MONOHARLAL MEHTA Vs. RAJ MOHAN PANDEY

JUDGEMENT

(1.) THESE are 12 appeals from a decision in 12 ejectment suits in which there has been a common judgment passed by the 4th Bench, City civil Court, Calcutta dated the 21st december, 1960 all the suits having been tried together for the sake of convenience. The facts are as follows: The appellants who are the plaintiffs in all the 12 suits (Ejectment suits Nos. 174, 277, 282, 284, 286, 287, 288, 439, 992, 993, 997 and 998 of 1959) are the trustees of the trust estates of Ballavramji mehta alias Baldeoram Mehta and saligramji Mehta. The disputed property is premises No. 52, Strand Road, Calcutta which belongs to the said trust estates. At 42, Strand Road, Calcutta there is a four storeyed building facing strand Road. At the back of this property, there is a godown comprising of premises No. 52/1, Strand Road, Calcutta which also belongs to the appellants. The defendants in these various suits (respondents in the appeals) are tenants in respect of different parts of premises No. 52, Strand Road, Calcutta particulars whereof are set out below: - <FRM>JUDGEMENT_20_TLCAL0_1967Html1.htm</FRM>

(2.) THERE is a Book of Plans placed before us which clearly shows the existing structures to be as follows : Premises No. 52, Strand Road, Calcutta faces the Strand Road on the west. There is a single line of rooms extending from north to south flanked with verandahs towards the west on the Strand Road side. At the back of this set of rooms, (east) there is a narrow verandah, with a staircase room at one end (north)and a privy block at the other (south ). Between these two extremities, there it an open courtyard. At the back of the premises no. 52, Strand Road there is premises No. 52 1, Strand Road, on which there is a big godown with a roof of corrugated iron sheets. What the trustees propose to do is to amalgamate premises no. 52 and no. 5211, Strand road. They propose to demolish the godown, and the construction in premises No. 52, Strand Road is to be enlarged into a large structure which will almost fill the remaining portion of the two premises, keeping only a back space of approximately 11 feet wide and side space of approximately 4 to 6 feet wide. It is proposed to demolish the staircase room with the staircase and the privy block. The staircase room is to be enlarged and a new staircase built inside it. The privy block is to be shifted to the back of the consolidated premises, at the south-eastern corner. This privy block would be for the common use of all the tenants entitled to use them. Evidence was taken in the court below and the learned judge was satisfied that there was a sanctioned plan for the proposed alterations and new constructions. According to the appellants, they reasonably require the rooms in the occupation of the respondents for the purposes of building and re-building They accordingly served ejectment notices on the said respondents determining the tenancies and asking them to quit and vacate the rooms in their possession on the expiry of the month of Ashar, Sudi 15th S. Y. 2015 corresponding with 1st july, 1958. As the respondents failed to comply with the said notices the appellants filed the said suits for ejectment. The relevant provision in the West bengal Premises Tenancy Act, 1956 (hereinafter referred to as the " Said act') is section 13 (1) (f ). Section 13 gives protection to tenants against eviction, but one of the exceptions is contained in clause (f) of sub-s. (1) of s. 13 which provides that where the premises let out are reasonably required by the landlord, either for the purposes of building and re-building or for making thereto substantial additions or alterations, the protection is lost. In other words, in such a case, the ordinary law. as provided for in the Transfer of Property act will prevail. At the trial, three issues were raised which are as follows:

(3.) AS regards service of notice the issue was not disputed except in suit no. 998 of 1959 which is the subject-matter of Appeal No. 542 of 1961. As the defendant was absent in the court below, the learned Advocate appearing for him was not in a position to admit the service of notice. It was, therefore, formally proved. Before us Mr. Das who has appeared for the respondent in appeal 542 of 1961 has not disputed the service. The finding in the court below on issue No. 3 is, therefore, upheld. So far as issue No. 2 is concerned, the learned Judge in the court below found that the appellants owned 3/4th share in the firm of Baldeo Lal Ram behari Lal. This firm held shares worth over one crore of rupees in running concerns. It holds shares in messars Jardine and Henderson Limited worth over 25 lakhs of rupees. Also it has been found that the cost of construction of the proposed building would be about Rs. 1,78,000 according to the estimate of Messrs. Guin and Company Limited, Architect and Contractor. The learned Judge in the court below has rightly come to the conclusion that there can be no doubt whatsover that the appellants have sufficient means to construct the proposed building. He has, therefore, rightly answered the issue no. 2 in the affirmative. In this background, we have to deal with issue No. 1 which is the real issue in these appeals. As will appear from the particulars set out above, some of the tenants are in occupation of rooms in the ground floor and underground (basement), others live on the first, second and third floors. Obviously, if the existing staircase its demolished in order to build a new staircase, then the tenants in the first, second and third floors will have to leave. In other words, if the demolition of the staircase is real, then it cannot be doubted that the appellants required the rooms occupied in the first, second and third floors for the purpose of building and re-building. Also there is the question of the privy block. As I have stated above, it is a common privy block which can be used by all the tenants. If the existing privy block is demolished and a new privy block is to be built, the then the tenants of the first, second and third floors who admitedly used the existing privies can no longer use them until a new privy is built. The new privy when built will not be part of their original tenancy as a matter of course, but can only be so by agreement. It will be a new tenancy. However, it seems that the tenants 'on the ground floor and the basement stand on a different or a special footing. All of them say that they have never used the existing privy block and do not claim to do so in future. In other words, they would not claim the use of a privy at all. In their case, therefore, there is neiher any difficulty about the staircase because they do not use it and agree not to claim the user thereof, nor is there any difficulty about the privy block because they do not use it and do not put forward any claim for its user. Under those circumstances we agree with the finding of the court below that no ground has been made out for ejecting them. In other words, it has not been proved to the satisfaction of the court that the appellants reasonably required the rooms occupied by the respondents in appeal nos. 538, 541, 542, 543 and 546 of 1961 for building and re-building. The suits against which these appeals have been preferred have, therefore, been rightly dismissed and the appeals are also dismissed. Subject to this that it is recorded that it has been stated before us that the respondents in all these appeals do not use any privy or the staircase and will not at any time claim to use the old or new privies or the old or new staircase that are going to be demolished or built.