Salil Kumar Datta, J.
1. This rule was obtained by the landlord the petitioner in this Court on an application under Article 227 of the Constitution against an order dated May, 31, 1973 passed by the Chief Judge, Small Causes Court, Calcutta as the appellate authority under the Calcutta Thika Tenancy Act, 1949 in T. T. Appeal No. 1 of 1971. The facts are that the landlord on March 4, 1970 initiated proceedings for ejectment of the thika tenants the opposite parties before us under Section 5 of the Act in respect of a plot of land being portion of premises No. 39-B, Creek Row, Calcutta, on service of due notice as required under Section 4. The ground for ejectment was that the landlord, who had no other house or any other land in the city, required the said land for construction of his residential house as he was shortly going to retire from Government service and intended to reside therein with his family near his relatives and in a quiet surrounding in view of his heart disease and also for education of his children. The proceeding was registered as T. T. Case No. 2 of 1970 before the learned Judge Third Bench, Small Causes Court, Calcutta as the Thika Controller and was contested by the opposite parties. On a trial on evidence the learned Judge held that the notice was valid, legal and sufficient and was duly served. It was also found that the landlord did not own any house in Calcutta so that provisions of Sub-section (2) of Section 3 were not applicable. It was further found that the landlord bona fide required the disputed land for his own occupation to build his residential house thereon. The Controller further found that the tenants did not signify their consent to eviction from a part of the holding and from Ext. 9 a letter from the Corporation, and from plans it was clear that the appellant's requirement could not be substantially satisfied by ejecting the tenants from a part of the holding or that the proposed building could be constructed without dismantling the existing constructions of the tenants. The application of the landlord was accordingly allowed by order dated December 19, 1970 and the landlord was made entitled to recover possession on payment of compensation as would be agreed or determined by the Controller.
2. The tenants preferred an appeal therefrom which was dismissed by the Chief Judge as the appellate authority by order dated August 30, 1971 and the judgment and order of the Controller was affirmed.
3. Against the appellate order the tenants moved this Court under Article 227 of the Constitution and obtained a rule being C. R. No. 3197 of 1971 which was made absolute on June 7, 1972 to the extent indicated in the judgment. It was held that the notice of the ejectment was valid, legal and sufficient and was duly served. It was also held that the landlord's requirement for own occupation could be secured by building on the land and discontinuing letting out to thika tenants. In view, however, of the allegation that after the death of his father who had a residential house at Calcutta, there was a change of circumstances disentitling the landlord the relief prayed in this proceeding, the Court felt that the question should be decided by the appellate authority in the light of the provisions in the Will left by the father. As to the question of partial eviction, the Court found that the appellate authority did not consider the matter at all and this was also to be considered by the said authority as the question of own use and occupation depends on the decision on partial eviction. The Court set aside the judgment and order of the appellate authority with following directions:
'The matter is now remitted back to the appellate authority which will give opportunities to the parties to adduce proper evidence only to prove the will and then proceed to decide the two points as discussed above on the evidence and materials on record and also additional evidence that may be given as indicated and dispose of die appeal in accordance with law and in the light of the observations made above,'
4. After remand the appellate authority allowed the landlord to adduce evidence in regard to the Will while on the prayer of the tenants a commission was issued for measurement of the land comprised in the disputed holding and for locating the position of the proposed building and the existing structures. The evidence thus adduced was accepted as additional evidence and the matters in controversy were considered on the materials on record together with the additional evidence as aforementioned. The appellate authority found that by the Will the testator gave no portion of his residential house to the landlord petitioner who had thus no other house in Calcutta and accordingly Sub-section (2) of Section 3 had no application. The authority further held that the failure of the tenants to signify their consent to partial eviction before the Controller is not a bar to the plea of partial eviction taken before the appellate authority which can examine if the requirement of the landlord is substantially satisfied by such partial ejectment. On a consideration of the Commissioner's report the authority found that total area in occupation of the thika tenants was 5290 sq. ft. while the area required for the building would be 2664 sq. ft. The Landlord contended that some open land should be given to him for making a garden. The authority rejected the claim holding that the requirement of land for garden was not an essential requirement especially in Central Calcutta. It was found that 2800 sq. ft. would substantially meet the requirement of the landlord and the portion on the west of disputed holding which is contiguous, to the residential house of the father should be given to the landlord for construction of his residential building, firstly because the desire of the landlord to build his house close to his father's house is not unreasonable and secondly it would be inconvenient if eastern portion is allotted to the landlord as the north-eastern shed is in possession of the thika 'tenants as premises tenants. Accordingly by order dated May 31, 1975 the appellate authority allowed the appeal in part, and an order of partial ejectment of the thika tenants was passed in respect of a demarcated area measuring 2800 sq. ft. on the western portion of the disputed holding with consequent directions.
