Bhaskar Bhattacharya, J.@mdashThis first appeal is at the instance of a tenant-defendant in a suit for eviction decreed only on the ground of reasonable requirement, and is directed against the judgment and decree dated 31st August, 1999, in Ejectment Suit No. 139 of 1986.
2. Being dissatisfied, the defendant has come up with the present first appeal.
3. The case made out by the plaintiff/respondent in the plaint may be summed up thus:
(a) The plaintiff was the owner of the flat No. 11 on the third floor of the building known as "Shantiniketan" at 8, Camac Street, Calcutta by purchase from M/s. Shantiniketan Estates Private Limited.
(b) The defendant was a tenant under the plaintiff in respect of the said flat. Subsequent to the creation of the tenancy, the defendant agreed in writing to deliver vacant possession to the landlord on the expiry of 3rd April, 1984 but in spite of such undertaking, the possession was not handed over to the landlord.
(c) The defendant was a defaulter in payment of rent and failed to pay rent from April 1984.
(d) The plaintiff reasonably required the suit flat for his own use and occupation. Except a shop on the ground floor of 8, Camac Street let out to one Ashok Kumar Agrawal, the suit flat which is little less than 500 sq. ft. was owned and possessed by the plaintiff in the town of Calcutta. The plaintiff or his family members did not own or possess any other immovable property in or around Calcutta.
(e) The plaintiff was residing as well as carrying on business at 31, Maharshi Debendra Road, Calcutta. The plaintiff was holding two rooms under M/s. Shri Padam Jute Traders. Out of those rooms, one is used by the plaintiff for his residential purpose and the other one, for his business styled Bakliwal & Co.
(f) The plaintiffs family consists of him self, his wife and one son aged about 13 years who was reading in Class-VIII and as such, the plaintiff required one bedroom for himself and the other, for his son. The plain tiff also required space for his business and for that reason, it was necessary to shift the business accommodation to some other place so that the room used by the plaintiff for business could be utilised as his sleeping-cum-study room.
4. The suit was contested by the defendant by filing written statement thereby denying the material allegations made in the plaint.
5. The learned Trial Judge ultimately decreed the suit only on the ground of reasonable requirement thereby holding that the plaintiff reasonably required the suit property for his own use and occupation and that he had no other reasonable suitable accommodation elsewhere.
6. Being dissatisfied, the defendant has come up with the present first appeal.
7. Mr. Mukherjee, the learned advocate appearing on behalf of the appellant, at the first instance, contended that in the absence of any local inspection in the premises at Maharshi Debendra Road, the learned Trial Judge erred in law in holding that the plaintiff reasonably required the suit property for his own use and occupation. It is further contended that there was no averment made in the plaint as to the capacity in which the plaintiff is staying at Maharshi Debendra Road and, therefore, the learned Trial Judge ought to have held that the said accommodation at Maharshi Debendra Road was alternative suitable accommodation and there was no necessity of evicting the appellant from the suit flat at Camac Street.
8. Mr. Mukherjee further contends that the plaintiff having failed to prove ownership of the suit property by production of any document and on the other hand, the document produced by the plaintiff indicated that he had merely an agreement for sale with the owner of the suit premises. According to Mr. Mukherjee, on the basis of such agreement for sale if somebody is put into possession, such prospective vendor could not become the owner of the property so as to maintain a suit for eviction on the ground of reasonable requirement. He, therefore, prays for setting aside the judgment and decree passed by the learned Trial Judge.
9. Mr. Mitra, the learned senior advocate appearing on behalf of the plaintiff/respondent, on the other hand, has supported the judgment and decree passed by the learned Trial Judge. According to Mr. Mitra, even if it is assumed for the sake of argument that the accommodation available at Maharshi Debendra Road was not vulnerable to any immediate threat of eviction, only two rooms being in possession to his client, those are not sufficient to accommodate his client''s family consists of himself, his wife and one son who at the time of disposal of the suit became a man of 26 years. Mr. Mitra, therefore, contends that those two rooms at Maharshi Debendra Road could be used as residential unit of the plaintiffs family and the flat at Camac Street, which is the suit property, can be utilised for business purpose.
