Calcutta High Court
Dunlop India Limited vs T.K. Mukhopadhyay on 31 July, 1997
Equivalent citations: AIR1998CAL59, AIR 1998 CALCUTTA 59, (1997) 2 CAL HN 350
Author: S.B. Sinha
Bench: Satya Brata Sinha, Bhaskar Bhattacharya
JUDGMENT S.B. Sinha, J.
1. A question as regards interpretation of Section 87(2) of the West Bengal Co-operative Societies Act, 1983 is in question in this appeal which has arisen out of a judgment and decree passed by the learned Judge, 7th Bench, City Civil Court at Calcutta in Ejectment Suit No. 1063/82.
2. The defendant is the appellant. The plaintiff-respondent has filed the aforementioned suit for eviction of the defendant, who admittedly was his tenant, on the ground of his bona fide requirement. The plaintiff in paragraph 1 of the plaint stated that he had purchased a flat at Apsara Apartment from Apsara Housing Cooperative Societies Limited and became absolute owner thereof. The defendant in its written statement in paragraph 6 thereof, merely did not admit the said allegation but curiously enough the said statement was verified by the deponent of the said affidavit as true to his knowledge. Ex facie therefore, the statement made by the plaintiff to the effect that he is the owner of the premises was not specifically denied. It is also pertinent to mention that the defendant filed an application for amendment of the written statement wherein he although denied and disputed the bona fide requirement of the plaintiff, but did not make any averment whatsoever as regards the ownership of the plaintiff so as to disentitle him from obtaining adecree for eviction in terms of Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to and called for the sake of brevity as "the said Act"). Keeping in view the pleading of the parties, the learned Trial Judge framed seven issues out of which this Court is concerned with only two issues, namely, (1) is the plaintiff owner of the suit-premises and (2) does the plaintiff reasonably require the suit-premises for his own use and occupation along with the member of his family?
3. Mr. Ghosal, the learned counsel appearing on behalf of the defendant-appellant, has taken us through the entire deposition of the witnesses as also the documents and submitted that from a perusal thereof it would appear that the plaintiff has failed to show that he is the owner in respect of the tenanted premises within the meaning of Section 87(2) of the West Bengal Co-operative Societies Act. The learned counsel submits that the ownership of the premises in suit is a sine qua non for obtaining a decree in terms of Section 13 (1)(ff) of the said Act. Our attention was further drawn to the fact that although the plaintiff had been residing in a rented flat as he was doing so for a long time since 1978, the plaintiffs claim for bona fide requirement was not maintainable.
4. Mr. Roy Chowdhury appearing with Mr. Subhro Kamal Mukherjee, learned counsel appearing on behalf of the respondent, on the other hand submitted that in terms of Section 13(1)(ff) of the said Act, it is not required for the plaintiff to prove absolute ownership. According to the learned counsel what is required to prove is better title than the tenant. It was submitted that in the facts and circumstances of this case, the learned Trial Judge has rightly held that the plaintiff required the suit-premises bona fide. As both the points for decision which arise for us are inter-related, the same would be dealt with together.
5. The plaintiff examined himself as P.W. 1. In his deposition he slated that the flat was allotted to him by the Co-operative Society of which he is a member. He purchased the said flat for sum of Rs. 94,000/-. A certificate of allotment as also share certificate had been proved by him. He further proved Income-tax assessment order. He also proved that the Calcutta Municipal Corporation has mutated his name on the basis of such allotment and he had been paying taxes therefor. He further stated that he had been residing in a rented house and his relationship with the landlord is cordial but as despite assurance he had not been able to vacate the house, the said relationship became strained and the plaintiff had to file a case against the landlord in the Rent Controller's Office as the latter has stopped supply of water and had not carried repairing work of the roof and electrical wiring. He further stated that the premises in which he was in occupation is in a dilapidated condition. He further stated that his family consisted of himself, his wife, his daughter aged 11 years, his dependant old parents, and one unmarried sister who is a mental patient, besides a servant and a maid servant. He further stated that excepting the suit premises he does not have any other house of his own in the City of Calcutta. He has also placed on record that one Mr. Faria had been in occupation of the said flat as an employee of the defendant company and he had agreed to give up vacant possession of the flat in question as he had left service of the defendant company. Mr. Ghosal, has drawn our attention to the fact that in his cross-examination, he admitted that he had filed documents to show that he had paid the entire price of Rs. 94,000/- but from the documents it does not appear that he has paid the said amount. In cross-examination, he further stated that he was absolute owner or allottee of the said flat. It further appears that the plaintiff in his evidence stated that there is rule of the Society that without permission of the Society, he cannot transfer his flat to any other person nor any mortgage, charge or put any lien thereupon. He denied the suggestion that he was the owner of the said flat and he did have only possessory right in respect thereof. In cross-examination, he further stated that in 1978 when this flat was let out to the defendant, he was at Nagpur in connection with his work as Geologist in the Department of Atomic Energy. It is further borne out from the record that he was posted in Calcutta since 1983. Mr. Ghosal further has drawn our attention to the fact that at one stage he had stated that in the year 1976 he used to reside in tenanted premises at Kedar Bose Lane, but the fact that he was posted at Nagpur in 1978 when the flat was let out to the defendant or he was posted back to Calcutta in 1983 is not controverted. The plaintiffs father was examined as P.W. 2. His deposition is not very material nor any of the learned counsel has assailed any of the statements made in his deposition. Similarly, it is not necessary to consider the deposition of the witness of Sri Sudip Kumar Dutta or the evidence of the Advocate Commissioner.
