Sri Pradip Acharyya vs Sri Murari Mondal

This is a defective appeal. Defects are notified in the report of the Stamp Reporter. Leave is granted to the learned advocate-on-record of the appellant to rectify the defects in the memorandum of appeal in the light of the report of the Stamp Reporter.

This second appeal is directed against the judgement and decree dated 13th February, 2017 passed by the learned 1st Appellate Court in Title Appeal No.03 of 2016 affirming the judgement and decree dated 7th September, 2015 passed by the learned Trial Judge in Title Suit No.58 of 1999 at the instance of the defendant/appellant.

Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not.

The original land-lady, viz. Kalosashi Mondal, filed a suit for eviction against the defendant on various grounds including the ground of reasonable requirement. The suit property consists of one room, which was let out to the defendant. The original plaintiff claimed that three (3) rooms were in the possession of the plaintiff. She required one additional room, i.e. the suit property for her reasonable requirement. The defendant contested the suit by filing written statement denying allegations made out by the plaintiff in the plaint.

The plaintiff gave her evidence to substantiate her claim in the said suit. A local inspection was also held by an Advocate-Commissioner. The Advocate-Commissioner deposed as PW 2 and produced his report in the suit.

During the pendency of the said suit, Kalosashi, the original plaintiff, died. She left behind a Will bequeathing her property in favour of three legatees. The substituted plaintiff was one of the legatees under the said Will. All the legatees jointly applied for grant of probate of the said Will. Probate was granted by the Probate Court. As per the said Will, two rooms were given to the legatee, who subsequently has been substituted in place of the original plaintiff. Out of those two rooms, one room is the suit property.

After the said legatee was substituted in place of the original plaintiff under Order 22 Rule 10 of the Code of Civil Procedure, he amended his pleadings with regard to his reasonable requirement of the suit property. He claimed that his family consists of five (5) members, i.e. he himself, his wife, his son, his daughter-in-law and one granddaughter. He thus claimed that he requires one bedroom for himself and his wife, another bedroom for his son and daughter-in-law and one room for accommodating his married daughter whenever she will visit her paternal home. Apart from the said requirement, he also claimed that he requires one dining room, one drawing room, one thakurghar and one study room. The substituted plaintiff adduced his evidence as PW 3 to prove his requirement of the suit premises.

The learned trial court after considering the evidence of both the parties and the respective pleadings came to the conclusion that the plaintiff requires at least two bedrooms. The learned trial court, after considering the socio-economic background of the substituted plaintiff, who is a rickshaw-puller, held that he does not require separate dining room, separate drawing room, separate study room or an exclusive thakurghar as a matter of right and choice.

Considering the fact that the plaintiff is in possession of actually one room in the suit premises, the learned Trial Judge concluded by holding that he reasonable requires the suit premises for accommodating himself and members of his family. The learned Trial Judge held that since he has no other reasonable suitable alternative accommodation elsewhere, he is entitled to get decree for eviction against the defendant on the ground of reasonable requirement.

Being aggrieved by and/or dissatisfied with the said judgement and decree passed by the learned Trial Judge, the defendant preferred an appeal before the learned 1st Appellate Court. The learned 1st Appellate Court was pleased to dismiss the said appeal by affirming the judgement and decree of the learned Trial Judge. Legality and/or correctness of the said judgement and decree of the learned 1st Appellate Court is challenged in this second appeal.

We have considered the pleadings of the parties and their respective evidence. We are of the view that the learned courts below did not commit any illegality in coming to the aforesaid conclusions that the plaintiff reasonably requires the suit premises for his reasonable requirement. We find that the plaintiff has produced ration cards to prove the numbers of his family members. The document of title namely the Will through which the plaintiff was claiming title over the suit property shows that he was given two rooms only by the executrix and out of those two rooms, one room was the subject matter of the suit, which was let out to the defendant.

Considering the size of the family of the plaintiff, we have no hesitation to hold that the plaintiff reasonably requires the suit property as he is in possession of only one room and he has no other reasonably suitably alternative accommodation elsewhere. Under such circumstances, we do not find involvement of any substantial question of law in this appeal. We thus, find no merit in this appeal. Accordingly, we decline to admit this appeal. The appeal is, thus, dismissed. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application. The application for stay being CAN 2343 of 2017 is thus, deemed to be disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.