Calcutta High Court (Appellete Side)
Prasanta Kumer Kundu And Ors vs Kanailal Khan on 11 March, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
SA 990 of 1969
With
CAN 9383 of 2003
Prasanta kumer Kundu and Ors.
-Vs-
Kanailal Khan
For the Appellants : Sri Bhudeb Chatterjee;
Sri Amaresh Kumar Dhar, Ld. Counsel
For the Respondent : Sri Sudip Ghosh;
Sri Ashis Kumar Dutta, Ld. Counsel Heard on : 18/07/2014 Judgement on : 11/03/2015 Subrata Talukdar, J.: This Second Appeal arises out of a suit for ejectment. The original suit being Title Suit No. 233 of 1966 was filed by the plaintiffs-landlords claiming ejectment against the defendants on the grounds of default in payment of rents and for reasonable requirement of the suit premises for their own use and occupation.
By Judgement and order dated 21st September 1967 the Ld. Trial Court was pleased to dismiss the suit on contest. While dismissing the suit the Ld. Trial Court, inter alia, held as follows:-
a) That the defendant was a monthly tenant under the predecessor-in-interest of the plaintiffs in respect of the suit premises at a monthly rental of Rs. 40 according to the Bengali Calendar month. By a Deed of Settlement the present plaintiffs had become owners of the suit property and the predecessor-in-
interest of the present plaintiffs has been impleaded as the defendant No. 2 in the suit.
b) Notice of ejectment was served on the twin grounds of default in payment of rents and for reasonable requirement of the suit premises for the own use and occupation by the landlords themselves. Service of notice of ejectment having been proved and on the failure of the defendants to vacate the suit premises gave cause to filing of the instant suit.
c) The Ld. Trial Court found that the defendant-tenant was entitled to an inspection of the Deed of Settlement. The Ld. Trial Court also found that even after execution of the Deed of Settlement the predecessor-in-interest of the present plaintiffs continued to collect rent and issue rent receipts in favour of defendant-tenant. In such view of the matter the defendant- tenant was entitled to deposit the rent under Section 21 of the West Bengal Premises Tenancy Act, 1956 (for short the 1956 Act) with the Rent Controller and was not a defaulter.
d) On the ground of reasonable requirement the Ld. Trial Court found that from Exhibit 10 it transpires that there are in all a total of 9 rooms in occupation of the plaintiffs. There are altogether 7 persons in the family of the plaintiffs, viz. the parents, two marriageable sons, widow 'pisima', one cook and one whole time maid servant. Out of the 9 rooms two rooms are on the top floor out of which one room is used as a 'thakurghar' and for storing old articles.
Altogether there are 7 rooms on the first floor out of which, according to the report of the local Inspection Commissioner, one room is used as a kitchen, one room as a bathroom, there is a covered verandah and the remaining 5 rooms can be used as living rooms. The Ld. Trial Court thereafter went into a detailed account of the possible use of each of the rooms by the plaintiffs and held that while the 'pujo' room cannot be used for sleeping, the other two rooms could not be deemed to be unfit for use in appropriate ways by the members of the plaintiffs' family.
Having considered the report of the Ld. Commissioner the Ld. Trial Court found several discrepancies with regard to the statement of the witnesses on the issue of use of the various rooms namely that the plea of use of the rooms by the married daughter, who visits her parents from time to time is unworthy of being sustained inasmuch as she is normally found to be residing in her matrimonial home. For the above and sundry reasons the Ld. Trial Court did not find any substance in the claim of the plaintiffs to reasonable requirement and therefore dismissed the suit.
The order was carried in appeal vide Title Appeal No. 352 of 1967 and the same was decided on the 10th of April, 1968. The Ld. First Appellate Court, inter alia, held in its judgement of affirmation as follows:-
i) That the validity of the notice to quit stood proved and service thereof on the defendant No. 1 also stood proved.
ii) On the question of default the Ld. First Appellate Court found from Exhibits C and C1 that the defendant No. 1-tenant paid rent to Gokul Chandra Kundu the defendant No. 2 and predecessor-in-interest of the plaintiffs, for 3 months in 1372 BS. The defendant No. 1 sent the rent for one of the months to defendant No. 2 by money order but such money order was refused by the defendant No. 2. Thereafter the defendant No. 1 began to deposit the rent with the Rent Controller. The rent challans were in the custody of the defendant No. 1 and the defendant No. 1 was not aware of the execution of the Deed of Settlement in respect of the suit premises by the defendant No.
