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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
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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
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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 threestoreyed 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
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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.
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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.
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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
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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.
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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.
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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?
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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,
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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
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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.
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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
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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.
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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
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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 respondenttenant, 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:-
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“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
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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.
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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
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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.
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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.
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