Ana Ghosh v. R.D. Anklesaria

Sankari Prasad Das Ghosh, J.:-

(1) This appeal is directed against the judgment and decree passed by the learned additional district judge, 12th court, alipore, in title appeal no, 496 of 1978, reversing the judgment and decree passed by the learned subordinate judge, 4th court, alipore, in title suit no. 97 of 1975.

(2) The respondent in the title appeal, mrs. Kamala roy, filed a suit for eviction along with prayer for recovery of mesne profits against the defendant respondent, dr. R. D. Anklesaria, in respect of a flat at the first floor of the house at premises no. 1, woodburn road also known as 41 woodburn park within bhowanipore p. S. And two garages and servant's quarters , at the ground floor of the premises, on alleging subletting of a portion of the premises to aladro private limited and using the premises for a purpose other than the purpose for which it was let out. It was alleged that the suit - premises was reasonably required for the purposes of building and rebuilding. It was also alleged that the defendant had erected a kitchen without the permission of the plaintiff.

(3) The defendant - respondent contested the suit by denying the alleged subletting or construction of kitchen or ' the alleged user of the suit premises for any purpose other than the purpose for which it was let out. It was alleged that the purpose of building and rebuilding was malafide.

(4) Seven witnesses were examined for the plaintiff. The defendant examined himself as d. W. 1. On a consideration of the evidences of these witnesses and the documentary evidence on record the learned subordinate judge decreed the suit on holding that the plaintiff required the suit - premises for the purposes of building and rebuilding. The learned subordinate judge did not, however, accept the contention of the plaintiff about the alleged subletting of a portion of the premises or the alleged construction of kitchen or the alleged user of the premises for non - residential purpose. On an appeal being preferred by the appellant, the learned additional district judge allowed the appeal, set aside the decree for eviction and dismissed the suit on holding that the suit - premises was not reasonably required by the plaintiff for the purposes of building and rebuilding. He was pleased to affirm the findings of the learned subordinate judge that the plaintiff had failed to prove the alleged subletting of any portion of the suit - premises or the alleged - con - construction of kitchen or the alleged user of the premises for non - residential purpose. A cross - objection filed by the respondent no. 2, mr. Ana ghosh, in the title appeal after the demise of the original plaintiff, mrs. Kamala roy, challenging the findings of the learned subordinate judge regarding the failure of the plaintiff to prove the alleged subletting or the alleged construction of kitchen or the alleged user of the premises for non - residential purpose was also dismissed by the learned additional district judge. Being aggrieved by this judgment and decree passed by the learned additional district judge the present appeal has been filed.

(5) Mr. Dutt, appearing for the appellant, mr. Ana ghosh, has not challenged the findings of the courts below regarding failure of the original plaintiff to prove the alleged construction of kitchen. He has, however, argued that the appellant is entitled to succeed in the suit on all the grounds under sections 13 (1) (a) , 13 (1) (h) and 13 (1) (f) of the west bengal premises tenancy act, 1956 (hereinafter referred to as the act for the sake of convenience). To support his contention, he has referred to vari - ous case - laws, which will be presently discussed.

(6) As regards subletting, mr. Duct has drawn our attention to several exnibits as wen as me evidences of p. ,w. V, sankar ghosh, ana d. W. 1, the defendant, it is in the evidence of the defendant (d. W. 1) that aladro private limited came into existence in february, 1975, and that though the company, aladro private limited, is no longer in existence, the suit - premises is being used as business address of adadro, of which his wife and son are partners. It is in the evidence of d. W. 1 that his cousin and his wife were shareholders of aladro private limited. The plaintiff's case regarding subletting is that the defendant sublet or assigned the suit - premises to aladro private limited without the knowledge and consent of the plaintiff. Ext. 8 (a) is the demand register of trades and professions of aladro private limited it shows the suit - premises as the address of the joint stock company. Ext. "10 is the certificate of incorporation of this company on 28 - 1975. Ext. 11 is a notice under section 146 of the companies act, 1956. This notice dated 16 - 1 - 1975 shows the registered office of aladro private limited at 1, woodburn road. Ext. 8 is a demand register of trades and professions of aladro. It shows the valuation of the place of business of aladro in the suit - premises at rs. 200] - - , the assessment of that place of business at rs. 150| - and realisation of rs. 150! - on 17 - 4 - 1976 and rs. 250| - on 17 - 5 - 1977 in respect of the trade licence of aladro. Mr. Dutt has argued, by referring to those documents, that the plaintiff had been able to prove her case of subletting of a portion of the suit - premises by the defendant to aladro private limited and thereafter to aladro. Mr. Das gupta, appearing for the respondent, has chall - engaged these entires in the demand register of trades and professions, exts, 8 and 8 (a) , by referring to the cases of jitenadra jourder vs. Maknanlal (61 c. W. N. 175) and durgabala biswas vs. Nityananda hoy (by c. W. N. 367). His contention is that as these documents, exts. 8 and 8 (a) , were marked as exhibits on waiver of formal proof, these documents are not substantive evidence and no finding regarding subletting can be arrived at on the basis of these documents. It is no doubt true that inspection. Book of lands and buildings maintained by the corporation of calcutta is not a public document. The assessment register of a municipality is also at best hearsay evidence. Nevertheless. When the demand registers of trades and professions, exts. 8 and 8 (a) , were marked as exhibits on waiver of formal proof, the contents of these documents are evidence, though these documents may be subjected to challenge by cross - examination or otherwise (vide l. Edwards ltd. Vs. State of west bengal =70 c. W. N. 452). These documents, exts. 8 and 8 (a) , cannot, thus, be thrown aside, as contended by mr. Das gupta. Even then, these documents or the other documents, exts. 10 and 11, cannot lead to an inference of subletting.

