BHOLA NATH DAS Vs. BHOLANATH BORAL

JUDGEMENT

(1.) This appeal arises out of the judgment and decree passed by the learned Judge, 9th Bench, City Civil Court, Calcutta, in Ejectment Suit No. 390 of 1975. The defendants are the appellants in the instant appeal and the said suit was instituted by the plaintiff respondent against the defendant for eviction of the said defendants from the disputed premises. It is the case of the plaintiff that the plaintiff is the owner of the said premises No. 3/7B, Gorachand Bose Road and initially Tarapada Das, the predecessor-in-interest of the defendants was the tenant under the plaintiff and after the death of the said Tarapada Das, the defendants became the tenants in respect of the said premises. The plaintiff has been residing with the members of his family in the second floor of the said premises and the first floor of the said premises is already tenanted. It is the case of the plaintiff that the plaintiff and the members of his family are suffering immensely for acute shortage of accommodation in the premises now in their occupation in the said house and for reasonable requirement of the plaintiff and the members of his family, the suit premises is reasonably required by the plaintiff. The further case of the plaintiff is that by a notice dated 10th February, 1975, given by the plaintiffs Advocate to the said defendant, the tenancy was determined and the defendants were asked to vacate the said premises by 31st March, 1975. Such notice was sent by registered post and admittedly the defendants had received the same but the defendants failed and neglected to vacate the suit premises. Accordingly, the said suit had to be instituted.

(2.) The defendants contested the said suit by filing written statement inter alia denying the allegations made in the plaint. It was contended by the defendants that the plaintiff had sufficient accommodation for his own use and occupation along with the members of his family and the suit premises was not required for reasonable requirement of the plaintiff and the members of his family. The defendants also seriously disputed the requirement on the score of sister-in-law of the plaintiff and it was contended by the defendant that the said sister-in-law did not regularly reside in the said premises and in any event she was not a member of the family of the plaintiff. It was contended by the defendants that previously the plaintiff made an unsuccessful attempt to evict the defendants from the disputed, premises but having failed in the said attempt, the instant suit has been instituted on untrue allegations. It appears that during the pendency of the suit, the plaintiff made an application for amendment of the plaint for the specific pleading in accordance with S.13(1)(ff) of the West Bengal Premises Tenancy Act, 1956, as amended to the effect that the plaintiff had no other suitable accommodation anywhere in the city of Calcutta and the plaintiff required the suit premises for the reasonable requirement of the plaintiff and the members of his family. The said application was allowed by the learned Judge and the plaint was accordingly amended. The defendants also filed additional written statement pursuant to the amendment of the plaint. On the pleadings of the parties several issues were framed. The plaintiff examined himself in support of his contention and in his deposition, the plaintiff has stated that he needed suit premises for his personal use and occupation and his family consists of nine members, namely, the plaintiff himself, his wife, two sons then aged about 24 and 18 years respectively, three daughters then aged about 21, 17 and 12 years respectively, one unmarried sister-in-law aged about 30 years and one wholetime maid servant The plaintiff has also deposed to the effect that the said sons and daughters of the plaintiff are all unmarried and the eldest son of the plaintiff attained the marriageable age but he could not he given in marriage for want of accommodation. The plaintiff had also deposed to the effect that the plaintiff requires four bed rooms besides one drawing room and kitchen. The plaintiff has also stated that the plaintiff requires a Thakur ghar and daily worship is being performed of the deities installed in the Thakurghar. It has also come out from the evidence of the plaintiff that a small kitchen on the third floor of the said premises-attached to the Thakurghar is also utilised for the purpose of cooking bhog for the deities, particularly, when the pala of the plaintiff comes for the worship of the family deity.

(3.) On behalf of the defendants, the defendant No. 1, Bholanath Das got himself examined and in his deposition he has stated that the plaintiff does not require the said premises for his personal use and occupation and the sister-in-law of the plaintiff does not regularly reside with the plaintiff. The defendant has also denied that there is any wholetime maid-servant in the family of the plaintiff. It appears that at the hearing of the said suit, the defendant raised a contention that the notice terminating the tenancy of the defendant was illegal and invalid. It may be noted that such plea was also taken in the written statement. It was contended before the learned trial Judge on behalf of the defendants that the defendants having been asked to deliver possession by 31st March, 1975 the notice was an invalid notice under S.106 of the Transfer of Property Act because the tenancy was to subsist till the end of 31st March, 1975. The learned Judge did not accept the said contention and relying on a decision of the Madhya Pradesh High Court reported in AIR 1965 Madh Pra 140 and also a decision of the Bombay High Court reported in AIR 1944 Bom 181, the learned Judge has come to the finding that the notice is not invalid because the plaintiff has asked the defendants to quit and vacate on 31st March, 1975, instead of with the expiry of the said date. The learned Judge has come to the finding that the notice issued on behalf of the plaintiff is quite legal and valid and the tenancy has been duly determined by the said notice. On the score of reasonable requirement of the plaintiff and the members of his family, the learned Judge has taken note of the extent of accommodation available to the plaintiff both in the second floor and also in the third floor as noted by the learned Commissioner appointed for the purpose and the learned Judge has come to the finding that the plaintiff reasonably requires at least one bed room for himself and his wife, two bed rooms for the two sons because one is required to be given in marriage and one room for the three daughters and one drawing room for entertainment of guests. The learned Judge has come to the finding that the requirement for a drawing room cannot be defeated on the ground that the plaintiff can fulfil such requirement in the bed rooms. The learned Judge has also come to the finding that a family like the plaintiff also requires a Thakur Ghar and some space for cooking bhog apart from the kitchen as there are installed deities. The learned Judge has also accepted the plaintiffs case that an accommodation for a wholetime maid servant is a necessity for the members of the family of the plaintiff. On such consideration, the learned Judge has come to the finding that the accommodation available to the plaintiff was insufficient and the plaintiff reasonably requires the suit premises for the use and accommodation of the plaintiff and the members of his family. Accordingly, the suit was decreed on contest with costs and the learned Judge allowed 90 days' time to quit and vacate the disputed premises. Being aggrieved by the aforesaid judgment and decree, the instant appeal has been preferred by the defendants-appellants.