JUDGMENT
S.N. Bhattacharjee, J.
1. This SA 209/95 and FMA 26/88 are taken up together for consideration and are being disposed of by a common judgment
2. The appellant of S.A. 209/95 is the landlord who filed T.S. for eviction of the tenant on the ground of reasonable requirement for his own use and occupation along with other grounds. The learned trial Judge decreed the suit only on the ground of reasonable requirement rejecting other grounds. The trial Court held:-
“In view of the circumstances stated above, the plaintiff has requirement of two bed room, one Thakurghar, one drawing room, one dining room, one kitchen, one store, one chamber for his son. Hence, the plaintiff has requirement for the suit premises, This issue is thus decided in favour of the plaintiff.” .
3. In appeal, the first appellate Court held that the landlord did not require the bed room as the stair case room is being used by them as bedroom and not exclusively as Thakurghar but he requires a guest-cum-drawing room as conceded by the learned Advocate for tenant-appellant. That being the position, the entire suit premises are not required to the landlord but only a partial eviction will serve the purpose. The first appellate. Court confirmed the decree for eviction for one room only and passed a decree for partial eviction directing the trial Court to hear the parties afresh for allotment of one room to the plaintiff as guest-cum-drawing room.
4. This second Appeal at the instance of the landlord arises out of the order passed by the 1st appellate Court. The tenant also preferred first Misc. Appeal being FMA 26/88 against the order of remand for effecting partial eviction on the basis of the alleged concession of the tenant’s Advocate at the time of argument in the second appeal, the following question have been framed as Involving substantial questions of law:-
(1) Whether the order of remand passed by the first appellate Court is against the provision of law.
(2) Whether the finding of the learned appellate Court that the appellant requires only one room in the ground floor and that the room on the second floor can be used as bed room of the appellant are in disregard to the provisions of law.
5. The learned counsel for the respondent-tenant has argued that the above questions do not at all involve substantial question of law. According to him, the first question cannot be framed in the second appeal though it is (sic) question to be decided in the first misc. appeal as raised by the tenant The reason is that the order of remand under Order 41 Rule 23 CPC is applicable under Order 43 Rule 1 CPC and not under Section 100 CPC, the second appeal being barred under Section 104 CPC. Mr. Mitra appearing for the appellant has stated that it is a substantial question of law as the law has not vested Jurisdiction upon the appellate Court to pass an order of partial eviction without the consent of the defendant and such order which is beyond Jurisdiction goes to the root of the matter causing grave injustice to the appellant.
6. According to the learned counsel for the respondent, the second question being a question of fact and the first appellate Court being the final Court a finding of facts, no Interference is permissible in second appeal and as this also does not involve substantial question of law.
7. Mr. Mitra has argued that the finding as to the suitability of the staircase room as bed room of the plaintiff and his wife has not been gone into by the 1st appellate Court which has failed to exercise discretion in a judicial manner on the basis of the evidence on record and as such Interference is called for in second appeal.
8. Mr. Mitra has cited the following decisions in support of his argument:-
(1) . Kondiba Dagadu Kadam v. Sapan Gujar and Ors.
(2) , Deena Nath v. Kooran Lal, 1992 CWN 758.
9. On behalf of the respondent the following decisions were cited: –
(1) AIR 2001 SC 965, Santosh Hazari v. Purushottam Tiwary,
(2)
(3) AIR 1999 SC 311
10. In it was held,
“If the question of law termed as substantial question stands already decided by a larger bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its mere wrong application to facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of my factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in It, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal.”
11. In AIR 2001 Supreme Court 965, Supreme Court held-
“A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law Involving in the case there must be first a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case’unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and Involved in the case, or not; the paramount overall consideration being the need for striking a Judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”
12. The decision reported in 1999 SC 2213 was relied upon by both the sides and Santosh Hazari’s case reported in AIR 2001 SC 965 was relied upon by the learned counsel for the respondent.
13. Let us now consider whether the decisions of the Courts below in order to see whether any interference is called for upon.
