JUDGMENT
Subhro Kamal Mukherjee, J.
1. This is a tenant’s second appeal against the judgment and decree dated April 30, 1994 passed by the learned Assistant District Judge at Sealdah in Title Appeal No. 50 of 1992 reversing the judgment and decree dated May 5, 1992 passed by the learned Munsif, First Court at Sealdah in Title Suit No. 509 of 1979.
2. The plaintiff, on December 5, 1979, instituted the present suit for eviction and for recovery of mesne profit. The plaint of the said suit was amended. According to the amended version of the plaint, the plaintiff reasonably required the suit premises for use and occupation by the plaintiff and by the members of her family. The defendant was a tenant under the plaintiff in respect of the suit premises comprising of two bed rooms, one kitchen-cum-dining room, bath room and privy in the ground floor at premises No. 19G Abinash Chandra Banerjee Lane, Baliaghata at a monthly rental of Rs. 150/- payable according to the English calendar. It was contended that the husband of the plaintiff, Jagadish Chandra Bose, was a qualified civil engineer and after his retirement from the Calcutta Port Trust he was practising as a consultant engineer. Ranjit Bose and Sujit Bose were the sons of the plaintiff and they were diploma holders of engineering. They were jointly doing business in the name and style of J.B. Construction Company. The husband and the sons of the plaintiff required additional accommodations for their professions. Both the sons of the plaintiff had one daughter each. One of the tenants, namely, Tapas Choudhury, vacated his tenanted premises during the pendency of the present suit. However, the said vacant portion of the premises could not be used as office rooms and the sons of the plaintiff were using those rooms as godowns to keep engineering goods. The plaintiffs husband had his paternal house at 58/1 Talpukur Road, Kolkata, but he did not possess even a single room in the said house.
3. The plaintiff, therefore, claimed that she needed one room as bedroom for herself and her husband, two rooms for use as bedrooms by her two sons. The plaintiffs husband required another room for his consultancy. The sons of the plaintiff required two rooms for accommodating their offices for their professional works. One room is required for the whole-time maidservant. One room is required for drawing-cum-study room. One room is required as a guest room particularly to accommodate the married daughter of the plaintiff for her occasional visits. The plaintiff reasonably required one kitchen, store and thakurghar.
4. The defendant contested the suit by filing a written statement. The defendant, inter alia, denied that the plaintiff required additional accommodation inasmuch as the accommodation available with the plaintiff was sufficient to meet the requirement of the plaintiff and the members of her family.
5. The learned Munsif by the judgment and decree dated May 5, 1992 dismissed the suit. The learned Munsif held that the plaintiff inducted one N. L. Vyas as a tenant in the suit house in stead and place of the erstwhile tenant Anil Das during pendency of this suit and as such her suit must fail. The learned Munsif in this connection relied upon the decision in the case of Krishna Kanta Bhowmick v. Gobinda Chandra Dutta, reported in 1986(1) CLJ 360.
6. The learned Munsif did not discuss the nature of requirements of the plaintiff and dismissed the suit solely on the ground that the plaintiff inducted the said N. L. Vyas in the year 1981, that is, after filing of the present suit for eviction on the ground of reasonable requirement.
7. The plaintiff being aggrieved by and dissatisfied with the judgment and decree of dismissal passed by the learned Munsif, as aforesaid, preferred Title Appeal No. 50 of 1992, which came up for hearing before the learned Assistant District Judge at Sealdah.
8. The learned Assistant District Judge by the impugned judgment and decree dated April 30, 1994 reversed the judgment and decree passed by the learned Munsif and decreed the plaintiffs suit on the ground of reasonable requirement on the findings that he had no hesitation in holding that the plaintiff had a bona fide requirement.
9. Being aggrieved the defendant has come up with this second appeal. The appeal came up for hearing under Order 41 Rule 11 of the Code of Civil Procedure on December 9, 1994 before a Division Bench of this Court when the said Division Bench, inter alia, directed hearing of the appeal on the ground Nos. 4 and 5 stated in the memorandum of appeal.
10. Mr. Syama Prasanna Roychoudhury, learned Senior Advocate, appearing in support of the appeal, argued that on the materials on record the plaintiff was not entitled to a decree for eviction against the defendant on the ground of reasonable requirement. Mr. Roychoudhury argued that as the plaintiff inducted a tenant during the pendency of the present suit for eviction, the conduct of the plaintiff militate against the bona fide of her claim.
