M.N. Roy, J.@mdashThis appeal under Clause 15 of the Letters Patent is directed against a decision dated May 30, 1973, made in F.A. No. 581 of 1967, whereby the learned appellate Court reversed the judgment and decree dated March 9, 1967; passed in Ejectment Suit No. 284 of 1964 by Sri A.P. Das, Judge, Tenth Bench, City Civil Court at Calcutta.
2. The Appellants are owners of premises No. 16A Madhu Roy Lane, Calcutta and the Respondent is a monthly tenant in respect of three rooms on the first floor and one kitchen on the ground floor of the said premises at a monthly rent of Rs. 65 payable according to the English calendar.
3. On or about October 14, 1963, the Appellants landlords served a notice of ejectment on the tenant on the ground, inter alia, that they reasonably require the premises in suit for their own use arid occupation and for the occupation of the members of their family.
4. After such service of notice, on or about February 12, 1964, the landlords instituted Ejectment Suit No. 284 of 1964 in the City Civil Court at Calcutta contending, inter alia, that they had been allotted the premises in suit under a partition decree of the Hon''ble High Court at Calcutta and they required the suit premises for their own use and occupation and also for the occupation of the members of their family. It was pleaded that the parties to the suit were using several common spaces including the privy, bath and the passage from the main entrance. The tenant was always creating trouble at the time of closing and opening the intermediate door and was also obstructing the Plaintiffs'' use of the bath and privy by the landlords and thereby causing nuisance and annoyance to the Plaintiffs and also to the neighbours. It was further alleged that the tenant Defendant used abusive language and picked up quarrel with other tenants in the premises. It was'' further stated that the Plaintiffs needed additional accommodation for providing each of the Plaintiffs with bed-rooms as also a room for the daughter of the Plaintiff No. 2 for her studies and for making provisions for a sitting room and some additional space for cooking. They contended that they were in possession of only three living rooms, a kitchen and a store-room which were quite insufficient for their needs.
5. Apart from denying the material allegations of the plaint, the Defendant alleged that the Plaintiffs Nos. 1, 3 and 4 were not the owners of the premises in question and he was not a tenant under them. He further contended that he became a tenant in respect of the premises in suit under the Plaintiff no, 2 alone in his individual capacity and, furthermore, he was inducted in the premises on September 11, 1963 and thus his tenancy commenced from 11th day of the English month but not according to the English calendar. The Defendant further denied receipt of the notice to quit and also challenged the validity, legality and sufficiency of the same. He denied the allegations that he was responsible for causing nuisance or annoyance to the neighbourers or to the Plaintiffs. It was further contended by the Defendant that previously the Plaintiffs instituted Ejectment Suit No. 249 of 1961 on practically the self-same grounds, but they ultimately withdrew the same. As no leave was granted by the, Court to the Plaintiffs to bring a fresh suit on the same cause of action, the present suit was not maintainable and was barred under Order 2, Rule 2 of the Code of Civil Procedure.
6. After completion of the evidence, the suit in question was decreed on March 9, 1967, by the learned trial Judge. He directed recovery of khas possession of the premises by evicting the Defendants. The learned trial Judge was pleased to allow three months'' time to the Defendant to vacate the suit premises failing which the Plaintiffs would be at liberty to obtain khas possession of the premises in suit by executing the decree. While making the said determination, the learned trial Judge found that the suit was not bad for misjoinder of parties. The learned trial Judge further found that the Plaintiffs were the owners of the premises in question and they required the premises in suit for their own use and occupation.
7. From the said judgment and decree the Defendant preferred F.A. No. 581 of 1967 before this Court on April 17, 1967 and the said appeal was heard by the learned appellate Court on July 1, 1967.
8. During the pendency of the said appeal, Clause (f) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act was substituted by Clauses (f) and (ff) and as the learned appellate Court felt that the said Clause (ff) Would govern the appeal, it was necessary to determine whether the Plaintiffs landlords were already in possession of reasonably suitable accommodation or not. Further, in view of the statements in para. 5 of the plaint wherein the Plaintiffs had alleged that they needed additional accommodation for providing each of the Plaintiffs with bed-rooms as also a room for the study of the daughter of the Plaintiff No. 2 and for a sitting room and also an additional; space for cooking and in view of the evidence of P.Ws. 2 and 3 that Amar Nath Mallick, Plaintiff No. 4, was living at premises No. 17 Mahendra Road but he had no right, title or interest therein and, as it was also stated that the said Amar Nath Mallick now wanted to live at 61A, Madhu Roy Lane and as the learned appellate Court found that there was no sufficient material on record to satisfactorily decide whether the said Amar Nath Mallick really intended to reside in premises No. 61A Madhu Roy Lane, he was of the opinion that it would be necessary to take further evidence to determine whether the present accommodation of the Plaintiff No. 4 at 17 Mahendra Road should be held to be reasonably suitable for him and whether he intended to live at 61A Madhu Roy Lane. By an order dated July 1, 1971, the learned appellate Court framed the additional issues as sent down hereunder:
(i) Are the Plaintiffs already in possession of any reasonably suitable accommodation or not?
