Rina Ghosh vs Makhan Lal Ghosh

Tarun Kumar Gupta, J.—The plaintiff landlady is the appellant in this case. This appeal has been preferred against judgment and decree dated 21st January, 1998 passed by learned Additional District Judge, First Court at Alipore in Title Appeal No. 102 of 1997 reversing the judgment and decree of eviction dated 31st March, 1997 passed by learned Munsif, Second Court at Alipore in Title Suit No. 522 of 1990. The appellant filed said suit for eviction against the respondent tenant on the ground of default and reasonable requirement of the suit premises, after service of statutory notice to quit. It was specific case of the appellant landlady that her family consisted of herself and her husband, her aged parents-in-law, her two school going children, brother-in-law Asoke Ghosh and unmarried sister-in-law Ruby Ghosh It is further case that as her accommodation in the suit house comprising of only four rooms inclusive of one kitchen was grossly inadequate her husband had to take two rooms in a nearby house at 64 Garcha Road on rent and that landlady of said rented house already asked her husband to vacate the same. It was further case that she had no other reasonable suitable accommodation elsewhere and accordingly she prayed for eviction of the respondent tenant.

The respondent filed written statement followed by additional written statement denying material allegations of the plaint and contending inter alia that plaintiff''s parents-in-law reside with their second son Tapan Ghosh and brother-in-law Asoke Ghosh was not also residing with the family of the plaintiff and that present accommodation of the plaintiff was sufficient and that the suit was liable to be dismissed.

Learned Trial Court passed the decree of eviction by observing that the evidence on record, both oral and documentary, showed that plaintiff, her husband, her two school going sons, were residing in joint mess with her parents-in-law, unmarried brother-in-law Asoke and unmarried sister-in-law Ruby Ghosh and that plaintiff was in possession of only four rooms in the suit house i.e., 62/D Garcha Road and that the plaintiff husband occupies two rooms together with a narrow verandah and bath and privy in a tenanted premises at 64 Garcha Road and that tenanted premises cannot be said to be a good, secured and reasonable accommodation and that plaintiff''s present accommodation was highly insufficient and that the plaintiff reasonably required the suit premises for her and her family members'' use and occupation.

However, in the appeal preferred by the present respondent tenant learned Lower Appellate Court reversed said judgment and decree of eviction on the ground that by this time the unmarried sister-in-law Ruby Ghosh has been married and that plaintiff is in occupation of six bed rooms, four in the suit house and two in the tenanted premises of the plaintiff husband, and that said accommodation was sufficient to cater the need of the plaintiff landlady.

At the time of admission of this second appeal brought at the instance of the plaintiff landlady the following two substantial questions of law were formulated.

(1) Whether the learned court of appeal below committed an error in holding that the plaintiff''s requirement of six rooms could be met as he is in occupation of four rooms of the suit house and two rooms at a different premises which is tenanted one.

(2) Whether keeping in view the provisions of Section 13(i)(a) of the West Bengal Premises Tenancy Act a landlord who being in occupation of a tenanted premises of which he is to pay rent is entitled to file a suit for eviction on the ground of bona fide requirement.

Mr. Jiban Ratan Chatterjee, learned counsel for the appellant, submits that at the time of passing of the judgment learned Lower Appellate Court referred a case law reported in AIR 1977 Supreme Court page 1357 wherein Hon''ble Justice Krishna Iyer observed that in the cases of eviction suit the Courts should try to follow the policy of "live and let live". According to Mr. Chatterjee said case law had no application in the facts of this case as it came out from the evidence on record that the present accommodation of the appellant landlady was highly insufficient having no other reasonable suitable accommodation elsewhere. In this connection he has also referred the case law reported in Union of India (UOI) Vs. Chajju Ram (Dead) by Lrs. and Others, to impress upon this Court that a case law having different sets of facts should not be applied to a case. Mr. Chatterjee, learned senior counsel, further refers a case law reported in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, to highlight that at the time of deciding the question of reasonable requirement put forward by the landlord the Court should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the suit premises can be said to be natural, real, sincere and honest, and that if the answer be in the positive, the need was bona fide.

Mr. Chatterjee next refers case laws reported in 1977(2) CLJ (Cal) 19 (Dr. Haraprosad Biswas vs. Bamdeb Roy) and 88 CWN 905 (Mrs. R.G. Vakil and another vs. Ramendra Nath Banerjee) to impress upon this Court that a tenanted premises cannot be said to be a reasonable suitable alternative accommodation for own house and that own house has always an edge upon tenanted house. Mr. Chatterjee next submits that on the basis of evidence on record, both oral and documentary, learned Trial Court came to a finding of fact that parents-in-law and unmarried brother-in-law of the marriageable age (Asoke) and unmarried sister-in-law Ruby were within the family of the plaintiff landlady as they had ration cards together showing suit house (62/D Garcha Road) as their residential house. According to him said findings of fact of said learned Trial Court was not disputed by learned Lower Appellate Court. He further submits that in spite of said findings of fact by learned Trial Court which was not disputed by learned Lower Appellate Court, learned Lower Appellate Court palpably came to a wrong finding that plaintiff and her husband together were in possession of six bed rooms, four in the suit premises and two in the plaintiff''s husband''s tenanted premises and that these six bed rooms can cater the requirement of the plaintiff as plaintiff''s sister-in-law Ruby has been married by this time. According to Mr. Chatterjee the Commissioner report which was admitted by both parties clearly showed that the appellant landlady was in possession of only four rooms including one kitchen in the suit premises and only two rooms together with a narrow strip of verandah and bath and privy in the plaintiff''s husband''s tenanted premises. According to him learned Lower Appellate Court''s observation that the plaintiff landlady was in occupation of six bedrooms was nothing but perverse. He further submits that learned Lower Appellate Court also included tenanted occupation of plaintiff''s husband as reasonable accommodation of the plaintiff in violation of the settled principles of law. According to him, the ultimate finding of learned Lower Appellate Court that the plaintiff did not reasonably require the suit premises was perverse and is liable to be set aside by this Court in this second appeal.

