Calcutta High Court (Appellete Side)
Arun Banerjee And Others vs Baidya Nath Mullick And Ors on 9 May, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
PRESENT:
THE HON'BLE MR. JUSTICE BHASKAR BHATTACHARYA
AND
THE HON'BLE MR. JUSTICE RUDRENDRA NATH BANERJEE
F.A. 44 OF 1999
ARUN BANERJEE AND OTHERS
- VERSUS -
BAIDYA NATH MULLICK AND ORS
For the appellants : Mr. B.K. Nandy
For the respondents : Mr. Aniruddha Chatterjee,
Mr. S.K. Bhunia,
Mr. A.B. Dutta,
Mr. M.K. Gupta.
Heard on:15.04.2008
Judgment on: 9th May, 2008.
RUDRENDRA NATH BANERJEE, J.:
In this first appeal, the defendants/appellants have challenged the judgment and decree in the ejectment suit No. 680 of 1979 passed by the Judge, 11th Bench of the City Civil Court at Calcutta, decreeing the suit for eviction of the defendants from the suit premises.
The plaintiffs/respondents' case in the Court below was as follows:
The suit property consisting of three rooms with the bath and privy, situated in the ground floor of holding No. 9/1, Baburam Sil Lane, originally belonged to Golap Sundari Dasi, and Gunamayee Dasi and the plaintiffs are the heirs and owners of the suit premises by inheritance. The plaintiffs live in the first floor and second floor of the holding No. 9/1, Baburam Sil Lane, Calcutta and the adjacent three storied building under the holding No. 9/2 Baburam Sil Lane, Calcutta. The original defendant, the predecessor of the present appellants, was the premises tenant under them in respect of the suit premises at a monthly rental of Rs.55/- payable according to English Calendar. The defendant having defaulted in payment of rent since January, 1976 and the plaintiffs having required the suit premises for their own use and occupation, they served a notice of ejectment upon the defendant under registered post with A/D, terminating the tenancy with the end of the month of May 1979 and the defendant having failed to vacate the suit premises pursuant to the same, the suit for ejectment on the ground of default and reasonable requirement under Section 13(1)(i) and 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 was filed. It is the further case of the plaintiffs that the plaintiffs having a total number of 35 members in their families, are facing great difficulties and the first and the second floor of the suit holding and also the adjacent three storied building under the holding No. 9/2, Baburam Sil Lane are insufficient. . The plaintiffs have no other suitable accommodation elsewhere.
As against such case of the plaintiffs, the defendant Aditya Narayan Banerjee's case in the Court below is that all the plaintiffs do not stay in the suit house or the adjacent building. Some of them live in separate place. It is the further case of the defendant that he paid rental up to the month of September 1976, but the plaintiffs did not agree to grant any receipt without enhancement of rent of Rs.55/- to Rs.100/- a month, and there being no settlement as to the rate of rent, the defendant has been paying rent to the Rent Controller from the month of October, 1976. It is the further case of the defendant that the plaintiff Nos. 2, 3 and 4 have left the suit house long back and the plaintiff No. 16 is married and living elsewhere with her husband.
The learned Court below framed as many as 6 issues and considered the oral and documentary evidence of both sides on record, and ultimately arrived at the conclusion, particularly, on the basis of the report of the commission for local inspection, that the number of family members of the plaintiffs was 35 and even if, the plaintiff Nos. 3 and 5 are accepted to be staying out side the said two buildings, the present accommodation available to the plaintiffs and their family members is not sufficient and ultimately, the learned Court below decreed the suit on the ground of reasonable requirement. On the ground of default, the Court below arrived at the conclusion that the defendant duly complied with the order of the Court by deposit of the arrears of rent and current rent under Sections 17(1), 17(2) and 17(2A) of the West Bengal Premises Tenancy Act and accordingly, the defendant was entitled to get relief under Section 17(4) of the said Act. The learned Court below although did not grant any decree of eviction on the ground of default, ultimately decreed the suit on the ground of reasonable requirement.
