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Mayarani Karmakar v/s Ashim Bose

    S.A. No. 247 of 2011 (Appellate Side)

    Decided On, 11 August 2017

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE ASHIS KUMAR CHAKRABORTY

    For the Appellant: Hiranmoy Bhattacharya, Advocate. For the Respondent: Sourav Basu, Advocate.



Judgment Text

The second appeal is directed against the judgment and decree dated August 04, 2011 passed by the learned Judge, IVth Bench, City Civil Court at Calcutta in Title Appeal No. 15 of 2010, affirming the judgment and decree dated December 22, 2009 passed by the learned 6th Court of the Presidency Small Causes Court at Calcutta in Ejectment Suit No. 1249 of 2001, thereby dismissing the ejectment suit filed by the original appellant against the respondent. During the pendency of the second appeal, on August 17, 2016 the original appellant Mayarani Karmakar died intestate and her only son and three married daughters have been substituted in the appeal, as the appellants.

The facts leading upto this appeal may be briefly stated.

The plaintiff Mayarani Karmakar, since deceased claiming herself to be the owner of the three storied building at Premises No. 30, Hidaram Banerjee Lane, Kolkata (hereinafter referred to as 'the said building') filed the ejectment suit, before the learned 2nd Judge, Presidency Small Causes Court at Calcutta, claiming a decree for eviction against the present respondent, the suit property comprising two rooms on the first floor of the said building (hereinafter referred to as 'the suit property'). The ejectment suit was filed under the West Bengal Premises Tenancy Act, 1956 (in short 'the Act of 1956') and the plaintiff sought for eviction of the defendant from the suit property, inter alia, on the grounds that she bona fide and reasonably required the suit property for the use and occupation of herself and her family members and that the defendant defaulted in payment of rent. The plaintiff alleged that she was in joint mess with her family members and her existing accommodation with two bed rooms and a kitchen on the first floor of the said building is absolutely insufficient, causing great hardship to herself and her family members and, as such, she reasonably required the suit property. The defendant filed his written statement denying all material allegations made in the plaint. He alleged that two rooms are sufficient for a family like the plaintiff. The plaintiff amended the plaint filed in the suit and alleged that she herself requires one room as bed room and another room for her Thakurghar, her adult son requires one room as his bed room, one room is required for her married eldest daughter who resides with her permanently, one separate room is required for the married second daughter and her youngest daughter respectively and one room is required for the purpose of drawing room for the use of her family members. She further claimed that her family requires one room as the study room for the school going members of the family and another room is required for her son’s business. The defendant filed his additional written statement disputing that any of the three married daughters of the plaintiff resides with her or there is any requirement of the plaintiff of the suit property. The defendant alleged that there is no requirement of any room of the said building for the business of the plaintiff’s son, as he is running the business of a goldsmith shop at 31, Hidaram Banerjee Lane, Kolkata and that the plaintiff suppressed that apart from the said building she also owns a two storied building at 108A, Uttarpally, Sodepur, District- North 24 Parganas (hereinafter referred to as 'the said Sodepur property'). In the suit, the plaintiff filed an application under Order XXXIX Rule 7 of the Code of Civil Procedure, 1908 (in short 'the Code') for appointment of an advocate commissioner to carry out the local inspection of the accommodation of both the parties to the suit at the said building. The said application was allowed, the advocate commissioner appointed by the Court inspected the respective accommodations of both the plaintiff as well as the defendant, at the said building and filed his report. However, neither the said advocate commissioner was examined nor was his report proved through evidence.

In the suit, both the plaintiff and the defendant examined themselves as the PW-1 and DW-1, respectively. In her evidence the plaintiff stated that the said building is a three storied building, comprising 11 rooms, 5 rooms on the ground floor, 5 rooms on the first floor and 1 room on the second floor, out of which 2 rooms and 1 kitchen on the first floor are in her possession.

