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Haralal Das and anr. Vs. Pasupati Charan Biswas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 59 of 1953
Judge
Reported inAIR1955Cal226,58CWN696
ActsTransfer of Property Act, 1882 - Sections 106, 110 and 111; ;West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 12(1) and 13(2); ;Code of Civil Procedure (CPC) , 1908 - Section 100; ;Evidence Act, 1872 - Section 134
AppellantHaralal Das and anr.
RespondentPasupati Charan Biswas and ors.
Appellant AdvocateA.D. Mukherji and ;Gopal Ch. Narayan Choudhury, Advs.
Respondent AdvocatePurushottam Chatterji and ;Rameswar Saha, Advs.
DispositionAppeal dismissed
Cases ReferredMorrison v. Jacobs
Excerpt:
- .....on 15-12-1950, the defendant no. 1 sent a reply to the lessor stating that he had sub-let the premises to defendants nos. 2, 3 and 4 and that the lessor was at liberty to take possession subject to the sub-lease granted to the aforesaid defendants. thereafter on 16-1-1951, the lessor instituted the present suit for ejectment against defendants nos. 1 to 4 alleging that he reasonably required the premises for his own occupation.the case made in the plaint is that on account of communal disturbances the plaintiff with his family left the premises in dispute and went to reside in the house of his brother-in-law at sikdar-bagan street; that the accommodation in his brother-in-law's house was insufficient and that his brother-in-law was no longer willing to accommodate the plaintiff......
Judgment:

Lahiri, J.

1. This appeal is directed against a decree for ejectment from the first and second floors of premises No. 91/1A, Baithak Khana Road, against defendants Nos. 2 and 3 who are in occupation of the aforesaid portions as sub-tenants under defendant No. 1. It appears that by an indenture (Ex. 4.) the plaintiff let out the whole of premises No. 91/1A, Baithak Khana Road to defendant No. 1 (Manoranjan Majumdar) on 1-1-1948 for a term of three years expiring with the end of December 1950. In the lease there was a provision for renewal at the option of the lessee subject to the condition that the lessor did not require the premises for his own use and occupation.

On 30-11-1950, the lessor served a notice upon the lessee, defendant No. 1, requiring him to vacate, on the expiry of the lease, that is, by the end of December 1950, as the lessor required the premises for his own use and occupation. On 15-12-1950, the defendant No. 1 sent a reply to the lessor stating that he had sub-let the premises to defendants Nos. 2, 3 and 4 and that the lessor was at liberty to take possession subject to the sub-lease granted to the aforesaid defendants. Thereafter on 16-1-1951, the lessor instituted the present suit for ejectment against defendants Nos. 1 to 4 alleging that he reasonably required the premises for his own occupation.

The case made in the plaint is that on account of communal disturbances the plaintiff with his family left the premises in dispute and went to reside in the house of his brother-in-law at Sikdar-bagan Street; that the accommodation in his brother-in-law's house was insufficient and that his brother-in-law was no longer willing to accommodate the plaintiff. Defendant No. 1 did not contest the suit but the defendants Nos. 2 to 4 contested it inter alia on the ground that the story of reasonable requirement was false; that defendants Nos. 2 to 4 had become tenants under the plaintiff on the determination of the lease in favour of defendant No. 1 by surrender and therefore the suit was not maintainable without the service of a notice to quit upon them and that though the lease was in favour of defendant No. 1 alone defendants Nos. 2 to 4 were in reality joint lessees and as such co-tenants with defendant No. 1 and accordingly a notice to quit was required to be served upon them as well.

2. The trial court overruled the defence and granted a partial decree for ejectment against defendants Nos. 2 and 3 alone upon the view that the portions occupied by them would satisfy the requirement of the plaintiff and dismissed the suit against defendant No. 4 who is occupying the ground floor of the premises in dispute. The decree against defendants Nos. 2 and 3 having been affirmed on appeal they have brought thissecond appeal. The trial court found upon the evidence on record that the defendants Nos. 2 and 3 were not co-tenants with defenaant No, 1 and that finding has not been, challenged by them.

3. Mr. Mukherji, appearing in support of the appeal, has arguea in the first place that the notice to quit served upon the defendant No. 1 is bad in law inasmuch as under Section 110, T. P. Act the date on which the lease, Ex. 4, was to commence should be excluded and the lease should be aeemed to have lasted during the whole anniversary of the day from which the period of three years commenced. Therefore, the notice served by the plaintiff requiring the defendant No. 1 to quit and vacate by the end of December 1950 was not sufficient in law, to determine the tenancy because the tenancy subsisted till the midnight of 1-1-1951, under the provisions of Section 110, T. P. Act.Reliance was placed on the decision of the Judicial Committee in the case of -- 'Benoy Krishna Das v. Salsiccioni . It appears to us that this contention is entirely untenable because in this case the dates of commencement and expiry are both mentioned in the lease Ex. 4. The first para, of the lease is as follows:

'The period of the lease shall be three yearscommencing from January 1948 upto the lastday of December 1950.'

