B.C. Chakraborti, J.@mdashThese are 3 appeals under Clause 15 of the Letters Patent at the instance of the tenants defendants and they arise out of 3 suits for eviction, being Ejectment Suit Nos. 1504, 1505 and 1506 of 1962 of the City Civil Court at Calcutta. The plaintiff is common in all the cases. Defendants in two of the suits are common and the defendant in the 3rd Suit is a different person. The suits relate to different portions of premises No. 281|1|1B, Bipin Behari Ganguli Street, Calcutta. The suits were heard analogously at all stages and the appeals too have been heard analogously. The plaintiff''s case in all the cases is briefly as follows :
The plaintiff is the owner of the one-storied building being premises No. 281|1|1B, Bipin Behari Ganguli Street, Cal. The defendant of Suit No. 1504 namely Anil Kumar Das Gupta is a tenant of two rooms at a monthly rental of Rs. 30.50p. A.K. Gupta the defendant of the suit No. 1505 of 1962 is a tenant is respect of one small room at a rental of Rs. 1950 and Arjun Prasad Sharma the defendant in the other suit No. 1506 of 1962 is a tenent in respect of one big and two small rooms with one kitchen at a rental of Rs. 63 per month. The plaintiff reasonably requires the suit premises for the use and occupation of himself and the members of his family, which at the date of the suit consisted of himself, his wife, one school going daughter aged about 13 years and one school going son aged about 11 years. There were two wholetime servants, a cook and a Darwan also working in the family. Formally the plaintiff used to reside with his family members in the ancestral dwelling house at 280, Bipin Behari Ganguli Street. In terms of a will executed by late Kunja Behari Dhar that house now belongs to the plaintiff''s elder Brother and the plaintiff was obliged to vacate the same. Since then he has been living with his family in a rented house at 12 Asutosh Mukherjee Road with his great hardship and inconvenience. The plaintiff requires at least two bed-rooms one sitting office room, one study for the children one kitchen, one servant''s and one Darwah''s room. The accommodation available to the plaintiff in the rented house is inadequate. The tenancies of the defendants were duly determined by the service of notice to quit requiring the defendants to deliver up possession with the expiry of the last day of June, 1962. The defendants did not vacate in compliance with the requisition and hence the suits.
2. The defendants resisted the claim for eviction by filing written statements in the suits and their defence as set out in the written statements briefly is that the plaintiff does not require the suit premises for his own use and occupation, that the notice is not valid, legal and sufficient that the premises had not been correctly described and that the suits were instituted as the defendants refused to accede to the plaintiff''s request for enhanced rent.
3. Several issues relating to the ownership of the plaintiff of the suit premises, the relationship of landlord and tenant between the parties, the legality and validity of the notice and the reasonableness of the plaintiffs alleged requirement were settled for decision.
4. The learned Judge in the Trial Court found upon the evidence on record that the plaintiff was the owner of the premises and that the defendants were in occupation of the suit premises as tenant, under the plaintiff. He also found that the description of the tenancy as given in the plaint was substantially correct. The notices were found to have been duly served and it was further found that they were valid and sufficient in law. A plea was taken by the defendant Anil Kumar Das Gupta of Ejectment Suit Nos. 1504 and 1505 of 1962 that the tenancies were for manufacturing purposes. In fact he runs a press in the said premises. It was held however that the original purpose of the lease was for residential purpose and that the subsequent user of the premises for a different purpose could not alter the nature of the tenancy. In that view of the matter the notices were found to be sufficient. In regard to the principal point in dispute namely whether the plaintiff required the suit premises for his own use and occupation and for the use and occupation of the members of his family it was held that the plaintiff has been residing for about 4 years from before suit in a rented house on payment of monthly rent of Rs.400/-, that the premises in suit are situate in a residential cum commercial area, that the plaintiff''s mother and brother reside there close to the premises in suit and that the accommodation available in the rented house is insufficient. He accordingly held that the plaintiff''s claim was reasonable and bonafide. On such view of the mater the learned judge found all the issues in favour of the plaintiff and decreed the 3 suits on contest. He gave a period of 6 months to the defendants to vacate the premises.
