Calcutta High Court
M/S. Arora And Sons vs Debi Prasad Khanna on 19 July, 1989
Equivalent citations: AIR1990CAL216, (1990)1CALLT11(HC), 1989(2)CHN27, AIR 1990 CALCUTTA 216
ORDER M.R. Mallick, J.
1. This is an appeal against the Original Judgment and decree passed by Sri K.D. Banerjee, Judge, 7th Bench of the City Civil Court at Calcutta dated 9th April, 1985 decreeing the Plaintiff/ Respondent's suit for eviction of the defendant, appellant from the premises No. P-l on the first floor with garage space in the basement and a servant's quarter in between the first and second floor in the building known as "Apsara" at premises No. 67, Park Street, under Police Station Park Street, Calcutta.
2. The facts may be briefly stated as follows:
The plaintiff was and still is the owner of the above flat having purchased the same from M/s. Progressive Co-operative Housing Society Ltd. The defendant had been a monthly tenant under the plaintiff in respect of the aforesaid flat with garage space and servant's quarter more fully described in the schedule of the plaint at a monthly rental of Rs. 1060/- payable according to English Calendar month within 5th day of each and every month for which it is payable. The defendant has failed in paying rent in respect of the premises since the month of August 1979 thereby defaulting in payment of tent for more than four months within the period of 12 months.
3. The plaintiff further reasonably requires the premises in suit for his own use and occupation and for occupation of his family members and dependents. The plaintiff's family consists of himself and his wife and they have no male issue. The plaintiff has a daughter who has been given in marriage and she is residing with her husband and children at 12, Satyan Dutta Road near Deshapriya Park, Ballygunge. The plaintiff and his wife are living in a rental premises being No. 6 Pran Nath Sur Lane, Cossipore Calcutta-2 consisting of two rooms, one Thakurghar, one box room along witp, kitchen and privy-cum-bath and he pays a sum of Rs. 300/-per month plus Rs. 56/-per month as pump charges to the landlord thereof. The plaintiff is an old man of 69 years and his wife aged about 65 years. The plaintiff's wife is a heart patient and the plaintiff himself is suffring from Kidney trouble and slip disc and both require constant medical attention. Besides, the plaintiff's daughter and her husband there is nobody else to look after the plaintiff and his wife and the distance of the place where the plaintiff and his wife are residing and that of the plaintiff's daughter and husband is about 15 miles and in case of need the plaintiff feels difficulty in contract-ing his daughter and son-in-law. The plaintiff has at present no source of permanent income from his service. In such state of affairs he feels great difficulty in carrying the obligation for payment of rent for the rented houses. At times in case of need at night where the ailment of the plaintiff or his wife is aggravated they suffer for want of medical help as the Doctor is reluctant to come to such a distance and attend the patient. The plaintiff has been suffering immensly in all respects in his old age and they decided to live with his daughter and son-in-law in their old age. Besides, the premises in suit the plaintiff is, at present not in possession of any other reasonably suitable accommodation.
4. Owing to the reasons mentioned above, the defendant has forfeited all protec-
tions against eviction under the provisions of the West Bengal Premises Tenancy Act 1956 and has become liable to be evicted from the suit premises. The tenancy of the defendant was determined by a notice date of 6th Nov. 1979 caused by the plaintiff through his learned Advocate under instructions from and on behalf of the plaintiff calling upon the defendant to quit, vacate and hand over the premises in suit on the expiry of the last date of Dec. 1979 or at the end of month of the defendant's tenancy which would expire next after the receipt of the said notice. The said notice was duly served upon the defendant but in spite thereof, the defendant neglected to quit and vacate the premises and is still in wrongful possession thereof. The plaintiff, has, therefore, filed the present suit for a decree for recovery of khas possession of the premises in suit.
5. The defendant has contested the suit by filing a written statement. The defendant has denied that the plaintiff reasonably requires the suit premises for the use and occupation of himself and his wife or that the plaintiff or his wife is actually suffering from ailment as claimed or that the plaintiff clearly intends to occupy the said flat with his daughter and son-in-law as claimed. The further defence is that the suit flat for which the defendant now pays a rent of Rs. 1050/- per month will, if let out at present, fetch a much higher amount of rent and the plaintiff has been putting pressure upon the defendant in this way and the entire story of requirement as set out by the plaintiff, is frivolous and motivated.