The second paragraph of Section 110, T. P. Act comes into operation when the date of termination is not mentioned in the lease. Where, as here, the date, of expiry is specified in the contract between the lessor and the lessee neither Section 10 nor the principle of the decision in 'Benoy Krishna's case (A)' will apply. The first point is accordingly overruled.

4. The second point raised on behalf of the appellants is that the tenancy of defendant No. 1 having been lawfully determined otherwise than by virtue of a decree in a suit on any of the grounds specified in clause (h) of the proviso' to Section 12(1), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the sub-tenants became statutory tenants under the plaintiff under Section 13(2) of the said Act and as such their tenancy should have been terminated by the plaintiff by the service of a notice to quit before the institution of the suit and inasmuch as the plaintiff omitted to do that the suit is not maintainable.

It is urged that the tenancy of defendant No. 1 was determined by efflux of time under Section 111(a), T. P. Act on 1-1-1951 and from that date defendants Nos. 2 and 3 acquired a statutory right of tenancy under the plaintiff and the plaintiff was required to determine this tenancy before he acquired the. right to get khas possession. This argument overlooks the fact that under the first paragraph of Section 12, West Bengal Premises Rent Control (Temporary provisions) Act, 1950, a tenant whose lease has expired is protected from eviction except on certain grounds enumerated in Clauses (a) to (1) of the proviso to Sub-section (1):

Therefore, in spite of the determination of defendant No. 1's tenancy by efflux of time under Section 111(a), T. P. Act it continued under Section 12(1), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, till the protection was withdrawn on any of the grounds mentioned in Clauses (a) to (i) of the proviso to Sub-section (1) of Section 12. To hold that a sub-tenant is elevated to the position of a tenant as soon as the tenancy is determined under Section 111, T. P. Act will be equivalent to allowing the sub-tenant to usurp the status of a tenant even at a time when the original tenant continued to be a tenant under Section 12(1) of the Rent Control Act. This is an absurd result which cannot be attributed to the Legislature.

The expression 'lawfully determined' in Section 13(2) of the Rent Control Act therefore means the determination of the contractual tenancy under Section 111, T. P. Act as well as the withdrawal of the statutory protection afforded by Section 12(1) of the Act. Both these elements must be present in order to constitute lawful determination of a tenancy within the meaning of Section 13(2), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. I have akeady said that the proviso to Sub-section (1) of Section 12 of the Rent Control Act specifies various grounds upon which a tenant may lose his immunity from eviction as Conferred by the first paragraph of that section. Two of such grounds are that the landlord requires the premises for his own occupation and that he requires the premises for building or rebuilding. Both these grounds are embodied in clause (h) of the proviso to Sub-section (1) of Section 12.

Reading the different clauses of the proviso to Section 12(1) and Section 13(2) together, it seems to us that the intention of the Legislature was that the landlord would be entitled to evict the sub-tenants in a case which comes under Section 12(1) (h) but the sub-tenants should be promoted to the category of tenants in cases which fall under the other clauses of that section. We accordingly hold that the true meaning of the words used in Section 13(2) is that the sub-tenant will acquire the status of a tenant under the landlord only in those cases where the tenant loses his immunity from eviction on any ground other than those embodied in clause (h) of the proviso to Section 12(1) but that the sub-tenant will not acquire that status but will be liable to be evicted when the landlord requires the premises for his own occupation or for the purpose of building or re-building. Mr. Mukherji has suggested that this construction will not remove all the anomalies because under the proviso to clause (h) of Section 12(1) the sub-tenants will have to be impleaded in the suit but under the explanation to clause (h) the Court will not be entitled to have regard to the comparative advantage or disadvantage of the landlord and of the sub-tenant. It appears to us that under the proviso to clause (h) of Section 12(1), the sub-tenants are required to be made parties to the suit for the purpose of allowing them an ''opportunity of contesting the claim to decree for ejectment' when the landlord alleges that he reasonably requires the premises for his own use and occupation or for the purpose of building or re-building.

