Calcutta High Court (Appellete Side)
Gopal Krishan Mohan & Ors vs Smt. Meera Viswanathan & Ors on 5 January, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
SA 36 of 1986
with
SA 37 of 1986
Gopal Krishan Mohan & Ors.
Vs.
Smt. Meera Viswanathan & Ors.
For the appellants : Mr. Amal Kumar Mukhopadhyay
Ms. Anamika Das
For the respondent no. 2 : Mr. Uttiya Ray
For the respondent nos. 1(a) & 1(b) : Mr. Malay Kumar Bose
Mr. Ranjit Kumar Ghoshal
Mr. Raja Adhikary
Mr. Mrinal Das
CAV on : 07.12.2017
Judgment on : 05.01.2018
SHIVAKANT PRASAD, J.
The two appeals being SA No. 36 of 1986 and SA No. 37 of 1986 are directed against the judgment and decree dated 30th August, 1982 and 7th September, 1982 passed by Additional District Judge, 11th Court, Alipore in Title Appeal No. 136 of 1981 reversing the judgment and decree dated 23rd December, 1980 and 6th January, 1981 respectively passed by 1st Additional Munsif, Alipore in Title Suit No. 20 of 1974.
The grounds inter alia taken by the appellant is that the learned Appeal Court below having relied on the document Exhibit-D, i.e. agreement for sale which practically does not confer any right of the defendant/respondent herein nor extinguish any right of the plaintiff in the suit premises and while considering the same erred in his finding that the plaintiff had the intention to sell the property but had no bona fide requirement of the suit premises for his own use and occupation.
In the SA No. 37 of 1986 the ground taken is that the learned Judge took a total misconception in allowing the appeal relying on Exhibit-B which does not give any special protection to the defendant/ appellant from eviction, thereby erred in law in allowing the appeal inasmuch as the right of enjoyment of the defendant/appellant ceases after revocation of such right as a license and also failed to appreciate that even after the sale, the status of parties remain the same inasmuch as the acceptance of license fees cannot give a better title to the defendant and a total misconception of law has crept in while dismissing the suit.
While admitting the appeal the Division Bench of this Hon'ble Court did not frame any substantial question of law, however, this Court before taking of the appeals framed following substantial question of law--
1) Whether the learned first appellate Court erred in law by not appreciating that the existing accommodation of the plaintiff no. 2 who being an admitted landlord in respect of the suit premises was compelled to reside in a tenanted premises and was under threat of eviction by his landlady, reasonably required the suit premises.
2) Whether the learned first appellate Court erred in law by not appreciating that the possession of a tenanted premises by plaintiff no. 2 being a landlord ought to be always considered as unsuitable, particularly when he is in threat of eviction and, as such, the plaintiff no. 2 being a landlord is entitled to recover possession of his premises let out to the defendants.
3) Whether the learned first appellate Court erred in law by not appreciating that the licence of the defendants once revoked by the plaintiffs by the operation of law does not get revived simply because licence fee is received after such revocation.
4) Whether the learned first appellate Court failed to appreciate that even after sale the status of the parties remains the same inasmuch as the acceptance of licence fee cannot give a better title to the defendants and a total misconception of law.
Now, I am called upon to consider the aforesaid points of law in the context of the brief facts required to be considered. The appellant/plaintiff filed suit in T.S. No. 20 of 1974 claiming to be the owners of the suit premises with facts that the third plaintiff had life interest. The defendant was a monthly tenant in respect of the suit premises who had raised construction without consent and authority of the plaintiff at the suit premises and secondly on the ground that plaintiff and their family members have no house to live in other than the suit premises. The first and the third plaintiffs during their stay at Calcutta have to put up in a hotel. The second plaintiff resides with a friend as a paying guest and the plaintiff with their dependants, numbering about 100 reasonably require the suit premises for their own use and occupation as the plaintiffs are not in possession of a reasonably suitable accommodation elsewhere. A notice to quit on January 27, 1972 was sent to the defendant but the defendant paid no heed to that. Hence, the suit was filed.
