Calcutta High Court (Appellete Side)
Pranab Kumar Mustafi vs Sri Jugal Kishore Kumar Swarnakar on 21 September, 2010
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S.A. No.646 of 1999
Pranab Kumar Mustafi
Versus
Sri Jugal Kishore Kumar Swarnakar
For the appellant: Mr. Jaharlal Dey
Mr. Saidur Rahaman
For the respondents: Mr. Ashoke Kumar Banerjee
Mr. Susovan Sengupta Mr. S. N. Panda Heard on: 09.09.2010 and 13.09.2010 Judgment on: September 21, 2010 Tarun Kumar Gupta, J.:-
This Second Appeal is directed against judgment and decree dated 31st January, 1997 passed by learned Additional District Judge, Murshidabad in title Appeal No.60 of 1994 affirming the judgment and decree of eviction dated 19th January, 1994 passed by learned Munsif, 2nd Court at Berhampore in other Suit No.30 of 1983.2
Admittedly respondent/ plaintiff filed said other suit being No.30 of 1983 against the appellant / defendant alleging that the plaintiff along with his brother Sukumar Swarnakar inherited the suit building from their father on the strength of a deed of gift. There was amicable partition between the two brothers through a deed of partition. The plaintiff got his portion wherein the suit property is situated. In terms of deed of partition the only passage to the suit building was allotted to the portion of his brother Sukumar Swarnakar but plaintiff was permitted to use said passage for ingress and egress to his allotted portion for a period of five years within which he has to create his separate passage for entry to his house. The defendant was a monthly tenant at a rental of Rs.20/- payable according to English calendar month under the plaintiff. He defaulted in payment of rent since June, 1982. The suit shop room is reasonably required by the plaintiff for the purpose of starting a business as well as for making an entrance to get access to his portion of the house. Accordingly, he terminated the tenancy of the defendant / tenant in the suit premises by sending a notice to quit which was duly received by the defendant. As defendant did not vacate the suit premises in spite of receipt of notice to quit, said suit for ejectment on the ground of default as well as reasonable requirement was filed.
Appellant / defendant / tenant contested the suit by filing written statement denying material allegations of the plaint and contending inter alia that notice was not served upon him and that the plaintiff did not require the suit premises either for 3 starting a business or for constructing a passage to his house. The plaintiff can get access to his house by using a 'gally' path situated at northern extremity of the suit holding. The plaintiff also blocked the stair case by raising a wall which is situated at the south of the suit premises and that other side of the wall was let out to a person for running a business 'Samayiki' and that by breaking open the wall behind said shop 'Samayiki' a passage can be curbed out. The plaintiff is already running a business and he does not require the suit premises for that purpose. The requirement of the plaintiff was not bona fide and the suit was liable to be dismissed.
On the basis of the pleadings of the parties several issues were framed by learned Trial Court. Learned Trial Court on consideration of evidence on record, both oral and documentary, came to a finding that the notice to quit was legal, valid and duly served upon the defendant / tenant and that the plaintiff was owner of the suit premises and defendant was a tenant under him and that defendant / tenant was entitled to get protection from eviction on the ground of default under Section 17 (4) of West Bengal Premises Act. Learned Trial Court also came to the finding that though plaintiff failed to make out a case of reasonable requirement of the suit premises for the purpose of starting a business but plaintiff was able to make out a case that he had no other reasonably suitable accommodation for construction of an entrance to his house and that he reasonably requires the suit premises for that 4 purpose. Learned Trial Court accordingly passed a decree of eviction in favour of plaintiff / landlord.
Learned First Appellate Court affirmed the aforesaid judgment and decree of eviction of learned Trial Court by the impugned judgment dated 31st January, 97.
Being aggrieved with said judgment of Lower Appellate Court this second appeal has been filed by the defendant / tenant.
At the time of admission of the appeal it was observed that this appeal will be heard on the following substantial questions of law.
(1) Whether the Court below substantially erred in law by not dismissing the suit by holding that there was no element of need behind the claim for an access in view of the pendency of the two suits filed by the plaintiff and his brother respecting the deed of partition.
