Ajay K. Basu, J.
1. This is a suit filed by the two plaintiffs Sm. Kailash Debi Jaiswal and Sm. Usha Gupta against the defendant Patit Paban Roy for a decree for recovery of possession of the rooms in occupation of the said defendant Patit Paban Roy of 6, Rajendra Deb Road of which the plaintiffs are the owners, for their own use and occupation, and also for mesne profits and other ancillary reliefs.
2. Mr. Pradip Das appears for the plaintiffs and Mr. Banerjee appears for the defendant. The following issues were raised:
1. Do the plaintiffs . reasonably require the demised premises for their own use and occupation as alleged in paragraph 3 of the plaint ?
2. Have the plaintiffs or their respective family members no alternative residential accommodation except the demised premises ?
3. Is the notice dated 19th November 1968 legal and valid ?
4. Has this Court jurisdiction to receive, try and determine this suit ?
5. To what relief is the plaintiff entitled, if any?
Of the 5 issues, issues numbers 2 and 4 have not been seriously controverted except being referred casually by the parties and are not pressed.
3. The plaintiffs produced 4 witnesses, viz., Mewalal Jaiswal, the husband of Kailash Debi Jaiswal; Chhedilal Gupta husband of Usha Gupta; Kanailal Jaiswal cousin of Mewalal Jaiswal and Gobinda Sarkar, the clerk of the plaintiffs' solicitors. The defendant Patit Paban Roy only examined himself.
4. Mr. Banerjee, at the first instance, argued as a point of demurrer that the suit should be dismissed as it offends the Sub-section (3-A) of Section 13 of the West Bengal Premises Tenancy Act. Sub-section (3-A) says -- 'Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in Clause (f) and Clause (ff) of Sub-section (1) shall be instituted by the landlord before the expiration of a period of 3 years from the date of his acquisition of such interest.' According to Mr. Banerjee this suit is for recovery of possession under Clause (ff) of Section 13, which says -- 'Subject to the provisions of Section 3-A, 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 possession of any reasonably suitable accommodation.' According to Mr. Banerjee this Section 3-A was inserted in Section 13 by West Bengal Premises Second Amendment Act XXXIV of 1969. That amendment came into force on the 14th November 1969, but this suit was filed on the 26th February, 1969: though the amendment was after the suit was filed but it was made retrospective under Section 13 of the Amending Act and hence suit should fail as it was not filed three years after acquisition of this property. Mr. Banerjee strongly relied on a case reported in (1970) 74 Cal WN 715 which is a Division Bench judgment in Kameswar Singh v. Sahadev Singh. The judgment was delivered by D. Basu, J. which states that the Section being retrospective and as such the Court has no jurisdiction to decree the suit for ejectment and as such the suit was dismissed.
5. Mr. Das on the other hand, contended that by a later decision of this Court, a Division Bench of this Court has held that the retrospective operation of Section 3-A is ultra vires and that being the later decision, this Court is bound by that. Mr. Das cites the case reported in : AIR1971Cal331 Sailendra Nath Ghosal v. Ena Dutt. In that case Mukherjee, J. in delivering the judgment states that 'Sub-section (3-A) is intra vires except so far as it operates retrospectively under Section 13 of the Amending Act and to that extent it would be ultra vires and invalid.'
6. This being a later decision and the point of ultra vires not being taken n the earlier decision, I am bound by the later decision. I respectfully agree with the view expressed by the Division Bench of P. N. Mookerjee and A. K. Mukherjee, JJ. in : AIR1971Cal331 and in that view of the matter I reject the contention of Mr. Banerjee and uphold that Section 3-A of the West Bengal Premises Tenancy Act has no application to the present suit, which was pending when the amendment was made.