2 in favour of the plaintiffs. Therefore, through several correspondence the defendant No. 1 requested the defendant No. 2 to show him the Deed of Settlement which was refused.
The Ld. First Appellate Court, therefore, found that the conduct of defendant No. 2 was such as to create a reasonable doubt in the mind of the defendant No. 1 with regard to the identity of the person legally entitled to realise rent. Therefore, the Ld. First Appellate Court also found the defendant No. 1- tenant to be justified in depositing rent with the Rent Controller and affirmed the finding of the Ld. Trial Court that the defendant No. 1 was not in default.
iii) On the point of reasonable requirement the Ld. First Appellate Court discussed in detail the different rooms in the possession of the plaintiffs. On perusal of the report of the Ld. Commissioner, the Ld. First Appellate Court found it difficult to accept the usage of the rooms as argued on behalf of the plaintiffs. For instance, the Ld. Court found it difficult to fathom that the room marked 'W' could be a bathroom. The Ld. Court also found it difficult to appreciate that the portion of the covered verandah marked 'Y' could not be used as a drawing room.
Therefore, ascribing its own reasons the Ld. First Appellate Court did not find justification to the plea of reasonable requirement. Thus, the appeal stood dismissed.
Sri Bhudeb Chatterjee, Ld. Counsel appearing for the appellants-landlords in this appeal, took this Court to the report of the Ld. Commissioner. Ld. Counsel argued that the report has treated several rooms in the suit premises arbitrarily and is coloured by subjective remarks. Ld. Counsel points out that requirement of the plaintiffs would mean only habitable rooms and cannot include any other room or so-called room such as 'thakurghar', covered verandah etc. It is the further contention of Sri Chatterjee that the size of the plaintiffs family has not been disputed by the defendants. He argues that both the Ld. Trial Court and the Ld. First Appellate Court were swayed by the report of the Ld. Commissioner with regard to the extent and possible functions of the rooms and embarked on a completely speculative exercise with regard to the possible alternate use of the said rooms by the plaintiffs family. In such view of the matter, according to Ld. Counsel, the correct principles of reasonable requirement were not applied by both the Ld. Trial Court and the Ld. Appellate Court.
In support of his submissions Sri Chatterjee relied upon following decisions:- (2005) 3 ICC 788 (Netai Chandra Paul & Anr. vs. Dilip Kumar Saha) (at paras 24 and 26); (1996) 5 SCC 344 (Meenal Eknath Kshirsagar (MRS) vs. Traders & Agencies and Anr.) (at paragraph 20); (2005) 1 ICC 299 (at paragraphs 40 and
42); and (2005) 3 ICC 798 (Debabrata Gupta vs. Nanigopal Bhattacharjee) (at paragraph 34).
Further relying on the contents of paragraph 10 of CAN 9383 of 2003, which is an application filed by the plaintiffs-petitioners in connection to this appeal, Sri Chatterjee submits that during the pendency of this appeal for a prolonged period certain subsequent events have taken place which are as follows:-
"10) During the pendency of the above appeal in this Hon'ble Court some subsequent events have taken place which are relevant and material for the purpose of disposal of the above appeal. The said events are stated as under-
A) Having become the absolute owners of the said premises, the petitioners amicably partitioned the same through a registered deed of family settlement dated 14th February, 1996. B) Because of such partition 3 rooms, with one bath and one privy in the 1st floor have fallen in the share of the petitioner no. 1 similarly 2 rooms one privy, one bath in the first floor have fallen in the share of the petitioner No. 2; the Chille kotha and one room in the 2nd floor (3rd storey) has fallen in the share of the petitioner no. 2. C) Both the petitioners have got married. The petitioner no. 1 has one son aged about 25 years and one son aged about 18 years. The widow maternal Aunt of the petitioners who was all along residing in the said premises at all material times, is permanently residing with the petitioner no. 1.
D) The petitioner no. 2 has one son aged about 12 years and one unmarried daughter aged about 21 years since there is nobody to look after her except the only married daughter that is the wife of the petitioner no. 2. The old widow mother in law of the petitioner no. 2 is permanently residing with the petitioner no. 2. E) The number of rooms in possession of the petitioner no. 1 being grossly insufficient, one of the 3 rooms in his possession had to be converted into a kitchen cum dining room, out of the other two rooms in his possession, in one room the petitioner no. 1 and his wife have to be accommodated and in the other room the petitioner's sons, and maternal Aunt have to be hardle together.
