Amarjyoti Ray vs Jharna Banerjee

Subhro Kamal Mukherjee, J.—This second appeal arises out of a suit for eviction, which was ultimately registered as Title Suit No. 4 of 1982 in the court of the learned Munsif, Second Additional Court at Alipore. The plaintiff instituted the present suit contending that she was the owner of the suit house and that the defendant was a tenant under her in respect of one flat in the first floor of the suit house at a rental of Rs. 210/- (Rupees two hundred ten) only payable according to English calendar. It is contended that the defendant was a defaulter in payment of rent with effect from December 1975. The plaintiff contended that she reasonably required the suit flat for her own use and occupation and for use and occupation by the members of her family. The family of the plaintiff consisted of herself, her husband, who was a doctor, and her son. It is also, contended that she had no other reasonable suitable accommodation and the present accommodation of one room at premises no. 3A Satya Doctor Road, Calcutta was insufficient considering the necessity of the family. It was also contended that the defendant was causing nuisance and annoyance to the plaintiff and her neighbors and committing acts in violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1882.

The defendant appeared in the suit and contested the same by filing a written statement. The defendant denied all the material averments of the plaintiff in the said suit.

The learned Munsif by the judgment and decree dated July 28, 1983 decreed the suit on contest with cost. The learned Munsif, however. held that the defendant was entitled to protection u/s 17(4) of the West Bengal Premises Tenancy Act, 1956. It was, also, held that there was no material on record to hold that the defendant caused annoyance and nuisance to the plaintiff or her neighbors. The learned Munsif, also, refused to accept the plaintiffs case that the defendant was committing acts in violation of the provisions of clauses (m), (o) and (p) of Section 108 of Transfer of Property Act, 1882 as the plaintiff failed to prove the same. However, the decree has been granted on the ground of reasonable requirement. It was held that the plaintiff was the owner of the suit premises and the family of the plaintiff consisted of herself, her husband and the son. It was held that the plaintiff was in occupation of only one room at 3A, Satya Doctor Road, Calcutta and that the defendant failed to prove that the plaintiff has any other accommodation available for her use and occupation. It was held that the plaintiff required the suit premises for her use and occupation and for use and occupation by the members of her family.

The defendant preferred Title Appeal No. 882 of 1983, which was transferred from the court of the learned District Judge at Alipore to the court of the learned Additional District Judge, Ninth Court at Alipore.

The learned Additional District Judge by the judgment and decree dated September 12, 1986 dismissed the appeal and affirmed the judgment and decree passed by the learned Munsif.

Being aggrieved the tenant has come up with this second appeal.

It was submitted that during the pendency of the present second appeal two flats in the suit house, one in the ground floor and other in the first floor, have been vacated by the tenants thereof and the tenants delivered vacant possession of those flats in favour of the plaintiff. Consequently, an application under Order 41, Rule 27 of the CPC was filed on behalf of the appellant/tenant. Since dispute arose as to whether the tenants of the said two flats have surrendered their possession in favour of the plaintiff or not, the matter was sent back to the lower appellate court by S.K. Hazari. J. by order dated August 10, 1989 with a direction on the learned Judge in the lower appellate court to appoint a commissioner to undertake inspections on the following points:

the commissioner was to find out whether those two flats were lying vacant;

the commissioner was to take measurement and details of the flats.

The learned judge in the lower appellate court was directed to give opportunity to the defendant/appellant to adduce evidence to show that those flats were vacated by the tenants and he was, further, directed to decide the following issue, that is whether any flat has fallen vacant after the passing of the decree in the present suit and if the answer was in affirmative, to decide whether such accommodation along with the present accommodation of the plaintiff was reasonable and sufficient for the plaintiff.

Pursuant to the aforesaid order, the matter went back to the lower appellate court and the lower appellate court appointed an Advocate Commissioner for holding local inspections. The learned commissioner submitted his report on September 7, 1990 after holding local inspections at the locale. It was found by the learned commissioner that the said flats were under lock and key.

