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2005(7) Supreme 668
Supreme Court of India
(From Calcutta High Court)
B.N. Agrawal & A.K. Mathur, JJ.
Narayan Chandra Ghosh & Ors. —Appellants
versus
Kanailal Ghosh & Ors. —Respondents
Civil Appeal No. 7091 of 2001
With
Civil Appeal No. 7092 of 2001
Decided on 16-11-2005
Advocates Appeared
For the Appellants : Bhaskar Prasad Gupta, Sr. Advocate, Udayan Chakravarty, Pradyot Kumar Chakravarty and Prasenjit Kumar Chakravarty, Advocates.
For the Respondents : S.B. Sanyal and Vijay Hansaria, Jeevan Dutta Chatterjee, Sr. Advocates, Rana Mukherjee, D. Bharat Kumar, Anand, Abhijit Sengupta and Ms. Indrani, Advocates.
Held : The question to be examined is as to whether in the present case, the earlier suits for ejectment filed by the thika tenants for ejectment of Bharatias abated under Section 19 of the 1981 Act? Under 1949 Act, procedure was provided for ejectment of a thika tenant only and no procedure whatsoever was prescribed for ejectment of a Bharatia by a thika tenant. Therefore, a suit for ejectment could be filed by a thika tenant for ejectment of a Bharatia before an ordinary civil court and such Bharatia during the continuance of 1949 Act was not entitled to claim protection under the Premises Tenancy Act and could be evicted upon determination of his tenancy by giving a notice under Section 106 of the Transfer of Property Act. Under 1981 Act, it has been specifically provided that Bharatias are entitled to claim protection of the Premises Tenancy Act meaning thereby that now they cannot be evicted unless grounds for eviction enumerated under the Premises Tenancy Act are proved and they cannot be ejected merely upon determining their tenancy by giving a notice under Section 106 of the Transfer of Property Act. Section 9 of the 1981 Act specifically lays down that from the date of coming into force of 1981 Act, i.e., 18th January, 1982, the tenancies of Bharatias shall be governed by the Premises Tenancy Act. On that date, both the suits earlier filed by the thika tenants for ejectment of Bharatias were pending and when the same were filed, it was not required of the thika tenant to prove the grounds for eviction enumerated under the Premises Tenancy Act, but with effect from 18th January, 1982 even in those suits a thika tenant was required to prove grounds for ejectment under the Premises Tenancy Act in case it is held that the same did not abate. Learned Senior Counsel appearing on behalf of the appellants has placed reliance upon three decisions of Calcutta High Court in the case of Ranjit Kumar Saha v. Sudhir Kumar Dey 91 Calcutta Weekly Notes 1071, Ranjit Kumar Saha v. Sudhir Kumar Dey 91 Calcutta Weekly Notes 1090 and Mrs. Qaiser Jahan v. Mohammad Yawoob 1982(2) Calcutta Law Journal 143. In these three decisions, it has been laid down that the provisions of Section 19 of the 1981 Act shall apply only in relation to those suits for eviction which were filed before the Controller under the provisions of 1949 Act and were pending on the date of commencement of 1981 Act. It was further laid down therein that the said provisions shall have no application to the suits for ejectment filed before the civil court by a thika tenant for ejectment of a Bharatia and pending on the date of commencement of 1981 Act. In none of these three cases, the provisions of Sections 9 and 11 of the 1981 Act have been considered. In case it is held that such suits would not come within the mischief of Section 19 of the 1981 Act, the provisions of Section 9 of the 1981 Act would not apply to it although expressly Section 9 provides that from the date of commencement of 1981 Act, i.e., 18th January, 1982, the provisions of the Premises Tenancy Act would apply to Bharatias. Such suits cannot be effectively disposed of after the commencement of 1981 Act as earlier it was not necessary to prove the grounds for eviction enumerated under the Premises Tenancy Act and the Bharatia would be thereby denied the protection granted to him under the Premises Tenancy Act although he was entitled to such protection even in pending suits. This being the position, we are clearly of the view that suits for ejectment filed by the thika tenants for ejectment of Bharatias which were pending before a civil court abated under Section 19 of the 1981 Act, as such High Court was quite justified in holding that the present suits were maintainable. (Paras 12 to 14)
From the judgment of the High Court, it would appear that the lower appellate court affirmed finding of the trial court in relation to personal necessity of the plaintiffs with regard to three rooms which finding was assailed by the defendants before the High Court. The building is one in which eviction was sought by the plaintiffs from four rooms and evidence is also common. While considering correctness of finding of the lower appellate court in relation to three rooms, High Court came to the conclusion that the plaintiffs were having only two rooms and they required in all seven rooms, meaning thereby that they required five more rooms and in those circumstances, it was held that the plaintiffs succeeded in proving their case in relation to bona fide necessity with regard to all the four rooms, including one room for which eviction was refused by the lower appellate court. In view of the aforesaid facts, we are not inclined to interfere with the impugned judgment rendered by the High Court even with regard to eviction of the defendants from one room, in the exercise of powers of this Court under Article 136 of the Constitution of India. (Para 15)
Judgment
B.N. Agrawal, J.—These appeals by the defendants arise out of common judgment rendered by the High Court in second appeals.