By a judgment dated July 18, 2005, the learned Judge, 2nd Bench, Presidency Small Causes Court at Calcutta held that in terms of the orders passed by the Court under Section 17(2) and 17(2A)(b) of the Act of 1956, the defendant paid all arrear rent and he is entitled to get protection under Section 17(4) of the said Act and consequently, the defendant was no more a defaulter in payment of rent of the suit property. By the said judgement it was, however, held that the plaintiff the owner of the suit property has no other alternative suitable accommodation, save and except the suit property and her need for the suit property is genuine and bona fide and decreed the ejectment suit.

Feeling aggrieved by the said judgment and decree dated July 18, 2005 the defendant filed an appeal, being Title Appeal No. 80 of 2005, before the learned 3rd Judge, City Civil Court at Calcutta. By an order dated September 16, 2006 the learned 3rd Judge, City Civil Court at Calcutta set aside the said judgment and decree dated July 18, 2005 and remanded the entire suit, on open remand, to the learned trial Judge with a direction to decide the suit afresh by giving opportunity to both sides to adduce further oral and documentary evidence and to give an opportunity to the plaintiff for holding fresh local inspection in respect of the suit property. One of the grounds for setting aside of the said decree dated July 18, 2005 was that the advocate commissioner was not examined and his report filed before the trial Court was not proved.

After the suit was remanded to the learned trial Court, the plaintiff amended her plaint by incorporating an averment that in the year 2002, she along with her children has already sold the said Sodepur property. The plaintiff also filed another application under Order XXXIX Rule 7 of the Code for appointment of an advocate commissioner to hold local inspection at the said building to ascertain the number of rooms, their sizes, mode of user, situation thereof and the amenities attached to the portions of the said building occupied by the plaintiff and the defendant respectively and any other relevant points as may be pointed out at the locale by the learned advocates of the parties. The said application was allowed and an advocate commissioner (hereinafter referred to as 'the second advocate commissioner') was appointed to carry out the commission work as prayed for by the plaintiff. In terms of the writ of commission issued by the learned trial Court, the said second advocate commissioner inspected the said building, the respective portions of the said building occupied by the plaintiff and the defendant, respectively and on April 23, 2007 filed her report before the learned trial Judge.

In her report, the second advocate commissioner stated that the said building is a three storied building with sixteen rooms and one store room on the ground floor, the plaintiff’s accommodation on the first floor the building consists of two rooms, one kitchen, a veranda and a bathroom. Out of the two rooms, one is exclusively used as a bed room, the second one is used as bed room and thakurghar and the kitchen of the plaintiff on the first floor of the said building is also used as a dining room. In his said report, the advocate commissioner stated that the defendant’s accommodation on the first floor of the building consists of two rooms; one is used for as a bed room and the other as the kitchen. With regard to the third point of the writ of commission, the learned advocate commissioner recorded as follows:

'3. Points:

Any other relevant points as may be pointed out of at the locale by the Ld. Advocates of the part Relevant points of the plaintiff Ld. Advocate:-

i. Two rooms and one kitchen and one bath privy is in the possession of the plaintiff on the first floor and all other rooms are tenanted.

ii. Ground floor and 2nd floor have common tap water connection.

Relevant features pointed out by defendant’s Advocate:

1. All rooms of the suit premises are habitated and has electric fittings.

2. On the second floor five rooms are in occupation of the plaintiff and plaintiff’s lawyer strongly objected to this.'

Neither the plaintiff nor the defendant respondent filed any objection to the said report of the second advocate commissioner. The defendant filed his additional written statement alleging that in the meantime, the plaintiff has constructed five rooms on the second floor and one room on the ground floor of the said building. Thereafter, the suit was transferred from the Court of the learned Judge, 2nd Bench, Presidency Small Causes Court to the Court of the 6th Court of the Presidency Small Causes Court (hereinafter mentioned as 'the trial Judge').

Considering the averments made by the plaintiff in her amended plaint and the written statement and the additional written statement filed by the defendant, the learned trial Judge after remand of the suit by the learned 3rd Judge, City Civil Court at Calcutta, framed the issues, with regard to the maintainability of the suit, validity of the notice under Section 13(6) of the Act of 1956, and the grounds of ejectment of the defendant pressed by the plaintiff. A specific issue was also framed whether the plaintiff made addition and alteration to the said building.

