Judgment:
S.P. Talukdar, J.
1. This is an appeal against the judgment and decree dated 30th July, 2001 passed by learned Second Court of Civil Judge, (Senior Division), Alipore, 24-Parganas (S) in Title Appeal No. 233 of 1998 thereby affirming the judgment dated 30th July, 1998 passed by learned Civil Judge, (Junior Division), First Court, Alipore, in Title Suit No. 584 of 1991.
2. The background of the present case may briefly be stated as follows:
Respondent No. 1, namely, Provat Kumar Pal, as plaintiff, filed a suit being Title Suit No. 584 of 1991 for eviction and recovery of possession. While claiming to be the owner of the suit property, he stated that the defendants are tenants at monthly rental of Rs. 275/- payable according to English Calender month. He claimed that he has reasonable requirement of the suit premises for his own use and occupation as well as for his family. He does not have reasonably suitable alternative accommodation. Notice of ejectment dated 05.10.1991 was served upon the defendants but they did not vacate the suit premises.
3. The said suit was contested by the defendant Nos. 1 and 2. Apart from denying all the material allegations made in the plaint, they challenged service of legal, valid and sufficient notice of ejectment. They alleged that there was no proper service of notice of ejectment upon defendant Nos. 3 and 4. It was stated that plaintiff alone being not the owner of the suit property the suit is bad for non-joinder of necessary party. They denied that the plaintiff reasonably requires the suit premises and claimed that he has alternative accommodation elsewhere as he is owner of the premises No. 42/216, New Ballygunj Road, which is also in his possession. It was further stated that the suit was filed out of grudge as they did not agree to enhance the rent. Dismissal of the suit with cost was so prayed for.
4. Upon the pleadings learned Trial Court framed as many as seven issues and after due consideration of facts and materials by judgment dated 30.07.1998 decreed the suit on contest with cost. The defendants in the suit were directed to vacate the premises within a period of 90 days.
5. The said judgment and decree passed by the learned Trial Court were sought to be assailed by the defendants by way of filing an appeal. The said appeal being Title Appeal No. 233 of 1998 was also dismissed. Thereafter the present appeal was filed.
6. Grievances of the appellants, as ventilated, are as follows :
Learned Courts below failed to appreciate the evidence-on-record. There was no effective consideration of the possibility of partial eviction. There was further failure on the part of the learned First Appellate Court in appreciation of the fact that the tenants may agree to partial eviction even at the appellate stage. There could be little justification for passing a decree of eviction without having sufficient evidence indicating that there was a partition by virtue of which the plaintiff became the owner or that plaintiff had reasonable requirement of the suit premises.
7. In the circumstances prayer was made in such appeal for setting aside the judgments passed by the learned Courts below.
8. Learned Counsel for the appellant submitted at the very outset that mere fact that the appeal was admitted on limited grounds does not prohibit the Court from taking other aspects into consideration. It was submitted that though this is a second appeal and there had been concurrent findings of facts, this does not by itself prevent the High Court from exercising jurisdiction when there are glaring inconsistencies and contradictions in the evidence.
9. The Apex Court in the case of State of Rajasthan v. Harphool Singh (Dead) through his LRs., reported in 2000(5) SCC 652, submitted that the High Court is not hampered by the provisions of Section 100 of the Civil Procedure Code from interfering with even concurrent findings of the fact of the lower Courts.
10. Section 100 of the Code of Civil Procedure clearly lays down that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
11. It is for the High Court to formulate the question if it is satisfied that a substantial point of law is involved in the case. Ordinarily such an appeal need be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. It is, however, clearly stated that the Court has the power to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
12. Thus, the legal position does not leave any scope for controversy in this regard.
13. Much was submitted on behalf of the appellant in regard to maintainability of the suit. According to learned Counsel for the appellant, the suit is not maintainable in view of non-joinder of necessary parties. Proper appreciation of this aspect demands reference to the background of the case. It is claimed that father of the plaintiff was the owner of the suit property. He died in 1958. With his death, his two sons namely Provat and Prafulla and only daughter, Bijoli stepped into his shoes. Naturally, all of them got 1/3rd share each of the suit property. Bijoli, however, gifted her share of the property in favour of two brothers by registered Deed of Gift. Thus, the each of the two brothers became owner of 50% share of the property. This was followed by an amicable partition.
