Calcutta High Court (Appellete Side)
Peyari Debi Barma & Ors vs Arati Basu & Ors on 14 November, 2018
Author: Patherya
Bench: Patherya
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Patherya
And
The Hon'ble Justice Madhumati Mitra
F. A. No.99 of 2001
with
CAN 6594 of 2018
Peyari Debi Barma & Ors.
Vs.
Arati Basu & Ors.
For Appellants : Mr. Debasis Roy,
Ms. Sujata Mukherjee,
Mr. Vinay Kumar Purohit.
For Respondent : Mr. Saptansu Basu,
Nos.1(a) & 1(b) Mr. Somnath Bose.
Heard on : 14-11-2018.
Judgment on : 14-11-2018.
Patherya, J : This appeal has been filed from the decree dated 29th June, 1995 whereby the Court below decreed Ejectment Suit No.85 of 1987. Not only was the defendant evicted from the subject premises but a decree for recovery of possession was also passed and it is only because of this that the defendant was directed to quit and vacate the suit premises in favour of the plaintiff within the time specified in the said decree.
Being aggrieved by the said decree, an appeal being FA 99 of 2001 was filed by the appellant.
Counsel for the appellant has submitted that although the appeal was filed in 2001, but various subsequent events have arisen since the passing of the decree and it is because of this that CAN 6594 of 2018 was filed. The subsequent events must be noted. Three eviction suits had been filed by the landlord plaintiff in respect of the second floor and shop rooms on the ground floor. The premises no.188, Maharshi Debendra Road, Calcutta-6 is comprised of G+2 floors. Two shop rooms are in the ground floor, the second floor of the said premises was tenanted and on the first floor, the original plaintiff resided.
Since the pendency of the appeal, the plaintiff has taken vacant possession of the second floor of the said premises. One shop room measuring approximately 160 sq. ft. and the adjoining godown measuring approximately 360 sq. ft. totalling 520 sq. ft. was in the possession of one Radha Raman Saha. He suffered the decree and although an appeal was filed, but for non-filing of the paper books, his appeal was dismissed. As the plaintiff now is in possession of the second floor premise so also the godown and the adjoining shop room totalling 520 sq. ft., the reasonable requirement of the plaintiff has been satisfied. As the reasonable requirement of the plaintiff has already been satisfied, the requirement of 40 sq. ft. need not be addressed and the decree dated 29th June, 1995 be set aside.
In the plaint, the plaintiff categorically has stated that his case is of reasonable requirement and although default of payment was canvassed, the said issue was given up. The case is governed by the West Bengal Premises Tenancy Act, 1956 and Section 2(d) must be addressed which defines the term "landlord". Being a case on the ground of reasonable requirement, ownership of the plaintiff must be declared and the Court below, in not discussing the issue of ownership of the plaintiff nor giving a finding thereof, has erred in law. This point is germane and can be argued at any stage of the proceeding. Reliance is placed on AIR 1981 Supreme Court 1113.
It was for the plaintiff to prove his ownership and the Court below in not raising an issue in respect thereof, nor discussing the said Issue nor finding thereon, has also erred in law and in fact, as the reasonable requirement of the plaintiff is satisfied, no further reasonable requirement exists. Therefore, the decree be set aside.
As postulated through evidence and pleadings, it will appear that the original plaintiff needed the reasonable requirement for his son's office accommodation. The son is an insurance agent and, therefore, the shop room on the roadside was identified. But this reasonable requirement no longer exists in view of the godown along with the shop room stands satisfied.
The Court below did not consider the aforesaid and in fact, no Affidavit-in-Opposition has been filed in CAN 6594 of 2018 by the respondent plaintiff. Therefore, all the averments made in CAN 6594 of 2018 must be accepted. This is another reason to set aside the decree dated 29th June, 1995. Accordingly, the decree dated 29th June, 1995 be set aside.