2. The short facts are that the plaintiffs filed two suits, viz., Title Suit Nos. 125 of 1978 and 146 of 1977 for eviction of defendants. Both the suits relate to eviction of defendants from different portions of a house. The former suit related to eviction from three rooms and the latter from one room. In both the suits, the plaintiffs were thika tenants whereas defendants were Bharatias. The grounds for eviction disclosed in the suits were default, causing nuisance by the defendants and bona fide need of the plaintiffs for the premises in question as number of their family members had substantially increased. When the suits were filed. The Calcutta Thika Tenancy Act, 1949 (hereinafter referred to as ‘the 1949 Act’) was in force. During the pendency of the aforesaid suits, the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (hereinafter referred to as ‘the 1981 Act’) was promulgated and as, according to the plaintiffs, the said suits abated under Section 19 of the 1981 Act, the plaintiffs filed another suits giving rise to Title Suit Nos. 35 of 1983 and 22 of 1983 for eviction of defendants from the aforesaid four rooms stating therein the same grounds for eviction.
3. Defendants contested the claim for eviction on grounds, inter alia, that the subsequent suits were not maintainable as earlier suits did not abate under Section 19 of the 1981 Act. They denied all the grounds for eviction.
4. In support of their respective cases, both the parties led oral and documentary evidence and upon conclusion of trial, the learned Munsiff held that the suits were maintainable as the earlier suits abated under Section 19 of the 1981 Act. So far as the grounds for eviction are concerned, the trial court decreed the suits only on the ground of bona fide necessity as, in its opinion, the plaintiffs failed to prove the other grounds. Challenging the decrees of the trial court, when appeals were preferred, the lower appellate court upheld the decree for eviction in relation to three rooms but reversed the same in relation to one room and thereby dismissed suit for eviction in relation to the same. Against the aforesaid decision, two appeals were preferred before the High Court, one by the plaintiffs and other by the defendants. High Court upheld decision of the lower appellate court affirming eviction decree in relation to three rooms. So far as decree of the lower appellate court dismissing the eviction suit in relation to one room is concerned, the same has been reversed and the decree for eviction in relation to same passed by the trial court has been restored. Hence, these appeals by special leave.
5. Mr. Bhaskar Prasad Gupta, learned Senior Counsel appearing in support of the appeals raised various points but for the disposal of the appeals, only two points are relevant. Firstly, it has been submitted that earlier two suits filed by the plaintiffs did not abate under Section 19 of the 1981 Act, as such both the suits were liable to be dismissed on the ground that the same were not maintainable. Secondly, it has been submitted that the High Court was not justified in interfering with the finding of fact in relation to one room in a second appeal. On the other hand, Mr. S.B. Sanyal and Mr. Vijay Hansaria, learned Senior Counsel appearing for the respondents in their respective appeals, submitted that present suits were maintainable as earlier two suits abated under Section 19 of the 1981 Act. Mr. Vijay Hansaria, appearing in support of the judgment of the High Court in relation to one room, submitted that the High Court was quite justified in reversing judgment rendered by lower appellate court and confirming the decree for eviction passed by the trial court.
6. Thus, the main question to be considered in the present appeals is as to whether the earlier suits abated under Section 19 of the 1981 Act? In
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