After remand of the suit the eldest daughter of the plaintiff, the present appellant no.2 adduced evidence as PW-2. In her examination-in-chief, the PW-2 deposed that her mother requires two rooms; one as her bed room and another as Thakurghar. She further deposed that one room is required as the bed room of her married brother and his minor son, she herself and her son residing with the plaintiff require one room for themselves, her two married sisters require one room each, another room is required for the purpose of drawing room of the plaintiff’s family, one room is required for the business of the plaintiff’s son etc. and that the said Sodepur property was sold by the plaintiff, some time in the year 2002. She was cross-examined by the defendant. As mentioned earlier, the second advocate commissioner also adduced evidence as PW-3 and his report filed before the learned trial Judge was exhibited as Ext.-'10/a'. One Ajay Kumar Gupta also adduced evidence as PW-4 who in his examination-in-chief produced a rent receipt [Ext.-11(S/O] and Voter ID card (Ext.-12) and stated that he is a tenant in respect of two rooms on the second floor of the said building. He further deposed that apart from the said two rooms there are other four rooms on the second floor of the said building with asbestor sheds which are also occupied by him. The said PW-4 was also cross-examined by the defendant. On behalf of the defendant his daughter Ms. Indrani Basu adduced evidence, as DW-2 in the suit after remand. In her examination-in-chief, the DW-2 stated that she was relying with the earlier deposition of the defendant. In her examination-in-chief, the DW-2 admitted that the plaintiff’s son is married and he has a son. She, however, denied that any of the married daughters of the plaintiff resides with the latter or that the plaintiff has sold the said Sodepur property. In her examination-in-chief, the DW-2 further stated that the plaintiff has constructed five rooms and made other addition and alteration on the second floor of the said building, the PW-4 Ajay Kumar Gupta is not a tenant in the second floor of the said building and it was one Kalika Prasad Shaw who was a tenant on the second floor of the said building under the previous owner. The DW-2 further stated in his examination-in-chief that during the local inspection carried out by the second advocate commissioner, it was pointed out that the plaintiff made constructions of five rooms on the second floor and one room on the ground floor of the said building. In her cross-examination, the DW-2 stated that apart from the family members of the plaintiff and the defendant, respectively no one else resides in the said building and during the pendency of the suit the plaintiff constructed five rooms on the second floor of the building and neither any person called Kalika Prasad or his heirs live as tenant on the terrace/roof of the building.

After considering the respective the pleadings of the parties and the evidence adduced by the respective parties the learned trial Judge held that the plaintiff has the right, title and interest of the entirety of the said building, the notice issued by the plaintiff under Section 13(6) of the Act of 1956 was lawful and the same was duly served on the defendant. The learned trial Judge held that although the defendant had defaulted in payment of rent, but subsequently he paid the entire arrear rent by way of instalments as directed by the Court and, as such, he was entitled to get protection under Section 17(4) of the said Act of 1956 and cannot be held to be a defaulter in payment of rent. With regard to the issue as to whether the plaintiff caused addition or alteration to the said building, the learned trial Court held that during the course of argument the said issue was not pressed by either of the parties and, as such, no decision could be rendered on such issue. So far as the issue as to whether the plaintiff reasonably requires the suit property, the trial Judge found that though the DW-1 in his evidence stated that the plaintiff is in possession of the three big rooms on the first floor of the said building, but the report of the second learned advocate commissioner shows that the plaintiff is in possession of two rooms and one kitchen on the first floor of the said building. The learned trial Court, however, held that the PW-2, the plaintiff’s eldest married daughter failed to prove that she resides with the plaintiff and the plaintiff has not produced any documentary evidence to substantiate that she has sold the said Sodepur property and in the absence of any evidence to the effect that the Sodepur property has been sold, the learned trial Judge concluded that the plaintiff has the alternative suitable accommodation at the said property. It was further held that the second learned advocate commissioner visited the second floor of the said building and noted about five rooms which were in possession of the plaintiff and since the plaintiff did not file any written objection against the said report of the second advocate commissioner, she cannot challenge the same and that the circumstances go to show that apart from the two tenanted rooms of PW-4, there are other rooms on the second floor of the said building and the plaintiff has not established that she is not in possession of the remaining rooms of the second floor of the said building. The learned trial Judge concluded that the family members of the plaintiff consisted of herself, her son, daughter in law and a grand son and that the plaintiff’s requirement of accommodation has not been established to warrant a decree in her favour even after remand of the suit. On these findings, the learned trial Judge dismissed the eviction suit.