6. The defendant examined two witnesses. D.W. 1 is one Debi Prasad Banerjee who was a stenographer of the defendant company. In his deposition he did not state in details as to how the plaintiff was not the owner of the premsies excepting denying the suggestion to that effect. He does not have any personal knowledge as to where the plaintiff had been residing at present or did he have any personal knowledge as to has been residing and since when and he had also no personal knowledge as to how many members are there in his family. In that view of the matter, it is not possible to accept the statement made by the said witness. D.W. 2, Gour Chandra Bose started working with the defendant company as Manager (Properties). Curiously enough in his deposition he has stated that he knew the palintiff as one of the landlord. He further stated that Mr. Faria who is in occupation of the suit-premises had no authority to address the letter which was marked as Ext. 6. The plaintiff admittedly proved his share certificates, allotment certificate issued for the Income-tax purpose, Assessment order besides the documents to show that the defendant had been inducted as a tenant. The plaintiff further proved a letter dated 12th April, 1982 (Ext. 6), from a perusal whereof it appears that (sic) leaving Calcutta and vacating the said flat with effect from 31st May, 1982 and as such he was requested to contact the defendant company to obtain possession of the flat. The plaintiff has further proved a letter of the defendant company dated 9th July, 1982 in response to the plaintiffs letter dated 1-7-1982 (Ext. 7) wherein it was stated, inter alia, "We regret that due to the acute scarcity at present in the availability of suitable accommodation, we do not find it possible to accede to your request to vacate the above flat. We are, however, keeping your request in mind and will give due consideration to it as soon as the position regarding accommodation becomes a bit easier. We do hope you will appreciate the situation arid realise that our inability is due to a genuine difficulty and trust that our existing mutual relation will continue." Regarding the claim of the plaintiff that the rent for the month of May, 1982 has not been received by the plaintiff, the matter was referred to the Accounts department of the defendant company with a request to look into it and arrange for the payment.
Section 13(1)(ff) of the said Act reads thus:--
13(1)(ff) :-- subject to the provisions of Subsection (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possesion of any reasonably suitable accommodation;"
A bare perusal of the aforementioned provisions would clearly go to show that in terms thereof a landlord becomes entitled for decree for eviction against the tenant, inter alia, on the ground "Subject to the provisions of Sub-section (3A) where the premises are reasonably required by the land-lord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and landlord or such person is not in possession of any reasonably suitable accommodation".
Section 13(1)(ff) of the said Act, therefore, provides that a landlord is not only entitled to sue for eviction of the tenant on the ground if he reasonably required the tenanted premises for his own occupation in the event he is owner, but also for the occupation of any person for whose benefit the premises is held, as for example his family member for beneficiary of trust of which he is trustee. The words "if he is the owner" occurring immediately after, "where the premises are reasonably required by the landlord for his own occupation" must be construed in such a manner so as to give effect to the entire provision and not in a pedantic manner and with a view that the same contains a mandatory provision requiring plaintiff to prove his 16 annas ownership in respect of the premises in question. Such a construction, in our considered view, defeat the purpose and object of the Act. It is not disputed that the plaintiff was allotted the flat in question by the Co-operative Society. Had the plaintiff been not allotted the suit property, the question of inducting the defendant as tenant therein is far back as in the year 1978 did not arise. Admittedly, the plaintiff is a share-holder. He has proved the share certificate which has been marked as Ex. 1. He has also proved that he had been allotted such flat and Ext. 2 is allotment order which he has proved. Although Mr. Ghosal commented that the said certificate has been issued for the income-tax purpose, in our opinion, the said certificate has to be read as a whole and as therein it is unequivocally stated that the order of allotment has been passed in favour of the plaintiff, no exception thereto can be taken only because the said certificate was issued for income-tax purpose. Sections 87(1) and 87(2) of the West Bengal Cooperative Societies Act, 1983 read thus :--
"87(1)--Notwithstanding any thing contained in the Transfer of Property Act, 1882 (4 of 1882) or the Registration Act, 1908 (16 of 1908), any allotment (including re-allotment) of a plot of land or a house or an apartment in a building made by a co-operative housing society to its member in accordance with its by-laws shall entitle such member to hold such plot of land or house or apartment with such title or interest as may be granted under the prescribed conditions, and the certificate of allotment shall be the conclusive evidence of such title or interest in favour of such member.
