Calcutta High Court
Jagat Bandhu Batabayal vs Jiban Krishna Roy on 30 August, 2001
Equivalent citations: AIR2002CAL42, AIR 2002 CALCUTTA 42, (2001) 3 CAL HN 244, (2001) 2 RENTLR 622, (2002) 1 CAL LJ 562, (2002) CAL WN 405
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT Pranab Kumar Chattopadhyay, J.
1. The instant Second Appeal has been filed by the defendant-tenant and is directed against judgment and decree passed by the Learned 4th Court of Additional District Judge, Alipore in Title Appeal No. 436 of 1992 reversing the Judgment and decree passed by the Learned Munsif, 3rd Court, Alipore in Title Suit No. 189 of 1979.
2. The plaintiff is the landlord and is the respondent in the present appeal. The plaintiff filed a suit for ejectment against the defendant who was inducted according to the plaintiff as a monthly tenant in respect of the suit property at a monthly rent of Rs. 80/-. It has also been stated by the plaintiff that he is the owner of the suit property wherein the defendant was inducted as tenant. According to the plaintiff, defendant damaged a bedroom within his tenancy and has failed and neglected to pay the rent since the month of November, 1978. It has also been stated by the plaintiff that he requires the suit property for the use and occupation of himself and other members of his family.
3. According to the plaintiff his present accommodation is most insufficient and inadequate and the rooms under the tenancy of the defendant, will suitably meet the requirements of the plaintiff and solve the acute accommodation problem in his family. Accordingly, the plaintiff served an ejectment notice upon the defendant inspite of receipt of the said notice the defendant did not quit and vacate the suit rooms and hence the suit was filed by the plaintiff.
4. Defendant-tenant contested the suit by filing a written statement denying all the material allegations made by the plaintiff and the defendant prayed for dismissal of the suit.
5. Initially the suit was heard ex parte and an ex parte decree was passed against the defendant by the Learned Munsif. Against the said ex parte decree, defendant tenant preferred an appeal and the Learned 12th Court of Additional District Judge, Alipore was pleased to set aside the ex parte decree passed by the Learned Munsif and remanded back the suit to the Trial Court only on limited point to allow an opportunity to the plaintiff to adduce evidence on the point of ownership with further opportunity to the defendant to cross examine and to adduce evidence if any with a liberty to the plaintiff to cross examine so that the Learned Munsif can finally dispose of the matter in accordance with law.
Against the aforesaid order of remand passed by the 1st Appellate Court, an appeal was again preferred by the defendant before this Hon'ble Court. This Hon'ble Court by the judgment dated 5th June, 1989 decided the said Second Appeal and modified the order of remand by directing the Learned Munsif to give reasons as to whether notice served upon the defendant was legally valid or not and further directed the Learned Munsif to give reasonable opportunity to the plaintiff to adduce evidence and similar opportunity to the defendants to cross examine the witness who may be produced by the plaintiff while deciding the issue and arriving at the finding. This Hon'ble Court also directed the Learned Munsif to give proper reasoning as to his decision on the ground of relief granted to the plaintiff.
6. The Learned Munsif considering the materials and evidence on record ultimately dismissed the suit by the judgment and decree dated 31st August, 1992. Being aggrieved by the said Judgment and decree passed by the Learned Munsif plaintiff preferred an appeal before the Additional District Judge. 4th Court, Alipore. The said Additional District Judge of the First Appellate Court after considering the relevant evidence on record held that the plaintiff was the owner of the suit premises and also held that the plaintiff required the possession of the suit rooms for his own occupation. Accordingly the Learned Judge of the Lower Appellate Court allowed the appeal and set aside the judgment and decree passed by the Learned Munsif. Being dissatisfied with the aforesaid judgment and decree passed by the First Appellate Court, instant Second Appeal has been preferred by the defendant-tenant.
