SANTASILA KAR Vs. SUMATI ROY

JUDGEMENT

(1.) TITLE Suit No. 90 of 1980 was filed by the original plaintiff Sri Bilash Chandra Roy against the defendant in the First Additional District Court of the learned Munsif of Howrah for eviction of the defendants and for mesne profits, inter alia, on the allegation that the plaintiff was the owner of Holding No. 21/1, umesh v Banerjee Lane, P. S. Sibpur, Dist - Howrah and the defendants were tenants under him in respect of one room with attached verandah in the said holding at a monthly rental of Rs. 30. 80 paisa per month payable according to the English Calendar and in addition to the rent, service charges of Rs. 1. 32. paisa was also payable per month by the defendants to the plaintiff for their said tenancy. The accommodation of the plaintiff, who was also residing' in the same holding, was quite inadequate for him and his family members and as such the suit premises was reasonably required by the plaintiff for his own use and occupation and also for the use and occupation of his family members. The plaintiff's family consisted of 10 (ten) members including himself, his wife, three sons and five daughters. The said suit was decreed in favour of the landlord by the learned munsif' but on appeal, the lower appellate court remanded the matter to the trial court for re-hearing after giving the plaintiff an opportunity to amend the plaint, as according to the lower appellate court, there was no averment in the plaint whether the plaintiff had any other alternative reasonably suitable accommodation. Opportunity was also given to the plaintiff to lead further evidence to prove his reasonable-requirement and to take out a local inspection for showing the extent of his present accommodation. After remand, the plaintiff got his plaint amended, the statement which were controverted by the defendants in their additional written statements and a Commissioner was also appointed for hoi-ding a local inspection in respect of the suit. premises and considering the inspection report of the Commissioner and also the evidence -adduced by both the parties the learned Munsif again decreed the suit in favour of the plaintiff on September 7, 1982 inter alia upon a clear finding that the present accommodation of the plaintiff in the suit premises was not sufficient and he would require the suit premises for his own use and occupation and also for the use and occupation of his family members. An appeal being Title Appeal No. 340 of 1982 was preferred by the defendants against the said judgment and decree of the id. Munsif and the id. Additional District Judge, 1st Court, Howrah by his judgment and decree dated April 8, 1983 dismissed the appeal affirming those of the trial court after going through the evidence on record and also the Commissioner's report, inter alia, upon a finding that there was no escape from the conclusion that the plaintiff had been able to reprove his case of reasonable requirement of the suit premises for his own use and occupation. So far as the. defendants' plea taken in the appeal and also in their additional written statement that the plaintiff had obtained possession of one more room in the suit premises because the tenant of that room had vacated the same, the lower appellate court came to a clear finding that except the defence suggestion that the room occupied by the tenant Sukumar had come in occupation of the plaintiff, there was no independent and eliable evidence to prove that fact. Being aggrieved by the said judgment and decree of the lower appellate court, the defendants had preferred the present second appeal in this Hon'ble Court.

(2.) AS the original plaintiff died in the meantime, his. heirs, who are the respondent in the present appeal, were duly substituted in his place and stead in the said second appeal. In the present second appeal, an application for bringing in certain subsequent facts on record to the effect that the plaintiff obtained possession of some other rooms in the suit premises in the meantime, was filed by the appellants, wherein it was categorically stated that the plaintiffs obtained possession of an extra room in the suit premises during the ejectment proceeding which was coverted into a sweetmeat shop which would prove that the plea of reasonable requirement of the suit premises by the plaintiffs was not genuine. Affidavit-in-opposition and also affidavit-in-reply were filed by the respective parties in connection with the said application.

(3.) MR. Banerjee, ld. Advocate for the appellants, submits that the judgments of the Courts below were passed on an erroneous view of the fact more so when the trial court failed to frame an issue to the fact whether the plaintiffs had reasonably suitable accommodation elsewhere which fact was also overlooked by the lower appellate court and that the plaintiffs had also failed to prove the fact that they had no other reasonably suitable accommodation elsewhere and according to Mr. Banerjee ommision to frame such an important issue and also the failure on the part of the plaintiffs to lead evidence on the same has caused miscarriage of justice in the matter and therefore, according to him the judgments and decrees of the courts below cannot be sustained in law.