Calcutta High Court (Appellete Side)
Sri Jatindra Chowrasia & Anr vs Smt. Anamika Roy on 10 February, 2011
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
S.A. No. 342 OF 2007
Sri Jatindra Chowrasia & Anr. ....... Appellants
- versus -
Smt. Anamika Roy .......... Respondent
Smt. Maya Chowrasia & Ors. Proforma Respondents
Mr. Shyamal Chakroborty,
Mr. Swarup Kumar Ghosh,
Mr. Kaushik Prodhan
.... For the Appellants
Mr. S.P. Roy Chowdhury, Sr. Advocate,
Mr. Sibasish Ghosh
.... For the Respondent
Heard on: 30.8.2010, 16.9.2010, 17.9.2010, 19.11.2010, 25.11.2010 and
26.11.2010.
Judgement on: 10.02.2011
TAPAN KUMAR DUTT, J.
This Court has heard the learned Advocates for the respective parties. The facts of the case, briefly, are follows: -
The plaintiff/respondent No.1 filed a suit for eviction and recovery of khas possession of the suit premises against the original defendant, Lalji Chowrasia. The plaintiff/respondent No.1 also prayed for mesne profits and compensation 2 for damages. The said suit was registered as title suit No. 66 of 1993 and was placed before the learned 4th Civil Judge (Senior Division) at Alipore, District 24 Parganas (South). The suit property happens to be a "portion of the ground floor flat consisting of three bed rooms with attached three bathrooms with modern fittings, sanitary privy, one store room, one kitchen, one dining room, one covered varandah in the front portion with grill in the premises No. 128/15, Hazra Road, P.S. Bhowanipore Kolkata 700026". The plaintiff claimed to be the owner of the suit property in terms of a decree passed in title suit No. 55 of 1986 by the learned 4th Court of Assistant District Judge, Alipore on 17.3.88. The plaintiff alleged that the defendant was a monthly tenant in respect of the suit property but the plaintiff/respondent No. 1 is not having any suitable accommodation and as such she requires the suit property for her own use and occupation. She has alleged that she is occupying one room on the second floor of the suit holding which is three storied building and the plaintiff's brother with his family are also residing on the second floor and a certain bank is a tenant in respect of the entire first floor. The plaintiff alleged that the plaintiff has been permitted to stay in one room only on the said floor by her brother but the plaintiff is having a bitter relationship with her brother's wife and, thus, the plaintiff wants to reside in the suit property which she has obtained by virtue of the said decree passed in T.S. No. 55 of 1986. The plaintiff further alleged that if she can rearrange the suit premises and make provision for one room flat, the plaintiff will be able to augment a minimum income of rupees 2500/- per month by letting or leasing out such flat and the plaintiff does not have any other source 3 of income except a paultry amount of rupees five hundred which she gets as her share in the rent collected from the tenant-bank. The plaintiff also alleged that the original defendant was guilty of causing damage to the suit premises.
The defendant contested the said suit by filing a written statement denying the material allegations made in the plaint and contended that there was no relationship of landlord and tenant between the parties to the suit but also stated that although the plaintiff might have realised rent from the defendant and the defendant might have paid/deposited monthly rent in the name of the plaintiff yet there could not be any relationship of landlord and tenant in between the plaintiff and the defendant. The defendant did not dispute that the plaintiff and her brother with his family are residing on second floor of the suit holding but denied that the plaintiff requires the suit premises for own use and occupation. The defendant also disputed the plaintiff's claim of ownership of the suit premises on the basis of compromise decree passed in the said T.S. No. 55 of 1986. It appears from the judgements of the learned Courts below that the defendant No. 5 also filed a written statement. It may be recorded here that after the original defendant died the present appellants and the proforma respondents were substituted in place and stead of the original defendant.
