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Sm. Parimal Bala Roy and ors. Vs. Santosh Kumar Bhattacharya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 114 of 1981
Judge
Reported inAIR1984Cal205,88CWN510
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1)
AppellantSm. Parimal Bala Roy and ors.
RespondentSantosh Kumar Bhattacharya
Appellant AdvocateBarun Kumar Roychowdhury, Adv.
Respondent AdvocateSusanta Chatterjee, Adv.
DispositionAppeal dismissed
Cases ReferredIn Chiranjilal Agarwalla v. Bandhuram Panwala
Excerpt:
- .....indeed require one room for herself.6. mr. barun kumar roy chowdhury submitted that a married daughter's requirement is not reasonable requirement within the meaning of section 13 (1) (ff) of act xii of 1956 and in support of the proposition he cited the division bench decision reported in 0043/1977 : air1977cal173 , kanailal dutta v. sadhan chandra santra. his contention had been that in the said case it was decided that the son-in-law's requirement could not be taken into consideration for the purpose of assessing the bona fide requirement within the meaning of section 13 (1) (ff) of the west bengal premises tenancy act inasmuch as the son-in-law was not treated as a member of the family of the father-in-law. we are of the view that the said decision does not apply in the facts of.....
Judgment:

M.G. Mukherji. J.

1. The tenant defendants are the appellants before us impugning the decree for recovery of khas possession in favour of the plaintiff landlord respondent in respect of the premises No. 3B, Girish Vidyaratna Lane, P. S. Amherst Street, Calcutta-9, on the ground of reasonable requirement for the use and occupation of the landlord and his family.

2. The case as made out by the plaintiff landlord respondent in the Court below was that be became the owner of the premises No. 3B. Girish Vidyaratna Lane by virtue of his puurhase from his cousin Hrishikesh Bhattacherjee on the 25th Nov., 1970. After his purchase he duly sent a letter of attorn-ment on the defendants who paid rent to him in respect of the suit premises at the late of Rs. 65/- per' month payable according to English Calendar. The plaintiff was living with his family members at premises No. 3B, Girish Vidyatatna Lane which is adjacent to the suit premises, but the accommodation there was absolutely insufficient for him as well as the members of his family. By a notice dated 24th July, 1974 duly served on the defendants through his Solicitor. Shri Sunil Kumar. Mitra, the tenancy stood determined and he asked them to vacate and give up peaceful vacant possession of the suit premises on the expiry of the month of Sept.. 1974. On the 12th Oct., 1974 he filed Ejectment Suit No. 1256 of 1974 against the tenant defendants wherein he claimed the the existing, accommodation at 3B. Girish Vidyarahia Lane was insufficient for him and that he required one bedroom for him and for his wife, one bedroom for his mother and daughter, one bedroom for his younger brother and his wife, one-drawingroom. one storeroom, two kitchens (one for vegetarian and other for non-vegetarian and one studyroom for his daughter who was then a student reading in Class X and was to appear at the School Final Examination in 1975. During the pendency at the suit the plaintiff's wife died and his daughter was married off. In course of deposition made at the trial the plaintiff deposed inter alia to the effect that be was act Office Superintendent of M/s. Electrical . and was putting up in three rooms in the ground and first floor's and an asbestos room on the second floor of premises No. 3B. Girish Vidyaratna Lane. His only daughter was a student of B. A. Class. The said daughter lived with his son-in-law in a tenanted house at Dum Dum and she came and stayed with him for two days in a week i.e. on Saturdays and Sundays.

3. The defendants contested the suit con-tending inter alia that the notice of ejectment was not legal, valid and sufficient and that the suit premises was not reasonably required by the plaintiff for the use and occupation of his and his family members and that the accommodation available to him at premises No. 3B, Girish Vidyaratna Lane where he lived with his mother, younger brother and younger brother's wife was not insufficient for him. The vendor of the plaintiff Harishikesh Bhattacharjee filed un-successfully two suits against the defendants and hence a novel design was hatched up in collusion with the plaintiff to make out a sham document of transfer for further attempt to evict them.