10. As regards the allegation of Mr. Mukherjee that the respondent was not the owner of the property, Mr. Mitra contends that such plea was not specifically raised in the written statement and, therefore, the learned Trial Judge did not frame any is sue. According to Mr. Mitra, if no dispute is raised before the learned Trial Court as regards the ownership of the property, the ten ant is precluded from taking such plea for the first time before the Appellate Court.
11. Apart from the previously mentioned fact, Mr. Mitra contends that his client entered into an agreement for purchase of the property by making full payment and was actually put into possession and at the same time, even in the records of the Corporation of Calcutta, his client''s name appeared as the occupier. In such circumstances, according to Mr. Mitra, his client should for all practical purposes should be deemed to be the owner of the property. In support of such contention, Mr. Mitra relies upon the following decisions:
1. Dayal Prasad Sanyal v. Nripendra Chandra Chakraborty reported in 1986 (1) CHN 68;
2.
3.
4.
12. Before this Court, the respondent has come up with an application under Order XLI, Rule 27 of the CPC with the prayer for taking into consideration the fact that the plaintiff has already acquired the title to the suit property by execution of the sale-deed by the Shantiniketan Estates, the original owner of the building, after being converted into a private limited company. Mr. Mitra contends that his client having already acquired even full title during the pendency of this appeal, no purpose will be served by setting aside the decree and asking his client to file a fresh suit on the selfsame ground if we are satisfied with the requirement of the plaintiff.
13. Mr. Mukherjee, the learned Advocate appearing on behalf of the appellant, however, opposes the aforesaid contention and submits that this Court should not take into consideration the subsequent deed executed in favour of the respondent as the said document is not required for effective adjudication of the dispute involved in the appeal. Mr. Mukherjee submits that the fact that the plaintiff has acquired ownership in the property during the pendency of the appeal itself shows that the learned Judge before acquisition of such ownership by the plaintiff erroneously decreed the suit on the ground of reasonable requirement.
14. Therefore, the first question that arises for determination in this appeal is whether the plaintiff had proved reasonable requirement of the property.
15. After hearing the learned Counsel for the parties and after going through the materials on record we find that the plaintiff specifically pleaded that he had two rooms in occupation at the premises at the Maharshi Debendra Road. After taking into consideration the fact that the plaintiff family consists of himself, his wife and a son aged 26 years at the time of disposal of the suit, in our view, the learned trial Judge rightly concluded that the plaintiff reason ably required the suit flat for his own use and occupation for the purpose of shifting the business to the premises at Camac Street. At least two bedrooms are necessary to accommodate the plaintiffs family and, therefore, there is no justification for upsetting the finding of reasonable requirement arrived at by the learned trial Judge. We uphold the contention of Mr. Mukherjee that there is no threat of eviction from the accommodation available at the Maharshi Devendra Road but in spite of such fact, the said accommodation would not be sufficient to meet the business requirement of the plaintiff and thus, the idea of shifting the business to the small flat at Camac Street is quite reasonable.