6. As regards the allegation for default in payment of rent the defendant contends that an application under S. 17(2A)(b) of the West Bengal Premises Tenancy Act has been filed by the defendant and the same has been allowed and the defendant has also been depositing current rent in court and therefore there cannot be any eviction on ground of default in payment of rent.
7. The learned trial Judge has found that the notice of ejectment has been duly served upon the defendant and the service of the notice, copy of which is marked as Ext. 13, has not been disputed by the defendant. As regards the ground for eviction on the ground of default the learned Judge has found that even though the rent was in arrear when the suit was filed the defendant tenant filed an application under 3. 17(2A)(b) of the West Bengal Premises Tenancy Act and the application has been allowed by the court passing necessary orders regarding the payment of arrears of rent and the plaintiff's application for stricking out the defence against the delivery of possession under S. 17(3) of the Act has been rejected as not pressed and consequently the default in payment of rent is not at all important and no eviction decree can be passed on the ground of default.
8. However, on considering the evidence adduced by both the parties the learned trial Judge has found that the plaintiff is the owner of the flat in question and that he reasonably requires the suit premises for the use and occupation of himself and his wife under S. 13(1)(ff) of the Act and that it cannot be said that the plaintiff possesses any other reasonably suitable accommodation for himself and other members of his family in the rented flat at B.T. Road. In view of the above findings, the learned trial Judge has decreed the plaintiff's suit for recovery of possession and directed the defendant to deliver khas possession of the said premises in favour of the plaintiff by 31st July 1985, failing which the plaintiff would be at liberty to recover the khas possession by executing the decree.
9. Being aggrieved the defendant has preferred this appeal. Before us the appellant has raised two main grounds namely (1) the learned Trial Judge was not justified in holding that the plaintiff reasonably required the suit premises for his own occupation and for the occupation of the members of his family. Secondly, the learned Trial Judge has erroneously held that the plaintiff being a member of the Co-operative Housing Society is the owner in terms of S. 13(1)(ff) of the Act and ought to have held that the Progressive Co-operative Housing Society is the owner of the entire buildings, including the suit premises and the plaintiff's alleged right in the suit premises is only limited and subject to the provisions of the West Bengal Co-operative Societies Act and he has not acquired absolute right or interest in the suit property.
10. The appeal has been contested by the plaintiff/ Respondent. During the hearing the appellant has filed an application for bringing on record the following subsequent facts. On 7th Dec. 1981 at about 8-30 P.M. Sri Biswanath Arora, a partner of the appellant firm himself went to premises No. 12, Satyen Datia Road, Calcutta at Ballygunge and there he was surprised to find that the flat which was so long occupied by Sir Siva Kumar Kapur, the son-in-law of the respondent was kept under lock and key about four years back and since then he with his family members has been residing in a more specious flat near Kamala Girls School at Ballygunge, the details of which he was not able to ascertain. Sri Arora also came to learn that the son of Sri S. K. Kapur and about 30/32 years is married and that have a child, that one of the daughters of Sri Kapur aged about 27/26 years is employed in Loreto College and the other daughter of Shri Kapur left the country for about two years back and she has been prosecuting her research work in the United States of America. According to the appellant/petitioner the aforesaid facts are not only material but relevant and are to be taken into consideration by this appellate court for ascertaining as to whether the reasonable requirement of the Respondent/ Opposite party in respect of the flat in suit still subsists or not. The appellant prays that he should be permitted to refer to the said application and to adduce further evidence on the subsequent events and facts disclosed by him, if necessary.