Against the above judgment and decree passed by the learned trial Judge after remand, the plaintiff filed an appeal being Title Appeal No. 15 of 2010 before the Court of the learned Judge, IVth Bench, City Civil Court at Calcutta. By the judgment dated August 4, 2011 the learned appellate Court below upheld the finding of the learned trial Judge that in the absence of any documentary evidence to substantiate that the plaintiff had sold the Sodepur property, it should be concluded that she has an alternative and the suitable accommodation at the said Sodepur property. The learned appellate Court below further held that the plaintiff appellant constructed certain rooms on the second floor but no information was ever given to the Court. It was further held that it seems the premises which are under occupation of the plaintiff and the rooms lying vacant on the second floor of the said building are sufficient to mitigate the need of the plaintiff and, as such, the learned appellate Court below concluded that the learned trial Judge has given a very careful and considered opinion and there is nothing to say that she had decided the suit upon appreciation of conflicting evidence, to loose the veracity of her judgment and found no reason to dissent with the views of the learned trial Court. On these grounds, the learned appellate Court dismissed the appeal. It is the said judgment and decree dated August 04, 2011 passed by the learned appellate Court below which has been assailed in the present second appeal.

On September 28, 2011 the Division Bench of this Court admitted the second appeal by framing the following substantial questions of law:

'I. Whether the learned judges in the courts below, substantially, erred in law in holding that the four rooms in the second floor of the suit premises were in possession of the plaintiff, when the plaintiff’s witness no. 4, being a tenant, possessed the rooms in the second floor?

II. Whether the learned judges in the courts below, substantially, erred in law in not taking into consideration the requirements of the married daughters of the plaintiff in the suit building in considering the reasonableness of the plaintiff?

III. Whether the learned judges in the courts below, substantially erred in law in not considering that the property situated at 108A, Uttarpalli, Sodepur, could not be taken as an alternative suitable accommodation?

IV. Whether the learned Judges in the courts below, substantially erred in law in not considering the plaintiff’s requirement of a room for the jewellery business of her son?'

As mentioned earlier, during the pendency of the present second appeal on August 17, 2016 the plaintiff died leaving behind one son and three married daughters, who have been substituted as the appellants in this appeal.

With regard to the aforementioned first substantial question of law, Mr. Hiranmoy Bhattacharyya, learned advocate appearing for the present appellants in the second appeal strenuously contended that in the instant case both the learned Courts below committed an error of law in dismissing the ejectment suit filed by the plaintiff, since deceased by holding that the possession of the four rooms on the second floor of the said building was with the plaintiff’s family. He contended that the defendant respondent in his evidence before the learned trial Judge stated the plaintiff is in possession of three rooms on the first floor of the said building. Even as per the report of the second learned advocate commissioner dated April 23, 2007 (Ext-10/a) the existing accommodation of the plaintiff consists of three rooms on the first floor of the said building, the first one used as a bed room, the second one used as a bed room and Thakurghar and the third one used as a kitchen cum dining room. It was submitted that although in the second additional written statement, the defendant respondent alleged that during the pendency of the previous appeal, being Title Appeal No. 80 of 2005 before the learned 3rd Judge, City Civil Court at Calcutta, the plaintiff constructed five rooms on the second floor of the said building and the learned trial Judge framed the Issue No. 6(a) mentioned above, but in the judgment dated December 22, 2009 he recorded that neither of the parties advanced any argument with regard to such issue and, as such, the defendant had abandoned his allegation that the original plaintiff constructed five rooms on the second floor of the said building. Mr. Bhattacharyya further contended that during the cross-examination of the PW-2 not even a suggestion was put her on behalf of the defendant to allege that apart from the existing accommodation on the first floor of the said building, the plaintiff and her family also possess five rooms on the second floor of the said building. It was further submitted on behalf of the appellants in this appeal that even in her oral evidence, the second learned advocate commissioner stated that the plaintiff is in possession of two rooms and one kitchen cum dinning of the said building and in the report filed before the learned trial Judge, she only mentioned the submission of the learned advocate of the defendant that the plaintiff is in possession of five rooms on the second floor of the said building. It was also urged that in any event, the PW-4 in his evidence proved that as a tenant he is in possession of the entire second floor of the said building. According to the appellants, in the present case both the learned Courts below committed an error of law in holding that the original plaintiff was found to be in possession of five vacant rooms on the second floor of the said building, which were sufficient to meet the requirement of herself and the family members.