The defendant contested the suit by filing written statement contending inter alia, that the defendant's tenancy was for running a boarding and lodging house at the suit premises and since the inception of tenancy defendant used the suit premises for boarding and lodging. The plaintiff no. 2 is a bachelor and he did not require the premises for his own use and occupation. Although, he had been residing in Calcutta in a reasonable suitable occupation whereas plaintiff nos. 1 and 3 are permanent residents at the place outside Calcutta.
The learned Trial Court framed issues on the pleadings of the parties and after going to trial and appraising the evidence-on-record decreed the suit granting a decree in favour of the plaintiff to recover Khas possession of the suit premises from the defendant.
According to plaintiffs, the plaintiff no. 1 died in 1976 leaving behind his widow, one daughter Priyanka Mohan and one son Prahallad Mohan. Thus, there are five members in the family viz, his brother's widow, her daughter, son and his mother. Admittedly, PW 1 being the plaintiff no. 2 is living at 19, Jatin Das road, Calcutta-700 029 in a tenanted premises at a monthly rental of Rs. 70/- per month payable to his landlord whereas his mother has to live in a Nursing Home since they have no accommodation, and the heirs of the plaintiff no. 1 are now living in Bombay because they are not getting suitable accommodation at Calcutta. It is submitted that the plaintiff reasonably required the suit premises for the members of the family and for his office.
It is also revealed from the evidence that plaintiff no. 1 used to put up in Bombay as he was working in Siemons India Ltd. of Bombay Unit and he had been living there with children and wife and after his demise in 1976, his wife is living in Bombay and is working in the said Company. It is submitted that none of the family members of the plaintiff no. 1, since deceased came to the Court to give evidence in support of the reasonable requirement of the suit premises by them. In the premises the opinion of the Court was that the plaintiff no.1's family has no necessity of the suit premises at the present moment and the question arose for consideration as to whether the plaintiff nos. 2 and 3 reasonably required the suit premises for their own use and occupation.
The learned Trial Court on evidence found that the plaintiff no. 2 resides in a rented house and the plaintiff no. 3 resides at Mary Cooper's Home at 4, Diamond Harbour Road, Calcutta since 1976. The conditions necessary for obtaining eviction under Section 13(ff) are (i) that the landlord is the owner of the premises in question (ii) that the premise is required by the landlord for his own occupation (iii) that the landlord is not in possession of any reasonably suitable accommodation. The plaintiff, landlord, admittedly are the owners of the suit premises.
As regards reasonable requirement of the suit premises, the learned Trial Court took into account the Division Bench decision of this Court and was of the view that the possession of a tenant is somewhat vulnerable as the tenant is in potential danger of being evicted from the tenanted premises and as such, the possession as a tenant cannot be equated with the possession of the landlord and further found that the plaintiff occupation in a tenanted premises is at precarious situation and is insecure and therefore, the plaintiff no. 2 reasonable required the suit premises for his own use and accommodation. The Trial Court was also of the view that the plaintiff no. 2 having no other suitable accommodation justify the grant of decree in his favour on the reasonable requirement and during trial, the trial Court had directed the defendant to inform the Court whether the defendant is agreeable for partial eviction under Section 13(4) of the WBPT Act as the suit premises is a three storyed building but the defendant did not agree with the proposal and informed the Court to dispose of the suit on merit and taking into consideration the whole scenario, the learned Trial Court held that the plaintiff no. 2 reasonably required the premises in suit for his own use and occupation and he has no reasonable accommodation elsewhere and thus granted the decree for eviction in favour of the plaintiff.