11. An application for taking note of subsequent event is, also, filed by the defendant in connection with the present second appeal. It is alleged that the husband of the plaintiff is now aged about 88 years and is not doing any consultancy work. The granddaughters of the plaintiff are using the room, which was used by the husband of the plaintiff for his consultancy work, for their study-cum-bedroom. The sons of the plaintiff are not using any room in the suit premises for their professional works inasmuch as the suit premises is not fit for running their businesses. The said two sons have shifted their businesses elsewhere. The younger daughter-in-law of the plaintiff was running a business under the name and style of Bharat Electrical Industry in the sheds at premises No. 19F/1B, Abinash Chandra Banerjee Lane. The said premises have three sheds. One of the sheds is used as garage for garaging the private car of the husband of the plaintiff. The said premises is situated adjacent to the suit premises and is owned by the plaintiff and her two sons. As two sheds are lying vacant due to closure of the business of Bharat Electrical Industry for the last few years, the said sheds may be used for the purpose of using as offices in connection with the business of the two sons Tapas Choudhury, an erstwhile tenant under the plaintiff, vacated his tenanted premises, which can be used by the plaintiff. The husband of the plaintiff has his paternal house at 58/1 Talpukur Road, Kolkata, which is a two-storied building covering an area of 2 cottahs and 4 chittaks, which could be used by the plaintiff and the members of her family. The staircase room in the suit house can be easily used as study room. There is no permanent maidservant and a cook in the employment of the plaintiff.
12. Mr. Bidyut Kumar Banerjee, learned Senior Advocate, appearing for the plaintiff/respondent, submits that the findings of the Lower Appellate Court that the plaintiff reasonably requires the suit premises are findings of fact and as such not assailable in the second appeal. Mr. Banerjee submits that the application for taking note of the subsequent event has, only, been filed to delay the recovery of possession of the suit premises. Mr. Banerjee submits that some of the events stated in the application for subsequent events are not subsequent events at all, but the Lower Appellate Court considered those events and, thereafter, passed the decree for eviction.
13. An affidavit-in-opposition is filed by the plaintiff to the application for taking note of subsequent event. In the said affidavit-in-opposition, which is affirmed by the husband of the plaintiff, it is categorically stated that the husband of the plaintiff is still carrying on his consultancy work and as such the granddaughters are not using his office room for their study and bedroom. It is denied that the sons of the plaintiff are not using the existing drawing room as their office for their business purposes or that they have shifted their businesses elsewhere. The sons are carrying on their businesses at the suit house under the name and style J. B. Construction. The younger daughter-in-law of the plaintiff is the sole proprietress of Bharat Electrical Industry, which is engaged in manufacturing of electric bulbs. She has not stopped her business for the last two years and as such the sheds at premises No. 19F/1B, Abinash Chandra Banerjee Lane are not lying vacant or can be used for the purpose of office of the sons of the plaintiff.
14. As I have indicated hereinabove that the Division Bench on December 9, 1995 directed hearing of this appeal on the ground Nos. IV and V. The ground Nos. IV and V are set out hereinbelow :
“IV. For that the learned Assistant District Judge proceeded to decide the case on mere surmises and conjectures and erred in law in holding that defendant had miserably failed to establish the induction of Mr. Vyas to the suit premises subsequent to the institution of the suit.
“V. For that in the facts and circumstances of the case and materials on record both oral and documentary the learned Assistant District Judge should have held that Mr. Vyas came to the room where Anil Das resided and that was during the pendency of this suit and in that view of the matter according to the settled principle of law, whatever and how much action reasonable requirement of the plaintiff, the suit must fail”.
15. Mr. Syama Prasanna Roychoudhury, learned Senior Advocate, appearing in support of the appeal, argued that since the plaintiff has inducted a new tenant during the pendency of the suit, the suit filed by the plaintiff for recovery of possession of the suit premises on the ground of reasonable requirement must fail.
16. The learned Trial Judge held that the landlady, during the pendency of the suit, inducted one N. L. Vyas and as such the suit must fail. The learned Judge in the Lower Appellate Court noticed that the present suit was filed on December 5, 1979. The tenant filed his written statement on November 26, 1980. In the written statement, particularly in paragraph 13 of the said written statement, it was stated by the defendant that the landlady let out a flat in the ground floor of premises No. 19G, Abinash Chandra Banerjee Lane, Kolkata-10 to one Anil Das. The plaintiff filed an application for amendment of the plaint on December 17, 1987. In the application for amendment, particularly in sub-paragraph 5(vi), the plaintiff stated that the plaintiff had three tenants in the ground floor of the suit house, namely, N. L. Vyas, Tapas Choudhury and the present defendant. It was, further, stated that Tapas Choudhury vacated his portion by delivering possession in favour of the plaintiff. Curiously enough that there was no pleading that the said Anil Das vacated the tenanted premises and in stead and in his place the said N. L. Vyas was inducted by the plaintiff. The defendant did not state categorically as to when exactly the said N. L. Vyas was inducted. The learned Judge in the Lower Appellate Court rightly disbelieved the allegation of the defendant that during the pendency of the suit the defendant initially inducted the said Anil Das and, thereafter, the said N. L. Vyas. The learned Judge in the Lower Appellate Court was right in accepting the case of the plaintiff that she did not induct the said N. L. Vyas as a tenant during the pendency of the suit.
17. The question whether a particular fact has been proved when evidence for or against has been properly admitted is necessarily a pure question of fact. The learned Judge in the Lower Appellate Court upon consideration of the materials on record came to the findings of fact that the plaintiff did not induct the said N. L. Vyas as a tenant during the pendency of the suit. It is not possible for the Second Appellate Court to interfere with such findings of fact.
