ANAMIKA ROYversusJATINDRA CHOWRASIYA AND OTHERS

                    [2013] 5 S.C.R. 1131

                       ANAMIKA ROY                                 A
                             v.
         JATINDRA CHOWRASIYA AND OTHERS
              (Civil Appeal No.4539 of 2013)
                         MAY 9, 2013
                                                                   B
         [P. SATHASIVAM AND M.Y. EQBAL, JJ.]

      West Bengal Premises Tenancy Act, 1956 - s. 13(4) -
Suit for eviction of tenanted premises - On the ground of bona
fide requirement - Trial court as well as first appellate court    c
decreed the suit directing eviction of entire rented premises
- High Court remitted the matter to trial court opining that in
view of s.13(4) it was the duty of the court to consider whether
partial eviction of the tenant could have satis;ied the
requirement of the landlady - Held: In view of the findings by     o
trial court and first appellate court that the landlady required
the entire premises, High Court committed grave error in
holding that partial eviction should have been considered -
Consideration of extent of requirement by the courts, would
be sufficient compliance of provision of the Act.
                                                                   E
     Appellant-landlady filed suit against the respondents-
tenant for eviction under West Bengal Premises Tenancy
Act, 1956, on the ground of bonafide requirement. Trial
court passed decree of eviction in respect of the entire
suit premises. First appellate court confirmed the decree.         F
In second appeal, High Court remitted the matter to trial
court holding that it was duty of the court to consider, as
to whether partial eviction of the suit premises would
satisfy the requirement of landlord, as mandated by
s.13(4) of the Act. Hence the present appeal.                      G
    Allowing the appeal, the Court

    HELD: 1. Having regard to the finding recorded both
                             1131                                  H
    1132    SUPREME COURT REPORTS             [2013) 5 S.C.R.


A by the trial court and the appellate court that the entire
  flat was required by the plaintiff-landlady for her use and
  occupation, the High Court has committed grave error in
  formulating a question and holding that the question of
  partial ·e.VtA:tion has to be considered sirice it is a
B mandatory1'equirement of law. The High Court has further
  committed serious error of law in setting aside the
  judgment and decree of the trial court and that of the
  appellate court. [Para 18] [1141-F-G]

         2. Indisputably, the appellilnt-landlady has been
C   residing in one room at the mercy of her brother and she
    needed the suit premises on the ground of her personal
    requirement. The suit premises is a flai, consisting of
    three bedrooms with bathroom, one store room, one
    kitchen and one dining room.· The suit was filed in the
D   year 1993 and for the last 20 years the appellant-landlady,
    who is 58 years old, has been fighting with the tenant for
    getting her flat for her own use and occupation. Both the
    trial court and the appellate court have considered the
    question of partial eviction and recorded the finding that
E   the appellant-landlady needed the entire flat to live there
    comfortably. It would be too harsh if the flat which
    consists of three rooms is divided and a decree in respect
    of the portion of the flat is passed which will result in
    inconvenience for both the parties. Moreover, the
F   defendant- respondent neither before the appellate court
    nor before the trial court or in the High Court has
    asserted that a portion of the premises will satisfy the
    requirement of the appellant. [Para 18] [1141-G-H; 1142-
    A-D]
G       3. It is correct that the provision contained in the
    West Bengal Premises Tenancy Act, 1956 mandates the
    court to consider whether partial eviction as
    contemplated therein should be ordered or the entire
    building should be directed to be vacated. However, while
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     ANAMIKA ROY v. JATINDRA CHOWRASIYA                  1133


deciding the issue of reasonable personal requirement of         A
the landlord, if the trial court or the appellate court also
considers the extent of requirement and records a finding
that the entire premises or part thereof satisfies the need
of the landlord, then, there is sufficient compliance of the
provision contained in the said Act. [Para 19) [1142-D-F]        B

    Krishna Murari Prasad vs. Mitar Singh 1993 Supp (1)
SCC 439;Rahman Jeo Wangnoo vs. Ram Chand and Ors.
AIR 1978 SC 413:1978 (2) SCR 380 - referred to.
                     Case Law Reference:                         c
    1993 Supp (1) SCC 439 referred to                Para 10
    1978 (2) SCR 380            referred to          Para 19
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.              D
4539 of 2013.

    From the Judgment and Order dated 10.02.2011 of the
High Court of Calcutta in S.A. No. 342 of 2007.

   R.K. Gupta, S.K. Gupta, M.K. Singh, Anindra Roy, Shekhar      E
Kumar for the Appellant.

