Calcutta High Court
Smt. Menoka Rani Pal vs Smt. Maya Rani Karmakar on 11 March, 1999
Equivalent citations: AIR1999CAL182, AIR 1999 CALCUTTA 182, (1999) 2 CAL WN 56
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This second appeal is at the instance of a tenant/defendant in a suit for eviction and is directed against the judgment and decree dated April 26,1996 passed by the learned Assistant District Judge, 1st Court, Hooghly in Title Appeal No. 167 of 1986 thereby reversing those dated April 26,1986 passed by the learned Munsif, Additional Court, Serampore in Title Suit No. 89 of 1985.
2. The respondent herein, a transferee landlady, filed the aforesaid suit against the appellant on the grounds of default, causing nuisance and annoyance and on the ground of reasonable requirement. In the said suit, the respondent also pleaded that appellant had demolished the wall on the eastern side and had reconstructed the same thus violating Clause (m), (o) and (p) of Section 108 of the Transfer of Property Act. Although the respondent was a transferee landlady, she filed the aforesaid suit within three years from the date of acquiring title over the suit property.
3. The said suit was contested by the appellant by filing written statement thereby denying the materials allegation made in the plaint.
4. The learned trial Judge held that the suit having been filed within the period of three years from the date of purchase, the suit was liable to be dismissed. However, the learned trial Judge found that due to running of the machines by the appellant in the suit property it was impossible for the plaintiff to stay in the adjoining room and as such the act of appellant amounted to nuisance. The learned trial Judge further found that the tenancy was taken for residential purpose. There was however no finding as regards the allegation of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.
5. Being dissatisfied, the respondent preferred an appeal being Title Appeal No. 167 of 1986 which has been allowed by the learned first appellate Court below thereby holding that the appellant was guilty of nuisance and annoyance and further the suit property was damaged not by reasonable wear and tear or irresistible force but such damage was caused by the act of the defendant and as such Clause (m) of Section 108 of the Transfer of Property Act was attracted in the instant case.
6. The learned first appellate Court however did not grant any relief to the respondent under Section 13(1)(ff) of the West Bengal Premises Tenancy Act as the suit was filed within three years from date of acquisition of title over the property.
7. Being dissatisfied, the tenant has preferred the instant second appeal.
8. The landlady has also filed a cross-objection contending that in the facts and circumstances she was also entitled to get a decree of eviction on the ground of reasonable requirement.
9. Mr. Roychowdhury, the learned advocate appearing on behalf of the appellant has contended that the suit property having been let out in the year 1966 for the purpose of running business by installing lathe machine, grinding machine and other machines and the original inducting landlady not having made any complaint against the running of such business, the present respondent, a transferee landlady, cannot complain that the running of those machines amounted to nuisance. Mr. Roychowdhury con-
tends that the present respondent was a tenant in a portion of the suit property and was very much habituated with the sound of the machines. Mr. Roychowdhury further contends that at any rate, tenancy having been granted for the purpose of running those machines, no case of nuisance can be made out solely for the above reason.
10. As regards the ground of violation of Clause (m) of Section 108 of the Transfer of Property Act, Mr. Roychowdhury contends that from the Commissioner' s report it appears that the condition of the suit premises is not good but for that reason his client cannot be held guilty of violation of Clause (m) of Section 108 of the Transfer of Property Act.
11. Mr. Roychowdhury contends that there is no evidence showing that the appellant has deliberately caused damage to the property. According to him due to natural wear and fear the property has come to such a condition.
12. Mr. Mukherjee, the learned Advocate appearing on behalf of the landlord has on the other hand supported the finding of the learned Courts below on the aforesaid two issues and has contended that the tenancy having been let out for residential purpose, conversion of the said tenancy into one for business purpose and installation of machines over there itself amounted to nuisance and annoyance.
13. As regards the other ground viz. violation of Clause (m) of Section 108 of the Transfer of Property Act, Mr. Mukherjee contends that it was the duty of the tenant to keep the property in good condition and having failed to keep the same under good condition thereby causing deterioration of the condition of the suit property, the learned Courts below rightly held that the appellant was guilty of the aforesaid ground.
