JUDGMENT
S.K. Mookherjee, J.
1. This First Appeal is directed against the judgment and decree passed by the learned Chief Judge, City Civil Court at Calcutta on 8.1.1980 in Ejectment Suit No. 384 of 1975. The respondents instituted a suit for eviction of the defendant from the suit premises on the ground of reasonable requirement for their own use and occupation and default. The case, as laid down in the Plaint, is that the defendant was a tenant in respect of three rooms, one small kitchen and also having common user of bath, filtered water tap and privy on the ground floor of premises No. 12/6, Nilmani Dutta Lane, Calcutta, at a monthly rental Rs. 75 payable according to the English Calendar Month ; that bath and privy, which were in common use could be approached by the landlords only through the eastermost room of the defendant’s tenancy; the defendant, however, for all practical purposes, was using and enjoying the bath and privy and filtered water supply, as mentioned above, as the plaintiff’s predecessor-in interest and the plaintiffs were using the bath and filtered water tap and privy of another adjoining joint property No. 10/1 A, Satrughna Ghosh Lane to which there was access through the first floor portion of the disputed premises; on partition disputed premises was allotted to the share of the plaintiffs’ predecessor-in-interest on 17th April, 1957 and the joint user facilities of the other joint property were discontinued on raising of a partition wall; the plaintiffs became dependent on the roadside public filtered water tap. The eviction of the defendant from the easternmost room comprising his tenancy was claimed for providing an access to the ground floor bath, privy and filtered water tap. The defendant was also a defaulter from the month of August, 1974.
2. The defendant contested the suit by filing a Written Statement, inter alia, contending, that he was a tenant in respect of the entire ground floor consisting not only of the portion described in the rent receipt but also one big varandah with separate water tap and two latrines at a rental of Rs. 85 per month ; that after partition, being requested by the plaintiff’s predecessor-in-interest, the defendant surrendered the latrine in the North-West and a portion of the varandah to the then landlord, for setting up of water tap and construction of a staircase leading to the first floor, with consequent reduction of rent by Rs. 10; the plaintiff’s predecessor-in-interest after construction a room for bathroom and filtered water supply purposes let it out to a new tenant; the allegation of common user was totally denied from the side of the defendant.
3. Since the defendant complied with the provisions of Section 17 of the West Bengal Premises Tenancy Act, he was given protection Under Section 17(4) by the learned Trial Judge. The learned Trial Judge rejected the plea of the defendant to the effect that after having obtained the surrender of the portion of the premises in question the plaintiffs were not entitled to ask for common user of the bath and privy with the defendant and for the latter’s eviction on that ground from the easternmost room of the tenancy and granted a decree for eviction from the easternmost room on the ground of reasonable requirement for own use and occupation. Hence this appeal.
4. It is well-established that in order to get a decree for eviction on the ground of reasonable requirement, Under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, the requirement pleaded must be a genuine and bona fide requirement and not fanciful or a ruse to get such decree. A requirement again, cannot be said to be a genuine requirement, if it is found that in spite of opportunity for satisfaction of such requirement, such opportunity is not utilised or availed of by the plaintiff to obtain such satisfaction. The facts and circumstances of each particular case and the materials on its records would, assist the court in coming to a finding as to the entitlement of a plaintiff to a decree for eviction upon application of the aforesaid principle. In the instant case, we find from the evidence of P.W. 2, the widow of the erstwhile landlord Bejoy Kumar Chatterjee, that in the entire house, excepting one room and a small kitchen in the first floor, there is no other portion under occupation of the plaintiffs but such portions have been let out to tenants and excepting in the defendants’ portion, there is no other filtered water supply; that there was a partition between her husband and his co-sharers in 1957 in course of which the disputed house fell to her husband’s share and within one year after such partition a pucca staircase was constructed and at the latest, since such construction, the defendant by closing the door of the easternmost room prevented the plaintiffs’ user of the lap and privy in the ground floor. Prior to partition the plaitiffs did not have necessity for frequent use of the tap and privy in the ground floor which, in the context of the case pleaded in the Plaint, means that the plaintiffs were using the common bath, filtered water tap and privy in the then joint premises No. 10/1A Satrughna Ghosh Lane.
5. The evidence of the defendant, who deposed as D.W.1, is that the rent was originally Rs. 85, and after partition between the predecessor-in-interest of the plaintiffs and his co-shares, the rent was reduced to Rs. 75 per month as the tenant-defendant had given up a portion of his original tenancy for enabling the landlord to construct a staircase and for constructing bathroom, privy and bringing filtered water connection there; in the said portion, a staircase was constructed and also a room for use as a bathroom. From the evidence of D.W.3, another tenant of the first floor in the said house, it appears that the newly constructed room in the space surrendered by the defendant was let out to another tenant instead of being converted into the bathroom though an advance of Rs. 150 was taken from the said tenant/witness for payment to the plumber. It is also stated by the said witness that the ground floor filtered water tap, bath and privy were being used by the defendant alone. The suggestions to P.W.1 in course of her cross-examination about such surrender are also consistent with the deposition of the defendants’ witnessess. A comparison of the rent receipts, exhibit “A” series, clearly shows that since the month of July, 1957 the rent was realised at the rate of Rs. 75 per month instead of Rs. 85 per month. No explanation could be given on behalf of the plaintiffs for such reduction in rent. The argument of Mr. Banerjee that descriptions as given in such rent receipts of the tenanted portion would show that the story of surrender could not be true, does not hold good as even if we assume that there was joint user of the bath and privy and filtered water tap in the ground floor by the defendant, the same cannot also be said to have been included in such description. Again, at least, in one receipt the description was followed by ‘etc.’. The rent receipts, therefore, cannot be said to have contained a meticulous description of tenancy and to be in any way, contradictory to the case of surrender as pleaded by the defendant. Admittedly, the plaintiffs have got a privy which, is claimed to have been in their exclusive use earlier but since alleged closure of access to the ground floor privy, bath and filtered water, they have been using the same with other tenants. We feel inclined to accept the defence version that after the surrender of a portion of the tenanted premises by the then tenant, a room, meant for user as a bathroom, had been made by the then plaintiff Bejoy Chatterjee and had been let out to another tenant Tarak Paul. There is no evidence that filtered water supply to the said room could not be extended. Co-operation of the defendant to such extension was also available (vide additional Written Statement filed on behalf of the defendant). Such an offer was also made in this Court but proved abortive. Apart from the said privy in the first floor, from the Commissioners Report, it appears that there is another dilapidated privy in the portion of the ground floor in occupation of the plaintiffs. The requirement of access to the disputed ground floor privy is, therefore, not tenable. The only difficulty of the plaintiffs, which remains, is that on extension, the supply of filtered water would not be sufficient, has not been established. Such state of evidence along with the absence of any material from the side of the plaintiffs to show that attempt was made by moving the Calcutta Municipal authorities in terms of the provisions of the Calcutta Municipal Corporation Act for obtain in such filtered water supply to the portion in their occupation or for augmentation of the same leads us to hold that the plea of need of the plaintiffs is not genuine on bona fide but a ruse or a pretext to get an eviction decree particularly when inspite of having opportunities to remedy such alleged inconvenience and difficulty, no step appears to have been taken from the side of the plaintiffs. The failure of the learned Trial Judge to consider materials as pointed out hereinabove or to the above aspects before arriving at a finding as regards the reasonable requirement of the plaintiffs has vitiated the impugned judgment and decree.
6. In the result, the appeal succeeds and is allowed. The judgment and decree under appeal are set aside and the suit is dismissed.
7. There will be no order as to costs.
Satyabrata Mitra, J.
8. I agree.