Mr. B.K. Nandy, the learned Advocate appearing for the appellants, has strenuously contended that the plaintiffs have sufficient accommodation in the suit holding No. 9/1, Baburam Sil Lane and its adjacent house under the holding No. 9/2, Baburam Sil Lane. It is his further contension that the respondent Nos. 2, 3 and 5 and 16 live separately in some other place and they do not require any accommodation in the suit holding.
Mr. Aniruddha Chatterjee, the learned Advocate appearing for the respondents have argued that even if, the Court considers that the family of the plaintiff Nos. 2, 3 and 5 and 16 have left the house, their right of accommodation acquired by way of inheritance in the two houses, cannot be ignored. It is his further contention that even by excluding the requirement of those plaintiffs, the accommodation available to the plaintiffs is not sufficient for them and their respective families according to their status and learned Court below was justified in passing a decree for eviction.
The plaintiffs have examined the plaintiff No. 1 himself, Sri Baidya Nath Mullick, as P.W. 1 and Smt. Bandana Sinha, the learned Advocate Commissioner, as P.W. 2. On the other hand the defendants have examined the defendant No. 1, Subhas Banerjee, son of the original defendant, Aditya Nath Banerjee.
The said P.W. 1 has stated that the suit holding and the adjacent building belonged to Gunamayee Dasi, the paternal grand-mother and Golap Sundari Dasi, her mother-in-law by way of purchase by a registered deed of purchase dated 21st February, 1904, Exhibit '1'. On the death of Gunamayee Dasi and Golap Sundari Dasi, the suit holding was inherited by their sons and grand-sons, namely, Tarak Nath Mullick, Dhirendra Nath Mullick and Bhola Nath Mullick, all sons of Keshab Lal Mullick. On their death, the present plaintiffs became the owners and their names have been mutated in the records of the Calcutta Corporation and at present, they are living in the first floor and second floor of the suit holding No. 9/1 Baburam Sil Lane, and its adjacent three storied building under the holding No. 9/2, Baburam Sil Lane.
It has been further disclosed by the P.W. 1 that he has five other brothers and he himself live with his family consisting of his wife and two sons aged 21 and 16 years in one room in the suit building. The plaintiff NO. 2, Kasinath Mullick is living in another room along with his wife and one son aged about 6 years in one room. The plaintiff No. 3, Biswanath Mullick, lives with his family consisting of his wife and one son aged 15 years and one daughter aged 10 years and he has been living out side Calcutta. The plaintiff No. 4, Biswamay Mullick himself and his wife and one son of eight years live in one room. The plaintiffs No. 5 and 6, Ashit Mullick and Ajit Mullick, along with their respective families live in one room each. The plaintiff No. 10, Ananda Mohan Mullick himself and his family, consisting of his wife and two married sons occupy two rooms. The plaintiff No. 11, Tarak Nath Mullick and his sisters also occupy two rooms. The plaintiff 17 has died leaving behind the plaintiff No. 18, Sona Rani Dey; although she is married. Her right of visiting father's place cannot be totally ignored; particularly when she has became a co-owner of the property.
The P.W. 2, Bandana Sinha, the learned Advocate Commissioner has proved her report, Exhibit '9'. As per such report and the sketch maps attached with such report, it appears that learned Commissioner visited and took measurement carefully of all the rooms under occupation of the plaintiffs and the defendants in both the holding Nos. 9/1 and 9/2, Baburam Sil Lane. The holding No. 9/1, includes the suit premises occupied by the appellants. It consists of 3 rooms along with bathroom and 2 privies in the ground floor. In the first floor of the said building, there are 2 rooms, one of which is a long one measuring (20'5" X 9'3"). The second floor consists of two rooms.