14. Let us first consider whether the respondent has proved the ground of nuisance and annoyance. There is no dispute with the proposition of law that if a tenancy has been created for residential purpose and the tenant converts the same to one for business purpose by installing lathe machine, drilling machine, welding machine, grinding machine and wheat grinding machines therein, thereby creating sound pollution, such act of the tenant amounts to nuisance and annoyance. But on the other hand, if it appears that the suit property was itself let out for the purpose of running those machines in the building, the landlord cannot complain that sound coming out for operation of those machines amounts to nuisance or annoyance. In the instant case it appears from record that the appellant was inducted sometime in the year 1966 and trade licence shows that she was running lathe machine and other machines from that period. Even the son of the respondent has admitted in his evidence that at least five years prior to their purchase of the property, grill machines, grinding machine, drill machine, welding machine, lathe and wheat grinding machines were there and after seeing the business, his mother purchased the property. Immediately thereafter he however tried to come out of the said admission saying that welding, grinding, drilling and wheat grinding machines were subsequently installed.
15. The said P. W. 1 however admitted that he had no document to show that the tenancy was taken for residential purpose. He however said that he would examine the previous landlady if necessary. As indicated earlier, the tenant has produced trade licence showing that business is being run from 1967. Mr. Mukherjee by drawing attention to the evidence of P.W, 2 wanted to show that those trade licences were given in respect of premises No. 227 whereas the suit property was 227-A and such division of the suit building occurred sometime in the year 1956. It however appears that no suggestion was given to D.W. 1 that those trade licences relates to a business situated in a different property or that the appellant had also business in a different premises. Under the aforesaid circumstances I do not find any reason to take into account the aforesaid submission of Mr. Mukherjee. In the plaint, the suit property has been described as two rooms without any reference to bath, privy or kitchen etc. which are essential for a tenancy for residential purpose. Even P.W. 1 in his evidence has admitted that bath room and privy were never let out. The aforesaid fact shows that the suit property was not for residential use. In this case the inducting landlord was the best witness to prove whether the tenancy was for residential purpose. The respondent did not endeavour to examine the previous owner from whom she acquired title to the property, although P.W. 1 stated that he would examine the previous owner, if necessary.
16. Under the aforesaid circumstances, in my opinion, the learned Courts below erred in law in holding that the tenancy was for residential purpose merely because there was no indication in the rent receipts that it was for business purpose. Although the tenant was inducted in 1966 and the original landlord transferred the property in the year 1981, she never complained against the running of business and there are 440 volt, and 220 volt electric meters in the suit property. Under the aforesaid circumstances the finding of the learned Courts below that the tenancy was for residential purpose cannot be a finding of any prudent man. The aforesaid finding is therefore a perverse one and cannot be allowed to stand.
17. Once it is established that the tenancy was for running those machines, the landlord cannot allege that the sound coming out for operating those machines creates nuisance or annoyance. As mentioned earlier P.W. 1 admitted in his evidence that his mother purchased the property seeing that those machines are being operated. Therefore, a landlord letting out a property for the purpose of running those machines and after permitting the tenant to run those business for 15 years cannot complain that running of those machines ipso facto causes nuisance or annoyance. In the instant case apart from running of machines no other allegation has been made against the tenant which is nuisance or annoyance. Therefore, both the Courts below erred in law in passing a decree on the ground of causing nuisance and annoyance.
18. As regards the ground of violation of Clause (m) of Section 108 of the Transfer of Property Act, it appears that in plaint the only allegation is that the defendant without the consent of plaintiff has demolished the wall of the eastern side and has changed the nature and character of the same. The aforesaid Act according to the plaintiff was contrary to Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. Both the Courts below however did not find that the tenant had damaged any wall and/or changed the nature and character of the same. Both the Courts below relied upon Commissioner's report showing that the existing condition of the two suit rooms are extremely dilapidated and according to both the Courts below due to running of the machines, the conditions of the suit rooms have deteriorated. Mr. Mukherjee strenuously argued that it was the duty of the tenant to keep the property in good order and the tenant having failed to do so, the learned Courts below rightly passed a decree on the ground of violation of Clause (m) of Section 108 of the Transfer of Property Act.
