Sm. Mina Bose vs Miss Dali Ghosh

Bhaskar Bhattacharya, J.—This second appeal is at the instance of a tenant/defendant in a suit for eviction and is directed against the judgement and decree dated July 31, 1994 passed by the learned Assistant District Judge. Sealdah in Title Appeal No. 79 of 1994 thereby reversing those dated March 29, 1994 passed by the learned Munsif. 1st court. Sealdah in Title Suit No. 311 of 1988. The respondent herein filed the aforesaid suit for eviction of the appellant, inter alia, on the ground of reasonable requirement and the case made out by the respondent was. inter alia, as follows :

The plaintiff was the owner of the property and she purchased the same in the year 1980. Due to ill health, the plaintiff could not marry and she was living in a rented house along with her unmarried sister and two brothers and the accommodation available therein was too small to meet her requirement for separate space for living, nursing, special cooking etc. Apart from the aforesaid accommodation, she had no other reasonably suitable accommodation elsewhere.

The aforesaid suit was contested by the present appellant by filing written statement thereby denying the allegations made in the plaint and the defence of the appellant was that the appellant purchased two buildings, being premises Nos. 14C and 14D. Naba Basu Lane, but within one year, the respondent disposed of the other building at 14D. Naba Basu Lane which was lying vacant as she was not in need of any accommodation. According to the appellant the respondent had sufficient accommodation in the rented house at 13. Naba Basu Lane.

The learned trial Judge on consideration of the materials on record held that the respondent could not prove any document showing that she was suffering from Tuberculosis'' and as such there was no necessity of her attendants and of separate space for living, nursing, special cooking etc. The learned trial Judge further found that the respondent having sold the other premises viz. Premises No. 14D which was lying vacant, it showed that her requirement was not bona fide. Further, according lo the learned trial Judge the respondent did not take step for inspection of the present accommodation in the rented premises and as such it was very difficult to believe that the respondent had no sufficient accommodation at the rented premises. The learned trial Judge thus dismissed the suit.

Being dissatisfied, the respondent preferred an appeal before the learned first appellate court below and by the judgement and decree impugned herein, the learned first appellate court below has set aside those passed by the learned trial Judge and has decreed the suit for eviction on the ground of reasonable requirement of the respondent.

Being dissatisfied, the tenant has preferred the instant second appeal.

At the time of admission of the instant second appeal under Order 41 Rule 11 of the Code of Civil Procedure, the Division Bench admitting such appeal formulated the following substantial questions of law

i) Whether Lower Appellate Court was justified in curbing out new case of licence and whether there was any material in the plaint setting of the case that the plaintiff was living in an accommodation as a licensee and not as a tenant?

ii) Whether the Lower Appellate Court was justified in reversing the finding of the trial court without meeting the specific ground on which the trial court dismissed the plaintiffs suit?

iii) Whether in the absence of a local inspection, the decisions of the courts below have materially affected the controversy in dispute?

iv) Whether non-production of the materials at the instance of the plaintiff in support of her illness was material bearing on the dispute in question?

Mr. Banerjee, the learned counsel appearing on behalf of the appellant has attacked the finding of the learned first appellate court below by pointing out that the learned first appellate court below erred in holding that the respondent was a licensee in the rented accommodation at 13 Naba Basu Lane. Mr. Banerjee by referring to the deposition of the respondent submits that the respondent herself admitted that her father was the original tenant of that premises and after the death of her father, her mother, two brothers and two sisters inherited the tenancy right and that they had not surrendered such tenancy right. According to Mr. Banerjee, in view of such unequivocal statement, it cannot be held that the respondent was a licensee under her elder brother in the said tenanted accommodation. In this connection the appellant has filed an application under Order 41 Rule 27 of the CPC for the purpose of showing that the eviction suit filed by the landlords of (he present respondent has already been dismissed for default and as such there is no threat of eviction from the landlords of that premises. By consent of the learned advocates for the parties, the said application was allowed and the information slip showing that the said suit has been dismissed for default has been taken into consideration as additional evidence. Mr. Banerjee further submits that the said finding being totally based on non consideration of vital piece of evidence, the learned court of appeal below committed a substantial error of law in disposing of the appeal by treat: the respondent as licensee under her brother. Mr. Banerjee, therefore, prays for setting aside the said judgement and demanding the matter back to the learned first appellate court below for fresh consideration.

Mr. Banerjee further contends that the plaintiff/respondent did not apply for any local inspection of the tenanted accommodation at 13. Naba Basu Lane. Therefore, for the purpose of consideration whether there is sufficient accommodation in 13. Naba Basu Lane the matter is required to be remanded.

Mr. Banerjee further contends that in the absence of any material showing that the respondent was really suffering from tuberculosis, the learned court of appeal below erred in law in considering the case of illness of the respondent as pleaded in the plaint and thus the said judgement cannot be sustained.

