Calcutta High Court (Appellete Side)
Puspa Dubey vs Madhabi Mukherjee & Ors on 29 August, 2024
IN THE HIGH COURT AT CALCUTTA
(CIVIL APPELLATE JURISDICTION)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
SAT 386 of 2009
With
CAN 16 of 2022
Puspa Dubey
Vs.
Madhabi Mukherjee & Ors.
For the Appellant : Mr. Bidyut Kumar Banerjee,
Mr. Badal Singh,
Mr. Antarik Dawn.
For the Respondents : Mr. Saptangshu Basu, Sr. Adv.
Mr. Sibashish Das,
Mr. Arindam Paul,
Ms. Debarati Das,
Mr. Sabyasachi Sarkar.
Hearing concluded on : 14.08.2024
Judgment on : 29.08.2024
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Shampa Dutt (Paul), J.:
1. The appeal has been preferred by the Appellant/ Defendant/ tenant.
2. By a Judgment dated 19th September 2001, the trial court being the 3rd Bench, Presidency Small Cause Court in Ejectment Suit No. 1117 of 2000, dismissed the suit on contest.
3. In appeal, the learned Judge, 2nd Bench, City Civil Court, Calcutta in Title Appeal No. 68 of 2001, set aside the trial courts‟ decree of dismissal and decreed the plaintiff's prayer for eviction of the Defendant/Appellant herein.
4. Hence, the present (second) appeal by the Tenant/ Defendant/Appellant.
5. The Appeal on admission, is to be heard on the following substantial questions of law:-
a. That mere construction does not tantamount violation of Clauses
(m), (o), and (p) of Section 108 of the Transfer of Property Act unless the construction is of such magnitude and/or nature which diminishes valuation of the property itself?
b. Substantial error of law in not holding that if any construction at the property in question does not impair the value and utility of the property itself does not come within the purview of Section 13 (1) (b) of the West Bengal Premises Tenancy Act, 1956? 3 c. Substantial error of law in reversing the judgment of the Learned Trial Court on the ground of reasonable requirement merely on the basis that the landlord is the best judge of his requirement without satisfying and/or adverting itself as to the other requirement as envisaged under Section 13 (1) (ff) of the West Bengal Premises Tenancy Act, 1956?
6. The facts in brief:-
The Respondents/Plaintiffs/Landlords instituted the eviction suit on issuing a notice, on the ground of:-
a) Defaulter in payment of rent since the month of July, 1983.
b) The defendant without knowledge and consent of the plaintiffs/landlords made additions and alterations in the suit property.
c) Reasonable requirement of the plaintiffs.
d) Causing nuisance and annoyance.
7. The trial Court held:-
i) The tenant/ defendants obtaining relief under Section 17(4) of the West Bengal Premises Tenancy Act, 1956 did not default further and the said being first default, the defendant was given the said relief and was thus held to not be a defaulter.4
ii) The issue of the defendant being guilty of committing nuisance and annoyance was also not proved.
iii) The issue of making unauthorized addition and alteration in the suit property was also not proved.
iv) Notice for eviction was found legal, valid and sufficient.
v) Regarding the ground of reasonable requirement, the trial court decided against the plaintiffs/respondents herein.
8. The court of first appeal set aside the decree of dismissal and decreed that the Defendants/Appellant/Tenant be evicted on the following grounds:-
a) The reasonable requirement of the plaintiffs has been proved.
b) There has been addition and alteration in the suit premises without consent of the landlord.
9. Both parties have submitted their written arguments with the judgments relied upon.
10. The Appellant has filed copies of the documents along with a certified copy of the agreement for sale between the Plaintiff no.2 and the Respondent (Exhibit „A‟ before the trial court).
11. The said agreement and its consequences has been discussed at length by the learned judge in the first appeal. The said findings are in accordance with law and thus need no further discussion.
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12. In their written argument the Appellant have submitted that the order of the trial court is in accordance with law and as such the order and judgment of the first appellate court is liable to be set aside.
13. It is further stated that the Respondents/Plaintiffs have sufficient alternative accommodation elsewhere and the addition and alteration as stated is not significant enough to evict the Appellant, as per Section 108 (P) of the Transfer of Property Act.