11. On behalf of the respondents, an affidavit has been filed in which the facts disclosed in the appellant's application have not been seriously disputed. It is however contended that those facts are not at all material or relevant for the purpose of determining the respondent's claim for personal requirement of the flat in suit and is absolutely irrelevant. Shri Siva Kumar Kapur the son-in-law of the respondent has also supported the Respondent's case by a supporting affidavit. As the alleged subsequent events and facts have not been disputed there is no necessity for the appellant being given any opportunity to adduce further evidence to prove those facts and the application supported by the affidavit made by the appellant shall be taken into consideration while deciding the question as to whether the learned Trial Judge's decree for eviction would be sustained or not and whether the subsequent events and facts disclosed would have any material effect to interfere with such findings.
12. We would first take up the consideration of the question as to whether the plaintiff/ respondent is the owner of the flat in question or not because if the plaintiff/ respondent is held not to be the owner of the flat in question then he cannot get the decree for eviction on the ground of reasonable requirement under Cl. (ff) of S. 13(1) of the West Bengal Premises Tenancy Act, 1956.
13. The learned Trial Judge has held that the plaintiff/respondent must be held to be the owner of the flat in question. He has considered the evidence that has been adduced on the side of the plaintiff to arrive at the finding that the plaintiff who is a member of a co-operative society and has been allotted the flat which has been let out to the defendant/appellant paid a sum of Rupees 79,000/- to the co-operative society as consideration of the flat and nothing is payable to the society for the flat and that he is still to pay a few instalments by way of repayment of the loan taken from the West Bengal State Housing Board through the society. The learned trial Judge has also considered the evidence of the Manager of the Co-operative society who has been examined as P.W. 3 who has stated in his evidence that the plaintiff is a share-holder/ member of the said society and is the owner of the suit flat which was allotted to the plaintiff by the society for which the plaintiff had made the whole payment and got the receipts from the society which has been exhibited as Ext. 21 series. The certificate issued by the Chairman of the Co-operative society has also been exhibited as Ext. 7. The learned Trial Judge has also indicated that the defendant in the written statement did not dispute the ownership of the plaintiff in the suit property and that in the letter of acceptance of the tenancy dated 20-7-71 the defendant has admitted that the plaintiff is the owner of the said flat. He has also taken note of the letter dated 20-11-1972 of the defendant addressed to the Corporation of. Calcutta with a copy to the plaintiff in which the defendant asked the corporation of Calcutta to send the Corporation Bill to the plaintiff/ Respondent Mr. D. P. Khanna being the owner of the flat for necessary payment.
14. The learned trial Judge has in view of the circumstances rejected the contention of the appellant that the co-operative society and not the plaintiff is the owner of the flat in question. Before us, Mr. Roy Chowdhury has challenged the above findings. He has urged that the plaintiff has not yet acquired the title to the property because no title deed has yet been executed in his favour by the Cooperative society transferring the right, title and interest of the said society in favour of the plaintiff and until and unless that is done there is no valid transfer under the Transfer of Property Act and consequently the plaintiff cannot, be held to be the owner entitling him to file a suit for eviction against the tenant on the ground of reasonable requirement.
15. On behalf of the Respondents the above contention has been seriously challenged. Our attention has also been drawn to a decision of this Court rendered by S. R. Roy, J. in which the question arose as to whether a member of a co-operative society could be held to be an owner for the purpose of Clause (ff) of the West Bengal Premises Tenancy Act, even though he had not acquired the absolute ownership of the property. In Dayal Prasad Sanyal v. Nripendra Chandra Chakraborty, (1986) 1 Cal HN 68 the learned single Judge found from evidence that the landlord who was a -member of a co-operative society has been allotted a plot of land upon which he had constructed a house obtaining loan from Life Insurance Corporation. He repaid the loan and became the owner even though a formal deed of transfer had not yet been executed in his favour by the Co-operative society. The learned Judge has taken the view that though a formal deed of transfer has yet to be executed in favour of the plaintiff/landlord by the co-operative society yet the plaintiff has to be treated to have all the trapings of ownership regarding the premises which he let out to the tenant and he has been exercising all rights of ownership in respect thereof, but only a formal deed of transfer remains to be executed by the co-operative society. The learned Judge has, therefore, observed that the plaintiff/landlord has acquired all the rights as an owner for all practicable purposes and he is competent to evict the tenant under cl. (ff) of S. 13(l). The principle laid down by the learned single Judge in our view is quite reasonable. Moreover, the Calcutta High Court in Jiban v. Taramom 1971 (J) Cal LJ 481 has held that a holder of life interest is the owner of the property to file a suit under cl. (ff) of S. 13(1) of the Act. Therefore, even though the life estate holder is not the absolute owner he has been held to be the owner for the purpose of cl. (ff) of S. 13(1) of the Act. The Delhi High Court in Sarwan Singh v. Kulbhushan, (1978) 2 Ren. CR 253 and Allahabad High Court in R. M. Gupta v. Addl. District Judge, have taken the view that a purchaser of the property under hire purchase agreement who has not yet been paid all the instalments and has not acquired the full ownership of the property is deemed to be the owner of the property to file a suit for eviction on the ground of reasonable requirement as owner.