    Shymal Chakravarti, Bimlesh Jain, Braj Kishore Mishra,
Aparna Jha, Siddhartha Arya for the Respondents.
                                                                 F
    The Judgment of the Court was delivered by

    M.Y. EQBAL, J. 1. Leave granted.

      2. Aggrieved by the judgment dated 10.2.2011 passed by
learned Single Judge of the Calcutta High Court in S.A. No.342   G
of 2007, whereby the second appeal filed by the defendant-
respondents was allowed, the judgments and decrees of the
courts below were set aside and the matter was remitted to the
trial court after expressing the view that considering the
provisions of Section 13(4) of the West Bengal Premises          H
    1134     SUPREME COURT REPORTS                    [2013] 5 S.C.R.


A Tenancy Act, 1956 it is a duty cast upon the Court to consider
  whether the requirement of the plaintiff could be satisfied by
  evicting the defendant from a part only of the suit property,
  plaintiff-appellant has preferred this appeal by special leave
  under Article 136 of the Constitution of India. The trial court and
B the first appellate court had passed decree for eviction against
  the defendant/tenant in respect of the entire suit premises in
  question.

          3. The litigation between the parties started on the filing
    of Title Suit No.66 of 1993 by the plaintiff in the Court of 4th
C Civil Judge (Senior Division) at Alipore, District 24 Parganas
    (South) for eviction and recovery of khas possession of the suit
  · premises against the original defendant/tenant - Lalji Chowrasia
    (predecessor of the respondents) and for mesne profits and
    compensation for damages to the suit property. The suit
D property happens to be a portion of the ground floor flat
    consisting of three bed rooms with attached three bathrooms
    with modem fittings, sanitary privy, one store room, one kitchen,
    one dining room and one covered verandah in the front portion
    with grill in the premise~ No.128/15, Hazra Road, Kolkata.
E
          4. The case of the plaintiff in the above mentioned suit, inter
    alia, is that she is the owner and landlady of suit property in
    terms of a decree passed on 17.3.1988 in Title Suit No.55 of
    1986. She requires the suit property in occupation of the
F defendant for her own use and occupation. She alleges that she
    is a divorcee and is occupying one room on the second floor
    of the three-storeyed building where her brother with his family
    is residing. Entire first floor of the building has been in
    occupation of a Bank (State Bank of India) as a tenant. The
G plaintiff alleges that she has been permitted by her brother to
    stay in one room, but since she is having bitter relationship with
    her brother's wife, she wants to reside in the suit property. Her
    further case is that she does not have any source of income
    except a paltry amount of Rs.500/- which she gets as her share
    in the rent collected from the tenant-bank. According to her, if
H
      ANAMIKA ROY v. JATINDRA CHOWRASIYA                      1135
                [M.Y. EQBAL, J.]

she rearranges the suit premises and makes provision for one           A
room flat, she will be able to augment a minimum income of
Rs.2500/- per month by letting or leasing it out. She alleges that
the original defendant was guilty of causing damage to the suit
premises.
                                                                       B
     5. The suit was contested by the defendant by filing written
statement contending inter alia that there was no relationship
of landlord and tenant between the parties to the suit.
Defendant further alleged that although the plaintiff might have
realized rent from the defendant and the defendant might have
paid/deposited monthly rent in the name of the plaintiff, yet          C
there could not be any relationship of landlord and tenant in
between the plaintiff and the defendant. Although defendant did
not dispute the fact that plaintiff has been residing with her
brother and his family on the second floor of the suit holding,
but he denied that the plaintiff requires the suit premises for her    D
own use and occupation. According to the defendant, her
present accommodation is suitable and her statement that she
had no alternative suitable accommodation elsewhere is not
correct. The defendant also disputed the plaintiffs claim of
ownership of the suit premises on the basis of compromise              E
decree passed in the said Title Suit No.55 of 1986. It is further
contended that the alleged decree is not binding upon the
defendant. It appears from the judgments of the courts below
that after the original defendant died, the respondents herein
were substituted in place of the original defendant. Defendant         F
No.5 also filed a separate written statement denying pleas of
the plaintiff.

       6. The trial court by its judgment dated 30.7.2002 decreed
  the said suit and directed the defendants to hand over the           G
  vacant possession of the suit premises to the plaintiff within a
 stipulated period of time. The trial court found that the defendant
 had..2dmitted in evidence that the plaintiff is the landlady of the
''defendant and that the suit premises is the portion of the ground
  floor and the remaining portion of the ground floor is in
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    1136    SUPREME COURT REPORTS                  [2013) 5 S.C.R.


