AJOY SHARMA Vs. DWIJENDRA NATH DHAR

JUDGEMENT

(1.) This second appeal is against the decree of eviction on the ground of violation of clauses (m) (o) (p) of Sec. 108 of Transfer of Property Act 1882 and also on the ground of reasonable requirement. Originally Dijendra Nath Dhar being the owner in respect of the premises no. 281/1/1A, B.B. Gangully street Kolkata-12, figuring himself as plaintiff instituted Ejectment Suit No. 838 of 1985 which was subsequently renumbered as 1062/2000 against predecessor in interest of the present appellant and proforma respondents, in respect of one room in the ground Floor of the said premises which is described in the schedule to the plaint, at a monthly rental of Rs.30.00 payable accordingly to English Calendar month. Said suit was originally filed on the ground of default in payment of rent, also for raising unauthorized construction and for reasonable requirement. It is alleged in the plaint that the defendant is a defaulter in payment of rent from the month of February 1980. The defendant/tenant has also constructed a brick built room with mezzanine floor thereon along with RCC stair case attached with it, enclosing the portion of the common Varanda in front of suit room. Furthermore the suit premises is reasonably required by the plaintiff and his family members. Initially plaintiff's family was comprising of plaintiff his wife and four daughters, who were subsequently got married. During the course of trial, plaintiff's wife died and subsequently the sole plaintiff Dijendra Nath Dhar also died and his four married daughters have been substituted in the Appeal. Accordingly the plaintiff's family now comprises of 4 married daughters.

(2.) Mr Chandra learned counsel appearing on behalf of the appellant argued that it is admitted fact that after passing the impugned decree by the First Appellate Court in Title Appeal no. 94/2005 on 31/5/2007, the aforesaid original plaintiff Dijendra Nath Dhar, during his lifetime purchased a three storied building being premises no. 91 Serpentine lane Kolkata -14, having three vacant rooms and bath and privy on each floor of the said building totaling nine vacant rooms and three bath and privy in the said premises. In such view of the matter the appellant filed an application under order XLI rule 27 of the Code of Civil Procedure annexing photocopy of the certified purchase deed of the premises before this Court, being CAN 3/2015 for recording subsequent events.

(3.) In respect of violation of clauses (m)(o)(p) of Sec. 108 of the Transfer of Property Act, Mr. Chandra contended that during the course of trial an Advocate Commissioner was appointed for holding local inspection commission in respect of the defendant's occupation in the suit premises and also plaintiffs occupied portion and said commissioner has submitted his report which has been marked as exhibit 5. He further contended that both side adduced evidence and after considering all aspects, Trial court dismissed the suit by the judgment dtd. 4/8/2005. The Trial court specifically observed that the defendant/appellant is not liable to be evicted for contravention of clauses (m) (o) (p) of Sec. 108 of Transfer of Property Act, since the construction was made by the defendant outside the tenancy.