Ashoke Roy vs Sukhendu Bikash Ghosh

Bhaskar Bhattacharya, J.—This second appeal is at the instance of a plaintiff/landlord in a suit for eviction on the ground of reasonable requirement and is directed against the judgment and decree dated July 28, 1988 passed by the learned Additional District Judge. 11th Court, Alipore in Title Appeal No. 149 of 1987 thereby reversing those dated November 29, 1986 passed by the learned Munsif. 2nd Court, Alipore in Title Suit No. 12 of 1985. The appellant Bled a suit being Title. Suit No. 435 of 1981 in the 1st Court of learned Munsif, Alipore for eviction of the respondent on the grounds of default and reasonable requirement. The said suit was subsequently transferred to the 2nd Additional Court of learned Munsif, Alipore and was renumbered as Title Suit No. 12 of 1985.

So far the ground of default is concerned, the respondent by complying with the provisions contained in Section 17(2) of the West Bengal Premises Tenancy Act ("Act") got protection u/s 17(4) thereof.

As regards the ground of reasonable requirement, the case of the plaintiff was that he became absolute owner of the suit premises by virtue of a final decree in a suit for partition between himself and his co-sharers passed in Title Suit No. 155 of 1978 of the 3rd Court of Subordinate Judge. Alipore. The family of the appellant consisted of himself, his wife, his widowed mother, a son and a daughter, both were students at that relevant point of time. The appellant was in occupation of only two rooms which were insufficient and thus the plaintiff required the following accommodations:

a) One room for ''Thakur Ghar'' for accommodation of ancestral deity of 300 years old which was then accommodated in the rented accommodation of the younger brother of the appellant.

b) Bed room for mother,

c) One bed room for himself and wife,

d) One bed room each for son and the daughter,

e) Drawing room,

f) Separate kitchen, bath and privy for mother,

g) Dining room

h) Study room for himself and wife,

The said suit was contested by the respondent by filing written statement thereby denying the material allegations made in the plaint. As regards the ground of reasonable requirement, the defence of the respondent was that the alleged requirement of the appellant would be fully satisfied in the event he got a decree against Ratual Banerjee, a tenant, in the first floor of the said building for which he had already filed a suit being Title Suit No. 212 of 1979. The mother of the plaintiff, according to the respondent, never resided with the plaintiff.

The learned trial Judge on consideration of the materials on record held that the appellant required the entire suit premises for his own use and occupation and as such decreed the suit only on the ground of reasonable requirement.

Being dissatisfied, the respondent preferred an appeal being Title Appeal No. 149 of 1987 which was ultimately heard by the learned Additional District Judge, 11th Court, Alipore and by the judgment and decree impugned in this second appeal, the learned first appellate court below set aside those passed by the learned trial Judge. In setting aside the judgment and decree passed by the learned trial Judge, the learned court of appeal below took into consideration the tact that the appellant obtained two rooms with accessories by eviction of Ratul Banerjee, the other tenant, against whom suit for eviction was filed and that the mother of the plaintiff died during the pendency of the appeal. According to the teamed first appellate court below the plaintiff had in his existing possession three bed rooms of standard sizes, another small room, two sets of kitchen, two sets of bath and privy and one box room on the first floor kitchen room and one asbestos shed room measuring 15/4 According to the learned first appellate court below, the aforesaid accommodation was sufficient for the plaintiff and his family members.

Being dissatisfied, the plaintiff has come up with the instant second appeal.

At the time of hearing of the instant second appeal, the respondent has come up with an application for recording further subsequent events. In the said application, the respondent has alleged that the only son of the plaintiff/appellant had joined service in Bangalore about three years back and since then the said son was not staying in the suit building. The only daughter of the appellant has been given in marriage in 1997 and her matrimonial home is situated within 1 km. and a half from the suit premises. Moreover, immediately after the marriage, the daughter and her husband have left for United States of America and according to the knowledge of the respondent they have settled there for good and have no intention of coming back. It was further alleged that the appellant has retired from his service. Moreover, in view of the admitted position that Ratual Banerjee has left the premises, the total accommodation available to the plaintiff was sufficient.

By filing another application, the respondent also prayed for appointment of an Advocate Commissioner for holding inspection of the premises taking measurement of the total area available to the appellant

The appellant has opposed the aforesaid application by filing affidavit-in-opposition. In the affidavit the plaintiff/appellant has admitted that he has retired from his service as Professor of Botany in Presidency College at Calcutta from July 31, 1999 but has asserted that he engages himself in private couching and other academic matters including guidance of research work. It has been further stated that the daughter of the appellant no doubt went to United States of America with her husband but it was only for period of two years on H.I. Visa which ends in October 27, 2000. Moreover, the daughter of the appellant is in family way and will be staying with her parents for about six months after the child''s birth. It was further stated that the son of the plaintiff (sic) married in the month of May 1997 and it was admitted (sic) in Bangalore. It was however stated (sic) that he was posted to look after his (sic) that he frequently comes to Calcutta (sic) and is trying to come back to Calcutta perma(sic) because his wife is a Professional Architect who remains in Calcutta most of the time for practising as a freelance architect. In the affidavit-in-reply used by the respondent although other facts have been controverted but marriage of the plaintiffs son has not been disputed. The assertion of the plaintiff that his son''s wife is a professional architect however has been called in question.

After going through the aforesaid applications and the affidavits filed in connection with the said application it is apparent that at present the appellant is no longer in service and both his children are married. There is no dispute that the plaintiffs wife is also a teacher and is still in service.

