Calcutta High Court (Appellete Side)
Swapan Kumar Banerjee & Ors vs Prodyut Kumar Dutta on 2 March, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
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Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
S.A. No.83 of 2005
with
C.A.N.6263 of 2005
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Swapan Kumar Banerjee & Ors.
Versus
Prodyut Kumar Dutta
For the petitioners: Mr. Kashinath De.
For the opposite parties: None appeared.
Heard On: 29.02.2012.
Judgement On: March 2, 2012.
Prasenjit Mandal, J.: This second appeal is at the instance of the
plaintiffs and is directed against the judgment and decree dated
September 7, 2004 passed by the learned Judge, City Civil Court,
9th Bench, Calcutta in Title Appeal No.87 of 2003 thereby reversing
the judgment and decree passed by the learned Judge, Presidency
Small Causes Court, 4th Bench, Calcutta in Ejectment Suit/Case
No.628 of 2000.
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The appellants filed the said suit for ejectment of the
defendant/tenant from the premises in suit as described in the
Schedule of the plaint on various grounds such as default, damage
to the premises in suit, reasonable requirement, etc.
The defendant/respondent contested the said suit by denying
the allegations contained in the plaint and they got the benefit of Section 17(4) of the West Bengal Premises Tenancy Act, 1956 and the learned Trial Judge dismissed the said suit on contest.
Being aggrieved by the said judgment and decree, the plaintiffs/appellants preferred an appeal and then the Appellate Court remanded the matter for consideration of the prayer for ejectment on the ground of reasonable requirement. Thereafter, the learned Trial Judge passed the decree for ejectment on the ground of reasonable requirement.
Being aggrieved by the said judgment and decree of ejectment, the defendant/respondent preferred an appeal being Title Appeal No.87 of 2003. The said appeal was allowed thereby setting aside the judgment and decree of ejectment passed by the learned Trial Judge.
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Being aggrieved by such judgment and decree passed by the learned First Appellate Court, this 2nd Appeal has been preferred.
At the time of admission of the appeal, it was observed that the second appeal will be heard on the following substantial questions of law (vide Order dated 13.1.2005):
(I) Whether the learned court of appeal below was justified in drawing adverse presumption against the plaintiff for non-examination of the persons from the office of the official trustee, West Bengal, notwithstanding the fact that one employee of the said office was examined by the plaintiff (should be read as 'defendant');
(II) Whether the learned court of appeal below was justified in setting aside the findings recorded by the learned trial Judge merely on the ground that two tenants in respect of the shop rooms were inducted after purchase of the property;
(III) Whether the learned court of appeal was justified in dismissing the suit on the ground that simply because the defendant is in possession of one room, the plaintiffs' suit should be dismissed as their 4 requirement will not be satisfied by possessing that one room only.
Upon hearing the learned Advocate for the appellants and on perusal of the materials-on-record, I find that the question No.(I) and (II) are very much related and so these two matters are discussed first.
It is not in dispute that after purchase of the suit premises, the plaintiffs/appellants filed the suit for ejectment on various grounds as recorded above. As per evidence on record, two tenants, namely, Bijan Kumar Roy and Santosh Kumar Roy are possessing two shop rooms in the ground floor of the suit premises as tenants and as per contention of the appellants they were inducted as tenants in respect of their tenanted portions of the suit premises since before the purchase of the property, that is, during the time of Official Trustee. The defendant / respondent contended that the plaintiffs/appellants did not call for any document or witness from the Office of the Official Trustee to prove actually that Bijan Kumar Roy and Santosh Kumar Roy were tenants under the Official Trustee and that they are not inducted as tenants by the plaintiffs/appellants after purchase. Whatever may be the ground of not calling for any person from the Office of the Official Trustee to give statement before the Trial Court on 5 Oath, I find that the defendant/respondent has examined one person of the Official Trustee as defence witness.
Mr. Kashinath Dey, learned Advocate appearing for the appellants has drawn my attention to the statement of the D.W.1, namely, Prodyut Kumar Dutta, son of the original tenant, namely, late Amritlal Dutta. During cross-examination this tenant has admitted that during the pendency of the suit, no tenant has been inducted by the plaintiffs in the suit premises. It is an admitted fact that there are two bed-rooms only in the ground floor of the suit premises for residential purposes and the rest two rooms are meant for shops. The defendant/respondent is in occupation of one bed-room, one kitchen, one rock, one privy and Bath. The admission of the defendant with regard to the fact that no tenant has been inducted by the plaintiffs in the suit premises during the pendency of the suit is the best material to adjudicate the dispute between the parties. The D.W.2 is the Law Assistant of the Official Trustee, Government of West Bengal and he was examined by the defendant but nothing has been obtained from him during the examination-in-chief whether Bijan Kumar Roy and Santosh Kumar Roy were inducted in the premises in suit before purchase of the suit premises by the plaintiffs. Naturally, no cross-examination was made on behalf of the appellants on that point. The defendant/respondent had the opportunity of taking 6 materials from the statement of the D.W.2 or from the appellants that those two persons were inducted after appellants had purchased the suit premises.
