Mohan Chand Dey and Others vs Kanailal Mullick and Another

Ashim Kumar Banerjee, J.—This appeal was initially against the judgment and order of dismissal of the ejectment suit filed by the appellant dated January 31, 1979 passed by the learned Judge, 12th Bench, City Civil Court, Calcutta. The said appeal was heard by the Division bench wherein by an order dated July 31, 1997 the decree was sent on remand on specific issues. The suit was heard afresh on those issues and the court below by a judgment dated June 30, 1999 once again rejected the claim of the appellant The appeal was heard afresh against the said judgment and decree dated June 30. 1999. Premises No. 15. Scott Lane. Calcutta was fully tenanted at all material times. The said premises was put up for auction in a partition suit after dividing the same in three lots. Three brothers namely. Mohan Chand Dey, Appellant No. 1: Kedarnath Dey. Appellant No. 2 and Nitai Chandra Dey. Original Plaintiff purchased the said premises in the said auction. The lot which is the subject matter of the instant appeal was purchased say Nitai who was a bachelor during his life time. After purchase all the three brothers filed different ejectment suits against the tenants of their respective portions. One of such ejectment suit being Ejectment Suit No. 889 of 1972 was filed by Nitai against the respondent which is the subject matter herein. During the pendency of the suit Nitai died leaving him surviving the present appellants. The present suit was filed on the ground of reasonable requirement It was originally contended by Nitai that all the brothers were living in a joint mess in a joint family in premises No. 13/1/1, Hidaram Banerjee Lane. Calcutta. According to Nitai. accommodation in Hidaram Banerjee Lane. Calcutta was not exclusive as a portion of the said premises was under the possession of their uncle Gobinda. Moreover, their stay at Hidaram Banerjee Lane was uncertain because of a will executed by their late grandfather. Banku Behari Dey. I shall discuss in detail about the will at the appropriate time.

The contention of the original plaintiff was controverted by the tenants being the respondents by filing a written statement. It was denied that the accommodation in Hidaram Banerjee Lane was sufficient for the plaintiffs. It was also denied that their stay at Hidaram Banerjee lane became uncertain because of the will of Banku Behari Dey or on any other ground.

The Learned Judge upon appreciation of evidence was not satisfied with the requirement of the plaintiffs. Hence, the suit was dismissed. However, the matter was sent back on remand in view of the fact that because of delay in disposal of the said suit several incidents took place, the nature and character of the families of the appellants and respondents had changed in between, the requirement of the appellants were also changed in course of time. Considering all these aspects the matter was sent on remand. Since we heard the appeal at the final stage after disposal of the matter by the court below upon appreciation of fresh evidence, let us now consider the situation as in 1998-99 being the year when the suit was heard afresh and fresh evidence was taken.

After the suit was remanded for fresh hearing the following facts revealed after subsequent facts were brought to the notice of the court by way of amendment as well as by way of further evidence:

Subject premises is a four storied building having 8 rooms in all with two small shop rooms on the front portion of the ground floor.

The substituted plaintiffs No. 1 to 5 had been residing at premises No. 13/1/1, Hidaram Banerjee Lane, Calcutta ever since their were born. They were living in a joint mess.

The said premises at 13/1/1. Hidaram Banerjee Lane, Calcutta was the ancestral house of the plaintiffs. One Banku Behari Dey, since deceased, grand father of the plaintiffs executed a will dated October 14, 1942 wherein life interest was provided to his widowed daughter, Smt. Umasashi Dasi and subject to such life interest property would devolve upon his two sons Shyamsundar and Gobinda in equal share. It was also provided in the said will that in case the plaintiff''s father Shyamsunder Dey and their uncle Gobinda Chandra Dey failed to live jointly. Shyamsunder Dey would transfer his one half share in the property to Gobinda Chandra Dey at a sum of Rs. 4,000/-. There had been protracted litigation in respect of the said will. The relationship between Shyamsunder''s family and Gobinda''s family became strained. Some of the members of the Gobinda''s family left the property and started residing outside by keeping the rooms under their possession by lock and key. Hence the status of the plaintiffs became precarious in respect of the said property where they had been residing.

