Calcutta High Court (Appellete Side)
Jayanta Kumar Das vs Barun Kumar Guin & Ors on 2 May, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Asha Arora
S.A.T. 94 of 2017
(CAN 3475 of 2017)
(CAN 3477 of 2017)
Jayanta Kumar Das
-Versus-
Barun Kumar Guin & Ors.
For the Defendant/ : Mr. Prasanta Behari Mahata,
Appellant Mr. Aritra Shankar Roy.
For the Plaintiffs/ : Mr. Sushil Kumar Sikdar.
Respondents
Heard on : 2nd May, 2017.
Judgement on : 2nd May, 2017.
Jyotirmay Bhattacharya, J.
This second appeal is directed against the judgement and decree dated 9th January, 2017 passed by the Learned Additional District Judge, Third Court at Paschim Medinipur in Other Appeal No. 94 of 2014 affirming the judgement and decree dated 15th September, 2014 passed by the Learned Civil Judge (Junior Division), 1st Court, Paschim Medinipur in Other Suit No. 114 of 2010, at the instance of the defendant/appellant.
Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41 Rule 11 of the Code of Civil Procedure, or not.
Here is the case where we find that the plaintiffs have filed a suit for eviction on the ground of reasonable requirement. The plaintiffs are four brothers and sisters. It is alleged by them that the plaintiff no.1 is unemployed. They reasonably require the suit premises for the plaintiff no.1 who intends to start a business in the suit premises. The suit room is a shop room wherefrom the defendant is carrying on business. They claimed that they are the owners of the suit premises and they do not have any other reasonably suitable alternative accommodation elsewhere wherefrom the plaintiff no.1 can carry on business. An eviction notice was served upon the defendant. Since the defendant did not vacate the suit premises after expiry of the notice earlier, the instant suit was filed by the plaintiffs.
The defendant appeared in the said suit and contested the suit by filing written statement denying the material allegations therein. The requirement of the plaintiff as pleaded in the plaint was denied by the defendant. He claimed that the plaintiffs do not reasonably require the suit premises for their own use and occupation and as such, relief by way of eviction should not be granted. The defendant also stated that the plaintiffs have sufficient rental income which they receive from the various tenants of the suit premises. He thus, prayed for dismissal of the said suit.
The parties led evidence in support of their respective claims.
The learned Trial Judge after considering the pleadings of the parties as well as their evidence came to the conclusion that the plaintiffs reasonably require the suit premises for enabling the plaintiff no.1 to start his business therefrom. The learned Trial Judge also held that the plaintiffs are the owners of the suit premises and the suit property is jointly held by four brothers and sisters and the rental income which they receive from the tenants of the suit premises is a meagre amount. The learned Trial Judge was pleased to pass a decree for eviction in favour of the plaintiffs as the learned Trial Court found that the plaintiffs have no other reasonably suitable alternative accommodation elsewhere wherefrom the plaintiff no. 1 can carry on his business.
Challenging the said judgement and decree of the learned Trial Court, the defendant preferred an appeal before the learned First Appellate Court. The learned First Appellate Court dismissed the said appeal by affirming the judgement and decree of the learned Trial Court. Thus, the decree for eviction which was passed in favour of the plaintiffs on the ground of reasonable requirement, was affirmed by the learned First Appellate Court.
Challenging the said judgement and decree of the learned First Appellate Court, the instant second appeal has been filed.
Mr. Mahata, learned advocate, appearing for the appellant submitted that the eviction notice, on which the suit was founded, was a defective notice. He pointed out the defect in the said notice before us. By the said eviction notice, the defendant/appellant was called upon to vacate the suit premises on expiry of the month of March, 2010. The notice was issued sometime on 17th April, 2010. He thus, submits that the said ejectment notice was not in conformity with Section 6(4) of the West Bengal Premises Tenancy Act, 1997.
Though the learned Trial Judge did not deal with the legality of such notice while delivering the judgement but the learned First Appellate Court decided the said issue in favour of the plaintiffs by holding that reference of the month of March in the eviction notice was the product of a mistake made by the lawyer of the plaintiff.
As a matter of fact, the suit was also instituted in June, 2010. The suit was not instituted before expiry of one month after the service of such ejectment notice. As such, the defect in mentioning the month of March, in the notice, was ignored.
We do not find any illegality in such findings of the learned First Appellate Court.
Let us now consider the findings of the courts below with regard to the reasonable requirement of the plaintiffs.
Undisputedly, the plaintiffs are the owners of the suit property. They claimed that the plaintiff no. 1 is unemployed and he requires the suit shop room for starting a business therein.
Both the courts below found that the plaintiffs have no other reasonably suitable alternative accommodation elsewhere wherefrom the plaintiff no. 1 can carry on his business.
The defendant also could not establish by evidence that another accommodation is available to the plaintiffs wherefrom the plaintiff no. 1 can carry on his business. .
If we consider the pleadings of the parties and the evidence led by them in support of their respective claims, we cannot hold that the courts below were unjustified in passing a decree in favour of the plaintiffs on the ground of reasonable requirement.
Mr. Mahato, learned advocate, appearing for the appellant submits that his client has taken out an application under Order 41 Rule 27 of the Code of Civil Procedure for giving additional evidence in this appeal to show that during the pendency of the First Appeal, the plaintiffs have sold some portions of the suit property to a stranger purchaser.
Selling of some portion of the suit premises to the stranger purchaser according to Mr. Mahato, will negate the claim of the plaintiffs regarding their reasonable requirement. The sale deeds showing transfer of some portions of the suit property by the plaintiffs to their purchaser are also annexed to the application for additional evidence.
We have considered those deeds of transfer. We find that excepting one transfer, all other transfers were made by the plaintiffs in favour of their existing tenants of the suit premises. Thus, we can hold that such transfer in favour of the existing tenants cannot defeat the plaintiffs' claim of reasonable requirement of the suit premises, as the plaintiffs never retained physical possession of the portion of suit premises which was sold to the tenants.
Mr. Mahat, learned advocate, has pointed out from one of such deeds that at least one vacant godown was transferred in favour of a stranger purchaser. According to him that godown could have been used by the plaintiff no. 1 for starting his business.
If we consider the tenor of such argument of Mr. Mahato, then it goes without saying that the requirement of the plaintiff no. 1 to start with a business is not disputed by the defendant. Now we have to consider as to whether the godown which was transferred was at all suitable for the purpose of starting with a business or not.
The godown, in our view, cannot be a suitable place wherefrom a business can be started.
Mr. Mahato has also pointed out that by a deed of gift, executed by the plaintiff nos. 2 to 4, the said donors gifted 2.25 decimals of land together with the structure standing thereon in favour of the plaintiff no. 1. The said deed of gift is also annexed to the application for additional evidence.
We have considered the said deed of gift also.
It does not appear from the said deed of gift that the vacant possession of the gifted property was given to the plaintiff no. 1. Even by considering the application for additional evidence, we cannot come to the conclusion that any other accommodation is available to the plaintiffs which can satisfy the requirement of the plaintiff no. 1.
As such, we do not find any substantial question of law in this second appeal for which the appeal is required to be admitted.
Accordingly, we decline to admit this appeal.
This appeal is, thus, dismissed.
The applications filed in connection with this appeal are, thus, disposed of.
(Jyotirmay Bhattacharya, J.) (Asha Arora, J.)