Calcutta High Court
Mahendra Kumar Pareek vs R.M. Biswas on 19 April, 2000
Equivalent citations: (2000)3CALLT238(HC)
JUDGMENT G.C. De, J.
1. This second appeal is directed against the judgment and decree dated 31.3.97 passed by Shri M. M. Sur, Additional District Judge, tenth Court at Alipore in Title Appeal No. 231 of 1996 by which the Judgment and decree dated 31.5.96 passed by Smt. C. Vora, Munslf of the second Court at Alipore in Title Suit No. 195 of 1996 was confirmed.
2. At the time of admission hearing before a Divisional Bench of this Court on 3.9.97, the following substantial question of law wds formulated :
"Whether the learned Courts below granted decree without considering the relevant criteria for eviction of a tenant on the ground of the landlord's personal requirement, and in any event, whether in the facts and circumstances of the case, learned Courts below failed to consider as to whether the decree for partial eviction would serve the purpose of the plaintiff."
3. Briefly stated the plaint case is that the plaintiff is the owner of a two-storeyed building on premises No. 29/2, S. N. Roy Road, Behala, Calcutta and he is in occupation of the first floor. The defendant was inducted as a tenant in the year 1975 in respect of the entire ground floor consisting of three bed rooms, one kitchen, one bath-room and two privies at a monthly rental of Rs. 475/-, which was enhanced from April 1980 to Rs. 575/-, payable according to the English Calender month. On the basis of a lawyer's notice dated 1.8.90, the tenancy was determined with the expiry of the month of September, 1990 and the defendant was directed to quit the suit premises mainly on the ground that the plaintiff requires the suit premises reasonably for his own use and occupation with the members of his family as he has no suitable accommodation elsewhere. Moreover, the defendant is guilty of nuisance and annoyance and also doing acts contrary to the provisions of clauses (m), (o), (p) of section 108 of the Transfer of Property Act. In spite of service of the notice upon the defendant on 4.8.90, the premises having not been vacated, the suit was filed on 24.10.90 praying for recovery of khas possession of the suit premises by evicting the defendant therefrom, for mesne profits, costs etc. Initially the suit was numbered as Title Suit No. 438 of 1990 before the fifth Court of Munsif at Alipore and subsequently on its transfer to second Court of Munsif at Alipore, It was renumbered as Title Suit No. 125 of 1996.
4. The defendant appeared in the title suit on 14.12.90 and filed the written statement on 24.9.92 admitting the tenancy, but denying all the material allegations made against him in the plaint.
5. On the basis of the respective pleadings the learned Munsif framed as many as seven Issues. The parties adduced evidence--both oral and documentary, and after hearing the argument, the learned Munsif carne to a finding that the ground of reasonable requirement of the plaintiff having been established, he is entitled to get a decree for eviction. In coming to such a conclusion the learned Munsif also found out that the plaintiff was the owner of the suit premises and that he had no other reasonable suitable accommodation elsewhere and that the notice to quit was legal, valid and sufficient and it was duly served. Be It mentioned here that the Issue on the point of causing of harassment to the plaintiff and the breach of the provisions of (m), (o), (p) of section 108 of the Transfer of Property Act was not pressed by the learned advocate for the plaintiff at the time of the trial and accordingly, these two Issues were answered In the negative.
6. Before the first appellate Court, as many as 31 grounds were taken by the defendant appellant but the substance of all those grounds, if taken together, is that the trial Court failed to appreciate" the evidence on the record and the legal position as regards the reasonable requirement of the plaintiff and his family members. The appellate Court, after hearing the argument of both sides, delivered the impugned judgment after coming to a conclusion that the plaintiffs requirement as regards two rooms in the ground floor was established and as plea of partial eviction was not taken by the tenant, the recovery of the entire ground floor would be necessary for solving the requirement of the plaintiff including the requirement for his guests. Accordingly he confirmed the judgment of the trial Court and directed the defendant to vacate the suit premises within four months from the date of the judgment on 31.3.97 with a default clause as regards execution of the decree.
