Debi Prosad Das vs Gobinda Chandra Das

Tarun Chatterjee, J.—The Defendant who is a tenant in respect of premises No. 71 A, Surya Street, P.S. Amherst Street, Calcutta 700 009 (herein after referred to as "the suit premises") is the Appellant before us. A suit for recovery of possession of the suit premises was filed by the Plaintiff/Respondent against the Appellant inter alia, on the grounds of reasonable requirement, default and subletting. So far as the grounds relating to subletting and default are concerned, we find from the judgment of the Trial Court that the Trial Court held that there was no subletting and that the Appellant was entitled to be protected u/s 17(4) of the West Bengal Premises Tenancy Act (herein after referred to as "the Act") against eviction from the suit premises as the Defendant/Appellant duly complied with the provisions of Section 17(2)(2A) of the Act. Before us, Mr. Roy-choudhury, the learned advocate, appearing on behalf of the Plaintiff/Respondent did not question the findings arrived at by the Trial Court in respect of the aforesaid two grounds for eviction and accordingly, we need not deal with the aforesaid two grounds in this appeal. Therefore, we restrict our judgment only on the question whether the Respondent reasonably requires the suit premises for his own use and occupation as he is not in possession of any reasonable suitable accommodation. In our view, in the facts and circumstances of this case, and on the evidence adduced by the parties, the trial Court was fully justified in decreeing the suit of the Respondent on the ground of reasonable requirement. In order to get a decree for eviction on the ground of reasonable requirement, the Plaintiff has to prove that i) he is the owner of the suit premises ii) he requires the suit premises for his own use and occupation and for the members of his family iii) he is not in possession of any reasonable suitable accommodation.

So far as the first condition is concerned, no dispute has been raised by the Appellant before us that the Respondent is not the owner of the suit premises. Let us now first consider whether the present accommodation available to the Respondent is reasonable suitable accommodation or not. In order to decide this question, the case of the Plaintiff may be stated. According to the Respondent, he is in possession of only one room with common bath and privy on the first floor in his ancestral dwelling house at 23 Shreemanta Dey Lane, Calcutta-12 and the remaining portion of the ancestral dwelling house is under the occupation of other co sharers of the Respondent. Due to dearth of accommodation in the ancestral dwelling house he had to take a tenancy of two bed rooms, one small asbestos shaded room with one kitchen, one small thakur ghar and bath and privy on the first floor of premises No. 39 B, Sri Gopal Mullick Lane, Calcutta-12 (hereinafter referred to as the "1st Tenanted Premises"). Since the accommodation available to the Respondent in the ancestral dwelling house and in the 1st tenanted accommodation was not adequate, the Respondent took another rented accommodation at premises No. 27/5 Ramkanto Mistry Lane, 700 012, (hereinafter referred to as the "2nd tenanted premises"). Since the Respondent intended to reside with all his family members under one roof, the Respondent reasonably required the suit premises for his own use and occupation and for accommodation of his family members.

In any view of the matter, the present accommodation of the Respondent either in the ancestral dwelling house and also in the two tenanted accommodation cannot be said to be reasonable suitable accommodation. The defence of the Appellant was a denial of the case of the Respondent relating to the accommodation available to the Respondent in the ancestral dwelling house and in the aforesaid two tenanted premises. According to the Appellant, the Respondent was in possession of more than one room in the ancestral dwelling house and so far as the accommodation available to the tenanted premises are concerned, the Appellant alleged that the accommodation available to the Respondent in the two tenanted premises and the ancestral dwelling house were reasonable and suitable. Let us first consider the number of rooms which are in occupation of the Respondent in his ancestral dwelling house. In order to see whether the Respondent was in occupation of one room in the ancestral dwelling house, the Respondent made an application for holding local inspection under Order 39, Rule 7 of the Code of Civil Procedure. So far as the occupation of the Respondent in one room in the ancestral dwelling house is concerned, the pleader-commissioner in his report stated that in fact the Respondent was in occupation of one room of the ancestral dwelling house with common use of bath and privy. P.W. 1 had also stated in his evidence that he was in possession of only one room in his ancestral dwelling house and his co-sharers of the ancestral dwelling house were in occupation of the remaining portion of the same. This version of P.W. 1 was also supported by one of the co-sharers who figured as P.W. 2. P.W. 2 has also stated that he lives in the ancestral dwelling house and stated further that it is a three storied building out of which third floor is partly constructed and partly opened roof and that there are 11 rooms out of which only one room is in occupation of the Respondent. Against this evidence the Defendant/Appellant, however, did not ensure to produce any contrary evidence before the Court either by filing an application for local inspection of the remaining portion of the ancestral dwelling house nor he could produce any contrary evidence from that of the Respondent excepting the bare statement made by him that the Respondent was in occupation of more than one room. That being the position, we are unable to agree with Mr. Dutt that by any stretch of imagination it can be held that the Respondent is in occupation of more than one room in his ancestral dwelling house.

