deokinandan Boobna (supra), the Division Bench, speaking through one of us, has also held that even such challenges may no longer be available to the full extent in Second Appeal as a result of the rigorous circumscription of Section 100 of the Code by the Amendment of 1976. But since in our view, this Second Appeal must fail even according to the tests to be applied under the pre-Amendment law, we may not agar advert to that question.

It has, however, been urged that an adult brother, not economically dependent on the landlord and suitably employed on his own and having his own wife and child, cannot in law be regarded to be a member of the family of his brother even they reside together in commonality. We must repel this contention both as illegal and also irrelevant in the context of the relevant provisions of Section 13(1)(ff).

Clause (ff) has made landlord''s reasonable requirement for "his own occupation" a ground of ejectment and not, as in some congate statutes operating in other States, requirement for the members of his family. whether a landlord can be regarded in law to reasonably require the tenanted premises for his own occupation, when the same is in fact required for the occupation of another, would not, therefore, necessarily depend on the fact whether that other is a member of the landlord''s family in the strict sense. Even if that other is not a member of the family of the landlord in the strict sense, still then the requirement for such a one can never the less be a requirement of the landlord "for his own occupation", if the landlord ran reasonably require that other to stay with him, membership of the landlord''s family is not the sole or the decisive test and may not always be a relevant test under the provisions of Section 13(1)(ff). If a landlord, due to his old age. sickness, or other infirmity or even otherwise, does require another to reside with him for necessary help and support whether physical, psychological, financial or otherwise, requirement for the occupation of that other would amount to retirement by the landlord for his own occupation. A medical, attendant may not be a member of the family of the landlord; but if a landlord or his wife or child suffers from such-chronic and. serious ailment as to require constant medical care, a requirement for such an attendant would amount to reqirement of landlord for his own occupation. There are high lexical authorities, referred to with approval by the Supreme Court in Baldev Sahai Bangia Vs. R.C. Bhasin, for the view that a servant is a member of the family. With respect, we would have thought that a servant is rather a member of the house-hold and not of the family of the master and a requirement for the servant amounts to requirement of the master for "his own occupation", not because a servant is a member of the family of the master, but because the landlord may require his constant presence for running the house-hold. From that point of view, the membership of the family of the landlord may not be always a relevant test for the purpose of Section 13(1)(ff) of the West Bengal Premises Tenancy Act.

But we do not know why a brother of the landlord, living together and in common mess, even though adult, married and with children and having considerable separate income of his own, would cease to be member of the landlord''s family, even if on occasion he has stayed separately with his wife and children for some compulsive reasons. As pointed by the Supreme Court in Baldev Sahai (supra, at 1093), "more particularly, in our country, blood relations do not evaporte merely because a member of the family the father, the brother or the son leaves his house-hold and goes out for some-time."

Now that we have referred to "our country", we should remind ourselves that under the Hindu Law there is a presumption that brothers ordinarily from a Hindu Joint Family, joint in food, worship etc., even though there may not be any joint family property. The presumption is still lingering, as would appear from any of the standard treatises on Hindu Law and not yet effectively overturned. Many of us have now started learning about RAMAYANA from the Tele-Vision serials (as, they say, many of us have come to learn about Mahatma Gandhi from Richard Attenborough''s Film.) And one may remember the lamentation of RAMA, when LAKSHANA was well-nigh dead in the war-field, to the effect that the position of a brother according to Indian concept is unique even compared to wife or others -DESHE DESHE KALATRANI, DESHE DESHE CHA BANDAVA. TANGTU DESHA NA PASYAMI JATRA BHRATA SAHODARA; you may find a wife or a friend any where, but not a full-brother.

We accordingly overrule the contention made on behalf of the appellant. And the result is, as indicated at the very out-set, the Second Appeal stands dismissed and the decree of the trial court, affirmed by the first Appellate Court, stands confirmed. No costs.

Amulya Kumar Nandi, J.

I agree.