IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon’ble JUSTICE BIBEK CHAUDHURI
SA 118 of 2010
+
CAN 10596 of 2013
Smt. Kakuli Mitra (widow) Ors.
Vs.
Sri Prabir Kumar Nag Anr.
For the appellants: Mr. Ayan Banerjee, Adv.,
Mr. Suchayan Banerjee, Adv.
For the respondents: Mr. Ashish Kumar Bagchi, Adv.,
Mr. Sauradipta Banerjee, Adv.,
Mr. Arnab Roy, Adv.
Heard on: December 16, 2019.
Judgment on: January 22, 2020.
BIBEK CHAUDHURI, J. : –
1. Defendant in a suit for eviction under West Bengal Premises
Tenancy Act is the appellant before this Court.
2. One Prabir Kumar Nag and his wife Smt. Mousumi Nag,
respondents herein instituted Ejectment Suit No.1284 of 2000 before the
learned Judge, 4th Bench, Small Causes Court, Calcutta praying for
eviction of the appellants on the ground of default, reasonable
requirement and violation of Clauses (m), (o) and (p) of Section 108 of the
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Transfer of Property Act. The appellants contested the suit by filing
written statement and additional written statement.
3. After contested hearing the trial court by his judgment and decree
dismissed the suit on the ground that the notice under Section 13(6) of
the West Bengal Premises Tenancy Act, 1956 (hereinafter described as the
Said Act) was defective in view of the fact that by virtue of the said notice
entire tenancy of the defendants was not determined. The learned trial
judge, however, held that the respondents were able to prove the ground
of reasonable requirement envisaged under Section 13(1)ff of the Said Act.
4. The judgment and decree of dismissal of the said suit led the
respondents to file an appeal before the learned Chief Judge, City Civil
Court, which was registered as Title Appeal No.85 of 2006. By impugned
judgment and decree passed on 20th January, 2007 the learned Judge, 6th
Bench, City Civil Court at Calcutta decreed the suit on the ground of
reasonable requirement holding, inter alia, that the notice under Section
13(6) of the Said Act was legal, valid and sufficient.
5. In this Court the judgment and decree passed by the lower
appellate court is challenged by the defendants of said suit.
6. It is found from the record that vide order dated 29th June, 2007
the instant appeal was admitted for hearing formulating the following
substantial questions of law:-
a) Whether the learned first Appellate Court committed
substantial error in law in reversing the judgment and
order passed by the learned trial judge?
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b) Whether the learned first Appellate Court committed
substantial error in law in holding that the notice to the
tenants was legal, valid and sufficient although the same
was in respect of the portion of the tenancy?
c) Whether the learned Judge of the lower Appellate Court
committed substantial error in law in not considering the
question of partial eviction in terms of Section 13 of sub-
section (6) of the West Bengal Premises Tenancy Act,
1956?
d) Whether the findings of the learned first Appellate Court is
otherwise perverse?
7. Mr. Ayan Banerjee, learned Advocate for the appellants at the
outset draws my attention to paragraph 2 of the plaint where the plaintiffs
stated the extent of tenancy in the following words:-
“That the defendants were the monthly tenants under the
plaintiffs in respect of a flat on the ground floor consisting of
three bedrooms, kitchen, bath, privy and water tap of
premises No.27B, Beadon Row, P.S Burtala, Calcutta-6, at a
monthly rental of Rs.75/- per month payable according to
English Calendar……..”
8. Mr. Banerjee also has pointed out paragraph 3 of the original plaint
where the plaintiffs stated that the defendants in or about 1990 by force
illegally occupied a space on the ground floor near the entrance gate and
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also by force walled up the northern side and converted the said space to
a room without the consent and permission of the plaintiffs”.
9. Next Mr. Banerjee draws my attention to the amended plaint filed
by the plaintiffs in the trial court on 25th March, 2004. In the amended
plaint it was stated by the plaintiff in paragraph 3 that the space near the
entrance gate of the suit flat which was allegedly occupied by the
defendants forcibly and illegally and was converted to a room without the
consent and permission of the plaintiffs was not included in the extent of
tenancy of the defendants. With this averment, the plaintiffs withdrew
prayer (b) of the plaint that contained and decree for declaration that the
defendant has/had no legal right to retain the legal possession of the said
room as described in schedule ‘B’ of the plaint and recovery of possession
thereof.
