Calcutta High Court (Appellete Side)
Rabindra Nath Bera Since Deceased Nisha ... vs Duryodhan Das Since Deceased Smt. ... on 6 December, 2023
IN THE HIGH COURT AT CALCUTTA
(CIVIL APPELLATE JURISDICTION)
PRESENT:
THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY
S.A. 27 of 2016
CAN 3 of 2015
CAN 4 of 2016
CAN 5 of 2018
CAN 9 of 2023
Rabindra Nath Bera since deceased Nisha Bera & Anr.
VS.
Duryodhan Das since deceased Smt. Menoka Das & Ors.
For the Appellants : Mr. Tarak Nath Halder, Adv.
Mr. Sagnik Chatterjee Adv.
For the Respondents. : Mr. Siddheswar Chandra, Adv.
Mr. Sandip Dutta
Hearing concluded on : 6th December, 2023
Judgement on : 6th December, 2023
Siddhartha Roy Chowdhury, J (Oral):
1. Challenge in this appeal is to the judgement and decree passed by
learned Judge, Small Causes Court at Sealdah, District-24 Parganas
South in Title Appeal No. 38 of 2010, affirming thereby the judgment and
decree passed by learned Civil Judge (Junior Divisin), 1st Court at
Sealdah on 15th June, 2010 in Title Suit No. 256 of 2000.
2. For the sake of convenience the parties will be referred to as they
have been arrayed in the suit.
3. Briefly stated that the plaintiff-Duryodhan Das since deceased,
acquired the property in suit by purchase, which was occupied by
tenants and the present defendant is one of the tenants in respect of the
property described in schedule of the plaint at a monthly rental of Rs.
40/- payable according to the English calendar month.
4. It is further contended that the defendant did not pay any rent since
November, 1993, he acted in the breach of provision of Section 108
Clause (m),(o) and (p) of the Transfer of Property Act. That apart the suit
property is reasonably required by the plaintiff for his own use and
occupation along with the family members.
5. A statutory notice to quit was issued to the defendant tenant
terminating the tenancy. The tenant since failed to adhere to the terms of
the notice, the suit was filed for his eviction.
6. The defendant contested the suit by filing written statement denying
all materials averments of the plaintiff. The defendant challenged the
status of the plaintiff as owner of the property. According to the
defendant the suit property is not reasonably required by the plaintiff as
he has suitable accommodation. The defendant prayed for dismissal of
the suit.
7. Learned trial court after considering the pleadings of the parties
framed issues and after taking into consideration the testimony of
witnesses as well as other documentary evidence was pleased to answer
the issue no. 4 touching upon the reasonable requirement of the plaintiff,
in the affirmative. Consequently the suit was decreed.
8. The defendant made an unsuccessful attempt to get the decree of the
learned Trial Court reversed in the first appeal.
9. Hence, the second appeal which was admitted on the following
substantial questions of law on 5th May, 2015:-
"(1) Whether the Judgments and decree passed by the learned
Judges of the Courts below can be declared to be a nullity in view
of the provisions laid down in Section 8 read with Section 12 read
with Section 21 of the West Bengal Thika Tenancy (Acquisition &
Regulation) Act?
(2) Whether the learned Judges of both the courts below lacked
jurisdiction to hear out the suit for eviction filed by the Thika
Tenant/Plaintiff against the Bharatia/Defendant in view of the
provisions laid down in Section 8 read with Section 12 read with
Section 21 of the West Bengal Thika Tenancy (Acquisition &
Regulation) Act, 2001?
(3) In view of the specific admission of the P.W.1 in cross-
examination that six tenants have aleady left their tenanted
accommodation, whether the learned Judsges of both the courts
below substantially erred in law by not holding that the plaintiffs'
requirement of 3 additional rooms have already been satisfied?
(4) Whether the learned Judge of the Trial Court substantially
erred in law by making out a third case that the plaintiffs might
have inducted other tenants in their place"?
10. Mr. Tarak Nath Halder, learned counsel for the appellants at
the outset submits that this court is required to take into consideration
subsequent development that occurred during the pendency of the
second appeal when one Benay Bera, a co-tenant delivered vacant
possession of the room occupied by him in favour of the plaintiff.
Assailing the impugned judgment Mr. Halder submits that the suit as
framed is not maintainable in law in view of Sub-Section 3 Section 8 read
with Section 21 of the West Bengal Thika Tenancy (Acquisition &
Regulation) Act, 2001.
11. It is submitted further that learned Trial Court as well as First
Appellate Court decided the suit ignoring the fact that there was ouster of
jurisdiction.
12. Sub-Section 3 of Section 8 and Section 21 of the West Bengal Thika
Tenancy (Acquisition & Regulation) Act, 2001 is reproduced herein
below:-
"8(1) XXXXXX
(2) XXXXXX
(3) Any dispute regarding payment of rent by the thika tenant to
the State Government or by a bharatia to a thika tenant, or any case f
eviction of bharatia, shall be disposed of by the Controller in such
manner as may be prescribed".
