IMPORTANT POINT
Partial eviction of tenant - when not feasible.

JUDGMENT

M.Y. EQBAL, J.:

Leave granted.

2. Aggrieved by the judgment dated 10.2.2011 passed by learned Single Judge of the Calcutta High Court in S.A. No.342 of 2007, whereby the second appeal filed by the defendant-respondents was allowed, the judgments and decrees of the courts below were set aside and the matter was remitted to the trial court after expressing the view that considering the provisions of Section 13(4) of the West Bengal Premises Tenancy Act, 1956 it is a duty cast upon the Court to consider whether the requirement of the plaintiff could be satisfied by evicting the defendant from a part only of the suit property, plaintiff-appellant has preferred this appeal by special leave under Article 136 of the Constitution of India. The trial court and the first appellate court had passed decree for eviction against the defendant/tenant in respect of the entire suit premises in question.

3. The litigation between the parties started on the filing of Title Suit No.66 of 1993 by the plaintiff in the Court of 4th Civil Judge (Senior Division) at Alipore, District 24 Parganas (South) for eviction and recovery of khas possession of the suit premises against the original defendant/tenant – Lalji Chowrasia (predecessor of the respondents) and for mesne profits and compensation for damages to the suit property. The suit property happens to be a portion of the ground floor flat consisting of three bed rooms with attached three bathrooms with modern fittings, sanitary privy, one store room, one kitchen, one dining room and one covered verandah in the front portion with grill in the premises No.128/15, Hazra Road, Kolkata.

4. The case of the plaintiff in the above mentioned suit, inter alia, is that she is the owner and landlady of suit property in terms of a decree passed on 17.3.1988 in Title Suit No.55 of 1986. She requires the suit property in occupation of the defendant for her own use and occupation. She alleges that she is a divorcee and is occupying one room on the second floor of the three-storeyed building where her brother with his family is residing. Entire first floor of the building has been in occupation of a Bank (State Bank of India) as a tenant. The plaintiff alleges that she has been permitted by her brother to stay in one room, but since she is having bitter relationship with her brother’s wife, she wants to reside in the suit property. Her further case is that she does not have any source of income except a paltry amount of Rs.500/- which she gets as her share in the rent collected from the tenant-bank. According to her, if she rearranges the suit premises and makes provision for one room flat, she will be able to augment a minimum income of Rs.2500/- per month by letting or leasing it out. She alleges that the original defendant was guilty of causing damage to the suit premises.

5. The suit was contested by the defendant by filing written statement contending inter alia that there was no relationship of landlord and tenant between the parties to the suit. Defendant further alleged that although the plaintiff might have realized rent from the defendant and the defendant might have paid/deposited monthly rent in the name of the plaintiff, yet there could not be any relationship of landlord and tenant in between the plaintiff and the defendant. Although defendant did not dispute the fact that plaintiff has been residing with her brother and his family on the second floor of the suit holding, but he denied that the plaintiff requires the suit premises for her own use and occupation. According to the defendant, her present accommodation is suitable and her statement that she had no alternative suitable accommodation elsewhere is not correct. The defendant also disputed the plaintiff’s claim of ownership of the suit premises on the basis of compromise decree passed in the said Title Suit No.55 of 1986. It is further contended that the alleged decree is not binding upon the defendant. It appears from the judgments of the