With regard to the second substantial question of law it was submitted on behalf of the present appellants that even it be held that the PW-2, the eldest married daughter of the plaintiff was not residing with the latter, but it is settled law that the requirement of a plaintiff landlord of a room to accommodate his/her married daughter during her occasional visit and stay constitutes reasonable requirement of the plaintiff landlord under the tenancy law. In this regard, reliance was placed by the appellants on the decision of the Supreme Court in the case of M.L. Pravakar vs. Rajib Singal reported in (2001) 2 SCC 355. It was, therefore, urged on behalf of the appellants that the second substantial question of law should be answered by this Court in the affirmative.

It was next contended that in the present case the defendant respondent, as the DW-1 in his evidence stated that the original plaintiff had only three rooms of the said Sodepur property in her possession and the remaining portion of the said property was tenanted. Therefore, according to the present appellants even it be held for the sake of argument that the plaintiff failed to substantiate to have sold the said Sodepur property, in that event also by no means the three rooms of the said Sodepur property could be held to be the alternative suitable accommodation of the plaintiff. It was urged that undisputedly the said Sodepur property in the district of North 24 Parganas is far away from the deceased plaintiff’s residence at Hidaram Banerjee Street, Kolkata and as held by the Supreme Court in the case of M.L. Prabhakar vs. Rajiv Singal in a suit for eviction of a tenant on the ground of reasonable requirement of the suit property by the landlord the Court cannot refuse to pass a decree by requiring the landlord’s family to split up. On these grounds, it was urged that both the learned Courts below committed errors of law in holding that there is an alternative suitable accommodation of the plaintiff at the said Sodepur property.

Relying on the decision of the Supreme Court in the case of Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta reported in (1999) 6 SCC 222 it was further argued for the appellant that while deciding a suit for eviction of a tenant on the ground of bona fide requirement of the plaintiff landlord, the Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for his purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one, but the other accommodation must be accepted by the landlord to satisfy his such need. Therefore, according to the appellants in the instant case, the learned Courts below committed an error of law in holding that there is an alternative suitable accommodation of the plaintiff, since deceased at the said Sodepur property. Citing a decision of the learned Single Judge of this Court in the case of J.B. Batabayal vs. J.K. Roy reported in 2001(3) CHN 244, Mr. Bhattacharya submitted in dealing with the issue of reasonable requirement, the claim of the plaintiff for one guest room particularly for accommodating the married daughters of the plaintiff constitute an essential requirement. He submitted that in the said case a learned Single Judge of this Court held that in today’s world, one cannot insist that the landlord is entitled to one study cum drawing room only where television will be running and the children will attempt to study in an extremely competitive world. According to the appellants the judgment of the learned appellate Court below is very cryptic and in view of the decision of the Supreme Court in the case of Santosh Hazari vs. Purushottam Tiewari reported in (2001) 3 SCC 179 and the same is liable to be set aside in this second appeal. It was lastly contended on behalf of the appellants that in any event, when the original plaintiff died during the pendency of this appeal all her married daughters and the son became the owners of the suit property and each of the said married daughters is entitled to claim possession of one room in the said building. On these grounds, the present appellants submitted that this Court would allow the second appeal and pass a decree for eviction against the respondent defendant.

