Sri Arup Mazumdar Vs. Sri Dilip Kumar Roy and anr. - Court Judgment

S.P. Talukdar, J.

1. The present appeal is directed against the judgment and decree dated 13th March, 2006 passed by learned 13th Bench, City Civil Court at Calcutta in Title Appeal No. 93 of 2005 - thereby affirming the judgment and decree dated 29th August, 2005 passed by the learned Trial Court in Ejectment Suit No. 2723 of 2000. The backdrop of the present case may briefly be stated as follows:

Respondents, as plaintiffs, filed a suit for ejectment of the defendant claiming therein that the defendant was a monthly tenant at a rental of Rs. 140/- according to English Calendar Month. The property was purchased by the plaintiffs by virtue of a registered Kobala dated 16.8.1996 and the defendant accepted the plaintiffs as his landlords by payment and acceptance of rent. Plaintiffs claimed that he had sublet or transferred or parted with possession of the suit premises to Amit Mazumdar and Ashish Mazumdar without the consent of the plaintiffs and he himself shifted to ownership flat at Uttara Apartment at No. 13, Broad Street, Calcutta where he had been residing permanently. Plaintiffs alleged that the defendant failed and neglected to pay rent on and from the month of January, 1998 and as such, was a defaulter in payment of rent in respect of the suit premises. Plaintiffs further claimed that the suit premises is required for their own use and occupation as they have no other alternative suitable accommodation. Plaintiffs have been permanently residing at a rented premises situated at No. 26/1, Ram Mohan Saha Lane, Calcutta. They are in possession of two rooms, one kitchen with common bath and privy.

2. The defendant was served with a notice of ejectment, which was accepted and replied to. The defendant, however, did not bother to vacate the premises thereby compelling the plaintiffs to file the suit for ejectment.

3. The said case was contested by the defendant by filing a written statement, inter alia, denying all the material allegations made in the plaint. Defendant denied to have sublet the suit property or any part of it to Amit Mazumdar and Ashish Mazumdar. Defendant denied to have defaulted in payment of rent and disputed that the plaintiffs required the suit premises for their own use and occupation. Defendant specifically claimed that Amit Mazumdar and Ashish Mazumdar are his brothers and they used to live in the same mess as members for want of accommodation. Defendant temporarily took shelter at Uttara Apartment being No. 13, Broad Street, Calcutta. It was further claimed by the defendant that he along with his said two brothers are living in both the premises at No. 28A, Ram Mohan Saha Lane and Uttara Apartment at No. 13, Broad Street, Calcutta. Defendant further denied proper service of a legal, valid and sufficient notice of ejectment upon him.

4. Learned Trial Court, by its judgment dated 29.8.2005, decreed the suit and directed the defendant to vacate the suit premises and deliver khas possession within two months from the date of delivery of the judgment. The said judgment was assailed by preferring an appeal being Title Appeal No. 93 of 2005. Learned Appellate Court, by its judgment dated 13th March, 2006, dismissed the same. The present appeal is directed against the aforesaid judgments.

5. Learned Division Bench of this Court, by order dated 3rd May, 2006, formulated the following substantial questions of law:

a) Whether the learned Courts below committed substantial error of law in granting a decree for eviction on the ground of reasonable requirement by not considering the question of partial eviction;

b) The plaintiffs having admitted that they got possession of two rooms, bath, privy and kitchen from another tenant prior to the filing of the suit, whether the learned Courts below committed substantial error of law in not considering that the requirement of the plaintiffs can be satisfied by partial eviction of the defendant from the ground floor of the suit property or the first floor of the suit property;

c) Whether the learned Courts below committed substantial error of law in passing a decree for eviction on the ground of the alleged subletting in favour of two of the brothers of the defendant in the absence of any specific evidence adduced on behalf of the plaintiffs that those two brothers did not stay in the property from the very inception of the tenancy;

d) Whether the learned Courts below committed substantial error of law in passing a decree for eviction notwithstanding the fact that the defendant specifically stated in evidence that two brothers of the defendant were all along staying in the property and at the same time, no positive evidence was adduced on behalf of the plaintiffs showing that prior to purchase of new flat by the defendant, those two brothers were residing elsewhere;

6. Mr. Roy Chowdhury, learned Senior Counsel, appearing for the appellant, submitted that the plaintiffs approached the Court with the prayer for ejectment of the defendant on the ground of reasonable requirement as well as subletting. Inviting attention of the Court to the fact that the defendant filed an Affidavit stating that he was agreeable to vacate the disputed premises situated on the ground floor of the suit building and as such, submitted that a decree for partial eviction could very well be passed in favour of the plaintiffs. According to Mr. Roy Chowdhury, this significant aspect did not get the attention it deserved. On careful consideration of the judgment passed by the learned Trial Court and that of the First Appellate Court, this Court finds that there had been detailed discussion relating to the requirement of the plaintiff with reference to the accommodation available.