The portion under occupation of the plaintiffs were inadequate to accommodate the members of their family in the said premises. Hence, the plaintiffs required the subject premises for their own use and occupation.

The defendants/tenants had already left the suit premises after purchasing a house at 5B, Ram Kanai Adhikari Lane, Calcutta. The tenanted portion was then occupied by their relatives.

The plaintiffs inherited from their father Shyamsundar four premises and all those premises were occupied by the tenants. There had been litigations which resulted in decree of eviction in respect of a portion of the premises No. 23/IB, Balaram Sil Lane, Calcutta.

Plaintiffs requirement was 11 rooms and in case the plaintiffs becomes successful in obtaining possession of the entire suit premises that would reasonably satisfy the need of accommodation for the entire family who wanted to live in joint mess.

Learned judge of the court below upon appreciation all the facts and evidence inter alia held as follows:

Since Kedar got possession of part of the suit premises in another title suit the plaintiffs sufferings for lack of sufficient accommodation at the said premises at Hidaram Banerjee Lane, Calcutta was not tenable.

Although the widowed daughter of the testator Umasashi was 80 years at that point of time unless and until she dies the status of the plaintiff does not become precarious. No independent witness had come Lo support the contention of the plaintiffs that relationship between the said two families had become strained. No particulars could be given with regard to the litigation between the said two families. Hence, the submission to the effect that their status in the said property at Hidaram Banerjee Lane, Calcutta became precarious, was not tenable.

Although the plaintiffs required 11 rooms the suit premises would not sufficiently give them accommodation if the ejectment was allowed. Hence, the suit was filed with an oblique purpose of enhancing the rent rather than bonafide need.

Initial onus of the plaintiffs that the other houses inherited by them did not have sufficient accommodation for the time being, was not discharged.

In the result the ejectment suit was dismissed.

Mr. Sudhis Dasgupta, learned counsel appearing for the appellants contended that the subject property was purchased by the plaintiffs family so that they could use this premises for their own use and occupation as a joint composite family having a joint mess. All the three mothers filed ejectment suits. One of the brothers succeeded in obtained possession by way of execution of decree after the same was obtained from the appropriate court. Mr. Dasgupta further contended that even in 1976 when the Advocate Commissioner inspected the premises the fact that the plaintiffs family and Gobinda''s family were residing separately had come out. Assuming that the relationship between two families did not become strained even then as per the will of Banku Behari the plaintiffs were bound to execute a conveyance conveying their share in the property to Gobinda''s family as the two families were not residing jointly. Hence the factum of precarious status of the plaintiffs family at the said premises at Hidaram Banerjee Lane, Calcutta was proved.

Once the fact the plaintiffs required a suitable accommodation for the entire family was proved, decree for eviction must follow as a consequence. Hence, they were entitled to a decree for eviction. In support Of his contention Mr. Dasgupta cited the following decisions:

1) 65 CWN 799 (Jeeban Jamini Debi & Ors. vs. Banku Behari Guin)

2) Bhairab Chandra Nandan Vs. Ranadhir Chandra Dutta,

3) Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, .;

4) 97 1 CHN 288 (Sri Vachaspati Misra vs. Sri Jayanta Kumar Bhowrnik & Ors.)

5) 1998 3 SCC 119 (Sarla Ahuja vs. Untied India Insurance Company Lot)

6) 96 5 SCC 353 (Praava Devi vs. T.V. Krishnan)

7) 1987 2 RCR 580 (Smt Prathva Devi vs. T.V. Krishnan)

8) Sailendra Nath Roy Chowdhury Vs. Md. Alim and Another, .

Mr. Roy Chowdhury, learned counsel appearing for the respondents/ tenants contended that since the plaintiff filed a suit far eviction on the ground of own use and occupation they were to discharge their onus with regard to their requirement No inspection was conducted at the instance of the plaintiffs to support their contention that the other houses were miry tenanted. Similarly no plausible explanation was offered by the plaintiffs as to why four rooms at Hidaram Banerjee Lane. Calcutta were found under lock and key at the time of Commissioner''s visit

Mr. Roy Chowdhury further contended that since Gobintia predeceased Umasashi and the will did not provide any right in respect of Gobinda''s heirs to purchase the share of Shyamsunder such eventuality would never arise in respect of the premises at Hidaram Banerjee Lane. Calcutta and the contention of the plaintiffs to the extent that their status in the said premises was precarious, was not tenable.

