Sri Dilip Kr. Dey and Others vs Sri Sanjoy Polley

Jyotirmay Bhattacharya, J.—This Second Appeal is directed against the judgment of reversal passed by the learned Assistant District Judge, Howrah on 31st January, 1996 in Title Appeal No. 169 of 1994 reversing the judgment and decree dated 23rd June, 1994 passed by the learned Munsif, 7th Court at Howrah in Title Suit No. 18 of 1991, at the instance of the plaintiff/appellant.

The facts leading to the filing of the instant Second Appeal are summarized hereunder as follows:

The plaintiffs filed a suit for eviction against the defendant/respondent herein on the ground of default in payment of rent and also on the ground of reasonable requirement of the plaintiffs and the members of their family. The plaintiffs'' family consists of plaintiff No. 1 (mother), the plaintiff No. 2, his wife, one adult son and two grown up daughters. The plaintiff Nos. 3 and 4 are the married sisters of the plaintiff No. 2.

Originally the suit premise was owned by the father of the plaintiff No. 2. On the death of the father of the plaintiff No. 2 all the plaintiffs jointly inherited the suit premises by way of succession. The plaintiffs, thus, are the owners of the suit property.

The plaintiffs are in possession of three rooms in the suit property. One of such rooms was used by the plaintiff No. 1 as her bedroom. Another room is used by the plaintiff No. 2 and his wife as their bedroom. The other room is used as the bedroom of the sons and daughters of the plaintiff No. 2. The plaintiffs claimed that the plaintiffs require one bedroom for the son of the plaintiff No. 2. They further claimed that the daughters of the plaintiff No. 2 require one study room. They also claimed that the son of the plaintiff No. 2 requires another room for carrying on his business of operating leath machines therein. They further claimed that they require one guest room for accommodating the married sisters of the plaintiff No. 2 viz. the plaintiff Nos. 3 and 4 herein whenever they will visit the suit holding to see their old ailing mother. Thus, the plaintiffs, in fact, claim four additional rooms to meet their requirement. The plaintiffs claimed that they do not have any other reasonable suitable alternative accommodation elsewhere.

Under such circumstances, the plaintiffs caused an eviction notice served upon the defendant through their learned Advocate''s letter which was served upon the defendant by Registered Post with acknowledgement due. Since in spite of service of the said notice, the defendant failed and/or neglected to vacate the suit premises, the instant suit was filed. Though initially the plaintiffs stated in the plaint that the postal receipt showing remittance of the said ejectment notice by post and the A/D Card wherein the defendant acknowledged the service of such notice, were filed along with the plaint but subsequently the plaintiffs amended their pleadings by introducing that the ejectment notice which was sent by the plaintiffs'' lawyer by Registered Post with acknowledgement due on 24th November, 1990 under registration receipt No. 1793 from Howrah Post Office was duly received by the defendant but the acknowledgement card was not returned to the plaintiffs'' lawyer for which the plaintiffs'' lawyer wrote a letter to the Post Master of Howrah Post Office on 22nd November, 1990 seeking intimation regarding the fate of such service. In reply to the said letter the Postal Authority, by its letter confirmed that the said notice was duly received by the addressee. A duplicate A/D card issued by the Postal Authority with due attestation thereof by the Post Master together with the Post Master''s letter written to the plaintiffs'' lawyer confirming due service of ejectment notice upon the defendant, were filed with plaint. The earlier statement of the plaintiffs regarding filing of the acknowledgement card along with the plaint, as stated in paragraph 5 of the plaint, was also deleted by the said amendment.

The defendant/respondent contested the said suit by filing written statement stating therein that the accommodation available to the plaintiffs in the suit premises is sufficient to meet their requirement. He further claimed that apart from the said three rooms, the plaintiffs have another room in their possession though in damaged condition. He further stated that the suit room being a low height room is unsuitable for the plaintiffs'' habitation. He further claimed that apart from the suit room there are other rooms in the suit premises in occupation of the other tenants but since the plaintiffs have not taken any step for evicting those tenants and further since the requirement of the plaintiffs as a whole cannot be satisfied, by evicting the defendant from the suit room, the Court should not pass any decree for eviction against the defendant. He further denied that he committed default in payment of rent as alleged. Service of ejectment notice upon the defendant was denied by him. The defendant also challenged the legality and validity of the said ejectment notice. From the aforesaid pleadings it appears that ownership of the plaintiffs in the suit property was not disputed by the defendant. The relationship of landlord and tenant between the parties was also not disputed in the said suit. The parties have led their respective evidence in the said suit.