10. Mr. Banerjee next refers to the written statement filed by the
defendants in the suit. It is the specific case of the defendants that one
Hrishikesh Mitra, since deceased the husband of defendant No.2 was
inducted as a tenant in respect of the entire ground floor consisting of
three bedrooms, one kitchen, one Thakurghar, bath, privy, courtyard
excepting a room on the said ground floor by the side of the main
entrance under one Kabita Ditta. Sabita Ghosh, Bimala Rani Mitter at a
monthly rental of Rs.60/- payable according to English Calendar.
Sometimes in 1955, the room situated near to the main entrance gate of
the defendant’s flat was also let out to P.K. Engineering Works,
proprietorship firm owned by one P.K Mitter, since deceased, the husband
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of defendant No.1 at a monthly rental of Rs.15/- per month payable
according to the English Calendar. After the death of Hrishikesh Mitra in
the year 1960 the above mentioned two tenancies were clubbed and/or
consolidated into a single tenancy in respect of entire ground floor at a
rental of Rs.75/- in favour of P.K Engineering. The rent bill was
accordingly issued in respect of entire ground floor in the name of P.K
Engineering till the death of the said P.K. Mitter, who died sometime in
the month of July, 1966. After the death of the said P.K. Mitter, tenancy
was attorned to the defendants who were the widows of Hrishikesh Mitra
and P.K Mitter, both deceased under same rate of rent. It is also the case
of the defendants that on the request of the plaintiffs the original
defendants vacated one room situated on the western side of the ground
floor for possession of the Darwan of the plaintiffs. After the death of the
original Darwan of the plaintiffs, his two sons are still residing the
western side room of the suit premises. The present plaintiffs purchased
the suit property from the original owners and they became landlord in
respect of the suit premises. Thus the defendants claimed that the
description of the tenanted premises was wrongly stated in the plaint as
well as the eviction notice under Section 13(6) of the Said Act. According
to Mr. Banerjee as the tenancy was not determined to its foulest extent,
no decree in the suit for eviction could be passed.
11. Learned Advocate for the appellant submits that according to the
case of the plaintiffs, the defendants are tenants in respect of one ground
floor flat consisting of three bedrooms, one kitchen, one store room, bath,
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privy and water tap and a courtyard. The learned Judge in the lower
appellate court wrongly held that even assuming that a new tenancy was
given in respect of one room near the entrance gate of the ground floor flat
under occupation of the defendants, the extent of tenancy of the
defendants would be four rooms apart from kitchen, Thakurghar or
storeroom and one courtyard. The defendants themselves admitted that
they had surrendered one western side room under their possession for
occupation of Darwan of the plaintiffs. Thus from defendants’ possession
of four rooms besides kitchen, Thakurghar or storeroom, bath and privy
etc, one room was reduced when they surrendered the same in favour of
plaintiffs for the possession of the Darwan of the plaintiffs. Thus
according to the learned lower appellate court the extent of tenancy in
respect of three rooms, one kitchen, Thakurghar or storeroom, bath, privy
and courtyard remained under the possession of defendants when the
suit was filed by the plaintiffs. Thus the learned Judge in First Appellate
Court found that there is no dispute between the parties regarding extend
of tenancy of the defendants in the suit premises. The Commissioner’s
Report can also be reconciled with the plaintiffs of the parties. Under such
circumstances, the learned Judge in First Appellate Court held the extent
of tenancy was correctly stated in the notice under Section 13(6) of the
Said Act.
12. According to Mr. Banerjee the above finding is absolutely perverse
and contrary to the evidence on record and this Court has every authority
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to look into the evidence on record in view of substantial questions of law
formulated in ground (d) by the Division Bench of this Court.
