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Monday, May 27, 2013

West Bengal Premises Tenancy Act, 1956- PARTIAL EVICTION NOT APPLICABLE TO THIS CASE = " Considering the evidence adduced by both parties and the principles of law discussed above, I find that the plaintiff is the owner of the suit premises, the compromise decree in T.S. No.55/86 is admissible in evidence, the present accommodation of the plaintiff is not suitable and the suit premises is required for the reasonable requirement of the plaintiff for own use and occupation and for augmentation of her income from the suit premises and there cannot be any partial eviction and as such all these issues be disposed of in favour of the plaintiff."- "It is not expected that the plaintiff being divorcee will reside in the house of her brother and at mercy of her brother and brother's wife. In order to reside peacefully one privy, one kitchen, one bath room and one dining space in other words complete flat is required for the purpose of the residence of the plaintiff, so in the circumstances I hold that the plaintiff has bonafide reasonable requirement of the suit premises for her own use and occupation."- the provision contained in the West Bengal Premises Tenancy Act, 1956 mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire building should be directed to be vacated. However, while deciding the issue of reasonable personal requirement of the landlord, if the trial court or the appellate court also considers the extent of requirement and records a finding that the entire premises or part thereof satisfies the need of the landlord, then, in our considered opinion, there is sufficient compliance of the provision contained in the said Act. 20. Taking into consideration these facts and also having regard to the finding recorded both by the trial court and the appellate court after discussing the question of partial eviction, the substantial question of law framed by the High Court does not arise. Consequently, the impugned judgment passed by the High Court cannot be sustained in law. 21. For the reasons aforesaid, this appeal is allowed. The impugned judgment of the High court is set aside and the judgment and decree of the trial court is affirmed. However, there shall be no order as to costs. 22. The defendant-respondents are directed to vacate the suit premises within three months and hand over vacant possession of the same to the appellant.


REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4539 OF 2013
(Arising out of Special Leave Petition (Civil) No.30300 of 2011)


ANAMIKA ROY Appellant(s)
VERSUS
JATINDRA CHOWRASIYA AND OTHERS Respondent(s)

M.Y. EQBAL, J.:
Leave granted.

2. Aggrieved by the judgment dated 10.2.2011 passed by learned
Single Judge of the Calcutta High Court in S.A. No.342 of 2007,
whereby the second appeal filed by the defendant-respondents was
allowed, the judgments and decrees of the courts below were set aside
and the matter was remitted to the trial court after expressing the
view that considering the provisions of Section 13(4) of the West
Bengal Premises Tenancy Act, 1956 it is a duty cast upon the Court
to consider whether the requirement of the plaintiff could be
satisfied by evicting the defendant from a part only of the suit
property, plaintiff-appellant has preferred this appeal by special
leave under Article 136 of the Constitution of India. The trial
court and the first appellate court had passed decree for eviction
against the defendant/tenant in respect of the entire suit premises in
question.

3. The litigation between the parties started on the filing of
Title Suit No.66 of 1993 by the plaintiff in the Court of 4th Civil
Judge (Senior Division) at Alipore, District 24 Parganas (South) for
eviction and recovery of khas possession of the suit premises against
the original defendant/tenant - Lalji Chowrasia (predecessor of the
respondents) and for mesne profits and compensation for damages to the
suit property. The suit property happens to be a portion of the
ground floor flat consisting of three bed rooms with attached three
bathrooms with modern fittings, sanitary privy, one store room, one
kitchen, one dining room and one covered verandah in the front portion
with grill in the premises No.128/15, Hazra Road, Kolkata.

4. The case of the plaintiff in the above mentioned suit, inter
alia, is that she is the owner and landlady of suit property in terms
of a decree passed on 17.3.1988 in Title Suit No.55 of 1986. She
requires the suit property in occupation of the defendant for her own
use and occupation. She alleges that she is a divorcee and is
occupying one room on the second floor of the three-storeyed building
where her brother with his family is residing. Entire first floor of
the building has been in occupation of a Bank (State Bank of India) as
a tenant. The plaintiff alleges that she has been permitted by her
brother to stay in one room, but since she is having bitter
relationship with her brother's wife, she wants to reside in the suit
property. Her further case is that she does not have any source of
income except a paltry amount of Rs.500/- which she gets as her share
in the rent collected from the tenant-bank. According to her, if she
rearranges the suit premises and makes provision for one room flat,
she will be able to augment a minimum income of Rs.2500/- per month by
letting or leasing it out. She alleges that the original defendant
was guilty of causing damage to the suit premises.