(ii) Whether the requirements of the Plaintiffs may be substantially satisfied by ejecting the Defendant tenant from a party only of the premises in question in terms of Sub-section (4) of Section 13 of the West Bengal Premises Tenancy Act?
and remanded the case back to the learned trial Court for determination of the said two additional issues.
9. On remand, further evidence was taken by the learned trial Court and on consideration of such evidence it came to the conclusion that the Plaintiffs were not in possession of any reasonably suitable accommodation and that the accommodation in their possession fell short of their requirement by one bed-room. It was also found that the Plaintiffs'' requirement would be satisfied by passing a decree of partial, eviction of the Defendant tenant from one room from the bed-rooms in his occupation of the first floor.
10. Against such determination both the parties to the proceedings filed their memoranda of objection which were taken into consideration by the learned appellate Court in disposing of the appeal on May 30, 1973. By the said determination the learned appellate Court allowed the appeal and set aside the judgment and decree of the learned trial Court and found, inter alia, that the occupation of the Plaintiff No. 4 at Mahendra Road premises was not of a precarious nature and, therefore, he was not entitled to occupy a bedroom in the premises in suit of which he was a co-owner.
11. The admitted position in the case is that the Plaintiff No. 1 is the mother of the Plaintiffs Nos. 2, 3 and 4 and she along with the Plaintiffs Nos. 2 and 3 and their families were residing on the second and third floors of the premises in question after the same were allotted to them by partition decree in suit No. 2730 of 1949. The paucity of accommodation of the Plaintiffs in the premises in suit, which was also found by the Pleader Commissioner, was neither disputed nor questioned by the Defendant. According to the Commissioner''s report, the premises in question is a four-storied one and on the third floor the Plaintiffs are in occupation of two bed-rooms. These two bed-rooms, according to the report, may be treated as two parts of one big room. Then there is a mezzanine floor in between the second and third floors and in the western portion of that floor there is one room measuring 11''0" � 4''3" with a height of 6''. This room is also in occupation of the Plaintiffs Nos. 1, 2 and 3 and is used by them as a lumber room. There is another room on that mezzanine floor to the east of the aforesaid room measuring 7''2" � 3''2" � 7''. The said eastern room is used by the Plaintiffs as kitchen. Then on the second floor there is a verandah to the east of the western room and the same measures 15''6" � 7'' 2". On the second floor there is one room to the east of the staircase and the same is used by the Plaintiffs as a store-room. The length of that room is 9''8" � 5''7". There are two bed-rooms on the second floor, one measuring 11''4" � 9''9" and another measuring 16'' � 9''9". Besides those rooms there are also verandahs on the second floor and the Plaintiffs are in possession of all these rooms and verandahs on the second and third floors. After remand, the learned lower Court found that those two rooms on the third floor could be used only by one couple and their children. It was also found that the Plaintiff No. 2, his wife and his son and daughter occupied those two rooms and there was also a verandah on the third floor. On remand, the learned lower Court also found that the Plaintiff No. 1 and her two sons, viz. the Plaintiffs Nos. 2 and 3 and their families were already provided with a bed-room in the premises in question and it was also found by that Court both before and after remand that the Plaintiff No. 4, who was living at 17 Mahendra Road, Bhawanipore, required a bed-room in the suit premises. The learned trial Court further found that the Plaintiffs'' requirement for a study and sitting room could be satisfied from the existing accommodation in their occupation. In short, the learned trial Court found that except the Plaintiff No. 4 all the remaining Plaintiffs were already in possession of suitable accommodation in the suit premises.
12. Agreeing with the findings of the learned trial Court, the learned appellate Court found that the Plaintiffs Nos. 1, 2 and 3 did not require any additional accommodation in the suit premises. But he could not agree that the Plaintiff No. 4, in the facts and circumstances of the case, require any accommodation in the premises in suit as he was already in occupation of reasonably suitable accommodation at the Mahendra Road premises. Thus, the point for determination in this appeal whether is the accommodation which the Plaintiff No. 4 has in precarious or not? If so, whether is he entitled to have accommodation in the premises in suit?