The said suit came up for hearing when evidence was adduced on behalf of the respective parties.4
The learned Trial Court by its judgement and decree dated 30th July, 2002 decreed the said suit to the effect that the plaintiff does get a decree for eviction of the defendants from the suit premises and the defendants were directed to handover the vacant possession of the suit premises to the plaintiff within a stipulated period of time, failing which the plaintiff was given liberty to put the decree into execution.
The learned Trial Court found that the defendant has admitted in evidence that the plaintiff is the landlord of the defendant and that the suit premises is the portion of the ground floor and the remaining portion of the ground floor is under possession of the plaintiff's brother's son. The learned Trial Court found that admittedly the original defendant was inducted in the suit premises as a tenant by the father of the plaintiff and the defendants have been substituted on the death of the original defendant. The learned Trial Court noted that the plaintiff did not pray for any local inspection to prove any damage caused to the suit premises and there is no local inspection report in the suit. The plaintiff's brother's son and the survey passed Commissioner who had drawn and prepared the plan in connection with the said T.S. No. 55 of 1986 were the two witnesses in the suit on behalf of the plaintiff. The learned Trial Court did not find any cogent evidence with regard to the alleged damage to the suit property. The learned Trial Court found that the present accommodation of the plaintiff on the second floor is not suitable where she has got only one room as per the 'Will' concerned and she has got no separate kitchen and bath-cum-privy for herself. 5 The learned Trial Court considered the evidence of PW 1 who happened to be the plaintiff's brother's son who stated in evidence that due to defect of plaintiff's eyesight she very much needs a car while going outside but due to shortage of accommodation for her driver she had to sell her car. The said witness also stated about the requirement of the plaintiff. The learned Trial Court found that measurement of rooms are not on record and the plaintiff has not prayed for any local inspection and that PW1 has deposed with regard to the personal requirement of the plaintiff in the suit premises and that there is also a scope for augmenting the income of the plaintiff by inducting a tenant in respect of one room in the suit premises. The learned Trial court also found that the problem of eyesight of the plaintiff is not particularly the ground for eviction of the plaintiff but it is only one of the facts pleaded in the plaint case. The learned Trial Court found that the decree passed in the said T.S. No. 55 of 1986 is a compromise decree. The learned Trial Court also found that the said T.S. No. 55 of 1986 was a suit for declaration and it was not a partition suit. The learned Trial Court came to the conclusion that from the said compromise decree it is clear that the plaintiff has got title in respect of the suit premises and from Ext.4 the probate of the 'Will' executed by the father of the plaintiff it is clear that the plaintiff has got life-estate in one room on the second floor and 15 per cent share of rent from the said bank-tenant on the first floor.
The learned Trial Court found that the plaintiff is the owner of the suit premises, the compromise decree in the said T.S. No. 55 of 1986 is admissible in 6 evidence, the present accommodation of the plaintiff is not suitable and the suit premises is required for the reasonable requirement of the plaintiff for own use and occupation and for augmentation of the plaintiff's income from the suit premises and there cannot be any partial eviction as such.
The defendants/appellants filed title appeal No. 280 of 2002 challenging the judgement and decree passed by the said learned Trial Court and such title appeal was placed before the learned Additional District and Sessions Judge, Fast Track Court-II, Alipore. The learned Lower Appellate Court found that in order to reside peacefully the plaintiff requires one privy, one bathroom, one kitchen, one dinning space, in other words, a complete flat is required for the purpose of the residence of the plaintiff and, therefore, the plaintiff has bona fide the requirement of the suit premises for her own use and occupation. It appears from the impugned judgement and decree passed by the learned Lower Appellate Court that the defendants/appellants urged before the said learned Court that there is a vacant flat on the ground floor in the suit holding which was allotted to the brother of the plaintiff and the same can be provided to the plaintiff for residence. The learned Lower Appellate Court also found that there is bitter relationship between the plaintiff and her brother's wife and it is not expected that the plaintiff being a divorcee will reside in the house of her brother and at the mercy of her brother and her brother's wife. The learned Lower Appellate Court took note of the fact that the learned Trial Court has already decided that there was a relationship of landlord and tenant between the parties and the 7 learned Lower Appellate Court held that the learned Trial Court has rightly decreed the suit. The learned Lower Appellate Court dismissed the said title appeal.