7. Learned Trial Court clearly held that a decree of partial eviction would not meet the requirement of the plaintiff. This was accepted by the learned First Appellate Court. Having regard to the fact that the accommodation required by the plaintiff was cautiously and carefully analyzed, I find it difficult to appreciate the grievances of the appellant in that regard. If there is reasonable requirement of nine rooms as analyzed by the learned Courts below, there could be very little reason to be tempted or thrilled with the offer that a decree for partial eviction could very well be passed on the defendant's agreeing to vacate the disputed premises situated on the ground floor of the suit premises. True, the Court is under legal obligation to consider whether a decree of partial eviction would meet the reasonable requirement of the owner.

8. On behalf of the appellant, reference was made to the decision in the case of Jivram Ranchhoddas Thakkar and Anr. v. Tulshiram Ratanchand Mantri and Ors. as reported in : AIR1977SC1357 . The Apex Court held that humanist approach by adopting a course of 'live and let live' may be made.

9. In the case of Krishna Murari Prasad v. Mitar Singh as reported in 1993 Supp (1) SCC 439, it was held that the landlord's requirement having been found proved, the Court is to consider the matter further and an order for eviction from the entire premises can be made only if a decree for partial eviction cannot substantially satisfy the landlord's requirement.

10. Referring to the decision in the case of Mst. Mega Begum and Ors. v. Abdul Ahad Khan (dead) by L.R's and Ors. as reported in : [1979]2SCR1 , it was submitted on behalf of the appellant that the words 'reasonable requirement' undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind. The Apex Court in the said decision held that the genuine need should not be taken as mere desire.

11. Mr. Banerjee, appearing as learned Counsel for the respondents/plaintiffs, invited attention of the Court to the Commissioner's report. Referring to the evidence on record, it was submitted by Mr. Banerjee, the plaintiffs had the reasonable requirement of at least nine rooms. It was further submitted that one of the rooms in the ground floor cannot even be truly described as a room. According to Mr. Banerjee, the offer of vacating the ground floor in favour of the plaintiffs, thus, could not have brought any significant change in the complexion of the case. It was rather an empty offer - shadow without substance, form without content.

12. It is necessary to mention in this context that this Court in connection with the hearing of a second appeal has its own constraints. In view of concurrent findings of fact, it is, perhaps, not justified at this stage to measure the evidence with a coffee spoon. Mr. Banerjee contended that this Court can only go for reappraisal of evidence to a very limited extent.

13. Referring to the decision in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta as reported in : [1999]3SCR1260 , it was submitted that the Court would not thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his need. The Apex Court in the said case observed that the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.

14. In this context, reference was further made to the decision in the case of Ragavendra Kumar v. Firm Prem Machinery & Co. as reported in AIR SC 534. The Apex Court held that it is settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.

15. In the case of Siddalingamma and Anr. v. Mamtha Shenoy as reported in : AIR2001SC2896 , the Apex Court observed that 'an approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises so as to protect the tenant's continued occupation in tenancy premises.' It is true that the bona fide requirement is in praesenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire.

16. In the case of Meenal Eknath Kshirsagar (Mrs.) v. Traders & Agencies and Anr. as reported in : AIR1997SC59 , it was held that the landlord is the best judge of his residential requirement and availability of alternative accommodation, irrespective of its suitability, may not be decisive.

17. In the case of M.L. Prabhakar v. Rajiv Singal as reported in (2001) 2 SCC 355, the Apex Court held that the bona fide requirement of landlord must be suitable in the sense of size also and the family of the landlord cannot be forced to split up.

18. Mr. Banerjee, relying upon the decision in the case of Thimmaiah and Ors. v. Ningamma and Anr. as reported in 2001 WBLR (SC) 156, submitted that in view of the concurrent findings of Lower Courts, the High Court is not entitled to reassess the evidence and arrive at different conclusion.