14. It was claimed on behalf of the plaintiff that by virtue of such partition, the disputed property went to the share of the plaintiff. Such assertion as made on behalf of the plaintiff was corroborated by his said brother who was naturally a member to the amicable partition as referred to earlier. Significantly enough, this was also admitted by Smt. Shila Sanyal, who deposed as DW-2.
15. Learned Counsel for the appellant, however, referred to the decision in the case of Santilal Dulichand Shah v. Ramesh Chandra Guzrati, reported in 1980(2) CLJ 518. It was decided in the said case by Id. Division Bench of this Court that it is not possible in the factual backdrop of the said case to accept the broad proposition that where there has been an attornment, the defendant would be under no circumstances entitled to deny the derivative title of a reversioner. But in the factual backdrop of the present case and the manner in which the plaintiff became the owner of the suit property, there can be no question of making anyone else a party. The ground of non-joinder of party thus does not seem to have any legs to stand upon. It clearly follows from the aforesaid position that there was no requirement of any further service of notice of ejectment upon anybody.
16. Learned Counsel for the respondent referred to the decision in the case of Kanta Goel v. B.P. Pathak and Ors., reported in AIR 1977 SC 1599, in support of the contention that by consent, implicit or otherwise one of the coheirs representing the body of landlords can very well collect rent and if so, he is entitled to institute proceedings for eviction.
17. Attention of the Court was also drawn to the decision in the case of Ram Pasricha v. Jagannath and Ors., reported in AIR 1976 SC 2335, while submitting that the plea of non-joinder also is required to be taken up at earliest opportunity.
18. In view of the earlier findings, any further discussion in this regard does not seem to be necessary.
19. The materials on record clearly indicate that there had been an amicable partition and formal partition in the background of the evidence on record can very well be presumed.
20. On behalf of the appellant, reference was made to Section 13(4) of the West Bengal Premises Tenancy Act. It clearly lays down that if the Court is of the opinion that requirement of the landlord may be substantially satisfied by ejecting the tenant from a part of the only premises and allowing the tenant to continue in occupation of the rest, then, if the tenant does not agree to such occupation, the Court shall pass a decree accordingly.
21. According to Id. Counsel for the appellant it is the duty cast upon the Court to assess the situation properly, if not critically. After all, it is bona fide requirement and not desire of the owner - landlord which need be taken into consideration.
22. In this context, Id. Counsel for the appellant referred to the decision in the case of Sardar Singh v. Bimal Krishna Basu and Ors., reported in 59 CWN 430. In the said case, the tenant did not initially agree to partial eviction. It was held that the Appellate Court is entitled to take up the matter for its consideration if there is any change in circumstance and if situation permits, may give effect to the relief under the said statutory proviso.
23. In the case of Om Prakash Asija v. Monohar Lal Kakar, reported in 65 CWN 1201, it was held that it is the statutory duty of the Court to form an opinion in regard to the plea of partial eviction. Even failure of the tenant to take any plea under Sub-section (4) of Section 13, does not relieve the Court of such statutory duty. It seems to be the settled position of law that in each individual case the Court is to form an opinion in this respect having full regard to the facts and circumstances of the particular case.
24. No doubt, the Appeal Court also can go into the aspect relating to partial eviction provided there has been any change of circumstance.
25. In the present case, the Id. Trial Court did not fail to discharge its statutory duty and option was clearly given to the tenant but the offer was declined. There is no such change of events from the side of the appellant/ tenant so as to justify fresh consideration. It does not seem to be the genuine demand of the appellant/tenant. It is like raising objection for the sake of objection only. Nothing on record could reveal that the appellant even after initial refusal had a change of mind and was agreeable to part with a portion of the tenanted premises.
26. Next it was argued on behalf of the appellant that the Id. Courts did not effectively explore the evidence relating to availability of reasonably suitable alternative accommodation. In this context reference was made to the decision in the case of Lakshman Chandra Saha v. Bansari Mukherjee, reported in AIR 1992 Cal 148. In the said case ground of bona fide requirement was rejected in absence of proof that the plaintiff is not in possession of another reasonably suitable accommodation.
27. Moreover, the evidence-on-record, as analysed by the Id. Trial Court, and thereafter, by the Id. Appellate Court go a long way to establish that the plaintiff is not left with any such reasonably suitable alternative accommodation.
