Smt. Chanda Kamillya & Ors vs Smt. Menaka Jana & Anr
2021 Latest Caselaw 4656 Cal

07.09.2021

PG

S.A. 354 of 2016 r

Smt. Chanda Kamillya & Ors.

Vs.

Smt. Menaka Jana & Anr.

Mr. Supratick Shyamal Mr. Gaurab Ghosh........for appellants

Mr. Shyamal, learned advocate appears on

behalf of appellants, who were substituted defendants

in the suit for eviction of tenant. On 2 nd September,

2021 his submission was recorded as follows:

"Mr. Shyamal, learned advocate appears on behalf of appellants and submits, both Courts below have decided against his clients, who are tenants. Decree for eviction was confirmed. He submits, a question of law arises from appreciation of evidence where there was no local inspection. He prays for adjournment to do some further research.

List under same heading on 6th September, 2021."

Today he relies on judgment of Supreme

Court in Dattatraya Laxman Kamble v. Abdul Rasul

Moulali Kotkunde reported in (1999) 4 SCC 1,

paragraph 8 reproduced below:

"8. When a landlord says that he needs the building for his own occupation there is no doubt he has to prove it. But there is no warrant for presuming that his need is not bona fide. The statute enjoins that the court should be satisfied of his requirement. So the court would look into the broad aspects and if the court feels any doubt about the bona fides of the requirement it is for the landlord to clear

such doubts. Even in a case where the tenant does not contest or dispute the claim of the landlord the court has to look into the claim independently albeit the landlord's burden gets lessened by such non-dispute. In appropriate cases it is open to the court to presume that the landlord's requirement is bona fide and put the contesting tenant to the burden to show how the requirement is not bona fide."

We have perused both judgments of the

Courts below. Contention of appellants that a

question of law is involved in the appeal is based on

appreciation of the evidence regarding proof of

reasonable and bona fide requirement. As such we

need not concern ourselves with concurrent findings

on other issues.

The trial Court said, inter alia, constructive

case of defendant (original) is that plaintiffs are

residing in big house and they have sufficient

accommodation therein. Plaintiffs are rich and they

have several business in Midnapore town. Plaintiff no.

1 has two big shops and two storied pucca building

known as 'Jana Bari' in Midnapore town, having 20

rooms. Issue nos. 7 and 8 were accordingly framed to

be:-

"7. Whether the suit premises is reasonably required by the plaintiffs?

8. Whether the plaintiffs have any other suitable accommodation or not?"

The trial Court appreciated the oral evidence adduced

by both sides on above issues to find that

defendant(s) could not discharge the burden of proof

on the assertion of alternative accommodation had by

plaintiffs. Obviously, the finding was pursuant to

appreciation of case made out by defendant(s), of

alternative accommodation, giving rise to

presumption that the claim for reasonable and bona

fide requirement of plaintiffs, of the demise, was not

seriously disputed and therefore sought to be avoided

by the assertion.

The lower appellate Court appreciated the

evidence adduced on side of defendant(s) as not

furthering their case but supporting and

corroborating plaintiffs' case of not having alternative

accommodation elsewhere. Said Court relied on

section 102 in Evidence Act, 1872 to hold,

defendant(s) failed. Both Courts concurrently found

that plaintiffs had reasonable and bona fide

requirement and accordingly, the decree, as

confirmed.

It cannot be said that just because there was

no local inspection or investigation, the omission

would be fatal to plaintiffs' case of reasonable

requirement. The spectrum of pleadings and evidence

adduced and considered by both Courts below, clearly

indicate that defendant(s) asserted plaintiffs had

alternative accommodation but were found to have

failed to prove the assertion. In Dattatraya Laxman

Kamble (supra), in the paragraph relied upon

Supreme Court said, there is no warrant for

presuming the need is not bona fide. In obtaining

satisfaction of the requirement, Court would look into

the broad aspects and if the Court feels any doubt

about the bona fides of the requirement, it is for the

landlord clear such doubts. In the case at hand, it

appears, case run by defendant(s) was that plaintiffs

had alternative accommodation.

In view of aforesaid, there is no question

involved in the appeal.

S.A. 354 of 2016 is dismissed.

(Arindam Sinha, J.)

(Sugato Majumdar, J.)