7. The only ground urged on behalf of the appellant in this appeal is whether the Lower Appellate Court arrived at a proper finding on the requirement of the plaintiff in respect of the suit property on the basis of proper materials and evidence on record. So before proceeding further following substantial question of law is formulated for the purpose of deciding this Second Appeal.
"Whether the finding of the First Appellate Court as to the reasonable requirement of the plaintiff in respect of the suit property is based on evidence on record ?"
8. Mr. Bhattacharjee, Learned Counsel of the appellant submitted that in order to assess the requirement of the landlord, Court should assess firstly the actual accommodation already available to the plaintiff and secondly, whether the requirement of the landlord can be satisfied with the said available accommodation. Mr. Bhattacharjee contended that though the Learned Judge of the Lower Appellate Court recorded the plaintiffs case regarding extent of accommodation already available to the plaintiff but did not come to a finding in this regard. Mr. Bhattacharjee further contended that the Learned Judge of the Lower Appellate Court erroneously held that the landlord requires a Guest room and also one Dinning room though the landlord never claimed the aforesaid requirements in the plaint. According to the Learned Counsel of the appellant, Learned Judge of the First Appellate Court travelled beyond the pleading in order to accommodate certain requirements of the plaintiff, which are admittedly not mentioned in the plaint. Learned Counsel of the appellant criticised the finding of the Lower Appellate Court on the requirement of the plaintiffs accommodation as according to the Learned Counsel of the appellant, Learned Judge of the Lower Appellate Court while deciding the appeal allowed two more rooms to the plaintiff on his own for which no foundation has been made in the plaint. According to the Learned Counsel of the appellant, the finding of the Learned Judge of the Lower Appellate Court regarding plaintiffs requirement of eight rooms is absolutely perverse as there is no foundation in the plaint in this regard.
9. Mr. Sudhis Dasgupta, Learned Senior Counsel appearing on behalf of the plaintiff/respondent submitted that the Learned Judge of the Lower Appellate Court correctly assessed the requirements of the plaintiff and rightly held that the plaintiff reasonably eight rooms besides the Kitchen. Bathroom and Thakurghar. Admittedly, the family of the plaintiff consists of himself, his wife, three adult sons and two unmarried daughters. It is also admitted that the plaintiff has two married daughters. Plaintiff resides in the premises No. M/50, Pahurpur road which is adjacent to the suit premises being No. M/47/3, Paharpur Road and is also the suit premises herein. It has stated by the plaintiff that he is in Khas possession of two bed rooms in ground floor and one bed room in the first floor besides the Kitchen, Thakurghar, Latrine, Poultry room and covered Verandah at the said residential premises being No. M/50. Paharpur road.
10. According to the Learned Munsif, plaintiff requires one room for himself and his wife, one room for two unmarried daughters, two rooms for three unmarried sons besides Kitchen, Thakurghar and Bathroom. Learned Munsif also held that the plaintiff reasonably requires one room for Drawing-cum-Study room. The Learned Judge of the Lower Appellate Court however, has specifically held that plaintiffs claim for three rooms for three unmarried sons is definitely bona fide and reasonable. According to the Learned Judge of the Lower Appellate Court, said unmarried sons of the plaintiff require separate and exclusive room for each one of them for preserving their privacy. Considering the materials and evidence on record, the Learned Judge of the Lower Appellate Court held that the plaintiff being a landlord reasonably required eight rooms besides Kitchen, Bathroom and Thakurghar.
11. Learned Judge of the Lower Appellate Court however, held that plaintiff and his wife reasonably require one room for them and one room for two unmarried daughters and three rooms for three unmar-
ried sons. The Learned Judge of the First Appellate Court further held that the plaintiff also requires a Guest room for providing accommodation to the Guests including the married daughters. The Learned Judge of the First Appellate Court also held that plaintiff further requires one Dining room, Kitchen, Thakurghar, Bathroom and also a Drawing room. Plaintiff has proved the ownership in respect of the suit premises before the Courts below. Considering the relevant materials and evidence on record. Learned Judge of the First Appellate Court specifically held that the plaintiff requires the possession of the tenanted rooms in the suit property for his own occupation.
