ANNA PURNA SHAW Vs. ANANTA ROY

JUDGEMENT

(1.) THIS appeal at the instance of the defendant is against the judgment and decree dated 29. 06. 1996 passed by the learned Judge, Small Causes court, Sealdah in Title Appeal No. 23 of 1996 affirming the judgment and decree dated 28. 12. 1994 of the Additional Court of the Munsif at Seajdah in Title Suit No. 165 of 1995 whereby decree of eviction was passed against the appellant.

(2.) THE suit for eviction was on the ground of default in payment of rent since 1977 and of reasonable requirement of the plaintiffs. The defendant/appellant having found entitled to the protection under Section 17 (4) of the West Bengal Premises Tenancy Act, 1956, the only question that calls for consideration is whether the ground of reasonable requirement on which the decree is based was legally proved by the respondents herein. The plaint was presented on 05. 06. 1981. The original plaint underwent amendment on 16. 05. 1994. In terms of the amended plaint, plaintiff No. 1 whose family consisted of five members has been residing at a Government quarter by virtue of his employment from which he would be retiring on 1st of July 1987, while plaintiff Nos. 2, 3 and 4 along with the wives and one son of each of them have been residing in the premises at 107a/h/1, Narkeldanga Main Road by occupying two rooms with an additional accommodation of a small kitchen therein. The said plaintiff Nos. 2, 3 and 4 require at least three bed rooms one each for themselves and their respective wives and one bed room each for their three sons, one reading room for two school going sons of the plaintiff nos. 2 and 3 and a drawing room for attending to the visitors. The suit premises which is a car shed at premises No. 107a/h/1, Narkeldanga Main road may easily be converted into a bed room with a little change therein and the plaintiffs may somehow manage to utilize the suit premises to meet their requirements. Furthermore, the plaintiffs are willing to proceed with addition and alteration of the said suit premises to meet their acute necessity by necessary building and re-building and they have sufficient funds for the purpose. Thus, the plaintiffs reasonably require the suit premises for their own use and occupation and also for the building and re-building. Plaintiff No. 1 along with his family members has been residing in a rented accommodation at 7/34 C. I. T. Building, Kankurgachi under calcutta Improvement Trust and the said tenancy stands in the name of the wife of the plaintiff No. 1. Plaintiff No. 4, an employee of I. B. , Ministry of Home has been residing in Delhi but all his belongings are lying in one room of the suit premises and the said room is under lock and key but the said plaintiff No. 4 along with his family occasionally comes to Calcutta and lives in his own room but he is expected to be transferred from Calcutta to Delhi very soon and at least one room is required for the plaintiff No. 4 who has two sons besides his wife. Plaintiff No. 1 and his wife require one room. His son aged 30 years who has attainted marriageable age requires one room, youngest daughter of the said plaintiff No. 1 aged about 23 years requires one room. Plaintiff No. 3 and his wife require one room and his son, an undergraduate student requires one room. Plaintiff No. 2 (a), son of late Niranjan Roy who was a H. S. examinee in 1994 requires one room and Rita Roy, wife of late Niranjan Roy requires one room. One room is also required for plaintiff, one room is required for Thakurghar, one room is required for the plaintiff's sister and plaintiff's daughter and if they get the suit premises they can make necessary addition and alteration therein. At present three rooms are under the occupation of the plaintiffs.

(3.) OWNERSHIP of the plaintiffs in respect of the suit premises is not denied. Learned Trial Court found from the Commissioner's report that the plaintiffs are in occupation of three rooms and a varandah. One room is 14' x 9', another is 9'4" x 6'2" and yet the third one is 12'6"x 97", while the covered varandah is 10' x 5'9". This is available in the suit building. In terms of the plaint, plaintiff No. 1 resides at 7/34, C. I. T. Building, kankurgachi, Calcutta -53 which is a tenanted accommodation allotted in the name of the plaintiff No. 1's wife. The plaintiff No. 1's family consisted of himself, his wife, one son, one unmarried daughter aged 23 years and a married daughter. This rented premises is a flat which was not got inspected at the instance of the plaintiff by commission. The learned Trial court observed that the plaintiff No. 1 had not stated in his evidence as to how many rooms are available to him in the said flat and in absence of any local inspection through commission it was held that the plaintiff No. 1 's accommodation was sufficient. There was no evidence that the accommodation in the tenanted premises was a precarious one and the plaintiff is in immediate threat of eviction. So far as the original plaintiff no. 2 is concerned, his heirs plaintiff No. 2 (a) and 2 (b), require two rooms-one for the widow and the other for the son who was at the material time a H. S. examinee. This went undisputed at the trial. Plaintiff No. 3's family consisted of himself, his wife and a son aged 21 years then in undergraduate study. The plaintiff No. 4 is the youngest brother of plaintiff no. 1 residing in New Delhi by virtue of his employment. The plaintiff Nos. 5 and 6 are the married sisters. Thus, plaintiff No. 2 (a) and 2 (b) require one room each. Plaintiff No. 3 requires two rooms -one for himself and wife and another for a son who was in college at the relevant time. One room must be there for plaintiff No. 4. So far as married daughters are concerned, plaintiff Nos. 5 and 6 reside in their matrimonial houses and the suit premises do not stand in their favour. According to the learned trial Court, the plaintiff's immediate requirement is of five rooms. The room allotted to the plaintiff No. 4, according to the learned Trial Court could be used as a guest-cum-drawing room as well. Thus, according to the learned Trial Court, besides the tenanted accommodation of the plaintiff no. 1 the other plaintiffs have no other accommodation other than the suit house. The requirement was accordingly reasonably proved. On the issue of addition and alteration of the suit premises the learned Trial Court held that no finding on that issue was necessary because plaintiffs have already been able to prove their case of reasonable requirement and moreover, after the plaintiffs get the vacant possession of the suit premises it is upto them to reside in the suit premises as it is or make any addition and alteration whatever they feel like. Had it been a suit for eviction on the ground in Section 13 (1) (f) of the Act the question of infrastructure, existence of plan etc. should have been taken into consideration; but since the plaintiffs have already established their case under Section 13 (1) (ff)Section 18 A would not have any application.