5. The suit was contested by the defendant by filing written
statement contending inter alia that there was no relationship of
landlord and tenant between the parties to the suit. Defendant
further alleged that although the plaintiff might have realized rent
from the defendant and the defendant might have paid/deposited monthly
rent in the name of the plaintiff, yet there could not be any
relationship of landlord and tenant in between the plaintiff and the
defendant. Although defendant did not dispute the fact that plaintiff
has been residing with her brother and his family on the second floor
of the suit holding, but he denied that the plaintiff requires the
suit premises for her own use and occupation. According to the
defendant, her present accommodation is suitable and her statement
that she had no alternative suitable accommodation elsewhere is not
correct. The defendant also disputed the plaintiff's claim of
ownership of the suit premises on the basis of compromise decree
passed in the said Title Suit No.55 of 1986. It is further contended
that the alleged decree is not binding upon the defendant. It appears
from the judgments of the courts below that after the original
defendant died, the respondents herein were substituted in place of
the original defendant. Defendant No.5 also filed a separate written
statement denying pleas of the plaintiff.

6. The trial court by its judgment dated 30.7.2002 decreed the
said suit and directed the defendants to hand over the vacant
possession of the suit premises to the plaintiff within a stipulated
period of time. The trial court found that the defendant had admitted
in evidence that the plaintiff is the landlady of the defendant and
that the suit premises is the portion of the ground floor and the
remaining portion of the ground floor is in possession of the
plaintiff's brother's son. The trial court further found that
admittedly the original defendant was inducted in the suit premises as
a tenant by the father of the plaintiff and the defendants have been
substituted on the death of the original defendant. However, the
trial court did not find any cogent evidence with regard to the
alleged damage to the suit property. The trial court found that the
present accommodation of the plaintiff on the second floor is not
suitable where she has got only one room as per the Will of her father
and she has got no separate kitchen and bath-cum-privy for herself.
Finding the said Title Suit No.55 of 1986 being suit for declaration
and not a partition suit, the trial court found that the decree passed
in the suit was a compromise decree, from which it is clear that the
plaintiff has got title in respect of the suit premises and from Ex.4
- the probate of the Will executed by plaintiff's father it is clear
that the plaintiff has got life-estate in one room on the second floor
and 15% share of rent from the said bank-tenant on the first floor.
Admitting the compromise decree, the trial court concluded that the
plaintiff is the owner of the suit premises and the present
accommodation of the plaintiff is not suitable and the suit premises
is reasonably and in good faith required by the plaintiff for own use
and occupation and for augmentation of her income from the suit
premises and there cannot be any partial eviction as such.

7. Challenging the judgment and decree of the trial court, the
defendants filed Title Appeal No.280 of 2002, which was placed before
the Additional District and Sessions Judge, Fast Track Court-II,
Alipore, who also opined that a complete flat is required for the
purpose of the residence of the plaintiff and the plaintiff has bona
fide requirement of the suit premises for her own use and occupation.
Dismissing the title appeal on 28.2.2005, the first appellate court
took note of the fact that the trial court had already decided that
there was a relationship of landlord and tenant between the parties
and held that the trial court had rightly decreed the suit. The lower
appellate court also found that there is bitter relationship between
the plaintiff and her brother's wife and it is not expected that the
plaintiff being a divorcee will reside in the house of her brother at
the mercy of her brother's wife.

8. The defendants (contesting Respondent Nos.1 and 2 herein)
challenged aforesaid judgment and decree of the lower appellate court
before the High Court by way of second appeal. It appears that the
second appeal was admitted by the High Court on the following
substantial questions of law:
(a) Whether the learned Courts below committed substantial
error of law in not considering the question of partial eviction
of the appellants from the suit property?
(b) Whether the learned Court of appeal below committed
substantial error of law in refusing to consider the question of
partial eviction on the ground that no such prayer was made by
the defendants by totally overlooking the fact that in view of
the provision contained in Section 13(4) of the West Bengal
Premises Tenancy Act, a duty is cast upon the Court to consider
whether the requirement of the plaintiff can be satisfied by
evicting the tenants from a part of the property?

9. On the aforesaid substantial questions of law, it was contended
by the defendants (appellants in second appeal) in the High Court that the
courts below did not consider question of partial eviction and it is the
plaintiff's case to let out a part of the suit property for augmenting her
income. It is the case of the defendant that there is a vacant flat in the
ground floor of the suit holding which was allowed to the brother of the
plaintiff and the same can be provided to the plaintiff for residence.
There is no dispute that in the instant case no local inspection was held
in respect of the suit premises and/or suit building itself.