13. I have carefully perused the Commissioner’s report as well as the
evidence adduced by the witnesses on behalf of the plaintiffs and the
defendants to independently ascertain the extent of tenancy in respect of
the suit premises.
14. It is found from the evidence on record as well as the
Commissioner’s report that the defendants are in occupation of entire
ground floor of premises No.27B, Beadon Row. The extent of tenancy
consists of one room on the eastern side of the suit flat, two rooms on the
southern side of the said suit flat, one small room, named as Thakurghar
or storeroom in between two southern side rooms. There is a room on the
western side of the courtyard which was surrendered by the defendants
for the occupation of the Darwan of the plaintiffs. On the extreme north
by the side of staircase there is a room which, according to the plaintiffs
was forcibly occupied by the defendants. On the contrary, it is the case of
the defendants that said room was given at rent sometimes in 1955 in the
name of P.K Engineering, a proprietorship firm of one P.K Mitter. After the
death of the said P.K Mitter, both the tenancy were clubbed together and
rate of rent was fixed at Rs.75/-.
15. According to Mr. Banerjee the defendants/appellants are tenants in
respect of four rooms, one Thakurghar or storeroom, one kitchen, bath
and privy, courtyard etc leaving aside the room which was surrendered by
the tenants at the request of the original plaintiffs to accommodate
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Darwan of the plaintiffs. The ejectment notice under Section 13(6) of the
said Act clearly shows that tenancy was determined in respect of three
rooms, one kitchen, one thakurghar or storeroom, bath and privy etc.
since the description of tenancy was wrong and entire tenancy was not
determined, the notice to quit was illegal, inoperative and insufficient. The
learned Judge in First Appellate Court failed to appreciate the extent of
tenancy of the defendants and wrongly held that the notice to quit was
legal, valid and sufficient.
16. Mr. Sauradipta Banerjee, learned Advocate on behalf of the
respondents, on the other hand, submits that if the statements in plaint
and written statement are reconciled, it would be found that there is no
ambiguity in describing the tenancy in question in the notice to quit. It is
stated by the learned Advocate for the respondents that the specific case
of the defendants/appellants is that the husband of defendant No.2 Late
Hrishikesh Mitra was inducted as tenant sometimes in 1950 in respect of
the entire ground floor consisting of three bed rooms, one kitchen, one
thakurghar, bath and privy and a courtyard excepting a room on the said
ground floor by the side of main entrance under one Kabita Dutta, Sabita
Ghosh, Bimala Rani Mitter at the rental of Rs.60/- per month payable
according to English Calendar. Sometimes in the year 1955 one P.K
Engineering, a proprietorship firm owned by one P.K Mitter, since
deceased, took tenancy in respect of the said one room situated by the
side of main entrance in the ground floor at a monthly rental of Rs.15/-.
After the death of Hrishikesh Mitra in 1960, the aforesaid two tenancies
9
were consolidated and one single tenancy in respect of entire ground floor
at a monthly rental of Rs.75/- was created. According to the learned
Advocate for the respondent the said fact has not been proved by the
defendants during trial of the suit. It is urged by the learned Advocate for
the respondent that extent of tenancy being a concurrent finding of fact
cannot be agitated in the second appeal.
17. He also refers to the case of the plaintiff depicted in the original
plaint where it is specifically pleaded that the defendants illegally
trespassed into the said room situated by the side of the entrance of the
ground floor flat. Initially, the suit was filed for eviction of tenants as well
as for eviction of the defendants from the said one room situated by the
side of the entrance of the ground floor flat under Section 6 of the Specific
Relief Act, but the relief in the form of decree under Section 6 of the
Specific Relief Act was omitted by way of amendment of plaint as the
Small Causes Court had no jurisdiction to try a suit under Section 6 of
the Specific Relief Act based on title. Therefore, after amendment of plaint,
suit was confined to extent of tenancy and eviction of the defendants from
the tenanted premises situated in the ground floor of the premises in suit.