The learned judge in the lower appellate court, upon consideration of the additional materials produced before him, in his order dated June 6, 1991, held that the aforesaid two flats were lying vacant and none was in physical possession of the said flats. However, the learned Judge observed that there was no concrete material before him to come to a definite conclusion about the surrender of the tenancies by the tenants of the said two flats.

Mr. Malay Kumar Basu, learned Senior Advocate, appearing in support of the appeal, argued that the suit flat consists of two living rooms and as the plaintiff has already got possession of two other flats in the suit house, the plaintiff has reasonable suitable accommodation available with her for use and occupation by the members of the family and as such the decree passed in the present suit is liable to be set aside.

Mr. Sudhis Dasgupta, learned Senior Advocate, appearing on behalf of the respondent, however, contended that it was for the defendant to establish that the tenants of the said two flats have surrendered in favour of the plaintiff and as they have failed to bring cogent material before the court, the allegation of surrender by the tenants of the said two flats cannot be accepted. Mr. Sudhis Dasgupta submitted that the tenants of the said two flats have not yet surrendered their tenancies.

It is not in dispute that the plaintiff is the owner of the suit house. The composition of the family of the plaintiff is also, not in dispute. Having regard to the nature of the suit flat, there is no question of partial eviction. The only question required to be determined in this appeal is whether the plaintiff has recovered vacant possession of the said two flats, one in the ground floor and other in the first floor in the suit house, and whether the requirements of the plaintiff have been satisfied. It is the contention of the plaintiff that although the tenants of the said two flats have left the said two flats, they have not yet surrendered their possession in favour of the plaintiff. After remand by this court the defendant adduced evidence and examined as many as eight witnesses including himself. The defendant, however, could not prove that the tenants of the said premises have surrendered their tenancies. It was for the defendants, since he knew about the whereabouts of those tenants, to take steps to bring them as witnesses to nullify the contentions of the plaintiff that although they have vacated the flats, but they have not yet surrendered their tenancies.

Section 109 of the Evidence Act, 1872 runs as under:

Section 109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent. When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it.

Section 109, therefore, contemplates a presumption that a state of thing, which is proved to have existed, continues until the presumption is rebutted. The person controverting the state of thing is to prove that the said state of thing does not exist. It is admitted that those persons are tenants of the plaintiff and it is for the defendant to establish that they have surrendered their tenancies. A division bench of this court in the case of Rameswar Koer & Ors. vs. Gobardhan Lal & Ors., reported in 7 CLJ 202 held that It is well settled, however, that when the relation of landlord and tenants exists between two persons in respect of any property, the mere non-payment of rent, though for many years, is not sufficient to show that relationship of landlord and tenant has ceased.

It is settled law that it is for the plaintiff to chose how the plaintiff would use the premises. It is proved in this case that two tenants of the suit house have left their flats, but the plaintiff has not yet initiated any proceeding to recover possession of the said flats from them. It is the plaintiffs choice and the court cannot compel the plaintiff to institute suits against those tenants, whom the plaintiff does not desire to evict. It is not for the tenant to dictate landlady''s choice. Since the requirement of the plaintiff has been established, the mere fact that the plaintiff was able to evict other tanants from the larger portion of the building is not at all significant for determining the reasonable requirement. The Apex Court in the case of Smt. Sheela Chadha and Ors. v. Dr. Achharaj Ram Sehgal, 1990(Supp) SCC 736. observed "The law grants a fair amount of discretion to the landlord to determine his needs when asking the vacation of tenants premises. The only check on that is that must have the ground and the need should be bona fide.

In this case the plaintiff undoubtedly establishes that she has requirement of the suit flat and she has no other accommodation to accommodate her family. The defendant has miserably failed to establish that the two other tenants have not only vacated their flats, but surrendered their tenancies in favour of the plaintiff. The burden of proving that such relationships have ceased is on the party who so asserts; the defendant failed to do so.

Accordingly. I do not find any substance in this appeal and as such the appeal is dismissed. There will be no order as to costs.

Let photocopies of this judgment, if applied for, be supplied to the parties on urgent basis.