SATYA RANJAN GHOSH Vs. SMT. USHARANI BANERJEE

JUDGEMENT

(1.) This appeal arises out of the judgment and decree passed in Title Appeal No. 215 of 1971 by the learned Subordinate Judge, 6th Court, Alipore, affirming the judgment and decree passed by the learned Munsif, 3rd Court, Sealdah, in Title Suit No. 87 of 1968. The defendant is the appellant in the present appeal and the suit for eviction of the defendant appellant was instituted by the plaintiff-respondent, Smt. Usharani Banerjee. It appears that in the notice terminating the tenancy and for eviction of the defendant tenant, the plaintiff made out a case of default of payment of rent by the defendant tenant. But in the plaint in addition to the said case for default, the plaintiff also stated that she bona fide required the suit premises for the use and occupation of her son, who was a doctor and who intended to start a chamber for his medical profession. It appears that in the written statement the defendant tenant contended that the plaintiff did not reasonably require the suit premises and there were other rooms in her possession. At the trial an issue being Issue No. 4 was raised to the effect "Does the plaintiff reasonably require the suit premises for her own use and occupation - It appears that the plaintiff had led evidence to show that she had got necessary funds to make renovation of the rooms in occupation of the defendant tenant for the purpose of making it fit for starting a dispensary for her youngest son who was a qualified doctor. The plaintiff had also led evidence to the effect that she had only two rooms in her occupation. The accommodation was insufficient for starting a dispensary for the said son of the plaintiff. The defendant, however, disputed the plaintiff's case that she had two rooms in her occupation but asserted that she had three rooms and the dispensary could be started in the said rooms.

(2.) The learned trial Judge has come to the finding that the accommodation available to the plaintiff was not sufficient to meet the requirement of the plaintiff, namely, the requirement for a medical dispensary for the said son of the plaintiff. The learned Judge has also noted that the defendant had admitted in cross-examination that the rooms in the dwelling house of the plaintiff were not vacant and the said rooms were being used and occupied by the members of the plaintiff's family. The learned trial Judge, however, came to the finding that the defendant had deposited rents with the Rent Controller after the institution of the suit under section 17(2) of the West Bengal Premises Tenancy Act and as such he was not a defaulter. In view of the finding of the learned trial Judge that the plaintiff reasonably required the suit premises for. her own use and occupation the said suit was decreed.

(3.) The defendant thereafter preferred an appeal, being Title Appeal No. 215 of 1971 in the Sixth Court of the Subordinate Judge, Alipore. It appears that no objection was raised by the defendant for the framing of the said issue, namely, as to whether or not the plaintiff reasonably required the suit premises for her own use and occupation and as aforesaid the parties led evidence in the suit for the decision of the said issue framed in the suit. In the Memorandum of Appeal no objection was also raised by the defendant that in the pleadings such issue could not be raised. On the contrary, it appears from ground Nos. 4 and 5 that the defendant had contended that it was never the intention of the plaintiff that her son would start dispensary in the suit room but such starting of dispensary could be done in the premises where the plaintiff was residing and there was no urgent necessity to start the dispensary in the said room. In the other ground it was alleged that there was no sufficient money necessary for the renovation of the suit room. The learned Court of Appeal below after considering the evidence and materials on record had accepted the findings made by the learned trial court that the plaintiff had reasonably required the said disputed room for the purpose of starting the medical dispensary for her son. Accordingly, the appeal was dismissed.