Mr. Probal Mukherjee, learned counsel for the respondent tenant, on the other hand, refers case laws reported in AIR 1979 272 (Bega Begum and Ors. Vs. Abdul Ahad Khan and Ors.) and A.K. Mukherji Vs. Prodip Ranjan Sarbadhikary and Others, to impress upon this Court that the words "reasonable requirement" undoubtedly postulate that there must be an element of need which is opposed to mere desire. He further submits that by this time the aged parents-in-law of the plaintiff have admittedly died and that requirement of one bed room for their use is no longer existing. He further submits that in the absence of any proof of threat of eviction from the tenanted premises it should not be accepted as a rule that the occupation in a tenanted premises is vulnerable and should not be treated as a reasonable and alternative accommodation. He further submits that appellant landlady''s occupied portion of the suit house together with her husband''s occupied portion of nearby tenanted premises satisfies the reduced requirement of the plaintiff landlady as on date and hence there is no need to interfere with the judgments of learned Lower Appellate Court. In this connection he has referred case laws namely Rajeshwari Vs. Puran Indoria, and Jagat Bandhu Batabayal Vs. Jiban Krishna Roy, to impress upon this Court that the High Court in exercise of power u/s 100 of the CPC cannot interfere with the findings of fact, however, erroneous and hence there is no scope of interfering with the impugned judgment even if the finding of learned Lower Appellate Court in negation of plaintiff''s requirement was erroneous.

There is no denial that a finding of fact of the Court below, however erroneous, cannot be interfered with unless a substantial question of law is involved therein. Now, it is well settled that if the findings of fact of the learned Court below is based on no evidence or based on extraneous matters or based on palpable wrong appreciation of evidence or against settled principles of law then it raises substantial questions of law justifying interference u/s 100 of the Code of Civil Procedure.

Both the Courts came to the concurrent findings of fact on the basis of materials on record, both oral and documentary, that plaintiff''s family consisted of plaintiff and her husband requiring one bed room, plaintiff''s parents-in-law requiring one bed room, plaintiff''s two school going sons aged about 17 and 14 years requiring one bed room and plaintiff''s unmarried brother-in-law Asoke in the marriageable age requiring one bed room. During hearing of the first appeal plaintiff''s sister-in-law Ruby was already married and accordingly learned Lower Appellate Court rightly did not consider the requirement of one bedroom for her. Learned Trial Court held that apart from bedrooms a middle class family requires one drawing room, one dining room, one kitchen and one thakur ghar. Learned Lower Appellate Court while discussing the evidence on record as well as findings of learned Trial Court did not dispute said observations and findings of learned Trial Court. From the report of learned Advocate Commissioner it came out that in the suit house plaintiff landlady was in occupation of four rooms out of which three were used as bed rooms and one as kitchen. It further came out from said Commissioner''s report that plaintiff''s husband was in occupation of only two rooms, one narrow verandah and bath and privy in his rented accommodation out of which one room was used as bedroom and another as drawing room. Admittedly a tenanted accommodation cannot be equated with own house accommodation as a tenanted accommodation is always vulnerable. As such, said tenanted accommodation of the plaintiffs'' husband at 64 Garcha Road cannot be said to be reasonably suitable accommodation for assessing the requirement of the appellant plaintiff landlady. Apart from that forcing the landlady to use a nearby tenanted premises in addition to her present occupation of a portion of suit house, amounts to fragmenting her family. Though the application being CAN Nos. 2867 of 2010 and 2868 of 2010 filed by the appellant plaintiff were rejected being not pressed but it came out during argument that plaintiff''s parents-in-law have since died and that requirement of one bedroom for their use and occupation as projected during filing of this suit has since evaporated. As on date plaintiff''s requirement can be said to be one bed room for plaintiff and her husband, one bed room for plaintiff''s brother-in-law Asoke, at least one bedroom if not two bed rooms for the plaintiff''s sons who by this time have attained marriageable age (in 1997 they were aged about 17 and 14 years respectively), one drawing room, one dining room, one kitchen and one thakur ghar i.e., minimum seven/eight rooms. I have already stated that as per Commissioner''s report appellant plaintiff landlady was in occupation of only four rooms including one kitchen in the suit house. The finding of fact of learned Lower Appellate Court that plaintiff was in occupation of six bedrooms even including the rented accommodation of plaintiff husband was palpably wrong as those six rooms included one drawing room and one kitchen. The suit premises in occupation of the respondent tenant comprises of one bedroom and one place measuring 10 ft. X 4 ft 11 inches which is being used as kitchen-cum-dining. It is thus palpable that the entire suit premises is reasonably required by the appellant landlady for her and her family members'' use and occupation and that the impugned judgment of learned Lower Appellate Court was based on surmise and conjecture as well as against the settled principles of law.

As a result, the appeal is hereby allowed on contest but without cost.

The impugned judgment and decree of learned Lower Appellate Court are hereby set aside by restoring the judgment and decree of eviction passed by learned Trial Court.

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.