7. Now, coming to the issue No. 1, i.e. the reasonable requirement, the plaintiffs contend that they have been huddled together in 3 rooms in their rented premises at 175 Muktarambabu Street. According to the plaintiffs, there are 15 or 16 persons, excluding the servants, who are living together almost like cattle in 3 small sized rooms of about 10' x 10'. According to the evidence on behalf of the plaintiffs, of the 3 rooms rented by them at 175 Muktarambabu Street, Mewalal and his family are residing in one room. The family of the other plaintiff, Gupta is residing in another room and the third room is occupied by the overflow of both the families. According to the plaintiffs, the present accommodation available to their family members is helplessly inadequate and for a minimum amount of privacy and for residence a much greater space is necessary and for that purpose they purchased the demised house where they want to live. The plaintiff No. 1 has 8 members and the plaintiff No. 2 has 9 members including themselves.
8. According to the plaintiffs for the basic necessity of their residence, of their privacy and space for education and studies of their children, it is absolutely essential that further floor space and/or rooms be made available to them which is only possible if they are allowed to live in their own house rented out to the defendant prior to their purchase.
9. For the purposes of their residence, the plaintiffs purchased the premises No. 6 Rajendra Deb Road by 2 conveyances dated 5th October, 1967. The defendant Patit Paban Roy was the tenant of the said 4 rooms in 6 Rajendra Deb Road prior to the said conveyances and after the said property was purchased by the plaintiffs, necessary notices of attornment were given and the defendant became the tenant of the plaintiffs in respect of the said premises and the plaintiffs require the entire house for their residence.
10. By a letter dated 19th November, 1968 written by the solicitor for the plaintiffs and on their behalf a notice of ejectment was sent to the defendant under registered post acknowledgment due. On the 25th November, 1968 the said acknowledgment receipt duly came back with the necessary postal remark and bearing a signature for the defendant. The plaintiff states that in spite of the said notice to quit the defendant did not vacate the said premises and hence the suit was filed.
11. The defendant in his written statement admits that he was a monthly tenant under the plaintiffs according to the English Calendar month at a rent of Rs. 80/- per month but disputes that the plaintiffs bona fide require the premises for their own use and occupation. The defendant also denies the service, legality and validity and/or sufficiency of the said notice to quit dated 19th November, 1968 and the defendant denies the legality of the averments of the plaint.
12. As stated above the husbands of both the plaintiffs deposed before me. They stated that they jointly purchased the property in the names of their wives at a sum of Rs. 60,000/- in 1967 and Patit Paban Roy, the defendant, was a tenant in respect of the 4 rooms of the said premises, No. 6, Rajendra Deb Road, at a monthly rent of Rs. 80/-. Patit Paban Roy was in occupation of 3 rooms in the upstairs and one room in the downstairs. Chedilal Gupta also says that the total number of his family is 9 and they along with the family of the plaintiff No. 1 reside at 175, Muktaram Babu Street in 3 rooms at a rent of Rs. 106/-. Their further evidence is that they have their place of business a few yards from 6, Rajendra Deb Road, at 12 Rajendra Deb Road. It is the evidence of Chedilal Gupta that they have no other alternative place of residence in or around Calcutta. Mr. Gupta also describes how pitiably the members of his family as well as the members of the plaintiff No. 1's family are residing in the said rented flat at 175, Muktaram Babu Street and describes in detail how even the kitchen is being used as the bed-room and how a cot is put under a bedstead during the day, and he also says the difficulty in bringing married daughters to the house as also it was difficult to bring the wives of his brothers from the native place due to the paucity of space for accommodation in their flat. He also says that due to want of space in his flat some members of the family are perforce to go and sleep in the Gaddi in the place of business. It has also come out in evidence that at 6, Rajendra Deh Road there were 3 tenants--one is the defendant and two others against whom similar ejectment suit has been filed and against one, Mohitosh Das, they have already got possession of the two rooms which are kept under lock and key as they are uninhabitable at the present moment and they want the entire house which is required for their residence.