In the explanation to clause (h) it is provided that in determining the reasonableness of the requirement, the Court shall have regard to the comparative advantage or disadvantage of the landlord and of the tenant. The combined effectof the Proviso to clause (h) and the explanation is that although the subtenants are required to be impleaded in the suit and although they are allowed the right of contesting the landlord's claim for ejectment on the ground of reasonable requirement, the Court will not consider the question of relative advantage or disadvantage in determining the reasonableness to the requirement as between a landlord and sub-tenant. This result is somewhat anomalous but still it follows from the plain words used in the statute.

It appears to us that the Legislature was making a distinction between the rights of a tenant and a sub-tenant when they were contesting the landlord's claim for eviction on the allegation of reasonable requirement. In considering the tenant's objection to the plea of reasonable requirement, the court is required to consider the question of relative advantage and disadvantage of the landlord and the tenant but when the claim is resisted by the sub-tenant the court is only to see whether the landlord reasonably requires the premises without having any regard to the comparative advantage or disadvantage of the sub-tenant. It may be that this discrimination between the rights of tenants and sub-tenants is somewhat unjust or Inequitable but we cannot for that reason disregard the plain words of the statute. The second point, therefore, urged by Mr. Mukherji in support of the appeal, fails.

5. The last point argued is that upon the facts admitted and found, the plaintiff has not been able to make out a case of reasonable requirement. It is argued that in order to succeed in a suit of this description the plaintiff must prove that circumstances have changed since the letting of the premises and the institution of the suit. The findings arrived at on this point by the Court below are that the plaintiff removed to his brother-in-law's house in 1946 on account of communal riots and that in that house the plaintiff is in the occupation of only three rooms which are not sufficient to accommodate the plaintiff's family consisting of 13 members. The plaintiff has further said in his evidence that his brother-in-law is not willing to accommodate the plaintiff any longer.

Mr. Mukherji argues that the evidence adduced by the plaintiff is very scanty and that he has not examined anybody besides himself to prove his case. He further argues that at any rate the plaintiffs brother-in-law should have been examined by the plaintiff in order to prove that he was no longer willing to accommodate the plaintiff's family in his house. It is true that the evidence adduced by the plaintiffs is meagre but the paucity of evidence on a particular point is not a sufficient ground for our interference in a second appeal. A single witness, if believed, is sufficient to prove the facts alleged by the plaintiff.

In the present case, the Courts below have chosen to believe the plaintiff and we cannot say that there is any error of law involved in the acceptance of the plaintiff's evidence. Moreover, having regard to the probabilities of the case, it seems to us that a brother-in-law of a person cannot be expected to allow his brother-in-law toremain in his house for ever. We therefore believe the statement made by the plaintiff to the effect that his brother-in-law was no longer willing to accommodate the plaintiff's family in his house. The change of circumstances between the date of letting out the premises and the date of institution of the suit has therefore been proved by the plaintiff.

6. The trial Court has taken into account the number of members of the plaintiff's family and the accommodation available in the disputed house and after consideration of all the circumstances has granted a partial decree for eviction upon the view that the accommodation in the first and second floors of the premises in dispute would be sufficient for the plaintiff's requirement. We are unable to hold that there is any error of law involved in the findings arrived at by the Courts below. The third point raised by the appellant also fails.

7. The appeal is accordingly dismissed with costs.

8. Mr. Mukherji has asked for some time to enable his clients to vacate the premises on the ground, that they are displaced persons and will require some time to find out suitable accommodation. We are told that defendant No. 2, Haralal Das, has already left the house but defendant No. 3 is in occupation of the entire first floor. We are prepared to grant four months' time from this date to the defendant No. 3 to vacate the first floor provided he deposits in the trial Court to the credit of the plaintiff respondent a sum of Rs. 90/- from month to month within the 15th of the following month as damages for use and occupation during the period of his stay. The plaintiff respondent will be entitled to withdraw the amount if so deposited by defendant No. 3 without any prejudice to his rights in this suit. If, however, there is default in any month, the plaintiff will have the right to execute the decree immediately.

9. Mr. Gopal Chandra Narayan Choudhury, appearing for the appellants, has supplemented the argument advanced by his leader. His argument is that the statutory tenancy of defendant No. 1 was required to be determined by service of notice under Section 106, T. P. Act but in view of the decision of the Federal Court in the case of -- 'Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirijibhoy Warden AIR 1949 PC 124 at p. 128 (B) and the decision of the English Court in the case of -- 'Morrison v. Jacobs', (1945) 1 K. B. 577 at p. 581 (C), we hold that no notice was required to be served by the plaintiff and that the statutory tenancy under Section 12(1), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, would come to an end only under one of the different clauses in the proviso of Sub-section (1) and not otherwise.

Guha, J.

10. I agree.


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