5. Being aggrieved the defendants preferred 3 appeals to this Court being Nos. 719, 720 and 599 of 1965. The appeals were heard by a learned single Judge who found that the plaintiff has sufficiently proved that he was the owner of the suit premises and that the defendants were tenants under him. In fact these findings of the learned Trial Court was not even seriously disputed in the appeals. The notices were also found to be sufficient. With regard to the plea that the defendant was carrying on a printing business it was pointed out that such a plea was not taken in the written statement but even then it was held that the evidence did not establish the fact that the tenancies were for manufacturing purposes. Consequently the plea that the defendant was entitled to 6 months notice was overruled. The service of the notices were not disputed. With regard to the question of reasonable requirement the learned Judge observed that at the date when the suits were instituted the plaintiff was not required to plead or to give any evidence as to whether he was already in occupation of any reasonably suitable accommodation. It transpired at the hearing of the appeals that the plaintiff had instituted a suit for eviction in respect of a house at Dum Dum which had been decreed by the Court of first instance. The decree however was reversed in appeal The plaintiff preferred a Second Appeal to this Court and we are told that the second appeal has since been dismissed Be that as it may in view of the finding that the plaintiff was not obliged to adduce any evidence as to whether he was in occupation of any reasonably suitable accommodation and in view of the change in law, subsequent to the institution of the suit the learned Judge allowed the appeals and remitted the suits to the Court below in order to find out whether the plaintiff was already in occupation of any reasonably suitable accommodation or not.
6. After remand the parties adduced further evidence on the limited question and the learned Trial Judge again decreed the 3 suits. Incidentally it may be mentioned that at the time of the hearing of the suits after remand the daughter of the plaintiff had already been married. Inspite of that however considering the status of the plaintiff the number of members of his family and the persons working in the household, the learned Judge found that the plaintiff''s requirement was reasonable. He also took into consideration the fact that the plaintiff gets a rental of Rs. 113/- in all from the 3 premises in suit whereas he has to pay a sum of Rs. 400/- for the rented accommodation where he is now living and that this was also an important factor to be taken into consideration. The plaintiff''s case that he wants to move to the suit premises because of its contiguity, to his ancestral home was also accepted. The suits thus being again decreed, the defendants preferred 3 appeals being Nos. 541 to 543 of 1972. The appeals were dismissed with the result that the decree for eviction stood affirmed.
The present appeals are directed against the appellate order passed by our learned Brother M. M. Dutt, J.
7. Learned Advocate appearing in support of the appeal contended in the first instance that there is nothing to indicate that the plaintiff was the owner of the premises. In order to sustain a claim for eviction on the ground of reasonable requirement, the plaintiff must not only show that he is the landlord of the tenant but he must further show that he is also the owner of the premises. The plaintiff claimed the premises in suit as a legatee under the will of Kunja Behari Dhar. Learned Advocate for the appellant contended that the codicil dated 11th July, 1949 shows that the property was at one time given to other legatees and that the codicil on the strength of which the plaintiff claimed was missing. This point need not detain us long. The question is to find out whether in fact the plaintiff is the owner of the premises. The fact has been pleaded in paragraph one of the plaint where it is stated that the plaintiff is the owner of the premises. In paragraph 7 the defendant merely stated that they were not aware whether the plaintiff is the sole owner of the premises in suit. Ext. 6 is the probate of the will in respect of the estate of Kunja Behari Dhar, the father of the plaintiff. It appears from the said probated will that the premises No. 281|1|1B, Bowbazar Street (now known as Bipin Behari Ganguli Street) was bequeathed to Brojendra Nath the plaintiff. Therefore, the question whether the particular codicil is in record or not does not appear to be of much moment. This apart the plaintiff has categorically stated in his evidence as P.W. 1 that he is the owner of the premises by virtue of the will. This fact for from being challenged in cross-examination was admitted, by the two defendants who unequivocally stated that the plaintiff was the owner of the said premises. There is no dispute that the defendants are tenants under the plaintiff and it will bear repeatition that at the time when the appeals were taken against the decree initially made by the trial Court, before remand, the fact of the ownership of the plaintiff in respect of the suit premises and the relationship between the parties as landlord and tenant were not seriously disputed. In view of that and in view of the admitted position transpiring from the evidence it is now too late in the day to contend that the plaintiff has failed to prove that he is the owner of the premises. The contention of the learned Advocate for the appellant in this regard must have to be overruled.