A possession of the plaintiffs brother's son. The trial court further
  found that admittedly the original defendant was inducted in the
  suit premises as a tenant by the father of the plaintiff and the
  defendants have been substituted on the death of the original
  defendant. However, the trial court did not find any cogent
B evidence with regard to the alleged damage to the suit property.
  The trial court found that the present accommodation of the
  plaintiff on the second floor is not suitable where she has got
  only one room as per the Will of her father and she has got no
  separate kitchen and bath-cum-privy for herself. Finding the said
c Title Suit No.55 of 1986 being suit for declaration and not a
  partition suit, the trial court found that the decree passed in the
  suit was a compromise decree, from which it is clear that the
  plaintiff has got title in respect of the suit premises and from
  Ex.4 - the probate of the Will executed by plaintiffs father it is
D clear that the plaintiff has got life-estate in one room on the
  second floor and 15% share of rent from the said bank-tenant
  on the first floor. Admitting the compromise decree, the trial
  court concluded that the plaintiff is the owner of the suit
  premises and the present accommodation of the plaintiff is not
  suitable and the suit premises is reasonably and in good faith
E required by the plaintiff for own use and occupation and for
  augmentation of her income from the suit premises and there
  cannot be any partial eviction as such.

        7. Challenging the judgment and decree of the trial court,
F the defendants filed Title Appeal No.280 of 2002, which was
  placed before the Additional District and Sessions Judge, Fast
  Track Court-II, Alipore, who also opined that a complete flat is
  required for the purpose of the residence of the plaintiff and the
  plaintiff has bona fide requirement of the suit premises for her
G own use and occupation. Dismissing the title appeal on
  28.2.2005, the first appellate court took note of the fact that the
  trial court had already decided that there was a relationship of
  landlord and tenant between the parties and held that the trial
  court had rightly decreed the suit. The lower appellate court also
H found that there is bitter relationship between the plaintiff and
      ANAMIKA ROY v. JATINDRA CHOWRASIYA                        1137
                [M.Y. EQBAL, J.]

·her brother's wife and it is not expected that the plaintiff being      A
 a divorcee will reside in the house of her brother at the mercy
 of her brother's wife.

     8. The defendants (contesting Respondent Nos.1 and 2
herein) challenged aforesaid judgment and decree of the lower. 8
appellate court before the High Court by way of second appeal.
It appears thC:ti the second appeal was admitted by the High
Court on the following substantial questions of law:

     (a) Whether the learned Courts below committed
     substantial error of law in not considering the question of         C
     partial eviction of the appellants from the suit property?

     (b) Whether the learned Court of appeal below committed
     substantial error of law in refusing to consider the question
     of partial eviction on the ground that no such prayer was           o
     made by the defendants by totally overlooking the fact that
     in view of the provision contained in Section 13(4) of the
     West Bengal Premises Tenancy Act, a duty is cast upon
     the Court to consider whether the requirement of the
     plaintiff can be satisfied by evicting the tenants from a part      E
     of the property?

      9. On the aforesaid substantial questions of law, it was
contended by the defendants (appellants in second appeal) in
the High Court that the courts below did not consider question
of partial eviction and it is the plaintiffs case to let out a part of   F
the suit property for augmenting her income. It is the case of
the defendant that there is a vacant flat in the ground floor of
the suit holding which was allowed to the brother of the plaintiff
and the same can be provided to the plaintiff for residence.
There is no dispute that in the instant case no local inspection         G
was held in respect of the suit premises and/or suit building
itself.

     10. Defendants referred to a decision reported in AIR 1978
 SC 413 (Rahman Jeo Wangnoo vs. Ram Chand and others)
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    1138     SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A in support of their contention submitting that it is mandatory for
  the Court to consider the question of partial eviction as
  contemplated under the West Bengal Premises Tenancy Act,
  1956. Reference was also made to this Court's judgment in
  Krishna Murari Prasad vs. Mitar Singh, 1993 Supp (1) SCC
B 439, in which this Court has observed that the landlord's
  requirement having been found proved, the Court had to
  consider the matter further according to the relevant provision
  of law and the order for eviction from the entire premises could
  be made only if a decree for partial eviction in the manner
c provided could not substantially satisfy the landlord's
  requirement. Plaintiff (respondent in second appeal), on the
  other hand, submitted that the question of local inspection in
  the present case does not arise as the present occupation of
  the plaintiff is precarious and that is enough to prove her
  reasonable requirement for own use and occupation and there
0
  can be no partial eviction in the present case.