From the sketch map, attached to the report of the learned Commissioner, in respect of three storied building in the holding No. 9/2, Baburam Sil Lane, it appears that there are 2 rooms in the ground floor, 4 rooms in the first floor of which 2 rooms are too small measuring (4'8" X 9'5") and (4'7"
X 7'9") to be used as bedrooms. . Those rooms are actually used as store and kitchen of one of the plaintiffs. The second floor of the building consists of 2 rooms and one verandah. The third floor which is practically the roof of the three storied building consists of 2 rooms, one of which is of asbestos shed, another being the thakurghar of the plaintiffs.
Thus, it appears from the report of the learned Advocate Commissioner that the plaintiffs and their family members occupy 4 rooms in the suit building under holding NO. 9/1, Baburam Sil Lane. The rest of the plaintiffs and their families occupy 9 rooms in the three storied building under the holding no. 9/2, Baburam Sil Lane; out of those nine rooms, room No. 6 and 7 as shown in the Commissioner's sketch map appear to be too small to be used as bedrooms. Thus, practically, there are 7 rooms in the said holding under occupation of the plaintiffs and their family members. Therefore, the plaintiffs have in their occupation total 4 rooms in the holding No. 9/1, Baburam Sil Lane and 7 rooms in holding No. 9/2, Baburam Sil Lane, and thus, in aggregate, the plaintiffs have altogether 11 bedrooms and those two small rooms in the said two holdings.
The defendant, as against such oral and documentary evidence from the side of plaintiffs have examined the defendant No. 1E, Subhas Banerjee, as the D.W. 1. He has spoken of their deposit of rent regularly. He is one of the substituted defendants and as such, he was not aware of the ownership of the suit premises and he has simply denied that the plaintiffs had any reasonable requirement in respect of the suit premises. The defendants have not led any evidence as to who had left the suit building as stated in the written statement. Nor is there any cross-examination to the P.W. 1 in that regard.
The total number of plaintiffs were 18, at the time of filing the suit in 1979 and the number of their family members has practically increased during such 19 years resulting in the increase of necessity. It is established as per above discussion of evidence that the plaintiffs are practically occupying 13 rooms including those two small rooms.
It is also undisputed and is gathered from the evidence of P.W. 1 that the plaintiffs are living in those two buildings in three groups of families, namely, the plaintiff Nos. 1 to 6, plaintiff No. 10 and plaintiff No. 11. The P.W. 1, Baidya Nath Mullick has got three sisters and lives along with his wife and two sons, who in the year 1989 were aged 29 and 16 years and by this time possibly have become married living with their respective families in the said house. At least, in the year 1989, plaintiff No. 1 required three rooms, including two bedrooms and at least one drawing room, one kitchen and one separate bath and privy. The plaintiff No. 2, Kashi Nath Mullick lived in the said house occupying one room, although he has his wife and one son aged 6 years and one daughter aged 13 years in the year 1989, which is the unchallenged evidence of P.W. 1. Even, at that period he could expect 3 rooms, one kitchen and one bath and one privy. It has been argued from the end of defence that the plaintiff No. 3 and 5 have been residing elsewhere, but still their inheritance from the original landlords cannot be denied and accordingly their right of occupation in the said house cannot also be ignored. The plaintiff No. 3 lives along with his wife and a son aged 15 years and a daughter aged 10 years in the year 1989. His family also can very well expect accommodation in three rooms and kitchen and bath and privy. The plaintiff No. 4 also lives with his wife and one son aged 8 years and they can also expect at least two rooms for their accommodation along with bath, privy and kitchen. So also, the plaintiff No. 6 may expect two rooms for the accommodation of his family. The married sisters of the plaintiff No. 1 can also expect at least one room in their paternal house for their occasional visit from their respective in-laws place. Even if, the plaintiff nos. 1 to 6 are treated to live jointly, their requirement of the separate rooms cannot be ignored. They may not require separate kitchens.