16. The next question is whether the plaintiff has proved the ownership to the suit property.
17. In this case, in paragraph 1 of the plaint, it is alleged that the plaintiff was the owner of the suit premises and in the written statement while dealing with such paragraph, the defendant has stated that it had no knowledge of such fact and that such fact was denied. The fact whether a person is the owner of a property is within the exclusive and special knowledge of the owner and a tenant may not know whether his landlord is owner or not. In a suit for eviction on the ground of reasonable requirement, it is the duty of the landlord to prove ownership and at the same time, a duty is cast upon the Court dealing with such a suit to arrive at a specific conclusion in this regard. The trial Court, neither framed any issue on this point nor did it arrive at any conclusion on the question of ownership of the plaintiff over the suit property. However, we have decided to answer the said question on the basis of the materials on record in exercise of our power conferred under Order XLI, Rule 24 of the Code of Civil Procedure. We have already indicated that the respondent came up with an application under Order XLI, Rule 27 of the CPC thereby praying for acceptance of additional evidence on this point. The plaintiff has relied upon a registered deed of transfer in his favour which he obtained during the pendency of this appeal and prayed for acceptance of such document without prejudice to his contention that in order to get a decree for eviction on the ground of reasonable requirement it is not necessary that the plaintiff should be absolute owner of the property. Although such prayer was opposed, we have decided to allow such prayer, as in our opinion, for effective adjudication of the dispute involved in this suit, the said document is necessary. We also gave opportunity to the appellant to give additional evidence for rebutting the said additional evidence. The learned Counsel for the appellant submitted that his client was not disputing the genuineness of the said registered document but he maintained that the said document having been executed after the disposal of the suit, on that basis, even if the plaintiff acquired title, the defect of the suit out of which the present appeal arises could not be cured.
18. After hearing the learned Counsel for the parties and after going through the materials on record we find that at the time of presentation of the plaint of the suit, the plaintiff had merely an agreement with the then owner of the property for purchase of the suit property and had, after full payment of the consideration money agreed for the transfer, been even put into possession of the property. By virtue of such possession obtained from the owner, he inducted the defendant in the suit premises as a tenant. The additional evidence adduced in this appeal discloses that the title to the property really passed in his favour by execution of the deed and he became owner of the property in accordance with the provision of the Transfer of Property Act only during the pendency of the appeal and was not such an owner when the suit was filed. At that point of time, he had, however, the right to retain possession of the property against the lawful title holder and resist even a suit for eviction if filed by the real owner under some conditions.
19. Therefore, the consequential question that arises for determination in this appeal is whether a person acquiring mere right to retain possession u/s 53A of the Transfer of Property Act by virtue of an agreement with the lawful owner after full payment of consideration money can be said to be an owner within the meaning of Section 13(1)(ff) of the West Bengal Premises Tenancy Act when undisputedly, he did not acquire title to such property by execution of a deed in terms of Section 54 of the Transfer of Property Act before filing of the suit.
20. The position of a person who asserts right u/s 53A of the Transfer of Property Act is now well settled. As reiterated by the Apex Court in a recent case of
21. Therefore, the plaintiff, in this case, based on his agreement for sale, although was put into possession, so long the deed of sale in terms of Section 54 of the Transfer of Property Act was not executed in his favour, acquired no right of ownership in the property and therefore, could not be said to be the owner within the meaning of Section 13(1)(ff) of the Act. Even the possession of the defendant as a tenant under the plaintiff was not protected against the vendor of the plaintiff by taking aid of Section 53A of the Act as the plaintiff had no authority of alienation of the right of enjoyment of the property so as to bind the real owner and thus, the vendor of the plaintiff was entitled to evict the defendant so long the sale-deed was not executed in favour of the plaintiff.
22. The word "owner" according to the Black''s Law Dictionary, Seventh Edition, means one who has right to possess, use, and convey something. The plaintiff by virtue of his right u/s 53A of the Transfer of Property Act has not been conferred with the right of alienation and hence, cannot be described as an owner of the property by any means. We are quite conscious that a Bench consisting of two Judges of the Supreme Court in the case of
The word ''owner'' has not been defined in this Act and the word ''owner'' has also not been defined in the Transfer of Property Act. The contention of the learned Counsel for the appellant appears to be that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State and in this view of the matter it could not thought of that the Legislature when it used the term ''owner'' in the provision of Section 14(1)(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term ''owner'' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for protection of the tenants. But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase ''owner'' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove is bona fide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term ''owner'' is vis-a-vis the tenant i.e. the owner should be something more than the tenant. Admittedly in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is the owner of the structure. So far as the land is concerned he holds a long lease and in this view of the matter as against the tenant it could not be doubted that he will fall within the ambit of the meaning of the term ''owner'' as is contemplated under this section.
