Calcutta High Court
Sri Parimal Ghosh vs Sri Debabrata Ghosh And Ors. on 1 February, 2002
Equivalent citations: (2002)1CALLT478(HC), 2002(2)CHN304
JUDGMENT J. Banerjee, J.
1. The Instant appeal from the appellate decree is directed against the judgment dated 24.8.1999 by Additional District Judge, 7th Court, Alipore in the District of 24 Parganas (South).
2. Briefly stated the facts an circumstances leading to the present appeal are as follows :-
The plaintiff respondents brought title suit No. 113 of 1996 for eviction of the defendant appellant from the suit premises which comprised of two rooms in the front portion with adjoining baranda, kitchen and common user of bath and privy in the ground floor of premises No. 46/1 Chandra Mondal Lane, under P.S. Tollyganj, Calcutta-700026 alleging inter alia that the plaintiff respondents got the entire ground floor, the entire second floor and portion of the first floor of the aforesaid premises, on the basis of a preliminary decree for partition passed in T.S. No. 16 of 1984 by civil Judge (Senior Division), third Court at Alipore and in this way the suit premises fell in the allotment of the plaintiff respondents. It was further alleged that the defendant was a habitual defaulter and defaulted in payment of rent from January 1996. The defendant appellant Illegally and without any authority constructed wall almirah in the kitchen and also constructed rack by blocking the window in the bedroom. Such appellant also constructed sunshade by damaging the wall and also blocked and removed the ventilator and thereby violated the provisions contained in (m), (o), (p) of Section 108 of Transfer of Property Act. The plaintiff respondents also reasonably required the suit premises for their own use and occupation and also for their family members as they had no other reasonably suitable accommodation. For all these reasons, the respondents through their advocate served a notice of ejectment dated 31.05.1996 to the defendant appellant asking him to quit, vacate and deliver possession of the suit premises on the expiry of the month of July, 1996. But in spite of service the defendant appellant failed to do so. In that background plaintiff respondents were constrained to file the suit. The defendant appellant contested the suit on a written statement wherein he denied all the material allegations levelled against him and specifically alleged that he had been inducted as a tenant in respect of the suit premises by Sunil Kr. Ghosh since deceased on a monthly rent of Rs. 240 and at that point of time he had four rooms, kitchen, baranda, bath and privy etc. He surrendered two rooms from his said tenanted portion and as a consequence thereof his rent was reduced to Rs. 120 from Rs. 240. It was further alleged that the wall almirah was in existence, at that time, it was further alleged that the respondents had in their possession accommodation which was in excess of their requirement and they simply Instituted the suit suppressing the material facts.
3. The learned trial Judge in his Judgment inter alia found, regarding allegation of default that the defendant appellant deposited the arrears rent from the month of January 1996 to February 1997 at the rate of Rs. 120 per month pursuant to an order passed in a proceeding under Section 17(2a) and (b) of the West Bengal Premises Tenancy Act but on scrutiny of the record it was found that the defendant did not file challans in respect of deposit of rent for the months of July to October 1997 that is to say for four months and in that background learned Judge held that the defendant appellant did not comply with the provisions contained in Section 17(1) of the West Bengal Premises Tenancy Act. Therefore, such defendant was not entitled to get any protection as contemplated under Section 17(4) of the West Bengal Premises Tenancy Act. Regarding reasonable requirement, the learned trial Court found that the plaintiff had a reasonable requirement for the suit rooms and on the basis of the aforesaid findings it decreed the suit.
4. In appeal the learned Judge of the Appellate Court below found that the defendant appellant duly deposited the rent for the period from July to October 1997 and, therefore, the plaintiffs were not entitled to get the decree for eviction on the ground for default but at the same time the learned Judge of the Appellate Court below on consideration of the evidence on record and the other relevant facts and circumstances found that the plaintiff respondent could establish successfully that the accommodation available to them was not sufficient for the plaintiffs--respondents and on such a finding he confirmed the Judgment and decree of eviction passed by the learned trial Court and dismissed the appeal.