(7) Mr. Dutt has referred to the case of pravabati das vs. R. R. Joneja =1978 (1) c. L. J. 589 and has argued that when possession of a person under a tenant is not disputed, it will be for the tenant to establish that there is no subletting, as the relevant facts are within his special knowledge. Reliance has also been placed by him on the case of anath bandhu chakrabarty vs. Ashin mukherjee = 1977 (2) c. L. J. 153 for the purpose of showing that where direct evidence of subletting is not available or forthcoming, one has to fall back upon circumstantial evidence for the purpose of drawing necessary presumption or inference to locate such subletting on the basis of these propositions of law, it cannot be stated that there was any subletting of the suit - premises or any portion of it by the defendant to aladro private limited or to aladro.

(8) In the case of krishnawati vs. Hansraj (air 1974 s. C. 280) , subletting has been distinguished from permissive user like that of a licensee. It was

" held by the supreme court in the case of krishhawati that if two persons live together in a house as husband and wife and if the wife, who owns the house, allows the other to carry on business in a part of it, it will be, in the absence of any other evidence, a rash inference to draw that the owner let out part of the premises. This is not a case alike the case of central calcutta investment private limited vs. Hoshang sapoorji =1976 (1) c. L. J. 500, where there was occupation of a premises by third person exclusively for fifteen years without any tangible control over it by recorded tenant, so as to lead to an inference of subletting or transfer of interest. There is no evidence that the suit - premises or any portion of it was used exclusively by aladro private limited or used exclusively by aladro. The evidence of d. W. 1 is that he has not allotted any exclusive and independent space of his tenanted portion to aladro and that the suit premises is used by him for residential purpose. In the case of j. Me. Gaffin vs. L. I. C. Of india (air 1978 cal. 123) , referred to by the parties, there was parting of possession in the garb of a caretakership agreement to the effect that if the tenant failed to pay the requisite funds to the caretaker for payment of rent to the landlord, the caretaker would pay rent on behalf of the tenant and would continue in the premises indefinitely till repayment of all such amounts by the tenant to the caretaker, though the tenancy was to continue in the name of the tenant, it was, on these facts, held in that case that it was not merely a care takership agreement in which the duty of the caretaker would be to guard and protect the property and that it would be a transfer of possession by the tenant to the caretaker. The evidence on record do not at all show any such transfer of possession by the defendant respondent to aladro private limited or to aladro. The case of viswanath vs. Chamanlal (air 1975 delhi 117) , referred to by mr. Das gupta, was a case for eviction under clause (b) to the proviso to section 14 (1) of the delhi rent control act (59 of 1958). In that case, the tenant, who was the sole proprietor of a concern, paid rent in the name of the concern and there after another company was formed in which he had controlling interest. Rent of the premises was paid in the"

name of the company, which was at first accepted by the landlord, who, subsequently, sued for eviction oh the ground of subletting or assignment or parting with possession in favour of the company. It was held in that case that there was no subletting or parting with possession by the tenant to the company as the occupation of the company was merely that of a licensee and was not, necessarily exclusive. So long as a lessee retains legal possession of the whole of the premises, he does not commit a breach of law against parting with possession by allowing other people to use the same. It was held in that case of viswanath (air 1975 delhi 117) that if there was anything in the nature of a right to concurrent user, there is no parting with possession. In the present case, there is nothing to show that the suit - premises or any portion or it was used exclusively by messrs aladro private limited or by aladro. On the contrary, there is positive evidence by d. W. 1 that the suit - premises is used by him for residential purpose. In these circumstances, even though the suit - premises was used previously as business address of messrs aladro private limited or is being used as business address of aladro, it cannot be held that there was, any subletting of the suit - premises or any portion of it to m|s. Aladro pvt. Limited or to aladro. The eviction of the respondent under section 13 (1) (a) of file act has, thus, been rightly refused by the courts below.