10. Defendants referred to a decision reported in AIR 1978 SC 413
(Rahman Jeo Wangnoo vs. Ram Chand and others) in support of their
contention submitting that it is mandatory for the Court to consider the
question of partial eviction as contemplated under the West Bengal Premises
Tenancy Act, 1956. Reference was also made to this Court's judgment in
Krishna Murari Prasad vs. Mitar Singh, 1993 Supp (1) SCC 439, in which this
Court has observed that the landlord's requirement having been found
proved, the Court had to consider the matter further according to the
relevant provision of law and the order for eviction from the entire
premises could be made only if a decree for partial eviction in the manner
provided could not substantially satisfy the landlord's requirement.
Plaintiff (respondent in second appeal), on the other hand, submitted that
the question of local inspection in the present case does not arise as the
present occupation of the plaintiff is precarious and that is enough to
prove her reasonable requirement for own use and occupation and there can
be no partial eviction in the present case.

11. The learned Single Judge of the High Court was not inclined to
upset the concurrent finding with regard to the right of the plaintiff in
respect of the suit premises as found by the courts below. From the
materials on record, it appeared to the High Court that the plaintiff
proved her bona fide requirement. However, the High Court is of the view
that the decisions reported in AIR 1978 SC 413 (supra) and 1993 (Supp) (1)
SCC 439 (supra) supported the case of the defendants in so far as their
stand on the question of partial eviction is concerned. Without disturbing
the finding of the courts below with regard to the relationship of landlord
and tenant between the parties to the suit and the plaintiff's ownership in
respect of the suit property, the High Court allowed the second appeal
filed by the defendants and made it clear that the inquiry, that will
thereafter be done by the courts below, shall be limited to the question
whether or not the eviction of the defendants from a part only of the suit
premises can substantially satisfy the plaintiff's need. Liberty has also
been given by the High Court to the parties to the proceedings to adduce
appropriate evidence before the trial court and also to make an appropriate
application for appointment of a Local Commissioner for holding a local
inspection in respect of the suit premises and/or the suit holding.

12. The relevant portion of the findings recorded by the High Court
is extracted herein below:-
"In the facts of the present case no Commissioner was appointed
to hold a local inspection and consequently no local inspection
report is on record. The description of the suit property
appears to be a ground floor flat consisting of three bedrooms
with attached three bathrooms with modern fittings, sanitary
privy, one store, one kitchen, one dining room, one covered
verandah in the front portion with grill in the suit holding,
that is, premises No.128/15, Hazra Road: P.S. Bhowanipore
Kolkata 700026. The learned Lower Appellate Court has found
that the plaintiff would require one privy, one kitchen, one
bathroom and one dinning space that is a complete flat for the
purpose of her residence. As it appears to this Court that none
of the Courts below has examined the question of partial
eviction, the matter should be remitted back to the learned
Trial court since this Court is of the view that considering the
said provisions of Section 13(4) of the said Act of 1956 it is a
duty cast upon the Court to consider whether the requirement of
the plaintiff could be satisfied by evicting the defendant from
a part only of the suit property. The decisions reported at AIR
1978 Supreme Court 413 (supra) and 1993 SUPP(1) SCC 439 (supra)
supported the case of the appellants in so far as their stand on
the question of partial eviction is concerned. In the present
case, the plaintiff's reasonable requirement has been found to
be proved by both the learned Courts below and, accordingly, the
inquiry is now required to be made only with regard to the
question of partial eviction. This Court is also not disturbing
the finding of the learned Courts below with regard to the
relationship of landlord and tenant in between the parties to
the suit and the plaintiff's ownership in respect of the suit
property."

13. We have heard Mr. R.K. Gupta, learned counsel appearing for the
appellant and Mr. Shymal Chakravarti, learned counsel appearing for the
respondent.

14. The question that falls for consideration is as to whether the
High Court is justified in holding that both the trial court and the
appellate court have not examined the question of partial eviction.

15. Both the courts have recorded the concurrent finding of fact
that the appellant is a divorcee old lady and is occupying one room on
second floor of three-storeyed building owned by her brother. The first
appellate court has taken note of the fact that there is a bitter
relationship between the plaintiff and her brother's wife and it is not
expected that the plaintiff being a divorcee resides in the house of her
brother at the mercy of her brother's wife.

16. The trial court while deciding the issue as to whether the suit
premises is reasonably required by the plaintiff or not, has gone into the
details of the difficulties, which the old landlady is facing. While
discussing the question of partial eviction, the trial court referred to a
decision reported as 2001 (3) CHN 244 (Jagat Bandhu Batabayal vs. Jiban
Krishna Roy) for the proposition that the question of partial eviction was
rightly not considered in that case by the appellate court as the tenant
never raised such issue before the appellate court nor any material was
available before the learned Judge to form an opinion that the requirement
of plaintiff can be substantially satisfied by ejecting the tenant from a
portion of the suit premises. In the concluding portion of the judgment,
the trial court observed:-
" Considering the evidence adduced by both parties and the
principles of law discussed above, I find that the plaintiff is
the owner of the suit premises, the compromise decree in T.S.
No.55/86 is admissible in evidence, the present accommodation of
the plaintiff is not suitable and the suit premises is required
for the reasonable requirement of the plaintiff for own use and
occupation and for augmentation of her income from the suit
premises and there cannot be any partial eviction and as such
all these issues be disposed of in favour of the plaintiff."


