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Thakur Chandra Nandi Vs. Arun Kumar Roy Chowdhury - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 856 of 1981
Judge
Reported inAIR1986Cal249
ActsTransfer of Property Act, 1882 - Section 106; ;West Bengal Premises Tenancy Act, 1956 - Sections 13(1) and 18(3)
AppellantThakur Chandra Nandi
RespondentArun Kumar Roy Chowdhury
Appellant AdvocateRabindra Nath Mitra and ;Debesh Chandra Chakraborty, Advs.
Respondent AdvocateSaktinath Mukherjee and ;Ashim Kumar Shah, Advs.
DispositionAppeal dismissed
Cases ReferredP. B. Desai v. C. M. Patel
Excerpt:
- .....facts are as follows : the defendant respondent is a tenant under the plaintiff in respect of the suit premises as described in the schedule to the plaint at a monthly rental of rs. 115/- payable according to the english calendar month. as the plaintiff required the suit premises for his own use and occupation, he terminated the defendant's tenancy by a notice to quit dated jan. 8, 1977 and the defendant was asked to quit and vacate the suit premises on the expiry of the month of feb. 1977.3. but in spite of the notice having been duly served upon him, the defendant failed and neglected to quit and vacate the suit premises, consequent to which the plaintiff filed the instant suit for ejectment and khas possession as well as for mesne profits.4. the defendant contested the suit by filing.....
Judgment:

Sudhir Ranjan Roy, J.

1. The plaintiffs suit for ejectment being Title Suit No. 163 of 1977 of the learned Third Court of the Munsif at Sealdah having been dismissed, he moved up in appeal and the appeal being Title Appeal No. 71 of 1981 of the learned 9th Court of the Additional District Judge at Alipore. having been proved to be abortive, he has come up in second appeal before this Court.

2. The facts are as follows : The defendant respondent is a tenant under the plaintiff in respect of the suit premises as described in the schedule to the plaint at a monthly rental of Rs. 115/- payable according to the English Calendar month. As the plaintiff required the suit premises for his own use and occupation, he terminated the defendant's tenancy by a notice to quit dated Jan. 8, 1977 and the defendant was asked to quit and vacate the suit premises on the expiry of the month of Feb. 1977.

3. But in spite of the notice having been duly served upon him, the defendant failed and neglected to quit and vacate the suit premises, consequent to which the plaintiff filed the instant suit for ejectment and khas possession as well as for mesne profits.

4. The defendant contested the suit by filing a written statement alleging, inter alia that the plaintiff did not require the suit premises for his own use and occupation as alleged and moreover he has reasonably suitable accommodation elsewhere. Service of the notice to quit was also denied.

5. On the aforesaid facts the parties went into evidence and the learned Munsif on a perusal of the evidence on record dismissed (he suit on the ground that the plaintiff had failed to prove by dependable evidence that he reasonably required the suit premises for his own use and occupation, though the learned Munsif found that the notice, to quit was duly served upon the defendant and it was also legal, valid and sufficient.

6. On appeal by the plaintiff the learned lower appellate court also took the same view and dismissed the appeal.

7. Being aggrieved, the plaintiff has now come up in appeal before this Court.

8. Appearing on behalf of the appellant, Mr. Mitra, learned Advocate contended that the learned courts below went wrong in holding that the appellant had failed to prove his requirement of (he suit premises within the meaning of Section 13(1 )(ff) of West Bengal Premises Tenancy Act (hereinafter to be referred to as the Act). His second contention was that under no circumstances, the plaintiffs house in Orissa could be said to be a reasonably suitable accommodation.

9. In reply. Mr. Mukherjee. Learned Advocate for the respondent, contended that both the learned courts below having concurrently disbelieved the appellant's case as reasonable on proved facts, the said finding being purely a finding of fact could not be assailed in a second appeal. To support the dismissal of the suit Mr. Mukherjee further contended that the learned courts below while dismissing the suit on the ground that the plaintiff appellant had failed to prove that he reasonably required the suit premises for his own use and occupation, should also nave dismissed the suit on ground of non-service of notice to quit and that the learned lower appellate court's acceptance of the service by affixation was not based on proper construction of the second part of Section 106 of the Transfer of Property Act.

10. Coming first to the question of notice, it appears that the service was sought to be effected by three different methods, viz., by registered post, under certificate of posting and by personal service by affixation.

11. The learned trial court's finding was that the notice was duly served upon the defendant and that it was also legal, valid and sufficient. Incidentally, the notice dated Jan. 8, 1977 was under Section 13(6) of the Premises Tenancy Act and by the said notice the defendant was directed to quit and vacate the suit premises on the expiry of Feb. 1977.