(9) While dealing with the question of user of the suit - premises or a purpose other than that for which it was let out, the learned additional district judge observed that there was no satisfactory evidence on record to show that the suit - premises was let out only for residential purpose and hence, even if a portion of the premises was used for the purpose of trade or business it did not constitute a ground for evicting the defendant. He was further pleased to observe that considering the nature of business carried on by m|s. Aladro, it was to be stated that it was nothing more than incidental to the purpose of residence. Mr. Dutt has challenged these observations and findings of the learned additional district judge. His contention is that the learned additional district judge failed to apply correctly the provisions of section 58 of the evidence act in requiring any evidence that the premises was let out only for residential purpose. It appears that it was alleged by the plaintiff in the amended plaint of the suit that the suit - promises was let out for residential purpose. No issue was raised in the suit as to whether the suit - premises was used only for residential purpose or not. Issues arise under order 14 rule 1 of the code of civil procedure, when a material proposition of fact or law is affirmed by one party and denied by the other, when no issue was framed in the suit as to whether the suit - premises was used only for residential purpose, as alleged by the plaintiff in the amended plaint, mr. Dutt has contended, by referring to section 58 of the evidence act, that no evidence was necessary to prove the user of the suit - premises only for residential purpose, this" contention of mr. Dutt cannot be brushed aside, we are, therefore, unable to agree with the observation of the learned additional district judge that it could not be stated that the suit - premises was let out for residential purpose only. Even then, there is nothing to interfere with the findings of the courts below for defeating the suit for ejectment on the ground of user of the same for a purpose other than that for which it was let out. Mr. Dutt has referred to the cases reported in air 1970 madras 306, 86 c. W. N. 938, 67 c. W. N. 211, air 1984 punjab and haryana 44 and 1978 (1) c. L. J. 41 for the purpose of showing the alleged user of the suit - premises for a purpose other than that for which it was let out. In the case of p. N. R. Chattier vs. State (air 1970 madras 3c6) , the meaning of the expression, "carry on business" in section 10 (3) (a) (iii) 'of the madras buildings (lease and rent control) act, 1960 was considered! and it was held that the expression, "carrying on a business" may consist of a series of steps or even if one step is proved, the requirement is satisfied. In 86 c. W. N. 939 (s. K. Bhattacharyya vs. S. N. Saha) , the plaintiff got a decree under sec. 13 (1) (h) of the act, as the defendant in that case had taken the tenancy for residential purpose only and was keeping paying guest on receipt of some money. In 87 c. W. N. 211 (sachindra ghosh vs. Prativa debi) , a tenant was evicted under section 13 (1) (h) of the act for carrying on business for manufacturing dhoop in two bed rooms cut of three tenanted bed rooms in a residential premises without the written consent of the landlord, though the office of the business was shown elsewhere. In jugal kishore v. Dharmendra kumar (air 1984 punjab and haryana 44) , eviction of a tenant on the ground of change of user of a premises was allowed as there was conversion of a shop into a godown without the consent of the land lord. In messrs bhuban mohan shaw vs. Smt. Asha gupta = 1978 (1) c. L. J. 41, there was eviction under section 13 (1) (h) of the act as the premises, which was let out to a doctor for residential purpose and who had his professional chamber all through in the premises, was subsequently converted into a wooden furniture business under the name and style of kamala furnishing house after the doctor left the premises. As the wooden furniture business in a portion of the premises was started by the doctor's son by converting the doctor's chamber, it was held in that case that there should be eviction under section 13 (1) (h) of the act, as a residential house was a dwelling house in contradiction to a house for commercial or business purpose. On the strength of ' these case - laws, the plaintiff's suit for eviction under section 13 (1) (h) of the act cannot succeed in the absence of any material to show that the suit - premises is not used by the defendant for residential purpose, even though the suit premises is used also as the place of business of aladro,