16. In view of the above when there is clear evidence that the plaintiff has paid all the dues of the co-operative society and only a formal deed of transfer in required to be executed and the Chairman of the society has also recognised the plaintiff as the owner, then the plaintiff cannot but be held to be the owner. In this connection a reference may be made of the Supreme Court decision in Shanti Sharma v. Smt. Ved Prabha, where the Supreme Court while dealing with similar provision of Delhi Rent Control Act has held the owner of structure alone to be the owner and has observed that for this purpose of rent Act a landlord need not be absolute owner. Moreover, the plaintiff is the member/share-holder of the Cooperative Society. Even if co-operative society may be assumed to be the owner of the property, the plaintiff being the share-holder of such society can be held to be along with other members of the society a co-owner of the flat in question. The Supreme Court has held that a co-owner is competent to file a suit for eviction as such owner. This is the view of the Supreme Court (Sriram v. Jagannath) and in Kanta Goel v. B. P. Pathak, . It is also to be noted that the defendant in the letter accepting the tenancy as well as in the communication made by him to the Calcutta Corporation also admitted the plaintiff to be the owner of the flat in question.
17. In the circumstances, the finding of the learned trial Judge that that plaintiff is competent to file the suit for eviction on the ground of reasonable requirement being the owner of the flat in suit is a proper finding and cannot be interfered with in appeal.
18. The main thrust of the argument of Mr. S. P. Roy Chowdhury on behalf of the appellant is that the finding of the learned Trial Judge that the plaintiff reasonably requires the premises for his own occupation and for the occupation of his family and the dependents is not a correct finding in the nature of the evidence adduced, that the present occupation of the plaintiff in his rented flat at Cossipore is quite sufficient for the plaintiff and his wife, that the evidence of the plaintiff's son-in-law does not support the plaintiffs that his daughter and son-in-law would stay with them if the plaintiff gets vacant possession of the flat in suit, that the ailment of the plaintiff and his wife are ordinary ailments of the persons of old age and such illness is not so serious as to justify the learned Judge to hold that plaintiff and his wife needs constant care of his daughter and son-in-law and that distance between Bally-
gunge and Cossipur is not such as would be difficult for the daughter and son-in-law to look after the plaintiff and his wife in case of need.
19. It is also urged that the subsequent facts and events disclosed by him show that the plaintiffs son-in-law is now occupying a bigger flat than that at 12 Satyen Dutta Road and that the son-in-law and the daughter of the plaintiff cannot in the circumstances have any necessity to live with the plaintiff and his wife. Mr. Roy Chowdhury has referred before us several decisions of the Supreme Court and of our High Court and have pointed out that the plaintiff cannot get eviction of the defendant tenant only because he desires it but he has to prove his urgent need therefor but the evidence adduced does not satisfy the conscience of the Court that he has any such pressing need for occupation and that the rented occupation at Cossipore can be held to be reasonably suitable accommodation for him when there is nothing to show that there is any threat of the plaintiff from eviction from his landlord. In order to prove the reasonable requirement the plaintiff has examined himself as P.W. 2, P.W. 6 Siva Kumar Khanna the plaintiff's son-in-law, P.W. 4 Dr. Rajendta Mohan Arora, a homeopath who claims to be treating the plaintiff and P.W. 5 Dr. Tarun Gupta who claims to have been treating the plaintiffs wife for her ailments since 1970/71. Over and above, the premises in suit as well as the plaintiff's rented flat have been inspected by the Advocate Commissioner who has been examined as P.W. 1 and his report has been marked Ext. 1. Several prescriptions and other documents have been exhibited to support the plaintiff's story that the plaintiff and his wife have been suffering from the various ailments for several years.
