HIMANSHU BIKASH DAS Vs. RAMENDRA MOHAN DUTTA

JUDGEMENT

(1.) THIS is an appeal filed by the tenant/appellant against the judgment and decree passed by the learned 2nd Judge, City Civil Court, Calcutta in Ejectment Suit No. 584 of 1977 dated 16th May 1989. By the said order and judgment the court below decreed the suit against the tenant/appellant whereby the plaintiff/opposite party was to get has possession of the suit premises by evicting the defendant/appellant. The suit was filed by the plaintiff / respondents for eviction of the defendant/appellant on the ground of reasonable requirement and also on the ground of doing acts contrary to the provisions of clauses (O) and (P) of Section 108 of the Transfer of Property Act.

(2.) THE defendant/appellant was a tenant under the plaintiff / opposite party in respect of northern portion of premises no. 34/c, keshab Chandra Sen Street (formerly known as 36k, Keshab Chandra sen Street) excluding two garages in the ground floor of the said premises, situated under police Station Amherst Street. Calcutta paying a monthly rental of Rs. 70/ -. The defendant/appellant no. 2 was a sub-tenant in respect of the first floor of the said premises. The plaintiff/opposite party was a sitting Judge of this Court at the time of filling the Suit and the family of the Plaintiff was consisting of himself, his wife, his youngest unmarried daughter who was 14 years on the date of filling of the Suit. Apart from that two elder daughters of the plaintiff were married and ordinarily reside with their respective husbands both of them were stationed outside Calcutta. The plaintiffs eldest son-in-law resides at Rishra in the District of Hooghly and the second-son-in-law resides at Kharagpur in the District of Midnapore. The plaintiff had no male child. The Plaintiff was residing at the front portion of Premises No. 42, Keshab Chandra Sen Street which was very near to the suit premises. The front portion of the said house and premises no. 42, Keshab Chandra Sen Street originally belonged to the plaintiffs late father and was owned and occupied by the plaintiff and his other three brothers with their respective families. The plaintiff had an undivided one-fourth share in the said front portion of the said property and an undivided one-seventh share in the south Western back portion of the said residential house and premises. It is an admitted position that in that house the plaintiff was in exclusive possession only two useable living rooms in the front portion, one of which had been converted into and was being used as his chamber and the other was being used as his bed-room. The drawing room was also used by the plaintiff in common with other three brothers who were the co-sharers, of the said premises. As the said front portion of premises no. 42, Keshab Chandra Sen Street, could not be conveniently partitioned into four separate lots and that even if such partition was feasible, the same could not result in any improvement upon the plaintiffs existing accommodation. As the plaintiff was not in possession of any reasonably suitable accommodation, the plaintiff filed a suit on the ground that the plaintiff reasonably requires the suit premises far his own use and occupation after making substantial addition and alteration thereto. At the time of filling of the suit the plaintiff was a sitting Judge of this Court and the plaintiff claimed that the plaintiff requires accommodation not only for himself," his wife and unmarried daughter and married daughters, but also for other staff who were living with him such as one cook, two men servants and one maid-servant and he has to engage an additional servant when his grand-children comes to live with him, which they do very often. The plaintiff also claimed that two elder daughters of the plaintiff were married and ordinarily reside with their respective husbands outside Calcutta. They visits their parents at the weekends and during long vacations and holidays and for the purpose of their stay with their husbands and children the plaintiff reasonably requires some accommodation by evicting the appellant/defendant.

(3.) THE other ground of eviction was for the acts done contrary to the provisions of Clauses (O) and (P) of Section 108 of the Transfer of property Act and it was alleged that in or about the end of 1974 the tenant/defendant without the knowledge of the plaintiff/landlord and without the sanction of the Municipal Authorities, started construction of brick built room on the roof of the suit premises adjoining the garret to which the plaintiff/landlord objected when the matter came to his notice but in spite of the plaintiff/landlord's objection, the tenant/defendant no. 1 proceeded with such work and ultimately the plaintiff/landlord had to take the help of police authorities and the corporation of Calcutta to get the said un authorised construction stopped and to have the said room demolished. It was further case of the plaintiff/landlord that for the purpose of making un authorised construction of a room the tenant/defendant raised high was on the second floor of the suit premises and due to the heavy load placed upon the roof and the parapet walls, the walls of the second floor have been sustained severe cracks and the safety of the building as a whole had been endangered. The tenant/defendant no. 1 denied that the plaintiff/landlord was the owner of the suit premises and also denied the relationship of the tenant in respect of the suit premises. The tenant/defendant's case was that the existing rooms under the occupation of the plaintiff/landlord in the undivided front portion of the premises no. 42, Keshab Chandra Sen Street, was sufficient for his accommodation and as such the plaintiff cannot file a suit for eviction on the ground of reasonable requirement. Further the defence of the defendant/tenant was that the plaintiff/landlord has house at Camac street and Baranagar in the suburb of Calcutta which had not been disclosed before the Court. The tenant/defendant also denied that he had done any act contrary to the provisions of Clauses (O) and (P) of section 108 of the Transfer of Property Act.