1. This appeal is by the defendant in a suit for ejectment. The suit was instituted by the plaintiff-respondent against the defendant-appellant for the letter's eviction from premises No. 47A Durga Charan Mitra Street, Calcutta consisting of three bed-rooms, one kitchen-cum-store room-cum-dining room and also a privy. The ground of eviction was that the plaintiff reasonably required the suit premises for his own use and occupation and for the use and occupation of the members of his family. It was alleged that the plaintiff purchased the disputed premises by a registered sale deed dated 4th October, 1966 from the daughter and the son of one Satindranath Mitra who was the original owner of the disputed premises. After his purchase a letter was served upon the defendant for attornment of the tenancy in favour of the plaintiff. The defendant attorned the tenancy in favour of the plaintiff, served a combined notice dated 13th June, 1970 under Section 106 of the Transfer of Property Act and Section 13 (6) of the West Bengal Premises Tenancy Act, asking the defendant to quit and vacate with the expiry of the month of July, 1970. The defendant not having complied with the said notice, the plaintiff instituted the suit.
2. The defence, in short, was that the plaintiff did not require the disputed premises for his own use and occupation. It was alleged that the original owner Satin-dranath Mitra executed a deed of trust on the 25th April, 1952 by which he settled the disputed property with his daughter Sm. Satadal Basini Bakshi for her life with no power to sell the same except with the consent of her only son Dilip Kumar Bakshi, upon whom the said premises were to vest absolutely on the death of the said Sm. Satadal Basini Bakshi. The said Dilip Kumar Bakshi died on 22nd April, 1954 and the trust created by Satindra Mohan Mitra was still continuing under the trusteeship of Satadal Basini Bakshi and she had no power to sell the suit premises. It was further alleged that the plaintiff was a benamdar of Satadal Basini Bakshi and the attornment of the tenancy by the defendant in favour of the plaintiff was trade through mistake. It was further alleged that the plaintiff had served a notice of ejectment dated 16-5-67 and had filed an ejectment suit, being Ejectment Suit No. 1811 of 1967 in the city Civil Court at Calcutta. That suit was withdrawn by the plaintiff and thereafter, the present suit was instituted after service of a fresh notice of ejectment. The defendant alleged that the subsequent notice was bad in law inasmuch as the defendant's tenancy had already been determined by the earlier notice dated 16-5-67 and the present suit based on the second notice was, therefore, not maintainable.
3. On these pleadings the trial court framed the following issues:
1) Is the plaintiff the owner of the suit premises
2) Was there ever any relationship of landlord and tenant between the parties and is the suit at the instance of the plaintiff maintainable
3) Does the plaintiff reasonably require the suit premises for his own use and occupation?
4) Is the notice to quit served upon the defendant legal, valid and sufficient
5) Is the plaintiff entitled to a decree for ejectment?
6) What relief will the parties get? The trial court upon a consideration of the evidence adduced in the case came to the conclusion that Satadal Basini Bakshi and her brother had the right to sell the disputed property and the plaintiff had acquired title to the disputed property by his purchase. The trial court found that the plaintiff was not a benamdar of Satadal Basini Bukshi but he was the owner of the suit premises and that there was relationship of landlord and tenant between the parties. On the question of the plaintiff's requirement the trial court found that the rented accommodation where the plaintiff has been living was not sufficient and that the plaintiff required the suit premises for his own use and occupation. The trial court further found that the second notice was quite legal and valid and the suit was maintainable on the basis of the said notice, inasmuch as, the earlier notice issued by the plaintiff had been waived. On these findings the trial court passed a decree in favour of the plaintiff.