After the conclusion of the argument of the learned advocate appearing for the appellants Mr. Narayan Prasad Ghosh, learned advocate started to argue on behalf of the respondent defendant. He first submitted that it was a case of the plaintiff in the plaint, as well as in her evidence that the said building is a three storied building with 11 rooms, but in her report the second advocate commissioner (Ext-10/a), clearly stated that the plaintiff’s daughter has properly identified the suit premises and the said building is a three storied building with sixteen rooms and one store room on the roof top which has been stated by the plaintiff and she had found the same. It was further submitted that the plaintiff did not challenge the report of the second advocate commissioner containing the said statements. It was strenuously contended that in the additional written statement when the defendant categorically stated about the existence of five rooms on the second floor of the said building, the PW-2 in her examination-in-chief did not dispute the said statement of the defendant. He drew the attention of the Court to the examination-in-chief of the DW-2, particularly paragraphs 22 and 23 as well as her cross-examination, where she categorically stated that the construction of five rooms on the second floor of the said building by the plaintiff. At this stage, the hearing of the appeal was adjourned till May 4, 2017 when the learned advocate for the defendant was to continue his argument. However, on May 4, 2017 when the appeal was taken up for hearing the defendant engaged a new advocate who prayed for adjournment hearing of the appeal. However, the said prayer on behalf of the advocate of the defendant was refused and the hearing of the appeal was concluded.

I have considered the materials on record although the original plaintiff, since deceased filed the eviction suit against the defendant on various grounds under Section 13(1) of the Act of 1956, but the ground of eviction which is relevant for deciding the present appeal is that the plaintiff, since deceased reasonably required the suit property for her own use and occupation and she was not in possession of any reasonably suitable accommodation. It is trite law that under the Act of 1956, in order to obtain a decree for eviction on the ground of reasonable requirement for own use and occupation the landlord has to meet the answers to two questions namely, (1) why does he require; and (2) how much does he require. In this regard, reference may be made to the decision of the Division Bench of this Court in the case of A.K. Mukharjee vs. Pradip Ranjan Sarbadhikari reported in (1987) 2 CLJ 229. Further, the landlord has to prove the need objectively and the requirement of the landlord has to be genuine and bona fide and not fanciful or a ruse to get such decree. This view is fortified the Division Bench decision of this Court in the case of Hiralal Roy vs. Smt. Arati Chatterjee reported in (1989) 2 Cal LT (HC) 315=(1989) 2 Cal LJ 170. In the instant case, in his examination-in-chief the plaintiff, as the PW-1 stated that the said building is a three storied building in which there are total 11 rooms, 5 rooms on the ground floor, five rooms on the first floor and one room on the second floor. In her cross-examination, the PW-1 stated that one Kalika Prasad Shaw is a tenant who is residing on the second floor and named other tenants who are residing on the ground floor of the said building. However, after the remand of the suit by the learned City Civil Court at Calcutta, the second advocate commissioner appointed by the learned trial Judge in her report clearly mentioned that the plaintiff’s daughter identified and showed her that the said building is a three storied building, with 16 rooms and one store room on the roof top and she found the same. She also found all the rooms of the said building to have electricity connection. The plaintiff did not challenge the said report of the said learned second advocate commissioner. The second advocate commissioner adduced evidence before the learned trial Judge and her said report was marked as (Ext-10/a) and during cross-examination, not even a suggestion was put to her on behalf of the plaintiff that the finding recorded in her said report that there are altogether 16 rooms in the said building is incorrect. In his second additional written statement, the defendant specifically alleged that there are five rooms on the second floor of the said building, but in her examination-in-chief the PW-2 did not make any statement disputing the said allegation of the defendant. In her evidence, the PW-2 did not make any statement that Kalika Prasad Shaw has died or that Ajay Kumar Gupta, who subsequently adduced evidence as PW-4, is in occupation of any portion of the second floor of the said building. Now, as per the statement of the PW-1 in her examination-in-chief, there was only one room on the second floor of the said building which was occupied by the said Kalika Prasad Shaw as a tenant thereof. However, the PW-4, Ajay Kumar Gupta in his evidence claimed that he is residing on the second floor of the said building as an heir and legal representative of Kalika Prasad Shaw, since deceased; the rent receipt produced by him [Ext-11(S/O] is in the name of Kalika Prasad Shaw. The PW-4 has not disclosed any document issued by the plaintiff, since deceased towards his alleged induction in respect of any room on the second floor of the said building. In these facts, I do not find that the finding of the learned trial Judge that the statement of the PW-4 that he is in possession of all the rooms on the second floor of the said building does not appear to be very convincing and that the plaintiff has not established that the remaining four rooms on the second floor of the said building is not in his possession, which have been affirmed by the learned appellate Court in the impugned judgment under appeal, to be vitiated by any perversity. Accordingly, the first substantial question of law framed in this appeal is decided in the negative.