18. It is further argued by Mr. Banerjee, learned Advocate for the
respondents that when the defendants claimed that their tenancy was
extended also to one room situated by the side of the entrance of the
ground floor apart from the rooms mentioned in schedule ‘A’ of the plaint,
it was the duty of the respondents to prove that one P.K Engineering was
inducted as a tenant in respect of the said room and the original
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landlords issued rent receipts in respect of the said room in the name of
P.K Engineering.
19. Learned Advocate for the respondents submits that the respondents
became the landlord in respect of the suit premises by purchase of
premises No.27B, Beadon Row. After their purchase, the respondents,
namely, Prabir Kumar Nag and Mousumi Nag sent two separate letters
stating, inter alia, that they purchased undivided half share each of
premises No. 27B, Beadon Row from the owners/landlords and requested
the defendants/appellants to attorn tenancy in favour of them and pay
rent to them along with all arrears. The said two letters of attornment
were marked Exhibit-E and Exhibit-G during trial of the suit at the
instance of the appellants. Similarly, the erstwhile landlords, namely,
Kabita Dutta, Sabita Ghosh and Bimala Rani Mitter informed the
appellants stating, inter alia, that they had sold out their undivided share
in favour of the respondents and the appellants should attorn their
tenancy in favour of the respondents. The said letters of attornment were
marked as Exhibit-F, Exhibit-H, Exhibit-I and Exhibit-J respectively by
the defendants. In the above mentioned letters of attornment tenancy of
the appellants were described as in respect of the ground floor of the
premises No. 27B, Beadon Row at a monthly rental of Rs.75/- payable
according to English Calendar month. On careful perusal of the evidence
on record which I am constrained to consider independently in order to
come to a finding as to whether the impugned judgment suffers from
perversity for non consideration of material evidence on record, I find that
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the learned Advocate for the respondents is wrong in his submission that
no rent receipt was ever issued in favour of P.K Engineering. The
defendants/appellants filed some old rent receipts wherefrom it is found
that rent was collected in respect of one room from M/s P.K Engineering
Works on behalf of Smt. Kabita Dutta, Smt. Bina Dey and Smt. Bimala
Rani Mitter according to their share in the property. Therefore, the rent
receipts (Exhibit-A series) prove that M/s P.K Engineering Works was the
tenant in respect of one room in the suit premises and the predecessor-in-
interest of the appellants, namely Hrishikesh Mitra, since deceased was
inducted as a tenant in respect of the remaining portion of the ground
floor of the premises in suit. The said two tenancies were subsequently
consolidated to one tenancy after the death of Hrishikesh Mitra.
20. Be that as it may, when the respondents purchased the property
the defendants were tenants in respect of entire ground floor except one
Darwan’s room of premises No. 27B, Beadon Row at a monthly rental of
Rs.75/- payable according to English Calendar.
21. The notice to quit (Exhibit-2) states that the defendants were
tenants in respect of entire ground floor. The dispute between the parties
relating to the illegality of the notice is as to whether entire ground floor
comprises of three rooms, one Thakurghar or storeroom, one kitchen,
bath and privy, courtyard etc or four rooms, one Thakurghar or
storeroom, one kitchen, bath and privy and courtyard etc.
22. Even assuming that extent of tenancy was not properly described
eviction notice under Section 13(6) of the Premises Tenancy Act, it is not
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in dispute that in the notice, it is clearly stated that the
defendants/appellants were tenants in respect of the entire ground floor.
The Division Bench of this Court in Smt. Gita Devi Shah Ors vs. Smt.
Chandra Moni Karnani Ors. reported in AIR 1993 CAL 280 held in
paragraph 45 of the report as hereunder:-
“45. A notice under Section 13(6) is a must for instituting a
suit against the defendant. The relevant portion of the said
section in its categorical terms states that no suit,
proceedings can be instituted without seving a notice
under Section 13(6). It is a procedure led and not substantive
law and although Indian legal system is not so stringent as
an English Law, with regard to the procedural part, yet care
must be taken to see that unjustified liberalisation with
regard to pro-cedural part does not create anomalous position
resulting in mis-carriage of justice. The notice is a warning to
the tenant having a threat to sue in case the tenant fails to
comply with the requisition. The language must be clear, the
tenancy should be described as specifically as is expected
from a normal and reasonable man. This however, is an
established principle of law and no notice under Section
13(6) of the said Act of 1956 would be declared bad, only
because the tenancy has: not been exactly defined. The
reason being that the tenant knows his own tenancy and the
test is whether he had understood the purport of the notice or
not. It is also necessary that| the grounds stated in the notice
can only be; taken in the plaint. But, however, it is also:
established principle of law that the plaint must be absolutely
clear in describing the, tenancy as the court will pass decree
of eviction from the premises as stated in the plaint.”