4. Mr. Mukherjee, learned Advocate appearing in support of this appeal has contended, in the first place, that upon the materials on record the trial court ought to have held against the plaintiff that the accommodation available to him in premises No. 10 A Jagadish Nath Roy Lane where the plaintiff has been residing was sufficient to meet the plaintiff's requirement. Referring to paragraph 4 of the plaint where the plaintiff has stated that his family consisted of himself, his mother, his wife, wife's brother and his wife, the plaintiff's two sons and two daughters and one servant-cum-karmachari, Mr. Mukherjee contended that as the plaintiff in his evidence did not stay anything with regard to his wife's brother and his wife and the servant-cum-karmachari, the plaintiff's case must be viewed with a great deal of caution, because the requirement pleaded was different from the requirement which appears from the evidence. Mr. Mukherjee also referred to the evidence of the plaintiff in cross-examination where the plaintiff stated that there are in all six rooms in the house at 10A Jagadish Nath Roy Lane. But in answer to a subsequent question the plaintiff said that he had committed a mistake by saying that there are six bed rooms and in fact, there are only five bed rooms. There is no contradiction in the statement of the plaintiff because he did not say there were six bed-rooms but he said that there were six rooms. It appears that a suggestion was given to this witness that he had stated earlier that there were six bed rooms. To this suggestion the witness answered that his statement that there were six bed rooms was a mistake. Mr. Mukherjee also tried to point out some discrepancies from the deposition of the plaintiff who was examined as P.W. 1 and the deposition of P. W. 2 the clerk attached to Sri A. P. Chowdhury, who was appointed Receiver in respect of premises No. 10A Jagdish Nath Roy Lane. This witness has stated that there are two bed rooms and a kitchen and a very small store room on the ground floor of the house. He has further stated that P. W. 1 occupies that portion only. Along with the evidence of these two witnesses Mr. Mukherjee referred to the report of the Commissioner for local inspection. The report is Ext. 10. In that report the Commissioner has mentioned that the plaintiff is in occupation of three rooms, one of which is used as bed room, the second one is used as bed room and also as a thakur ghar and the third one is kitchen-cum-store-cum-dining room. He has also annexed a rough sketch map with his report and has given the measurement of the rooms in occupation of the plaintiff at 10A Jagdish Nath Roy Lane. Mr, Mukherjee has contended that the report of the Pleader Commissioner is not correct inasmuch as the entire area in occupation of the plaintiff was not shown by the Pleader Commissioner. He contended that only a portion of the ground floor in occupation of the plaintiff was shown in the Pleader Commissioner's report, and therefore, no reliance should be, placed on the report and the map of the Pleader Commissioner. The Pleader Commissioner was examined as P. W. 3. It does not appear that any such suggestion was given to him in cross-examination. The only question which was asked to this witness on behalf of the defendant is that whether he noticed many persons in the house at the time of inspection or not. It is not therefore open to the appellant to challenge the report of the Pleader Commissioner on the ground on which it has been sought to bf challenged before us. The defendant who examined himself as the only witness on his side in fact admitted that the accommodation of the plaintiff in his rented house was not sufficient for him. We therefore do not see any reason to differ from the view taken by the trial court that the rented accommodation, where the plaintiff has been residing is not sufficient to meet his requirement.
5. The other aspect of this issue which is required to be proved before the plaintiff may be entitled to a decree, is whether the plaintiff is in possession of any reasonably suitable accommodation. Mr. Mukherjee argued that unless the plaintiff adduces evidence to this effect and unless the court records a finding in favour of the plaintiff it is not open to the court to grant a decree in favour of the plaintiff in view of the latter part of Clause (ff) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act. He contended that in order to be entitled to get a decree the plaintiff must not only prove that he requires the disputed premises for his own use and occupation if he it the owner, but he is also required to prove that he is not in possession of any reasonably suitable accommodation. It appears that both parties proceeded upon the footing that apart from the rented accommodation the plaintiff has no other accommodation, The suggestion put to the plaintiff in cross-examination shows that the defendant tried to establish that the entire house at premises No. 10A Jagdish Nath Roy Lane consisting of the ground floor and the first floor was in occupation of the plaintiff. Although the parties might have proceeded on that basis, it cannot be said that the court can pass a decree without recording a finding as required under the latter part of Clause (ff) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act that the plaintiff is not in possession of any reasonably suitable accommodation, which necessarily means that even apart from the present rented accommodation of the plaintiff he is not in possession of any reasonably suitable accommodation elsewhere. In fact, in the present suit no issue was framed on this point and the learned Judge has not also recorded any finding on this point. The suit must therefore go back to the trial court for a finding on this point.