With regard to the second substantial question of law, it is to be noted that it was all along the case of the plaintiff, since deceased that one of his daughters, PW-2 along with her husband and son resides the said building. Even the PW-2 also adduced evidence in the suit alleging the requirement of the suit property for her family. However, after elaborate consideration of the evidence adduced by the PW-2 both the learned Courts below found that she resides at her matrimonial home with her family at 4, Kalidas Dutta Lane and there is no cogent ground to believe that the PW-2 has any requirement of accommodation at the said building. In any event, when the plaintiff, since deceased had not established that the four rooms on the second floor of the said building to be not in her possession, I do not find that the learned Judges of the Courts below committed any error of law in refusing to pass a decree for eviction against the defendant respondent on the ground of the requirement of the married daughters of the plaintiff, since deceased in the suit building. For all these reasons, even the second question of law

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framed in this appeal is also decided in the negative. With regard to the third substantial questions of law framed in this appeal I find that when the defendant respondent as the DW-1 in his evidence stated that the plaintiff had only three rooms of the said Sodepur property in her possession, the learned Courts below fell into an error of law in holding that the original plaintiff had an alternative accommodation at the said Sodepur property is vitiated by an error of law. However, in view of my above decision with regard to the first and second substantial question of law, the affirmative answer to the third substantial question of law cannot be a ground to interfere with the judgments and decrees passed by the learned Courts below. With regard to the fourth substantial question of law, nothing could be pointed out from the evidence adduced on behalf of the plaintiff, since deceased that she had substantiated the requirement of the suit property for the jewellery business of her son, the present appellant no. 1. Accordingly, the fourth substantial question of law is decided in the negative. Once again, in view of my above decision with regard to the first and second substantial questions of law, the decision with regard to the third substantial question of law also does not have any significance. After appreciating the evidence adduced by the deceased plaintiff herself and her eldest married daughter (the present appellant no. 2) both the learned Courts below held that the plaintiff’s family to be consisting of she herself, her son, daughter-in-law and the grand son through her married son. The learned Courts below further found that the present appellant no. 2 (the eldest married daughter of the deceased plaintiff) not to be residing at the said building, rather she resides at her matrimonial home situate in the proximity of the said building. It is a fact that during pendency of this second appeal the original plaintiff died. Therefore, the requirement urged by the original plaintiff of one room for herself has ceased to exist. Further, when the plaintiff, since deceased could not establish that she was not in occupation of the four rooms on the second floor of the said building and in the absence of any positive evidence that any of the married daughters of the deceased plaintiff, namely, the appellant nos. 2, 3 and 4 are desiring to reside at the said building and in view of the above decision with regard to first substantial question of law, I do not find any merit in the contention raised on behalf of the appellants that this Court should pass a decree for eviction against the defendant on the ground that after the death of the plaintiff /original appellant, each of her married daughters, namely appellant nos. 2, 3 and 4 reasonably require the suit property for themselves. In the facts of the present case as discussed above, the decisions of the Supreme Court cited by the present appellants in the cases of Shiv Sarup Gupta (supra) and M.L. Pravakar (supra), as well as the decision of the learned Single Judge of this Court in the case of J.B Batabayal (supra) have no application. For all the foregoing reasons, the second appeal, being S.A. 247 of 2011 stands dismissed. However, there shall be no order as to costs. Let, the decree be drawn up expeditiously. The department is directed to forthwith send down the lower Courts’ records to the learned Court below. Urgent certified copies of this judgment, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.
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