5. The propriety of this order has been challenged by the landlord in this rule.
6. Mr. Noni Coomar Chakravarti and following him Mr. Rathindra Natb Bhattacharyya learned Advocates for the landlord petitioner contended that under the provisions of the Calcutta Thika Tenancy Act, 1949, the Controller as the persona designata is the only authority conferred with powers to determine the controversy relating to partial eviction and such determination by the Controller cannot be reopened by the appellate authority at the hearing of the appeal. Reliance was placed on the decision in Mamata Ghosh v. Charu Chandra Mondal, (1956) 60 Cal WN 1032 in which it was held that the appellate authority under the Act is not a Court under the Code of Civil Procedure but has only such powers as are con-ferred upon it by the Act and the Rules framed thereunder and such authority has no power of remand as is available under the Code to an appellate Court. It was accordingly submitted that the impugned order whereby the question of partial eviction was reopened is not sustainable in law.
7. There can be no dispute over the proposition that the appeal is a creature of statute and the appellate tribunal can exercise such powers as may be conferred by such statute. Sub-section (4) of Section 27 of the Act provides the powers of such appellate authority which are as follows:
27 (4) 'The Chief Judge (of the Court of Small Causes of Calcutta) or the District Judge or any persoa appointed under Subsection (2) to whom an appeal is transferred under sub-section (3) (being the appellate authorities), as the case may be, shall then send for the record of the case from the Controller and after perusing the record ami, if necessary, taking such evidence himself or personally making such further inquiries as he thinks fit, shall make an order deciding the appeal after giving the parties an opportunity of being heard.'
(words underlined ours).
The above provisions clearly indicate that the appellate authority has been conferred practically all the powers as have been conferred on the Controller. In addition he has been invested with powers to decide the case not only on the evidence on record but taking such evidence himself or personally making such further inquiries as he thinks fit. The appellate authority is required thereupon to decide the appeal which includes all the powers of the Controller including power to allow or dismiss an application for ejectment of the thika tenant under and subject to the provisions of the Act whether in affirmance or on reversal of the order of the Controller.
8. The hearing before the appellate authority under the Act is thus in the nature of re-hearing of the application on evidence on record or on such additional evidence as may be taken or on such personal inquiry as may be made by the appellate authority for ends of justice as may be considered fit by him. It was so held in Paran Chandra v. Haripriya, (1958) 62 Cal WN 518 in which this Court was considering the extent of powers of the appellate authority under the Act. The contention on behalf of the landlord petitioner that the appellate authority had no power to reconsider the question of partial eviction afresh is accordingly rejected.
9. Mr. Chakravarti next contends that the appellate authority under the order of remand passed by this Court was required to decide the case on materials on record and he was not entitled to take any additional evidence on the question of partial eviction. The appellate authority on remand took evidence of a Commissioner who made inspection of the disputed holding and submitted his report with plan (Exts. C and D) and they were also considered by the appellate authority in deciding the appeal. The Commissioner as also a civil engineer who were examined by the tenants aad were also cross-examined on behalf of the landlord.
10. In the order of remand, this Court observed that the appellate authority whose judgment was under consideration, had not considered the question of partial eviction and did not apply its mind to this aspect of the matter. Accordingly the Court required that the point should be considered by the appellate authority as in its view the question of own use and occupation would abide by the result of the decision on partial eviction. Mr. P. N. Mitra learned Advocate appearing for the tenants opposite parties contended that the appellate authority was required, under the said order, to take additional evidence on the question of partial eviction. Though there appears to be no express words in regard to taking evidence on partial eviction in the said order, there is also no express or implied prohibition agair,st taking additional evidence. This Court further directed that the appellate authority was to decide the question of partial eviction which with the Will were the two points referred in the said order for its decision and 'to dispose of the appeal in accordance with law and in the light of the observations made above.' On an overall consideration of the said judgment it appears to me that the appellate authority was directed to consider the question of partial eviction afresh and for the purpose the said authority was entitled under powers conferred on him by statute to take additional evidence which was thought fit and necessary for the purpose of decision of the question in controversy viz. whether the requirement of the landlord could be substantially satisfied by a partial eviction of the tenants. Accordingly I do not think that there was any legal impediment on the appellate authority to take and consider additional evidence.
