Babul Atarthi vs Anita Bhattacharya
2023 Latest Caselaw 6420 Cal

          IN THE HIGH COURT AT CALCUTTA
                 Civil Appellate Jurisdiction
                        Appellate Side
Present:
The Hon'ble Justice Md. Shabbar Rashidi
                    SA No. 459 of 2008

           CAN 2 of 2019 (Old CAN 1807 of 2019)

                        Babul Atarthi
                            Versus
                     Anita Bhattacharya
For the Appellant         : Mr. Kumaresh Dalal, Adv.

For the Respondent        : Mr. Bhaskar Ghosh, Adv.
                          : Mr. Dilip Kumar Maity, Adv.
                          : Mr. Siddhartha Paul
Hearing concluded on      : August 01, 2023

Judgment on               : September 22, 2023

Md. Shabbar Rashidi, J.

1. The instant Second Appeal is in assailment of

judgment and decree dated November 07, 2006 and

November 13, 2006, respectively passed in Title Appeal

No. 54 of 2005 by learned Civil Judge (Senior Division),

Ranaghat, Nadia affirming the judgment & decree dated

July 29, 2005 and August 08, 2005 in Title Suit No. 142

of 1988.

2. The suit premises originally belonged to one Nirmal

Banerjee who died, survived by his widow Biva Rani

Banerjee, son Tapas Banerjee and his daughter Snigdha

Mukherjee.

3. The defendant/appellant was inducted as tenant

in the suit premises in respect of one bed room and one

kitchen at a monthly rental of Rs. 20/- according to

English calendar months.

4. The heirs and successors of Nirmal Banerjee sold

out the suit premises to the plaintiff/respondents by dint

of three deeds of conveyance dated May 06, 1985. One

small room in the suit premises was under khas

possession of the vendors of the plaintiff/respondents.

The said small room and personal belongings of Bivarani,

kept in the said room, was also sold out and possession

thereof was handed over to the purchasers i.e. the

plaintiff.

5. The plaintiff/respondent also claimed that though,

the sale was duly notified to the appellant/defendants,

nevertheless, the defendant put another padlock over the

lock of the plaintiff/respondent on the small room. He

also constructed a wall on the passage of the plaintiff.

6. It was further case of the plaintiff/respondent that

her family consisted of her husband, two unmarried

daughters and a son. The children of the plaintiff were

students. Besides, one unmarried brother of the husband

of the plaintiff used to reside with the plaintiff's family.

The husband of the plaintiff was a Sanskrit Pandit and

used to run private coaching at his house.

7. The plaintiff came up with a case that she required

four bedrooms, one kitchen, one study room, one

drawing room and a small room for the deity. As such,

the suit premises was reasonably required by the

plaintiff/respondent for her own use and occupation as

the existing accommodation of the plaintiff at her in-law's

house was not at all sufficient to meet her requirements.

8. Moreover, the defendant did not pay any rent for the

suit premises to the plaintiff since her purchase and as

such he was a defaulter in payment of rent.

9. The appellant/defendant contested the suit for

eviction. It was the case of the defendant that the entire

suit premises consisted of one big room, one small room,

one kitchen, privy and well was tenanted in favour of the

defendant and his two brothers jointly. The defendant

and his two brothers namely, Shyamal and Bimal used to

pay rent duly through their brother, sent through 'Money

Order' and as such they were not defaulters in payment

of rent. It was also stated that the aforesaid two brothers

of the defendant were still living in joint mess with the

defendant.

10. At the same time, the defendant also made out a

case that as the defendant along with his two brothers

Shyamal and Bimal were joint tenants in respect of the

suit premises, notice to quit served upon the defendant

alone, was not valid, bad in law and cannot be held to be

a sufficient notice.

11. The defendant/appellant also came up with a case

that after purchase, the plaintiff/respondent gave a

proposal through one Jyotish Sen and Hiranmoy

Banerjee, for the enhancement of rent. Such proposal

was accepted by the defendant but ultimately, the

proposal was not accepted by the plaintiff.