13. From the evidence on record it appears that the Plaintiff No. 4 has no accommodation far less any room of his own for living in the premises in suit. He has been living in the house of the father''s uncle at 17 Mahendra Road, Bhawanipere. The Plaintiff No. 4 has passed the School Final Examination from Mitra Institution, Bhawanipore and he has his own business. Formerly, he used to stay at 61/A Madhu Roy Lane, off and on. Since partition in 1952 he never lived permanently with the other Plaintiffs. He came occasionally to the premises in suit and temporarily lived with the other Plaintiffs. It is his evidence that after the death of his father difference arose between the Plaintiffs and their uncles over ancestral properties and they shifted to the house of their father''s uncle, Pratul Chandra Mallick, at 17 Mahendra Road. In 1957, Pratul Chandra Mallick died. Pratul Chandra Mallick, who had no child, loved the Plaintiff No. 4 and his sister very much. After the partition decree the Plaintiffs got a part of the suit premises allotted in their share, to that house the Plaintiffs Nos. 1, 2 and 3 shifted for their residence, but Amar Nath Mallick, the Plaintiff No. 4 and his sister continued to live at 17 Mahendra Road, Bhawanipore, with Pratul Chandra Mallick. Amar Nath Mallick also stated in his evidence that he was living in the house of the said Pratul Chandra Mallick as a licensee and that he had no right, title or interest in the said premises. It further appears from the evidence given after remand of the case that Amar Nath Mallick lived in the house of Pratul Chandra Mallick at 17 Mahendra Road as there was no accommodation for him in the premises in suit. The said house at 17 Mahendra Road is the residential house of Pratul Chandra Mallick and the marriage ceremony of Amar Nath Mallick took place there. After his marriage, Amar Nath Mallick lived in the said house at Mahendra Road, but now he is living alone as his wife has been living separately pursuant to an order of Court made in matrimonial proceedings. Amar Nath Mallick has got joint interest in the premises in suit with his brothers and mother and, besides the premises in suit and another house which is also tenanted, he has got no personal property. He, as stated hereinbefore, is living at 17 Mahendra Road as a licensee. He has no room in the premises in suit and, therefore, he requires one bed-room there. There is also the evidence that he wants to live in the premises in suit and the present accommodation there will not be sufficient to accommodate all the members of the Plaintiffs'' family unless one bed-room is made available to the Plaintiff No. 4.
14. The learned appellate Court held that even in spite of opportunities being given, Amar Nath Mallick, the Plaintiff No. 4, had not led proper evidence to establish that his stay at Pratul Chandra Mallick''s house was precarious and, furthermore, there was no evidence that his residence at 17 Mahendra Road was neither suitable nor satisfactory for him. The learned appellate Court further found that there was no evidence to the effect that Amar Nath Mallick was under any compulsion to leave the house where he was brought up from his early childhood and the evidence given by the Plaintiffs themselves amply proved that Amar Nath Mallick had all along been regarded as a member of the family of Pratul Chandra Mallick and, furthermore, there was no evidence that Pratul Chandra Mallick had ever asked Amar Nath Mallick, the Plaintiff No. 4, to vacate the accommodation he was occupying at 17 Mahendra Road.
15. In view of the above facts it was also held by the learned appellate Court that Amar Nath Mallick, the Plaintiff No. 4, had no genuine desire to shift from 17 Mahendra Road and to live in the suit premises. The learned appellate Court also found that the Plaintiff No. 4 Amar Nath Mallick did not require any bed-room in the suit premises and in that view of the matter allowed the appeal by setting aside the judgment and decree of the trial Court and was further pleased to direct dismissal of the suit.
