Dharanidhar Mondal vs Prasadibala Nandy

Bhaskar Bhattacharya, J.—This second appeal is at the instance of a Defendant in a suit for eviction and is directed against the judgment and decree dated April 17, 1990 passed by the Additional District Judge, 2nd Court, Alipore in Title Appeal No. 11 of 1988 thereby affirming those dated September 13, 1987 passed by the Munsif, 1st Court, Sealdah in Title Suit No. 273 of 1976.

The Respondents filed the aforesaid suit for eviction on the ground of reasonable requirement. According to the plaint case the Appellant was a tenant in respect of two rooms in the ground floor of. the premises at a monthly rental of Rs. 24.00. The Plaintiff No. 1 is the mother and the other four Plaintiffs are her sons who are the joint owner of the suit property. The Plaintiffs further pleaded that they had no other reasonably suitable accommodation elsewhere.

The Appellant contested the aforesaid suit by filing written statement thereby denying the material allegations made in the plaint. The Appellant subsequently filed Additional written statement thereby denying relationship of landlord and tenant between himself and the Plaintiffs No. 2 to 4. The Appellant also disclosed that the Respondents have alternative accommodation at premises i.o. 66/1A, K.C. Ghosh Road.

Thereafter the Respondents amended their plaint stating that the said accommodation at 66/1 A, K.C. Ghosh Road is a trust property of which the Plaintiff No. 1 is a trustee and that the said house is fully tenanted.

The learned Trial Judge on consideration of the materials on record held that the Respondents require the suit premises for their own use and occupation as the total number of the Respondents'' family members was ten whereas they were in occupation of three rooms in the suit building. The learned trial Judge further found that the premises at 66/1 A, Kali Charan Ghosh Road is a trust property and the same is fully tenanted.

Being dissatisfied with the aforesaid judgment and decree passed by the learned Trial Judge, the Appellant preferred an appeal being Title Appeal No. 11 of 1988 which was ultimately heard by the Additional District Judge, 2nd Court, Airport and the learned Additional District Judge by his judgment and decree dated April 17, 1990 was pleased to dismiss the appeal thereby affirming the judgment and decree passed by the learned Trial Judge.

Being dissatisfied with the aforesaid judgment and decree passed by the learned first appellate court, the Defendant has preferred the instant second appeal.

Mr. S.P. Roychowdhury, the learned senior advocate appearing in support of the aforesaid second appeal has advanced two fold submissions.

The first point taken by Mr. Roychowdhury is that his client was inducted by Plaintiff No. 1 alone as will appear from the rent receipts granted by the landlord. Therefore, according to Mr. Roychowdhury, the suit filed by five Plaintiffs is not maintainable. In support of such contention Mr. Roychowdhury has relied upon a Division Bench decision of this Court in Parekh Brothers Vs. Kartick Chandra Saha and Others, Mr. Roychowdhury further contends that the said decision has been approved by the full Bench of this Court in Ratanlal Bansilal v. Kishorilal 1993(1) C.L.J. 193. Thus, the suit should be dismissed for misjoinder of parties.

The second point raised by Mr. Roychowdhury is that in spite of specific defence taken by the Appellant that the Respondents have alternative accommodation at 66/1, Kali Charan Ghosh Road, the Respondents having failed to get the said premises inspected by an Advocate Commissioner, the learned courts below erred in law in holding that the said house is fully tenanted. Mr. Roychowdhury drew my attention to the deposition of P.W. 1, Ranjit Kumar nandy who in cross-examination admitted that he could not say if in that house new tenancy has been recently created. Therefore, Mr. Roy-chowdhury contends that this Court by virtue of the power under Order 41 Rule 25 read with Order 42 of the CPC should send the matter back to the learned first appellate court for the purpose of ascertaining the real position of the said house.

Mr. M.K. Das, the learned advocate appearing on behalf of the Respondents in reply to the first point raised by Mr. Roychowdhury has contended that in view of the fact that the Respondents have proved joint ownership of the suit property, they should be treated to be landlord within the meaning of West Bengal Premises Tenancy Act and although the rent receipt was granted by the mother, she did so for self and on behalf of all her sons. Mr. Das in support of his aforesaid contention relied upon a decision of this Court in Sm. Charu Bala Dey Vs. Sm. Sarashi Bala Roy, and contents that the Division Bench decision in Parekh Brothers v. Kartick Chandra ( Supra) is not applicable to the fact of the present case.

In reply to the second contention of Mr. Roychowdhury, Mr. Das contends that in view of the admission of the Appellant that there are only four rooms in the said house, even if we assume that the said house is not tenanted, the same cannot be a reasonably suitable accommodation. In the suit building the Respondents are in occupation of three rooms and if the Appellant is evicted they would get two additional rooms. There are ten members of the Respondents'' family. Thus, the court cannot ask the Respondents to bifurcate their family for the purpose of staying in the said house at 66/1, Kali Charan Ghosh Road. Moreover the said property is a trust property of which Plaintiff No. 1 is a trustee whereas the suit property is owned by all the Respondents. Mr. Das therefore argues that for the purpose of finding out whether the said property is tenanted, there should not be any remand.

As regards the first point raised by Mr. Roy-chowdhury, in my opinion, the same has no force. In view of the Division Bench decision in Smt. Kalyani Bhattacharjee and Another Vs. Sri Monoranjan Roy, a suit by owner of the house is maintainable notwithstanding the fact that the tenant has been inducted by a third party.

In this case, ownerships of all the Respondents over the suit property has been found by both the courts below and Mr. Roychowdhury did not dispute such finding. Once they are held to be joint owners, in view of definition of ''Landlord'' given in Section 2(d) of the West Benal Premises Tenancy Act, all of them become landlord although the tenant was inducted by the mother. Thus, at the instance of all the owners of the house the instant suit is maintainable. In the case of Parekh Brothers v. Kartick Chandra (Supra) the Division Bench found that all the Plaintiffs were not landlord and as such suit was held to be not maintainable. In Parekh Brothers v. Kartick Chandra (Supra) the Division Bench had no occasion to consider the definition of ''landlord'' as given in West Bengal Premises Tenancy Act. Therefore, the said decision has no application to the fact of the present case.

As regards the second point urged by Mr. Roychowdhury, in view of the fact that there are ten members in the family of the Respondents and they have only three rooms in their occupation in the suit property, even if I accept Mr. Roychowdhury''s contention that there are four rooms in the house at 66/1, Kali Charan Ghosh Road which are vacant, in my opinion, the said house cannot accommodate all the members of the Respondents'' family. Moreover, it is now well settled that a court cannot ask a landlord to bifurcate his family if they desire to stay together. Over and above, as indicated earlier the said house is owned by a trust of which Respondent No. 1 is a trustee. In such a case the Respondents can very well claim possession of a house which is owned by them in their personal capacity.

Thus, I am afraid, I cannot accept the submission of Mr. Roychowdhury that there should be limited remand under Order 41 Rule 25 of the CPC for the purpose ascertaining whether the said trust property is fully occupied by tenant or whether there has been recent induction of tenant.

Both the points raised by Mr. Roychowdhury having failed, there is no merit in the instant second appeal and the same is dismissed.

In the facts and circumstances of the case there will be no order as to costs.