The learned Trial Judge after taking into consideration the pleadings of the respective parties and their evidence adduced in the said suit, came to the conclusion that the plaintiffs reasonably require the suit premises for their own use and occupation. The learned Trial Judge held that apart from the three rooms which are in occupation of the plaintiffs in the suit holding, the plaintiffs also reasonably require one room for the son of the plaintiff No. 2; for starting his business of leath machines therein. The learned Trial Judge further held that the plaintiffs also reasonably require another study room for the daughters of the plaintiff No. 2. The learned Trial Judge also held that the plaintiffs also require one guest room for accommodating the married sisters of the plaintiff No. 2 namely the plaintiff Nos. 3 and 4 herein in the said premises, whenever they will visit their paternal house to see their old ailing mother. Thus, the learned Trial Judge held that the plaintiffs reasonably require three rooms in addition to their existing accommodation in the suit premises. The learned Trial Judge, however, held that the defendant is not a defaulter in payment of rent of the suit premises.

With regard to service of ejectment notice upon the defendant, the learned Trial Judge held that the notice was duly served upon the defendant by disbelieving the defendant''s plea that such service was neither tendered to him nor effected upon him. On scrutiny of the evidence on record regarding service of ejectment notice upon the defendant, the learned Trial Judge found that the ejectment notice was duly sent by Registered Post to the defendant at his correct address. Thus, considering the copy of the ejectment notice, the postal receipt showing sending of such ejectment notice by Registered Post with acknowledgement due and the copy of the duplicate acknowledgement card issued by the Postal Authority showing receipt of such notice by the addressee and the correspondences concerning such service made between the plaintiffs'' lawyer and the concerned Post Master, the learned Court below held that service of the ejectment notice upon the defendant was duly proved by the plaintiffs and the said ejectment notice was valid, legal and sufficient. Under such circumstances, an eviction decree was passed in the said suit by the learned Trial Judge on the ground of reasonable requirement of the plaintiffs. Being aggrieved by the said judgment and decree of the learned Trial Judge, an appeal was preferred by the defendant before the learned First Appellate Court. The said appeal was, however, allowed on contest by setting aside the judgment and decree by the learned Trial Judge. The learned Appeal Court held that service of the ejectment notice upon the defendant could not be proved by the plaintiffs. The learned Appeal Court held that the plaintiffs'' witness being P.W.4, an overseer attached to the concerned Post Office is not a competent witness to prove service of such ejectment notice upon the defendant as admittedly he has no personal knowledge about such service upon the defendant. The learned Appeal Court also held that the original pleadings of the plaintiffs regarding service of notice upon the defendant and the amended pleadings of the plaintiffs regarding service of such notice upon the defendant are inconsistent. The learned Appeal Court proceeded with the impression that as if the original pleadings wherein the plaintiffs stated that the returned acknowledgement card which was filed with the plaint, was not deleted even after the amendment. As such, the learned Appeal Court gave much importance to the inconsistent and contradictory stand taken by the plaintiffs in their pleadings in the suit.

The learned Appeal Court also held that the plaintiffs do not reasonably require the suit premises for their own requirement. Such findings was arrived at by the learned Appeal Court as the plaintiffs who require four more rooms to meet their requirement, have not taken any step against their other tenants for recovery of possession of the rooms in occupation of those tenants particularly when the entire requirement of the plaintiffs cannot be satisfied by evicting the defendant from the suit room.

Thus, on the aforesaid findings the judgment and decree of the learned Trial Judge were set aside and the decree of eviction which was passed by the learned Trial Judge was also reversed.