The decree of the eviction of the Trial Court was challenged in Title Appeal No. 136/81 and Title Appeal No. 137/81. It has been observed by the Appeal Court below, as regards issue of reasonable requirement by the plaintiffs, there is no element of need for the requirement of accommodation by the plaintiffs because during the life time, the deceased plaintiff no. 2 was an employee of Siemons India Limited but when he died in harness, the wife of the deceased plaintiff was accommodated by the company to save the family from starvation and there is no evidence on record that the heirs of the deceased plaintiff have any intention to stay in Calcutta, nor there is any evidence that the widow, wife of the deceased plaintiff no. 1 had any chance of being transferred to Calcutta. Therefore, the evidence of the PW 1 that the heirs of the deceased plaintiff are compelled to remain in a hotel for no available accommodation be taken with a pinch of salt. It has been observed that Premises Tenancy Act does not lean in favour of whims and fancies of the landlord of the question of reasonable requirement must be considered in the extraneous circumstances and the requirement of the heirs of the deceased plaintiff no. 1 is a fanciful imagination which has been conjured up by plaintiff no. 2 to snatch a decree for eviction on the ground of reasonable requirement. The introduction of their requirement is a contrivance. The evidence of plaintiff no. 2 himself also does not help the Court in ascertaining the actual requirement by him as per his evidence which is beset with vagueness and obscurity. It has been observed that the evidence does not show that the mother is one of the owners. She is an octogenarian who stays in a home for a long period. It is astounding that she has got heart burning desire to live with her son. Besides when the case would be considered by a Court for reasonable requirement it must see that all the canons of pleadings must be adhered to and the same must filter through evidence. It is also observed that it is trite law when the case is based on the ground of bona fide requirement, the details of the requirement are to be furnished. A mere ipse dixit of the owners that they require the premises bona fide for their personal occupation is not enough.
The learned Appeal Court having considered an agreement for sale Exhibit-D held that the plaintiffs had no intention to occupy the premises in dispute. On the contrary, Exhibit-I evinced that on different dates the plaintiff took several thousands of rupees from the defendant as a part of the consideration money. There is no evidence on record disputing the agreement for sale.
Mr. Malay Kumar Bose, learned senior counsel for the respondents/defendants has submitted that learned Appeal Court below on taking into account the agreement of sale Exhibit-D rightly held that the appellants/plaintiffs have no bona fide need for the suit premises for their own use and occupation, rather, the intention in for sale of the suit premises to the defendant while allowing the appeal by setting aside the judgment and decree passed in Title Suit No. 20 of 1974 by the trial Court and relied on a decision in case of Amarjit Singh v. Smt. Khatoon Quamarain reported in AIR 1987 SC 741 in which the Hon'ble Apex Court while considering the provision of Section 14(1)(c) of Delhi Rent Control Act (59 of 1958) which is pari materia to the provision under Section 13(ff) of WBPT Act, 1956 the was of the view and held thus--
"18. The Act in question is the authority of law. There is no denial of equality nor any arbitrariness in the second limb of section 14(1)(e) of the Act, read in the manner contended for by the appellant. Article 21 is not violated so far as the landlord is concerned. The Rent Restricting Acts are beneficial legislations for the protection of the weaker party in the bargains of letting very often. These must be so read that these balance harmoniously the rights of the landlords and the obligations of the tenants. The Rent Restriction Acts deal with the problem of rack-renting and shortage of accommodation. It is in consonance with the recognition of the right of both the landlord and the tenant that a harmony is sought to be struck whereby the bona fide requirements of the landlords and the tenants in the expanding explosion of need and population and shortage of accommodation are sought to be harmonised and the conditions imposed to evict a tenant are that the landlord must have bona fide need. That is satisfied in this case. That position is not disputed. The second condition is that landlord should not have in his or her possession any other reasonably suitable accommodation. This does not violate either Article 14 or Article 21 of the Constitution."
Thus, it is argued by Mr. Bose that the requirement of the landlord must be a bona fide requirement but when the landlord could not make out case for their accommodation reasonably required and when the conduct of the landlord disentitled as the landlord has an intention of letting out the property in question for higher income and in that event the landlord is disentitled to eviction of the tenant on account of his need.