12. The defendant also made out a case that the

plaintiff had sufficient accommodation in her existing

abode and as such, she did not reasonably require the

suit premises for her own use and occupation. Besides

this, the defendant also challenged the maintainability of

the original suit and stated that there was no cause of

action for filing the suit.

13. Upon trial of the suit, the learned Trial Court, by its

judgment dated January 31, 1996 decreed the suit in

part passing a decree for eviction of the defendant/

appellant from the small room. It was held that the small

room in the suit premises was not tenanted to the

defendant. However, the prayer of the plaintiff for a

decree for eviction of the defendant from the tenanted

portion on the premises of own use and occupation, was

negated.

14. Challenging the judgment and decree passed in Title

Suit No. 142 of 1988, the plaintiff/respondent carried an

appeal being Title Appeal No. 17 of 1996 which was

disposed of by learned Civil Judge (Senior Division),

Rananghat, Nadia by judgment and order dated

September 18, 1998. The appeal was allowed by setting

aside the order of the learned Trial Court. The suit was

sent back on remand to the Trial Court for fresh

adjudication.

15. By a fresh judgment dated September 26, 2000, the

suit being Title Suit No. 142 of 1988 was disposed of in a

decree for eviction of the appellant/defendant from the

suit premises.

16. The appellant/defendant again preferred an appeal

challenging the judgment and order of the Trial Court

after remand in Title Appeal 07 of 2001.By judgment

dated April 24, 2003, in such appeal, the learned Civil

Judge (Senior Division) set aside the judgment passed by

the learned Trial Court and sent the suit on limited

remand with a direction to write out a fresh judgment

upon a decision on the issue of default in payment of

rent in consideration of certain documentary evidence

adduced by the parties.

17. Upon such remand, the learned Trial Court, upon

consideration of the documents directed in the judgment

in appeal, considered the documents referred to and

decided issue No. 3 against the defendants.

Consequently, by a fresh judgment dated July 29, 2005,

Title Suit No. 142 of 1988 was again decreed in favour of

the plaintiffs/ respondents.

18. Challenging the judgment and order so passed on

July 29, 2005, the defendant/appellant preferred another

appeal by Title Appeal No. 54 of 2005. In course of

hearing of the aforesaid appeal, learned First Appellate

Court, by its judgment dated November 07, 2006

concurred with the findings of learned Trial Court and

dismissed the appeal. The judgment and decree of

learned Trial Court was upheld.

19. It is this judgment dated November 07, 2006 and

decree dated November 13, 2006 which has been

challenged in the present Appeal.

20. It has been submitted on behalf of the

appellant/defendant that learned First Appellate Court

erred in law in deciding the issue of alternative

accommodation without a specific issue in the suit.

21. It was also contended that in spite of arriving at a

conclusion that the appellant/defendant was entitled to

protection under Section 17(4) of the West Bengal

Premises Tenancy Act, 1956, the learned First Appellate

Court erred in affirming the judgment dated July 29,

2005 and decree dated August 08, 2005. According to the

appellant, since the appellant defendant duly complied

with the provisions of Section 17 (2) and Section 17 (2A)

of the Act of 1956, the learned Court was not justified in

holding the defendant/appellant a defaulter in payment

of rent.

22. It was contended that the learned First Appellate

Court committed error in holding the judgment of the

learned Trial Court as judgment on limited remand as

the same was delivered without following the provisions

envisaged under Order XLI Rule 25 of the Code of Civil

Procedure, 1908. The learned First Appellate Court also

erred in taking into consideration the findings which

were otiose to the specific issues framed in the suit.

23. From the pleadings put in by the parties in the

original suit, it transpires that the plaintiff brought the

suit seeking eviction of the defendant/appellant from the

suit premises, mainly on the ground of :

       i.     Reasonable requirement;

      ii.     Default in payment of rent;

      iii.    Unauthorized construction in the suit premises

              causing nuisance and annoyance.

24. On the basis of the pleadings put in by the parties,

the learned Trial Court framed as many as 9 (nine) issues

for the adjudication of the suit viz:

         (1)     Is the suit maintainable?

         (2)     Is the notice to quit legal, valid and served

              upon the defendant?