Counsel for the plaintiff respondent submits that the suit was filed in 1987 as the reasonable requirement had arisen. The application for subsequent event was filed in 2018 and till today, the requirement has not been satisfied. The requirement is not of 560 sq. ft. or 160 sq. ft., but the requirement for 40 sq. ft. is all that was needed and pleaded in the plaint by him or the original plaintiff. The question of ownership does not arise as in paragraph 1, it was categorically averred that the plaintiff is the owner of the said subject premises, which paragraph has not been denied by the defendant appellant. As the ownership of the plaintiff has not been challenged, therefore, the question either of denial or otherwise, had not arisen and no issue was raised by the Court below. It was not necessary, therefore, for the Court below to address the said issue and rightly did not do so. Reliance is placed on (2001) 8 Supreme Court Cases 110 for the proposition that in a case of reasonable requirement, it is for the landlord to consider his requirement and it is for him to use it to the best of his requirement. Therefore, the decree dated 29th June, 1995 passed by the Court below be upheld.
Having considered the submissions of the parties, Ejectment Suit No.85 of 1987 was filed before the City Civil Court by the original plaintiff who described himself as the landlord and owner of premises no.188, Maharshi Debendra Road, Calcutta-6. He further went to describe the appellant as a defendant and monthly tenant. For various reasons, an ejectment notice was issued and a reply was also given thereto. In paragraph 7 of the plaint, the original plaintiff had categorically averred as follows:
" Plaintiff states that the plaintiff reasonably require the suit premises for his own use and occupation and for other members of the family as the plaintiff has no other reasonable and suitable accommodation. Plaintiff states that premises no.188, Maharshi Debendra Road, Calcutta - 6 is a partly 2 storied and partly 3 (three) storied building and that on the ground floor there are three rooms. Two rooms are let out to one Radha Raman Saha against whom one Ejectment Suit is pending and another room is occupied by the defendant. "
There is no doubt that the subject premise is a partly second storey and partly three storied building. On the ground floor, there are three rooms and two rooms were let out to one Radha Raman Saha. Out of the three rooms, one room is the subject room occupied by the defendant appellant. In the plaint itself, the schedule of property has been described as follows:
" Schedule of property Referred to :
ALL THAT one road side shop room on the ground floor of premises no.188, Maharshi Debendra Road, Calcutta - 6, P.S. Jorabagan which is butted and bounded as follows :-
On the North : By Maharshi Debendra Road.
On the South : By the main entrance of the house.
On the East : By Maharshi Debendra Road.
On the West : By staircase. "
Although the original plaintiff described himself as owner and landlord in paragraph 1 of the plaint, the said paragraph was dealt by the defendant appellant while filing his written statement. Although in the relevant paragraph, being paragraph 10 of the written statement, the defendant appellant admitted his tenancy under the plaintiff in respect of one roadside shop room in the ground floor, but he did not dispute the ownership of the owner of the premises or the original plaintiff not being the landlord. In fact, the appellant defendant stated that he was in bonafide possession as a lawful tenant. As the ownership was not disputed by the defendant appellant, no issue in this respect was raised by the Court below. As neither the plaintiff witness nor the defendant witness were put such questions regarding ownership or landlord, it was not incumbent on the Court below to address the question of ownership.
Although counsel for the appellant has raised the issue of ownership and has categorically stated that the issue of ownership can be raised at any stage of proceeding. It is true that such issue could have been raised if the said issue right from the inception was denied, which is not so in this case. The ownership of the plaintiff has been accepted by the defendant appellant and although counsel for the appellant relies on the decision reported in AIR 1981 SC 1113, the said decision will not support the case of the appellant as the said decision is distinguishable on facts and the case reported was one wherein the issue of partition was raised. This is not the case before us. Therefore, the reported decision is not accepted by us in the facts of this case.
While reading the judgment of the Court below and the way in which it dealt with the issue with regard to reasonable requirement, PW 3 in his evidence has stated that he is having difficulties for his office accommodation as he is an agent of LIC and GIC. Therefore, the Court below did find out on the date it was delivering its judgment that reasonable requirement was needed in view of Section 116 of the Evidence Act. It is also not the case of the parties that the plaintiff needs to prove his ownership. In fact, he did describe himself as the owner and landlord which was never denied in the written statement or otherwise by the appellant defendant. It is only for this reason that the Court below was not required to discuss or come to a finding in respect of the aforesaid. It is only by way of CAN 6594 of 2018 that the appellant has tried to boost his case and on a perusal of the said application, we find that certain subsequent events, according to him, occurred which are "very much material" and it is for this that paragraphs 19 and 20 of CAN 6594 of 2018 are set out hereinbelow:
" 19) As per the plaint case, the premises no.188, Maharshi Debendra Road. P.S. Jorabagan, Kolkata
- 700006 is a three (Ground plus Two) storied building. At the time of filing of the suit before the Learned Court below except for the first floor which was in the occupation of the then plaintiff the rest of the premises i.e. the ground and the second floor was fully tenanted.
