JUDGMENT
S.K. Mookherjee, J.
1. The present Second Appeal arises out of a Suit for eviction and is directed against a Judgment and Decree, dated 31st of August, 1984 passed by the learned Additional District Judge, First Court, Alipore in Title Appeal No. 433 of 1982, reversing, on Appeal, those, dated 27th of March, 1982, passed by the learned Munsif, Second Court, Alipore in Title Suit passed by the learned Munsif, Second Court, Alipore in Title Suit No. 369 of 1976. The Trial Court dismissed the Plaintiff’s Suit for eviction in its entirety but the Lower Appellate Court, by its aforesaid Judgment of reversal, decreed the Suit under Section 13(1) (h) of the West Bengal Premises Tenancy Act. The tenant-defendant is the appellant before me. The landlord-respondent No. 1 has preferred a Cross-objection from the Judgment and Decree of the Lower Appellate Court seeking a decree also on the ground of reasonable requirement.
2. Apart from the tenant-defendant, his brother also has been impleaded in the Suit as defendant No. 2 on the allegation that the defendant No. 1 had illegally sublet and/or transferred the possession of the suit premises in his favour without the consent of the plaintiff. The said defendant No. 2, however, has not preferred any appeal from the decree for eviction.
3. Shortly put the plaintiff’s case is that Premises No. 1/D. Ramani Chatterjee Street, Calcutta-29, is owned by the plaintiff and the defendant No. 1 was inducted in the ground floor flat of the suit premises, comprising inter alia, 3 (three) rooms, Verandah, kitchen and a combined bath and privy at a monthly rental of Rs. 325 (Rupees three hundred twenty five only), payable according to English calendar month, solely for residential purpose, on the basis of a written agreement, executed between the defendant No. 1 and the plaintiff, dated 19th of February, 1971 (marked as Exhibit 5); that the defendant No. 1 wrongfully and illegally sublet and/or transferred the suit premises to defendant No. 2, without the plaintiff’s consent and started a business and workshop in the suit premises introducing large number of outside persons and workers; the tenancy thus became liable to be terminated on the grounds of change of the purpose and character of tenancy, acts of waste and negligence, constituting violations of provisions of Section 108 (m),’ (o) and (p) of the Transfer of Property Act. The plaintiff also claimed eviction on the ground of the premises being reasonably required by the plaintiff for his own use and occupation and the occupation of the members of his family after building and rebuilding. The defendant not having vacated the premises on determination of his tenancy by an appropriate notice to quit, the suit for eviction was brought.
4. The defendant No. 1 alone contested the Suit by filing written statement and additional written statement after the plant had been amended. The defence, as pleaded in the same, inter alia, was that the tenancy had been created in favour of both defendants 1 and 2 as they were members of a Hindu Joint Family and it was known to the plaintiff that the purpose of the tenancy included also he carrying on of the business of stitching works and manufacture of ties; that the premises was being used both for residence as well as for manufacture of ties by the family members of the defendants by sewing inside the respective living rooms; that the allegation of committing acts, of waste, annoyance and nuisance were false and that the plaintiff did not require the suit premises either for his own occupation or for that of his family members.
5. The Trial Court dismissed the Suit upon finding that the tenancy was for a residential purpose, that the defendants were joint tenants, that the suit premises was being used for residential purpose and there was no substantial alteration of such use by putting the major part of the suit premises to other uses, that there was no violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act by making any structural alteration or reconstruction or by using the premises for any purpose other than residence, that the allegation of nuisance and annoyance being caused by the tenants to the plaintiff or the adjoining neighbours had not been proved and that the plaintiff failed to prove reasonable requirement of the suit premises for use of himself and of his family as the accommodation available to the plaintiff was sufficient. The learned Munsif, however, found the notice to quit to be legal, valid and sufficient and that it had been duly served on the tenant.
6. The Lower Appellate Court affirmed the findings of the Trial Court on the question of subletting and/or illegal assignment of the suit premises by defendant No. 1 in favour of defendant No. 2 as also on the question of commission of acts of waste and damage and violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. It also affirmed the finding of the Trial Court by holding that the defendants were not guilty of creating any nuisance or annoyance to, the plaintiff or to the members of his family or to the neighbours. The Lower Appellate Court, however, reversed the finding of the Trial Court as far as the ground of user of the suit premises for a purpose other than residential is concerned and it granted a decree to the plaintiff upon a finding that the disputed premises had been used for a purpose other than residential purpose, which entitled the plaintiff to a decree under Section 13(1) (h) of the West Bengal Premises Tenancy Act. Regarding the question of reasonable requirement the Lower Appellate Court came to a finding that the plaintiff required at least 2 (two) rooms of the disputed premises for his occupation and occupation of the members of his family but did not deem it necessary to proceed further with this part of the case and consider the question of partial eviction because of its finding that the plaintiff was entitled to a decree for eviction under Section 13(1) (h) of the West Bengal Premises Tenancy Act.
7. From what has been stated above, it is clear that, broadly speaking, two questions really arise for consideration for a decision of this Appeal, namely, the question of user of the disputed premises and the question of sufficiency of the plaintiff’s reasonable requirement of the disputed premises and I proceed now to deal with the said questions.
