MUKUL BHATTACHARYYA Vs. SURAJ KUMAR GUHA

JUDGEMENT

(1.) THIS Second Appeal has been preferred by the defendant-tenant-appellant against the udgment and decree of eviction dated 15.2.1985 passed by the learned Assistant District Judge, West Dinajpur, Balurghat in O.C. Appeal No. 80 of 1983 affirming the judgment and decree of eviction dated 30.4.1983 passed by the learned Munsiff, Raiganj in O.C. Suit No. 70 of 1979. The suit was brought by the plaintiff-landlord-respondent for evicting the tenant from the suit premises on three grounds viz. default, violating the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and reasonable requirement of the suit premises for the own use and occupation of the landlord after building and rebuilding under the provisions of Section 13 of the West Bengal Premises Tenancy Act. The suit was decreed on all the three grounds. The relationship of landlord and tenant between the parties was denied by the appellant but both the trial Court and the lower appeal Court on consideration of the evidence on record have found that such relationship exists between them in respect of the disputed premises.

(2.) THE case may be briefly stated as follows :- It is alleged in the plaint that the pro-defendant No. 7 who is the father of the present appellant was inducted as a tenant in the suit premises by the pro-defendant No. 2 as Karta of the undivided Hindu family comprising the plaintiff and the defendants 2 to 6 at a rate of Rs. 75/- per month payable according to English Calendar. The suit premises as described in the plaint consist of one 'Charchala ghar' with pucca floor and another ghar of splited bamboo. It is stated that after the creation of the Tenancy Act pro-defendant No. 7 with the permission from pro- defendant No. 2 raised one drum tin shed there for the purpose of his business and the premises was used as a Kathgola shop. On 1.5.1975 the pro-defendant No. 7 surrendered his tenancy in favour of the pro-defendant No. 2 with a prayer to transfer the same in favour of his son the present appellant which was allowed. The present appellant became a tenant in respect of the suit premises under the pro-defendant No. 2 as Karta of the joint family at a rental of Rs. 75/- per month payable according to English Calendar. The joint property was thereafter partitioned among the present plaintiff-respondent No. 1 and co-sharers by a registered deed of partition dated 26.10.75 and the suit premises fell to the share of the present plaintiff-respondent No. 1 (vide Ext. 2). The present appellant was requested by the plaintiff to pay rent exclusively to him verbally on 1.1.75 and thereafter he again asked the defendant to pay rent by a registered letter dated 3.10.75. But the defendant did not pay any rent to him since Januray, 1975. Furthermore, the defendant without the permission of the plaintiff altered and extended the drum tin temporary structure and also obtained electric connection. By amendment of plaint dated 28.7.1979 the plaintiff further incorporated a story that the defendant has illegally constructed a corrugated iron sheet roof challa and extended the verandah and has also sublet a portion of the suit premises to one Basudeb Kumar illegally. It has been further alleged by way of amendment in the plaint that the defendant was causing nuisance and annoyance to the plaintiff and his neighbours. It is the further case of the plaintiff that he requires the suit premises for the purpose of building a kitchen, bath-room, privy, a drawing room and also for constructing a passage for ingress and egress. It is stated in the partition deed that the plaintiff after the partition would construct his own latrine, bathroom etc. on the properties allotted to him.

(3.) LEARNED Prescribed Authority (Munsif, Bahraich) considered the case of the parties and the evidence and came to the conclusion that the landlady is aged widow, besides her widowed daughter and her family are residing with her and looking after her needs and Ravi Prakash Goel being the son of her widowed daughter is living and supporting the entire family. It was held that Ravi Prakash was selling goods etc. outside the house on a wooden platform and income is not sufficient for the survival of the entire family and the landlady intends to extend her business by installing a flour mill along with rice and pulses thrashing machines to augment her source of income. It was also found that the tenant-respondent has sufficient accommodation with him, e.g., Sarika Lodge which although is ostensibly let out to his own sons on payment of rent. However, they were living with the tenant and he is supporting them because, according to the tenant himself, their business is not having any profit. Besides, there was no evidence if the rooms in the Sarika Lodge were not sufficiently big to accommodate the business of tent house. The Prescribed Authority also considered the comparative hardship and came to the conclusion that the landlady was in dire need of the accommodation which is bona fide one and the tenant has alternative accommodation to shift and continue his business. Application for eviction of the tenant was thus allowed.