12. Mr. Dasgupta submitted that on the bais of the evidence on record Learned Judge of the First Appellate Court correctly assessed the actual accommodation required by the plaintiff. Mr. Dasgupta further submitted that the First Appellate Court being the final Court of fact decided the extent of accommodation reasonably required by the plaintiff on the basis of evidence on record. As such, this Court cannot interfere in Second Appeal with the said finding of fact.
13. Mr. Dasgupta cited the following decisions in support of his arguments :
1. (Bhairab Chandra v. Ranadhir Chandra) Paragraph-4
2. (Sarla Ahuja v. United India Insurance Company Ltd.) Paragraph-14
3. (Bega Begum v. Abdul Ahad Khan)
14. Mr. Dasgupta further submitted that in absence of any specific averment in the pleading Court is not powerless to grant decree. Mr. Dasgupta cited the following decisions in support of his aforesaid contention :
1. 1990 CWN. 1086 (Trilok Ch. Jain v. Hirendra Kr. Mitter) at page 1098 Paragraph 38.
2. 1989 CWN, 343 (Girdharilal Soni v. Maya Roy) Paragraph-12.
15. In order to distinguish the aforesaid decisions cited by Mr. Dasgupta, Mr. Jyotirmoy Bhattachrjee, Learned Counsel of the appellant submitted that the plaintiff has admittedly claimed no room for his married daughters nor claimed any Guest room. Dining room in the plaint. According to Mr. Bhattacharjee unless pleading is there Court cannot consider any evidence. According to Mr. Bhattacharjee basic requirements of the plaintiff have been mentioned in the plaint and the requirements of Guest room and Dining room have admittedly not been mentioned in the plaint. According to the Learned Counsel of the Appellant, if there is no basis and or foundation in the pleading in support of any particular claim then the Court cannot look into the evidence adduced in support of such claim.
16. Mr. Bhattacharjee cited the following decisions in support of his aforesaid contentions :
1. (Siddik Mahomed Shah v. Mt. Saran) (Head Note)
2. (Thakur Rai v. Bhagat Rai).
17. Mr. Bhattacharjee in order to distinguish the judgment of this Court reported in 1990 CWN 1086 cited a Division Bench decision of this Hon'ble Court reported in 1987 (2) RCR [Krishna Kumar v. Gobinda Chandra) Paragraphs 2, 11, 12. 13 and 15.
18. Learned Counsel of the appellant lastly urged another point regarding hardship of the tenant which has not been taken into consideration by the Learned Judge of the Courts below. According to the Learned Counsel of the appellant. Learned Judge of the Lower Appellate Court did not consider the aspect of the hardship of the tenant. Reiving on a decision (M. S. Zahed v. K. Raghavan) Mr. Bhattacharjee submitted that landlord's requirement of additional space even if assumed as bona fide one cannot be considered as reasonable requirement.
19. Mr. Bhattacharjee further contended that the principle of live and let live should have been followed in the instant case by the Learned Judge of the First Appellate Court. Mr. Bhattacharjee cited a decision of the Supreme Court (Jivram v. Tulshiram) Paragraph 5.
20. Mr. Bhattacharjee also submitted that question of partial eviction of the tenant should have taken into consideration by the Learned Judge of the Lower Appellate Court. Learned Counsel of the appellant specifically contended that the said Learned Judge, did not consider the claim of the plaintiff in respect of requirement of the additional space in the light of the Section 13(4) of the West Bengal Premises Tenancy Act and did not form any opinion as to whether the requirement of the plaintiff will be substantially satisfied by ejecting the tenant from a part of the suit premises and as such the finding of the Lower Appellate Court is perverse.