14. The finding of the learned trial Judge that the landlord requires a drawing-room is passed upon the admission of DW I in the evidence. He has found, The DW I has admitted that the plaintiff has no drawing room. It has also been admitted that the plaintiff and his wife require a bed-room and that his son and son’s wife require a bed-room” (page 12 of paper). The learned counsel for the tenant appearing before the first appellate Court also conceded that the landlord requires a drawing-room and that concession has been recorded by the first appellate Court in his Judgment (page 52 of the paper). The first appellate Court accepted the contention on behalf of the tenant and as such affirmed the decree of the learned trial Judge in part so far as drawing-room is concerned. This concurrent finding of both the Courts below cannot be upset in the second appeal and no interference is called for on this point. The next point is whether the finding of the first appellate Court that the landlord does not require any bed-room as he has been using the staircase room as his bed room thereby contradicting the finding of the trial Judge calls for any interference regard being had to the established judicial decisions cited above.
15. Learned trial Judge while holding that the landlord requires a bedroom considers the staircase room which was being used by the landlord as Thakurghar relied upon the commissioner report on inspection (exhibit 17 and 18) and found that the room was made of corrugated iron sheet. It is not disputed that the said chlla khota or the staircase room measures 6 ft. 5″ x 9 ft. 8″ with a height of 5 ft. 9″. The learned trial Judge did not hold that this is a suitable room for being used by the plaintiff as his bed room. It was also found by learned trial Judge that the said room of the second floor was being used by the landlord as Thakurghar to which he is entitled. The learned first appellate Court declined to agree that the landlord required a Thakurghar despite the fact that some images of God and Goddess were there. He held that as the landlord had only one bed-room which had been given up in favour of his son and his family the landlord and his wife must be using any other room as bed-room and such bed-room must be a staircase room. When the landlord had been using the chilakota or the staircase room as his bed-room the landlord does not require any other bed-room. This finding has been assailed by the appellant on the ground that such finding whereby the finding of learned trial Court was reversed was not based upon proper application of judicial discretion in accordance with a provision of law.
16. Section 13(ff) of West Bengal Premises Tenancy Act 1956 lays down:-
“Subject to the provisions of Sub-section (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises
are held and the landlord or such person is not in possession of any
reasonably suitable accommodation”
(emphasis mine)
17. The Court, therefore, has to come to a finding that the staircase room with the measurement stated above was reasonable and suitable for being used as bad-room by the old couple. Learned first appellate Court did not consider the suitability and the reasonableness of the staircase room for being used as bed-room. In order to hold that the landlord does not require any other bed-room on the ground that he has been using the staircase room as his bed room, the learned Appellate Court must come to a finding that the said staircase room ts reasonable and suitable for being used as bed-room. Mere user of the said room as bed-room by the landlord under compulsion occasioned by non-availability of any other room does not at all disqualify the landlord to get a suitable bed-room at this old age particularly When he is the owner of a three storeyed building. Therefore, the finding, of the learned First Appellate Court on this point is in violation of legal provision disentitling the landlord to get a decree for eviction of the entire suit premises. This has definitely gone into the root of the matter thereby causing miscarriage of justice and as such does not enjoy immunity from Interference in second appeal.
18. I, therefore, hold that the finding of the learned first appellate Court that the landlord does not require any bed-room as he has been using the staircase room as such is liable to be set aside and I affirm the finding of the learned trial Judge that the landlord is entitled to get one bed-room and one drawing room in addition to his existing accommodation.
19. Once it is held that the landlord requires one bed room and one drawing-room the question of partial eviction does not arise. The order of partial eviction did not receive the consent of the tenant and as such the order is patently illegal. Both the parties have challenged the order of partial eviction and as such respondent has preferred appeal before this Court against the order of remand for the purpose of partial eviction. Therefore, the order of remand to the learned Court below for allotment of a room and to pass a decree for partial eviction is set aside. In the result, the second appeal is allowed. The judgment and decree passed by the learned appellate Court is set aside and the Judgment and decree by the learned trial Judge is hereby affirmed. The expeditious execution of the decree is encouraged. . The finding and decision of this second appeal will govern the FMA 26 of 1988 of this Court.
Prayer for stay of operation of this order is made, but such prayer is rejected.
Urgent Xerox certified copy of this order. If applied for, be given to the learned advocate, for the parties on their usual under taking.