17. Similarly, in the appeal filed by the respondent-tenant, the
appellate court has also gone into the question as to the reasonable
requirement of the landlady and held that a complete flat is required for
the purpose of residence of the plaintiff. The appellate court held that:-
"It is not expected that the plaintiff being divorcee will
reside in the house of her brother and at mercy of her brother
and brother's wife.
In order to reside peacefully one privy, one kitchen, one
bath room and one dining space in other words complete flat is
required for the purpose of the residence of the plaintiff, so
in the circumstances I hold that the plaintiff has bonafide
reasonable requirement of the suit premises for her own use and
occupation."




18. Having regard to the finding recorded both by the trial court
and the appellate court that the entire flat is required by the plaintiff
landlady for her use and occupation, the High Court has committed grave
error in formulating a question mentioned hereinabove and holding that the
question of partial eviction has to be considered since it is a mandatory
requirement of law. The High Court has further committed serious error of
law in setting aside the judgment and decree of the trial court and that of
the appellate court. Indisputably, the appellant-landlady has been
residing in one room at the mercy of her brother and she needs the suit
premises on the ground of her personal requirement. The suit premises is a
flat consisting of three bedrooms with bathroom, one store room, one
kitchen and one dining room. The suit was filed in the year 1993 and for
the last 20 years the appellant-landlady, who is 58 years old, has been
fighting with the tenant for getting her flat for her own use and
occupation. Both the trial court and the appellate court have considered
the question of partial eviction as noticed above and recorded the finding
that the appellant-landlady needs the entire flat to live there
comfortably. In our considered opinion, it would be too harsh if the flat
which consists of three rooms is divided and a decree in respect of the
portion of the flat is passed which will result in inconvenience for both
the parties. Moreover, the defendant- respondent neither before the
appellate court nor before the trial court or in the High Court has
asserted that a portion of the premises will satisfy the requirement of the
appellant.
19. There is no dispute with regard to the ratio laid down by this
Court in Rahman Jeo Wangnoo vs. Ram Chand and Others (AIR 1978 SC 413) that
the provision contained in the West Bengal Premises Tenancy Act, 1956
mandates the court to consider whether partial eviction as contemplated
therein should be ordered or the entire building should be directed to be
vacated. However, while deciding the issue of reasonable personal
requirement of the landlord, if the trial court or the appellate court also
considers the extent of requirement and records a finding that the entire
premises or part thereof satisfies the need of the landlord, then, in our
considered opinion, there is sufficient compliance of the provision
contained in the said Act.
20. Taking into consideration these facts and also having regard to
the finding recorded both by the trial court and the appellate court after
discussing the question of partial eviction, the substantial question of
law framed by the High Court does not arise. Consequently, the impugned
judgment passed by the High Court cannot be sustained in law.
21. For the reasons aforesaid, this appeal is allowed. The
impugned judgment of the High court is set aside and the judgment and
decree of the trial court is affirmed. However, there shall be no order as
to costs.
22. The defendant-respondents are directed to vacate the suit
premises within three months and hand over vacant possession of the same to
the appellant.


...............................J.
(P. Sathasivam)



...............................J.
(M.Y. Eqbal)
New Delhi,
May 9, 2013.
ITEM NO. IF COURT NO.2 SECTION XVI
(FOR JUDGMENT)



S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS


CIVIL APPEAL NO..4539 OF 2013 @
PETITION FOR SPECIAL LEAVE TO APPEAL ) NO. 30300/2011


|ANAMIKA ROY |.. |Appellant(s) |
| | Versus | |
|JATINDRA CHOWRASIYA & ORS. |.. |Respondent(s) |






DATE : 09/05/2013 This matter was called on for
pronouncement of judgment today.





For Appellant(s) Mr. Shekhar Kumar,Adv.


For Respondent(s) Mr.Braj Kishore Mishra,Adv.




---


Hon'ble Mr. Justice M.Y. Eqbal pronounced the judgment of
the Bench comprising Hon'ble Mr. Justice P. Sathasivam and His
Lordship.


Leave granted.


The appeal is allowed in terms of the signed reportable
judgment.






| [ Madhu Bala ] | | [ Savita Sainani ] |
|Sr.PA | |Court Master |




[ Signed reportable judgment is placed on the file


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