Hence, the instant Second Appeal was filed by the plaintiffs/appellants herein before this Court. While admitting the said appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure, substantial question of law was not formulated. As such, this Court, in course of hearing of this appeal, formulated the following substantial questions of law:

i) Whether in spite of certificate granted by the Postal Authority certifying service of notice dated 24th November, 1990 upon defendant/respondent, the Court of Appeal below erred in not taking the evidentiary value of such certificate Ext.(9).

ii) Whether presumption of service available u/s 114 illustration (e) of Evidence Act has been rebutted.

iii) Whether the Court below was justified in refusing relief to the plaintiff on the ground of own use and occupation notwithstanding the fact that the plaintiff is the best judge about his requirement both for residential and commercial purpose and Court cannot squeeze such requirement.

Thus, this appeal was heard on the aforesaid three substantial questions of law.

Let me now consider the merit of this appeal with reference to the aforesaid substantial questions of law.

Re: Question No. 1 & 2

Since these two questions of law are interrelated with each other, the said two questions of law are dealt with analogously.

The plaintiffs/appellants not only adduced oral evidence but also proved various documents in support of their claim for service of ejectment notice upon the defendant/respondent. Copy of the ejectment notice, postal receipt showing sending of the said ejectment notice by Registered Post, duplicate acknowledgement card issued by the concerned Post Master with due attestation thereof by the Post Master, showing delivery of the ejectment notice upon the addressee, letter written by the plaintiffs'' lawyer to the Post Master of the concerned Post Office seeking information regarding the fate of service of the ejectment notice upon the addressee and the reply given by the Post Master of the concerned Post Office to the plaintiffs'' lawyer confirming service of such notice upon the defendant, were all admitted into evidence, on proof at the instance of the plaintiffs/appellants.

No dispute was raised either with regard to the proof and/or with regard to the evidentiary value of those documents relating to service of ejectment notice excepting the duplicate A/D Card (being Exhibit.9) issued by the Postal Department which according to the learned Appeal Court was unworthy of reliance as the P.W.4 who came from the Postal Department to prove the said document was incompetent to prove the same as he had no personal knowledge as to who prepared the said document and/or under whose signature the said document was issued.

The learned Appeal Court, thus, ultimately came to the conclusion that service of ejectment notice upon the defendant could not be proved by the plaintiffs without giving any importance to the evidence of the plaintiffs'' said witness being P.W.4 who stated that the said duplicate acknowledgement card was prepared after perusing the delivery sheet and the same was issued in usual course of official business.

Mr. Bhattacharya, learned Advocate, appearing for the respondent supported the judgment of the learned Appeal Court on the point of notice by relying upon decision of the Division Bench of this Hon''ble Court in the case of Amal Kumar Banerjee v. Sm. Santi Devi reported in 83 CWN 753 to show that when the defendant in his evidence denied the service of ejectment notice upon him, the presumption of service of registered letter should be deemed to have been rebutted.

On perusal of the said decision, this Court holds that the principle laid down in the said case, has no application in the facts of the present case firstly for the reason that the circumstances under which such conclusion was arrived at by the Division Bench of this Hon''ble Court are completely different from the facts in the present case. In the said case, no attempt was made by the plaintiff to prove the duplicate acknowledgment card issued by the postal authority by summoning any witness from the postal department. There the original acknowledgement card did not come back and the duplicate acknowledgement card was not proved by the postal authority and under such circumstances, it was held by this Court, that presumption regarding service of registered notice should be held to have been rebutted as the defendant stated on oath that such service was not tendered to him.

But in the instant case, this Court finds that since the acknowledgement card did not come back, the plaintiffs'' Advocate wrote a letter to the concerned Post Master seeking information from the postal authority about the fate of such service, and in reply thereto the concerned Post Master by his letter confirmed that such service was duly accepted by the defendant. A duplicate acknowledgment card with due attestation was issued by the concerned Post Master. Those documents were all admitted into evidence on proper proof thereof by an overseer from the concerned Post Office who said that the duplicate acknowledgement card was prepared after perusing the delivery sheet and the same was issued in usual course of official business. Neither any suggestion was given to the plaintiff''s said witness regarding any irregularity in the process of preparation of such duplicate A/D Card nor any suggestion was given as to issuance of the said A/D card in collusion with the Postal Department nor the said witness was cross-examined on the point of issuance of the duplicate A/D Card without observing the official formalities in this regard.