The defendants/appellants have filed the present second appeal by challenging the impugned judgement and decree passed by the learned Lower Appellate Court being judgement and decree dated 28th February, 2005 passed by the learned Additional District and Sessions Judge, Fast Track Court-II, Alipore in title appeal No.280 of 2002. It appears from the record that the present appeal was admitted by an Hon'ble Division Bench of this Court on the following grounds:
(a) Whether the learned Courts below committed substantial error of law in not considering the question of partial eviction of the appellants from the suit property?
(b) Whether the learned Court of appeal below committed substantial error of law in refusing to consider the question of partial eviction on the ground that no such prayer was made by the defendants by totally over-looking the fact that in view of the provision contained in Section 13(4) of the West Bengal Premises Tenancy Act, a duty is cast upon the Court to consider whether the requirement of the plaintiff can be satisfied by evicting the tenants from a part of the property? 8
The learned Advocate for the defendants/appellants challenged the ownership of the plaintiff/respondent in respect of the suit premises. It appears that the learned Trial Court took into consideration the compromise decree passed in the said title suit No. 55 of 1986 and ultimately found that the plaintiff/respondent has got title in respect of the suit premises. The learned Lower Appellate Court has affirmed the judgement and decree passed by the learned Trial Court. The learned Trial Court has found that admittedly the original defendant was inducted in the suit premises as a tenant in the year 1977 by the father of the plaintiff. There is no doubt that the plaintiff is the daughter of the inducting-landlord. The plaintiff's claim of ownership of the suit premises is supported by the compromise decree and the plaintiff's right to bring eviction proceedings against the original defendant and /or the heirs of the original defendant is also supported by the compromise decree. In any event the plaintiff's right in the suit premises has been established from the materials on record. That apart, the plaintiff's brother has not come forward to oppose the plaintiff's suit for eviction against the defendant. The arguments made by the learned Advocate for the appellants that the said compromise decree was not passed in a partition suit and had it been a partition suit then the decree passed in such suit was required to be properly stamped, is not relevant in the facts and circumstances of the present case. The learned Trial Court found that the said T.S. No.55 of 1986 is a suit for declaration and in that suit the father of the plaintiff was a party; the plaintiff's brother and the plaintiff's mother were also parties in the said T.S. No.55 of 1986. The defendant has admitted in the written 9 statement that the plaintiff had realised rents from the defendant and the defendant had also paid and/or deposited monthly rent in the name of the plaintiff. The learned Lower Appellate Court has affirmed the finding of the learned Trial Court that the plaintiff is the owner/landlord of the suit premises. The plaintiff's brother's son has also deposed in favour of the plaintiff. The argument made by the learned Advocate for the appellants that the compromise decree is not admissible in evidence is also untenable as it would appear that the said compromise decree was passed in a suit for declaration. This Court is not inclined to upset the concurrent finding of fact with regard to the right of the plaintiff in respect of the suit premises as found by the learned Courts below.
