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Kanailal Dutta Vs. Sadhan Chandra Santra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 431 of 1974
Judge
Reported inAIR1977Cal173
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1)
AppellantKanailal Dutta
RespondentSadhan Chandra Santra
Appellant AdvocateChandidas Roy Choudhury and ;Rajendra Nath Sarkar, Advs.
Respondent AdvocateBarun Kumar Roy Chowdhury, Adv.
DispositionAppeal allowed
Cases Referred(Sukumar v. Naresh Chandra) and
Excerpt:
- .....will not be sufficient, inasmuch as, the son-in-law, who is ghar jamai, is in possession of 1 room in the ground floor and therefore it is argued that the learned judge city civil court, is right in decreeing the suit. in our opinion, the son-in-law, in the facts and circumstances of the ease, cannot be treated as a member of the family of the father-in-law. it appears that the son-in-law who was married 3 years before is now working in calcutta. before the marriage, he was staying in the mess. it is stated that his village home is about 70 miles from calcutta and therefore it is inconvenient for his son-in-law to come to calcutta in order to perform the duties here, it is further stated that the plaintiff is an illiterate person and it is necessary for the son-in-law to stay with.....
Judgment:

Banerjee, J.

1. This appeal at the instance of the defendant-tenant arises out of a suit for eviction by the respondent-landlord on the ground of reasonable requirement of the premises by the landlord. The admitted case of the parties is that the plaintiff has resided himself, his two wives, two sons, the plaintiff's nephew and 4 children, two of whom live in the disputed premises Second daughter and her husband Kali Krishna Santra (Ghar Jamai) also live in the said premises. There are altogether 10 rooms, 6 in the first floor and 4 in the ground floor. Out of the 6 rooms of the first floor, 3 are bedrooms, one kitchen, one thakurghar and one kitchen-cum-store room. Out of the 4 rooms of the ground floor, 2 are bedrooms, 1 kitchen and one dining room besides a space underneath the staircase used for storing coal and fuel etc. The appellant defendant is in occupation of 1 room and 1 kitchen of the first floor of the house. The only point for consideration in this appeal is whether the decree passed by the Judge, City Civil Court, holding that the landlord requires the premises in question reasonably on the ground that the son-in-law and the daughter and the nephew are the members of the family of the plaintiff landlord is tenable.

2. Mr. Chandidas Roy Chowdhury on behalf of the appellant contended that neither the son-in-law nor the nephew can be treated as a member of the family of the plaintiff end therefore the plaintiff is not entitled to the decree. It is argued further by Mr. Roy Chowdhury that the ejectment suit being Title Suit No. 828 of 1971 was also against the brother of the appellant and the decree was passed against him. The appeal was preferred by the brother Subol Chandra Datta but the appeal has not been pressed at the hearing. Therefore it is argued that the plaintiff has already got a decree for 1 room which will be sufficient for the plaintiff's accommodation. The plaintiff, after the decree has been passed, is now in occupation of 8 rooms including kitchen and therefore his requirement should be satisfied with those 8 rooms.

3. Mr. Barun Roy Chowdhury appearing for the respondent contended that these 8 rooms will not be sufficient, inasmuch as, the son-in-law, who is Ghar Jamai, is in possession of 1 room in the ground floor and therefore it is argued that the learned Judge City Civil Court, is right in decreeing the suit. In our opinion, the son-in-law, in the facts and circumstances of the ease, cannot be treated as a member of the family of the father-in-law. It appears that the son-in-law who was married 3 years before is now working in Calcutta. Before the marriage, he was staying in the mess. It is stated that his village home is about 70 miles from Calcutta and therefore it is inconvenient for his son-in-law to come to Calcutta in order to perform the duties here, it is further stated that the plaintiff is an illiterate person and it is necessary for the son-in-law to stay with him in the same mess to help the old father-in-law. This argument has no leg to stand upon on the facts of this case. At the present moment it appears to us that the landlord has 2 sons and a nephew who admittedly stays with the uncle from his very childhood. The son of the landlord is also educated and at the present moment is studying Bachelor of Commerce Degree. The son-in-law has a house and establishment in his village home. He has father and mother who live in village home and the son-in-law of the plaintiff looks after the father and mother. In our opinion, therefore, in the facts of the present case, the son-in-law, cannot be treated as a member of the family and therefore his accommodation cannot be treated as a reasonable requirement for his own use and occupation of the plaintiff landlord.

4. We agree with Mr. Barun Roy Chowdhury that the nephew and his wife are members of the family of the landlord. It appears that the parent of the nephew died leaving the nephew under the care of the landlord uncle and since then he was brought up by him in his own house and was married. In our opinion, the nephew is a member of the family in the facts and circumstances of the case.

5. Mr. Barun Roy Chowdhury however contended that admittedly the son-in-law is in possession of 1 room, if he is not a member of the family. Butthe facts remain that the prayer cannot be taken into consideration when considering the availability of accommodation of the landlord and therefore the landlord is entitled to a decree. In our opinion, this argument is fallacious. If it is found that the landlord's accommodation is sufficient but he has himself brought in persons who are not members of the family that cannot be taken to be a ground for ejectment of the tenant. Mr. Boy Chowdhury referred to some decisions of the different High Courts including our High Court, namely, (1966) 70 Cal WN 967 (Mrs. E. Davidson v. A. Khatun); : AIR1968Cal49 (Sukumar v. Naresh Chandra) and contended that the son-in-law is a member of the family. All these decisions make it clear that on the facts of the case appearing before the Hon'ble Court it was held that a particular person is a member of the family, it has been held in paragraph 30 that the boundaries of the family depend on particular facts of each case and the structure and outlook of each family. In our opinion, in the facts and circumstances of this case, the son-in-law, cannot be treated as a member of the family of the landlord.

6. In the result, the appeal must, therefore, be allowed and the suit must stand dismissed. There will be no order as to costs.

R.K. Sharma, J.

7. I agree.


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