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23. Mr. Ayan Banerjee, learned Advocate for the appellants on the other
hand relies upon a decision of the Allahabad High Court in Ghasi Ram
Ors vs. Jagat Narain Ors reported in AIR 1976 ALL 221 it is held in
the aforesaid report that when in the notice to quit, the landlord has
stated that the tenant is in possession of a certain portion qua-tenant and
other portion as a trespasser, the said notice is invalid. Because, notice
must extend to whole of the demise premises and not in part only;
otherwise, the notice will be bad. In the instant case it is stated by the
plaintiffs that the defendants were tenants in respect of entire ground
floor. Admitted case of both the parties is that one room of the ground
floor was subsequently surrendered for the Darwan of the plaintiffs.
Except the said Darwan’s room, the defendants are in possession of entire
ground floor. Tenancy of the defendants were determined by notice to quit
(Exhibit-2) in respect of entire ground floor. Under such circumstances,
relying on the decision of Gita Devi Saha (supra), I can safely hold that
the notice to quit under Section 13(6) of the said Act cannot be held to be
illegal, invalid or insufficient on the ground of misdescription of the extent
of tenancy. If the suit is decreed, the decree is well executable because in
such case, defendants would be liable to be evicted from entire ground
floor.
24. In view of the above discussion, I hold that the notice under Section
13(6) of the West Bengal Premises Tenancy Act was legal, valid and
sufficient and there is no reason to interfere with judgment passed by the
learned First Appellate Court on the ground of legality, validity and
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sufficiency of the ejectment notice in connection with Title Suit No.1284 of
2000 Substantial questions of law in ground Nos. (b) and (d) are therefore
answered in negative.
25. On the issue of reasonable requirement of the
plaintiffs/respondents for their own use and occupation, both the Courts
below concurrently found that the respondents reasonably required the
suit premises for their own use and occupation.
26. At the time of admission of the appeal, the Division Bench
formulated a question of law as to whether the learned Judge in lower
appellate court substantially erred in law in failing to consider the
question of partial eviction to satisfy the need of the plaintiffs. It is stated
by the plaintiffs in the plaint that the family of the plaintiffs consists of
both the plaintiffs who are husband and wife, one daughter who was aged
about 13 years at the time of institution of the suit, widow mother of the
plaintiff No.1, one whole time maid servant and one Darwan. It is further
stated by the plaintiff they are in possession of two bed rooms on the
second floor and one asbestos shed small room as kitchen and one
staircase room as Thakurghar on the same floor. The plaintiffs claimed
that they reasonably required one room for themselves, one room for their
daughter, one room for the mother of plaintiff No.1, one study room for
the daughter of the plaintiffs, one room to be used as Thakurghar, one
drawing room cum guest room, one room for their made servant, one
storeroom and one kitchen apart from bath and privy. During trial of the
suit the plaintiff’s accommodation on the second floor of premises No.27B,
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Beadon Row was inspected by the Advocate Commissioner and he
submitted his report. It is found from his report that the second floor of
the said premises consists of five rooms, one covered passage and one
bath and privy. Out of them the learned Advocate Commissioner
described a room on the north-west corner of the second floor of the said
premises as a bed room. Room No.2 is a ‘L’ shaped room measuring about
21 ft. x 10 ft. 6 inches and the said room is used as a bedroom. There is a
small room adjacent to the said second room which is used as
Thakurghar of the said premises. Measurement of room No.4 is 16 ft. x 8
ft. and the said room is used as kitchen of the plaintiffs. Room No.5 is
practically a passage measuring about 11 ft. x 6 ft over which building
materials and unused articles were stuck. The roof of the said room is
made of asbestos. There is a covered space measuring about 21 ft. x 3 ft.
which is used as ingress and egress to and from the other rooms under
occupation of the plaintiffs/respondents.
