BISWANATH MUKHERJEE Vs. CHITTA RANJAN DAS

JUDGEMENT

(1.) The present appeal from the appellate decree is directed against judgment dated 18.2.1987 and the decree thereof of the Additional District Judge, 6th Court, Alipore in T.A. No. 276 of 1986. By the impugned judgment, the learned Additional District Judge dismissed the appeal and affirmed the judgment and the decree directing the defendant/appellant to vacate the suit premises within a specified time, passed in T.S. No. 6 of 1980 passed by the Munsiff, 5th Court, Alipore on 25.2.1986.

(2.) Briefly stated the facts and circumstances leading to the filing of the instant appeal are as follows :- The plaintiff/respondent filed the suit for ejectment of the defendant/ tenant from the suit premises being Premises No. 34/C, Nazir Lane, Calcutta-23 alleging, inter alia, that he was the owner of the suit premises, the defendant was a tenant under him in respect of the entire suit premises at a rental of Rs. 50/- per month payable according to English Calendar. It was further alleged that the suit property originally belonged to the father of the plaintiff Sailendra Nath Das, who during his lifetime created a trust in respect of all his properties and in terms of the said deed of trust dated 3.12.71 (Ext.3), the plaintiff became the sole and absolute owner of the suit property. It was further alleged that plaintiff was residing with his family at 31/B, Ramkamal Street as licensee of his brothers and he had no other accommodation to live with the members of his family. The brothers of the plaintiff asked the plaintiff to give up his permissible possession and in that background; plaintiff reasonably required the suit property for his own use and occupation. In that background, the plaintiff through his Advocate sent a notice of ejectment-dated 12.11.79 by registered post with A.D., which was duly received by the defendant. As the defendant failed to deliver the suit premises, the plaintiff was constrained to file the suit. The defendant/appellant contested the suit by filing a written statement, wherein he denied all the material allegations raised by the plaintiff in the plaint. It was the case of the defendant that the suit was not maintainable, that the plaintiff had no requirement for the suit premises. On the basis of the pleadings of the parties, the learned trial Court raises some issues including Issue Nos. 3 and 4 touching the questions whether the plaintiff reasonably required the suit premises and whether such plaintiff was entitled to get a decree for eviction and on the basis of evidence on record found that the deed of trust on the basis of which the plaintiff acquired title over the suit property was acted upon and the plaintiff reasonably required the suit premises. Further it was held that the tenancy was terminated by the service of a legal notice. On the basis of the said findings, the learned trial Court decreed the suit for eviction. In appeal, the learned Judge of the appellate Court below recorded the specific arguments advanced on behalf of the defendant/appellant that the present suit for eviction was not maintainable as the plaintiff/landlord instituted the suit within 3 years from the date of acquisition of the suit property in contravention of the specific provisions contained in Sub-section 3(A) of Section 13 of the West Bengal Premises Tenancy Act. After discussing the evidence on record and after considering the facts and circumstances, the learned appellate Court found that the plaintiff became the owner of the suit premises on the date of execution of the deed of trust or the family settlement deed in the year 1971. In that view of the matter, the learned appellate Court below rejected the argument that the present suit for eviction was hit by the provision of Section 13(3A) of the W.B. Premises Tenancy Act. The learned Judge of the appellate Court below also affirmed the finding the trial Court that the plaintiff/respondent was entitled to get a decree of eviction on the ground that he reasonably required the suit premises for his own use and occupation. On such findings, the learned appellate Court below affirmed the decree passed by the trial Court. Being aggrieved by such judgment, the defendant/tenant as the appellant has come before this Court in second appeal. At the time of admission of such appeal, the learned Division Bench clearly indicated that the appeal would be heard on the ground Nos. II and XII of the Memo of appeal, which are as under:- (II) For that the Court below ought to have held that registration of the case itself is void on the ground that suit for eviction was filed in violation of Section 13(3A) of the West Bengal Premises Tenancy Act, 1956 and hence the decree itself is a nullity. (XII) For that the Court below erred in law in decreeing the suit without considering the number of family members of the plaintiff and manner of requirement and without considering the requirement as laid down by Section 13(4) of West Bengal Premises Tenancy Act.

