Dilip Kumar Adhikari vs Smt. Puspalata Basu

Bhaskar Bhattacharya, J.—This second appeal is at the instance of a tenant in a suit for eviction on the ground of reasonable requirement and is directed against the judgment and decree dated February 12, 1990, passed by the learned Additional District Judge. 1st Court, Midnapore in other Appeal No. 119 of 1989 thereby setting aside those dated February 28, 1989, passed by the learned Munsif, 1st Court, Midnapore in other Suit No. 151 of 1985.

The original Plaintiff, the mother of the present Respondent, filed the aforesaid suit for eviction of the predecessor-in-interest of the present Appellant an the ground of reasonable requirement. The case made out by the original Plaintiff was that she was the owner of the property, and the original Defendant was a tenant under her. The son of the original Plaintiff had retired from service in November, 1983, and as such it became necessary to accommodate him in the suit premises as there was no other reasonably suitable accommodation elsewhere. The Plaintiff was then residing in a rented premises at Calcutta but she wanted to live with her son in the suit premises as her landlady had asked her to vacate.

The aforesaid suit was contested by the original Defendant by filing written statement thereby disputing the bona fide of the original Plaintiff and contending that the original Plaintiff did not require the suit property for her own use and occupation.

However, the learned trial Judge on contested hearing decreed the suit in part thereby passing a decree for partial eviction in respect of two rooms subject to reduction of rent to Rs. 65.00.

Being dissatisfied, the Plaintiff preferred an appeal being other Appeal No. 119 of 1989 before the learned first appellate court below and the tenant also preferred a cross-objection before the aforesaid court claiming dismissal of the suit.

The learned first appellate court below, however, by the judgment and decree impugned herein allowed the appeal preferred by landlord and dismissed the cross-objection thereby holding that the Plaintiff was entitled to get a full decree for eviction as the tenant/ Defendant did not either in pleading or in evidence took the plea of partial eviction.

Being dissatisfied, the tenant/Defendant has come up with the instant second appeal.

During the pendency of the instant second appeal both the Defendant and Plaintiff having died, their heirs have been substituted. The Plaintiff is substituted by the son of the original Plaintiff for whose requirement she filed the suit.

Mr. Roychowdhury, the learned Counsel appearing on behalf of the Appellant seriously disputed the reason given by the learned first appellate court below in passing a decree for full eviction. Mr. Roychowdhury contends that it is the duty cast upon the court to consider whether the requirement of the landlord can be satisfied by partial eviction of the tenant. Thus, according to Mr. Roychowdhury even if the tenant does not raise such question it was the duty of the court to consider the aforesaid question and as such the learned trial Judge did not commit any illegality in passing a decree for partial eviction notwithstanding the fact that no such plea was taken by the Defendant.

Although Mr. Roychowdhury tried to impress upon this Court that the substituted Plaintiff has other reasonable suitable accommodation in Calcutta I am not at all convinced by such submission. It appears from the record that after retirement of her son, during the pendency of the suit, the Plaintiff had surrendered her tenancy right in the rented accommodation at Calcutta and was staying with her daughter at Salt Lake. After retirement the son of the original Plaintiff wants to come back to the native place at Midnapore and as such the learned courts below rightly held that for the requirement of the original Plaintiff as well as her son the suit property was essentially required. I thus find no reason to disturb the concurrent findings of fact recorded by the learned courts below. No material has been placed before the court indicating that the present Respondent has any reasonably suitable accommodation elsewhere other than the suit property. It is needless to mention the accommodation of the present Respondent in his sister''s house at Salt Lake as licence cannot be said to be reasonable.

I, however, find substance in the contention of Mr. Roychowdhury that even if any plea of partial eviction is not raised by Defendant, it is the duty of the court to consider the case of partial eviction as enjoined u/s 13(4) of the West Bengal Premises Tenancy Act. As in the instant case there was no local inspection of the suit property and since the suit is pending from 1983, instead of remanding the matter, I appointed a learned advocate of this Court as Special Officer for the purpose of recording the accommodation available in the suit property and also for recording the number of bath, privy and kitchen so that this Court on the basis of such material can arrive at a conclusion whether partial eviction is possible. The Special Officer has submitted his report and no objection has been given by either of the parties. Mr. Sengupta appearing for the landlord, however, indicated that the size of the privy has not been mentioned. Since the size of the privy is not so material I admitted the report as additional exhibit and have taken into consideration the said document for the purpose of disposal of the instant second appeal.