(2) Whether the Court below substantially erred in law for passing a decree of eviction in spite of specific case of the defendant regarding alternative path way blocked by the plaintiff at the entrance and in view of Commissioner's report supporting the same.
During argument before this Court neither side disputed the concurrent findings of learned Courts below regarding ownership of the suit holding including suit premises by the plaintiff through a deed of partition made in between plaintiff 5 and his brother, relationship of landlord and tenant in between plaintiff and defendant, the notice to quit being legal valid and duly served upon the defendant / tenant, defendant / tenant was entitled to get protection against eviction on the ground of default under Section 17(4) of West Bengal Premises Tenancy Act, plaintiff was not entitled to get possession of the suit premises on the ground of starting of a business.
Sri Jaharlal Dey learned advocate for the appellant / defendant / tenant has submitted that the deed of partition was executed in 1982 and that palpably it was an inequitable partition as plaintiff had no passage for entering to his allotted portion and that said inequitable partition was effected with a motive of filing eviction suit against the defendant / tenant and the suit was filed in 1983 i.e., the very next year of execution of partition deed.
According to him, the plaintiff's claim for having the suit premises for construction of an entrance to his portion was artificial and not at all bona fide as there were other path way namely a 'gally' path which has since been blocked by the plaintiff.
He has further submitted that the plaintiff already filed a suit being Title Suit No.255 of 1987 against his brother praying for declaring his right for using the path way lying in the portion of his brother together with injunction and other consequential reliefs and that learned Lower Appellate Court failed to appreciate that 6 if the plaintiff succeeds in said Title Suit filed against his brother his requirement of suit premises for creation of a path way would be non-existent and that no decree of ejectment on the ground of construction of path way through suit premises should have been passed during pendency of said Title Suit filed by the plaintiff against his brother.
In this connection he has referred case laws reported in (2001) 4 SCC page 262 (Kulwant Kaur and others v. Gurdial Singh Mann and others) and AIR 1992 SC page 1604 (Jagdish Singh v. Natthu Singh) to impress upon this Court that even in second appeal High Court has power to interfere in the concurrent finding of facts of Lower Courts, if said findings by Lower Courts vitiated by non-consideration of relevant evidence or by essentially wrong approach or based on wrong test.
In this connection, he has also referred a case law reported in 92 CWN page 758 (Sajendra Nath Tagore v. Barindra Kumar Dutta Gupta) wherein it was held that nature of landlord's requirement of the suit premises or purpose of his requirement may very often give rise to a question of law which would require the Court to consider as to whether the avowed purpose can in law be regarded to be reasonable one.
Sri Ashoke Kumar Banerjee learned advocate for the respondent on the other hand has submitted that no question of law, not to speak of substantial question of law, was involved in this second appeal and that on that score this appeal should be 7 dismissed in limine. In this connection he has further submitted that there is nothing on the record to show that learned Lower Court of Appeal came to a perverse finding on appreciation of evidence on record. If there is no perverse finding of facts, then there is no scope of interference by this Court of Second Appeal to the concurrent findings of facts of learned Lower Courts.
The propositions of law as laid down in the referred case laws are not disputed. It is also not disputed that unless there is perversity in the finding of facts of learned Lower Court there is no scope of interference by this Court under Section 100 C. P. C. Admittedly, the deed of partition was effected in 1982 wherein the plaintiff was permitted to use the only path way lying in the portion of his brother for five years and his brother was permitted to use the bath and privy lying in the portion of the plaintiff for five years. As per said deed of partition plaintiff and his brother are required to construct pathway and bath, privy in their respective allotted portion within five years.
The plaintiff filed the suit of ejectment against present appellant / tenant on the ground of reasonable requirement of suit premises for creation of a path way for entry into the portion of plaintiff as there was no other reasonably suitable accommodation / space for construction of said path way. Said suit for ejectment was filed in 1983. Plaintiff filed one title Suit No.255 of 1987 against his brother in 8 1987 praying for declaring his right of use of the path way lying in the portion of his brother with other consequential reliefs. It appears from the certified copy of plaint of said case (Ext.5) that plaintiff has categorically stated in said plaint that he already filed an ejectment suit against the present defendant / tenant on the ground of reasonable requirement of said portion for construction of a path way for his exclusive use and that the suit for ejectment was still pending and hence he was compelled to file said Title Suit as his brother was trying to disturb his use of said path way which was lying in the allotted portion of his brother as per deed of partition.