As noted herein earlier, the Respondent admittedly has taken two tenancies one is at Premises No. 39 B, Gopal Mullick Lane, Calcutta- 700 012 and other at Premises No. 27/5, Ram Kanto Mistry Lane, Calcutta-700 012. So far as the tenancy in premises No. 39 B Sri Gopal Mullick Lane, Calcutta-700 012 is concerned, no dispute has been raised by the Defendant/Appellant either in the written statement or in his evidence that the said tenancy does not consist of two bed rooms, one small asbestos shaded room, one kitchen, one small thakur ghar with bath and privy on the first floor of the aforesaid premises. So far as the other tenanted flat that is at Premises No. 27/5, Ramkanto Mistry Lane, Calcutta-700 012 is concerned, it appears from the plaint as well as from the evidence that due to dearth of accommodation in the aforesaid two premises and in view of the fact that one of the sons of the Respondent got married, the said son had taken a tenancy in the aforesaid premises in which the said son is in occupation of two rooms with one covered varandah, one bath and privy. Mr. Dutt, the learned advocate appearing for the Defendant/Appellant makes a fair concession that the tenanted accommodation available to the members of the family of the Respondent cannot be said to be reasonable suitable accommodation for his family members when the number of family members of the Respondent is 12. Therefore, we need not go into the question whether the accommodation available at the aforesaid tenanted premises taken together would be reasonable suitable accommodation for the entire family members- of the Respondent. Mr. Dutt, appearing on behalf of the Appellant, however, submits that if the accommodation available to the Respondent in the aforesaid three premises are considered, then the requirement of the Respondent even they are 12 in number can be satisfied. We are unable to agree with this submission of Mr. Dutt on this score. Considering the family members of the Respondent and in view of the admitted possession of the Respondent in the aforesaid three premises, we are still of the view that the accommodation available on the aforesaid premises to the Respondent cannot be considered to be reasonable suitable accommodation. That apart it is new well settled law that the family of the landlord cannot be directed to be split up in different places for their residence. In the case of Bhairab Chandra Nandan Vs. Ranadhir Chandra Dutta, the Supreme Court while dealing with the provisions of Section 13(1)(ff) of the West Bengal Premises Tenancy Act in para. 6 observed as follows:

To such a case the condition imposed by Section 13 that a landlord should not be in possession of any reasonable suitable accommodation may not be strictly attracted otherwise it would lead to a landlord being asked to disrupt the family and providing accommodation for the members of his family at different places.

In the case of Jeeban Jamini v. Banku Behari 65 C.W.N. 799, P.N. Mukherjee, J. (as His Lordship then was) presiding over the Bench observed as follows:

The only question then remains as to whether it would be reasonable to compel the Plaintiffs to split up their family into two portions, one remaining in premises No. 79 Durga Chanran Doctor Road, Calcutta, the other in premises No. 1, Gardener Lane. The learned trial Judge has dismissed the Plaintiff''s suit upon the finding that that would be a reasonable view of the present case. We are unable to agree with the learned trial Judge in this respect. On the Defendant''s own evidence, it would require about ten minutes'' walk to cover the distance between the two houses. It is difficult to see how a single family can be reasonably asked to accommodate themselves in two houses so situate. Obviously, the learned trial Judge, was under a misapprehension in this respect when he dismissed the Plaintiffs'' suit upon the view that the two houses were close to one another. Whether law contemplates or compels a division of the landlord''s family, it is at least, quite clear that the landlord cannot be asked-and compelled-to split up his family into two portions and keep the two in two houses, two minutes apart, as aforesaid.

Therefore, from the aforesaid decision of the Supreme Court as well as of the division bench of this Court, we have no hesitation in our mind to hold that the Respondent cannot be directed to split up his family in three different premises for the purpose of their residence. Accordingly, we are of the view that the Trial Court was fully justified in holding that the Respondent was not in possession of any reasonable suitable accommodation. Apart from that, from the evidence on record and also in view of the case made out by the Respondent in the plaint that due to dearth of accommodation, the Respondent could not accommodate his family members in the ancestral dwelling house and for that reason he had to take two different tenancies for the purpose of the accommodation of the members of the family of the Respondent. So far as the requirement of the Respondent is concerned, Mr. Dutt appearing on behalf of the Appellant fairly conceded before us that in view of the fact that the family members of the Plaintiff were 12 in number, the Respondent reasonably required the suit premises for his own use and occupation and for the members of his family. That being the position, we are unable to hold that the Respondent could not successfully prove that he reasonably required the suit premises for his own use and occupation and for the members of his family as he was not in possession of any reasonable suitable accommodation.

No other point was raised on behalf of the Appellant excepting the points mentioned above in this appeal before us.

Accordingly, this appeal is dismissed.

There will be no order as to costs.

If the Appellant files an undertaking within two months from this date to this Court to the effect that he will vacate and deliver peaceful possession to the Respondent of the suit premises within a year from this date subject to the condition that he shall go on paying occupational charges at the rate last paid in that case, the execution case shall remain stayed for a period of one year from this date failing which, the Respondent shall be entitled to proceed with the execution case in accordance with law.

Let the Lower Court Records be sent down to the Trial Court as early as possible.

Let Xerox certified copies of this judgment, if applied for, be supplied to the respective parties at an early date.

Amit Talukdar, J.

I agree.