In my view, findings of the learned Appeal Court on the notice point, cannot be sustained in view of the provision contained in Section 114 of the Evidence Act (Illustration e) which says that the Court may presume that judicial and official acts have been regularly performed. The defendant never suggested that the duplicate acknowledgement card was not issued by following the requisite official formalities. In my view, in the absence of proof that such duplicate acknowledgement card was issued without following the requisite official formalities or in collusion with the concerned Post Master, Court cannot refuse to draw presumption regarding the correctness of such document which was issued in compliance of the requisite official formalities. Onus of such proof is upon the defendant who in my view, has failed to discharge his duties in proving that such duplicate acknowledgement card was issued without following due official formalities in this regard.

That apart, when the formalities which the plaintiffs were required to perform for sending the ejectment notice to the defendant by Registered Post with acknowledgement due to the correct address to the addressee, have been complied by the plaintiffs, the Court cannot refuse to draw presumption of due service of such notice upon the addressee by following the provision contained in Section 27 of the General Clauses Act in view of the decision of the Hon''ble Supreme Court in the case of M/s. Madan and Co. Vs. Wazir Jaivir Chand, wherein it was held as follows:

Para 6: We are of opinion that the conclusion arrived at by the Courts below is correct and should be upheld. It is true that the proviso to Clause (i) of Section 11(1) and the proviso to Section 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant''s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee u/s 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorized by him. Such a person may either accept the letter or decline to accept it. In either case there is no difficulty, for the acceptance or refusal can be treated as a service on and receipt by the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorized to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorized to affix the letter on the premises because of the assessee''s absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the address, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee''s own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorized by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.

In view of the aforesaid decision of the Hon''ble Supreme Court, this Court cannot agree with the conclusion of the Appeal Court regarding non-service of ejectment notice upon the defendant particularly when the legality and validity of such notice was challenged by the defendant which the defendant, in my view, could not have challenged unless he received the said notice. In my view the decision taken by the Division Bench of the Hon''ble Court in the case of Amal Kumar Banerjee (supra) has lost its significance in view of the decision of the Hon''ble Supreme Court in the case of Madan & Co. v. Wazir Jaivir Chand (supra) wherein it was held that sending of ejectment notice by registered post to the correct address of the addressee is sufficient to prove service of such notice upon the addressee and the word "served" be read as "sent by post".

Accordingly, this Court concurs with the findings of the learned Trial Judge regarding service of ejectment notice upon the defendant.

Re: Question No. 3

It is no doubt true that the landlord is the best judge of his requirement. While considering the plaintiffs'' claim for requirement of the suit premises, Court simply considers the reasonableness of the plaintiffs'' requirement and nothing else. Here in the instant case the plaintiffs stated that they required one bedroom for the plaintiff No. 1, one bedroom for the plaintiff No. 2 and his wife, one bedroom for the adult son of the plaintiff No. 2, one bedroom for the grown up daughters of the plaintiff No. 2, one study room for the daughters of the plaintiff No. 2, one room for starting a business for the son of the plaintiff No. 2, one guest room for providing accommodation to the married sisters of the plaintiff No. 2 who are the occasional visitors of the suit holding which is their paternal house.

Considering the materials on record, the learned Trial Judge held that the plaintiffs require three more rooms for meeting their requirement. The learned Trial Judge held that the plaintiffs require one bedroom for the plaintiff No. 1, one bedroom for the plaintiff No. 2 and his wife, one bedroom for the son of the plaintiff No. 2. One study room for the daughters of the plaintiff No. 2. One room for starting a leath business for the son of the plaintiff No. 2. The learned Trial Judge found that the plaintiff is in possession of three habitable rooms in the suit holding. Since another room which is in possession of the plaintiffs is a condemned room, the said room was not treated as a habitable room. The learned Trial Judge further held that the plaintiff cannot be compelled to renovate the said room for making it habitable. Accordingly, the learned Trial Judge passed a decree for eviction against the defendant/respondent.