21. Mr. Bhattacharjee cited the following decisions in support of his aforesaid contention :
1. (Rahman v. Ram Chand) Paragraphs 2 and 3
2. (S.S. Bhowmick v. Susama Bose) Paragraph-12.
22. Mr. Dasgupta, Learned Senior Counsel of the plaintiff however contended that the question of hardship of the tenant cannot be taken into consideration while adjudicating the landlord's claim of the suit premises on the ground of reasonable requirement under the provisions of West Bengal Premises Tenancy Act. Mr. Dasgupta submitted following decisions in support of his contention :
1. 1991 (1) CLJ 392 (HC) (Himanshu Bikash Das v. Ramendra Mohan Dutta) Paragraph 23
2. (2000) 3 CLT 303 (HC) (Calcutta Municipal Corporation v. Sibamoy Chakrborty) Paragraph 20 and 21.
23. In my opinion, the aforesaid point has already been decided by this Court in the aforesaid two decisions as cited by Mr. Dasgupta and accordingly I am of the opinion that the provisions of West Bengal Premises Tenancy Act do not authorise the Court to look into the comparative advantage and its disadvantage of the landlord and tenant while deciding the issue relating to requirement of the landlord in respect of any accommodation for his own use and occupation.
24. Though Mr. Bhattacharjee, Learned Counsel of the appellant submitted that the Learned Judge of the First Appellate Court should not have considered the evidence in absence of pleading but Mr. Dasgupta, Learned Counsel of the plaintiff submitted that the Court should not scrutinise the pleadings in such a way which would ultimately defeat the genuine claims on trivial grounds. Mr. Dasgupta cited the following decisions in support of his aforesaid contention :
1. , (Madan Gopal v. Mamraj) Paragraph-26.
2. , (Nagubal v. B. Shama Rao) Paragraphs 11 and 12.
25. Furthermore, the requirement of a Guest room for providing accommodation to the guests including the married daughters cannot be held unreasonable though the plaintiff never specifically mentioned for a separate room for his married daughters. The requirement of a Guest room for providing accommodation to the guests including the married daughters cannot be held unreasonable as the plaintiff has all along mentioned about his married daughters and the defendant-tenant was never taken by surprise before the Courts below, in dealing with the issue of reasonable requirement, the claim of the plaintiff for one Guest room particularly for accommodating the married daughters could not have taken by the defendant-tenant by surprise nor the said defendant could reasonably contend that such claim of the plaintiff could not be anticipated.
26. In today's world, one cannot Insist that the landlord is entitled to one study-cum-drawing room only where television will be running and the children will attempt to study in an extermely competitive world. To maintain healthy relation with the relatives, in-laws and friends, one needs a guest room. The landlord is entitled to a comfortable living though may not be a luxurious one.
27. Therefore, while considering the specific issue regarding reasonable requirement of the suit premises by the plaintiff the Learned Judge of the First Appellate Court has justly considered the claim for Guest room. The defendant-tenant, in my opinion, since knew all along that the plaintiff has two married daughters could not possibly face any difficulty to meet the aforesaid claim of the plaintiff in relation to his actual reasonable requirement of accommodation. In the present case defendant knew that whether the plaintiff reasonably require the suit premises for own use and occupation; is in issue and as the decision of the Privy Council as cited by Mr. Bhattacharjee and (Supra) has no manner of application in the instant case as the issue in question was known to the defendant and the admitted fact regarding the aforesaid two married daughters or the plaintiff was also known to the defendant since the same was all along mentioned by the plaintiff in the pleading and evidence before the Courts below.