It appears from the Special Officer''s report that there are five rooms in the property apart from a verandah and two small rooms which have been described as ''out house'' by the Special Officer. In the. property there is only one bath measuring 4''2"/6''2". There was one service privy but the local Municipality having withdrawn service to such service privies in the locality, in place of that privy a new sanitary privy has been constructed. Thus, in the suit property there is only one bathroom and one privy. It, however, appears from the report that there is no separate kitchen and a portion of the verandah is used as kitchen.

Since, the son of the original Plaintiff, the. present Respondent, is a bachelor aged about 75 years, in my view his requirement will be satisfied by two rooms, bath, privy and kitchen. But in view of the fact that there is only one bath and privy in the property, I am of the view that no partial eviction can be effected in the fact of the present case.

I am not at all convinced by the submission of Mr. Roychowdhury that in the fact of the present case a direction should be given to the landlord to construct a bath and privy so that the tenant can occupy the remaining rooms and the bath and privy. Under the provision of Section 13(4) of the Act, the court will only consider whether from the property as it stands, the requirement of the Plaintiff can be substantially satisfied by partial eviction of the tenant but court is not vested with any right to pass a direction for construction of any bath and privy for the purpose of effecting partial eviction. Even, in my view, no direction should be given to the landlord to use bath and privy in common with the tenant.

Under such circumstances, although there are excess rooms in the property but is absence of any second bath and privy or even any kitchen I am not inclined to pass any decree for partial eviction.

I now propose to deal with the decisions cited by Mr. Roychowdhury.

In the case of Jivram Ranchhoddas Thakkar and Another Vs. Tulshiram Ratanchand Mantri and Others, the Apex Court granted a partial eviction by dividing a tenancy consisting of three rooms into two portion by making partition wall or other improvised partition from floor to roof. It appears from the last seven lines of the said decision that those directions were based on mutual consent and undertakings by the respective counsel on behalf of their clients and on such footing, the court modified the order impugned. Therefore, the said decision cannot be relied upon as a precedent for the proposition that this Court should pass a direction for construction of a separate privy and bath or can direct the landlord to use bath and privy in common with the tenant.

In the case of Krishna Murari Prosad v. Miter Singh 1993 (Supl.) (1) S.C.C. 439 while considering the provision contained in Section 11(1)(C) of the Bihar Rent Control Act, the Supreme Court was considering the question whether a decree for partial eviction could be passed in a case where the suit property is only one room. The High Court answered the question in negative. The Apex Court set aside the judgment of the High Court and held that the answer to such question depends on the size of the room. Where the rooms is big enough to permit division to satisfy the need of the landlord as well as tenant, the court can direct division of such a room by making partition wall. I fail to understand how the said decision can be of any help to Mr. Roy chowdhury''s client. Here the question is not of the power of the court to direct raising of a boundary wall; but to direct a landlord or tenant to make construction of a separate bath and privy or to compel a landlord to occupy bath and privy in common with tenant. Such question has not been answered by the Apex Court in the said decision.

In the case of Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, all that was decided by the Supreme Court was that the words ''reasonable requirement'' postulate that there must be need as opposed to a mere desire or wish. In the instant case, both the courts have concurrently held that the requirement of the Plaintiff to accommodate his only son who had since retired was a genuine need. Thus, the said decision cannot help the Appellant in any way.

Amritlal v. Krishna Kishore 1986 (2) C.H.N. 398 is a case where a Division Bench of this Court observed that in a suit for eviction on the ground of reasonable requirement all endeavour should be made to protect the interest of the tenant, if possible, after satisfying the requirement of the landlord. The said decision, in my opinion, is no authority for the proposition that a court for that purpose can direct the landlord to construct separate bath and privy or direct the landlord to use bath and privy in common with tenant. In this connection, reference may be made to the case of Piari Mohan v. Sudhindra Nath 1989 (1) C.L.J. 131 where this Court disapproved the idea of sharing a bath and privy by two families.

Therefore, the decisions cited by Mr. Roy chowdhury cannot be of any assistance to his client,

Thus, although I do not approve the reason assigned by the learned first appellate court below, on consideration of the materials on record and in exercise of my power vested in me by Section 103 of the Code I am of the view that the substituted Plaintiff reasonably requires the suit premises for his own use and occupation and in the fact of the present case, partial eviction is not possible. Thus, the Plaintiff is entitled to get a full decree in this case as ordered by the learned first appellate court below. The appeal is thus dismissed.

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