14. Following Judgments have been relied upon by the Appellant:-
1. G. Arunachalam (died) through L.Rs and another Vs. Thondarperienambi and Anr., AIR 1992 SC 977.
2. Ratnamala Dasi & Ors. Vs. Ratan Singh Bawa., CLJ 1988 (1) 468.
3. Dayanand Gupta Vs. Gobind Lall Bangur & Ors., 2007 (3) CHN 665.
4. Smt. Menoka Rani Pal Vs. Smt. Maya Rani Karmakar., AIR 1999 CALCUTTA 182.
5. Surya Properties Private Ltd. & Ors. Vs. Bimalendu Nath Sarkar & Ors., AIR 1964 Cal 1(V 51 C 1).
6. A.V. Papayya Sastry & Ors. Vs. Govt. of A.P-. & Ors., (2007) 4 SCC 221.
15. On the other hand the Respondents/ Plaintiffs/Landlords have relied upon the following Judgments:-
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1. Kalpana Dhar & Ors Vs. Subodh Kumar Paul & Ors., 1978 (2) CLJ 292.
2. British Motor Car Co. Vs. Madan Lal Saggi (Dead) & Anr., 2005 (1) SCC 8.
3. Ragavendra Kumar Vs. Firm Prem Machinery & Co., 2000 (1) SCC 679.
4. Prativa Devi (Smt) Vs. T.V. Krishnan., 1996 (5) SCC 353.
5. Ram Prasad Rajak Vs. Nand Kumar & Bros & Anr., AIR 1998 SC 2730.
6. Rameshwar and Ors Vs. Jot Ram and Anr., (1976) 1 SCC
194.
16. In their written notes, the Respondents/Plaintiffs/Landlords have stated that the judgment under challenge being in accordance with law needs no interference.
17. The substantial questions of law framed are now decided as follows:-
1) D.W.1, who deposed on behalf of the Defendant/Appellant, is her son and in his cross-examination has stated as follows:-
".....tenancy is from 1971. In 1972, we have constructed a Mandir in the courtyard with the permission of the then landlady. That construction is about 2 1/1 and half feet having height of 6'. I have nothing to show that landlady gave written consent...."7
18. The court of first appeal considering the said facts held that there has been violation of Section 108 (P) of Transfer of Property Act and thereby Section 13 (1) (B) of the WBPT Act is attracted.
19. Thus, admittedly a "Pucca Structure" being a „Mandir‟ has been constructed by the Appellant/ Defendants/Tenants in the courtyard of the building. The Appellant is in possession of the entire ground floor. The said courtyard is not included in the suit premises as described in the „Schedule Property.‟
20. It thus appears that though the courtyard is part of the suit building, it is not part of the suit premises.
21. The Appellant/Defendants have admittedly encroached in the suit "property" and made „Pucca‟ construction of 6 feet height and 2 ½ feet breath of brick and cements. Making a „Mandir‟ in the courtyard means use of the courtyard by the devotees/inmates without permission of the landlords. This is also a cause of nuisance and annoyance.
22. Admittedly, nothing has come on record to show that the defendant has permission to do so.
23. Though the trial court also held that there was no permission to construct by the owners, the trial court came to the finding that there is no addition and alteration as stated by the Plaintiff.
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24. In Om Prakash Vs Amar Singh & Ors., (1987) 1 SCC 458, the Supreme Court held:-
"10. Learned counsel then urged that this Court should not interfere with the findings of fact recorded by the High Court. We find no merit in the submission. The question whether disputed constructions constitute material alterations is a mixed question of fact and law. The High Court in second appeal interfered with the findings of fact recorded by the lower courts on the question whether tin shed and the partition wail constituted material alterations. The learned Single Judge placing reliance on the observations of the Full Bench decision in Sita Ram's case (supra) held that the disputed construction even though temporary in nature, which could be removed without causing any damage to the accommodation, would fail within the mischief of material alterations. The High Court committed error in interfering with the findings of the First Appeal Court. We accordingly allow the appeal, set aside the order of the High Court and re- store the judgment and decree of the First Appeal Court. In the circumstances of the case there would be no order as to costs."
25. In Ranju Alias Gautam Ghosh vs Rekha Ghosh & Ors., (2007) 14 SCC 81, the Supreme Court held:-
"18) In view of the above, we agree with the following conclusions of the First Appellate Court as affirmed by the High Court in Second Appeal:
(a) ****** not relevant.
(b) that causing damage to the collapsible gate of the tenanted portion and putting up a concrete elevation of the floor, would amount to doing acts contrary to the provisions of clauses
(m), (o) and (p) of section 108 of the Transfer of Property Act, 1882, thereby furnishing a ground 9 of eviction under clause (b) of section 13(1) of the West Bengal Premises Tenancy Act, 1956."
26. The Appellate court held as follows:-
"Title Appeal No. 68 of 2001
Dated: 15.07.2009 ....... From the above discussion it is crystal clear family of the plaintiffs is a big one and most of them reside outside the suit premises. It is also clear the plaintiffs who resides outside the suit house have no other reasonably suitable accommodation of their own elsewhere at Calcutta.