(2) A member of a co-operative housing society shall not be entitled to any title or interest in any plot of land or house or apartment in a building until he has made such payment as may be prescribed towards the cost of such plot of land or construction of such house or apartment or both, as the case may be, to the co-operative housing society."
Sub-section (1) of Section 87 of the West Bengal Co-operative Societies Act contains non-obstante clause. In terms of the aforementioned provision, therefore, neither Transfer of Property Act nor the Registration Act are applicable. Thus despite the provisions of the said Act, any allotment, inter alia, in respect of an apartment can be made to its member in accordance with its by-laws and such allotment would entitle such member to hold such plot of land or house or apartment with such title or interest as may be granted therein and the certificate of allotment shall be conclusive evidence on such title or interest in favour of such member. The fact that the flat in question has been allotted in favour of the plaintiff thus cannot be disputed and thereby the plaintiff has obtained title to the extent recognised by the by-laws thus also remains undisputed. Sub-section (2) of Section 87 of the West Bengal Co-operative Societies Act, 1983, must be read conjointly with Sub-section (1) thereof and in fact it merely is explanatory to the said provision. Sub-section (2) does not put any restriction to the language of Sub-section (1). It merely states that any title or interest shall not be vested in the person until he has made such payments as may be prescribed towards the interest of such plot of land or construction of such house or apartment or both as the case may be to the Co-operative Housing Society. The fact that the plaintiff has paid the entire costs or a part thereof to the housing co-operative society is not in dispute. Whether the plaintiff has acquired interest in terms of Sub-section (2) of Section 87 of the Act or not could have been questioned only by the co-operative society. But the very fact that an order of allotment has been issued in favour of the plaintiff and he had been put in possession as far back as in the year 1978 is by itself sufficient for the purpose of proving that he has acquired title or interest in relation thereto. It is true that whereas in his deposition the said value of the flat has been stated as Rs. 94,000/-; whereas the order of assessment under the Income Tax Act shows that the same was Rs. 69,560/-. Even assuming that the plaintiff did not disclose full fact to the Income Tax Authorities, the same would not disentitle him to have title or interest in respect of the premises in question directed if he had acquired the same pursuant to the order of allotment and in terms of the provisions of the West Bengal Cooperative Societies Act. Moreover, a question of this nature has to be considered in the light of Sections 110 and 116 of the Indian Evidence Act. Section 110 of the Indian Evidence Act postulates that the possession follows title and the fact that the plaintiff has obtained an exclusive right to possess the said flat in question by itself goes to show that a title or interest has been created in him in relation thereto. The word, 'title' has got to be given its natural meaning. It does not mean a proprietary right but it (sie) such other right to which an owner of a premises or a land is otherwise entitled to in law including the right to possess the same. Furthermore, in view of the fact that the plaintiff had inducted the defendant, the defendants in terms of Section 116 of the Indian Evidence Act is estopped and precluded from questioning his title.
This aspect of the matter has been considered in various decisions of this Court as also the Hon'ble Supreme Court of India. In Dayal Prasad Sanyai v. Nripendra Ch. Chakrabhrty, reported in 1986 (1) CHN 68, this Court held that although a formal deed of transfer was yet to be executed in favour of the plaintiff by the Co-operative Society, as the plaintiff had in him all the trappings of ownership in respect of the premises in suit and in fact, he has been exercising all the rights of ownership in respect thereof, thus he has acquired ownership for all practical purposes, including his right to evict the tenant under Section 13(1)(ff) of the said Act. In Arora and Sons v. Debi Prasad Khanna, , a Division Bench of this Court, inter alia, came to the conclusion relying on several decisions that when the plaintiff has paid all the dues of the co-operative society and only a formal deed of transfer is required to be executed and the Chairman of the Society has also recognised the plaintiff as the owner, the plaintiff cannot but be held to be owner. It is now a trite law that for the aforementioned purpose a landlord need not be an absolute owner and even if cooperative is the owner, the plaintiff being a shareholder can be said to be owner of the said flat along with other members of the society. This aspect of the matter has been eonsidered by the Hon'ble Supreme Court of India in Sri Ram Pasricha v. Jagannath, leported in . The point at issue is no longer Res Integra in view of the Hon'ble Supreme Court's decision in Swadesh Ranjan Sinha v. Haradcb Banerjee, , wherein the Hon'ble Supreme Court interpreting the provisions held that the ownership denotes the relation between a person and an object forming the subject-matter of his ownership. It consists of a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. There arc various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned; and aright to consume, destroy or alienate it. Such a right may be indeterminate in duration and residuary in character. A person has a right to possess the thing which he owns, even when he is not in possession, hut only retains a reversionary interest, i.e, a light to repossess the thing on the termination of a certain period or on the happening of a certain event.