(3.) The first point formulated above, indicates the question here is whether the suit for eviction of the tenant was hit by the specific prdvision contained in Section 13(3A) of the West Bengal Premises Tenancy Act. Before I proceed to consider the question I should quote the specific provision for the benefit of further discussion of Section 13(3A) of the W.B.P.T. Act.:- "Where a landlord has acquired interest in the premises by transfer, no suit for recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub-section (1) shall be instituted by the landlord before the expiration of three years from the date of his acquisition of such interest." There is a proviso to aforesaid provision and it is attracted only in case where the eviction is sought for on the ground as enumerated under Section 13(1)(f) of the West Bengal Premises Tenancy Act that is to say when a decree-for eviction was sought for on the ground of building and re-building. In that event, even before the expiry of 3 years after the acquisition of the property, on the application of the landlord and after giving the tenant an opportunity of being heard the controller may permit by order the institution of the suit on the ground that the building or rebuilding or the addition and alterations as the case may be is necessary to make the premises save for human habitation. But that is not the case here as no decree for eviction has been sought for on the ground of reasonable requirement for the purpose of building and rebuilding. So I consider whether the suit is hit by the provisions contained in sub-section (3A) of Section 13 of the. P.T Act. In other words the specific question, which is posted for consideration, is whether the plaintiff/landlord instituted the suit for eviction within a period of 3 years from the date of acquisition of interest over the suit property. In the instant case, the specific assertion made on behalf of the plaintiff/respondent is that the plaintiff acquired the suit property by virtue of a trust deed dated 3.12.71. Copy of the said trust deed has been made an exhibit in connection with the suit. It is described as a 'settlement patra'. It transpires from the findings of the learned appellate Court below that such Court on going through the recitals of the deed in question came to the conclusion that the respondent/landlord became the owner of the suit premises on the date of execution of the deed of trust or the family settlement deed in the year 1971. But on going through the deed in question I find that such a finding of the appellate Court below has got no basis. It transpires from the relevant recitals of the deed that the owner of the property Sailendra Nath Das, the father of the plaintiff/respondent appointed himself and his wife Smt. Pratima Das as joint trustees in respect of the properties described in 'ka' and 'kha' schedule. The recitals of the deed clearly indicated that from the date of execution of such deed, the executor of the deed divested himself from the ownership of the property and placed the property in a trust making himself and his wife as joint trustees. It was further provided there that such trust would come to end on the death of both the trustees after marriage of the two unmarried daughters of the said Sailendra Nath Das, the creator of the trust. In the instant case, the admitted position is that Smt. Pratima Das, wife of the said Sailendra Nath Das died in the year 1978. So as per the conditions contained in the deed the plaintiff acquired the property through the said deed only after the death of his mother in 1978. The recitals of the deed clearly indicates that the plaintiff after the execution of the deed only acquired contingent interest to get the property on the death of his parents and not before that. That being the position, it transpires that the suit, which was filed in the early part of 1980, was filed within the period of 3 years from the date of acquisition of the suit property. Learned Advocate for the defendant/appellant has relied on the decision in the case of Inder Sengupta, Appellant v. Sm. Prova Rani Chakraborty & Anr., respondent, reported in AIR 1985 Cal 218. Where in the Division Bench of this High Court considered the question whether an amendment of the plaint in a suit, which was filed within 3 years after the purchase, could be allowed or not on the ground on which a decree was not obtainable had the suit been filed within the said period. The learned Judges found that the amendment of the plaint, as prayed for could not be allowed in view of the Division Bench judgment reported in (1982)86 Cal WN 841 : AIR 1982 Cal 407 (Sudha Mukherjee v. Sankar Chatterjee) where the earlier Division Bench made the following observation :-