11. Mr. Bhattacharjee further submitted that as the tenants did not consent to partial eviction at the time of trial, they could not ask for partial eviction before the appellate court for the first time. This contention was disputed by Mr. Mitra who rightly submitted that the question of partial eviction would arise only after the Controller or the appellate authority has determined that the landlord requires the land for his own occupation and has also determined the extent of such requirement. The position in law appears to be that only on determination that the landlord's requirement has been established and the same may be substantially satisfied by ejecting the thika tenant from a part of the holding and the tenant may be lallowed to continue in occupation of the rest, the tenant is required to give his consent that he agrees to such occupation on a proportionate rent as may be determined. Till such determination of requirement and its extent is made, no occasion arises for the tenant to give his consent and the Controller committed an error of procedure in thinking that the tenants did not give consent to partial eviction when he did not arrive at the necessary determination as to the landlord's requirement and its substantial satisfaction by partial eviction which only would afford the tenant an occasion to consent to his occupation of the remaining portion of the land.
12. Mr. Chakravarti lastly submitted that the appellate authority committed an error in law in rejecting the landlord's claim for total eviction of the tenants, disallowing him of his right as owner of the holding to construct his building in such portion of the land as he might choose and to maintain an open land or garden on the eastern portion thereof. The appellate authority in directing the landlord to construct his building on the western portion of the land was certainly interfering with the landlord's right to hold and enjoy his property. But the Calcutta Thika Tenancy Act was itself enacted, in place of the Ordinance, against arbitrary eviction and enhancement of rent and for making better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta. Under Sub-section (1) of Section 3 of the Act the grounds for eviction of a thika tenant have been provided and one of grounds is that the land is required by the landlord for his own occupation. This is subject to conditions, the first condition under Sub-section (2) is that the landlord shall not be deemed to require the land in the thika tenant's holding for his occupation if he is in occupation of a house of his' own in Calcutta, and the accommodation therein is considered by the Controller as reasonably sufficient for himself and his family. The second condition under Sub-section (3) is that if the landlord's requirement for own occupation is substantially satisfied by ejecting the thika tenant from a part only of his holding allowing the tenant to continue in possession of the rest and the tenant agrees to such occupation, an order for partial eviction accordingly is to be made by the Controller. Sub-section (4) provides for another restriction in respect of a pucca structure built by a thika tenant with which we are not concerned for the present. These restrictions are undoubtedly fetters on the owner in the enjoyment of his property but in the context of present circumstances these restrictions are inevitable and must be considered as reasonable restrictions in interests of general public on the exercise of right of ownership of property and the same has not been disputed.
13. Accordingly the view taken by the appellate authority that requirement of land for garden purpose is 'not an essential requirement, especially in Central Calcutta' is neither unreasonable nor untenable in the context of the existing circumstances. Further, the finding that 2800 sq. ft. which is little more than the land required for the building, out of 5290 sq. ft. of the holding, will substantially meet the requirement of the landlord appears to be unassailable and there is no cogent ground for challenging or interfering with the decision. Further the decision of the appellate authority directing the landlord to build the house on the western part of the land, keeping the eastern part in occupation of the thika tenant also seems to be perfectly reasonable and in fact it appears to be borne out by the plan Ext. 1 prepared by the landlord. Mr. Bhattacharjee's contention that the building plan will not be sanctioned by the Corporation unless all existing structures including those on the eastern portion are demolished is not supported by Ext. 9 nor has it been proved to be so.
14. For all these reasons I think that there is no scope for interfering with the judgment impugned in this Rule which accordingly must be and is discharged. There will be no order for costs in the circumstances.
15. Let the records be sent down at once.