The High Court of Calcutta, while dismissing an appeal filed by the appellant against the order of the First Appellate Court vide which the Learned Court had set aside the decree of the trial court dismissing the suit, held that the trial court committed a substantial error of law in holding that mere construction does not tantamount to a violation of Clauses (m), (o), and (p) of Section 108 of the Transfer of Property Act unless the construction is of such magnitude and nature which diminishes valuation of the property itself.
Brief Facts:
The appeal has been preferred by the Appellant/Defendant/tenant. The Respondents/Plaintiffs/Landlords had instituted the eviction suit on issuing a notice. By a Judgment dated 19th September 2001, the trial court had dismissed the suit on contest. In appeal, the learned Judge set aside the trial court’s decree of dismissal and decreed the plaintiff’s prayer for eviction of the Defendant/Appellant herein. Hence, the present (second) appeal by the Tenant/Defendant/Appellant.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that the order of the trial court is in accordance with law and as such the order and judgment of the first appellate court is liable to be set aside. He further argued that the Respondents/Plaintiffs have sufficient alternative accommodation elsewhere and the addition and alteration as stated is not significant enough to evict the Appellant, as per Section 108 (P) of the Transfer of Property Act.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the judgment under challenge being in accordance with the law needs no interference.
Observations of the court:
The court noted that it clearly appears that the sizable construction in the courtyard made of bricks and cement is an addition (without) permission and alteration (of the Courtyard) by making a Mandir, thus creating both nuisance and annoyance.
The Court observed that the trial court committed a substantial error of law in holding that mere construction does not tantamount to a violation of Clauses (m), (o), and (p) of Section 108 of the Transfer of Property Act unless the construction is of such magnitude and nature which diminishes valuation of the property itself. The Court said that the Learned Appellate (first) court rightly decided the issue of reasonable requirement in favour of the Plaintiffs/Respondents herein by holding that it is for the landlord to decide how and in what manner he should live and he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient, it is not for the court to dictate him to continue to occupy such premises.
The decision of the Court:
The Calcutta High Court, dismissing the appeal, held that the impugned judgment and order of the learned Single Judge is set aside.
Case Title: Puspa Dubey vs. Anjita Mukherjee & Ors.
Coram: Hon’ble Justice Shampa Dutt (Paul)
Case No.: SAT 386 of 2009
Advocate for the Appellant: Mr. Bidyut Kumar Banerjee
Advocate for the Respondent: Mr. Saptangshu Basu
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