7. The second appeal was filed on 12.5.97 and it was admitted for hearing on 3.9.97 on which date interim order of stay of the Title Execution Case was made. Subsequently on 22.1.98 the interim order of stay of all further proceedings of Title Execution Case No. 21 of 1997 was directed to continue during the pendency of this appeal. Paper books were filed on 22.6.98 and an order of listing of the appeal was made. Ultimately the appeal was taken up for final hearing before this Bench on 15.3.2000 when the learned counsel for the appellant wanted to file an affidavit sworn by the appellant on 16.2.2000 for taking note of subsequent events. The learned counsel for the respondent raised serious objection to the acceptance of such a belated petition on the date of final hearing. But for finality of litigation, liberty was given to file the same. On 16.3.2000 the affidavit was filed by the defendant-appellant, and an affidavit-in-opposition sworn on 16.3.2000 by the respondent-plaintiff was also filed along with another supporting affidavit sworn by one Surajlt Sampson alleging him to be the husband of the youngest daughter of the plaintiff-respondent. On 22.3.2000, the appellant defendant filed an affidavit-in-opposition and the said Surajit Sampson filed affidavit-in-reply and on the same date the hearing of this appeal was finally concluded. The details of all these affidavits are to be pointed out in the body of this Judgment. It Is pertinent to mention that in the affidavit pointing out the subsequent events, the appellant defendant took a plea that the second daughter of the appellant was married with Surajlt Sampson on 22.1.99 and since then she has been residing in her matrimonial home. On the basis of this affidavit the learned counsel for the appellant made a forceful argument for remand of this case. On the other hand, the learned counsel for the respondent plaintiff admitting the fact of marriage argued that there was no necessity of remand of this case for taking evidence on the subsequent events.
8. Before taking into consideration the subsequent events, first of all it is necessary to consider how the Courts below examined the requirement of the plaintiff as reasonable and whether the relevant criteria for eviction of a tenant on the ground of the landlord's personal requirement were consider or not and whether the Courts below failed to consider as to whether the decree of partial eviction would serve the purpose of the plaintiff. It is already stated above that the suit building as a two-syoreyed one and the entire first floor is in occupation of the plaintiff-landlord and the entire ground floor Is In occupation of the defend ant-appellant It Is proved by the plaintiff on the basis of title deed and other papers that he Is the owner of the suit building. It is also admitted that the defendant was a tenant under the plaintiff and that the tenancy was determined by a notice to quit duly served on the defendant appellant. Both the Courts came to a finding that the ground of causing nuisance and harassment to the plaintiff and the breach of the provisions of (m), (o), (p) of section 108 of the Transfer of Property Act were not pressed by the plaintiff and accordingly, those were answered in the negative and In favour of the appellant-defendant. Actually the learned counsel for the appellant also did not agitate the foregoing points. He also did not attack the findings of the first appellate Court as regards the proof of requirement of the plaintiff In respect of five rooms. He based his argument to the effect that as the requirement of the plaintiff was found to have been proved and restricted to five rooms out of the six rooms in the suit building, the defendant-appellant is entitled to get one room in his possession and in fact, he clarified that the defendant appellant is agreeable to part with possession of two rooms in his possession for meeting the requirement of the plaintiff respondent. Placing reliance on the provisions of section 13(4) of the West Bengal Premises Tenancy Act and the principles adopted by the apex Court in the decisions (Rahman Jeo Wangnoo v. Ram Chand & Ors.) and (State of Punjab v. Gurnam Singh), the learned counsel for the appellant made a forceful argument that the Court is to consider whether partial eviction will satisfy the claim of the landlord or not and whether partial eviction can substantially satisfy his claim. The learned counsel also placed reliance on another decision of the Apex Court reported in 1993 Supp (1) Supreme Court Cases 439 (Krishna Murart Prasad v. Mttar Singh) in support of the contention that even in a fit and proper case, the Court was pleased to divide one shop room into two for satisfying the need of the landlord and to save the tenant from eviction. Actually the learned counsel for the appellant, placing the observation of the apex Court in (Jivram Ranchhoddas Thakkar v. Tulshiram Ratanchand Mantri), argued that the stress should be on 'live and let live' and in proper case, the tenant, if agreed upon, shall surrender half of his tenancy.
9. The plaint case as well as the evidence of the plaintiff as PW 1 is that he requires nine rooms in all-one for the plaintiff and his wife, two rooms for the daughters, one room to be used as study room by the two daughters, one guest room, one dining room, one drawing room, one room for the business of the plaintiff and one room for wholetime maidservant. The trial Court came to a finding that eight rooms could be necessary for accommodating the plaintiff one room for the plalntllT and his wife, two rooms for the two daughters, the elder daughter being already married, one guest room, one drawing room, one dining room and one room for the business of the plaintiff. The trial Court also came to a finding that accommodation for the wholetime maid-servant is necessary but considering the available accommodation in the entire building, that requirement is to be satisfied by converting the verandas as the room for the maidservant. The first appellate Court confirmed the findings of the trial Court with regard to the requirement of the plaintiff to the extent of one room for the plaintiff and his wife, two rooms for the two daughters, Including the married daughter, one room for the guests frequently vising the plaintiff, one drawing room and one room for the business of the plaintiff. Thus, the first appellate Court confirmed the findings of the trial Court with regard to requirement of five rooms by the plaintiff. But the learned counsel for the plaintiff respondent drew attention of this Court to the judgment of the trial Court in which it was found out that a dining room was also necessary for the plaintiff, but in the Judgment of the appellate Court, there is no whisper on this point. A scrutiny of the evidence on record Justifies the requirement of the plaintiff with regard to a dining room and this point having not been controverted before the first appellate Court, 1 find no reason to disallow the prayer of the plaintiff with regard to a dining room. So it is proved by the plaintiff as well as it is a concurrent finding of the Courts below is that the plaintiff urgently requires one room for himself and his wife, one room for his own business, one room to be used as a drawing room, one room to be used as a guest room, one room to be used as a dining room. Thus, urgent need of the plaintiff in respect of five rooms has been established and accepted by both the Courts below.