Two rooms i.e. one shop room measuring about 160 square feet and an adjoining godown measuring about 360 square feet i.e. in total 520 square feet were let out to one Radha Raman Saha in the ground floor of the premises and against him an eviction suit was pending being Ejectment Suit no.342 of 1981. By a judgment and decree dated January 18, 1991, passed by the Learned Judge, Ninth Bench, City Civil Court at Calcutta the said suit was decreed against the said Radha Raman Saha. He preferred an appeal against the said judgment and decree before this Hon'ble Court being F.A. No.3 of 1992. The appeal preferred by the said Radha Raman Saha before this Hon'ble Court has been dismissed on June 18, 2009 for non-filing of paper book and the respondent has levied the decree into execution. Sometime in or around September 23, 2016 the said tenant Radha Raman Saha was evicted from the suit premises with the help of police and the opposite parties got vacant and khas possession of those two rooms on the ground floor of the premises. Even since taking possession of the said two rooms the opposite parties have kept the same under lock and key and are not utilising the same for any purpose.
Copies of the relevant documents in this connection are annexed hereto and marked as Annexure-"A".
Your petitioners crave leave to refer and rely upon the other relevant documents at the time of hearing of the instant application, if necessary.
20) Apart from the said two rooms on the ground floor which were occupied by Radha Raman Saha, your petitioners are in occupation of one road side shop room measuring about forty square feet on the ground floor of the said premises which your petitioners are using for running a small tea shop during the day and by night for residential purpose. "
On a perusal of the aforesaid, it appears that the ground and the second floor of the said premises was fully tenanted. According to the appellant, one shop room which measures 160 sq. ft. with an adjoining godown about 360 sq. ft., though in the ground floor, has not been categorically stated that the said room is on the roadside. In paragraph 20, in fact, he got an opportunity to once again mention the room which was occupied by Radha Raman Saha, but he did not mention the room which was occupied by Radha Raman Saha was a roadside shop room. On the contrary, he has stated in paragraph 20 that one road side shop room measuring about 40 sq. ft. on the ground floor of the said premise was in the occupation of the appellant where the appellant carried his small tea shop business, namely, tea stall. Therefore, through CAN 6594 of 2018 it is not known whether the room in occupation of Radha Raman Saha, which was taken possession by the plaintiff, was on the roadside.
During hearing, a photograph was placed before us and two shop rooms were identified. One with a shutter and the other with 40 sq. ft. shop room. We find that both are facing the road and although the appellant is desirous to canvass that the said shop room occupied by Radha Raman Saha has been possessed by the plaintiff, but it is not for him to elect or dictate the plaintiff. It is for the plaintiff to elect the rooms because these were the rooms which he had given to the occupants on tenancy and in view of the decision reported in (2001) 8 Supreme Court Cases 110, this appeal cannot be allowed and in fact, fails and is, accordingly, dismissed. The decree dated 29th June, 1995 is upheld.
In view of the appeal dismissed, CAN 6594 of 2018 is also dismissed.
The original plaintiff died on 20th March, 2007 and his legal heirs and representatives were brought on record. The original plaintiff had willed his properties to his widow and son to the exclusion of his married daughter. This married daughter, Ruby Ghosh, has been substituted and she has not contested the appeal. In fact, the probate has been granted in favour of the widow and son of the deceased original plaintiff in 2015 and till the passing of this order, this married daughter, Ruby Ghosh, respondent no.1(c) has never appeared before us nor has challenged the probate granted in favour of her mother and brother and this fact be kept on record.
Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
I agree.
( Madhumati Mitra, J. ) ( Patherya, J. )