DUNLOP INDIA LIMITED Vs. T K MUKHOPADHYAY

JUDGEMENT

(1.) A question as regards interpretation of Section 87 (2) of the West Bengal Co-operative Societies Act, 1983 is in question in this appeal which has arisen out of a judgment and decree passed by the learned Judge, 7th Bench, City Civil Court at Calcutta in Ejectment Suit No. 1063/82.

(2.) The defendant is the appellant. The plaintiff-respondent has filed the aforementioned suit for eviction of the defendant, who admittedly was his tenant, on the ground of his bona fide requirement. The plaintiff in paragraph 1 of the plaint stated that he had purchased a flat at Apsara Apartment from Apsara Housing Co-operative Societies Limited and became absolute owner thereof. The defendant in its written statement in paragraph 6 thereof, merely did not admit the said allegation but curiously enough the said statement was verified by the deponent of the said affidavit as true to his knowledge. Ex facie therefore, the statement made by the plaintiff to the effect that he is the owner of the premises was not specifically denied. It is also pertinent to mention that the defendant filed an application for amendment of the written statement wherein he although denied and disputed the bona fide requirement of the plaintiff, but did not make any averment whatsoever as regards the ownership of the plaintiff so as to disentitle him from obtaining a decree for eviction in terms of Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to and called for the sake of brevity as "the said Act"). Keeping in view the pleading of the parties, the learned Trial Judge framed seven issues out of which this Court is concerned with only two issues, namely, (1) is the plaintiff owner of the suit-premises and (2) does the plaintiff reasonably require the suit-premises for his own use and occupation along with the member of his family?

(3.) Mr. Ghosal, the learned counsel appearing on behalf of the defendant-appellant, has taken us through the entire deposition of the witnesses as also the documents and submitted that from a perusal thereof it would appear that the plaintiff has failed to show that he is the owner in respect of the tenanted premises within the meaning of Section 87(2) of the West Bengal Co-operative Societies Act. The learned counsel submits that the ownership of the premises in suit is a sine qua non for obtaining a decree in terms of Section 13 (1)(ff) of the said Act. Our attention was further drawn to the fact that although the plaintiff had been residing in a rented flat as he was doing so for a long time since 1978, the plaintiff's claim for bona fide requirement was not maintainable.