ARATI GHOSE Vs. SATYANARAYAN TRIPATHI

JUDGEMENT

(1.) THIS is an appeal preferred by the appellant/landlord against the order/judgment passed by the learned 3rd Bench of West Bengal Land Reforms and Tenancy Tribunal, Calcutta under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 in O. A. No. 2627 of 2006 whereby the said Tribunal was pleased to set aside the judgment passed by the learned Judge, 5th Bench of presidency Small Causes Court in Ejectment suit No. 281 of 2004.

(2.) THE respondent-defendant herein is a tenant under the plaintiffs/ appellants in respect of two rooms on the first floor in the outhouses at north-east corner at premises No. 12, Shakespaere Sarani, Kolkata 700071 at a monthly rental of Rs. 100/ -. The appellants instituted a suit for eviction being Ejectment Suit No. 281 of 2004 against the respondent-defendant on the ground of nuisance, annnoyance and for the purpose of building and re-building in the suit premises. The learned Court below after hearing both the sides decreed the suit in favour of the appellants-plaintiffs directing the respondent-defendant to quit and vacate and deliver up peaceful vacant possession of the suit premises in favour of the plaintiffs within thirty days from the date of the order, in default the appellant will be at liberty to execute the decree as per the law.

(3.) AGAINST the said order the respondent-defendant preferred an appeal registered as O. A. No. 2627 of 2006 (LRTT) and the Tribunal after hearing both the sides was pleased to set aside the judgment passed in ejectment Suit No. 281 of 2004 and remanded back the case to the Court below directing the Court to render fresh judgment after allowing the parties to adduced evidence on the points raised in the body of the judgment and in accordance with law as expeditiously as possible preferably within three months from the date of receipt of the copy of the judgment along with the case record. It has been observed by the tribunal that the Court below while passing a decree did not mention the extent of construction already made in terms of the sanctioned plan and the period within which the building construction was to be completed as also the follow-up action to comply with the provision of section 11, sub-section (2) and (3) of the 1997 Act. It is also observed by the Tribunal that more important evidence is required to be brought on record for sustaining such decree of eviction and the Court below ought to have insisted upon some evidence to be brought on record as to the genuineness and veracity and also the mode of such veracity of the assertion by the landlord that the northern outhouses portion of the newly constructed building both for the first floor as also the ground floor had to be kept open to sky as per Building Rules 1990 of Kolkata municipal Corporation by examining the civil engineer from the corporation and like evidence. According to the Tribunal in the absence of such evidence it remains in the layman's domain as to the proposed requirements of the building rules and consequent requirement by the applicant tenant to vacate the suit premises. It is also found by the tribunal that at the request of the landlord one Commissioner was appointed but, evidence on record shows that due to alleged non-cooperation of the tenant the measurement of the suit room could not have been undertaken. In that view of the matter the Tribunal found that ascertainment of the extent of tenancy in the existing suit premises was relevant and the Court below should explore the possibility for ascertaining the nature and extent of tenancy in the suit premises. Thus, the Tribunal set aside the judgment passed by the learned 5th bench, of Presidency Small Causes Court and remanded back the matter to the Court below with further direction already mentioned in the foregoing paragraphs.