(3) Is the defendant a defaulter in payment of

rent?

(4) Is the plaintiff entitled to decree as prayed

for?

(5) To what other relief is the plaintiff

entitled?

(6) Does the plaintiff require the suit premises

for her own use and occupation?

(7) Whether the defendant has made any

addition and alteration without the consent?

(8) Whether the Shyamal and Bimal brothers

of defendant were inducted as tenants jointly

with the defendant over the suit premises?

(9) Whether the entire holding was let out to

defendant?

25. Upon admission of the instant Second Appeal, the

following substantial questions of law were framed for

consideration by this Court, namely: -

(a) Whether the learned Court of appeal below

committed substantial error of law in

interfering with the finding of the learned Trial

Judge on the question of reasonable

requirement not on merit but on the ground

that the previous judgment of the Appellate

Court dated 24th April, 2003 while remanding

the matter back was binding by totally

overlooking the fact that by the judgment and

decree dated 24th April, 2003 the first

Appellate Court set aside the entire decree

and, as such, the finding on the reasonable

requirement cannot be binding upon the

learned trial judge?

(b) Whether the learned Court of appeal below

committed substantial error of law in holding

that the order of remand dated 24th April, 2003

constituted res judicata as regards the finding

on the question of reasonable requirement by

overlooking the fact that the entire judgment

and decree were set aside and, therefore, the

finding recorded on the question of reasonable

requirement in the said judgment could not

operate as res judicata?

26. In order to elucidate the substantial question of law as

framed for adjudication of the instant Second Appeal, it

would be convenient to discern the findings of the Trial

Court as well as that of the First Appellate Court on the

issue of 'reasonable requirement' at different stages of the

proceeding.

27. In the original judgment and decree in Title Suit No.

142 of 1988 passed on January 31, 1996 & February 07,

1996, the issue of reasonable requirement vide issue No. 6,

the Trial Court was of the view that the plaintiff did not

reasonably require the suit premises as she was held to be

having suitable alternative accommodation, sufficient to

cater to her needs. The Trial Court held that the plaintiff was

not entitled for a decree of eviction on the ground of

'reasonable requirement'.

28. Such judgment and decree was challenged in Title

Appeal No. 17 of 1996. In the said appeal, it was observed by

the First Appellate Court therein that a document being

assessment register, filed on behalf of the plaintiff (Exhibit 6)

was misconstrued by the Trial Court as that concerning

some other plot of land instead of the suit premises. In such

pretext, by its judgment and decree dated September 18,

1998 & September 19, 1998, the learned First Appellate

Court remanded the suit back, for fresh adjudication upon

giving the parties an opportunity to adduce further evidence.

29. The suit was again heard on remand by the Trial

Court, in terms of the directions of the Appellate Court and

was disposed of by judgment and decree dated September

26, 2000 & November 02, 2000. In the said judgment, the

Trial Court, considered issue No. 6 & 7 together and upon

detailed discussions with regard to the reasonable

requirement of the plaintiff in respect of the suit premises,

came to a decision that the plaintiff actually reasonably

required the suit premises. Incidentally, in course of

discussion, the extent of the families residing at the existing

residence of the plaintiff vis-a-vis her requirements were

discussed at length. Consequently, the suit was decreed in

favour of the plaintiff on the ground of reasonable

requirement and on the ground of default as well.

30. The defendant/appellant again challenged the decree

so passed on remand vide Title Appeal No. 07 of 2001 which

was disposed of by judgment and decree dated April 24,

2003 & May 05, 2003. In the judgment in such appeal,

learned First Appellate Court took note of the fact that eldest

daughter of the plaintiff had expired diminishing her

requirement. During hearing of the appeal, it was pointed

out on behalf of the appellant/defendant that the learned

Trial Court did not frame the specific issue with regard to

availability of suitable alternative accommodation at the

hands of plaintiff. The first Appellate Court noted that the

parties had adduced sufficient evidence in this regard and

the Trial Court, upon discussion in the judgment, had

arrived at a conclusion that the plaintiff had no sufficient

suitable alternative accommodation elsewhere other than

the suit premises. Consequently, the learned First Appellate

court upheld the finding of the Trial Court with regard to

reasonable requirement. At the same time, the Appellate

Court also noted that there was no need to send the suit

back on remand for the purpose of adjudication upon

framing specific issue with regard to suitable alternative

accommodation. In fact, such issue was decided by learned

First Appellate Court upon extensive discussions, by holding

that the plaintiff had no other suitable alternative

accommodation other than the suit premises.