10. As regards the requirement of two rooms for the two daughters. It is already stated in the paragraph No. 7 herelnabove that on 16.3.2000 an affidavit was filed by the defend ant-appellant with a prayer to take note of subsequent events. In the said affidavit the defendant-appellant pointed out that the youngest daughter of the plaintiff was married with one Surajlt Sampson on 22.1.99 and since then she was residing in her matrimonial home. The address of the matrimonial home was not given in the affidavit. On the same day, that is on 16.3.2000, the plaintiff-respondent filed an affidavit admitting the marriage of his youngest daughter on 22.1,99, but he stated that since the marriage, the youngest daughter was residing in his family along with her husband Surajit Sampson and he further added that the married daughters were residing with the plaintiff for looking after the old plaintiff and his wife. The said Surajit Sampson also filed an affidavit admitting that he was residing with the youngest daughter of the plaintiff in the suit building. On 23.3.2000 the appellant defendant again filed an affidavit-in-opposition alleging that the youngest daughter with her husband was residing in the matrimonial home at Bankura and not in the suit premises. On the same day Surajit Sampson filed another affidavit-in-reply pointing out that he was working in an office at Calcutta and he resides with the youngest daughter of the plaintiff in the plaintiffs family. Certain documents were also annexed in the affidavits filed on behalf of the plaintiff-respondent to show that the youngest daughter was residing in the suit building with her husband, and in the office of the husband the address of the suit building was shown as the residential address of the husband.
11. On the basis of the affidavits the defendant-appellant has tried to show that there is no requirement of any room for the youngest daughter. The learned counsel for the appellant pointing out the evidence on record also argued that the requirement in respect of the 'eldest married daughter was not established to be genuine. So the learned counsel made a forceful argument that when one guest room has been kept, that they satisfy the requirement of the casual visits of the two married daughters or in the alternative, the suit is to be sent back on remand for a re-trial as regards the requirement of the married daughters, especially the youngest daughter, and for giving an opportunity to the defendant to cross-examine the said youngest daughter and her husband. It is urged that if an opportunity is given to cross-examine the youngest daughter it would be shown that there is no requirement of any room for the youngest daughter.
12. The learned counsel for the appellant also pointed out the averment in paragraph 4 of the plaint in which the plaintiff clarified that his two daughters were aged 19 and 17 years respectively and both of them were students. Attention was also drawn to paragraph 5 of the plaint in which the plaintiff explained that he requires one room each for the two daughters and one study room for the daughters as both the daughters were studying in colleges. The learned counsel for the appellant forcefully argued that the said requirement as made out in the plaint is no more in existence as both the daughters are married and left their studies. So, unless the plaint is amended, it cannot be said that the plaintiff requires any accommodation for the married two daughters. On this score, the learned counsel placed reliance on a decision of ttif Apex Court (Hamat Rat and Anr. v. Loknath Prasad] to show that once an appeal against & decree of eviction is made, the appeal being a continuation of suit, the landlord's necil must be shown to continue to exist at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court Including the appellate Court has to examine, evaluate and adjudicate the same. Otherwise, the landlord would derive an unfair advantage. Reliance was also placed in another decision of the Apex Court (Must. Bcga Begum and Ors. v. Abdul Aahat Khan] to augment the argument that mere desire of the landlord cannot be construed as reasonable requirement and there must be an clement of need as opposed to a mere desire or wish.
13. Thus the learned counsel for the appellant has come up with threefold argument--(1) after the marriage of the two daughters, there is no bona fide need or requirement for three rooms to be used by them, (11) to prove the requirement or for making out a case of requirement of married daughters the plaint is required to be appropriately amended and the suit is to be sent back on remand for giving an opportunity to the defendant to cross-examine the married daughters and to challenge the documents produced in support of their claim, (ill) as the requirement of the plaintiff will be satisfied with five rooms as is discussed herelnabove the defendant is agreeable to hand over two rooms from the ground floor to the landlord by way of partial eviction and one room in the ground floor may be allowed to be occupied by the tenant.