20. On considering such evidence the learned Judge has come to the following main findings:
1) The accommodation in the plaintiffs rented premises is not insufficient no doubt, but notwithstanding that, the consideration of age and predicaments of the plaintiff and his wife suffering from various ailments and the distance of the place at which the plaintiff's daughter and her husband have been living and working weigh heavily in favour of the plaintiff on this issue.
2) The plaintiff has proved by himself and by examining two doctors that both he and his wife who are old couple have been suffering from various ailments for which they need constant care and nursing.
3) The defendant cannot dispute that the plaintiff and his wife are suffering from various ailments but the dispute lies only with regard to the aggravation and seriousness of the said illness.
4) The plaintiff and his wife has no son. Their only issue is a daughter who after her marriage has been residing with her husband P.W. 6 S. K. Kapur.
5) The evidence of Mr. Kapur fully supports the plaintiff's case that the plaintiff and his wife need constant care, that there is none to look after them except him and his wife and it is extremly difficult for them to look after the plaintiff and his wife from such a distant place i.e. from a distance of 15 miles from their residence at Ballygunge and that it is not possible for him and wife to live with the plaintiff and his wife at Cossipore as his office is at Alipur Road and his children require to stay near about the place where they are now residing in connection with their respective work and education.
6) By evicting the defendant the plaintiff would incur financial loss no doubt but that fact does not demolish the plaintiff's story of reasonable requirement. There is nothing unreasonable of the plaintiff for requiring the suit flat for his living there with his daughter and son-in-law in the special circumstances of his health, diseases etc. and spend the remaining part of his life in his own flat even by incurring some financial loss.
7) The defendant's contention that the plaintiff has not been able to prove that he is in urgent need of shifting to the suit flat and he has merely expressed his desire to move to the suit flat and that mere desire is not sufficient to prove reasonable requirement is not acceptable. The question of reasonable requirement is a question of fact to be decided on its own facts and that in this case the plaintiff's son-in-law and daughter are eager to put up with the plaintiff and his wife in the suit flat in order TO look after them in their old age and there is nothing unnatural or improbable in such claim.
8) Considering the entire evidence and the circumstances the learned Judge is of the opinion that the plaintiff has most successfully proved that he reasonably requires the suit premises for the use and occupation of himself and his wife u/s 13(1)(ff) of the Act and that it cannot be said the plaintiff possesses reasonably suitable accommodation for himself and other members of his family in the rented flat.
21. Mr. Roy Chowdhury has urged that evidence adduced would not justify the above findings.
22. In order to evict the tenant on the ground of reasonable requirement u/s. 13(1)(ff) of the West Bengal Premises Tenancy Act, the plaintiff has to prove to the satisfaction of the court that it is not merely his desire or wish to occupy the premises but he has present urgent need to occupy the same and the plaintiff cannot get the decree for eviction on this ground unless he proves the same satisfactorily. On considering the judgment of the learned Judge we are of the view that the learned Judge white passing the judgment in favour of the plaintiff was quite aware about the proposition of law which has now been well settled by several decisions of Supreme Court and by our High Court in several decisions. We have already indicated that Mr. Roy Chowdhury has referred to us all these decisions and we are convinced that the plaintiff cannot get the decree for eviction only because of his mere wish or desire and he has to establish that he has the present urgent need and that the said need is also genuine and not actuated by any ulterior motive.
23. In this connection reference may be made to the decision of P. S. Desai v. C. M. Pate), . There interpreting the word 'requires' while dealing with the similar provision of eviction of tenant on the ground of requirement of the owner, the Supreme Court has held that there must be an element of need and not mere desire for the owner landlord to evict the tenant for his own personal requirement.