12. The learned lower appellate court found that the service of notice by registered post was beyond time and having been served upon the defendant on Feb. 2, 1977, it did not allow the defendant's one month's time to quit and vacate, as required by Section 13(6) of the Act. Service of the notice under certificate of posting was also disbelieved by the learned Judge. He. however, found on evidence that on Jan. 27, 1977, a copy of the notice was tendered to the defendant by P.W. 2 Lakshmi Kanta Das, which the defendant refused to accept after going through it. whereupon it was affixed on the front door of the suit premises in presence of P.W. 4 Dr. Dipak Chandra. According to the learned lower appellate court this was good service under the second part of Section 106 of the Transfer of Property Act, since the Premises Tenancy Act did not prescribe any mode of service of a notice to quit under Section 13(6).

13. This finding of the learned lower appellate court was seriously assailed before me by Mr. Saktinath Mukherjee, the learned Advocate appearing on behalf of the respondent. Referring to the second part of Section 106 of the Transfer of Property Act he contended that it provides four different modes of service, viz., (i) by post, (ii) by personal delivery upon the addressee or (iii) upon one of his family or servants at his residence and (iv) affixation to a conspicuous part of the property if such tender or delivery is not possible, and according to Mr. Mukherjee, these modes are to be followed one after the other, i.e. if service by post is not possible, the second mode should be resorted to and in this way the third and all these modes failing the last mode by affixation can be resorted to. Skipping over of either of these steps is not permissible.

14. In support of this contention he referred me to a decision of a learned single Judge of this Court in Sukumar Guha v. Naresh Chandra Ghosh, : AIR1968Cal49 and a subsequent decision of the Rajasthan High Court in Gumanmal v. Kunwarlal, AIR 1971 Raj 273, which followed the earlier single Bench decision of this Court.

15. According to the decision of this Court in Sukumar v. Naresh (supra) the principal modes of service as mentioned in Section 106 of the Transfer of Property Act are two; either by sending by post or by tender or delivery to the party. The other two modes are alternatives to the second mode of tender or delivery, viz., vicarious tender or delivery and by affixture. The second mode is independent alternative to the first and the third and fourth are alternatives to the second, the fourth being available only when neither the second nor the third mode is practicable.

16. The decision of the Rajasthan High Court reported in AIR 1971 Raj 273 which follows the Calcutta decision in Sukumar v. Naresh : AIR1968Cal49 lays down that service of notice by affixture can be resorted to only if it is neither practicable to deliver the notice to the tenant nor it is practicable to deliver it to one of the defendant's family or servants.

17. This is precisely the question which is directly in issue in the present case. But so far the facts are concerned, there is a significant difference. In the Rajasthan case the tenant was not available and accordingly, it was held that tender or delivery of notice to him was not practicable. The next step to be followed was tender or delivery to one of his family or servants. But service by affixation having been made by skipping over that mode, it was held to be bad in law.

18. But here on the facts proved, it appears that service by post was followed by tender or delivery to the defendant. The postal service was found to be bad by the learned lower appellate court but the learned Judge was fully satisfied about service by tender or delivery in view of the evidence that the notice having been tendered personally to the defendant, he refused to accept the same after having gone through it. In that view of the matter, delivery of the notice to one of his family or servants or service by affixation was absolutely unnecessary and uncalled for, though P.W. 2 the server of the notice, in his wisdom thought that it would be proper to affix the notice on the front door of the suit premises on the defendant's refusal to accept the same. Thus, the second mode of service by delivery or tender to the defendant having succeeded, affixation by skipping over the third mode can, under no circumstances, be said to be fatal. This is because the fourth mode of service by affixation is available only when neither the second nor the third mode is practicable. But here, the second mode of service having succeeded there can be no scope for concluding that service by the second mode was not practicable. It was, however, contended by Mr. Mukherjee that the plaintiff in the instant case was not satisfied about the service by tender or delivery to the defendant and consequently, the third mode, viz., delivery to one of the defendant's family or servants, ' should have been resorted to before effecting service by affixation.

19. I am, however, unable to accept this hyper-technical interpretation of the law. In my judgment, service of the notice was complete as the defendant on the notice being personally tendered to him, refused to accept the same. Delivery of the notice thereafter to one of the defendant's family or servants was totally unnecessary and redundant and so also the service by affixation. Simply because an unnecessary step was taken by a layman,' the legal effect of service by delivery of the notice to the defenant, cannot be said to have been destroyed. The service being in time, I hold in complete agreement with the learned lower appellate court that there was proper service of the notice to quit upon the defendant.

20. Coming next to the question of reasonable requirement of the plaintiff, the only ground on which eviction of the defendant was sought for, both the learned courts below concurrently disbelieved that the plaintiff actually required the suit premises for his own use and occupation, he having a reasonably suitable accommodation at Orissa, his erstwhile place of work and activity. The plaintiff, as it appears, was Reader-cum-Principal under the Government of Orissa in the Education Department. He has built his own house there where he is residing with his family members. The suit premises was constructed by him sometime in 1959-60 and in the year 1968 the defendant was inducted there as a tenant. In 1972 the plaintiff retired from service and he filed the instant suit in the year 1977 on the ground that he required the suit premises for his own use and occupation and that of his family members because it was neither possible nor safe for him to live in a distant place away from friends and relatives in his old age. His family comprises himself, his wife, two married sons, one unmarried daughter and his invalid and widowed mother-in-law. However, out of his two married sons, one is posted in Delhi and the other in England.