14. The learned counsel for the respondent pointing out paragraphs 4 to 5 of the plaint, argued that there is no necessity to amend the plaint as it is specifically indicated that the plaintiffs family consists of himself, his wife and his two daughters and he requires one room each for the two daughters and one study room for the said daughters as they were studying in college. The learned counsel further pointed out that in the affidavit pointing out the subsequent event the appellant defendant stated that the youngest daughter was married and living in the matrimonial home, but there is no whisper as regards the requirement of the eldest daughter which was found to be genuine by both the courts below. It is also argued that even if it is admitted that there is no necessity of the study room, the plaint case as regards requirement of two living rooms for the two daughters remains as it is, even after their marriage, specially in view of the fact that the plaintiff has no male issue. So the learned counsel concluded that requirement of two rooms for the two daughters having been pleaded in the plaint, there is no necessity to amend the plaint or to send the case back on remand for a retrial on the requirement of the married daughters. On this score reliance was placed on a decision of the Apex Court reported in 1992 Supp. (II) Supreme Court Cases 623 (Ramesh Kumar v. Keshoram) la show that the normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtained at the commencement of the lis. But this is subject to an exception, whenever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief the Court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. In the said Judgment, as was pointed out by the learned counsel, the Apex Court also held that if the allegation of fact made in support of such a plea are denied, then alone the question of their proof in an appropriate way arises. If those allegations of facts are admitted there is no need 'to prove what is admitted or must be deemed to be admitted. So the learned counsel concluded that when the marriage of the youngest daughter has been admitted there is no necessity to send back this case on remand for proving the subsequent events.
15. The synopsis of the argument of the learned counsel for the Appellant is that as both the daughters are married they do not require any accommodation in the family of the plaintiff and (he guest room will meet their requirement. On this scope, the learned counsel for the respondent submitted that the Appellant wants to drive out the two daughters from the family of the plaintiff as they are married and that the daughters with their husbands are to be treated as guests in the family. He questioned to himself--is it the legal position with the married daughters, specially to a sonless plaintiff? Of course, he himself placing reliance on case laws answered the question in negative.
16. Law is not static on this issue. With the advancement of the society, specially keeping in view the popular slogan 'Small family is happy family' daughters are equally treated like the sons. The much forgotten days of infanticide hardly can be dreamt of. Now-a-days parents generally remain satisfied with daughters and hardly they think of enlarging the family in expectation of a son. Law of the land had also risen to the occasion and distinction on the basis of sex has long been done away with. Daughters can inherit like the sons. Parents in case of need can claim maintenance from daughters and even from married daughters like sons. Court of law approves the right of old parents, not having any male Issue, to depend on married daughter in case of need. A Division Bench of this Court in M/s. Arora and Sons v. Debt Prasad Khanna in a similar case held that the plaintiff can get a decree for eviction for accommodating his married daughter and son-in-law. In fact, both the Courts below, after due consideration of the evidence on record and keeping in view the law on the point, took the view that the eldest married daughter requires one room for herself as she generally stays in the family of the plaintiff and goes to her in-law's place in the weekend only on return of her husband from Ranigunj where he works for gain and stays in a hostel. Sitting in second appeal I do not find any reason to interfere with this concurrent finding of both the Courts below. Thus the requirement of one room for the eldest married daughter does not call for any Interference.
17. As regards requirement of the youngest married daughter it is admitted by the plaintiff-respondent that she was married during the pendency of this second appeal. Materials are produced to show that the husband of the youngest daughter to working in a Calcutta office and he has been living with the youngest daughter in the family of the plaintiff, which is a Chrlstan family. It appears that the purpose of delaying the finality of this litigation, the defendant has simply stated that the youngest daughter resides in her matrimonial home, but the address of the said matrimonial home has not been given. An attempt was made to show that the husband of the youngest daughter being a man of Bankura, his matrimonial home is at Bankura and hence the youngest daughter does not require any accommodation in the family of the plaintiff. But at the risk of repltlon, it is to be pointed out that the plaintiff has no male Issue and in the plaint, it is specifically stated that he requires two rooms for his two daughters. It is already discussed above that a sonless parent can treat their daughters as their sons and can keep appropriate accommodation for their married daughters in his family. The reasonable requirements of the married daughters were also approved by another Division Bench of this Court in Parimal Bala v. Santosh . Requirement of daughter and her husband was also treated as reasonable requirement of the plaintiff by a Division Bench of this Court in Htmangshu Bikas Das v. Ramendra Mohan Dutta (96 CWN 57) and in Deokinandan Boobna v. tiara Sundar Sarkar [1988 (I) CLJ 2781. So in the present case the plaintiff having no male Issue can claim two rooms for regular stay, as claimed by the plaintiff, or for usual casual visits of the married daughters. It is pointed out by Ihe learned counsel for the appellant defendant that when a guest room was considered to be essential by both the Courts below, [hat room can be used during the casual visits of the daughters. That can, of course, meet the requirement in respect of one of the daughters casually or occasionally visiting the plaintiff. Stiff there remains requirement of another room for the daughters. So out of the four rooms claimed by the plaintiff for accommodating his two daughters and the guests, 1 hold that the said requirement can be adjusted by allowing two rooms to the plaintiff in place of four rooms.