4. The learned Judge, 10th Bench, City Civil Court, Calcutta found that the notice was duly served upon the defendants and the same was legal, valid and sufficient. As regards the question of the plaintiff's reasonable requirement for himself and the members of his family, the learned trial Judge found the same to be real, bona fide and reasonable. As regards married daughter Arunima, the learned trial Judge held inter alia that since she happened to be the only surviving child of the plaintiff, considering the circumstances of the plaintiff who was a widower himself, the story of the said daughter Arunima coming to his house and staying two days in a week was genuine. Despite no specific requirement for the whole time maid servant being made out in the plaint, in view of both the parties having adduced evidence in that regard, the learned trial Judge held that the plaintiff had one maid servant who was a whole time one, staying in the plaintiff's house and the requirement of a room for her could be taken into account. As regards the allegations made by the defendants that the deed of conveyance in favour of the plaintiff in respect of the suit premises was an outoome of collusion with his cousin Hrishikesh Bhattacharjee after the latter's unsuccessful efforts in evicting the defendants in two previous suits, barring the fact that a very low price was given out in the Deed of Indenture Ext. 2, the defendants could not assail the same in any manner whatsoever and he discarded the said contention as unsustainable in law and on facts.

5. Mr. Barun Kumar Roy Chowdhury, learned Advocate appearing on behalf of the tenant defendants appellants urged before us that the plaintiff did not require any accommodation for his married daughter Aruuima, inasmuch as, she was staying with her husband at Dum Dum, The case made out by the plaintiff that the daughter Arunima goes to stay with her father and grandmother on Saturdays and Sundays would be an incredible one. We have before us the evidence that the son-in-law Saurendra Bhattacharjee was a inhabitant of Majipur near about Joynagar in the District of 24-Parganas and the said son-in-law lived in a tenanted house at Dum Dum. It is not at all unlikely that the son-in-law could go over to his family house at Majipur on Saturdays and Sundays leaving the daughter (i.e. his wife) in the custody of her father and grandmother. That apart, Arunima being the only child of the plaintiff, it is nothing unnatural or improbable that she might come and stay with her father and grandmother on different occasions and for that she would indeed require one room for herself.

6. Mr. Barun Kumar Roy Chowdhury submitted that a married daughter's requirement is not reasonable requirement within the meaning of Section 13 (1) (ff) of Act XII of 1956 and in support of the proposition he cited the Division Bench decision reported in 0043/1977 : AIR1977Cal173 , Kanailal Dutta v. Sadhan Chandra Santra. His contention had been that in the said case it was decided that the son-in-law's requirement could not be taken into consideration for the purpose of assessing the bona fide requirement within the meaning of Section 13 (1) (ff) of the West Bengal Premises Tenancy Act inasmuch as the son-in-law was not treated as a member of the family of the father-in-law. We are of the view that the said decision does not apply in the facts of the present case inasmuch as here the landlord's claim of a room for the purpose of accommodating his only child, a married daughter, who comes and stays with her father (i. e. the plaintiff) and her grand mother is a question at issue. It is settled law that question of reasonable requirement is primarily a question of fact. Each case has to be decided on its own facts and the said decision would not be applicable in the present case and We hold that on facts, the said case is quite distinguishable.