13. Needless to say that none of the husbands of the plaintiffs were asked anything about the other tenants of 6, Rajendra Deb Road. Mewalal Jaiswal in his evidence definitely says in question 63 in answer to the question 'Have you ever asked the defendant to enhance the rent any time?', his answer was 'No, never--from the very beginning we have been asking them to quit and vacate the premises because we are not going to let it out on rent'. On this point he has not been cross-examined, and consistently the plaintiffs said that they purchased this property for their own use and occupation as they were in great difficulty in residing in their rented rooms at 175, Muktaram Babu Street, and repeatedly they have said in cross-examination to the cross-examining counsel that 'You can come and see for yourself in what pitiable conditions we are residing in the said premises'. When Mewalal was asked whether his brother's sons Kanhailal and Shewprosad reside at 175, Muktaram Babu Street his answer was that the ration card will speak for itself. At the outset it was stated that the defendant did not take out notice for discovery against the plaintiffs. From his demeanour and the way Patit Paban Roy, the defendant answered I do not think that he is a reliable witness. To me he appears to be a witness who has hardly any respect for truth and is capable of saying anything at any time to suit his own purpose.
14. On the question of service of the said notice of ejectment it was a definite case of the plaintiffs that the notice of ejectment was duly received by the defendant and the acknowledgment slip was signed by Miss Archana Roy who is a sister of the defendant. The said acknowledgment slip, Ext. E bears the signature of Archana Roy for Patit Paban Roy. According to the defendant he can neither deny nor affirm whether this is his sister's signature as he is not in a position to read or understand signature in English. He admits that his sister Archana Roy, who is 20 years old, has read upto class VIII and can sign her name in English. Mr. Das rightly pointed out that Archana Roy would be the best witness to deny or confirm her signature and as Archana Roy has not been called by the defendant the presumption should be that had she been called she would not have supported the defendant's case under Section 114(g) of the Evidence Act. In my view the contention of Mr. Das is correct. It was stated by Patit Paban Roy that Archana Roy is in Calcutta. In spite of that she was not called. According to the evidence of G. Sarkar the clerk of the plaintiffs' solicitor, he himself typed the notice of ejectment dated 19th November, 1968 and sent it by registered post to the defendant in his address and he duly received the said acknowledgment receipt from his master in the usual course of business. Mr. Das also cited a case reported in 45 Ind App 222 = (AIR 1918 PC 102) in support of his contention. I have no doubt that the notice has been duly served on the defendant and the defendant is falsely denying the same. Therefore, I answer the issue No. (3) in the affirmative.
15. With regard to issue No. (1) I am satisfied that the plaintiffs are in great hardship and difficulty in accommodating themselves in the present premises at 175, Muktaram Babu Street. Mr. Das has cited these cases to prove the reasonable requirement: : AIR1959Cal181 and : AIR1968Cal49 . All these cases decide that there cannot be a common yardstick about the bona fide requirement; it varies from person to person. Admittedly the husbands of the plaintiffs are co-partners of the business carried on by them for years. Secondly, they have their place of business also very near 6, Rajendra Deb Road, i.e., at 12 Rajendra Deb Road, and thirdly, they are residing together at 175, Muktaram Babu Street in the three rooms in great difficulty and inconvenience. So considering all these I am satisfied that the premises in the occupation of the defendant are reasonably required by the plaintiffs for their own use. Mr. Banerjee draws my attention to Sub-section (4) of Section 13 of the West Bengal Premises Tenancy Act. Incidentally that case has never been made out either in the written statement or in evidence before me; for the first time it is raised in reply by Mr. Banerjee, I, therefore, reject his contention and considering the family members of the two families--more than 15/16, I think that the 8 rooms which are there at 6 Rajendra Deb Road will be necessary for the accommodation of the plaintiffs. Plaintiffs have so far got possession of 2 rooms which, they say, are not in habitable condition and the other suit against another tenant in respect of other two rooms is still pending in this Court. I have no doubt that the entire premises is bona fide required for the use and occupation of the plaintiffs and their family members. In that view of the matter I answer the issue No. (1) in the affirmative.
16. The plaintiffs have asked for mesne profit at the rate of Rs. 10/- per day which may be excessive. But except the statement by one of the plaintiffs' husbands before me that Rs. 300/- per month is the proper rent for the said premises I have no other material to assess the mesne profit but the defendant has also not challenged the said amount.
17. Therefore, there will be a decree in terms of prayer (a) of the plaint and mesne profit at the rate of Rs. 10/- per day until delivery of possession and cost.
18. There will be a stay of operation of this decree for a fortnight.