27. During pendency of the appeal both the parties have filed series of
applications. All those applications were directed to be disposed of along
with the appeal.
28. Since the applications filed by the parties relate to the cause of
requirement of the plaintiffs, let me describe the averment in applications
hereinbelow:
The appellants filed CAN 8462 of 2011 for taking note
of subsequent event in as much as the marriage of the
daughter of the plaintiffs/respondents was performed
16on 2nd March, 2019 and after marriage she has been
residing at her matrimonial home. Therefore it is
pleaded by the appellants the requirement for the
daughter of the plaintiffs was no longer thereafter her
marriage.
By filing an affidavit in opposition against the said
application, it is pleaded by the respondents that her
married daughter often comes to her paternal home
with her husband and the plaintiff’s require one room
for accommodating her daughter and son-in-law during
their occasional visit. Practically the son-in-law of the
plaintiffs carries on business of publication and
distribution of various text books in College Street area
and comes to the suit premises everyday and
occasionally resides there.
29. CAN 8463 of 2011 is another application filed by the appellants
praying for amendment of written statement by incorporating the fact of
marriage of the daughter of the plaintiffs.
30. CAN 8464 of 2011 is another application filed by the appellants
along with the wedding card of the daughter of the plaintiffs with a prayer
to bring the said wedding card on record as evidence. The respondents
have filed an affidavit-in-opposition stating, inter alia, that they have
admitted the marriage of their daughter and therefore wedding card may
not be proved by the appellants by adducing evidence.
31. CAN 8883 of 2011 is an application filed by the respondents
praying for amendment of plaint stating, inter alia, that after institution of
the suit in 1996 the plaintiff No.2 gave birth to a mail child on 18th July,
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1997. The said son of the plaintiffs is now aged about 22 years and
plaintiffs require a separate room for his accommodation. The appellants
have filed an affidavit-in-opposition stating, inter alia, that during trial of
the suit as well as in first appeal, the plaintiffs did not come forward with
an application for amendment of plaint at this stage the plaintiffs could
not claim additional accommodation for their son. The act and conduct of
the plaintiffs reasonably proves that they have abandoned the claim of
requirement for their son.
32. CAN 10596 of 2013 is an application filed by the respondent for
taking note of subsequent events stating, inter alia, that the son of the
plaintiffs, namely Samsubhra Nag was aged about 16 years on the date of
filing of the application. DW1 admitted during her cross examination that
the plaintiffs have a son and as such the said son has requirement of
accommodation in the house of the plaintiffs. In the said application the
respondents have prayed for leave of the court permitting them not to
press an application for amendment of plaint, i.e., CAN 8883 of 2011. The
defendants/appellants, however did not file any written objection against
the said application.
33. The case of reasonable requirement of the plaintiffs are to be
decided taking into consideration of the above mentioned applications. It
is an established proposition of law that the Court is duty bound to take
into account subsequent events in a suit for eviction on the ground of
reasonable requirement. Law is also trite that evidence cannot be looked
into without pleading. In a suit for eviction on the ground of reasonable
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requirement for own use and occupation of the plaintiffs and his family
members, requirement goes on changing during passage of time. However
subsequent event is required to be pleaded by the parties.
34. In the instant case the appellants have stated in CAN 8462 of 2011
that the daughter of the plaintiffs got married on 2nd March, 2010 and she
has been residing at her matrimonial home. Therefore requirement
pleaded by the plaintiffs for their daughter does not exist as after her
marriage. In their affidavit-in-opposition, the plaintiffs/respondents, on
the other hand pleaded that her married daughter and son-in-law very
often come to their house practically the son-in-law of the plaintiffs
carries on business of publication and distribution of test books in College
Street areas and regularly visits the suit house and often stays there. CAN
8463 of 2011 is another application filed by the appellants praying for
amendment of written statement incorporating the said fact of marriage
between the parties.
