Anamika Roy vs Jatindra Chowrasiya & Ors

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 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 property happens to be a portion of the ground floor flat consisting of three bed rooms with attached three bathrooms with modern fittings, sanitary privy, one store room, one kitchen, one dining room and one covered verandah in the front portion with grill in the premises No.128/15, Hazra Road, Kolkata.

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 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 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 she rearranges the suit premises and makes provision for one 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.

6. The trial court by its judgment dated 30.7.2002 decreed the said suit and directed the defendants to hand over the vacant possession of the suit premises to the plaintiff within a stipulated period of time. The trial court found that the defendant had admitted 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 possession of the plaintiff’s 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 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 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 plaintiff’s father it is 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 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, 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 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 found that there is bitter relationship between the plaintiff and her brother’s wife and it is not expected that the plaintiff being a divorcee will reside in the house of her brother at the mercy of her brother’s wife.

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 her brother. The first appellate court has taken note of the fact that there is a bitter relationship between the plaintiff and her 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.

20. Taking into consideration these facts and also having regard to the finding recorded both by the trial court and the 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.

21. For the reasons aforesaid, this appeal is allowed. The impugned judgment of the High court is set aside and the 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 possession of the same to the appellant.