Mr. Dasgupta, the learned senior counsel appearing on behalf of the respondent has fairly conceded that in view of the materials on record, the learned court of appeal below should not have treated the respondent as a licensee under her elder brother. Mr. Dasgupta however submits that even if she is a joint tenant having 1 /4th share in the said tenanted accommodation along with her sister and two married brothers, the accommodation available in the said rented accommodation cannot be said to be reasonably suitable accommodation of the plaintiff. Mr. Dasgupta further submits that his client asserted that there were four rooms apart from kitchen and bath in the said rented accommodation, whereas the case of the appellant was that there are five rooms in the said rented accommodation apart from kitchen and bath. Therefore, according to Mr. Dasgupta even if the appellant''s case is taken to be true, in view of the evidence on record it is clear that the rented accommodation available in 13. Naba Basu Lane cannot be said to be sufficient because admittedly the elder brother of the respondent has wife and four adult sons who are all above 30 years of age. Over and above, the younger brother of the plaintiff has wife and a son. Moreover, the plaintiff has an unmarried sister. Therefore, in the said tenanted accommodation consisting of five rooms there are eleven members and the plaintiff has 1/4th share in such tenancy right. Under the aforesaid circumstances, that tenanted accommodation where plaintiff has only 1/4th share, cannot be said to be reasonably suitable accommodation when she is the owner of the suit property which consists of three rooms apart from bath and kitchen.

Mr. Dasgupta further contends that even if it is assumed that at present the respondent is not suffering from tuberculosis, in that case she requires one room for herself, one for her younger sister, one room for her married younger brother. Thus, she requires atleast four rooms. Mr. Dasgupta thus prays ''that there is no necessity of remanding the matter back to the learned first appellate court below or the learned trial court, since the suit is pending from 1988.

After hearing the learned counsels for the parties and after going through the materials on record I find that the learned first appellate court below really committed a substantial error of law in holding that the respondent was a licensee under her elder brother in the rented accommodation. In view of specific evidence showing that the father of the respondent was a tenant and after his death, (he other heirs have not surrendered their tenancy right, it cannot be argued that responded elder brother was the sole tenant. However, in view of the fact that the matter is pending for last 12 years, instead of unnecessary remand, I have decided to hear out the issue of reasonable requirement on the basis of materials on record by exercising my power u/s 103 of the CPC reads with Order 41 Rule 24 thereof, and accordingly I invited the learned advocates for the parties to argue on merit on the issue of reasonable requirement on the basis of materials on record.

After hearing the learned counsels for the parties I find that even if I accept the contention of Mr. Banerjee that in the tenanted accommodation at 13, Naba Basu Lane there are five rooms, in view of the admitted fact that the elder brother of the respondent has got four major sons who have attained marriageable age, and of the further admitted fact that the younger brother of the respondent is also married having one child, the five rooms available in the rented accommodation cannot be said to be reasonably suitable accommodation of the plaintiff/ respondent who has got only 1/4th share. In the suit premises there are three rooms. It appears from the evidence that the plaintiff wanted to stay separately from her elder brother''s family with her younger brother and younger sister. Therefore, three rooms available in the suit property are reasonably required by the plaintiff for her own use and occupation when admittedly she along with her younger brother and the younger sister is living separately from the family of her elder brother. I am unable to accept the further contention of Mr. Banerjee that the elder brother of the plaintiff should be satisfied with two rooms in the rented accommodation and plaintiff along with her two brothers and sister should occupy the remaining three rooms of said rented accommodation and by taking possession of one room from the suit property, the requirement of the plaintiffs can be satisfied. As pointed out earlier, in the said tenanted house the elder brother of the plaintiff with four grown up sons of marriageable age are living and under such circumstances it cannot be said that the plaintiff has reasonably suitable accommodation in the said rented premises. I am unable to accept the contention of Mr. Banerjee that merely because the plaintiff sold away the other house viz. 14D, Naba Basu Lane in the year 1981. seven years prior to the institution of the suit, she cannot pray for eviction of her tenant on the ground of reasonable requirement or that her plea of reasonable requirement should be branded as a mala fide one.

Therefore, from such fact, no mala fide can be inferred. Under the aforesaid circumstances, even if the plaintiff is not suffering from tuberculosis at present, she being unmarried and being owner of the property cannot be forced to occupy the other tenanted accommodation where she has got just 1/4th share when her elder brother''s family consists of six adult members. Therefore, even partial eviction of the tenant form the suit property cannot serve the purpose of the respondent as there is no additional kitchen bath or privy in the suit property.

Therefore, although I am not approving the reason assigned by the learned first appellate court below, the ultimate conclusion that the plaintiff reasonably required the suit property for her own use and occupation cannot be upset in view of the facts and circumstances of the case. I, therefore, dismiss the aforesaid appeal with a fresh finding that plaintiff reasonably requires the entire suit property for her own use and occupation and also for the accommodation of her unmarried sister and younger brother who are also the members of her family. In the suit property, there being only three rooms apart from kitchen and bath, no question of partial eviction arises.

The appeal is therefore dismissed. In the facts and circumstances there will be however no order as to costs.