The maid servant residing with the petitioner no. 1 has to be accommodated in the kitchen cum dining room.
F) Similarly, the number of rooms in possession of the petitioner no. 2 being grossly insufficient one of the three rooms in his possession has to be converted into a kitchen cum dining. Out of the other two rooms including chille kotha in his possession, in one room, the petitioner no. 2 and his wife have to be accommodated and in the other room in the 2nd floor of the son and widow mother in law of the petitioner no. 2 are accommodated the daughter of the petitioner no. 2 stays in the chille kotha room at the 3rd storey." Then taking this Court to paragraph 8 of the affidavit-in- opposition filed by the respondent to CAN 9383 of 2003, Ld. Counsel argues that the averments at paragraph 10 (supra) have not been controverted.
Therefore, Ld. Counsel argues that both the Ld. Trial and First Appellate Courts were extremely speculative and subjective with regard to the reasonable requirement of the plaintiffs to the suit property. Ld. Counsel submits that law requires both the Courts to take into consideration the existing and present requirement of the plaintiffs to the suit property which has not been done. Accordingly, Sri Chatterjee argues for allowing this appeal.
Sri Chatterjee, however, fairly submits that the ground of dismissal for default is not pressed by the appellants.
Sri Sudip Ghosh, Ld. Counsel appearing for the defendant- tenant submits as follows:-
I) That concurrent findings of fact arrived at both by the Ld. Trial Court and Ld. Appellate Court cannot be interfered with in the present second appeal which must confine itself to a pure appreciation of law.
II) Taking this Court to the plaint in Title Suit No. 233 of 1966, Sri Ghosh points out that the plaint fails to reflect the ground situation. Ld. Counsel explains that only paragraph 6 of the plaint makes a passing reference to reasonable requirement and reads as follows:-
"The defendant has failed and neglected to make any payment of rent to the plaintiffs since Aswin 1372 BS and as such he is a habitual defaulter since then and has defaulted in payment of rents more than 4 months within a period of 12 months. Moreover the plaintiff Nos. 2 and 3 who have attained marriageable age and required premises occupied by the defendant for use and occupation by themselves and members the defendants of their family. That the defendants have also caused various acts of damage nuisance in his tenanted portion as given in the schedule below."
III) Ld. Counsel further argues that the only ground of reasonable requirement is the marriageable age of the sons of the original landlord. Such requirement is not specific and no other ground having been made out in the plaint with regard to reasonable requirement and, all grounds relate to the ground of default, both the Ld. Courts below correctly decided the issue. IV) Taking this Court to the application being CAN 9383 of 2003 filed on behalf of the plaintiffs pleading subsequent circumstances, Sri Ghosh argues that if subsequent events were to be considered then it will be necessary to amend the plaint which was filed long back in 1966. Ld. Counsel also argues that in the event subsequent circumstances are considered by this Court at the stage of hearing this appeal, this Court may frame a limited issue with regard to such subsequent circumstances and remand the matter to the Ld. Trial Court for hearing. V) Ld. Counsel further argues that the application for taking note of subsequent circumstances was filed only in the year 2003 and has been ventilated before this Court in the year 2014. Ld Counsel argues that in effect there are no subsequent circumstances but only a new cause-of-action.
VI) Taking this Court to paragraphs 5 and 8 of the affidavit-in- opposition of the respondents to CAN 9383 of 2003 Sri Ghosh submits that alternative accommodation is available to the plaintiffs. Such alternative accommodation was available to the plaintiffs when the application for recording subsequent events was filed. He relies on two sale deeds in respect of two properties of the plaintiffs located at Howrah and such deeds are of the year 2012.
Ld. Counsel therefore argues that on the basis of the extensive properties held by the plaintiffs there is no reasonable requirement of accommodation in the suit premises and, during the long pendency of this appeal it cannot be said that the plaintiffs are likely to suffer any prejudice on the ground of lack of reasonable requirement. In support of his contentions Sri Ghosh relies upon the following decisions:- (2005) 10 SCC 38 (Manica Poosali (dead) by LRS and Ors. vs. Anjalai Ammal and Anr.); (2005) 10 SCC 179 (Santosh Sanchari vs. Purushattam Tewari (deceased) by LRS.); and (1975) 1 SCC 770 (Pusupuleti Venkateswarlu vs. The Motor and General Traders).
