Biswanath Nandy vs Asish Kumar Pal

Tarun Kumar Gupta, J.—This is directed against judgment and decree dated 17th of May, 1999 passed by learned Second Court, Civil Judge, (Senior Division), Howrah, in Title Appeal No. 81 of 1997 affirming the judgment and decree dated 30th April, 1997 passed by learned Civil Judge (Junior Division), Third Court, Howrah in Title Suit No. 125 of 1993. The appellant as the plaintiff filed the suit for eviction against the defendant tenant alleging that the defendant was a monthly tenant under him in the suit premises at a rental of Rs. 100 per month payable according to English calendar month and that defendant failed to enhance the monthly rental from Rs. 100/- to Rs. 120/- from January, 1993 though there was an oral argument to that effect. The plaintiff being the owner of the suit property is in possession of only two rooms in holding No. 19 Uma Charan Bhattacharya Lane which is a joint property of plaintiff and his brother and said brother was in possession of other two rooms in said house through his tenants. The plaintiff''s family consists of himself and his wife, his mother, his three sons aged about 25 years, 22 years and 15 years. The plaintiff required one room for himself and his wife, one room for his mother, three rooms for his three sons, one drawing room, one dining room, one kitchen, one store room and one thakur ghar. There are eight rooms in the suit holding under occupation of seven tenants each having possession of one room and one room was lying in dilapidated condition. The plaintiff filed the suit for eviction against present defendant and another tenant and intends to file eviction suits against other tenants on the ground of his reasonable requirement of the entire suit house. The plaintiff sent a notice to quit to the defendant who refused to accept the same.

The defendant contested said suit filing a written statement alleging that plaintiff was not the owner of the suit property and that there was no relationship of landlord and tenant in between the parties. The suit property was not properly described and the suit was bad for partial eviction. The notice to quit was neither legal nor valid nor was served upon the tenant. It was further alleged that plaintiff does not require the suit premises for reasonable use and occupation and that the suit was liable to be dismissed.

Learned Trial Court framed as many as eight issues and observed after contested hearing that the plaintiff was the owner of the suit premises and that the defendant was the tenant under the plaintiff in the suit premises and that the suit premises was correctly described in the schedule of the plaint and that the notice to quit was legal and valid and that there was presumption of due service of the same upon the defendant tenant. However, learned Trial Court did not grant any decree of eviction on the ground of reasonable requirement as according to him, plaintiff failed to establish that he reasonably required the suit premises for his and his family members'' use and occupation and that the present accommodation of the plaintiff was not suitable.

Learned Lower Appellate Court concurred with the findings of the learned Trial Court by the impugned judgment and decree.

At the time of admission of this second appeal the following substantial questions of law were formulated.

(1) This appeal will be heard on the ground as to whether the learned Lower Appellate Court was justified in arriving at a finding that the plaintiff appellant was in possession of five rooms in the premises No. 19, Uma Charan Bhattacharjee Lane, despite the contents of Ext. 14 and the evidence of D.W. Bijoy Krishna Nandy, as also the report filed by the learned Commissioner.

(2) This appeal will be heard also on the ground as to whether in spite of the plaintiff''s claim for nine rooms, the appeal ought to have been dismissed on the ground that a decree in respect of one room would not fulfill the reasonable requirement of the plaintiff appellant.

Though respondent defendant initially appeared to contest this appeal through learned counsel but later on did not care to contest the appeal which accordingly proceeded ex parte.

Mr. Buddhadeb Ghoshal, learned counsel for the appellant plaintiff, submits that learned Courts below disbelieved the claim of reasonable requirement of the suit premises of the plaintiff landlord as in the notice to quit the ground of reasonable requirement was not mentioned and it came out from the evidence of the plaintiff''s brother while deposing as one of the D.W.S. that plaintiff was in occupation of all four rooms in 19 Uma Charan Bhattacharya Lane, a joint property of the plaintiff and his brother (said defence witness) and that no room of said house was in occupation of said brother through tenant and that mother of the plaintiff used to reside with said brother in Burdwan.

Mr. Ghoshal refers case laws reported in Savitri Sahay Vs. Sachidanand Prasad, and 59 CWN 895 (Hemangini Debi vs. Sukumar Basu) to impress upon this Court that joint family accommodation cannot be treated at par with ownership property and that said joint family accommodation cannot be treated as an alternative reasonable suitable accommodation.

He next submits that even if it is accepted for argument''s sake that the plaintiff was in occupation of all four rooms in the joint property situated at 19 Uma Charan Bhattacharya Lane then said accommodation was not sufficient to cater the projected requirement of the plaintiff landlord. According to Mr. Ghoshal learned Courts below unnecessarily gave stress on the point of non-enhancement of rent by the defendant tenant as the sole ground of filing of the eviction suit being oblivious of the evidence on record particularly when there was no allegation by the defendant tenant either in his written statement or in his evidence that it was the sole ground for filing the suit for eviction.

It appears from the judgment of learned Courts below that in view of evidence of plaintiff''s brother learned Courts below were of the opinion that the plaintiff was in possession of entire joint family property situated at 19 Uma Charan Bhattacharya Lane and that plaintiff did not reasonably require the suit premises for his and his family members'' use and occupation. If we accept the evidence of plaintiff''s brother then the plaintiff is at best in occupation of five rooms. As per projected requirement of the plaintiff he is in need for occupation of at least one bed room for himself and his wife, three bed rooms for his three sons who were of the age of 25 years, 22 years and 15 years respectively at the time of filing of the suit (1993), one drawing room, one dining room, one kitchen, one store room and one thakur ghar i.e., at least nine rooms. The aforesaid claim of requirement of the plaintiff landlord cannot be said to be unjust or fanciful from the standpoint of a middle class family. As such, learned Courts below failed to consider that even if the plaintiff was in possession of all five rooms in the joint family property at 19 Uma Charan Bhattacharya Lane, the plaintiff''s requirements were not fulfilled and that plaintiff reasonably required the suit premises and other rooms in the suit house for his and his family members'' use and occupation. As plaintiff''s occupation in 19 Uma Charan Bhattacharya Lane is occupation of a co-sharer in a joint property the same cannot be said to be reasonable suitable alternative accommodation. Admittedly, own property has clear edge over a joint property where other co-sharers may very well claim possession being co-owners.

It is true that one room (suit property) will not fulfill the plaintiff''s requirement but that cannot be a ground for refusing the plaintiff''s claim for eviction of the defendant therefrom on the ground of reasonable requirement.

Accordingly I find and hold that the findings of learned Courts below that plaintiff owner landlord did not reasonably require the suit premises for his and his family members'' own use and occupation, were not based on evidence and were perverse requiring interference by this Court in the second appeal u/s 100 of the Code of Civil Procedure.

As a result, the appeal is hereby allowed ex parte. The impugned judgment and decree of learned Lower Appellate Court are hereby set aside by decreeing the suit for eviction on the ground of reasonable requirement. The respondent defendant is hereby directed to hand over vacant possession of the suit premises to the appellant plaintiff within 60 days from this date failing which the plaintiff will be at liberty to put the decree in execution in the Execution Court as per law for recovery of possession of the suit premises.

However, I pass no order as to costs.

Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest. Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.