31. However, the First Appellate Court in the judgment &

decree in Title Appeal No. 07 of 2001 held that the suit was

liable to be sent back on limited remand just to find out

whether the defendant was a defaulter or not upon

consideration of challans (Exhits A to A/84). It was

specifically directed that the Trial Court will dispose of the

issue of default i.e. Issue No. 3 afresh after taking into

consideration the challans (Exhits A to A/84) upon hearing

arguments of both sides and to write out a fresh judgment.

In view of such directions, the Appellate Court went on to set

aside the judgment and decree passed by the trial court.

32. The original Title Suit No. 142 of 1988 was again decided

heard by the learned Trial Court and was finally disposed of

in terms of judgment dated July 29, 2005. In the said

judgment, the learned Trial Court decided issue of default in

payment of rent i.e. Issue No.3 afresh, in terms of the

directions of the First Appellate Court, against the

defendant.

33. Since the learned Trial Court was directed to write out

a fresh judgment, a judgment discussing all the issues, were

delivered by the Trial Court. Issue No. 6, i.e. with regard to

reasonable requirement, was also discussed by the Trial

Court resulting in a similar finding to that in Title Appeal

No. 07 of 2001 by deciding the same in favour of the

plaintiff.

34. The appellant/defendant again assailed the judgment

& decree passed on second remand, limited to the issue of

default in Title Appeal No. 54 of 2005. The said appeal was

disposed of by judgment & decree dated November 07, 2006

and November 13, 2006. The learned first Appellate Court,

in the judgment considered the findings of the learned Trial

Court in respect of Issue No.3 i.e. default in payment of rent

at extenso. The Appellate Court upheld the finding of the

Trial Court with regard to first default of the

appellant/defendant in payment of rent. However, it was

held that the appellant/defendant was entitled for the

benefits of the protection under Section 17 (4) of the West

Bengal Premises Tenancy Act, 1956.

35. In the judgment in Title Appeal No. 54 of 2005, it was

also noted by the learned First Appellate court that by the

judgment and decree passed in Title Appeal No. 7 of 2001,

the suit was sent back on limited remand for a decision if

the appellant/defendant was a defaulter in payment of rent

in consideration of certain documents i.e. challans and to

write a fresh judgment.

36. Learned First Appellate Court held that in spite of

specific directions to decide Issue No. 3 afresh, the learned

Trial Court, while writing a fresh judgment, went on to

discuss all the issues afresh, which was never directed in

the judgment dated July 29, 2005. Learned Appellate Court

noted in his judgment that the observations made by the

Trial Court in his judgment dated July 29, 2005 with regard

to the Issues except Issue No.3 were not considered by him,

being beyond the scope of the limited remand.

37. This indicates that for consideration of the appeal

being Title Appeal No. 54 of 2005, findings of the Trial Court

with regard to Issue No. 3 only, in the Judgment dated July

29, 2005 were considered. So far as other issues were

concerned, findings thereon in the earlier judgment of the

Trial Court dated September 26, 2000 were considered to be

final and binding.

38. The appellant/defendant, after the suit was sent back

on remand in terms of judgment & decree passed in Title

Appeal No. 07 of 2001, went back to the Trial Court and

tried their luck with regard to the issue of default in

payment of rent i.e. Issue No. 3. They never preferred any

appeal before an appropriate forum as regards the findings

of the learned Trial Court on other issues including that of

'reasonable requirement' which was upheld by the First

Appellate Court attained finality and was binding.