On the above grounds Ld. Counsel argues that the present appeal be dismissed.
Having heard the parties and noticing the materials on record this Court finds that by order dated 28th November, 2013 the second appeal was admitted on the following substantial questions of law:-
i) Whether the Ld. Courts below erred in law in not appreciating the relevant evidence on record;
ii) Whether findings of the Ld. Courts below are perverse on the basis of the evidence on record.
Taking the first ground of eviction canvassed by the plaintiffs claiming default in payment of rent by the defendant it is noticed that both the Ld. Trial Court and Ld. Appellate Court returned their findings against the plaintiffs. Admittedly, the rent was paid in favour of the defendant no.2 by the tenant-defendant claiming that he did not have knowledge of the fact that the suit premises stood transferred by the defendant no.2 in favour of the plaintiffs. The rent so tendered by the defendant no.1-tenant to the defendant no.2 by money order was refused by the defendant no.2 and thereafter the defendant no.1 regularly deposited rent with the Rent Controller. The relevant challans showing deposit of rent before the Rent Controller by the defendant no.1-tenant have been marked Exbt. A series.
In the opinion of this Court the Ld. Appellate Court correctly held that the defendant no.1-tenant was justified in harbouring a bona fide doubt regarding the identity of the landlord who was entitled to receive the rents. It is not in dispute that the defendant no.2- earstwhile landlord had executed a Deed of Settlement marked Exbt.1 in favour of the present plaintiffs. In the light of the Deed of Settlement the plaintiffs became the new landlords of the suit premises and such transfer was not within the exact knowledge of the defendant no.1-tenant. It is also on record that vide a letter marked Exbt.B (2) the defendant no.1-tenant wrote to the defendant no.2 requesting the latter to show him the Deed of Settlement transferring the suit premises in favour of the plaintiffs. Admittedly again, such document was not shown to the defendant no.1-tenant.
In the light of the above facts the Ld. Appellate Court justifiably held that since the Deed of Settlement was not shown to the defendant no.1-tenant in spite of his request, the conduct of the defendant no.1-tenant could not be faulted for doubting whether the suit premises were actually transferred.
The Ld. Appellate Court noticed that vide Exbt. C (c) (1) the defendant no.2 had realised rent from the defendant no.1-tenant up to the month of Bhadra, 1372 BS whereas the Deed of Settlement was executed on 28th Aswin, 1372 BS. Accordingly, it was further noticed by the Ld. Appellate Court that even after the execution of the Deed of Settlement the defendant no.2 continued to realise rent from the defendant no.1-tenant thereby adding legitimacy to the doubts in the mind of the defendant no.1-tenant regarding the fact of a real transfer in favour of the plaintiffs. The Ld. Appellate Court was therefore pleased to hold that the defendant no.1-tenant was justified in depositing rent with the Rent Controller and agreed with the finding of the Ld. Trial Court on the issue that a case of default in payment of rent was not made out against the defendant no.1-tenant. This Court does not find that the Ld. Trial Court and the Ld. Appellate Court erred in law in holding against the plaintiffs on the ground of default in payment of rent. Accordingly, such ground in the second appeal is answered against the present appellants.
On the second ground of reasonable requirement this Court is compelled to take notice of the manner of appreciation of evidence on record by both the Ld. Trial Court and the Ld. Appellate Court.
From the evidence of the defendant no.2-erstwhile landlord the following emerges:-
"The plaintiffs live in the first floor and second floor. There is only one room on the second floor. It is used as a 'thakurghar'. There are five rooms on the first floor. I have in my family seven members in all - my wife, two sons, my elder sister, a maid servant who cooks our food and myself. The eldest son aged 26. The other son is aged 24. Both the sons are marriageable but I cannot get them marriage for want of rooms. I have two married daughters. They come to my house from time to time. I have one kitchen and one store room out of the five rooms. Our room is used as a parlour. I use the parlour as my bed room. My wife and my sister use one room as their bed room. Our cook uses one bed room with a full time maid servant. One of my sons sleeps in the verandah. Another sleeps in the 'thakurghar'. My daughters use the bed rooms used by our cook. The cook and the maidservant sleep in the verandah. My sons then sleep in the parlour with me."
At the same time this Court is also required to notice the evidence of the plaintiff, Prasanta Kumar Kundu.
"My brother and myself use bed room jointly. My mother and 'pisima' use another bed room. Father sleeps in the parlour. The maid-servant who cooks our food uses the 'thakurghar' as her bed room. There is one maid-servant in the house. She sleeps in the covered verandah. I have two married sisters. They visit our house from time to time."