Yet, learned counsel for the defendant/respondent relied on observation made in paragraph 3 in case of Smt. Sushila Devi and others v. Avinash Chandra Jain and others reported in AIR 1987 SC 1150 wherein it has been held thus--
"3. while the landlord is entitled to the beneficial enjoyment of his property, the law still insists as a measure of social necessity that the Court should be satisfied as to the genuineness of the requirement of the landlord under S. 14(1)(e). It has to keep in view that there is acute shortage of housing accommodation in the metropolitan city of Delhi and therefore unless there is compelling necessity, there can be no order for eviction under S. 14(1)(e). The provision contained in S. 14(1)(e) is meant to subserve a public interest and to strike a just balance between the competing needs of the landlord and the tenant. It is axiomatic that when a landlord applies for eviction of a tenant under S. 14(1)(e), there is a duty cast on the Court to consider the question on merits on the basis of the evidence adduced by the parties. Again, there has to be in such cases an objective determination of the claim of the landlord."
It would appear from the evidence of Gopal Krishna Mohan, PW 1 one of the plaintiffs that there are five members in his family including himself being his brothers', wife, her daughter, her son and mother and PW 1 living at 19, Jatin Das road, Calcutta-700 029 as a tenant at a monthly rental of Rs. 70/- payable to the landlord. It is argued on his behalf that there is no accommodation otherwise available to the plaintiffs in city of Calcutta and he required the suit premises as he does not have any accommodation. Admittedly, the widow and the children of PW no. 1 since deceased are putting up in Bombay as his widow Mrs. Krishna Mohan is working in Siemons India Limited. PW 1 has categorically stated that he required the entire house as he is running a business as transport contractor. Evidence of PW 1 has not been controverted by the defendant.
Mr. Amal Kumar Mukhopadhyay, learned counsel for the appellants submitted that since the appellant/plaintiff no. 2 has to live in a tenanted premises being a landlord, such accommodation cannot ipso facto be considered as reasonable and suitable accommodation and relied on the observation made in paragraphs 16, 17, 18 and 19 in case of Mst. Bega Begum and others versus Abdul Ahad Khan reported in AIR 1979 SC 272 --
"16. This brings us to the next limb of the argument of the learned counsel for the respondents regarding the interpretation of Section 11 (1) (h) of the Act. Section 11 (1)
(h) of the Act runs thus:
"11 (1) (h).......... where the house or shop is reasonably required by the landlord either for purposes of building or re-building, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held;
Explanation: The Court in determining the reasonableness of requirement for purposes of building or re-building shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement for occupation shall hate regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant."
It was submitted by Mr. Andley, learned counsel for the respondents that the words used in Section 11 (1) (h) are "that the house should be required by the landlord for his own occupation or for the occupation of any person for whose benefit the house or shop is held." It was argued that the words 'own occupation' clearly postulate that the landlord must require it for his personal, residence and not for starting any business in the house. We are, however, unable to agree with this argument. The provision is meant for the benefit of the landlord and, therefore, it must be so construed as to advance the object of the Act. The word 'occupation' does not exclude the possibility of the landlord starting a business or running a hotel in the shop which also would amount to personal occupation by the landlord. In our opinion, the section contemplates the actual possession of the landlord, whether for his own residence or for his business. It is manifest that even if' the landlord is running a hotel in the house, he is undoubtedly in possession or occupation of the house in the legal sense of the term. Furthermore, the section is wide enough to include the necessity of not only the landlord but also of the persons who are living with him as members of the same family.
17. In the instant case there can be no manner of doubt that the house was required for the personal residence or occupation of all the three plaintiffs who admittedly were the owners of the house. The fact that the plaintiffs wanted to occupy the property for running hotel would not take their case out of the ambit of personal necessity as already indicated above occupation of a house may be required by the owner for personal purposes. He may choose to reside himself in the house or run a business in the house or use it as a paying guest house and derive income therefrom. In all these cases even though the owner may not physically reside in the house, the house in law would nevertheless be deemed to be in actual occupation of the owner.