Mr. Roy Chowdhury further contended that during the pendency of the instant suit and the appeal the plaintiffs obtained possession of a portion of the second floor and the ground floor of the premises at Baburam Sil Lane. Calcutta and such accommodation could cater to the need of the plaintiffs. Hence their requirement if any. stood satisfied by such subsequent event and as consequence the present ejectment suit must fail.

Mr. Roy Chowdhury lastly contended that the fact the respondents were not living in the tenanted premises could not be a ground for eviction.

Citing two Supreme Court decisions reported in Smt. Nai Bahu Vs. Lala Ramnarayan and Others, and Roshan Lal and Another Vs. Madan Lal and Others, . Mr. Roy Chowdhury contended that before passing a decree for eviction the court was to satisfy that the grounds for eviction were proved.

On the issue of bonafide requirement Mr. Roy Chowdhury cited the following decisions:

1) S.J. Ebenezer Vs. Velayudhan and Others,

2) M/S Rahabhar Productions Pvt. Ltd. Vs. Rajendra K. Tandon,

3) Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta,

4) Amarjit Singh Vs. Smt. Khatoon Quamarain,

We have examined the ratio decided in the cases cited by the learned counsel appearing for the parties. Upon analysis of the ratio decided in the aforesaid decisions by the Apex Court as well as by the High Courts our understanding of the law is as follows:

In a suit for eviction on the ground of reasonable requirement the primary onus is upon the plaintiff to prove that he reasonably requires the said premises for his own accommodation and such requirement is bonafide.

Once such primary onus is discharged and the same is not rebutted by the defendant the decree, of eviction must follow.

In case the landlord requires the premises to reside along with members of the family the court to accommodate the tenant is not entitled to ask the landlord to split up his family by minimizing his requirement.

Similarly, the court is not entitled to ask the landlord to adjust himself otherwise to accommodate the tenant

The landlord is entitled to decide as to how he wants to use his property and the tenant is not entitled to question such administration. Once the bonafide requirement is proved, decree of eviction is inevitable.

In the instant case if we look back we would find that three brothers decided to live jointly and purchased the suit property in a court auction. The said three brothers at the appropriate time filed ejectment suits against the tenants occupying their respective portions. The present accommodation of the plaintiffs was not sufficient as would appear from the Commissioner''s report. Unambiguous terms of the will of Bank Behari Dey are ex-facie apparent which can reasonably infer that the plaintiffs'' stay at Hidaram Banerjee Lane is precarious. It is true that Kedar got possession of his portion and started living along with his family members in the suit premises that in our view did not alter the situation as originally the said three brothers decided to live jointly. After the death of Netai. both Mohan''s family and Kedar''s family are entitled to live jointly and for. that they reasonably require the suit premises. Such fact in our view had come out of the pleadings and evidence and the learned judge erred in failing to hold it otherwise.

We agree with the submission of Mr. Roy Chowdhury that factum of original tenants leaving the premises by purchasing their own house per se cannot be a ground of eviction in a suit for reasonable requirement At the same time we can not overlook the fact that the respondents purchased their own house at Ramkanai Adhakari Lane, Calcutta and started residing there leaving the tenanted premises. This fact is an additional piece of evidence that in our view, cannot be brushed aside.

On examination of the pleadings and evidence we are of the view that the primary onus of proving the reasonable requirement was duly discharged by the plaintiffs and was not successfully rebutted by the respondents. Hence, the learned judge should have passed a decree for eviction.

In the result, the appeal succeeds. There would be a decree for eviction in respect of the tenanted portion under occupation of the respondent-tenants. The plaintiff would be entitled to costs of the suit as well as the appeal assessed at Rs. 10.000/-. There would be a stay of operation of the order and decree for a period of three weeks from date.

Urgent xerox certified copy would be given to the parties, if applied for.

Ashim Kumar Banerjee, J.

I agree.