(10) In bhagwat singh uberoy vs. Smt. Pan bai = 1977 (2) c. L. J. 369, referred to by mr. Das gupta, a premises was let out to defendant, a business man, for female residence at some point of time, male persons resided in the room. ' in one portion of that room, some articles of business were kept. It was held in that case that it could not be said that the room was used for a purpose other than that for which it was let out in air 1977 s. C. 364 (premchand vs. District judge, dehradun) , it was held that if a tenant in respect of two rooms runs a tailoring shop in one room, though the tenancy was used for residential purpose of the tenant with his wife, two young sons and a daughter, it could not be stated that the running of the tailoring shop was sufficient to convert the residential building into a non - residential building, as it was unlkely that the very room wherein the tailoring shop was run, was utilized as bed - room for one or two members of the tenant's family at night. Similarly in the present case, in the absence of any evidence to the contrary, it cannot be stated that the entire 'suit - premises is not used for residential purpose by the defendant with the members of his family at right, even though a portion of the suit - premises is used as the place of business of aladro or there may be a signboard of aladro or aladro private limited in the premises. Mr. Das gupta deferred us to an unreported judgment, of a division bench of this court in the case of bimal chandra bose v. Srish kishore goswami in l. P. Appeal no. 231 of 1974, in which it was held that if a portion of a premises is used for a different purpose, clause (h) to section 13 (1) of the act will not be applicable, provided such portion is not the major portion or the substantial portion of the premises. With due respect to the learned judges, we are unable to agree with this view in the letters patent appeal. If out of nine rooms, as was the case in the letters patent appeal, one room is used for working on a lathe machine, two rooms are used for running printing presses and one room is used for tailoring or typewriting, though the premises was let out for residential purpose, there can be no eviction under section 13 (1) (h) of the act on the basis of the decision of the division bench in the l. P. Appeal. If the result of this appeal would have depended on the question as to whether the business of aladro is carried on in a major portion or a substantial portion of the suit - premises or not, we ought to have referred the matter to a larger bench. As the decision of this appeal does not depend on this question, we do not, however, feel inclined to refer the matter to a larger bench. As the matter stands, there is nothing to show on the basis of the evidence on record, that the entire suit - premises is not used for residential purpose, at least at night, though the suit - premises is mentioned as the place of business of aladro or was previously mentioned as the place of business of messrs aladro private limited. There is, thus, nothing to interfere with the concurrent findings of the courts below, disentitling the plaintiff to get a decree for eviction under section 13 (1) (h) of the act.