23. In the aforesaid case, the landlord was the owner of the structure and had the right of a lessee over the land under the Government whereas in the case before us, the plaintiff under law acquired to title either in the land or in the structure at the time of filing of the suit. Therefore, he could not be said to be an owner within the meaning of even of the Act by taking a liberal approach regarding the interpretation of the word "owner" appearing in the Act.
24. At this stage, if we look at the definition of the landlord as given in the West Bengal Premises Tenancy Act, we find that the word "landlord" has been couched in a wide sense including even a rent collector but in Section 13(1)(ff) of the Act, right to evict a tenant on the ground of reasonable requirement has been given only to the "owner" landlord. Similar was the situation, in the case of
Therefore, while taking advantage of the enabling provision enacted in Section 11(1)(c), the person claiming possession on the ground of his reasonable requirement of the leased building must show that he is a landlord in the sense that he is owner of the building and has a right to occupy the same in his own right. A mere rent Collector, though may be included in the expression landlord in its wide amplitude, cannot be treated as a landlord for the purposes of Section 11(1)(c). This becomes manifestly clear from the explanation appended to the Sub-section. By restricting the meaning of expression landlord for the purpose of Section 11(1)(c), the legislature manifested its intention namely that landlord alone can seek eviction on the ground of his personal requirement if he is one who has a right against the whole world to occupy the building himself and exclude any one holding a title lesser than his own. Such landlord who is an owner and who would have a right to occupy the building in his own right, can seek possession for his own use. The latter part of the section envisages a situation where the landlord is holding the building for the benefit of some other person but in that case landlord can seek to evict tenant not for his personal use but for the personal requirement of that person for whose benefit he holds the building. The second Clause contemplates a situation of trustees and costui que trust but when the case is governed by the first part of Sub-clause (c) of Sub-section (1) of Section 11, the person claiming possession for personal requirement must be such a landlord who wants possession for his own occupation and this would imply that he must be a person who has a right to remain in occupation against the whole world and not someone who has no subsisting interest in the property and is merely a rent collector such as an agent, executor, administrator or a receiver of the property. For the purposes of Section 11(1)(c) the expression landlord could, therefore, mean a person who is the owner of the building and who has a right to remain in occupation and actual possession of the building to the exclusion of everyone else. It is such a person who can seek to evict the tenant on the ground that he requires possession in good faith for his own occupation. A rent collector or an agent is not entitled to occupy the house in his own right. Even if such a person be a lessor and, therefore, a landlord within the expanded inclusive definition of the expression landlord, nonetheless he cannot seek to evict the tenant on the ground that he wants to personally occupy the house. He cannot claim such a right against the real owner and as a necessary corollary he cannot seek to evict the tenant on the ground that he wants possession of the premises for his own occupation. That can be the only reasonable interpretation one can put on the ingredients of Sub-clause (c) of Section 11(1) which reads: "Where the building is reasonably and in good faith required by the landlord for his own occupation...." Assuming that the expression ''landlord'' has to be understood with the same connotation as is spelt out by the definition clause, even a rent collector or a receiver of the property appointed by the Court in bankruptcy proceedings would be able to evict the tenant alleging that he wants the building for his own occupation, a right which he could not have claimed against the real owner. Therefore, the explanation to Clause (c) which cuts down the wide amplitude of the expression landlord'' would unmistakably show that for the purposes of Clause (c) such landlord who in the sense in which the word ''owner'' is understood can claim as of right to the exclusion of everyone, to occupy the house, would be entitled to evict the tenant for his own occupation.