Under the circumstances, the argument advanced by Mr. Kashinath Dey that Bijan Kumar Roy and Santosh Kumar Roy had been inducted during the period of Official Trustee appears to be convincing and I accept such submission particularly when there is a clear admission on the part of the defendant/respondent to the effect that no tenant was inducted by the plaintiffs/appellants during the pendency of the suit.
There are several members in the family of the appellants and as per materials-on-record they are 13 in number at present and now they are in occupation of four small rooms for residential purpose at the suit premises.
Admittedly, there are four rooms in the ground floor out of which two rooms are meant for shops, that is, for commercial purposes and the rest two rooms are for residential purposes out of which one is being occupied by the defendant/respondent as per materials-on-record. The plaintiffs are in occupation of the other residential room and the two shop rooms meant for commercial purposes are being used in such capacity by letting out the said 7 two rooms to a goldsmith. The plaintiff got the vacant possession of the other bed-room for residential purposes during the pendency of the suit and they are residing thereat. The other two rooms meant for business purposes cannot be used for residential purposes and even if for argument's sake it is presumed that the plaintiffs got possession of those two shop rooms after purchase, it is, in fact, at the discretion of the plaintiffs to decide whether those two small shop rooms could be used by them as for residential purposes. In this respect, the decision of Dinesh Kumar Vs. Usuf Ali reported in (2010) 12 SCC 740 particularly Paragraph No.25 is very much relevant to come to the conclusion that it is at the discretion of the landlords whether they should reside in the shop rooms or not. The learned First Appellate Court did not consider this fact properly and for that reason he has come to an erroneous decision about the fact of reasonable requirement. The appellants have clearly stated that they require the premises in suit for their residential purposes and not for shop rooms. So, according to the above decision, it is permissible to re-appreciate the evidence on record in the second appeal.
Mr. Kashinath Dey has next referred to the decision of Sitaram Bhaw Patil V. Ram Chandra Nago Patil reported in (1977) 2 SCC 49 particularly the Paragraph No.23 and Cox and Kings Ltd. V. 8 Their workmen and Ors. reported in (1977) 2 SCC 705 particularly as page No.36 to the effect that when both the parties have adduced evidence, the question of burden of proof becomes immaterial and the Court is to adjudicate the matter in dispute on the basis of the evidence on record. I fully agree with the said submission of Mr. Kashinath Dey on this point.
The ownership of the suit property to the plaintiffs/appellants is not in dispute as recorded earlier. The P.W.1 has clearly stated that they have no other alternative accommodation elsewhere other than the suit premises. The evidence on record is sufficient to conclude that the plaintiffs are brothers and they are residing jointly under the common mess along with members of their family in the suit premises.
Mr. Kashinath Dey, learned Advocate for the appellants has drawn my attention to the observations made by the learned Trial Judge on the Issue No.7, that is, the question of reasonable requirement and he has drawn my attention in respect of the accommodation to be required by the plaintiffs for residential purposes and thus, he has shown that the total number of members of the family of the plaintiffs are now 13. The defendant/respondent in his deposition has admitted that none of the members of the plaintiffs' family resides outside the suit 9 premises and at present they are in occupation of four small rooms beside one kitchen, one cover space, common bathroom and latrine. He has also drawn my attention how the plaintiffs/appellants are residing in their present accommodation with difficulties as observed by the learned Trial Judge.
Therefore, from the materials-on-record, I am convinced that the learned Trial Judge was justified in coming to the conclusion that there is a genuine need for further accommodation of the plaintiffs.