16. At the time of hearing of the appeal before as, an application under Order 41, Rule 27 of the CPC and a supplementary affidavit for taking note of certain subsequent and relevant facts as additional evidence as filed by the Appellants and it was stated that the copies of the said application and affidavit were duly served on the Respondent. No objection was filed to the said application and to the affidavit. In this judgment we have also taken note of the statements as made therein. By the said application the Appellants stated that Amar Nath Mallick, who was aged about 32 years and residing at 17 Mahendra Road, Calcutta, obtained a decree of divorce and was contemplating a second marriage but was unable to do so owing to dearth of accommodation in the suit premises. The wife of Pratul Chandra Mallick, with whom Amar Nath Mallick was residing at 17 Mahendra Road, was not approving such marriage and consequently in the absence of suitable accommodation in the suit premises Amar Nath Mallick was not in a position to marry for the second time. Furthermore, the widow of Pratul Chandra Mallick has already expressed that in the event of Amar Nath Mallick marrying again he would have to leave her house. It has also been stated in the said application that the daughter of Paresh Nath Mallick, who is 17 years of age, should be accommodated in a separate room and the room where Paresh Chandra Mallick was residing was not sufficient for the said purpose as also for the purpose of accommodating his son. It has also been stated that for the purpose of giving lessons to the said daughter and the son, Paresh Nath Mallick has engaged separate private tutors, who come to teach them almost simultaneously and a study-room was required for the purpose. The space allotted for being used as a study is quite unsuitable in view of its situation and nature.
17. In view of the state of evidence as mentioned hereinbefore, Mr. B.C. Dutta, the learned Advocate appearing for the Appellants, submitted that his clients reasonably required the premises in question for their own occupation and they had not other reasonably suitable accommodation. He further submitted that the occupation of the Plaintiff No. 4 Amar Nath Mallick at 17 Mahendra Road as a licensee meant that his occupation there was of a precarious nature depending on chance and, furthermore, such possession was risky and uncertain and, as such, the Plaintiffs were entitled to have a decree in terms of the order as made by the learned trial Court. He further submitted that reasonableness of requirement had to be determined as a fact in relation to the circumstances prevailing at the date of hearing and on existing accommodation and in support of such contention he relied on the case of Lakshminarayan Ramnivas v. (sic) Nath Ghosh 72 C.W.N. 346 and submitted that, as on the date of the institution of the suit, the Plaintiff No. 4 required a room in the premises in suit and had no permanent residence at 17 Mahendra Road, such precarious accommodation of his should be regarded as a reasonable ground for allotting him a room in the premises in suit. He also submitted that reasonable requirement had also to be decided with reference to the existing accommodation and in support of that he placed reliance on the case of
18. In the instant case, we find that the accommodation available to Amar Nath Mallick at 17 Mahendra Road as a licensee is not of a permanent nature. His accommodation in those premises is of a precarious nature and is not a matter of right and, as such, the same cannot be taken into account for negativing his need for occupation of the premises in suit. A possession would be precarious when the same is obtained by entreaty or the same is uncertain depending on the will or pleasure of another or the same is dependent on uncertain promises or on chance, circumstances and unknown conditions or uncertain developments or where there is lack of security or stability and there is threat of danger and, furthermore, the same is dependent upon the will of another and such possession is also risky. Applying the aforesaid tests, I find that the possession of Amar Nath Mallick, the Plaintiff No. 4, at 17 Mahendra Road premises is of a precarious nature and, as such, he is entitled to have a room in the disputed premises for his permanent residence. When the Plaintiff No. 4 has admittedly a premises of his own he has every right to maintain a suit or claim for possession in the same instead of leaving himself entirely at the mercy of another who gave him shelter temporarily and even though such shelter continued for a long time. Even if there is no direct threat to revoke the leave and licence of the Plaintiff No. 4, any indirect threat or even a chance of cancellation of the leave and licence would make the stay of the Plaintiff No. 4 at the Mahendra Road premises precarious and such condition would entitle him to maintain the suit.
19. On the other question of partial eviction it appears that the Defendant had agreed to vacate one of the bed-rooms in his occupation on the first floor in favour of the Plaintiffs if it was found that the Plaintiffs'' requirement would be satisfied by such partial eviction. We find, that the learned trial Court has found that the requirements of the Plaintiffs Nos. 1, 2 and 3 would be satisfied from the accommodation which is available and the Plaintiff No. 4 only requires one bed-room, 1 uphold the findings of the learned trial Court on that issue.
20. In view of the above and respectfully agreeing with the reasons as given hereinafter by S.K. Mukherjea J., I am of the opinion that the learned appellate Court was not right in allowing the appeal of the tenant Defendant and dismissing the suit. We thus set aside the judgment and decree of the appellate Court as made in F.A. No. 581 of 1967 and confirm the judgment and decree as was made by the learned trial Court in Ejectment Suit No. 284 of 1964. This Letters Patent Appeal thus succeeds and is allowed.
21. There will, however, be no order for costs.
S.K. Mukherjea J.
