Calcutta High Court (Appellete Side)
Ct. 8 vs Radha Krishna Pal on 6 June, 2022
SAT 172 of 2017
Item 27.
06-06-2022
sg Anjali Pal & Anr.
Ct. 8
Versus
Radha Krishna Pal, since deceased,
represented by his legal heir Debkanta Pal & Ors.
Mr. Gopal Chandra Ghosh, Adv.
...for the appellants
Mr. Sailesh Kumar Gupta, Adv.
...for the respondent No.1
The second appeal has come up for admission.
The appellants have suffered decrees in both the courts
below. The second appeal is directed against the decree of
affirmation passed by the learned Civil Judge (Senior Division),
10th Court at Alipore in Ejectment Appeal No. 3 of 2014 affirming
the judgment and decree dated 27th September, 2013.
Mr. Goutam Chandra Ghosh, the learned Counsel appearing
on behalf of the appellants submits that both the courts below
have completely misdirected its mind in not appreciating that the
defendants are the co-owners of the suit property and the
relationship of the landlord and tenant never existed between the
parties. It is submitted that the father of the appellants, namely,
Sudhir Chandra Pal, has constructed a tile and tin shed structure in
the year 1942. Since then, Sudhir Chandra Pal was in continuous
and exclusive possession of the suit property. Both the courts on
wrong appreciation of evidence arrived at an erroneous conclusion
that the appellants are tenants under the plaintiffs. The findings
with regard to reasonable requirement is also perverse as the
plaintiffs have failed to establish that the space for which they are
carrying on their business is not sufficient.
We have considered both the judgements in detail. The
partition deed marked as exhibit 20 read with rent receipts marked
as exhibit 8 series and the record of rights marked as exhibit 3
conclusively prove the ownership of the plaintiffs in the suit
property and the relationship of landlord and tenant between the
parties. The clear findings of fact in exhibit 8 establishes the
landlord and tenant relationship. The defendants at their own peril
did not take any steps under Section 7(2) of the West Bengal
Premises Tenancy Act and, accordingly, at this stage, the
defendants/appellants have to suffer consequence of non-
complying with the said provision of law. The report of the
Advocate Commissioner read with exh+ibit 21 and exhibit 13
clearly establish that the business is being carried on within the
premises of the plaintiffs and there has been no unauthorised use
of any portion of any land belonging to the defendants.
There are concurrent findings of fact with regard to the
reasonable requirement. The requirement of the plaintiffs has to be
given due importance and the court cannot sit over the need of
requirement of a premises and the nature of such requirement
unless it appears to the Court that such claim is illusory. It cannot
be said that for the purpose of carrying on a business for
construction, the plaintiff would require a larger space than what
is presently under their possession. The defence was that the
portion wherefrom they are carrying on such business is
unauthorised and belonging to the defendant. Even if one accepts
the said submission and once it is established that the plaintiffs are
carrying on business within their own premises which is
insufficient, then it defeats the claim of the defendants to deny
eviction on the ground of reasonable requirement. The
Commissioner's report clearly establishes that the space is
inadequate and the plaintiffs are carrying on business within their
suit premises.
Both on the ground of default and reasonable requirement,
the suit succeeded and we do not find any reason to interfere with
such concurrent findings of facts arrived at by both the Court.
On such consideration, we are not inclined to admit the
second appeal. The second appeal stands dismissed. However,
there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for,
be supplied to the parties upon compliance of all requisite
formalities.
(Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)