7. Keeping in view the aforementioned authoritative pronouncement, we have no hesitation at all in rejecting the contention of Mr. Ghosal.
8. So far as the question of bona fide requirement of the plaintiff is concerned, the facts are tell tale. As against the evidence of the plaintiff, the defendant has hardly adduced any evidence. The bare fact remains that the plaintiff had taken a rented flat in 1974, He obtained the flat in question in the year 1978 and put the defendant in possession thereof as a tenant. As noticed hereinbefore, at the relevant point of time, he was not in Calcutta and as such he could afford to let out the said flat, It is further evident from the record that he came back to Calcutta in the year 1983 and he had been requesting the defendant company as also its employee who had been in occupation of the said flat for giving him vacant possession, From Ext. 7 i.e. letter of the defendant company dated 9th July, 1982, contents whereof have been quoted hereinbefore, there cannot be any doubt whatsoever and even at that point of time the defendant agreed that his prayer for vacating the flat would be considered as soon as position regarding accommodation a bit easier, the plaintiff by reason of the said letter was requested to appreciate the situation and realise the inability of the defendant which was agenuine one. The defendant trusted that the existing mutual relationship will continue. As noticed hereinbefore even the employee concerned who was in occupation of the said flat advised the plaintiff by his letter dated 12th April, 1982 to get possession of his flat after he vacates the same on 31st May, 1982. It is not necessary for us to consider as to whether the aforementioned Sri Faria was authorised by the defendant company to write such a letter, but the aforementioned document clearly shows that the plaintiff had been desperately trying for obtaining vacant possession of the flat. Evidence of the plaintiff that he had been living with his family members which include an unmarried sister and aged parents in a tenanted premises had not been disputed. The plaintiff filed the suit in the year 1982 and as noticed hereinbefore, he had further stated that even his relationship with his landlord had become strained as he could not keep his word to the effect that he would vacate the residential accommodation.
9. In the facts and circumstances of this case, we are clearly of the view that the plaintiff had proved the ingredients of reasonable requirement. Furthermore, he has also proved that he is not in possession of reasonably suitable accommodation. It is not a case where the plaintiff's case is based on mere wishes but it is based on genuine need. Having considered the evidence on record, we arc of the opinion that the plaintiff has fully proved his claim of bona fide requirement. In Haridas Chowdhury v. Priti Choudhuri alias Pritimoyee Chaudhury, reported in (1988) 92 CWN 530 a Division Bench of this Court held--
"So the interpretation of law on the point of requirement of a plaintiff-landlord to recover possession of his house let out to a tenant, on the ground of his having mere sufficient alternative accommodation, regardless of the question of its suitability, will be a highly unreasonable proposition, as in that case landlord will never get eviction of his tenant in a house owned by him, although he satisfies that he reasonably requires the premises in occupation of the tenant.
It is appropriate, therefore, to mention in this connection, the case reported in 1977 (2) CLJ 19 at 26 and 27, Haraprasad v. Bomdev, wherein it has been held that the possession of the plaintiff-landlord as a tenant in the tenanted premises is somewhat vulnerable as he is potentially in the danger of being evicted from the rented premises. In fact this decision has followed the view expressed earlier in the case reported in (1974) 1 Cal HC Notes 123. Similar such view has also been followed in the case reported in 87 CWN 92, Bharati Industries v. Nirmal Kumar Bhatta-charjee. It has also been further held in the said case that financial benefit is also an important clement in considering the genuineness of the landlord's requirement of his tenanted premises for his own use and occupation. So the sum total of the views expressed in these three decisions referred to above is that "'due and proper weight" should be given to absolute ownership which has definitely an "edge" over the accommodation available as a tenant."
10. Having considered the evidences on record in that case the learned Judges came to the conclusion that there was nothing on record to substantiate the contention of the defendant that the plaintiff is having a more commodious and luxurious accommodation than that of the defendant. Same is the position in the instant case. We are satisfied that the plaintiff is definitely placed in disadvantageous position than the defendant in the matter of requirement of accommodation in both aspects qualitative as well as quantitative.
11. For the reason aforementioned, we are of the opinion that the learned trial Judge was correct in decreeing the plaintiff-respondent's suit.
12. For the reason aforementioned, the judgment and decree passed by the learned trial Judge is affirmed and the appeal is dismissed with costs, counsel fee assessed at 200 Gms. The lower Court's record may be sent down forthwith.
B. Bhattacharya, J.
13. I agree.