7. The statute nowhere uses the expression 'family'. The requirement for the purpose of evicting a tenant is for the landlord's 'own occupation'. Time and again the different High Courts held that the concept of a family must be given a wider meaning. In (1955) 59 Cal WN 989, Anil v. Niranjan apart from requirement of a widowed sister, a son who is a resident student of Shibpur College visiting his parents during weekend, was taken into consideration in judging the landlord's own requirement. The Supreme Court while deciding a case under the Madras Act (XXV of 1955) in S.N. Sundalaimuthu v. Palani Yandavan reported in : [1966]1SCR450 interpreted the landlord's own requirement very liberally where it went so far as to hold that a son-in-law could also be regarded as a member of the family. Gujarat High Court in the cue of Mohanlal v. Smt. Punjiben reported in 1976 Ren CJ 326 followed the Supreme Court decision so as to hold that a person could also be properly regarded as being a member of his wife's family and not merely of his father's family. In the decision of Moham-mad Illiyas v. Syed Ali Nawab, reported in AIR 1979 NOC 194, the Lucknow Bench of the Allahabad High Court held that in overall assessment of the landlord's need, the fact that married daughter stayed with him might also be considered. Delhi High Court in the case of Ram Prakash Saroj v. Mohin-dar Singh, reported in AIR 1982 NOC 50, interpreted the expression 'resilience for himself and held inter alia that it could not mean or imply the residence for the landlord 'living in isolation'. In the said case it was held inter alia that the requirement of a daughter-in-law or a married daughter who visits the landlord could be legally taken into consideration since he was to provide ac-commodalion for them. In Chiranjilal Agarwalla v. Bandhuram Panwala, ILR (1966) 1 Cal 673 decided by P. N. Mookerjee, J. : the requirement for a sister who was not a member or a dependent on the brother but was a regular visitor with her husband and children to her brother's family was not taken into consideration for assessing the plaintiff's reasonable requirement. We hold that there is a considerable difference between a married sister and the only married daughter who is eventually the only child of the plaintiff landlord's family, since it is not accepted as a proposition that the plaintiff as a father could never have the daughter or the son-in-law with him or the grandmother would be deprived of the company of her only grand child (the other brother of the plaintiff living with him having no child at all). Hence in the facts and circumstances of the present case, we hold that the requirement of the plaintiff landlord is bona fide and is not made out for an oblique motive to evict a tenant and could validly be reckoned for the purpose of his own use and occupation within the meaning of Section 13 (1) (ff) of the W. B. P. T. Act.

8. There are three living rooms in premises No. 3B, Girish Vidyaratna Lane, one measuring 10' 3' x 9' 5' on the ground floor, another room measuring 10' 3' X 16' on the first floor, and another room measuring lift. 64' X 7' on the second floor. In premises No. 3B, Girish Vidyaratna Lane which the plaintiff is now occupying with his brother, they have altogether four rooms including one with asbestos sheet roof on the second floor. The room on the ground floor measures 9' 1' x 8' 6'. In the first floor, one room measures 9' 3' X 8' 7' and another room measures 15' 1 1/2' X 6' 9' which is on the second floor. If one room is left for the use and occupation of the plaintiff's brother and his wife, one for the plaintiff himself as his bedroom, one for his mother, one for the maid servant, one on the ground floor to be used for the plaintiff's own work and also for the purpose of user as a parlour-cum-silling room and one is kept for his daughter and, son-in-law wlien they do come and stay in the plaintiff's house, we find that a case of reasonable requirement is indeed made out by the plaintiff. Regard being had to Ihe composition of his family and his existing accommodation in premises No. 3A, Girish Vidyaratna Lane and the fact that the two houses viz. premises Nos. 3A and 3B, Girish Vidyaratna Lane are adjacent to each other, there having been infer-communicating doors in between the two premises, even if the brother's wife stays in premises No. 3A, Girish Vidyaratna Lane, she can very well attend to her old mother-in-law at premises No. 3B, Girish Vidyaratna Lane. The maid servant can also come and attend her in like manner. In the circumstances we find no other alternative but to hold that the plaintiff had made out a case for insufficiency of his existing accommodation at 3A, Girish Vidyaratna Lane and his bona fide requirement of premises No. 3B, Girish Vidyaratna Lane for hit own use and occupation and for the use and occupation of the members of his family.

9. We have taken into consideration the fact that the defendants constitute a large family consisting of a widow mother, seven brothers and five sisters. Mr. Roy Chowdhury candidly submits that the defendants entire family could not be allowed to be split up by agreeing to a case of partial eviction.

10. We are conscious of the fact that the defendants are in the suit premises for a very long time and they require some reasonable time to find out a suitable accommodation for them elsewhere. We therefore grant defendants appellants time till May 1984 at the first instance, which would be extended till July 1985 provided they give an undertaking jointly before this Hon'ble Court to deliver peaceful vacant possession of the suit premises with the expiry of July 1985 and to continue depositing before the trial Court towards mesne profits a sum of Rs. 65/- per month according to English Calendar by the 15th day of every month, the first of such deposits to be made by the15th Mar., 1984. It is made clear that thisdeposit @ Rs. 65/- per month would notconfer on the defendants appellants anyright or interest as tenants or licensees. Indefault of payment of any such amount atthe rate of Rs. 65/- per month as stipulatedabove, the decree for recovery of khas possessionwould be exectable at once.

11. The appeal is accordingly dismissed without any order as to costs.

Chittatosh Mookerjee, J.

12. I agree.


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