SUSHIL KUMAR KHAN Vs. CHIRAKISHORE BHADURI

JUDGEMENT

(1.) -This second appeal arises at the instance of the plaintiff/appellant-landlord against the Judgment and decree dated 17.2.86 passed by the learned Assistant District Judge, 3rd Court at Howrah in Title Appeal No.2 of 1985 reversing those dated 26.11.84 passed by the learned Munsif, Second Court, Howrah in Title Suit No. 382 of 1981. The aforesaid suit was brought by the plaintiff-landlord against the defendant-tenant for eviction from the suit premises on grounds of default, causing waste and damage to the suit premises and of reasonable requirement for own use and occupation under the respective provisions of section 13 (1)(b), (ff) and (i) of the West Bengal Premises Tenancy Act, hereinafter referred to as the Act. The learned Munsif rejected the grounds under section 13(1)(b) and (i) of the Act but decreed the suit one ground (ff). The suit premises is at 45 Brojanath Lahiri Lane, P.S. Shibpur, District Howrah consisting of two bed rooms, a kitchen, privy and a bath. The plaintiff's case of reasonable requirement under section 13(1)(ff) is to be found in paragraph 4 of the plaint. The defendant's case against the reasonable requirement of the suit premises by the plaintiff is to be found in paragraph 8 of the written statement. According to the plaintiff/appellant his present accommodation in the ancestral house at Dharsa, P.S. Jagacha is too insufficient to accommodate his family. It is his case that in the ancestral house he resides in one room which has been allotted to him by way of partition amongst him other brothers and his son has attended marriagable age but due to dearth of accommodation the marriage cannot be settled. The defence is that the plaintiff has inherited a big palacial building from his father at Dharsa where he has been residing with his family without any need for the suit premises. It is the further case of the defendant that the plaintiff is not the absolute owner and landlord of the suit premises. The trial court on the basis of the oral and documentary evidence has held that the plaintiff is the absolute owner of the suit premises at 45 Brojonath Lahiri Lane. The learned trial court has found that the land at premises 45 Brojonath Lahiri Lane was obtained by the plaintiff by registered deed of partition dated 14.8.64 as per Ext.5. The suit house was constructed later on and the learned trial court has observed that the municipal tax receipts and asessment papers stand in the name of the plaintiff. The trial court has found that the evidence of the plaintiff i.e. the owner of the suit premises has gone unchallenged on the side of the defendant and accordingly he has held that the plaintiff is the owner of the suit premises. It appears from the trial court record that at the time of trial there were changes in the family of the plaintiff and the admitted position is that the plaintiff at the time of trial has been residing in his ancestral house at Dharsa with his family consisting of himself, his wife, his son and son's wife. It is also undisputed that his daughter has been given into marriage who occasionally visits her father's house. The trial court has also found on evidence that the Dharsa house consists of 7 rooms of which 5 are bed rooms and one is a store room and other is a kitchen. From the evidence on record the trial court has found that the plaintiff has been occupying only one bed room in the ancestral house and the 4 other bed rooms are occupied by his 4 brothers separately. The trial court has also taken note of the fact that the plaintiff case (sic) partition of the ancestral house has not been pursued at the time of the trial, on the other hand, evidence has been laid that by mutual arrangements the plaintiff and his 5 brothers have been occupying one bed room each in the ancestral house. It is also in evidence that the plaintiff's three brothers do not reside at Dharsa and they have kept three rooms under lock and key. In the ancestral house he and his another brother P.W.2 Probodh Chandra Khan occupy one bed room each. Even though the story of partition has failed, the learned trial court has come to a conclusion on the basis of the evidence on record that the plaintiff's share in the ancestral house is not more than 1/5th and as such he is at best entitled to one bed room in the said house which he is actually occupying on mutual arrangement. The learned trial Judge on considering the size of the plaintiff's family and the accommodation available to him has come to a definite finding that the present accommodation of the plaintiff is not sufficient. The trial court has also found that the plaintiff is not possessed of any suitable alternative accommodation elsewhere except the suit premises. The trial court has come to the conclusion that considering the size of the family the plaintiff requires at least two bed rooms, one kitchen, one bath and one privy which accommodation is exactly available in the suit premises. The learned trial court has rejected the defence plea that the evidence and the pleading on the side of the plaintiff are at variance so far as partition is concerned. The learned trial Judge has also considered the change of circumstances during the pendency of the suit causing enlargement in the plaintiff's family. Accordingly the trial Judge decreed the suit. On appeal preferred by the present respondent/defendant, the First appeal court has held that ownership of the plaintiff in respect of the suit premises is admitted. The appeal court has concurred with the finding of the trial court in this respect. The First appeal court has held in concurring with the trial court that the plaintiff is the owner of the land and also the owner of the suit premises standing thereon. But the First appeal court has reversed the decree of eviction on the ground of reasonable requirement for own use and occupation for the reason that the plaintiff has failed to prove the fact of partition in respect of his ancestral house at Dharsa. The learned Additional District Judge has disbelieved the plaintiff's evidence of allotment of 5 rooms to each of the 5 brothers in the ancestral house by amicable arrangement among them. The appeal court's findings may be quoted below :-

(2.) Accordingly, the learned First Appeal Court set aside the Judgment and decree of the trial court and dismissed the suit.

(3.) In the present second Appeal it has been contended by Mr. Roychowdhury the learned counsel appearing for the appellant landlord that the learned First Appeal Court in dismissing the plaintiff's suit by reversing the trial court's decree has applied wrong tests and its findings are vitiated by surmises and conjectures and the learned First Appeal Court has not taken into consideration the material evidence on record on the side of the plaintiff. Mr. Roychowdhury has further contended that there was no reason for the First Appeal Court to take exception to the fact that there was no prayer for local inspection on the side of the plaintiff. It must be noted here that in a second appeal the evidence on record is not to be reappreciated unless there is scope for intervention under section 103 of the Civil Procedure Code. Mr. Roychowdhury has placed reliance upon a Supreme Court decision reported in AIR 1987 SC page 1484 (Budhwanti and another, v. Gulab Chand Prasad, ). It has been held there that where the trial court on basis of evidence before it found that the landlord was in bonafide requirement of the disputed premises for the business requirement of the members of the joint family but the appellate court reversed that finding on baseless assumptions and wrong principles of law, the High Court in second appeal is justified in setting aside the finding of the appellate Judge even though it was factual in character. The important part of the aforesaid decision of the Supreme Court may be quoted below :-