25. In view of the observations mentioned above of a Bench consisting of three Judges of the Apex Court we are unable to accept the observation of the Bench consisting of two Judges in the case of
26. We now propose to deal with the decisions cited by Mr. Mitra.
27. In the case of
28. In the case of
It is now a trite law that for the aforementioned purpose a landlord need not be an absolute owner and even if co-operative is the owner, the plaintiff being a shareholder can be said to be owner of the said flat along with other members of the society. This aspect of the matter has been considered by the Hon''ble Supreme Court of India in
29. In the case before us, the plaintiff had a mere right to resist eviction against the real owner on compliance of certain conditions but he had no right to consume, destroy or alienate. If he had no right of alienation of right of enjoyment of the property to a third party to bind the real owner, he cannot be described as a ''owner'' of the property even for a limited sense and consequently, he cannot pray for eviction of his tenant on the ground of reasonable requirement as the legislature has given such right not to all the types of landlords but only to those who are found to be the "owner" of the property as pointed out in the case of Hasmat Rai AIR 1981 SC 1711 (supra). Therefore the principles laid down in the case of Dunlop India Ltd. AIR 1998 Cal 59 (supra), cannot have any application to a case of a landlord having a right u/s 53A of the Transfer of Property Act.
30. In the case of Bondar Singh AIR 2003 SC 1905 (supra), it was held that an unregistered sale-deed although not admissible in evidence, yet, can be looked into for collateral purposes such as to see nature of possession of party over suit property. By relying upon the aforesaid decision, Mr. Mitra tried to impress upon us that we should, by taking into consideration the agreement for sale, hold that the said deed gave his client right to possess the property. In our opinion, a mere right to possess an immovable property for a limited purpose cannot come within the category of "ownership" so as to confer a right to get a decree for eviction against a tenant on the ground of reasonable requirement.
31. Therefore, the decisions cited by Mr. Mitra do not support his client in anyway.
32. The last but not the least question that arises for determination before this Court is whether the acquisition of title during the pendency of this appeal can cure the deficiency of the respondent which existed at the time of institution of the suit for eviction.
33. It is now settled by the Supreme Court that so far as the appeal arising out of a suit for eviction on the ground of reasonable requirement is concerned, the Appellate Court take into consideration the subsequent events, which happened during the pendency of the appeal. See:
34. In the case before us, the suit was filed not solely on the ground of reasonable requirement but also on other ground. The Trial Court, however, granted the decree only on the ground of reasonable requirement. It is now held by the Apex Court that even in a case, where there is statutory bar of filing a suit for eviction on the ground of reasonable requirement at the instance of a transferee landlord within three years from the date of acquisition of title, after filing the suit for eviction immediately after acquiring the title on other grounds than that of reasonable requirement, a landlord, after the expiry of three years from the date of purchase, in entitled to Incorporate the ground of reasonable requirement and the provision of Section 13(3A) of the West Bengal Premises Tenancy Act would not be a bar in allowing such amendment. See: Prova Rani Chakraborty v. Inder Sengupta in Civil Appeal No. 1521 of 1984 disposed of by the Supreme Court on March 9, 1991 reversing the Division Bench decision of this Court in the case of
35. Therefore, in this case, although the landlord could not prove ownership at the time of filing of the suit, such ownership right having been acquired during the pendency of this appeal, we are inclined to decree the suit as we have affirmed the finding of the learned Trial Judge on the issue of reasonable requirement in favour of the landlord. It will be an abuse of process of law, if we now, in spite of the fact that the landlord has perfected the title by a registered deed, dismiss the suit on the ground that at the time of filing of the suit he had no such title. The landlord having proved reasonable requirement it will be unreasonable to dismiss the suit on the ground of absence of ownership at the time of institution of the suit and to ask the plaintiff to file a fresh suit on the selfsame ground.
We, therefore, dismiss the appeal by affirming the judgment and decree passed by the learned Trial Judge on the ground that the plaintiff has acquired title to the property during the pendency of this appeal. In the facts and circumstances, there will be, however, no order as to costs.
Rudrendra Nath Banerjee, J.
36. I agree.