18. Mr. Roychoudhury submits that the Trial Court and the Lower Appellate Court did not take into consideration the accommodation available to the plaintiff at 58/1, Talpukur Road, Kolkata. Talpukur Road property is the paternal property of the plaintiff. The husband of the plaintiff, Jagadish Chandra Bose, while deposing as plaintiffs witness No. 1 although admitted that he had 1/9th share in the paternal house, but stated categorically that he had no possession. The husband of the plaintiff was not seriously cross-examined on this aspect. The sister of the husband of the plaintiff, namely, Shrimati Urmila Ghosh, corroborated such statements while deposing as plaintiffs witness No. 4. She stated that the husband of the plaintiff did not possess any room in the said house.
19. On the materials on record, I accept the contention of the plaintiff that the plaintiffs husband is not in possession of any accommodation at the Talpukur Road paternal house.
20. The plaintiff in the application for amendment of the plaint admitted that one of her tenant, namely, Tapas Choudhury, vacated the tenanted portion by delivering possession in favour of the plaintiff. The two rooms vacated by the said Tapas Choudhury have been used by the sons of the plaintiff as godowns. From the report of the learned Advocate Commissioner it could be seen that those rooms have been used as godowns. The learned Judge in the Lower Appellate Court on the basis of the materials ,on record, found that the rooms, which were under occupation of the said Tapas Choudhury, were not accessible from the portion occupied by the plaintiff. It was found that there was difficulty in ingress and egress. The said two rooms are situated in the backside of the plaintiffs portion. The learned Judge in the Lower Appellate Court was right in holding that those two rooms were not suitable for the members of the family of the plaintiff and as such those two rooms were used as godowns for keeping articles of the sons of the plaintiff in connection with their construction business.
21. The defendant/appellant alleges that the husband of the plaintiff is aged about 88 years and is not doing any consultancy work. Therefore, he does not require any room for the purpose of his consultancy work. The husband of the plaintiff himself files an affidavit contending, inter alia, that still he is carrying on consultancy work. I, therefore, accept the contentions of the plaintiff that her husband is still carrying on the consultancy works. Merely because her husband grew old, it cannot automatically be presumed that he has stopped consultancy works.
22. The defendant alleges that as the younger daughter-in-law of the plaintiff is not doing her business at premises No. 19F/1B, Abinash Chandra Banerjee Lane, Kolkata, which is situated adjacent to the suit house, the requirement of the plaintiff is satisfied. In the affidavit-in-opposition to the application for taking note of the subsequent events it is stated that the said daughter-in-law of the plaintiff is the sole proprietress of Bharat Electrical Industry, which is engaged in manufacturing of electric bulbs and it is denied that she has stopped her business,
23. In any event, there are three sheds in the said premises No. 19F/1B, Abinash Chandra Banerjee Lane. One of the sheds is used as garage for garaging the car of the husband of the plaintiff. The other two sheds, in my view, cannot be used as office rooms. The plaintiff cannot be directed to undertake structural alterations of the sheds to accommodate the defendant in the suit premises. Moreover, it is stated before me that still the said daughter-in-law is carrying on her business and there are valuable machineries lying in those sheds, which are exclusively used for the said manufacturing purpose.
24. The learned Judge in the Lower Appellate Court found that the plaintiff has only 3 (three) bedrooms in her occupation. The family of the plaintiff consists of herself, her husband, two sons, two daughters-in-law and two grandchildren. The husband of the plaintiff is a qualified engineer and is engaged in consultancy work. The sons are diploma holder engineers and they are carrying on construction business.
25. The plaintiff has a married daughter. It is expected that the married daughter shall occasionally come to her paternal house to stay.
26. The plaintiff must have a thakurghar.
27. It was found by the Lower Appellate Court that the plaintiff has a whole-time maidservant.
28. The learned Judge in the Lower Appellate Court found that the plaintiff was in requirement of at least 9 (nine) rooms. Consequently, a decree for eviction on the ground of reasonable requirement was passed.
29. The eviction suit has been instituted against a particular tenant on the ground of reasonable requirement of the plaintiff and the members of her family. The ground is proved. Therefore, the landlady is entitled to a decree for eviction. It was for the landlady to decide how and in what manner she should live and as such she is the best Judge of her requirement. Once it is found that the landlady requires additional accommodation, the decree for eviction must follow.
30. I am satisfied that this second appeal involves no substantial question of law. Therefore, the appeal is dismissed.
31. I make no order as to costs.
32. However, the tenant is in occupation of the tenanted portion for a considerable period of time. I permit the tenant to retain possession of the suit premises till December 31, 2004 to enable him to find out an alternative accommodation if, however, the tenant files an undertaking by June 11, 2004 before this Court undertaking to quit, vacate and deliver the vacant and peaceful possession of the suit premises in favour of the plaintiff. During his stay, the tenant/defendant shall, however, not cause any damage to the suit premises nor shall create any third party interest therein. The defendant tenant must pay occupation charges, at the rate of rent last paid, month by month to the plaintiff directly. In default of filing of undertaking, the decree shall be executable at once.
33. Xerox certified copy of the judgment and decree, if applied for, are to be supplied to the applicant expeditiously.