(11) As regards the prayer for eviction on the ground of reasonable requirement for purposes of building and rebuilding, it is to be stated that the learned subordinate judge allowed the prayer for eviction on this ground on holding that the plaintiff had the means to make the construction in accordance with a plan, ext. 4, which has not yet been' sanctioned by the corporation of calcutta, though there was a tenant under the name of nocil and company in respect of three rooms at the ground floor of the building on the basis of a. Lease executed in february, 1977. The learned subordinate judge observed that merely because nocil and company was inducted as a tenant after the institution of the suit, it could not be said that the intention of the plaintiff was not bonafide. He relied on a letter, exit. 2 (e) , written by one s. L. Saraff,'who also stays in the disputed building. By that letter ext, 2 (e) , s. L. Staff had intimated that he would vacate his occupied portion soon, as the same,would be required by the plaintiff for the purpose of building and rebuilding relying on this letter, ext. 2 (e) , and on observing that nobody knew as to how long the suit was to continue so far as the tenancy of nocil and company was concerned, the learned subordinate judge was satisfied about requirement by the plaintiff of the suit - premises for the purposes of building and rebuilding. The learned additional district judge accepted the finding of the learned subordinate judge about the means of the plaintiff to make construction after demolition of the existing building. He was, however, suspicious about the genuineness of the plaintiff's intention to raise new buildingon the ground of induction of nocil and company as a tenant by a fresh lease for a period 6f five years from 1977, though nocil and company was already one of the tenants in the house, as well as on the ground of existence of vacant land on which the proposed building could be constructed. According to the learned additional district judge, it was not proved that the proposed building could not be constructed without evicting the appellant, as there was no satisfactory reason as to why the intended construction could be made on the vacant portion of the holding. It is to be stated in this connection that the covered area of the present building is about 3000sq. Ft. And that the total area of the holding is 21 cottahs. The learned additional district judge also suspected the honesty of the claim of the plaintiff regarding building and rebuilding,, as the age of the building was about 50 years, as stated by a commissioner in his report, ext. 9, though p. W. 7 stated the age of the building as: more than 70 year. Mr. Dutt has argued. That the condition of the building cannot be the test in judging the reasonable requirement of the plaintiff for building and rebuilding. According to him, the fresh lease in favour of nocil and company cannot also be a ground for defeating the plaintiff's suit for eviction on the ground of building and rebuilding; mr. Dutt has referred to the cases reported in 77 c. W. N. 432 and air 1971 s. C. 942 to bring home his first point;. He has referred to the case reported in air 1976 madras 65 for establishing his second point. As "regards the first point relating to the condition of the building it is to be stated that the decision in thee case reported in 77 c. W. N. 432 under the west bengal premises tenancy "act, 1950 to the effect that the state or condition of the building is not the test of building and rebuilding is no longer good law in view of the decision of the supreme court in the case of neta rom vs. Jiwan lal (air 1963 s. C. 499) , referred to in a decision of this court in the case of s. C. Mitter vs. Messrs auto service (72 c. W. N. 828) and subsequently' approved also by the supreme court in the case of messrs p. N. Shenoy vs. B. V. Shenoy (air 1971 s. C. 942). In order to succeed on a prayer for eviction on the ground of bonafide requirement for braiding and rebuilding, it is to be proved - that the claim of the landlord is reasonable and this can only be established by looking at all the surrounding circumstances such as, condition of the building, its situation, the possibility of its being put to a more profitable use after construction,, the means of the landlord and so on. The intention of the landlord must be held honestly in relation to the surrounding circumstances. Mr. Das gupta has, in this connection, referred to the case of sunt. Snehalata mukherjee vs. Ajit behari mukherji = 1977 (2) c. L. J. 29 for the purpose of arguing that the purpose of building and rebuilding must be the primary purpose and not a collateral and subsidiary purpose. A tenant can challenge the reasonableness or propriety of a plan for rebuilding. As there is nothing to show in the plan, ext. 4, that the proposed construction could not be made on the vacant land in the holding, the learned additional district judge has rightly taken into consideration this fact, while disallowing the plaintiff's case for building and rebuilding, though in the case of messrs p. N. Shenoy (air 1971 s. C. 942) , it was held that the landlord need not prove that the condition of the building was such that it required immediate demolition. It has been held by the supreme court in a subsequent case reported in air 1979 s. C. 1559 (metalware and company vs. Bansilal) that the age and condition of the building could certainly be a relevant factor which would have to be taken into" consideration for judging the bonafide requirement of a landlord for the immediate purpose of demolition and reconstruction. The learned additional district judge was, therefore, justified in considering the question of the age of the building, while judging the reasonableness of requirement of the plaintiff for building and rebuilding. It is, no doubt, true that in the case of chandra valli bai vs shah poonam chand (air 1976. Madras 65) it was held that non - filing of eviction petition against tenants of other portion of a building is immaterial and that filing of application for eviction against one tenant of the building on the ground of demolition and reconstruction of the same is not automatic illustration of the malafides of a landlord. The learned additional district judge did not, however, defeat the plaintiff's claim for buildings and rebuilding on the ground of non - filing of any petition for eviction against nocil and company or s. L. Staff he took into consideration the execution of a fresh lease in favour of nocil and company for a period of five years from february, 1977, though the suit was filed in 1974. We find nothing wrong on the part of the learned additional district judge in taking into consideration this fact of granting of fresh lease in favour of nocil and company with option for renewal subsequently, when the condition of the building was not such as required immediate demolition or reconstruction. So far as the letter, ext. 2 (e) , from s. L. Staff is concerned, it is to be stated that s. L. Staff was not examined by the plaintiff to stand the test of cross - examination regarding his willingness to vacate his occupied portion in the disputed building. We do not, thus, find anything to interfere with the finding of the learned additional district judge that the plaintiff dees not reasonably require the suit - premises for building and rebuilding.

(12) To sum up, though the suit - premises was taken by the defendant for residential purpose, there was no subletting or transfer or assignment of the premises or any part of it by the defendant in favour of messrs aladro private limited or aladro, in the absence of anything to show any exclusive possession by them or realisation of rent by the de fendant from messrs aladro private limited or aladro in respect of any portion of the suit - premises. Even though a premises is taken for residential purpose by a professional man, it does not prevent him from carrying on some professional work in a small portion of the premises during spare time (air 1970 mysore 297). Though the place of business of aladro or aladro private limited is or was the suit - premises, there is nothing to show that for user of the suit - premises for this purpose, the suit - premises or any portion of it was not used for residential purpose by the defendant. There is nothing' to interfere with the finding of the learned additional district judge that the plaintiff does not reasonably require the suit - premises for the ' purpose of building and rebuilding. The appeal is, thus, to fail.

(13) As the appeal is to fail, we do not feel inclined to discuss the question of propriety of the joinder of the present appellant, mrs. Ana ghosh, as the appellant in this second appeal. The result is that the appeal is dismissed. The parties do bear their own costs of this appeal.