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2008 Supreme(Cal) 363
BHASKAR BHATTACHARYA AND RUDRENDRA NATH BANERJEE, JJ.
Raj Kumar Dutta
versus
Bimal Kumar Dhar.
F. A. No. 295 of 2004
Decided on : 3 -4 -2008.
Ashok Kumar Jana, Arpitia Jana, Goutam Dinda, for Petitioner; Sandip Ghosh, Swapan Kumar Dutta, for Respondent.
A transferee landlord cannot continue with the suit on the original ground of reasonable requirement, as it would be a totally new cause of action of the subsequent owner.
Headnote:
EVICTION SUIT - REASONABLE REQUIREMENT - TRANSFER OF PROPERTY ACT, 1882, SECTION 108(m), (o), (p) - SUIT FOR EVICTION ON THE GROUND OF REASONABLE REQUIREMENT AND VIOLATION OF CLAUSES (m), (o) AND (p) OF SECTION 108 OF THE TRANSFER OF PROPERTY ACT - APPEAL BY TENANT - HELD, DECREE ON THE GROUND OF REASONABLE REQUIREMENT CANNOT BE ENJOYED BY THE GRANDSON OF THE ORIGINAL PLAINTIFF - GROUND OF VIOLATION OF CLAUSES (m), (o) AND (p) OF SECTION 108 OF THE TRANSFER OF PROPERTY ACT NOT ESTABLISHED - APPEAL ALLOWED.
Fact of the Case:
Plaintiff filed a suit for eviction of the defendant from two rooms on the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and reasonable requirement. The trial court decreed the suit. The defendant appealed.
Finding of the Court:
The court held that the grandson of the original plaintiff could not avail of the decree granted in favor of the original plaintiff on the ground of reasonable requirement as the plaintiff did not claim reasonable requirement for the grandson's need. The court also held that the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act was not established.
Issues: 1. Whether the grandson of the original plaintiff could avail of the decree granted in favor of the original plaintiff on the ground of reasonable requirement? 2. Whether the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act was established?
Ratio Decidendi: 1. The original plaintiff restricted his requirement for himself and his wife and no other person, and not even his son or grandson. Therefore, the moment both the original plaintiff and his wife had died during the pendency of this appeal, the substituted respondent or the legatee of the plaintiff cannot get the benefit of the decree passed on the ground of reasonable requirement. 2. The learned trial Judge, as it appears from the judgment impugned, relied upon Exbt. 7, the report of the pleader Commissioner, where he mentioned that he found a wall containing a door and a name-plate attached to the wall in the name of the defendant on the first floor and according to him, the wall appeared to have been newly constructed. However, the Advocate-Commissioner, who proved Exbt.-7, in his cross-examination admitted that his remark about the name-plate and the newly constructed wall had not been recorded in the field note. Therefore, the court held that the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act was not established.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the trial court, and dismissed the plaintiff's suit.
BHASKAR BHATTACHARYA, J. :- This first appeal is at the instance of a tenant-defendant in a suit for eviction decree on the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act and reasonable requirement and is preferred against the judgment and decree dated 5th July, 1991 passed by the learned Judge, 5th Bench, City Civil Court at Calcutta in Ejectment Suit No. 191 of 1982.
2. The plaintiff filed the aforesaid Ejectment Suit No. 191 of 1982 for eviction of the appellant by describing him as monthly tenant under him in respect of the two rooms which had been partitioned and made into four rooms, one common bath and privy with open terrace on the first floor of the Premises No. 5A, Bhowani Dutta Lane, Calcutta-700073.
3. So far the ground of reasonable requirement is concerned, the specific case of the original plaintiff was that he required the suit property for accommodation of himself and his wife who were then staying as licensee of his brother's house. The plaintiff due to strained relationship with his son was unable to stay in the house of his son.
4. As regards the allegation of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, it was stated that the defendant had encroached the open terrace on the first floor and raised a pacca wall and he also obstructed common bath and privy and another tenant's kitchen on the first floor.
5. The suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint and so far the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act was concerned, his specific defence was that he did not make any addition and alternation and that the bath on the first floor was part of his tenancy and was not a common one. So far the ground of reasonable requirement is concerned the defendant denied that the plaintiff reasonably required the suit property for his own use and occupation and according to him, he had sufficient accommodation not only in the suit property but also in the property where he is actually staying. It was further pointed out that a tenant during the pendency of the suit had already vacated four rooms in favour of the landlord.
6. The plaintiff admitted that tenant vacated the property during the pendency of the suit but according to him, two of the rooms were further let out to the sub-tenant under the said tenant.
7. The learned trial Judge on consideration of the materials on record arrived at the conclusion that the plaintiff reasonably required the suit property for his own use and occupation and he has no other suitable accommodation elsewhere.
8. As regards the ground of violation of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, the learned trial Judge accepted the allegation of the plaintiff and in holding that the defendant constructed a new wall relied upon the Commissioner's report who indicated that a newly constructed wall was apparent.
9. Being dissatisfied, the tenant defendant has preferred the present first appeal.
10. During the pendency of the appeal, the original plaintiff and his wife have died and on his death, his son was substituted. Subsequently, the substituted defendant came up with an application under Order XLI, Rule 27 of the Code of Civil Procedure for the purpose of taking into consideration the probate granted by the appropriate Court of the last Will of the original plaintiff showing that the suit property has been given to his grandson and, thus, according to the substituted respondent, the grandson should be said to be the owner of the property for the time being. By filing another application, the substituted respondent has tried to show that the grandson of the original plaintiff, although, he is now staying in America wants to come back and for his accommodation the suit property is necessary.
11. Mr. Jana, the learned Advocate appearing on beh