The learned Advocate for the appellants cited a decision reported in AIR 1995 Supreme Court 1211(Shankar Balwant Lokhande (dead) by L.Rs., -V- Chandrakant Shankar Lokhande and another) in support of his contention that a decree for partition is not executable unless a final decree of partition is drawn up and then it is engrossed on a stamped paper of required value. He cited another decision reported at AIR 1957 Cal 375 ( Renupada Mukherjee -V- Santi Ranjan Banerjee) and 65 CWN 743 ( Rabindra Nath -V- Corporation of Calcutta) also in support of his aforesaid contention. He cited another decision reported at 71 CWN 71 (R.P Mondal -V- Snehalata Ghosh) in support of his contention that deed of partition, if not registered, it is not operative in law. Such reported cases cited by the said learned Advocate are not applicable in the facts and circumstances of the present case in view of the discussions made above. 10
The learned Advocate for the appellants cited a decision reported at AIR 1981 Bombay 1(Nanalal Goverdhandas & Co. and Others, -V- Smt. Samratbai Lilachand Shah,) in support of his contention that since the plaintiff did not come to depose the plaintiff could not have proved her case of reasonable requirement of the suit premises for own use and occupation and the suit should have been dismissed. The decision of this Court in 85 CWN 548 ( Banka Behari Dutt -V- Gour Mohan Dutta), which took into consideration the case reported at 1981 Bombay 1, was that the non-examination of the landlord in a suit for ejectment where one of the grounds was reasonable requirement of the suit premises for the landlord's own use and occupation is not fatal. Thus, the point raised by the learned Advocate for the appellant on the basis of the fact that the plaintiff did not come to depose herself is also not of any substance.
The learned Advocate for the appellant cited a decision reported at AIR 1971 Supreme Court 1049 (Radha Nath Seal (dead) by his legal representatives
-V- Haripada Jana) in support of his contention that if the learned First Appellate Court fails to consider material evidence the High Court can interfere in a second appeal. He submitted that the learned Courts below failed to consider the effect of PW1's evidence that there are 10 rooms and 4 bathrooms situated on the second floor of the suit holding and no portion of the second floor in the suit holding is in occupation of any tenant.
11
The said learned Advocate cited another decision reported at AIR 1995 Orissa 260 (Sitaram Lal -V- Jameswar Das) in support of his contention that if there is a failure on the part of the learned Courts below to appreciate the correct legal effect or consequence of a basic statement of fact then in that event this Court should interfere in second appeal.
He cited another decision reported at AIR 2000 Supreme Court 426 (Ishwar Dass Jain (dead) through LRs., -V- Sohan Lal (dead) by L.Rs.,) in support of his contention that the learned Courts below could not have relied upon an inadmissible evidence, that is, the aforesaid compromise decree. In view of the discussions made above this Court is of the view that the said reports cannot be of any assistance to the appellants since this Court has already found that the argument of the learned Advocate for the appellants that the compromise decree is not admissible in evidence is an untenable one.
The said learned Advocate cited another decision reported at 91 CWN 1074(Benoy Krishna Tewary & Anr -V- State of West Bengal & Ors) in support of his contention that this Court can interfere under Section 100 of the Code of Civil Procedure in the event the learned Courts below have misread the pleadings and the evidence. He submitted that the learned Courts below have failed to appreciate the fact that the plaintiff's case is that she would like to let out a part of the suit premises for augmenting her income. The said learned Advocate cited decisions reported at AIR 1988 Supreme Court 365 (Govind -V- Dr. Jeetsingh) 12 and AIR 1988 Supreme Court 1060 (Hameedia Hardware Stores -V- B.Mohan Lal Sowcar) in support of his contention that the landlord must prove that the requirement of the landlord is reasonable and bona fide in order to get an eviction decree on such ground. From the materials on record it appears to this Court that the plaintiff has proved that her requirement is reasonable and bona fide but the question remains as to whether such requirement may be substantially satisfied by ejecting the defendants/appellants from a part only of the suit premises.
Now, this Court will have to consider the substantial questions of law as formulated at the time of the admission of the appeal.
The learned Advocate for the appellants submitted that the question regarding partial eviction was not considered by the learned Courts below and he has submitted that in the instant case it is the plaintiff's own case that she would like to let out a part of the suit property for augmenting her income. Such fact has also been noticed by both the learned Courts below. The learned Lower Appellate Court has also recorded that the case of the defendant/appellant was that there is a vacant flat in the ground floor of the suit holding which was allowed to the brother of the plaintiff and the same can be provided to the plaintiff for residence. The said learned Advocate submitted that the learned Courts below committed a substantial error of law in not considering the case of partial eviction. He further submitted that the learned Trial Court has only dealt 13 with a certain cited decision without considering the question whether the alleged requirement of the plaintiff could be satisfied by way of partial eviction in the instant case. It appears that the learned Lower Appellate Court has not made any discussion with regard to the question of partial eviction. There is no dispute that in the instant case no local inspection was held in respect of the suit premises and/or suit building itself.