In this premises the point raised by the Ld. Lawyer for respondent/defendant that plaintiffs did not take the plea that the plaintiff no.1 has another accommodation at premises No. 49, K. K. Mukherjee Lane becomes wholly irrelevant and for the purpose of this appeal it is also not necessary to consider as to whether plaintiffs/appellants no.2 at any point decided to dispose of her share in the suit premises.
In view of the above facts and circumstances of the case it appears that the plaintiffs/appellants have proved their case of bonafide requirement and therefore, I am in view that the Ld. Court below committed a grave error disallowing the plaintiffs/appellants case of reasonable requirement...........
..........After giving anxious perusal to these citations with due respect I like to mention it here that the facts discussed in these cases are not identical with the case in hand and these are also not applicable here. It is the settled principal in law during the continuance of tenancy if the tenant erects or constructs any permanent structure even if such construction made outside demised premises to which the landlord can have access then that tenant will come within the mischief of Section 108 (P) of T.P. Act and will be liable to be rejected. The height of the alleged construction appeared as 6 ft. which cannot be stated too small.10
So, it is clear the structure is a pucca structure of permanent in nature and it was unauthorizedly constructed by the tenant without consent of the landlord violation the provision of Section 108 (P) of T.P. Act and thereby Section 13(1) (B) of WBPT Act is attracted. Plaintiff/appellants did not agitate any other ground in this appeal besides these two grounds.
Sd/-
Judge, 2nd Bench City Civil Court, Calcutta"
27. It clearly appears that the sizable construction in the courtyard made of bricks and cement is an addition (without) permission and alteration (of the Courtyard) by making a Mandir, thus creating both nuisance and annoyance.
28. The finding of the Appeal court is thus in accordance with law and accordingly it is decided that, (a) the trial court committed substantial error of law in holding that mere construction does not tantamount violation of Clauses (m), (o), and (p) of Section 108 of the Transfer of Property Act unless the construction is of such magnitude and/or nature which diminishes valuation of the property itself.
29. Thus, the next two questions of law framed are also decided on the basis of the above facts that, (b) the appellate court did not commit substantial error of law in not holding that if any construction at the property in question does not impair the value and utility of the property itself does not come within the purview of Section 13 (1) (b) of the West Bengal Premises Tenancy Act, 1956? and also (c) did not 11 commit Substantial error of law in reversing the judgment of the Learned Trial Court on the ground of reasonable requirement merely on the basis that the landlord is the best judge of his requirement without satisfying and/or adverting itself as to the other requirement as envisaged under Section 13 (1) (ff) of the West Bengal Premises Tenancy Act, 1956.
30. The Learned Appellate (first) court also rightly decided the issue of reasonable requirement in favour of the Plaintiffs/Respondents herein by holding that "it is the settled principal of law it is for the landlord to decide how and in what manner he should live and he is the best judge of his residential requirement and if the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient, it is not for the court to dictate him to continue to occupy such premises. The family of the plaintiffs is a big one and most of them reside outside the suit premises. It is also clear the plaintiffs who resides outside the suit house have no other reasonably suitable accommodation of their own elsewhere at Calcutta...."
31. Admittedly the suit premise consists of two stories with three bedrooms on each floor with bath, privy and kitchen.
32. The total ground floor is in occupation of the Appellant/ Defendants/ Tenants.
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33. The total numbers of family members of the plaintiffs in this case are more or less 21. Due to lack of place to stay in the suit property, most of them stay elsewhere, in rented accommodation too. Some of them having already received eviction notice from their landlords (Exhibit 13 to 14).
34. Thus, the said finding in respect of the plaintiff's reasonable requirement by the appellate court being in accordance with law requires no interference and is thus affirmed.
35. The Judgment and order under challenge dated 15th September, 2009 passed by the Learned Judge, 2nd Bench, City Civil Court, Calcutta in Title Appeal No. 68 of 2001 (Appeal Court), being in accordance with law requires no interference and is thus affirmed.
36. SAT 386 of 2009 stands dismissed.
37. All connected applications, if any, stand disposed of.
38. There will be no order as to costs.
39. Interim order, if any, stands vacated.
40. Let a Copy of this judgment be sent to the Court of 2nd Bench, City Civil Court, Calcutta (Appeal Court) and Court of 3rd Court, Small Cause Court at Calcutta (Trial Court) at once.
41. Urgent certified website copy of this judgment, if applied for, be supplied expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)