The learned First Appellate Court without discussing much on the requirement of the plaintiffs, came to a finding that the plaintiffs require four more rooms in addition to the rooms in their possession to meet their present requirement. Though the death of the plaintiff No. 1 during the pendency of the appeal was taken note of by the learned Appeal Court, but how far the requirement of the plaintiffs was reduced on the death of the plaintiff No. 1 was not seriously considered by the learned First Appellate Court. In spite of holding that the plaintiffs require four more rooms, the learned Appeal Court decided the said issue against the plaintiffs as, according to the learned First Appellate Court, no decree for eviction can be passed in the instant suit, as the entire requirement of the plaintiffs for four rooms cannot be satisfied by evicting the defendant/respondent from the suit premises which comprises of one room only. Thus, the plaintiffs'' prayer for eviction on the ground of reasonable requirement was refused by the learned First Appellate Court by taking serious exception against the plaintiffs for not bringing any action against the other tenants of the suit holding for their eviction.

This Court cannot agree with the said view of the learned First Appellate Court as nobody can deny that the requirement of the plaintiff will be satisfied to some extent by recovery of possession of the suit room though his entire requirement may not be satisfied by such eviction. Partial satisfaction of the requirement by such eviction cannot be a ground for refusal to pass such decree.

This appeal, however, cannot be allowed with the aforesaid findings only, because of occurrence of certain subsequent events during the pendency of this appeal, which according to the respondents altered the extent of requirement of the appellants. In fact, the respondent claims that the present accommodation is sufficient to meet the requirement of the plaintiff/appellant as the plaintiff''s family has been reduced substantially due to marriage of both the daughters of the plaintiff No. 2 and on the death of one of the sisters of the plaintiff No. 2. The respondent further claims that the additional accommodation which has now come to the possession of the plaintiffs due to surrender of tenancy by one of the tenants in favour of the plaintiffs cannot be lost sight of. All these incidents occurred during the pendency of this Second Appeal. Mr. Bhattacharya submitted that the fact regarding surrender of tenancy by one of the tenants in favour of the plaintiff/appellant during the pendency of this appeal which was disclosed by the respondent in his application for taking note of subsequent event, has not been denied by the appellant who, however, claimed in their affidavit-in-opposition that the said room measuring about 4'' 3" x 7'' 5" is unfit for human habitation because of its smallness in size and also because of its dilapidated condition.

Such statements of the appellants having been uncontroverted by the respondents who did not prefer to file any reply to the appellants'' said affidavit-in-opposition, this Court holds that the said room is not in usable condition and as such, availability of the said room cannot satisfy the requirement of the plaintiffs/appellants.

Though the respondent did not file any application for bringing the facts relating to the marriage of both the daughters of the plaintiff No. 2 during the pendency of this appeal, but, the said fact which is brought to the notice of this Court by Mr. Bhattacharya has not been denied by Mr. Banerjee, learned Senior Counsel of the appellant who, on instruction from his client present in Court, submits that his clients do not dispute such contention of the respondent. But even assuming that both the daughters of the plaintiff No. 2 got married denying the pendency of this appeal but, still then, the plaintiff''s requirement of one guest-room for accommodating the married daughters and/or the surviving sister of the plaintiff No. 2 cannot be denied inasmuch as whenever they will visit their paternal house, they are to be accommodated at least in one room in the suit holding. However, it is correctly pointed out by Mr. Bhattacharya that the requirement of the plaintiffs of one study room for the said daughters does not exist.