28. Cross-objection was filed and the plea was taken up that certain vital aspects like requirement of a Thakurghar were not taken into consideration. Controversy was raised at the time of hearing of the matter as to how far the Court can take into consideration the subsequent events. According to Id. Counsel for the appellant, the subsequent events having not been brought before the notice of the First Appellate Court, though events reportedly took place during pendency of the first appeal, this Court cannot place any reliance on the same.
29. On the other hand, it was categorically asserted that this Court cannot afford to remain a passive onlooker to the events which took place subsequent to disposal of the case by the Id. Trial Court.
30. The High Court in the case of Ramesh Kumar v. Kesho Ram, reported in AIR 1992 SC 700, held that there can be no hard and fast rule governing the matter. The procedure is not to be burdened with technicalities.
31. In the case of Ram Dass v. Ishwar Chandra and Ors., reported in AIR 1988 SC 1422, it was held that the Court can take cautious cognizance of subsequent events in order to mould relief.
32. It was held in the case of Pasupuleti Venkateswarlu v. Motor & General Traders, reported in AIR 1975 SC 1409, that 'for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.'
33. In the case of Subodh Gopal Base v. Brojendra Kishore Roy, reported in AIR 1954 Cal 90, it was held that the findings of facts, when they are before the High Court, are immune from attack, except on the ground of error of law or procedure within the meaning of Section 100 of the Civil Procedure Code. It may be mentioned in this context that the power of this Court while dealing with a second appeal has already been discussed and referring to Section 100 of the CPC, it has been held already that ordinarily this Court will not interfere when there are concurrent findings of facts.
34. In the present case on behalf of the respondent and in support of the cross-objection it was argued that there had been significant change in the composition of the family and the requirement of the family members. It was submitted that one son of the plaintiff is Inspector of Excise and another is an Engineer. Learned Counsel submitted that they are not expected to stay in a room with asbestos shade. Such aspect as raised on behalf of the respondent cannot just be brushed aside and there is no reason why this Court even in a second appeal cannot take all these into consideration. Moreover, there can be no denial of the fact that the married daughter of the plaintiff occasionally visits her paternal house and there is no proper accommodation left to her. In tune with the settled position of law, I am also of the opinion that this Court is under legal as well as moral obligation to take cautious cognizance of such significant changes of events. The requirement of a family cannot be anything static. It has to vary from time to time and from one situation to another. Naturally the requirement also must vary with the nature of such changes in the matter of composition of the family as well as occupation of the family members and their need.
35. Having regard to the socio-economic background of the family of the plaintiff I am of the view that demand for a Thakurghar cannot be classified or characterized as a 'desire'. In fact, in our society it is quite common to have a thakurghar whenever possible. This is, of course, subject to other things but cannot by any stretch of imagination be brushed aside as mere whimsical desire.
36. In this context, I would like to refer to the observation of the Apex Court in the case of Gaya Prasad v. Pradeep Srivastava, reported in 2001(2) SCC 604. It was observed that developments in lives of landlord and his family cannot be expected to come to a standstill during pendency of eviction petition, especially in view of tardiness and delays plaguing the legal system.
37. The Apex Court directed that there is need for taking judicial note of the fact that there is delay in litigation process. The maladies of the legal system also cannot be lost sight of while appreciating the reasonable requirement of a suit premises.
38. Considering all such facts and circumstances, I find it difficult to appreciate the grievances as ventilated on behalf of the appellant. The issues raised by the respondents also cannot be just brushed aside under the carpet. And, after careful consideration of the evidence-on-record in its entirety and in the facts and circumstance as discussed earlier, I am of the view that the present appeal is liable to be dismissed.
39. Accordingly, the present appeal being Title Appeal No. 233 of 1998 be dismissed on contest. The judgment and decree dated 30th July, 1998 passed by learned Civil Judge, (Junior Division), First Court, Alipore, in Title Suit No. 584 of 1991 and the same dated 30th July, 2001 passed by learned Second Court of Civil Judge, (Senior Division), Alipore in Title Appeal No. 233 of 1998 be affirmed.
40. The present appellant/tenant to vacate the suit premises within a period of three months from this date. In default the respondent/plaintiff will be at liberty to get the suit premises vacated by putting the decree into execution. The respondent/plaintiff will also be entitled to the other reliefs as prayed for.
41. In the nature and background of the case the parties are directed to bear their respective cost.
42. Xerox certified copy of the order, if applied for, be supplied to the parties after due compliance with the legal formalities.
Later :
43. L. C. Rs. be sent back to the Id. Trial Court below by Special Messenger at the cost of the respondent/plaintiff.