Sandhya Dutta vs Khagendra Nath Burman

Ashis Kumar Chakraborty, J. - The second appeal, at the instance of the defendants is against the judgment and decree passed by the learned Additional District Judge, Fast Track Court-II, Barraackpore, North 24- Parganas in Title Appeal No. 45 of 2005 thereby, affirming the judgment and decree for eviction dated July 7, 2005 passed by the learned Civil Judge, (Junior Division) at Barrackpore in the ejectment suit, being Title Suit No. 533 of 2000 (366 of 1988).

The facts which are relevant for the decision in this appeal are as follows:

The husband of the appellant no. 1 and the father of the appellant nos. 2 to 5 namely, Paran Chandra Datta, (hereinafter called to as "the original defendant"), was a tenant in respect of the suit property, comprising one room with verandah of a single storied building at Holding No. 9 (now 9/2) T.N. Pal Road, P.O & P.S. Naihati, District-North 24-Parganas under Biswanath Sadhukhan. By a registered conveyance dated January 27, 1983 the plaintiff respondent purchased the entire property at Holding No. 9/2, T.N. Pal Road, Naihati, (in short "the said premises"), comprising the suit property from the said Biswanath Sadhukhan. In the year 1988, the respondent filed the eviction suit, being Title Suit No. 366 of 1988 (subsequently renumbered as Title Suit No. 533 of 2000) before the learned trial Judge, against the original defendant claiming a decree for his eviction from the suit property and a decree for mesne profits against him. The eviction suit was filed under the West Bengal Premises Tenancy Act, 1956, (hereinafter called as "the Act of 1956") on the grounds, that the original defendant defaulted in payment of rent and that the plaintiff reasonably requires the suit property for the use and occupation of his family, comprising himself, his wife and two sons and he is not in possession of any reasonably suitable accommodation. In the plaint, the plaintiff alleged that his family requires four rooms; one room for himself and his wife, his two sons require one room for each of them and one drawing room/guest room. Upon service of the writ of summons of the suit, the original defendant filed an application under Section 17(2) of the Act of 1956 and in terms of an order dated March 20, 1995 passed by the learned trial Judge in the said application, the original defendant paid all the arrear rent. The original defendant also filed his written statement in the suit. In his written statement, the original defendant denied all material allegations made by the plaintiff in the plaint. He even denied the title of the plaintiff in respect of the suit property. He also denied the validity of the notice under Section 13(6) of the Act of 1956 or that the plaintiff reasonably required the suit property for the use and occupation of his family. However, during pendency of the suit the original defendant died leaving behind his wife, two sons and two daughters, the appellants in this appeal, who were substituted as the defendants in the said suit.

The plaintiff amended his plaint filed in the eviction suit by incorporating the averments that his elder son has attained the marriageable age, but due to paucity of accommodation he is unable to arrange for his marriage. The plaintiff also incorporated an averment that his younger son is aged about eighteen years, a student of Higher Secondary and there is acute need of the younger son for a separate room.

The defendants filed their additional written statement denying all material allegations made in the amended plaint. They, however, alleged that recently Kalidas Mondu and Chandra Mandi have vacated their tenanted room situate at the said premises in favour of the plaintiff and as such the plaintiff does not require the suit property, comprising one room and verandah occupied by them.

On an application filed by the plaintiff under Order 39, Rule 7 of the Code of Civil Procedure, 1908, hereinafter called as "the Code" , by an order dated March 21, 2003 the learned trial Judge appointed an advocate-commissioner to inspect the said premises for the purpose of ascertaining the total number of rooms available at the said premises and the member of rooms occupied by the plaintiffs and the defendant, respectively. The advocate commissioner inspected the said premises and in the report filed before the learned trial Court (Exbt.-9) she stated that there are altogether four rooms at the said premises, out of which three are in occupation of the plaintiff''s family and one room and the verandah, being the suit property was in occupation of the defendants.

Considering the averments made in the plaint and the written statement, the learned trial Judge framed issues, inter alia, with regard to the validity and service of the notice under Section 13(6) of the Act of 1956 on the original defendant and with regard to the aforementioned grounds of eviction urged by the plaintiff.

