BIJAN BEHARI BHATTACHARJEE Vs. KRISHNA PRAKASH MITRA

JUDGEMENT

(1.) THIS is an appeal from a judgment and decree of affordance. The suit was instituted on August 2, 1967 by Phanindra Krishna Mitra for recovery of possession of a portion of premises No. 19b, Dr. Rajendra road, Bhowanipur, Calcutta consisting of two bed rooms in the first floor and two bed rooms in the ground floor with kitchen and store on the second floor thereof which the defendant held as a monthly tenant according to English calender month. The plaintiffs case was that he was living in another portion of the premises with two bed rooms and a kitchen which was hopelessly inadequate and insufficient for himself and his family. The plaintiff's family, at the material time, consisted of his wife, three sons with their wives and eight grand-children, one unmarried daughter, one invalid brother besides a whole time maid servant. For want of accommodation in the said premises the two sons of the plaintiff with their respective families had been living in rented houses while his third son was in United Kingdom and was expected to return with his wife and children. The plaintiff, an old man of 88 years had been compelled to live in the suit premises with his wife, unmarried daughter invalid brother and a whole time maid servant with great difficulty. The plaintiff accordingly required the suit premises for his own use and occupation. The tenancy was determined by a combined notice of suit expiring with June 1967 and the suit was instituted as the defendant even on service of notice failed to vacate the suit premises as required.

(2.) THE suit was contested by the defendant by filing a written statement and it was stated therein that the plaintiff had sufficient accommodation in his possession for his family members who resided with him. It was stated that the two sons for a long time lived separately with their respective families while the third son was living abroad with his family. The defendant denied that the plaintiff also reasonably required the suit premises for his sons and their families. The notice to quit was invalid and the real intention of the plaintiff was to let the suit premises at higher rent as the rent originally Rs. 15/- was ultimately fixed at rs. 38. 50 P. The other portion of the ground floor had been let out to another tenant for a long time. The suit in the circumstances should be dismissed.

(3.) AT the trial the plaintiff's eldest son gave evidence stating that the plaintiff who was the owner of the premises was completely bed-ridden. It was further stated that the family of the plaintiff consisted of the persons referred to in the plaint and the deponent with his family had been forced for shortage of accommodation to live in rented house with rent of rs. 125/- per month which he was finding difficult to meet after his retirement. For financial difficulty the second brother who was a businessman also wanted to live in the suit property and all of them wanted to look after their old and infirm father and to reside in this house. The third brother was in temporary employment in U. K. but he left this country for shortage of accommodation. It further transpired that while the defendant had been in occupation of the front portion of the ground and first floor, the plaintiff was in occupation of the back portion of the first floor and the back portion of the ground floor having two rooms was tenanted. The suggestion that the sons after their marriage were living separately was denied The second son also gave evidence to say that the premises 19b, Dr. Rajendra road was the only house owned by the plaintiff and the sons had no other house of their own. He further stated that he left the suit property six months prior to the institution of the suit due to shortage of accommodation. Due to fall of business income this deponent, it was stated: was finding it impossible to maintain separate establishment and they all wanted to live together in this house. The defendant in his evidence denied that the sons wanted to live with the father as they had been living separately for over 20/22 years and accordingly the plaintiff did not reasonably require the suit premises for the use and occupation of himself and his family.