19. I agree with the contention of Mr. Mukherjee that if a property is let out for business purpose, in the absence of any agreement to the contrary, it is the tenant's duty to keep the property in order and on termination of lease to restore the property in as good condition as it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force. Clause (m) of Section 108 of the said Act further provides that when any damage has been caused by the Act or default on the part of lessees or his servants or agents he is bound to make it good within three months from the date of notice to that effect given by landlord. In the instant case there is no evidence that the defendant has deliberately caused damages. If tor running of those machines there has been any deterioration of the property, according to Clause (m), within three months from the date of notice given by a landlord to restore it to the original position, a tenant is under obligation to repair the same. In the instant case, no such notice has been admittedly given by the landlady. Therefore, it cannot be said that the defendant had violated Clause (m) of Section 108 of the Transfer of Property Act. The position would have been different if after service of notice under the aforesaid provision the tenant did not comply with such notice. Therefore, the finding of the learned first appellate Court below that the appellant was guilty of violation of Clause (m) of Section 108 of the Transfer of Property Act was on the face of it erroneous when admittedly no notice as required in the said clause was ever served upon the tenant. It is worth mentioning that in the eviction notice under Section 13(6) of the West Bengal Premises Tenancy Act, the ground of violation of cl.(m) of Section 108 of the Transfer of Property Act was not pleaded. This Court is quite conscious of position of law that a landlord is not required to plead such ground in the notice of eviction but the law is equally settled that if other grounds are there but one particular ground was not mentioned, it is for the landlord to justify the reason for such omission in the notice.
20. In any view of the matter, in the absence of any notice asking the tenant to repair the property, in my opinion, a landlord cannot take benefit of Clause (m) of Section 108 of the Transfer of Property Act. Therefore, the finding of the learned Court of appeal below that the appellant was guilty of violation of Clause (m) of Section 108 of the Transfer of Property Act cannot be supported.
21. As regards the cross-objection taken by the landlord I do not find any substance in it. Mr. Mukherjee appearing on behalf of the landlord has contended that although within three years a suit for eviction on the ground of reasonable requirement cannot be instituted but a Court is entitled to give a decree on the aforesaid ground if the suit is pending for more than three years. In support of such contention Mr. Mukherjee has relied upon the decision of a Division Bench of this Court in the case of Uma Mishra v. Monoranjan Sinha, reported in 1992 (2) Cal HN 407.
22. In the aforesaid decision, a transferee landlady filed a suit for eviction against her tenant on various grounds. After the expiry of three years, she by way of amendment introduced ground of reasonable requirement and ultimately succeeded in getting a decree on the said ground. Objection was raised by the tenant before this Court that no decree can be passed on the said ground even on the basis of amended pleading because once amendment is allowed it relates back to the date of presentation of the plaint. Repelling the aforesaid contention the Division Bench held that after expiry of three years from date of purchase, a landlord is entitled to take the ground of reasonable requirement as a ground of eviction. In the instant case if the respondent had taken the ground of reasonable requirement by way of amendment after the expiry of three years time, by taking aid of the said decision the ground of reasonable requirement could be availed of But in the instant case from the very beginning within the period of three years, the suit was filed on the ground of reasonable requirement which is prohibited in view of mandatory nature of Section 13(3-A) of the West Bengal Premises Tenancy Act. The said provision bars institution of the suit within three years on the ground of reasonable requirement. Therefore, on the basis of such a suit filed within three years from date of purchase, a landlord is not entitled to get a decree on the groundof reasonable requirement. The learned first appellate Court below therefore rightly refused to entertain the ground of reasonable requirement the suit on that ground having been filed within three years from the date of purchase.
23. In view of the aforesaid finding, the judgment and decree passed by the learned first appellate Court below are set aside. In my opinion, the respondent has failed to prove the aforesaid ground of nuisance and annoyance and also violation of Clause (m) of Section 108 of the Transfer of Property Act. The suit filed by respondent is thus liable to be dismissed. Appeal is allowed.
24. In the facts and circumstances there will be however no order as to costs.