6. The second point raised by Mr. Mukherjee in support of the appeal is that the suit was liable to be dismissed on the ground that the plaintiff had based his cause of action upon Ext. 7, the ejectment notice dated 13-6-70 in view of the fact that the defendant's tenancy had already been determined by an earlier notice dated 16th May, 1967. Mr. Mukherjee contended that there could not have been a waiver of the earlier notice by the second notice unilaterally by the plaintiff alone. He contended that the mere fact that the defendant continued in possession would not constitute waiver, inasmuch as, under the provisions of the West Bengal Premises Tenancy Act his client had a right to continue in possession as a statutory tenant. The continuance in possession would not therefore amount to consent on the part of the defendant either express or implied. It was argued that in the present case the contract pleaded by the plaintiff was different from the contract which existed between the parties, and if the plaintiff fails to establish the contract pleaded, his suit is liable to be dismissed. In support of this contention Mr. Mukherjee relied on the decision in Parekh Brothers v. Kartick Chandra Saha reported in : AIR1968Cal532 . In that case a suit for ejectment was filed by three persons. It was found that two of these persons were not the landlords of the defendant. It was held that the plaintiff could not succeed as the contract which was pleaded was different from the one which was proved by evidence and that the defendant did not admit any liability but he was challenging the agreement of tenancy as made out in the plaint. On these facts it was held that the suit was liable to be dismissed. Mr. Mukherjee also relied on the decision of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung reported in AIR 1922 PC 249 in support of his contention that the court could not even allow the plaintiff to amend his plaint and base the cause of action for the suit upon the earlier ejectment notice inasmuch as such amendment would change the cause of action and the subject-matter of the suit. Mr. Mukherjee accordingly contended that the trial court ought to have dismissed the suit as not maintainable. On behalf of the respondent Mr. Panja, learned Advocate, contended that before the court can come to a conclusion that the instant suit was not maintainable on the ground that the tenancy had been determined by the earlier notice, it must be established that the tenancy was in fact so determined. He contended that in the present case the defendant in his written-statement had specifically made out a case that the earlier notice dated 16-5-67 was invalid and inoperative. He pointed out that in the subsequent ejectment notice dated 13-6-70 on which the present suit has been based it was clearly stated that the defendant was a monthly tenant under the plaintiff. This fact has not been controverted and there is no cross-examination of the plaintiff on this point. The earlier ejectment notice has not also been exhibited in the present case and there is no evidence that the said notice was valid and legal. In this view of the matter it must be held that the present suit is maintainable and there is no question of waiver in the present case. Moreover, whether there has been a waiver or not depends on certain facts. In the present case those facts were not gone into and no materials were produced before the trial court to decide that question. There is also no pleading as to waiver by the defendant. The only point which appears to have been canvassed before the trial court in this connection was the validity and sufficiency of the notice to quit dated 13-6-70. In that connection the decision of the Supreme Court in the case of Calcutta Credit Corporation Ltd. v. Happy Homes (Private) Ltd. reported in Lalbhai Ramjibhai v. A. V. Seth reported in : AIR1974Cal362 is an authority on this point. The third point raised by Mr. Mukherjee thus fails.
8. In the result, this appeal succeeds in part. The decree of the trial court is set aside and the judgment is modified in the manner and to the extent indicated above. The suit is remitted to the trial court for decision on the point as to whether the plaintiff is in possession of any reasonably suitable accommodation. The other findings of the trial court Including the finding that the rented accommodation of the plaintiff at 10A Jaga-dish Nath Roy Lane is not sufficient to meet his requirement are affirmed. The trial court will allow the parties opportunity to adduce evidence on the point mentioned above and after hearing the parties record its finding on that point. If the finding on this question be in favour of the plaintiff, the trial court shall pass a decree in favour of the plaintiff. If the above question is found against the plaintiff, the trial court will dismiss the suit. There will be no order as to costs In this appeal. Further costs will be at the discretion of the trial court. Let the records be sent down expeditiously. The trial court will try to dispose of the case as expeditiously as possible.
Sudhamay Basu, J.
9. I agree.