Judgment:
Kalidas Mukherjee, J.
1. This appeal is directed against the judgment and decree passed by the learned Additional District Judge, 1st Court, Alipore in Title Appeal No. 110 0f 2001 affirming the judgment and decree passed by learned Civil Judge, Senior Division, 6th Court at Alipore in T.S. No. 99 of 1996. The suit was instituted for ejectment. The case of the plaintiff/respondent, in short, is that the defendant is an ordinary premises tenant under the plaintiff in respect of the part of the premises No. 7/2, Ashutosh Mukherjee Road, Budge Budge, 24 Parganas (South) at a rental of Rs. 90/- per month payable according to Bengali calendar month. The plaintiff is the absolute owner of the suit premises by virtue of a registered deed of gift executed by Santosh Kumar Karmakar in his favour. The fact of the transfer of the property was communicated to the defendant who also sent a letter dated 20.7.1995 to the plaintiff in reply to the plaintiff's letter dated 13.7.1995. The defendant defaulted in payment of rent since Bhadra 1398 B.S. The plaintiff reasonably required the suit premises for his own use and occupation and for the benefit of the members of his family. The plaintiff's family consists of himself, his wife, son and one daughter. Both son and daughter are the students. The plaintiff is residing in his ancestral house at 195 M. N. Sarkar Road, Budge Budge with great hardship. The plaintiff has four brothers of his own and there are five bedrooms in the ancestral house. The brothers are in possession of one bedroom each in the ancestral house. There is acute shortage of accommodation of the plaintiff in his ancestral house and the plaintiff has no other reasonable suitable accommodation elsewhere except the suit premises. The defendant intentionally caused damages to the suit premises. The plaintiff having no alternative sent ejectment notice dated 15.10.1996 by registered post with A/D through his advocate. The defendant duly received notice by putting his signature on the A/D card. The defendant failed and neglected to comply with the said ejectment notice and for the said reasons, the suit for eviction was instituted in the learned Trial Court.
2. The learned Trial Court decreed the suit and the learned Additional District Judge dismissed the appeal affirming the judgment and decree passed by the learned Trial Court.
3. In this Second appeal vide order dated 08.6.2004 the following substantial question of law was formulated:
(1) 'For that in view of the settled position in law that the landlord's need must not only be shown to exist at the date of the suit, but it must exist on the date of appellate decree or the date when a higher Court deals with the matter, in view of the affirmed statements made by the defendant/appellant before this Hon'ble Court in the application under Order 41 Rule 27 of the Code of Civil Procedure, the decision on the same is a substantial question of law before this Hon'ble Court.
4. The learned Additional District Judge dismissed the appeal holding that the plaintiff was the owner of the suit property and that the plaintiff was very much in the need of the suit premises for his own use and occupation and enjoyment of his family members.
5. Learned Counsel appearing on behalf of the appellant submits that the landlord constructed separate house after filing of the suit and the son of the plaintiff has been running a business and the daughter of the plaintiff has also got married and left for her matrimonial home. The learned Counsel submits that in view of the changed position of the family, the plaintiff has no longer the necessity of having the suit premises and the learned Court below was not justified in passing a decree for eviction. It is submitted that a separate application has been filed for adducing additional evidence under Order 41 Rule 27 C.P.C. The learned Counsel has referred to and cited the decisions reported in 1998 CWN 228 [Abdul Hamid and Anr. v. Mosstt. Halima Khatoon and Ors.] ; : AIR2005SC996 [Adil Jamshed Frenchman (D) by L.Rs. v. Sardar Dastur School Trust and Ors.]; : [1988]2SCR44 [Govind v. Dr. Jeetsingh] and : AIR1992SC700 [Ramesh Kumar v. Kesho Ram].
6. The learned Counsel appearing on behalf of the respondent submits that the plan was prepared in the year 1996 and the suit was instituted on 23.12.1996. The learned Counsel submits that the deed of partition was registered in the year 1996 and this fact existed prior to the passing of the decree. It is contended that it cannot be said to be a subsequent event and there is no explanation on the part of the appellant that inspite of exercise due diligence, this fact was not within his knowledge or could not be cited in the learned Trial Court at the time of trial. The learned Counsel further submits that the deed of partition amongst the five brothers was executed in the year 1996 and there is no explanation as to why the appellant herein did not adduce evidence in this regard. It is contended that there is no ground to allow the application under Order 41 Rule 27 C.P.C.. The learned Counsel further contends that the family increases with the marriage of the daughter and the son and it does not alter the situation regarding the need for more accommodation. It is submitted that there is no ground to interfere with the findings of the learned Court below and the appeal should be dismissed.
7. In the application under Order 41 Rule 27 C.P.C. the appellant has contended that the ancestral dwelling house of the respondent is in plot No. 178 of Mouza Kalinagar Bade, P.S. Budge Budge where the respondent has sufficient area and constructed pucca two storied building on his portion and his name has been mutated and numbered as premises No. 195/C, M. N. Sarkar Road. It is further contended that the plaintiff applied for the certified copy in the year 2004, and, as such, could not adduce evidence to that effect in the learned trial Court. It is contended that due to the lack of proper advice, the petitioner could not file application under Order 41 Rule 27 C.P.C. before the learned First Appellate Court for adducing additional evidence.
8. The provisions contained in Order 41 Rule 27 C.P.C. are set out hereunder:
Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
9. The suit was instituted on 23.12.1996. The copy of the plan shows that the deed of partition amongst the plaintiff and his brothers was executed in the year 1996. Therefore, the fact of the plaintiff having his share in the ancestral house and the subsequent alleged raising of construction existed beforehand and it was known to the defendant/appellant. The contention that the appellant applied for the certified copy of the plan at a subsequent stage, cannot be said to be a ground for adducing additional evidence under Order 41 Rule 27 of the C.P.C. It cannot also be contended that inspite of exercise of due diligence, this fact was not known to the appellant or could not be cited at the time of trial. I am, therefore, of the considered view that the matter does not come within the scope or ambit of Order 41 Rule 27 C.P.C. and there is no ground to allow the application under Order 41 Rule 27 C.P.C. The decisions cited by the learned Counsel for the appellant are not applicable in the different facts and circumstances of the instant case.
10. P.W. 1 has stated that his family consists of himself, his wife, son and daughter. It is also in his evidence that he resides in one room of the ancestral house and there is no separate toilet. He has stated that the verandah is used as kitchen and that he has no suitable accommodation elsewhere.
P.W. 3, the brother of P.W. 1, has stated that the plaintiff resides in one room of the ancestral house.
It is, therefore, clear from the evidence that the need of the plaintiff is genuine and he has no suitable accommodation elsewhere. The element of need does not get diminished with the marriage of son and daughter.
11. Considering the evidence on record, I find that the learned First Appellate Court was justified in dismissing the appeal and there is no ground to interfere with the findings of the learned Court below.
12. There is no merit in this appeal and the same stands dismissed. The application being CAN 4176 of 2004 under Order 41 Rule 27 C.P.C. is rejected. There will be no order as to costs.
13. Let a copy of this order along with the L.C.R. be sent to the learned Court below immediately.
14. Urgent Xerox certified copy, if applied for, be handed over to the parties as early as possible.