The plaintiff No. 10, son of another co-sharer lives with his family consisting of himself, his wife and two sons, one of whom is married and has one daughter. They can very well expect at least 3 rooms for their occupation along with separate kitchen and privy and bathroom. The plaintiff No. 11 and his sisters the plaintiff Nos. 12 to 16 may very well expect at least two rooms in the said two houses and also separate kitchen and bath, privy. Respondent No. 17 is dead. But respondent No. 18 has been substituted in her place. Respondent No. 18's right of visit her father's place cannot be ignored.
Thus, it can be safely said that although the plaintiffs have been occupying 11 rooms, they required at least 19 rooms, 3 kitchens, three drawing rooms and 3 bath-cum privies in the said two buildings. It cannot also be ignored that the plaintiffs are old occupants of the said building and even in the year 1989 that is about 19 years back, they were more than 35 members and it cannot be said that they had sufficient accommodation in the said two houses. The report of learned Commissioner, Exhibit '9', also speaks a volume of such insufficient accommodation of the plaintiffs.
It may be pointed out that the plaintiff/respondent No. 3, Biswanath Mullick, with his wife, son and daughter has been living out side Calcutta. Although, it is not clear that whether they are living in any house built by them or in any tenanted house. But, the matter does not change the ultimate conclusion that the respondents/plaintiffs are in dearth of accommodation in the suit house or its adjucent house. It may also be noted that the plaintiff/respondent No. 7, Dolly Mullick is dead and ultimately, her heir respondent No. 18, is on record. The respondent No. 13 Mahamaya Dhar is dead, but her three heirs have been substituted as respondents and as per the substitution petition they are living at 15/A, Baburam Sil Lane. It is also not clear whether they are living in any rented house or their own built house. It has been argued that respondent No. 2, Kashi Nath Mullick is also dead and in his place respondent No. 2(a) to 2(c) have been substituted and such death of respondent No. 3 enhances the requirement of the plaintiffs. Thus, in the ultimate conclusion such deaths do not affect the observation about the plaintiff's necessity of accommodation.
Thus, it cannot be said in any way that learned Court below erred in holding that the plaintiffs required the suit premises for their own use and occupation, as per provisions under Section 13(ff) of the West Bengal Premises Tenancy Act.
Mr. Nandy, learned Advocate for the appellant has cited the decision reported in AIR 1977 Calcutta, Page 173 (Kanailal Dutta - Vs. - Sadhan Chandra Santra) and has contended that the sisters of the plaintiff No. 1, who are married, cannot have any accommodation to constitute the reasonable requirement of the plaintiffs. But, in the cited decision, the plaintiffs/landlords tried to show their necessity of accommodation in the suit premises for their domesticated son-in- law. It was held in the said decision " If it is found that the landlord's accommodation is sufficient, but he has himself brought in persons who are not members of the family that cannot be taken to be a ground for ejectment of the tenant". In the cited decision, it was further held that "In the facts and circumstances of the case the son-in-law, cannot be treated as a member of the family of the landlord". Such decision is quite distinguishable from the present set of facts. Here, in the present case, the son-in-law has not been treated as the member of the family, but the sisters' right of accommodation in the suit house as owner by inheritance cannot be ignored. They can very well expect at least one room in the suit house or the adjacent house during their occasional visit in their father's place.
The ownership of the plaintiffs is also established by the fact that by registered deed of purchase their predecessor Golap Sundari Dasi and Gunamayee Dasi purchased the suit holding from their vendor and ultimately plaintiffs inherited such holding.
The notice was sent on behalf of the plaintiffs to the original defendant under registered post with A/D and the same was returned with the postal endorsement 'Not Claimed', which is tantamount to a good service. The notice itself has validly terminated his tenancy with the end of the month of May, 1979 and the same appears to be legal, valid and sufficient.
Thus, we find no reason to interfere with the judgment and decree passed by learned Court below evicting the defendants from the suit premises.
Accordingly, the appeal is dismissed. There shall be not order as to costs.
Urgent xerox certified copy be given to the parties expeditiously, if applied for.
(Rudrendra Nath Banerjee, J.) I agree, (Bhaskar Bhattacharya, J.)