This court appointed an Advocate of this Court as Special Officer for ascertaining whether there are more than one entrance in the ground floor in occupation of the tenant and whether one room in the ground floor can be separated from the others by giving total separate entrance for entering the said room by the landlord. The learned Special Officer after inspection of the ground floor gave a report thereby ruling out the possibility of partial eviction. The tenant gave objection to such report and at the time of further hearing. Mr. Banerjee appearing for the tenant by pointing out a photograph prayed for a further inspection by the said Special Officer and to give report on possibility a separate entrance through a door shown by him. Mr. Banerjee also prayed for a report as regards the entire accommodation available to the landlord on the first floor after the eviction of Ratul Banerjee, a previous tenant in the part of the first floor who vacated during the pendency of the suit. Mr. Banerjee agreed to bear the costs of the second inspection. This court allowed such prayer. The Special Officer after second inspection has given a further report as regards detailed accommodation of the landlord in the suit premises and has also given his comment as regards the passage pointed out by Mr. Banerjee. No objection has been given to the second report by either of the parties. In view of such fact I have marked both the reports as additional exhibits.

At the time of admission of the appeal, it appears that the Division Bench admitting this second appeal did not formulate any substantial question of law as required u/s 100 of the Code of Civil procedure. In view of such fact I have formulated the following substantial questions of law for consideration in this second appeal after taking into consideration the second report given by the Special Officer which has been marked as additional exhibit without objection from both the parties and also the admitted subsequent events occurred during the pendency of this second appeal:

a) Whether the decision of the court of appeal below is vitiated for non-consideration of the actual accommodations available to the plaintiff

b) Whether the requirement of the plaintiff can be satisfied by partial eviction of the defendant from the suit premises

At the very outset, I keep on record that as the facts mentioned in the application for taking note of subsequent events, those contained in the affidavit-in-opposition to such application and the second report given by the Special Officer which has been exhibited here without any objection, were not available before the courts below, instead of remanding the matter before the trial court or the first appellate court, this court by exercising its power conferred by Section 103 of the Code has decided to adjudicate the issue of reasonable requirement on the basis of the materials already on record as well as those new materials. Accordingly, the learned counsel for the parties have made their submissions on the basis of undisputed changed circumstances and the additional exhibits. Since the suit was filed in 1981 to avoid further delay I have decided to exercise the aforesaid power.

After hearing the learned counsel for the parties and after going through the materials on record I find that the defendant is in occupation of the following rooms

Room No. 1 - 8''/13''6"

Room No. 2 - 12/15''

Room No. 3 - 15''2"/13''6"

Room No. 4(kitchen) - 7''7"/5''7''

Room No. 5 (bath cum privy) - 3''10"/9''10"

Room No. 6 (dinning space) - 8''10"/7''4".

It appears from the additional exhibit viz. the second report by the Special Officer which has been exhibited without objection that the plaintiff has following accommodation:

Room No. 1 - 13''/11"x12''4"

Room No. 2 - 13''51/"x 9''8"

Room No. 3 - 12''2"x15''41/2

Apart from the aforesaid three rooms, there are two baths/privies, one separate privy, one kitchen, one cloakroom (8''31/2" x4''5"), verandah (9''10"x2''81/2") and a space (7''4"X5''101/2") for entrance to kitchen from room no. 2.

The aforesaid fact indicates that the plaintiff is in occupation of three bed rooms, one kitchen, apart from two baths and three privies. The plaintiff requires one room for himself and his wife, one room for the study room for himself and his wife as he is a retired professor and the wife is a teacher. The plaintiff requires a dining room and further a room for his only married son, who although is at present in Bangalore for service. Apart from the aforesaid fact, a drawing room is necessary for such a family which can also be used as the guest room to accommodate the daughter of the plaintiff if and when she comes for occasional stay. I agree with Mr. Banerjee, the learned advocate appearing on behalf of the respondent that no separate room need be allotted for the married daughter in the fact of the present case. Apart from the aforesaid fact, the plaintiff requires one Thakur Ghar for accommodation of the deity which is 300 years old.

Thus it is apparent that the accommodation available in the first floor is not sufficient to meet the aforesaid need. At least two additional rooms of regular size are necessary and in such a situation, the next question is whether a decree for partial eviction should follow.

It appears from the second report of the Special Officer which has been accepted without objection from either of the parties that the said Special Officer has made following observation as regards the scope of partial eviction:

On the other hand for partial eviction if the landlord wants to use that passage to any of the rooms he can very well enter through the tin gate up to the passage to any of the rooms. It is required to mention herein that the tenant uses that passage as dining room and just at the right hand side of the passage there exists kitchen and bath room/privy of the tenant.

Therefore, it is clear that the ground floor in occupation of the tenant cannot be separated into two complete units. Since the litigation is going on for the last 20 years it is not possible to ask the parties to share any common portion infront of kitchen or bath and privy of the tenant. Thus, partial eviction from two of the three rooms in occupation of the tenant is not possible in the fact of the present case.

Therefore, in my view, the learned court of appeal below erred in law in not considering that the requirement of the plaintiff cannot be satisfied with the accommodation available on the first floor of the premises and as such committed a substantial error of law in setting aside the judgment and decree passed by the learned trial Judge. I thus set aside the judgment and decree passed by the learned first appellate court below and pass a decree for full eviction in favour of the plaintiff. The respondent is thus directed to vacate the suit property within three months from date. The second appeal is thus allowed. The first point formulated by this court is answered in affirmative while the second one in negative.

In the facts and circumstances there will be however no order as to costs.