Mr. Bhattacharya further submitted that the requirement of room for the business of the son of the plaintiff No. 2 should have been ignored as nothing has been proved about the experience of the son to start a leath business and/or about the availability of necessary fund in his hand for starting such business. This Court cannot accept such submission of Mr. Bhattacharya in view of the fact that if experience is taken as criteria for starting a business then no man without experience can dream of starting a business in his life. In fact, experience can be gathered only when one starts working and/or functioning in any particular field. That is why, I am of the view, that experience cannot be a criteria for starting a business, by a new entrepreneur. I possess such view because of the decision of the Hon''ble Supreme Court in the case of Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde and Another, . That apart, even nowadays fund is not a criteria for starting a business. One can start a business even without any ready fund in his hand as nowadays fund can be arranged from various sources such as bank, various other financial institutions etc.

Under such circumstances, I hold that the requirement of one room for the business of the son of the plaintiff No. 2 cannot be ruled out. The death of one of the sisters of the plaintiff No. 2 during the pendency of this appeal is on record as the heirs of the said deceased have already been brought on record. In my view the death of one of the sisters of the plaintiff No. 2 cannot alter the extent of requirement of the plaintiffs/appellants, as only one guest room is claimed by the plaintiffs for the requirement of the married daughters and sister of the plaintiff No. 2.

In the aforesaid context, let me now consider the extent of present requirement of the plaintiffs. This Court finds that the plaintiff No. 2 and his wife require one bedroom. Plaintiff No. 2 also requires one bedroom for his son and his wife. The plaintiffs also require one room for the business of the son of the plaintiff No. 2. The plaintiffs also require one guestroom for the married daughters/sister of the plaintiff No. 2 for providing an accommodation to them whenever they will visit the paternal house. That apart, no one can deny the requirement of any drawing and/or dining room for every family. The plaintiff''s family has neither any dining room nor any drawing room in its possession. Though it is true that the plaintiffs have not specifically claimed any drawing room and/or dining room, but requirement of at least one dining room for every family cannot be ruled out.

Thus, this Court holds that the plaintiffs require at least five rooms to meet their present requirement. The plaintiffs have only three habitable rooms in their possession. As such, the plaintiffs/appellants are entitled to get a decree for eviction against the defendant/respondent on the ground of reasonable requirement.

Before concluding I must mention that I cannot accept the last phase of submission of Mr. Bhattacharya who by relying upon a decision of the Hon''ble Supreme Court in the case of Krishna Murari Prasad Vs. Mitar Singh, submitted that the learned Trial Judge committed an illegality in passing a decree for eviction against the defendant without considering the possibility of satisfying the plaintiffs'' requirement by way of partial eviction. By referring to the said decision, Mr. Bhattacharya submitted even in case of one room tenancy the Court is not absolved of its responsibility of such consideration.

On perusal of the said decision this Court holds that there were some distinguishing factors in the said particular case before the Hon''ble Supreme Court. The suit room was used by the tenant for commercial purpose. The plaintiff/landlord also required the said room for starting a business therein. Therefore, both of them wanted to use the said room for commercial purpose. Considering the size of the tenanted room, the Hon''ble Supreme Court held that before passing a full decree for eviction, the Courts below ought to have considered as to whether the requirement of the plaintiff could be satisfied by passing a decree for partial eviction.

But here is the case where neither the plaintiff can share the suit room with the defendant/tenant either for residential purpose or for any commercial purpose. As such, Mr. Bhattacharya''s suggestion for partial eviction seems to me, very much impractical.

That apart, when both the Courts below held that the plaintiffs'' requirement cannot be fulfilled as a whole even by evicting the defendant from the suit room, consideration of possibility of satisfaction of the plaintiffs'' requirement by partial eviction cannot be conceived of at all. Under such circumstances, this Court holds that the judgment and decree passed by the learned Appeal Court cannot be sustained. The judgment and decree of the learned First Appellate Court, thus, stands set aside. The judgment and decree of the learned Trial Judge is, thus, affirmed. The defendant/respondent is given two months time to vacate the suit premises and to deliver vacant and peaceful possession thereof to the plaintiffs/appellants; in default the plaintiffs/appellants will be at liberty to recover khas possession of the suit premises from the defendant/respondent in execution of the decree in accordance with law.

The appeal, thus, stands allowed without any costs against the defendant/respondent.

Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.