5. Being aggrieved by the same the contesting defendant preferred the present appeal and at the time of admission of the appeal the learned Division Bench of this Court formulated the following question as the substantial question of law involved in the present appeal :-
"For that the Courts below committed a grave, mistake in not considering and giving effect to the admitted fact of plaintiffs getting 3/4th share in the ancestral property and the further fact of allowing a third party to occupy one room as a licensee when the claim was for more accommodation and the same constituted substantial question of law." At the time of hearing of the appeal, on a perusal of the judgments of both the Courts below, the memo of appeal and also on hearing the learned Advocate for the appellant, the following question has been formulated in the light of ground No. 8 of the memo of appeal, an the additional substantial point for consideration :--
"whether both the Courts below erred in law without considering the scope of partial eviction, in the facts and circumstances of the case." -
6. I have heard the arguments advanced by learned Advocates for both sides. As the matters stand now, the plaintiff respondent got the decree for eviction of the tenant appellant only on the ground of his reasonable requirement for the suit premises as contemplated under Clause (ff) of Section 13(1) of West Bengal Premises Tenancy Act and such clause is available only to the landlord who is the owner. In the present case admitted position is that the plaintiff respondent got 3/4th share in the ancestral property and he was not the full owner. But at the same time, it can be said that the suit premises fell in the portion allotted to the plaintiff respondents in such partition. Plaintiff respondents filed the document (marked exhibit 2), showing that they Jointly acquired 3/4th share in the house in suit and exhibit (3) indicated that the plaintiffs got allotment of the suit premises. The learned trial Court considered these documents and came to a finding that plaintiffs were the owners of the suit premises and they were entitled to bring the suit under Clause (ff) of Section 13(1) of the Act. The aforesaid finding is not disturbed by the learned Appellate Court below. Therefore, there is little scope for this Court to consider the matter and to disturb the concurrent findings on this point The defendant appellant wanted to challenge the requirement of the plaintiff respondents on the ground that the plaintiff respondents allowed a third party to occupy one room as a licensee when the claim was for more accommodation. I find from the Judgment Impugned, that this particular question was duly considered by the learned Appellate Court below who found from the consideration of evidence of PW1 that the plaintiffs got one room in the first floor in their share after the partition and that room was occupied by one of their co-sharers and the plaintiffs were yet to get possession of the said room. The learned Judge found that the defendant appellant did not allege that the said room was in possession of the plaintiffs on the other hand such defendant appellant admitted that the said room was being occupied by a co-sharer of the plaintiffs. But it was the case of the defendant before the Courts below that If the said co-sharer was ousted, the plaintiff would get possession of the said room and their requirement would be fulfilled. The learned Judge considered the question and found that though this specific fact was not alleged in the plaint, but for that, it could not be said that the plaintiff respondents were guilty of suppression of facts as the same came to light from the examination in Chief and cross-examination of the witnesses of the plaintiffs and also from the report of the Commissioner who held local Inspection about the extent of possession enjoyed by the plaintiff respondents. So it cannot be said for a moment that the question was not at all considered by the Courts below. On the other hand it can be said that the learned Appellate Court below refused to consider the question of the present accommodation available to the plaintiff respondents taking into consideration the room which was seen in possession of one of the co-sharers of the plaintiff respondents. I must observe that such a finding. In my considered view cannot be said to be tainted with Illegality.
7. Now it is to be considered whether the Judgments delivered by the Courts below would be vitiated due to non-consideration of the question of partial eviction under Section 13(4) of the West Bengal Premises Tenancy Act. The language of Clause (4) of Section (13) of the Act clearly indicates that in order to Invoke the Jurisdiction to order partial eviction, in a suit for eviction on the ground as contemplated under Clause' (ff) of the Act the Court must come to a conclusion that the requirement of the landlord plaintiff would be substantially satisfied by evicting the tenant from a part only of the premises and such eviction order should be with the consent of the tenant. In the Instant case of going through the judgment of the Courts below, I do not find anything to show that such Courts came to a specific finding that the partial eviction would be sufficient for the requirement of the plaintiffs. On the other hand I have found that both the Courts below concurrently held that the plaintiff respondent had requirement for the entire suit premises. In that background there cannot be any question of partial eviction.
8. Before I part with the matter finally I like to point out that in the Instant case there is no substantial question of law involved. On the other hand both the Courts below concurrently found that the plaintiff respondents reasonably required the suit premises. So, in this background the question is whether in a second appeal this Court can disturb the finding of fact of the Courts below. In the case of Kulwant Kaur v. Gurdiai Singh Mann (dead) by L.Rs. & Ors. , Raghunath G. Panhale (dead) by L.Rs v. Chaganlal Surdarjt & Co. and Hamida & Ors. v. Md. Khalil , the apex Court dealt with the question whether the finding of the lower appellate Court on facts can be altered or not in the second appeal by the High Court. It transpires from those reported decisions of the apex Court that ordinarily it is not open to the High Court in second appeal to Interfere with the finding of fact unless such a finding is based on conjectures, surmises or on some evidence not admissible in law. It has further been laid down that where a finding of fact stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its Jurisdiction to deal with the issue, but in that event such a fact is required to be brought to light by the High Court, clearly and the Judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. In the present case, I have already mentioned that there is a concurrent finding on the point of reasonable requirement of the plaintiff respondents for the suit premises and there is nothing to indicate that such a concurrent finding was in anyway tainted with perversity on wrong test.
9. In the result the appeal must fall. The appeal is dismissed with a cost of Rs. 500. Interim order If any, passed in connection with the present appeal stands vacated with Immediate effect. Let a copy of the judgment be sent down to the Court below along with the L.C.R. for information and necessary action.