8. It was next contended that the notices were bad-in-law. We have already stated that the plaintiff claimed to have determined the tenancies by a notice dated 10.5.1962. The defence case as made out in the written statements is that the said notice could not legally determine the tenancy of the defendants inasmuch as the defendant''s tenancy had been determined by the service of a previous notice dated 23.2.1962. In support of the contention that the suit founded upon the second notice is bad, reliance was placed on a decision in the case of
The finding of the Courts below that the tenancies were not for manufacturing purpose and that they were otherwise valid and sufficient was not, disputed before us.
9. It was next contended on behalf of the learned Advocate for the appellant that the plaintiff having acquired his rights under the will of his father, the father having died only in the year 1960, his right to sue the defendants in eviction is hit by the provisions of sub-section (3A) of section 13 of the West Bengal Premises Tenancy Act. This sub-section provides that where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or Clause (ff) of sub-section (i) shall be instituted by the landllord before the expiration of a period of 3 years from the date of his acquisition of such interest. It was argued on the authority of a decision in the case of Satyabrata vs. Usha Prova (79 C.W.N. 632) that a bequest by will is a transfer within the meaning of section 13 (1) (a) of the said Act. It was, therefore, argued that the plaintiff being a transferee within the prohibited period of 3 years, was incompetent to file the suits for eviction in 1962 on the ground mentioned in clause (ff) of Sub-Section (1) of Section 13 The decision relied on by the learned Advocate really does not touch the point involved. That was a case where the defendants were the heirs and the executors to the will of the original tenant. The question was whether the bequest by will by the original tenant came within the mischief of Sec. 13(1) (a) of the West Bengal Premises Tenancy Act. It was held to be so because on the terms of Sec. 13(1) (a) an act of transfer, assignment or subletting is a ground for eviction. The prohibition there was not restricted to transfer only but was clearly intended to be wider. But Section 13(3A) only refers to acquisition of interest by transfer. According to Stroud''s Judicial Dictionary the word transfer is one of the widest terms that could be used and viewed from that stand point transfer by operation of law is as much a transfer as one done by act of parties. Yet the law recognises the distinction between the two kinds of transfer. It is well settled that barring a few exceptions, the Transfer of Property Act covers only the latter class of transfers, and not the former. In our view it would always be necessary to determine, having regard to the context and object intended to be achieved, what the legislature meant and intended by use of the term in a particular statute. Considered from that angle it appears to us that the legislature really intended the term transfer as used in Sec. 13 (3A) to have the same meaning as in the Transfer of Property Act. Disposal of immovable property by will does not amount to transfer in that way in as much as the property does not pass on the donee with the execution of the will. Since no distinction can be made between testamentary and intestate succession in this regard, to accept the contention of the appellant would being in intestate succession within the mischief of Sec. 13 (3A). This was never intended by the legislature.
10. The question whether a testamentary bequest falls within the meaning of transfer or assignment as used in Sec. 13(1) (a) is different from the question whether a testamentary bequest is a transfer within the meaning of sec. 13 (3A) so as to prevent the transferee from suing the tenant within the prohibited period of three years. In a case of Delhi High Court (R. C. Sakhuja v. R.P. Kohil, 1970 RCJ 44) it was held that such a devolution by way of testamentary bequest is not within the meaning of Section 14(6) of the Delhi Rent Control Act, the provisions whereof are substantially similar to the provisions of Sec. 13 (3A) of the West Bengal Premises Tenancy Act. This case was considered by Their Lordships in the case of Satyabrata v. Usha Prova but no opinion was expressed. We hold however, that the testamentary, bequest in favour of the plaintiff could not prevent him from suing the tenant in eviction on a ground under clause (2) of Section 13(1) by invoking the bar provided by Sub-Section (3A). This point also must therefore fail.