At the trial of the suit, the plaintiff adduced evidence through himself as PW-1, his elder son (PW-2) and the advocate commissioner (PW-3). On behalf of the defendants, the defendant no. 1 alone adduced evidence. The plaintiff, through himself and his witnesses proved various documents. The registered deed of conveyance dated January 27, 1983 by which the plaintiff purchased the entirety of the said premises was proved and marked as Exbt.-1. The land revenue parcha and the Municipal Tax receipt in respect of the premises in the name of the plaintiff were proved and marked as Exbt. 2 and Exbt. 3, respectively. The notice to quit under Section 13(6) of the said Act of 1956 together with the acknowledgment due card evidencing service of the same upon the original defendant by registered post were also proved and marked as (Exbt. 4 series).

The plaintiff himself, as also his eldest son in their examination-in-chief and cross-examination stated that there are altogether four rooms at the said premises, three of the rooms are occupied by them and the remaining one room and the verandah comprising the suit property are occupied by the defendants. The advocate commissioner adduced evidence as PW3 and proved his final report. The final report of the advocate commissioner was marked as Exbt.-9. The plaintiff in his cross-examination denied the suggestion put to him that apart from the original defendant and his family, he had any other tenant at the said premises, named Kalidas Mondu or Chandra Mandi. The defendant no. 1 in her examination-in-chief admitted that there are only four rooms of at the said premises, out of which three rooms are in occupation of the plaintiffs and the remaining one room is in occupation of herself and her sons. The defendants could not prove the existence of the fifth room at the said premises or the existence of the alleged tenants Kalidas Mondu or Chandra Mandi. The defendant no. 1 as the sole witness of the defendants also admitted that PW2, the eldest son of the plaintiff was at that time aged about 25 years and the younger son of the plaintiff passed Higher Secondary Examination. In the schedule of the said registered deed of conveyance dated January 27, 1983 (Exbt.-1) it is expressly mentioned that there are four rooms in the said premises. As mentioned above, in the report of the advocate commissioner dated May 6, 2003 (Exbt.-9) it was mentioned that there are altogether four rooms at the said premises, three rooms occupied by the plaintiffs and the one room with verandah, comprising the suit property occupied by the defendants. However, from the judgment of the learned trial Judge passed in the said suit it appears that during the course of hearing of the suit and argument was advanced on behalf of the defendants that there are altogether six rooms at the said premises and the plaintiff does not require the suit property comprising one room and verandah for the residential accommodation of his family.

So far as the ground of eviction of the defendants on the ground of default of payment of rent, the learned trial Judge held that inasmuch as the defendants paid all arrear rent, in respect of the suit property, as directed by the said order dated June 20, 1995 the said ground does not survive anymore. After considering the oral and documentary evidence adduced on behalf of the respective parties, the learned trial Judge held that the notice issued by the plaintiff to the original defendant under Section 13(6) of the said Act of 1956 was lawful and the same was duly served upon the original defendant.

On a detailed analysis of the pleadings of the parties, as also the oral and documentary evidence adduced by them, the learned trial Judge held that the family of the plaintiff comprises four members, that is, the plaintiff himself, his wife and two adult sons; the plaintiff and his wife require one room for themselves, the plaintiff''s two sons require one room for each of them and the plaintiff also requires one drawing room and one dining room. The learned trial Judge further held that the plaintiff through his evidence has proved the reasonable requirement of the suit property, comprising one room and one verandah for the use and occupation of his family. So far as the argument advanced on behalf of the defendants that there are altogether six rooms at the said premises, the learned trial Judge found that neither in the written statement filed by the original defendant, nor in the additional written statement filed by the defendants there was any averment that there are six rooms at the said premises. The learned trial Judge found that in the schedule of the said registered deed of conveyance dated January 27, 1983 (Exbt.-1), it is clearly mentioned that the said premises comprises four rooms and even the report of the learned advocate commissioner (Exbt.-9) it was also stated that there are altogether four rooms at the said premises, three of which are occupied by the plaintiff''s family and the remaining one room along with the verandah are occupied by the defendants. Thus, the learned trial Judge repelled the argument advanced on behalf of the defendants that there are six rooms at the said premises and the plaintiff does not require the suit property comprising one room and verandah of the said premises for the use and occupation of the his family. With these findings, the learned trial Judge decided the issues whether the suit premises is reasonably required by the plaintiff for his use and occupation and that the plaintiff entitled to get a decree for eviction in the affirmative, in favour of the plaintiff and decreed the suit for eviction against the defendants.