The respondent contended that the father of the plaintiffs was a tenant in respect of one room at premises No.21B, Gulab Shastri Lane, Kolkata-14 which is situated nearby the suit premises and he was living at that premises in every nights after having meals from the common mess and after his death the plaintiff got an accommodation at that place and so the family of the plaintiffs might be split up and some of them may be accommodated at that premises. The defendant is a tenant in respect of one bed-room only at the ground floor at premises No.3, Gulab Shastri lane, Kolkata-14 at a rental of Rs.10/- only per month. But from the materials-on-record, it transpires that the P.W.1 has categorically stated that the plaintiff No.1 is carrying on business at that premises, i.e., at 21B, Gulab Shastri Lane. 10 Moreover, the plaintiffs cannot be directed to split up their family when they choose to maintain the joint family under common mess. As per evidence on record, the other accommodation of the appellants at Fordyce Lane, Kolkata had been sold out and so, they have no accommodation at that premises.
The plaintiffs require more accommodations for residential purposes. If the possession of the premises in suit is obtained, yet, it will not be enough for the plaintiffs as their reasonable accommodation. In a way if such an accommodation is received by them, they will be in a comfortable position and that they will be naturally in a better position in comparison with their present accommodation.
Mr. Dey has also referred to the decision of Amal Krishna Aditya V. Ganesh Chandra Das reported in 1998 (1) CHN 521 particularly the Paragraph No.57 and thus he has submitted that the conclusion of the First Appellate Court that since the accommodation of the defendant's premises if given to the plaintiffs, their prayer for reasonable requirement will not be satisfied, no decree for ejectment on the ground of reasonable requirement will be passed, cannot be supported. This submission of Mr. Dey, I hold, is in conformity with the spirit of the West Bengal Premises Tenancy Act, 1956 in relation to a suit for 11 ejectment on the ground of reasonable requirement. For better appreciation of the matter, Paragraph No.57 of the said decision is quoted below:-
"So far as Mr. Das Gupta's contention that since the entire requirement of the plaintiff/respondent would not be fulfilled even if the defendant/appellant vacates the suit premises, no decree for eviction can be passed in favour of the plaintiff/respondent on the ground of reasonable requirement, in view of the Bench decision of this Hon'ble Court in the case of Smt. Gita Devi Shah & Ors. vs. Smt. Chandramoni Karnani & Ors., AIR 1993 Cal 280, is concerned, we are, however, of the view that the said decision is per incuriam, inasmuch as , no where it is stated in the West Bengal Premises Tenancy Act, 1956, specially in section 13(1) that when the landlord files a suit on the ground of reasonable requirement, it is to be proved by the landlord that by getting possession of the disputed tenancy his entire requirement would be fulfilled. On the contrary, it is well- settled that if the court finds that by getting possession of the disputed premises, the requirement of the landlord would be fulfilled to a considerable extent, or that the landlord would be in a better position to some extent in comparison with his present accommodation, the court would not hesitate 12 in passing the decree on the ground of reasonable requirement in favour of the landlord. In the present case also, if we take into consideration the occupation which the landlord enjoys presently, and the extra occupation he would get if he gets possession of the disputed premises, it would be quite clear that the landlord's requirements would be fulfilled to a considerable extent and as such we hold that trial court's finding on the question of reasonable requirement is quite legal and valid."
So, the findings of the First Appellate Court on this aspect cannot be supported.
In such circumstances, according to the decision of M.L. Prabhakar V. Rajiv Singal reported in (2001) 2 SCC 355 particularly Paragraph No.5 and 6 the plaintiffs cannot be directed to split up their families for residing by some members of the family at 21B, Gulab Shastri Lane. In such circumstances, a decree of ejectment on the ground of reasonable requirement could well be passed against the respondent.
In that view of the matter, the learned First Appellate Court was not justified at all in drawing adverse presumption against the plaintiffs for non-examination of any person from the Office 13 of the Official Trustee. The learned First Appellate Court was not also justified in setting aside the decree for ejectment on the ground of reasonable requirement passed by the learned Trial Judge. In consequence, the First Appellate Court was not also justified in setting aside the judgment and decree passed by the learned Trial Judge and thereby dismissing the suit.
All the three substantial questions of law are thus answered. Consequently, the second appeal is allowed. The judgment and decree under appeal passed in Title Appeal No.87 of 2003 are hereby set aside and the judgment and decree dated May 17, 2003 passed by the learned Judge, Presidency Small Causes Court, Calcutta, 4th Bench in Ejectment Suit/Case No.628 of 2000 are hereby affirmed.
Considering the circumstances, there will be no order as to costs.
C.A.N. NO.6263 of 2005:-
Since the respondent is not willing to contest the appeal, this application was not moved by the learned Lawyer for the respondent on February 29, 2012. So, this application for taking note of subsequent events stands dismissed for default. 14
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)