        11. The learned Single Judge of the High Court was not
  inclined to upset the concurrent finding with regard to the right
  of the plaintiff in respect of the suit premises as found by the
E courts below. From the materials on record, it appeared to the
  High Court that the plaintiff proved her bona fide requirement.
  However, the High Court is of the view that the decisions
  reported in AIR 1978 SC 413 (supra) and 1993 (Supp) (1) SCC
  439 (supra) supported the case of the defendants in so far as
F their stand on the question of partial eviction is concerned.
  Without disturbing the finding of the courts below with regard
  to the relationship of landlord and tenant between the parties
  to the suit and the plaintiffs ownership in respect of the suit
  property, the High Court allowed the second appeal filed by the
G defendants and made it clear that the inquiry, that will thereafter
  be done by the courts below, shall be limited to the question
  whether or not the E;lviction of the defendants from a part only
  of the suit premises can substantially satisfy the plaintiffs need.
  Liberty has also been given by the High Court to the parties to
H the proceedings to adduce appropriate evidence before the trial


                                                                            r
                                                                        I
      ANAMIKA ROY v. JATINDRA CHOWRASIYA                     1139
                [M.Y. EQBAL, J.]

court and also to make an appropriate application for                 A
appointment of a Local Commissioner for holding a local
inspection in respect of the suit premises and/or the suit holding.

    12. The relevant portion of the findings recorded by the
High Court is extracted herein below:-
                                                                      B
     "In the facts of the present case no Commissioner was
     appointed to hold a local inspection and consequently no
     local inspection report is on record. The description of the
     suit property appears to be a ground floor flat consisting
     of three bedrooms with attached three bathrooms with             C
     modern fittings, sanitary privy, one store, one kitchen, one
     dining room, one covered verandah in the front portion with
     grill in the suit holding, that is, premises No.128/15, Hazra
     Road: P.S. Bhowanipore Kolkata 700026. The learned
     Lower Appellate Court has found that the plaintiff would         o
     require one privy, one kitchen, one bathroom and one
     dinning space that is a complete flat for the purpose of her
     residence. AsJt appears to this Court that none of the
     Courts below has examined the question of partial eviction,
     the matter should be remitted back to the learned Trial          E
     court since this Court is of the view that considering the
     said provisions of Section 13(4) of the said Act of 1956 it
     is a duty cast upon the Court to consider whether the
     requirement of the plaintiff could be satisfied by evicting
     the defendant from a part only of the suit property. The
                                                                      F
     decisions reported at AIR 1978 Supreme Court 413
     (supra) and 1993 SUPP(1) SCC 439 (supra) supported
     the case of the appellants in so far as their stand on the
     question of partial eviction is concerned. In the present
     case, the plaintiffs reasonable requirement has been found
     to be proved by both the learned Courts below and,               G
     accordingly, the inquiry is now required to be made only
     with regard to the question of partial eviction. This Court
     is also not disturbing the finding of the learned Courts
     below with regard to the relationship of landlord and tenant
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    1140     SUPREME COURT REPORTS                    [2013] 5 S.C.R.


A        in between the parties to the suit and the plaintiffs
         ownership in respect of the suit property."

         13. We have heard Mr. R.K. Gupta, learned counsE;ll
    appearing for the appellant and Mr. Shymal Chakravarti,
    learned counsel appearing for the respondent.
8
         14. The question that falls for consideration is as to
    whether the High Court is justified in holding that both the trial
    court and the appellate court have not examined the question
    of partial eviction.
c
          15. Both the courts have recorded the concurrent finding
    of fact that the appellant is a divorcee old lady and is occupying
    one room on second floor of three-storeyed building owned by
    :ier brother. The first appellate court has taken note of the fact
    that there is a bitter relationship between the plaintiff and her
0
    brother's wife and it is not expected that the plaintiff being a
    divorcee resides in the house of her brother at the mercy of her
    brother's wife.