8. On the question of user of the disputed premises for business purpose and its impact on the basic question of change of purpose of the tenancy, the contention, made on behalf of the appellate to the effect that to constitute a ground for eviction in terms of Section 13(1) (h) of the West Bengal Premises Tenancy Act the offending user of the tenanted premises must be either of the whole or of a substantial part thereof cannot be accepted without qualification. The principle, laid down by the Division Bench decisions of this Court, (LPA 231 of 1974 B. C. Bose v. S. K. Goswami decided by M. M. Dutta and R. K. Sharrna, JJ. on 19.9.75 and Girdharilal v. Maya reported in 89 CWN 973) on a proper construction thereof, clearly indicates that the criterion of pre-dominant purpose is inherent in the same and must always be borne in mind in the matter of its application to individual cases and the test of the extent of user for a particular purpose would not necessarily prevail if the basic or. predominant purpose is something else. The same remarks also apply to the two Supreme Court decisions (Premchand v. District Judge, Dehradoon reported in AIR 1978 SC 1601).
and Santram v. Rajinder Lal ).
9. The test of the extent of user is intended only to serve as an illustrative guide for deciphering such predominant purpose. It is not exhaustive so as to be the sole and final determinant in every case. To illustrate we may consider the residential tenancy regarding a three storeyed house having equal number of rooms and equal areas in all the three floors. If, in such a house, two floors are occupied for. the purpose of residence and the third floor is used for carrying out, say a Nursing Home business and if residence is only to aid and facilitate the carrying out of the Nursing Home business, it would constitute a change of purpose, sufficient to support a claim for eviction on a ground of the tenancy having been used for a purpose other than residence. The area test, as laid down by the Division Benches, if applied in a routine fashion as the exhaustive test, may well frustrate the legislative intent.
10. In the present case, however, there is not much difficulty as, on the facts before me, both the tests-as indicated by me hereinabove and as appearing from the decisions, cited above, even on their stricter prima facie reading-are satisfied. The Lower Appellate Court has already found as a fact that the defendant appellant was using the suit premises for a purpose other than residence so much so as to make him liable to a decree for eviction under Section 13(1) (h) of the West Bengal Premises Tenancy Act. In arriving at this finding the Lower Appellate Court has taken into consideration all relevant materials, including the admitted position that the disputed premises was being used both as residence and for manufacture of ties and the legal presumption arising as to the extent and dimension of the business from non- production of the books of accounts by the appellant and I have no reason to differ from the said finding. It has justifiably been argued by Mr. Sengupta that even the oral evidence, adduced on behalf of the defendants, conclusively shows that each room was being utilised for manufacture of ties and all the family members including the children were engaged in such manufacture. It is also clear on the records that the orders for ties were supplied in wholesale and that endeavour had been made to extend the business even to Delhi. In the background of such evidence, non- production of the books of account or invoices, which the defendant admittedly possessed would lead to the presumption that the business was extensive and a major or substantial part of the premises was being vised for business purpose. In relation to the above, another fact assumes great importance, namely, that the disputed tenancy was taken at a time when the defendants/appellants had been in possession of another residential accommodation at a much lower rent. In the premises it would not be unjust or unreasonable to hold that the dominant purpose of taking the disputed premises was business and not residence and its user has to be judged in that context. This view is substantially supported by the Judgment in 89 GWN 973 (supra). The decree, granted by the Lower Appellate Court under Section 13(1) (h) of the West Bengal Premises Tenancy Act should, therefore, be affirmed.
11. Regarding the plaintiff’s claim for a decree for eviction on the ground of reasonable requirement, the factual findings, on which such a decree is to be based, have, in my view, already been sufficiently made by the Lower Appellate Court and requires only a slight modification, patently needed to cure an obvious perversity, which this court is entitled to make in Second Appeal. The Lower Appellate Court has found the plaintiff’s requirement of five rooms, namely, one drawing room and four bed rooms-one bed room for the plaintiff and his wife, one for the plaintiff’s elder son and one for his younger son and one for the whole time servant and the grandson of the plaintiff. I feel that this last allotment requires alteration in favour of the plaintiff. It would be unreasonable and patently perverse to ask the grown up grandson to live with the servant. The grandson, therefore, should be allowed a separate room and the servant another. In other words, the plaintiff would require six rooms for himself and his family.
12. In the above view, the plaintiff would reasonably require all the three rooms of the disputed tenancy and would be entitled to a decree for eviction on the ground of reasonable requirement.
13. Even otherwise, that is, on the findings of the Lower Appellate Court, as they stand, the plaintiff would require at least two rooms of he tenanted premises, the ground floor flat, comprising three rooms thereof-leaving only one room for the tenant. It is however, not reasonably possible, in the instant case, to divide the aforesaid three rooms of the ground floor between the two families of the plaintiff and the defendant as the ground floor has only one combined bath and privy, which the two families cannot be reasonably asked to share between themselves. In this view and in the above context, no question of partial eviction can arise in the instant case and the plaintiff will be entitled to a full decree for eviction on the ground of reasonable requirement also.
14. Save and except as aforesaid I agree with all the other findings of the Lower Appellate Court and I affirm its decision for eviction under Section 13(1) (h) of the West Bengal Premises Tenancy Act and also grant the plaintiff the decree for eviction on the ground of reasonable requirement.
15. In the result, the Appeal fails and is dismissed. The Judgment and Decree of the Lower Appellate Court are affirmed as stated above. The Cross-objection is allowed to the extent indicated hereinbefore. In the facts of the case, there will be no Order as to costs.
16. Before I part with this Appeal, I keep it on record that in the view I have taken, it has not been necessary for me to take note of subsequent events and as such no Order need be passed on the same.