18. Having regard, therefore, to the circumstances mentioned, above, we are unable to subscribe to the view that the words 'own occupation' must be so narrowly interpreted so as to indicate actual physical possession of the landlord personally and nothing short of that. We, therefore, overrule the argument of the respondents on this point.
19. The last argument that was advanced before us by Mr. Andley for the respondents was that taking an overall picture of the various aspects of the present case, it cannot be said that the balance of comparative advantages and disadvantages was in favour of the landlord. In this connection, our attention was drawn to the evidence led by the defendants that the main source of their income is the hotel business carried on by them in the premises and if they are thrown out they are not likely to get any alternative accommodation. The High Court has accepted the case of the defendants on this point, but does not appear to have considered the natural consequences which flow from a comparative assessment of the advantages and disadvantages of a landlord and the tenant if a decree for eviction follows. It is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed, but such an event would happen whenever a decree for eviction is passed and was fully in contemplation of the legislature when Section 11 (1)
(h) of the Act was introduced in the Act, This by itself would not be a valid ground for refusing the plaintiffs a decree for eviction."
The learned counsel for the appellant further refers to a decision in case of Sonabati Devi and Ors. v. Achyutanand Dey and Anr. reported in 87 CWN 278 wherein it has been observed that in deciding the question of reasonable requirement, Court is bound to decide among other things, whether the present accommodation of the landlord is reasonably suitable. The courts have always considered whether the landlord's existing accommodation is appropriate or proper whether it ratified the landlord's requirement. There is no reason to hold that regardless of other relevant facts, the possession of a premises by the landlord as tenant ought to be always considered as unsuitable and without more a landlord living in a tenanted premises would be entitled to recover possession of his own premises let out by him.
Having regard to the principles of law laid down by the Hon'ble Court in the above cited decisions and bestowing upon the facts and circumstances of the case, I am of the considered view that the agreement for sale Exhibit-D does not give any right in the property and it does not confer any title to the property in favour of the defendant/respondent. The fact remains that the plaintiff/appellant herein has no accommodation of his own rather he has to put up in a tenanted premises and in view of the settled principle of law in Sonabati Debi (supra), such accommodation is always in a precarious situation of the plaintiff no. 2 being evicted by his landlord. The facts on evidence with regard to the plaintiff having transport business staying in a tenanted premises have not been taken into consideration by the Appeal Court below in its right perspective. However, this fact cannot be lost sight of that in the suit premises held in possession by the defendant/respondent, business of boarding and lodging is being run by the defendant/respondent and proposal was made to him by the learned Trial Court for partial eviction to accommodate the plaintiff/appellant which the defendant/respondent declined to accept. I am of the view that decree for partial eviction was rightly proposed by the trial Court.
Accordingly, I am of the opinion that the plaintiff no. 2/ appellant requirement for the premises for his occupation and for doing his transport business would met if decree for partial eviction is granted in respect of the ground floor of the suit premises for his accommodation consisting of at least two bed rooms, one living space, bath room privy and kitchen at the suit premises wherein the plaintiff/appellant can have suitable accommodation for his residence and for running transport business therefrom, provided no transfer has yet been effected in terms of alleged agreement for sale in favour of the defendant/respondent.
In the context above the appeal is allowed in part granting a decree of partial eviction against the defendant/respondent from the suit premises. The judgment and decree impugned by the appeal Court below is hereby set aside and that judgment and the decree of eviction passed by the trial Court stands restored to the extent of grant of partial decree of eviction in the ground floor of the suit premises.
SA 37 of 1986 This appeal has been directed against the judgement and decree dated 30th August, 1982 and 7th September, 1982 passed by Additional District Judge, 7th Court, Alipore in TA No. 137 of 1981 reversing the judgement and decree dated 23rd December, 1980 and 6th January, 1981 passed by the learned 1st Additional Munsif, Alipore in TS No. 42 of 1978.