It also came out that the relation between plaintiff and his brother was not good since 1987 as plaintiff's brother Sukumar Swarnakar also filed a suit being Title Suit No.235 of 1987 against plaintiff praying for declaring his exclusive title over the passage with a further prayer for restraining plaintiff from using the same as time limit of five years for use of suit passage by the present plaintiff as per deed of partition was over. The copy of said plaint was marked Ext.5 (a) in the suit. From the plain readings of those copies of plaints filed by plaintiff and his brother against one another prima facie shows that as within four years of filing of ejectment suit there was no finality in the ejectment suit, the present plaintiff was compelled to file said Title Suit against his brother so that after over of five years, the stipulated period as per deed of partition, his brother cannot resist him from using the only passage of 9 the building admittedly lying in the allotted portion of his brother. Said filing of Title Suit by the present plaintiff against his brother rather established element of need behind the claim for an access through the suit premises. In said Title suit plaintiff has specifically averred that the ejectment suit already filed by him against tenant for creation of an exclusive passage for ingress and egress to his house was still pending. He had to file said suit for declaration of injunction in view of subsequent conduct of his brother. As such there was no question of dismissing the suit for ejectment on the ground of filing said Title Suit by the plaintiff against his brother praying for declaration of his right for use of the only path way lying in the portion of his brother and injunction to that effect.
It appears from judgment of learned Lower Appellate Court that he considered the report of Advocate Commissioner (Ext.C) wherefrom it came out that there was only one passage to the southern extremity of holding No.51 which was lying in the portion of plaintiff's brother, and that there is another 'gally' path having a breadth of two feet two inches after the drain situated to the northern extremity of holding No.51 but said passage is blocked. After detailed examination of the suitability of said 'gally' path having a breadth of 2 feet 2 inches after the drain, as the entry pathway of plaintiff's portion he came to a finding that said 'gally' path can by no stretch of imagination be termed as suitable for using as passage for ingress and egress to plaintiff's portion. He has given exhaustive reasons for the same. Learned 10 Lower Appellate Court also considered the evidence on record as well as another Commissioner's report (Ext.6) and came to the finding of fact that there was a stair case just behind the shop under name and style 'Samayiki' and the space for entrance under the stair case was about two feet four inches excluding the space covered by 'Chowkath' and that the height varied from five feet ten inches to six feet ten inches and said space was blocked and on the other side of the wall of the stair case shop 'Samayiki' was situated. He also observed that there was no evidence that said staircase was ever used by the plaintiff or was ever opened for use or that at what point of time said staircase was blocked by raising wall. On scrutiny of entire evidence on record and after detailed discussion he came to the unhesitating finding of fact that save and except suit premises there was no other reasonably suitable space for creation of exclusive passage of entry to the allotted portion of the plaintiff. By no stretch of imagination the aforesaid observations made by learned Lower Appellate Court can be said to be perverse in perspective of the evidence on record.
It further appears that during appeal hearing a proposal was given to the appellant / defendant for partial eviction from the suit shop room as plaintiff required only four feet wide passage through suit shop room for construction of his path way, but respondent / defendant did not agree to said proposal.
I find no cogent ground for interfering with the aforesaid findings of fact of learned Lower Appellate Court in perspective of the entire evidence on record, as the 11 same cannot be branded as perverse by any stretch of imagination. As such the appeal fails.
The impugned judgment and decree dated 31st January, 1997 passed by learned Additional District Judge, Murshidabad in Title Appeal No.60 of 1994 affirming the judgment and decree of eviction dated 19th January, 1994 passed by learned Munsif, 2nd Court at Berhampore in other Suit No.30 of 1983 stand affirmed.
Office is directed to send down the L.C.R. along with a copy of the judgment expeditiously.
Urgent xerox certified copy of the judgment be supplied to the learned Counsels of the party / parties, if applied for.
(Tarun Kumar Gupta, J.)