22. I agree that the order should be as proposed by my Lord. Reliance was placed by counsel for the Appellant on a recent decision of the Supreme Court in P.B. Desai v. C.M. Patel (Supra). There the Appellant was the owner of two bungalows known as Truth and Hill Bungalows. The former, except for one room on the ground floor which was in occupation of the Appellant, was in possession of one Dr. Bharucha under leave and licence of the Appellant on payment of compensation at Rs. 50 per month. The first floor of the Hill Bungalow was let out by the Appellant to his mother at a rent of Rs. 50 per month. The ground floor was let out by him to the predecessors-in-interest of the 1st, 2nd and 5th Respondents. The Appellant brought a suit against the said Respondents for possession of the portion of the premises in their occupation on the ground of reasonable requirement and on further ground that the Respondents had unlawfully sub-let the demised premises.
23. Insofar as the Appellant based his case on the ground that he required the premises for his own use and occupation, it was contended on behalf of the Respondents that he could occupy the Truth Bungalow by revoking the leave and licence granted to Dr. Bharucha. In rejecting the contention Bhagawati J. speaking for the Court observed:
Now, it is true that when premises are given on leave and licence, the licensor continues from a juridical point of view to be in possession of the premises and the licensee is merely given occupation and, therefore, strictly speaking the High Court was right in observing that the Truth Bungalow, which was given on leave and licence to Dr. Bharucha, was in the possession of the Appellant. But for the purpose of determining the requirement of the Appellant for the ground floor premises was reasonable and bona fide, what is necessary to be considered is not whether the Appellant was juridically in possession of the Truth Bungalow, but whether the Truth Bungalow was available to the Appellant for occupation so that he could not be said to need the ground floor premises. If the Truth Bungalow was in occupation of Dr. Bharucha on leave and licence, it was obviously not available to the Appellant for occupation and it could not be taken into account for negativing the need of the Appellant for the ground floor premises. The Appellant could not obtain for himself the occupation of the Truth Bungalow unless he terminated the leave and licence of Dr. Bharucha and compelled him to vacate the occupation of the Truth Bungalow. That might involve a long litigation with Dr. Bharucha. As against that, a suit for eviction was already pending against the Respondents in respect of the ground floor premises and it would certainly be mere reasonable to pursue that litigation rather than to start a new case.
24. In the present case, the landlord occupies a reverse role. He is not the licensor but the licensee. The licence is one for which no compensation is paid or consideration is given. It is true that even if the leave and licence is revoked, the Plaintiff No. 4 may obstruct the licensor from recovering possession of the portion of the premises he is occupying and compel the licensor to file a suit against him which, it is safe to assume, is bound to succeed. No honourable man will like to live in the premises he is occupying under leave and licence granted by a benefactor after he revokes the leave and licence nor will a Court of law reasonably except him to obstruct recovery of possession of the premises when it is crystal clear that he has no legal right to remain in possession. There is no reason why the Plaintiff No. 4 should invite such a litigation. In common with his co-sharers he has already field a suit for recovery of possession of the premises into which he can move in. It will be less than fair to dismiss the suit and compel the Plaintiffs to the a similar suit again, after a suit, to be instituted by the licensor, is decreed against the Plaintiff No. 4. It seems to me that having regard to the evidence in this case the Plaintiff No. 4 has no reasonable alternative accommodation and the Plaintiffs are, therefore, entitled to succeed on the ground that they require the premises for their own use and occupation.
25. Although what I have said is enough to dispose of the appeal, I propose to deal with a question of principle which arises in the present case. If a man is in occupation of some premises on sufferance, that is to say, under leave and licence which may be revoked at the pleasure of the licensor, can it be said that he is in possession of reasonably suitable accommodation? I think not and more so, when the licensor threatens to revoke or has revoked the licence. He may be said to be in possession of suitable accommodation, but the accommodation is not reasonably suitable because his right to remain depends entirely on sufferance. In other words, his possession is precarious and insecure in the extreme and, therefore, not reasonably suitable. It is not reasonable to expect that a man will resign himself to live perpetually on sufferance in somebody else''s premises when he has premises of his own, nor is it reasonable to expect him to fight to the last ditch to retain possession of accommodation to which he has no legal right. In my opinion, the statute does not enjoin such a course. In any proceeding brought by him on the ground of reasonable requirement for recovery of possession of premises of which he is the owner, the fact that he is living elsewhere under leave and licence for which no consideration is given, ought not to be permitted to prejudice his rights under the statute.