          16. The trial court while deciding the issue as to whether
E the suit premises is reasonably required by the plaintiff or not,
    has gone into the details of the difficulties, which the old landlady
    is facing. While discussing the question of partial eviction, the
    trial court referred to a decision reported as 2001 (3) CHN 244
    (Jagat Sandhu Batabayal vs. Jiban Krishna Roy} for the
F proposition that the question of partial eviction was rightly not
    considered in that case by the appellate court as the tenant
    never raised such issue before the appellate court nor any
    material was available before the learned Judge to form an
    opinion that the requirement of plaintiff can be substantially
G satisfied by ejecting the tenant from a portion of the suit
    premises. In the concluding portion of the judgment, the trial
  · court observed:-

               " Considering the evidence adduced by both parties
         and the principles of law discussed above, I find that the
H
     ANAMIKA ROY v. JATINDRA CHOWRASIYA                           1141
               [M.Y EQBAL, J.]

     plaintiff is the owner of the suit premises, the compromise           A
     decree in T.S. No.55/86 is admissible in evidence, the
     present accommodation of the plaintiff is not suitable and
     the suit premises is required for the reasonable
     requirement of the plaintiff for own use and occupation and
   , for augmentation of her income from the suit premises and             B
     there cannot be any partial eviction and as such all these
     issues be disposed of in favour of the plaintiff."

     17. Similarly, in the appeal filed by the respondent-tenant,
the appellate court has also gon·e into the question as to the             C
reasonable requirement of the landlady and held that a
complete flat is required for the purpose of residence of the
plaintiff. The appellate court held that:-

     "lt is not expected that the plaintiff being divorcee will
    reside in the house of her brother and at mercy of her                 D
    brother and brother's wife.

            In order to reside peacefully one privy, one kitchen,
     one bath room and one dining space in other words
     complete flat is required for the purpose of the residence            E
     of the plaintiff, so in the circumstances I hold that the plaintiff
     has bonafide reasonable requirement of the suit premises
     for her own use and occupation."

      18. Having regard to the finding recorded both by the trial
court and the appellate court that the entire flat is required by          F
the plaintiff landlady for her use and occupation, the High Court
has committed grave error in formulating a question mentioned
hereinabove and holding that the question of partial eviction has
to be considered since it is a mandatory requirement of law.
The High Court has further committed serious error of law in               G
setting aside the judgment and decree of the trial court and that
of the appellate court. Indisputably, the appellant-landlady has
been residing in one room at the mercy of her brother and she
needs the suit premises on the ground of her personal
requirement. The suit premises is a flat consisting of three               H
    1142     SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A   bedrooms with bathroom, one store room, one kitchen and one
    dining room. The suit was filed in the year 1993 and for the last
    20 years the appellant~landlady, who is 58 years old, has been
    fighting with the tenant for getting her flat for her own use and
    occupation. Both the trial court and the appellate court have
s   considered the question ofpartial eviction as noticed above and
    recorded the finding that the appellant-landlady needs the entire
    flat to live there comfortably. In our considered opinion, it would
    be too harsh if the flat which· consists of three rooms is divided
    and a decree in respect of the portion of the flat is passed which
c   will result in inconvenience for both the parties. Moreover, the
    defendant- respondent neither before the appellate court nor
    before the trial court or in the High Court has asserted that a
    portion of the premises will satisfy the requirement of the
    appellant.                                  ·
D       19. There is no dispute with regard to the ratio laid down
   by this Court in Rahman Jeo Wangnoo vs. Ram Chand and
   Others (AIR 1978 SC 413) that the provision contained in the
   West Bengal Premises Tenancy Act, 1956 mandates the court
   to consider whether partial eviction as contemplated therein
E. should be ordered or the entire building should be directed to
   be vacated. However, while deciding the issue of reasonable
   personal requirement of the landlord, if the trial court or the
   appellate court also considers the extent of requirement and
   records a finding that the entire premises or part thereof
F satisfies the need of the landlord; then, in our considered
   opinion, there is sufficient compliance of the provision
   contained in the said Act.

       20. Taking into consideration these facts and also having
  regard to the finding recorded both by the trial court and the
G appellate court after discussing the question of partial eviction,
  the substantial question of law framed by the High Court does
  not arise. Consequently, the impugned judgment passed by the
  High Court cannot be sustained in law,

H        21. For the reasons aforesaid, this appeal is allowed. The
     ANAMIKA ROY v. JATINDRA CHOWRASIYA                 1143
               [M.Y. EQBAL, J.]

impugned judgment of the High court is set aside and the        A
judgment and decree of the trial court is affirmed. However,
there shall be no order as to costs. -

     22. The defendant-respondents are directed to vacate the
suit premises within three months and hand over vacant
                                                                8
possession of the same to the appellant.

K.K.T.                                      Appeal allowed.