Against the judgment and decree for eviction passed by the learned trial Judge the defendants filed an appeal, being Title Appeal No. 45 of 2005 before the learned first appellate Court. Considering the submissions of the learned counsel appearing for the parties and on going through the oral evidence of all the witnesses and the exhibited documents on record, the learned first appellate Court held that the learned trial Judge has rightly passed the judgment and decree for eviction against the defendant on the ground that the plaintiff reasonably requires the suit property for his own use and occupation. Thus, by the impugned judgment and decree the learned first appellate Court dismissed the appeal filed by the defendants and affirmed the judgment and decree for eviction passed by the learned trial Judge.

At the time of admission of the second appeal, the Division Bench of this Court framed the following substantial question of law.

a) Whether the learned court of appeal below committed substantial error of law in affirming the decree passed by the learned trial judge by totally ignoring the provisions contained in Order 41, Rule 31 of the Code of Civil Procedure;

b) Whether the learned court of appeal below committed substantial error of law in affirming the judgment and decree passed by the learned trial judge by not at all considering the evidence on record;

c) Whether the learned Court of appeal below committed substantial error of law in affirming the judgment and decree passed by the learned trial Judge without making any discussion as regards the evidence adduced by the witnesses;

At the time of hearing of the appeal, the only ground that was urged by Mr. Mokaram Hossain, learned counsel appearing for the defendants appellants to assail the judgments and decrees passed by the learned Courts below was that two persons namely, Kalidas Mondu and Chandra Mandi who were occupying a room of the said premises as a tenant thereof, vacated the said room in favour of the plaintiff and as such, the learned Courts below committed an error of law to hold that the plaintiff reasonably requires the room occupied by the defendants for his own use and occupation and to pass the eviction decree against the defendants.

However, Mr. Sourav Sen, learned counsel appearing for the plaintiff respondent submitted that the contention raised on behalf of the appellants defendants in the present appeal alleging that the learned Courts below committed an error of law by not dismissing the suit of the plaintiff on the ground that the said Kalidas Mondu and Chandra Mandi vacated another room of the said premises in favour of the plaintiff in devoid of any merit. He pointed out that in the Memorandum of Appeal filed in the second appeal, no ground has been urged by the defendants in support of such contention. He contended that in this case, on detailed appreciation of both oral and documentary evidence adduced by the plaintiff, both the learned Courts below have held that the plaintiff has proved the ground of reasonable requirement of the suit property for the use and occupation of his own family and the defendants appellants have not been able to demonstrate any perversity in such findings. Mr. Sen also placed the evidence adduced by the plaintiff and the defendants which are already recorded above.

With regard to the above questions framed by the Division Bench of this Court at the time of admission of the second appeal, Mr. Sen submitted that in the present case from the impugned judgment of the learned first appellate Court it is evident that the learned first appellate Court considered all the evidence adduced by the respective parties, before the learned trial Judge and the arguments advanced on behalf of the defendants appellants as also the plaintiff respondent. Relying on the decision of the Supreme Court in the case of Girijanandini Devi and Ors. v. Bijendra Narain Choudhuri reported in AIR 1967 SC 1124 (para- 12), he submitted that it is well settled that under Order 41, Rule 31 of the Code, it is not the duty of the appellate Court when it agrees with the view of the learned trial Court on the evidence, either to restate the effect of the of the evidence or to reiterate the reasons given by the learned trial Court and expression of the general agreement with the reasons given by the Court, decision of which is under appeal would ordinarily suffice. Thus, according to him, when the impugned judgment reflects that the learned first appellate Court had considered the evidence on record of the appeal and the findings of the learned trial Judge based on such evidence, it cannot be said that the judgment and decree passed by the learned first appellate Court is vitiated by an error of law under Order 41, Rule 31 of the Code. He further cited the decision of the Supreme Court in the case of Ashinkumar K. Patel v. Upendra, J. Patel and Ors. reported in AIR 1999 SC 1125, where it was held that the High Court should not ordinarily remand a case under Order 41, Rule 23 of the Code to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong and in order to avoid, unnecessary delay when the materials are available before the High Court it should itself decide the appeal one way or other. Relying on the said decision Mr. Sen submitted that in any event when all the pleadings and evidence adduced by the respective parties before the learned trial Judge are lying before this Court, this Court should not remand the appeal to the learned first appellate Court.