11. The next point urged on behalf of the appellants is that the plaintiff has failed to make out a case of reasonable requirement. In order to appreciate the respective cases of the parties in this regard, it would be necessary to refer to the evidence on record. P.W. 1 the plaintiff has said that there are in all six rooms and one kitchen in the 3 premises in suit, that his family consists of himself, his wife, one daughter and one son both of whom were students at the time of his initial deposition. Besides these family members, he has two wholetime servants, one maid servant and a darwan. In the rented accommodation of the plaintiff, there are 4 rooms. One of which is used as his bed room, one as a dining-cum-dressing room one as a study and another as a store room. It is admitted however, that the daughter has since been married. It is complained that the accommodation even after the marriage of the daughter is insufficient. It is argued that there is hardly any space available for accommodation of the servants and darwan. On this point, learned Advocate for the appellants argued upon a reference to the evidence after, remand, that the family of the plaintiff consist only of himself his wife and son and none else and that therefore the accommodation at 12 Ashutosh Mukherjee Road house should be considered as sufficient. It was further argued that in the evidence after remand, the plaintiff did not say that there were any servants or darwan in the family. We do not however see much froce in this contention. In the evidence after remand, the plaintiff said in cross-examination that the family consist of himself, his wile and son. But that cannot be construed to mean that there are no servants or darwan. They are certainly not members of the family but they are on the less members of the household. The fact that, there are servants and darwan was deposed to in the initial evidence and that was not even effectively challenged in cross-examination.
12. Learned Advocate for the appellants argued that the learned Judge railed to consider the fact that there is a corridor in the rented house of the plaintiff and it was contended that the said corridor could be conveniently used for accommodating the servants etc. We are unable to accept this contention. The corridor is inside the compact block consisting of the rooms in occupation of the plaintiff. It would be unreasonable to insist that the plaintiff ought to accommodate the servants and the darwan in that corridor which the members of the family are constantly constrained to use. The plaintiff is fairly solvent man with a social standing. It cannot be expected that they should be made to live like sardines in tin box and that too on payment of rent which is nearly three times more than what he gets from the suit premises.
13. It was also contended on behalf of the appellants that the suit premises is situate in an area which is unsuitable for residential accommodation. The commissioner for local inspection appointed in this case found that it was a residential cam Commercial area. There is evidence that the ancestral house of the plaintiff is at 280 Bipin Behari Ganguly Street and that house is occupied by the brother of the plaintiff. If they could reside at 280, Bipin Behari Ganguly Street, we fail to appreciate why the plaintiff would not be able to live in a house close by. It was however suggested that there are woman of ill repute living close to the suit premises. The suggestion obviously is that such a place may not be a very congenial place to live with one''s family. But the suggestion is not established by any reliable evidence. That apart this suggestion seems to be an after thought, having been made after remand of the suits. The plaintiff''s evidence is that he wants to move to the suit premises because of its proximity to the ancestral house and his place of business. We think such a claim is reasonable.
14. We have already indicated that there are 6 rooms in the suit premises, three of which are small. Having considered the evidence we are in agreement with the Id. Judge that the plaintiff requires the whole of the suit premises for his own occupation.
15. As regards the question whether he has any other reasonably suitable accommodation, the plaintiff has said that there are none and there is no evidence coming from the defendants to indicate that there is any. All that was suggested was that the plaintiff obtained a decree for eviction against another tenant in respect of a house at Dum Dum. In fact the evidence is that the plaintiff obtained a decree in the Munsif''s Court which however was reversed in appeal. A second appeal was preferred and we have been told at the hearing of this appeal that the said second appeal has since been dismissed. Therefore it cannot be said that the plaintiff has any other reasonably suitable accommodation.
16. The powers of a Division Bench hearing a letters patent appeal from the judgment of a learned Single Judge in first appeal is not limited to questions of law only. Though it is open to the High Court to review even findings of fact, the Supreme Court in the case of
17. In this case we have considered the evidence regarding the factum of plaintiff''s requirement and we find no reason to disagree with or disturb the concurrent findings arrived at three different stages, once by the learned Trial Judge, then again after remand and finally by the learned Single Judge in the first appeals. The appeals therefore, fail, and are hereby dismissed with costs. The judgment and decree of the Court below are affirmed. The appellants are however given three month''s time to deliver up possession to the plaintiff provided they continue to pay or deposit a sum equivalent to monthly rent by the 15th of the month next following the month for which it is due. Failing this, the decree shall be forthwith executable.
Certificate under Article 133 (1) of the Constitution is prayed for and is refused.
Certified copy, if applied for may be issued forthwith.
Anil K. Sen, J.
I agree.