39. In support of such contention, learned advocate for

the plaintiff/respondent relied upon AIR 1967 Supreme

Court 1124 (Girijanandini Devi V. Bijendra Narain

Choudhary). It was laid down in the said case that,

"12.The Trial Court, as we have already

observed, on a consideration of the entire

evidence and the subsequent conduct of

the parties came to the conclusion that

there was no severance of Bijendra

Narain from his uncle Bidya Narain and

with that view the High Court agreed. It

is true that the High Court did not enter

upon a reappraisal of the evidence, but it

generally approved of the reasons

adduced by the Trial Court in support of

its conclusion.We are unable to hold that

the learned Judges of the High Court did

not, as is contended before us, consider

the evidence. It is not the duty of the

Appellate Court when it agrees with the

view of the Trial Court on the evidence

either to restate the effect of the

evidence or to reiterate the reasons given

by the Trial Court. Expression of general

agreement with reasons given by the

Court decision of which is under appeal

would ordinarily suffice."

40. In such view of the facts and ratio laid down by the

Hon'ble Supreme Court, the findings of the learned Trial

Court in the judgment & decree passed on September 26,

2000 & November 02, 2000, which was upheld in the

judgment and decree dated April 24, 2003 & May 05, 2003

passed in Title Appeal No. 07 of 2001, so far as the finding

on the issue of 'reasonable requirement' is concerned, surely

operated as res-judicata.

41. During the pendency of the instant appeal, the

appellant/defendant came up with an application, being

CAN 1807 of 2019 incorporating certain subsequent events

and sought for adjudication on such points.

42. It was contended that, out of the family members who

were considered for 'reasonable requirement' of the suit

premises by the plaintiff, by the learned Trial Court and the

first Appellate Court, the eldest daughter, husband and

brother of her husband had expired between the year 2000

and 2012. As such, it was alleged that due to such death of

the family members of the plaintiff, her requirement had

diminished. Therefore, it was prayed that the issue of

reasonable requirement should be revisited in the light of

subsequent events. In support of such contention, learned

advocate for the appellant has relied upon AIR 1981

Supreme Court 1711 (Hasmat Rai and another V.

Raghunath Prasad).

43. Upon exchange of affidavits, this Court, by order dated

March 12, 2021 disposed of the CAN application with a

direction that such facts may be agitated on the final

hearing of the appeal.

44. The ratio in the case of Hasmat Rai (Supra) was laid

down by the Hon'ble Supreme Court in the context that the

landlord filed an eviction suit on the ground of reasonable

requirement for starting a business in the suit premises and

during pendency of the appeal thereof, the landlord obtained

decree for possession of another premises which was found

to be sufficient for the nature of requirement of the landlord.

The Hon'ble Supreme Court laid down that,

"14. The definition of

expressions.................... If a landlord

bona fide requires possession of a

premises let for residential purpose for his

own use he can sue and obtain possession.

He is equally entitled to obtain possession

of the premises let for non-residential

purposes if he wants to continue or start

his business. If he commences the

proceedings for eviction on the ground of

personal requirement he must be able to

allege and show the requirement on the

date of initiation of action in the Court

which would be his cause of action. But

that is not sufficient. This requirement

must continue throughout the progress of

the litigation and must exist on the date

of the decree and when we say decree we

mean the decree of the final Court. Any

other view would defeat the beneficial

provisions of a welfare legislation like the

Rent Restriction Act. If the landlord is

able to show his requirement when the

action is commenced and the requirement

continued till the date of the decree of the

Trial Court and thereafter during the

pendency of the appeal by the tenant if

the landlord comes in possession of the

premises sufficient to satisfy his

requirement, on the view taken by the

High Court the tenant should be able to

show that the subsequent events

disentitled the plaintiff, on the only

ground that here is tenant against whom

a decree or order for eviction has been

passed and no additional evidence was

admissible to take note of subsequent

events. When a statutory right of appeal is

conferred against the decree or the order

and once in exercise of the right an

appeal is preferred the decree or order

ceases to be final."

45. However, in the case at hand, it was specifically decided

that the plaintiff/respondent reasonably required the suit

premises and that she had no alternative suitable

accommodation elsewhere except the suit premises.