However, in reply no argument was made on behalf of the defendants to deal with the above decisions of the Supreme Court cited by the learned counsel for the plaintiff.

I have considered the submissions of both Mr. Hossain and Mr. Sen, learned counsel appearing for the respective parties, the pleadings of the respective parties as also the evidence adduced on behalf of the respective parties before the learned trial Judge, forming part of the record of the appeal.

In the present case, the defendants contested the suit for eviction filed by the plaintiff under Section 13 of the Act of 1956 on the ground that the original defendant defaulted in payment of rent and that the plaintiff reasonably requires the suit property comprising one room and verandah of the said premises for the use and occupation of his family and he has no other reasonably suitable accommodation.

Since, the arrear rent was already paid in terms of the order passed in the application filed under Section 17(2) of the Act of 1956, the defendants were entitled to protection under Section 17(4) of the same Act and no decree can be passed against the defendants on the ground of default of payment of rent. With regard to the other ground of reasonable requirement of the suit property by the plaintiff for his own use and occupation under Section 13(1)(ff) of the Act of 1956, on detailed analysis of the evidence adduced on behalf of the plaintiff and the defendants, which I have already recorded above, the learned trial Judge found that the said premises comprises only four rooms, out of which three are in occupation of the plaintiff''s family, the remaining one room and verandah comprising the suit property are occupied by the defendants and the suit property is reasonably required by the plaintiff for the use and occupation of his family, comprising four members. It was not argued on behalf of the defendants appellants that the plaintiff has not proved the requirement of four rooms for the use and occupation of his family comprising four members. The only ground urged in this appeal by the learned counsel of the defendants appellants was that the learned Courts below committed an error of law in not dismissing the eviction suit on the ground that there was another room at the said premises in occupation of the tenants Kalidas Mondu and Chandra Mandi, they have vacated the said room in favour of the plaintiff and as such, the plaintiff does not require the suit room and verandah. However, both PW1 and PW2 through their oral evidence and the registered conveyance dated January 27, 1983 (Exbt.-1), the report of the advocate commissioner (Exbt.-2) proved that there are only four rooms at the said premises. Even DW1, the sole witness of the defendants in his examination-in-chief stated that there are four rooms at the said premises, three rooms are in occupation of the plaintiff and the remaining one is occupied by the defendants. The onus lied on the defendants to prove the existence of the fifth room at the said premises, the tenancy/occupancy of that fifth room by the said Kalidas Mondu or Chandra Mandi and the plaintiff obtaining possession of the said fifth room from any of them, but the defendants have failed discharge such onus. Therefore, the defendants failed to substantiate that the plaintiff has any other suitable accommodation to fulfil the requirement of the family. For all these reasons, I find no merit in the argument advanced on behalf of the defendants appellants that the decision of the learned Courts below to decree the suit for eviction on the ground that the plaintiff requires the suit property for the use and occupation of his family is vitiated by any error of law.

Further, in the present case the learned first appellate Court has agreed with the finding of the learned Court below that the plaintiff reasonably requires the suit property for the occupation of his own family and while doing so the learned first appellate Court considered the evidence adduced by the respective parties before the learned trial Judge, as well as the arguments advanced before him on behalf of the defendants appellants and the plaintiff respondent. Thus, in view of the decision of the Supreme Court in the case of Girijanandini Devi (supra) cited by the learned counsel of the plaintiff, I do not find that while passing the impugned judgment the learned first appellate Court has ignored the provisions contained in Order 41, Rule 31 of the Code or that the learned first appellate Court has affirmed the judgment and decree passed by the learned trial Judge by not considering the evidence on record. Since I have already held that the judgment passed by the learned first appellate Court does not violate the provisions of Order 41, Rule 31 of the Code, there is no need to deal with the decision of the Supreme Court in the case of Ashinkumar K. Patel (supra) cited on behalf of the respondent plaintiff.

For all the foregoing reasons, I do not find any infirmity in the judgment and decree passed by the learned first appellate Court affirming the judgment and decree passed by the learned trial Judge and consequently the appeal stands rejected. The judgment and decree passed by both learned Courts below directing eviction of the defendants stand confirmed.

Let the lower Courts'' records be forthwith sent down by Special Messenger. The respondent plaintiff shall deposit the Special Messenger''s cost in the Department within June 24, 2016.

Let the decree be drawn up expeditiously.

However, there shall be no order as to costs.