19. In the case of Mukund Balkrishna Kulkarni v. Kulkarni Powder Metallurgical Industries and Anr. as reported in (2004) 13 SCC 750, the Apex Court held that even inclusion of the words 'perverse' and 'interpretation' in the questions do not give a licence to in fact sit in appeal and reappraise the entire evidence as it if were sitting as a Court of first appeal.

20. In the context of the aforesaid discussion, it may very well be said that the present case certainly does not deserve a fresh look at the evidence on record or a reappraisal of evidence in view of concurrent findings of fact. There is absolutely no material so as to remotely suggest that the learned Courts below while appreciating the reasonable requirement of the landlord-owner did not take a proper and rational view. The plaintiffs' obtaining possession of two rooms, bath, privy and kitchen from another tenant prior to filing of the suit also could not make any substantial change nor could it bring about any significant change in complexion. In my opinion, the issue relating to partial eviction was considered in its right perspective leaving little scope for this Court for further analysis.

21. This answers to the first two substantial questions of law, as formulated by the learned Division Bench. According to Mr. Roy Chowdhury, the learned Trial Court as well as learned First Appellate Court were not at all justified to hold that the defendant was guilty of subletting the suit premises.

22. True, in order to prove tenancy or sub-tenancy two ingredients are to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent. Ref: Dipak Banerjee v. Smt. Lilabati Chakraborty : [1987]3SCR680 . In the case of Shalimar Tar Products Ltd. v. H.C. Sharma and Ors. as reported in : [1988]1SCR1023 , it was held by the Apex Court that in order to constitute subletting there must be parting of the legal possession by the lessee. Parting of the legal possession means possession with the right to include and also right to exclude others. Mr. Roy Chowdhury, deriving inspiration from the decision in the case of Jagan Nath (Deceased) through LRs. v. Chander Bhan and Ors. as reported in : AIR1988SC1362 , submitted that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by diverting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession.

23. In this context, Mr. Banerjee, as learned Senior Counsel for the respondents, relying upon the decision in the case of Bhairab Chandra Nandan v. Ranadhir Chandra Dutta as reported in : AIR1988SC396 , submitted that when the findings are in favour of the landlord by the Lower Courts on the basis of evidence, any interference in the Second Appeal is unjustified.

24. In the case of S.A. Vengadamma and Ors. v. Jitendra P. Vora and Anr. as reported in : (1997)11SCC334 , the Apex Court dealt with abandonment of interest in the tenancy. It was held that the tenant's brother is not included within the statutory definition of 'family' of the tenant. The Apex Court took into consideration the fact that the brother was not living with the tenant permissively and the tenancy at the inception was not obtained by joint family of which the brother was a member. In the factual backdrop of the said case, the Apex Court held that the very act of the tenant of vacating the premises shows that he had abandoned his interest in the tenancy in favour of his brother and in the eye of law effecting a transfer, if not subletting.

25. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. In the process, the landlord is kept out of the scene. The Apex Court in the case of Bharat Sales Ltd. v. Life Insurance Corporation of India as reported in : [1998]1SCR711 , held that the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of a person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of the property.

26. After taking into consideration all relevant aspects, this Court finds it difficult to appreciate the grievances as ventilated on behalf of the appellant. No doubt, a decree for ejectment being penal in nature, it demands strict construction. It may be worth mentioning that the learned First Appellate Court held that 'the defendant/appellant has failed to file a single scrap of paper that his brothers and the sister lived with him all along in the premises in suit since 1962. During deposition he had admitted that his brothers have ration cards and voters' identity cards at the premises in suit but he has failed to produce such papers before the Court in support of such contention.'

27. The learned First Appellate Court firmly held that the appellant before it failed to show that since inception of the tenancy the two brothers and the sister of the appellant have been residing with him.

28. By no means it can be held in the backdrop of the evidence on record that there was no sufficient evidence on behalf of the plaintiffs indicating that the two brothers did not stay in the property from the very inception of the tenancy. The claim made on behalf of the defendant that his brothers were all along with him in the suit premises does not seem to have any rational basis and it failed to inspire confidence of the learned Courts below, and very rightly so.

29. In view of the discussion made above, I do not find any sufficient reason so as to justify any manner of interference with the impugned judgment. The present appeal being S.A. No. 225 of 2006 fails and be dismissed. There is no order as to costs.

30. The appellant/defendant is directed to vacate and deliver khas possession of the suit premises in favour of the plaintiffs within two months from this date, failing which the plaintiffs would be at liberty to execute the decree through Court in accordance with law.

31. Urgent xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.