On the aspect of reasonable requirement it is also worthy to take note of the evidence of the defendant no.1-tenant. In his evidence the defendant no.1-tenant, inter alia, deposes as follows:-
"The plaintiffs keep their sundry household materials on the covered 'dalan' on the ground floor. Gokulbabu's sister does not ordinarily reside at the plaintiff's family. They have a thika maid-servant and a whole-time cook."
In his cross-examination the defendant no.1-tenant deposes as follows:-
"The sons of Gokulbabu are marriageable. Gokulababu has a widowed sister. She lives at her husband's place. She comes here from time to time. When the married daughters of Gokulbabu came to him, they stay with the parents for a few days."
The Ld. Trial Court was pleased to appoint an Advocate Commissioner to inspect the suit property. In his report the Ld. Advocate Commissioner, inter alia, stated that there are altogether 9 rooms in the occupation of the plaintiffs and out of this there are two rooms on the top floor. On the first floor the plaintiffs have seven rooms. All the rooms are shown in the sketch map attached to the report. In addition to the rooms on the top and the first floor, there is a covered verandah, bath, urinal place and privy in occupation of the plaintiffs. There is a meter room on the ground floor.
From the description and dimension of the rooms it is found that on the top floor the rooms are marked 'O' and 'P' being is the 'thakurghar' and storeroom. On the first floor marked 'Q', 'R', 'S', 'T', 'U' and 'V', there is the kitchen, drawing room, passage with doors, storeroom, bedroom-cum-bathroom, urinal and bath respectively. The covered verandah is marked as 'Y' and the meter room as 'K'.
On a perusal of the impugned judgment of the Ld. Trial Court, this Court finds that there is an elaborate discussion with regard to the description of the respective rooms and the manner in which the plaintiffs can put such rooms to use. The Ld. Appellate Court has also embarked on a speculative exercise with regard to the requirement of rooms claimed by the plaintiffs. Some instances of the exercise as appear from the judgment of the Ld. Trial Court are as follows:-
"I allot one room each to the two sons as they are marriageable."
"The buckets, tins etc. continent food staffs can easily be kept in the kitchen. That will mean more available clear space. Then that room can be conveniently use as a bedroom by the widowed sister of the father."
"This is a passage use as store with two doors. The articles god knows what their, now stacked in this room can easily be removed either to the stair case room or the meter room or to the kitchen as per convenience of the household. The said servant who is sleeping in the covered verandah can easily sleep in this room. The cook is safely lodged in the 'thakurghar'."
Even the Ld. Appellate Court embarked upon a similar exercise with reference to the claim to reasonable requirement. Excerpts from the impugned judgment of the Ld. Appellate Court reveal the following:-
"After reading the Commissioner's Report, I find that the accommodation available of the plaintiffs on the first floor and the second floor of the house are more than what for reasonable requirement. I have already stated above that the plaintiff nos.2 & 3 other two sons of plaintiff no.1 and defendant no.2. They are marriageable age. Each son can be allotted one bedroom. Plaintiff no.1 and her husband can reside in an another room. The widowed sister can also be another room in the first floor of the house. The female cook and the female servant can reside in the 'dalan' marked 'Y' or in the staircase room marked 'P' or in the room marked 'W'."
"The plaintiffs can also use a portion - covered 'dalan' marked 'Y' as a drawing room."
"I therefore do not ___ it necessary to dwell much on this point in details. I agree with the Ld. Munsif that plaintiffs do not legal requirement of the suit plaints from their use and own occupation."
From a bare perusal of the report of the Ld. Commissioner it transpires before this Court that on the first floor there is only one bedroom - the other room being storeroom and drawing room. On the top floor there is a storeroom and a 'thakurghar' only. It does not therefore stand to reason that both the Ld. Trial Court and the Ld. Appellate Court should exercise their mind to permutations and combinations allotting to the plaintiffs the manner in which the Courts think the rooms are to be used. From the evidence of the plaintiffs and of the defendants it is clearly noticed that there are several persons who are residing with the plaintiffs in their household as part of their immediate family.
It is also well understood from the evidence that the sons are marriageable and would need separate rooms for themselves once the marriages are held. The defendant no.2 has clearly stated that the sons could not be married because of the shortage of the rooms. It is also on record that the married daughters visit the house from time to time are required to be accommodated in separate rooms. Even the defendant no.1 has admitted to the present marriageable age of the sons and the fact that sundry household items have to be kept on the covered 'dalan' on the ground floor.