Moreover, the death of eldest daughter of the plaintiff in the

year 2000, sought to be incorporated for consideration

through CAN application, received consideration both by the

Trial Court as well as First Appellate Court at appropriate

stage of the proceeding and the same cannot be termed as

subsequent event.

46. The death of the brother of plaintiff's husband is of no

consequence. He was never considered either by the Trial

Court or by the Appellate Court to be family member of the

plaintiff/respondent within the meaning of the provisions

contained in the West Bengal Premises Tenancy Act, 1956,

for the purpose of determining 'reasonable requirement' of

the plaintiff/respondent.

47. The death of the husband of plaintiff in 2012 might be

relevant but not of such magnitude so as to deny the

plaintiff the fruits of long drawn litigations since 1988. In

fact, since it was already held in the judgments under

assailment that the plaintiff reasonably required the suit

premises for her own use and occupation and that she has

had no suitable alternative accommodation elsewhere,

death of her husband in 2012 has an effect of

augmentation of her requirement of suitable

accommodation for herself and her family rather than

diminishing it.

48. In the case reported in 2015 (3) CHN (Cal) 564

(Prasanta Kumar Kundu V. Kanailal Khan) a single

bench of this High Court denounced the exercise of the

Trial Court and First Appellate Court embarked upon in

permutation and combination with regard to the

requirement of space claimed by the plaintiff. It was

observed that it did not stood to reasons that both the

learned Trial Court and The Learned Appellate Court

should exercise their mind to permutations and

combinations allotting to the plaintiff the manner in which

the Court thinks the rooms are to be used.

49. The plaintiff/respondent was under obligation to make

out a case of her reasonable requirement, on the basis of

evidence adduced. Such exercise was undertaken by the

respondent/plaintiff, which was accepted by the learned

Trial Court, of course, on the basis of evidence and later

upheld by the learned First Appellate Court. There is no

point in reopening the issue in the wake of deaths in the

family of the plaintiff resulting in alleged diminishing of

the requirement. It has already been noted hereinbefore

that decrease in the requirement of the suit premises by

the plaintiff/respondent on such account was

substantially considered and decided.

50. In the case of Ms. Labanya Niyogi v. W. B.

Engineering Co. reported in AIR 1999 Supreme Court

3331, the Hon'ble Supreme Court upheld the decision of

the High Court in not interfering with the findings of the

learned Lower Appellate Court upon certain factual

aspects based on evidence. As noted above, in the instant

case as well, the learned Trial Court arrived at a decision

on the basis of evidence adduced by the parties. Such

findings were upheld by the first Appellate Court

repeatedly and that was also not challenged by the

appellant/defendant. No justifiable reason is brought forth

warranting interference into the findings of the learned

First Appellate Court with regard to the issue of

'reasonable requirement'.

51. Consequently, both the substantial questions of law

framed for adjudication of the instant Second Appeal,

stand decided. In view of the discussions made

hereinbefore, it is decided that the learned Court of appeal

below committed no substantial error in law in not

interfering with the finding of the learned Trial Judge on

the question of reasonable requirement on the ground that

the previous judgment of the Appellate Court dated 24 th

April, 2003 while remanding the matter back was binding.

It is further held and decided that the learned First

Appellate Court did not commit any substantial error of

law in holding that the order of remand dated 24 th April,

2003 constituted res judicata as regards the finding on the

issue of reasonable requirement.

52. For the aforesaid reasons, I find no reason to

interfere with the impugned judgment and decree dated

November 07, 2006 and November 13, 2006, respectively,

passed in Title Appeal No. 54 of 2005 affirming the

judgment & decree dated July 29, 2005 and August 08,

2005 in Title Suit No. 142 of 1988. The same are hereby

affirmed.

53. Accordingly, the instant appeal being Second

Appeal No. 459 of 2008 (SA 1820 of 2007) along with

CAN 1807 of 2019 are dismissed. In the facts and

circumstances of the case, however, there will be no order

as to costs.

54. The order granting stay of the execution

proceeding granted earlier shall stand vacated.

55. Urgent certified photocopies of this judgment, if

applied for, be given to the learned advocates for the

parties upon compliance of all formalities.

[MD. SHABBAR RASHIDI, J]