The learned Advocate for the appellants has referred to a decision reported at AIR 1978 Supreme Court 413 (Rahman Jeo Wangnoo, -V- Ram Chand and others) in support of his contention that it is mandatory for the Court to consider the question of partial eviction as contemplated under the West Bengal Premises Tenancy Act 1956. He has further submitted that the Hon'ble Supreme Court in the said reported case observed that if the Court finds, as a fact, that partial eviction will meet the ends of justice an appropriate order should be passed on that footing and the Court must proceed on the footing that the absence of a specific pleading does not stand in the way of the obligation of the Court to act in compliance with the mandate of the statute. Even though the said reports had dealt with the provisions of a different Act prevailing in Jammu and Kashmir, the said learned Advocate submitted that even under the relevant provisions of the West Bengal Premises Tenancy Act 1956 there is a mandate on the Court to decide the question of partial eviction. He has referred to another judgement reported at 1993 SUPP (1) Supreme Court Cases 439 (Krishna Murari Prasad - V- Mitar Singh). In the said reports the Hon'ble Supreme Court was pleased to 14 observe that the landlord's requirement having been found proved in the said case the Court had to consider the matter further according to the relevant provision of law which was under consideration in the said reports and the order for eviction from the entire premises could be made only if a decree for partial eviction in the manner provided could not substantially satisfy the landlord's requirement.
Section 13(4) of the West Bengal Premises Tenancy Act 1956 reads as follows:
" Where the landlord requires the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub-section (1), and the Court is of opinion that such requirement may be substantially satisfied by ejecting the tenant or a sub-tenant from a part only of the premises and allowing the tenant or the sub- tenant to continue in occupation of the rest, then, if the tenant or a sub-tenant agrees to such occupation, the Court shall pass a decree accordingly and fix the proportionate rent for the portion remaining in the occupation of the tenant or the sub-tenant. The rent so fixed shall be deemed to be the fair rent for purposes of this Act. If the tenant does not agree but a sub-tenant agrees to such occupation, no decree or order for ejectment shall be passed against such sub- tenant, and such sub-tenant shall become, with effect from the date of the decree or order, a tenant directly holding under the landlord."15
Section 6(3) of the West Bengal Premises Tenancy Act, 1997 may also been seen in this regard. The learned Advocate for the respondents submitted that since the appeal was admitted only on the question regarding the partial eviction, the appellants cannot be permitted to argue any other ground. This argument is not tenable in view of the proviso to Sub-Section 5 of Section 100 of the Civil Procedure Code which stipulates that nothing in the said sub-Section shall be deemed to abridge the power of the Court to hear for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
The said learned Advocate also opposed the argument of the learned Advocate for the appellants on the point that there is a dispute regarding the relationship of the landlord and tenant and in between the parties. The learned Trial Court has found that there was a relationship of landlord and tenant between the parties and the learned Lower Appellate Court held that the learned Trial Court has rightly decreed the suit. This Court is not inclined to upset such findings by the learned Courts below the point being purely a question of fact. The learned Advocate for the respondent cited a decision reported at 1991(4) SCC 572 (Swadesh Ranjan Sinha -V- Haradeb Banerjee) in support of his contention that the plaintiff was only required to prove that he has a better title than the defendant and he has no burden to show that he has the best of all possible titles.