In the backdrop of the ground realities as emanating from the evidence and the report of the Ld. Commissioner the impugned judgments of the Ld. Trial Court and the Ld. Appellate Court can be viewed to be an exercise in giving gratuitous advice and indulging in fanciful speculation qua the accommodation of the plaintiffs. To the mind of this Court the appreciation of the evidence, both oral and documentary is perverse and fails to meet the tests of the law on reasonable requirement as laid down through several authorities.
The law has been laid down that the requirement of the landlord and the choice of his accommodation must be left to the realm of the landlord himself which must be reasonable, not whimsical. The landlord must show a bona fide need as distinguished from a mere desire. The choice of the landlord, which is bona fide, cannot be questioned by the tenant and, in appropriate circumstances subsequent events can be taken note of provided such subsequent events are relevant to determine the claim of bona fide requirement. The requirement of the landlord must be assessed not only on the date of filing of the suit but also on the date of the passing of the decree. A suit for eviction is not a suit in the nature of a personal action, which abates on the death of the original landlord.
Reference may be had with regard to the above propositions of law to the judgments reported in 2003 (1) SCC 462 (Akhileshwar Kumar vs. Mustaqim); 2002 (8) SCC 765 (Savitri Sahay vs. Sachidanand Prasad); 1991 (3) SCC 483 (Gulabbai vs. Nalin Narsi Vohra and 2005 (3) Indian Civil Cases 788 (Netai Chandra Paul & Anr. vs. Dilip Kumar Saha).
This Court is further called upon to notice that the plaintiffs- present appellants filed an application for taking into consideration subsequent events numbered as CAN 9383 of 2003. In the said application the plaintiffs have, inter alia, pleaded such subsequent events at paragraph 10 of the said application (supra).
In the said application for recording subsequent events the plaintiffs have also pleaded at paragraph 12 that at a distance of 300 ft. from the said premises bearing the address 58/2, Desapran Sasmal Road, Howrah the defendant no.1-tenant has a property in the name of his mother, Bhanumati Khan. The said premises have been mutated in the name of the defendant no.1-tenant.
To the application for recording subsequent events an affidavit- in-opposition has been filed on behalf of the defendant no.1-tenant. At paragraph 8 of the affidavit-in-opposition it has been, inter alia, pleaded that the plaintiffs have been allotted with both residential and commercial accommodation in addition to the suit premises and one such accommodation has been sold by one of the plaintiffs for valuable consideration to a third party. Accordingly, the defendant no.1-tenant has alleged that the story of reasonable requirement is not worthy of credence.
It is extremely relevant to take notice of the fact that in the said affidavit in opposition the existence of the property of the defendant no.1-tenant at 58/2, Desapran Sasmal Road, Howrah has not been denied. It has been contended that the property is merely under the occupation of a licensee who was the maidservant of the defendant no.1-tenant. The defendant no.1-tenant had to recover khas possession for evicting the licensee by execution of a decree passed in a separate suit.
From the conspectus of the facts noticed above this Court is persuaded to hold that the reasonable requirement of the plaintiffs in the suit premises was speculatively assessed by both the Ld. Trial Court and the Ld. Appellate Court qua the evidence on record. This Court sitting in second appeal is entitled to examine such perverse findings which are de hors the statutory mandate. It is by now trite law that findings of fact must be in accordance with the statutory mandate and, can be set aside in second appeal even if concurrently arrived at by the lower Courts. In this connection useful reference may be made out to the judgment reported in 2001 (5) SCC 705 (Deena Nath Vs. Pooran Lal). Furthermore, considering the age of the second appeal the prayer for remand to fish out further evidence, as contended by Ld. Counsel for the respondent, must be refused.
Accordingly, the judgment and order dated 10th April, 1968 passed by the Ld. 3rd Additional District Court, Howrah in Title Appeal No. 352 of 1967 arising out of the judgment and order dated 21st September, 1967 in Title Suit No. 332 of 1996 passed by the Ld. 3rd Munsif (now Civil Court (Junior Division), Howrah stand set aside. The suit stands decreed in favour of the plaintiffs on the ground of reasonable requirement.
SA 990 of 1969 stands allowed.
There will be, however, no order as to costs.
Let the decree be drawn up expeditiously.
Let the LCR be sent back.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.)