21. Both the learned courts below disbelieved the case of the plaintiff that he really intended to come back and settle in West Bengal. According to them the plaintiff having constructed a house in Orissa, was by itself sufficient to indicate his intention to settle there permanently. Moreover, if he had any real intention to come back to Calcutta after retirement he would not have let out the suit premises to the defendant unconditionally, According to the learned courts below, the plaintiff at the most had a desire to come to Calcutta, which was rather emotional and that he did not actually require the suit premises for his own use and occupation.

22. According to Mr. Mukherjee, this being a finding of fact, cannot be interfered with in a second appeal. In support of his contention he referred to the decision of the Supreme Court in Mattulal v. Radhelal, : [1975]1SCR127 , where the Supreme Court has observed that the finding reached by the first appellate court on an appreciation of evidence that the landlord does not bona fide require the premises in suit, isa finding of fact and not a finding of mixed law and fact and it cannot be interfered with by the High Court in second appeal unless it is shown that in reaching it a mistake of law is committed by the first appellate court or that the finding is based on no evidence or is such as no reasonable man can reach. Similar view has also been taken by the Supreme Court in a case reported in : [1974]3SCR267 (P.B. Desai v. C.M. Patel).

23. In the instant case it cannot be said that the finding of the learned courts below regarding absence of any reasonable requirement of the plaintiff, is based on no evidence or that the said finding is perverse. As a matter of fact, the plaintiff, if he has at all been able to prove anything, hasa mere desire to come back to Calcutta and settle in the suit premises. But mere desire falls short of actual requirement. What is lacking is the element of need.

24. The Supreme Court in Mst. Bega Begum v. Abdul Ahad Khan, : [1979]2SCR1 has observed that 'reasonable requirement' postulates that there must be an element of need as opposed to a mere desire or wish. However, the connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction.

25. In that case, however, the plaintiffs had proved that their necessity was both genuine and reasonable. But such evidence has been found to be lacking in the instant case by both the learned courts below and, in my view, rightly.

26. Similar view has been taken by the Supreme Court in Mattulal v. Radhelal, AIR 1974 SC 1596where it has been observed that the word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must prove that he genuinely requires the accommodation for his own purpose.

27. The decision of the Supreme Court in P. B. Desai v. C. M. Patel, : [1974]3SCR267 also expresses identical views.

28. Mr. Mitter, the learned Advocate appearing on behalf of the plaintiff-appellant, contended that in view of Section 18(3) the West Bengal Premises Tenancy Act, 1956, the learned courts below were wrong in holding that the Orissa house of the plaintiff was a reasonably suitable accommodation within the meaning of Section 13(l)(ff) of the Act.

29. The relevant portion of Section 18(3) to which my attention was drawn provides that 'where the landlord obtaining delivery of possession of any premises from the tenant in pursuance of a decree made on the ground mentioned in Clause (ff) of Sub-section (1) of Section 13 was, at the time of obtaining such delivery of possession, in occupation of some other premises as owner thereof, he shall not within ten years from the date of his obtaining such delivery of possession let such other premises to any person other than the tenant from whom such delivery of possession has been obtained'.

30. It was contended by Mr. Mitter that since for obvious reasons the Orissa house could not be brought within the mischief of Section 18(3) in the event of the plaintiff's getting a decree for eviction under Section 13(l)(ff), the said house could not be held to be a reasonably suitable accommodation within the meaning of the said section. This contention, in my view, is rather too far-fetched. Moreover, when Section 18(3) speaks about obtaining a decree for possession under Section 13(l)(ff) in spite of the landlord being in possession of another premises, the decree should be deemed to have been obtained on the footing that the other premises in the possession of the landlord is not a reasonably suitable accommodation. But that finding has to be made independently before a decree is passed under Section 13(l)(ff). Furthermore, Section 13(1)(ff)does not restrict the word 'accommodation' so as to make it inapplicable to accommodation outside the State irrespective of any other consideration.

31. In the above view of the matter, though the plaintiff served a valid notice to quit upon the defendant, he having failed to prove convincingly that he required the suit premises for his own use and occupation, the suit was rightly dismissed by the learned courts below.

32. The appeal having no merits in it fails and is dismissed on contest. The judgment and decree passed by the learned lower appellate court in Title Appeal No. 71 of 1981 are hereby affirmed.

33. No order is made for costs.

34. No formal decree need be drawn up.

35. Leave to appeal to the Supreme Court is refused since no substantial question of law is involved in this case which is res Integra.


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