35. Both the applications and affidavit-in-oppositions were filed on
affidavit. These are the statements of the parties on certain factual
changes on the point of reasonable requirement on solemn affirmation.
36. This Court while answering to the substantial question as to
whether partial eviction of the defendants would satisfy the need of the
plaintiffs or not, anxiously ponders over the matter as to whether the
applications for taking note to subsequent event filed by the appellants
and the affidavit-in-opposition thereto can be considered as part of the
pleading of the parties.
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37. The issue relating to particulars in pleading visa-vise cognizance of
subsequent event came up for consideration before Hon’ble Supreme
Court in K. Srinivas vs. K. Sunita reported in 2014 16 SCC 34 on the
question that the fact filing a false case complaint having been not
pleaded, whether the Court can take cognizance of it. In this context the
Hon’ble Supreme Court observed:-
“Another argument which has been articulated on behalf of
the learned counsel for the Respondent is that the filing of the
criminal complaint has not been pleaded in the petition itself.
As we see it, the criminal complaint was filed by the wife after
filing of the husband’s divorce petition, and being subsequent
events could have been looked into by the Court. In any
event, both the parties were fully aware of this facet of cruelty
which was allegedly suffered by the husband. When evidence
was lead, as also when arguments were addressed, objection
had not been raised on behalf of the Respondent-Wife that
this aspect of cruelty was beyond the pleadings. We are,
therefore, not impressed by this argument raised on her
behalf.”
38. Borrowing this principle in the instant case, it is found from the
affidavit-in-opposition filed by the respondent that they have admitted the
fact of marriage of their daughter in the year 2010. They also admitted the
wedding card of the said marriage of their daughter. In view of such
circumstances, in my considered view this fact can be taken into
consideration as a subsequent event without even amendment of pleading
or taking into consideration the application and affidavit-in-opposition as
part of the pleadings of the parties. This Court holds the similar view in
20
respect of the respondent’s application for taking note of subsequent
events regarding the requirement of the son of the plaintiffs who was born
after institution of the suit especially when the witness on behalf of the
defendant (DW1) admitted in his cross examination that the plaintiffs
have one son and he has requirement for his accommodation in the suit
house.
39. Therefore, taking together the applications, affidavits-in-opposition
as mentioned above and the original pleadings in the form of plaint and
written statement, this Court finds that the family of the plaintiffs
consists of themselves, their son who is now aged about 22 years, widow
mother of plaintiff No.1 and a whole time made servant. It is always
expected that the married daughter and her husband will visit the
plaintiffs and for their accommodation the plaintiffs reasonably require
one room.
40. From the evidence on record as well as the report of the Local
Inspection Commissioner it is ascertained that the plaintiffs are now in
occupation of two bedrooms, one small room used as Thakurghar and one
asbestos shed kitchen.
41. Considering the status of the plaintiffs, I am of the view that the
plaintiffs reasonably require one bedroom for themselves, one bedroom for
the mother of plaintiff No.1, one bedroom for their son, one drawing room-
cum-dining room, one guest room to accommodate the married daughter
and son in law and other guests of the plaintiffs, one study room for the
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son of the plaintiffs and one room for the whole time maid servant apart
from bath and privy.
42. Thus the respondents reasonably require six rooms.
43. Present accommodation of the plaintiffs is absolutely insufficient
and plaintiffs’ requirement cannot fulfill by way of partial eviction.
44. In view of the above discussion I do not find any substantial
question of law involved in the instant appeal. The appeal therefore
stands dismissed on contest, however without cost.
45. The judgment and decree passed by the First Appellate Court is
affirmed.
46. The appellants had directed to vacate and deliver peaceful
possession of the suit premises within 60 days from the date of this order,
failing which the respondents are at liberty to execute the decree passed
by the First Appellate Court.
47. Let a copy of this judgment be sent down to the lower court below.
(Bibek Chaudhuri, J.)