The contention of the plaintiff/appellant is that the defendant/respondent had been a licensee in respect of the suit premises being an opening on the wall appertaining to the Premises no. 75, Rashbehari Avenue, Calcutta-26 lying to East- West and the plaintiff instituted Title Suit praying for recovery of possession of the premises in suit. Plaintiff no. 2 deposed before the trial Court that they want to close the opening in the wall on the western side of 73, Rashbehari Avenue, Calcutta just on the other side of the wall of the premises no. 73, Rashbehari Avenue, Calcutta and they had not given permission to open the wall as they are not the owners at 73, Rashbehari Avenue, Calcutta but they have prayed for closing the opening on the wall. During cross- examination, PW 1 deposed that the opening in the wall was made with consent of his mother at the time of agreement. The present defendant/respondent herein is a tenant in respect of 73, Rashbehari Avenue, Calcutta and after the sale, it is to be closed. The said opening was made after taking over by Official Trustee, but PW 1 could not say when the opening in the wall was closed. The Official Trustee had levied some charge for the opening but plaintiffs never granted license.
According to the defendant/respondent, DW 1 knew that an opening of the wall has been made and opening is still there and are paying license fees for the opening of that wall after the sale.
The learned trial Court decreed the suit granting to the plaintiff/appellant herein a decree for recovery of possession of the premises in suit by evicting the defendant his men and agents by his judgment dated 06.01.1981.
Being aggrieved the defendant filed Title Appeal no. 137/1981 challenging the judgment and decree on the ground that the license is still alive for which fees have been collected regularly apart from the rent by the plaintiffs and by the Official Trustee which fact was overlooked by the trial Court being the evidence on record Exhibit-B series wherefrom it becomes conspicuous that the appellant/defendant was armed with the license fees of Rs. 52.55 paisa regularly collected along with the rent. The license continued to be in force after the transfer of the disputed properties which included amongst other, the present one which was under the control of Administrator General and Official Trustee of West Bengal. In the facts and circumstances of the case learned Appeal Court below was of the view that it is not correct to hold that the license could be terminated at the pleasure of the landlord. It was culled out from the evidence on record that the defendant was allowed to enjoy the premises even after the sale of premises no. 73, Rashbehari Avenue, Calcutta. Accordingly, the Appeal Court below set aside the judgement of the trial Court by dismissing the suit.
Learned counsel for the appellant/plaintiff has relied on a decision in case of Regional Manager, APSRTC, Medak v. H. S. Sudhindra Areas reported in AIR 2006 Andhra Pradesh 207 wherein it has been held that a license, once revoked by operation of law, or act of parties does not get revived, simply because the license fees is received after such revocation. It would be apt to take into consideration the observation made in paragraph 7 of the cited decision which reads thus--
"7. In contrast, a licence governed by Chapter VI of the Indian Easements Act, for short "the Act", does not entail any delivery of possession of property, akin to the one under lease. A licensee is permitted to use the licensed premises, without any legal right to possession thereof. Section 62 of the Act provides for various circumstances, under which a licence can be deemed to have been revoked. Under clause (c) thereof, if the licence is for a specified period, it is deemed to have been revoked, with the expiry of that period."
This decision is not apposite to the facts of this case since admittedly the plaintiff/appellant has not granted license to the defendant/respondent as it appears from his own evidence discussed above that they did not give permission to open the wall and they never granted the license. So, the plaintiff/appellant has no cause of action for the suit to maintain for recovery of the premises in question which is admittedly under the control of AGOT, West Bengal. Therefore, I do not find any ground to interfere into the findings of the learned Appeal Court below passed by the impugned judgment dated 30.8.1982 on the substantial question of law vide point nos. 3 and 4. Ergo, SA No. 37 of 1986 is dismissed. There shall be no order as to costs.
Certified website copies of the judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)