24. In Bega Begam v. Abdul Ahrned Khan which is a judgment of the Supreme Court of a Bench consisting of three Judges, the Supreme Court has interpreted the word "reasonable requirement" in which a landlord can evict tenant under J & K Houses and Shops Rent Control Act 1966, S. 11(i)(h), and has observed that the expression "reasonable requirement" postulate that there must be an element of need as opposed to a mere desire or wish, that distinction between the desire and need should doubtless be kept in mind but not so as to make genuine need as nothing but a desire and that the connotation of the terms "need" and "requirement" should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremly difficult for the landlord to get a decree for eviction.
25. In our view while dealing with the present case, the principle laid down by the Supreme Court in Bega Begam's cases should be kept in mind because in that judgement the Supreme Court has clearly laid down the principle for granting the relief for recovery of possession of the owner/landlord on the ground of reasonable requirement. In this connection a recent Division Bench Judgment of our High Court reported in (1988) 1 Cal LJ 278 Deokinandan Boobna and Kara Sundar Sarkar may be taken note of. The facts of the said Division Bench case are almost similar to the facts of the present case.
26. There is plaintiff/landlord a medical practitioner himself housed in a rented house in a suit for ejectment of tenant prayed for ejectment of the tenant on various grounds including the reasonable requirement and as to the plea of reasonable requirement it was alleged that the plaintiff and his wife are aged couple who had only one married daughter that his son-in-law, also a medical practitioner and the married daughter both were members of his family and when both the courts below concurrently found that the family of the plaintiff was constituted by the plaintiff and his wife, their daughter and their son-in-law and the plaintiff having no other reasonably suitable accommodation else-where reasonably required the premises and the decree for eviction granted on such a finding could not be assailed in the second appeal. The Division Bench has further observed that when an old landlord and his aged wife have only the. married daughter as their only child and required the tenanted premises for the occupation of the daughter and her family so that they might live with them and they might be properly looked after and taken care of in their old age, such requirement would not in law, be the requirement of that daughter or her family but would be the requirement of the landlord for his own occupation within the meaning of S. 13(1)(ff) of the West Bengal Premises Tenancy Act.
27. Let us now deal with the evidence that has been adduced in this case in support of the plaintiff's story of reasonable requirement. Admittedly the plaintiff and his wife are living in a rented flat in Cossipore and they do not have anybody else to look after them except their married daughter, her husband and their children. It is also in evidence that the married daughter and her husband at about the time when the suit was filed was living at 12, Satyen Dutta Road, Ballugunge.
28. The appellant has drawn attention to the subsequent events and facts that the son-in-law has acquired a better accommodation and has been living there with his family namely wife and one married son and an unmarried daughter and the youngest daughter is now staying at stretch.
29. In our view we are not deciding as to whether the son-in-law for his own purpose requires any accommodation in the family of the plaintiff/respondent. We are considering the requirement of the plaintiff/respondent. In that context we have to consider as to whether the requirement of the flat in suit by the plaintiff as sought for by him is reasonable or not. Therefore the fact that plaintiff's son-in-law is now living in a better flat has no relevance. It is also not disputed that both the plaintiff and his wife were sufficiently advanced in age when the suit was filed in 1980 and with the lapse of nine years they have become pretty old.
30. It cannot also be disputed that both of them have been ailing for a considerable period of time. Whether such ailments are really serious or not is a matter of dispute between the plaintiff and the respondent, but that they have been ailing for long time for various diseases cannot be taken to be figment of imagination. The defendant could . not successfully assert that their ailments are imaginary. It is only contended that they have ailments no doubt but such ailments are not suc.h that they need the constant care and attention by the married daughter and her husband.
31. We have, however, the evidence of the plaintiff himself and his son-in-law which clearly testify that the son-in-law and the married daughter had to go to the plaintiff's house on several occasions in case of seriousness of ailments of the plaintiff's wife and they were finding it very difficult to take care of the plaintiff and his wife who admittedly lives in Cossipore which is in the northern extremity of the city of Calcutta whereas the plaintiffs son-in-law and married daughter have been living at Ballygunge which is in the Southern extremity of the city of Calcutta. Regard being had to the distance between the Cossipore and Ballygunge and regard being had to the facts that the communication over telephone may at time become illusory of which we take judicial notice because of the fact that telephones in Calcutta often remain out of Order. Therefore these old couple living in the Northern Extremity of the city would face great difficulty in contacting his married daughter and son-in-law in case of urgent need.