16
The learned Advocate for the respondent submitted that the plaintiff is now residing as a licensee in her present accommodation and as such the possession of the plaintiff is precarious. He cited another decision reported at 1989(2) CLJ 351(Smt. Sumilita Bhattacharya & Anr. -V- Smt. Nila Chatterjee) in support of his contention that in view of such precarious possession of the plaintiff in her present accommodation, the plaintiff's case of reasonable requirement stands established. He cited another judgement reported at 2008(8) SCC 497 (Deep Chandra Juneja -V- Lajwanti Kathuria (Smt) (Dead) Through Lrs) in support of his contention that the landlord is the best judge of his requirement and the Courts have no concern to dictate as to how and in what manner the landlord should live.
The said learned Advocate has submitted that the question of local inspection in the present case does not arise as the present occupation of the plaintiff is precarious and that is enough to prove her reasonable requirement for own use and occupation. He has further submitted that there can be no partial eviction in the present case. He cited a decision reported at 1998 WBLR (Cal) 358 ( Smt. Mandira Sarkar(Nee Pal) & Ors. -V- Hiralal Bhattacharjee) and referred to Paragraph 14 of the said reports. It appears from the facts of the said reports that there were two rooms and a privy and a kitchen on the ground floor whereas there were two rooms on the first floor. The Hon'ble Court found that there being only one privy and one kitchen, the Hon'ble Court held that the suit premises could not be sub-divided into two portions so as to meet the 17 requirement of both the plaintiffs as well as the defendants. It further appears from the facts of the said reports that an Advocate Commissioner was appointed in the said case. The said Advocate-Commissioner had submitted a report and the learned Trial judge in the said reported case had relied upon the report and no contention was raised as regards the correctness of the same before the Hon'ble Court.
In the facts of the present case no Commissioner was appointed to hold a local inspection and consequently no local inspection report is on record. The description of the suit property appears to be a ground floor flat consisting of three bedrooms with attached three bathrooms with modern fittings, sanitary privy, one store, one kichen, one dinning room, one covered verandah in the front portion with grill in the suit holding, that is, premises No. 128/15, Hazra Road, P.S. Bhowanipore Kolkata 700026. The learned Lower Appellate Court has found that the plaintiff would require one privy, one kitchen, one bathroom and one dinning space that is a complete flat for the purpose of her residence. As it appears to this Court that none of the Courts below has examined the question of partial eviction, the matter should be remitted back to the learned Trial Court since this Court of the view that considering the said provisions of Section 13(4) of the said Act of 1956 it is a duty cast upon the Court to consider whether the requirement of the plaintiff could be satisfied by evicting the defendant from a part only of the suit property. The decisions reported at AIR 1978 Supreme Court 413(supra) and 1993 SUPP(1) SCC 439 (supra) supported the case of the 18 appellants in so far as their stand on the question of partial eviction is concerned. In the present case, the plaintiff's reasonable requirement has been found to be proved by both the learned Courts below and, accordingly, the inquiry is now required to be made only with regard to the question of partial eviction. This Court is also not disturbing the finding of the learned Courts below with regard to the relationship of landlord and tenant in between the parties to the suit and the plaintiff's ownership in respect of the suit property.
Accordingly, the present appeal is allowed and the judgements and decrees of the learned Courts below by which a decree for eviction against the defendant/tenant have been passed in respect of the entire suit premises are set aside to this extent. It is made clear that the inquiry that will hereafter be done by the learned Courts below shall be limited to the question whether or not the eviction of the defendants/appellants from a part only of the suit premises can substantially satisfy the plaintiff/respondent's need. The parties to the proceeding shall be entitled to adduce appropriate evidence before the learned Trial Court for such purpose and to such extent. The parties will also be free to make an appropriate application for appointment of a local inspection- Commissioner for holding a local inspection in respect of the suit premises and/or the suit holding.
There will, however, be no order as to costs.
19Urgent certified Xerox copy of this judgement, if applied for, shall be given to the parties as early as possible upon compliance of all necessary formalities.
(TAPAN KUMAR DUTT, J.)