18. Thus from the above discussion, it is concluded that the plaintiff has been able to prove his urgent need or requirement in respect of six rooms and as three rooms are in his occupation, he is entitled to get the remaining three rooms available in the tenanted premises. In fact, the first appellate Court while making conclusion as regards requirement of the plaintiff and absence of the plea of partial eviction, viewed that the entire suit premises will meet the requirement of the plaintiff. It is already discussed above that while making such a remark, the appellate Court came to a conclusion as regards requirement of five rooms Ignoring the requirement of one room to be used as a dining room. The. plaint case as proved by the plaintiff justifies his urgent, need and requirement of the entire suit premises and accordingly, I do think that there is any necessity to interfere with the final findings of both the Courts below.
19. As regards partial eviction, it is to be noted from the Commissioner's report that in the ground floor there are two privies and one bath. The appellant is agreeable to part with two rooms after keeping one for their use. In course of the argument before this Court the learned counsels of both the sides admitted that the family of the defendant consists of five members--the defendant, the defendant's wife, defendant's son. daughter-in-law and grandson. Such a big family cannot be accommodated in a room.
Even if the defendant is agreeable to remain in one room that will not be feasible as there is no separate bathroom ad the landlord cannot be asked to share the bathroom with the tenant. The learned counsel for the respondent on this score rightly placed his reliance on a single Bench decision of this Court reported in 1989 (1) CLJ 131 (Peary Afohan Kapoor v. Sudhindranath Saha and anr.) in which the Court disallowed Ihe proposal of sharing of the same bathroom and privy by two families and came to a finding that partial eviction in such a case should be avoided. Reliance was also rightly placed in another decision qf the Apex Court (Sorfa Ahuja v. Indian Insurance Company Limited) in which it was viewed that tenant cannot dictate how the landlord will use the tenanted premises to meet his requirement. Keeping in view the accommodation available in the tenanted premises, it is concluded that partial eviction of the tenant is not possible.
20. Of course, there is no necessity of examining the question of partial eviction specially when the concurrent finding of bolh the Courts below, as is discussed hereinabove, is that the plaintiff urgently requires six rooms including the three rooms available in the suit premises. From the materials on record, I am convinced that the Courts below granted the decree in favour of the plaintiff after due consideration of the relevant criteria for eviction of a tenant on the ground of the landlord's personal requirement. From the facts and circumstances of the case, the trial Court had no occasion to consider whether a decree for partial eviction would serve the purpose of the plaintiff as it took a view that the plaintiff was in need of more than six rooms, Including the three rooms in the suit premises. The first appellate Court however discussed the question of partial eviction. But as is discussed hereinabove, it did not take into consideration that actually the plaintiff proved his urgent need in respect of six rooms Including a dining room. Actually the first appellate Court could not give a decree for partial eviction in view of the urgent need of the plaintiff in respect of six rooms, Including the three rooms in the suit premises. I have already taken a view that granting of a decree for partial eviction is not possible in a case of this nature specifically keeping in view the need of the plaintiff. The substantial question of law as formulated is accordingly decided.
21. Thus, bolh the Courts below having found the urgent need of the plaintiff in respect of at least six rooms and also keeping in view the discussion hereinabove made, I do not think that final findings of both the Courts below do call for any Interference in this second appeal. It is needless to mention that bolh the Courts below have also come to a conclusion that the plaintiff has no other suitable and reasonable accommodation elsewhere and hence, it was rightly concluded that'the plaintiff is entitled to get a decree for eviction of the defendant-tenant from the suit premises.
The appeal is accordingly dismissed on contest. Memo is sufficiently stamped. Considering the circumstances, the parties do bear their own costs of this appeal.
22. Appeal dismissed