32. Mr. Roy Chowdhury has pointed out some discripancies in the evidence between the plaintiff himself and his son-in-law and has urged that son-in-law does not specifically state that he wants to stay in his father-in-law's house for the purpose of looking after them and in that view when the son-in-law and the married daughter are not going to stay with the plaintiff then the problem of communication would continue and thus there is no necessity of the plaintiff to come to live in the suit flat.
33. It cannot, however, be disputed that the distance between the Park Street where the suit flat is situated and Ballygunge were the plaintiff's son-in-law presently stays is not very great. Therefore, the communication between the plaintiff and his son-in-law and married daughter would not be as difficult as it would be if the plaintiff and his wife continued to stay in Cossipore. Moreover, the son-in-law might not stay permanently with the in laws. But he will in case of need.
34. It is a case in which the plaintiff who is admittedly much advanced in age and none else but his married daughter and son-in-law to look after him prays for eviction of the tenant claiming that he reasonably requires the suit premises for his own use and occupation. The facts are exactly similar to that of Deokinandan Boobna's Case. In the circumstances it is difficult to take the view that it was merely the wish or desire of the plaintiff to get the khas possession of the flat suit. The learned Trial Judge has held that it was not mere desire but the plaintiff reasonably requires the suit premises for his own use and occupation. He has also held that the present accommodation of the plaintiff at Cossipore cannot be treated to be a reasonably suitable accommodation.
35. It is true that the Division Bench of our High Court in Sonabati v. Achautananda (1983) 87 Cal WN 278, has held that only because the plaintiff is in occupation of a rented premises would not by itself a ground for evicting a tenant and when the tenanted accommodation is far better than that of the occupation which the plaintiff requires and there is no immediate threat of eviction of the plaintiff in the tenanted premises, then in that case the tenanted premises can be a reasonable suitable accommodation and the plaintiffs suit for eviction on the ground of reasonable requirement must be dismissed.
36. In this particular case, the inspection of both premises have been held. The accommodation in the rented premises of the plaintiff and that in the suit premises is almost similar. But the suit premises has the rooms which are a little bigger in size than those occupied by the plaintiff in his rented accommodation. But the plaintiff in this case does not pray for eviction on the ground that the accommodation in a rented premises is not sufficient. But he considers his present accommodation to be not a reasonably suitable accommodation because of the present state of his health and because of his old age he and his wife require constant care and attention of only issue namely the married daughter and her husband and that was not possible if they continued to live in the rented flat at Cossi-pore.
37. When the persons grow old they need constant reed of the close relative if available. The plaintiff not having any male issue" has only married daughter and her family to look after and on whom they can depend upon. The evidence of P. W. 6 Mr. S. K. Kapoor is to the effect that he and his wife is very much eager to render such help but is unable to do that because the plaintiff and his wife are living at a distant place and that is why they are in difficulty in rendering any help to them. In the circumstances the learned trial judge has rightly held that the plaintiff's rented accommodation at Cossipore cannot be held to be a reasonably suitable accommodation for him to deny him the possession of the flat in suit.
38. We are, therefore, unable to hold that the learned trial Judge had committed any illegality in decreeing the plaintiff's suit for his own use and occupation.
39. We are also of the view that the subsequent facts and events which the defendant appellant has disclosed before us is not at all material for the purpose of disposing of this appeal. The plaintiff has not prayed for eviction on the ground that the son-in-law's accommodation at 12, Satyen Dutta Road was not sufficient to accommodate him and the members of his family. Therefore the fact that Shri Kapoor has rented a bigger flat is not at all material for deciding the plaintiff's reasonable requirement of the flat in suit.
40. The appeal is, therefore, dismissed with costs.
41. The appellant is given two month's time to vacate the suit premises.
Siba Prasad Rajkhowa, J.
42. I agree.
43. Appeal dismissed.