28. Furthermore, claims of the plaintiff for one Guest room for the purpose of accommodating the family guests including the married daughters and one Dining room and also one Drawing room must be considered as an essential requirement in a dwelling unit like bathroom, privy, kitchen etc. In my opinion, aforesaid essential requirements of the Landlord should automatically form an integral part of his reasonable requirement. One need not include evidence in the pleadings as is well settled. The rooms and spaces required are mere elaboration of reasonable requirement of the landlord. It is not necessary to give particulars in detail. The cause of action of the landlord is reasonable requirement. How much is required can be detailed in evidence. Therefore, the Learned Judge of the first Appellate Court rightly held that the plaintiff reasonably requires one Guest room and one Dining room along with the Bedrooms. Drawing room, besides Kitchen, Bathroom, Thakurghar etc.
29. The finding as to the extent of accommodation reasonably required by the plaintiff herein is certainly a finding of fact and the Learned Judge of the First Appellate Court being the final Court of fact has categorically held that the plaintiff requires the possession of the suit premises for his own occupation and the plaintiff's requirement of those suit premises is bona fide and reasonable. The aforesaid finding of fact of the First Appellate Court cannot be challenged in the Second Appeal unless the said finding is based on no evidence or has been made on erroneous application of law.
30. Whether the landlord-plaintiff has properly established his bona fide requirement for his won use and occupation on the basis of evidence on record is the sole crieterion for this Court in deciding this appeal. Scrutinising the judgment of the First Appellate Court, I am of the view that the findings of the First Appellate Court do not suffer from any infirmities and/or irregularities.
31. As the Supreme Court in the case of Budhwanti v. Gulab Chand Prasad has held that the High Court in Second Appeal would be justified in setting aside the finding, even though factual in character, if the same is based on no evidence but in the instant case Learned Judge of the Lower Appellate Court on the basis of the evidence on record decided the issue relating to the reasonable requirement of the suit premises by the plaintiff and as such it cannot be said that the findings of the First Appellate Court are erroneous on the ground that such findings could not be arrived at by any reasonable person on the basis of the evidence on record.
32. Furthermore, the question of partial eviction was rightly not considered by the Learned Judge of the first Appellate Court as the tenant never raised such issue before the Lower Appellate Court nor any material was available before the Learned Judge of the Lower Appellate Court on the basis whereof the Learned Judge could form an opinion that the requirement of the plaintiff can be substantially satisfied by ejecting the tenant from a part and /or portion of the suit premises. Since, no such material was available before the Learned Judge of the Lower Appellate Court, question of partial eviction of the tenant was rightly not considered by the Learned Judge of the First Appellate Court under Section 13(4) of the West Bengal Premises Tenancy Act.
33. In the Case of Mattu Lal v. Radhe Lal, Supreme Court categorically held that the High Court would not be entitled to interfere in Second Appeal and set aside the finding of fact so long as there was some evidence to support it and it could not be branded as arbitrary, unreasonable or perverse.
34. In a recent judgment (Pakerapa Rai & Seethanna Hebgsu 'D' by LRs) Supreme Court held as hereunder:
".......But the High Court in exercise of power under Section 100, C.P.C. cannot interfere with the erroneous finding of fact howsoever the gross error seems to be ............"
35. In my opinion, learned counsel of the appellant has failed to establish that the Learned Judge of the Lower Appellate Court has committed any mistake of law or the finding of the said Learned Judge is based on no evidence or the finding is such that no reasonable man can reach.
36. Such being the position. In Second Appeal. I cannot interfere with the finding of fact arrived at by the Lower Appellate Court which is the final Court of fact. For the reasons mentioned hereinabove, I find no infirmity and or irregularity in the findings of the Learned Judge of the First Appellate Court and furthermore, in my opinion, no substantial question of law is involved in the instant Second Appeal. Thus, I find no merit in this Second Appeal.
37. Accordingly, the instant Second Appeal fails and the same is dismissed.
38. The impugned judgment and decree of the Lower Appellate Court is hereby affirmed. The defendant-appellant shall vacate the suit premises within 31st December, 2001 failing which the plaintiff/respondent will be at liberty to get the same done by putting the decree into execution.
39. In the facts and circumstances of the case, there will be, however, no order as to costs.