(4) XXXXXX
"Section 21. Bar to jurisdiction.-No civil court shall have
jurisdiction to decide, or to deal with, any question, or to determine any
matter, which, by or under this Act is required to be, or has been,
decided or dealt with, or which is to be, or has been, determined, by the
Controller or the appellate or other authority specified in the provisions of
this Act, and no order or judgment passed, or proceedings including
execution proceedings commenced, under the provisions of this Act shall
be called in question in any civil court".
13. But Mr. Halder, learned counsel fails to refer to the provision of
Section 27 of the said Act which is reads as below :-
"Section 27. Repeal and savings.-(1) With effect from the date of
commencement of this Act, the Kolkata Thika and other Tenancies and
Lands (Acquisition and Regulation) Act, 1981 (West Ben.Act XXXVII of
1981), shall stand repealed.
(2) Notwithstanding the repeal of the said Act, such repeal shall
not-
(a) affect the previous operation of the said Act or anything duly
done or suffered thereunder; or
(b) affect any right, privilege, obligation or liability acquired, accrued
or incurred under the said Act; or
(c) affect any penalty, forfeiture or punishment incurred in respect of
any offence committed against the said Act; or
(d) affect any investigation, legal proceeding or remedy, in respect of
any such right, privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture or punishment
may be imposed, as if this Act had not been passed".
14) The suit was filed in the year 2000 precisely on 28th July, 2000 and
this Act West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001
came into force subsequent thereto.
15) The Repeal and Savings Clause as laid down under Sub-Section 2(d)
of Section 27 is the answer to the issue of ouster of jurisdiction as raised
by learned Counsel for the appellants.
16) Thus the substantial question nos. 1 and 2 cannot be answered in
the affirmative to the benefit of the appellant.
17) Mr. Halder, learned counsel further makes me go through the
testimony of PW precisely to the cross-examination wherein the witness
admitted that out of nine tenants, six tenants vacated their rooms. Total
six rooms were under their occupation and none of them gave any
possession letter. According to Mr. Halder at the time of filing of the suit
the plaintiff was in need of four rooms. During pendency of the suit six
tenants left the suit premises. On the other hand the original plaintiff and
one of his sons passed away during the pendency of the lis. Therefore, as
on date, the plaintiffs cannot be said to have any requirement of room
and for that the eviction of this appellant is unwarranted.
18) Though, on the question of fact there is concurrent findings by the
courts below, yet taking into consideration the admitted position that
during pendency of the appeal one of the tenants Benoy Bera left the suit
property and there was change in number so far the family members of
the plaintiffs are concerned. This court consider it apt to revisit this
factual aspect.
19) Mr. Halder is allowed to give his narrative as to the requirement of
the landlord, though he is representing the tenant who cannot dictate the
landlord how to use the property, only for the purpose of understanding
the issue from the point of view of common cause of events and human
probability.
19) According to Mr. Halder the widow of the original plaintiff and
widowed daughter-in-law of the original plaintiff should have one room
each for their use and occupation. The son and his wife should require
one room, the grand son and grand daughter of the original plaintiff
should be allowed to occupy one room each, the drawing room can be
occupied by guests and the said room can be used as drawing cum guest
room and kitchen is already there.
20) Admittedly at the time of filing of the suit there were eleven members
in the family of the plaintiff, with the demise of two including the original
plaintiff and marriage of the daughter, the said number has come down
to eight. If we go by the suggestion of Mr. Halder though he is
representing the defendant, at least eight rooms should be the bare
minimum requirement of the plaintiffs. We cannot ignore the fact that the
children of the family of the plaintiffs should require separate rooms for
the purpose of their living and separate rooms for the purpose of their
study.
21) While going through the judgment passed by learned trial court, I
find that the plaintiff is in occupation of four rooms out of which two
rooms are measuring about 24 Sq. Ft. And 46 square fit. Those two
rooms cannot be said to be fit for human habitation.
22) The kitchen being used as bed room therefore, even if we look to the
factual aspects it cannot be said that the requirement of the plaintiffs has
been satisfied, without disturbing the possession of the defendant.
23) Though the learned trial court while passing the judgment observed
that the plaintiff might have inducted some persons as tenants after the
tenants in occupation of the suit property left the suit house, there is
neither pleading nor evidence to that effect. Therefore, the learned trial
court had no reason to make such observation. However, such
observation of learned trial court is not affecting the requirement of the
plaintiffs to have more rooms for decent living. The concurrent findings of
learned courts below do not warrant any interference.
24) The appeal in my view is devoid of merit and should be dismissed
which I according do. The impugned judgment and decree stand affirmed.
Thus the appeal is disposed of with connected applications, if any.
25) The defendant is directed to quit and vacate the suit property within
three months from date, failing which the plaintiff will be at liberty to put
the decree in execution.
26) Let a copy of this order along with lower court records be sent down
forthwith.
27) Urgent Photostat certified copy of this order, if applied for, be given to
the parties upon compliance of all formalities.
(SIDDHARTHA ROY CHOWDHURY, J.)
