11.The learned Single Judge of the High Court was not inclined to upset the concurrent finding with regard to the right of the plaintiff in respect of the suit premises as found by the courts below. From the materials on record, it appeared to the High Court that the plaintiff proved her bona fide requirement. However, the High Court is of the view that the decisions reported in AIR 1978 SC 413 (supra) and 1993 (Supp) (1) SCC 439 (supra) supported the case of the defendants in so far as their stand on the question of partial eviction is concerned. Without disturbing the finding of the courts below with regard to the relationship of landlord and tenant between the parties to the suit and the plaintiff’s ownership in respect of the suit property, the High Court allowed the second appeal filed by the defendants and made it clear that the inquiry, that will thereafter be done by the courts below, shall be limited to the question whether or not the eviction of the defendants from a part only of the suit premises can substantially satisfy the plaintiff’s need. Liberty has also been given by the High Court to the parties to the proceedings to adduce appropriate evidence before the trial court and also to make an appropriate application for appointment of a Local Commissioner for holding a local inspection in respect of the suit premises and/or the suit holding.
12.The relevant portion of the findings recorded by the High Court is extracted herein below:-
“In the facts of the present case no
Commissioner was appointed to hold a local inspection and consequently no local inspection report is on record. The description of the suit property appears to be a ground floor flat consisting of three bedrooms with attached three bathrooms with modern fittings, sanitary privy, one store, one kitchen, one dining room, one covered verandah in the front portion with grill in the suit holding, that is, premises No.128/15, Hazra Road: P.S. Bhowanipore Kolkata 700026. The learned Lower Appellate Court has found that the plaintiff would require one privy, one kitchen, one bathroom and one dinning space that is a complete flat for the purpose of her residence. As it appears to this Court that none of the Courts below has examined the question of partial eviction, the matter should be remitted back to the learned Trial court since this Court is of the view that considering the said provisions of Section 13(4) of the said Act of 1956 it is a duty cast upon the Court to consider whether the requirement of the plaintiff could be satisfied by evicting the defendant from a part only of the suit property. The decisions reported at AIR 1978 Supreme Court 413 (supra) and 1993 SUPP(1) SCC 439 (supra) supported the case of the appellants in so far as their stand on the question of partial eviction is concerned. In the present case, the plaintiff’s reasonable requirement has been found to be proved by both the learned Courts below and, accordingly, the inquiry is now required to be made only with regard to the question of partial eviction. This Court is also not disturbing the finding of the learned Courts below with regard to the relationship of landlord and tenant in between the parties to the suit and the plaintiff’s ownership in respect of the suit property.”
13.We have heard Mr. R.K. Gupta, learned counsel appearing for the appellant and Mr. Shymal Chakravarti, learned counsel appearing for the respondent.
14.The question that falls for consideration is as to whether the High Court is justified in holding that both the trial court and the appellate court have not examined the question of partial eviction.
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.
16.The trial court while deciding the issue as to whether the suit premises is reasonably required by the plaintiff or not, has gone into the details of the difficulties, which the old landlady is facing. While discussing the question of partial eviction, the trial court referred to a decision reported as 2001 (3) CHN 244 (Jagat Bandhu Batabayal vs. Jiban Krishna Roy) for the proposition that the question of partial eviction was rightly not considered in that case by the appellate court as the tenant never raised such issue before the appellate court nor any material was available before the learned Judge to form an opinion that the requirement of plaintiff can be substantially satisfied by ejecting the tenant from a portion of the suit premises. In the concluding portion of the judgment, the trial court observed:-
“ Considering the evidence
adduced by both parties and the principles of law discussed above, I find that the plaintiff is the owner of the suit premises, the compromise decree in T.S. No.55/86 is admissible in evidence, the present accommodation of the plaintiff is not suitable and the suit premises is required for the reasonable requirement of the plaintiff for own use and occupation and for augmentation of her income from the suit premises and there cannot be any partial eviction and as such all these issues be disposed of in favour of the plaintiff.” 17. Similarly, in the appeal filed by the respondent- tenant, the appellate court has also gone into the question as to the reasonable requirement of the landlady and held that a complete flat is required for the purpose of residence of the plaintiff. The appellate court held that:-
“It is not expected that the plaintiff
being divorcee will reside in the house of her brother and at mercy of her brother and brother’s wife.
In order to reside peacefully one privy, one kitchen, one bath room and one dining space in other words complete flat is required for the purpose of the residence of the plaintiff, so in the circumstances I hold that the plaintiff has bonafide reasonable requirement of the suit premises for her own use and occupation.”
18.Having regard to the finding recorded both by the trial court and the appellate court that the entire flat is required by the plaintiff landlady for her use and occupation, the High Court has committed grave error in formulating a question mentioned hereinabove and holding that the question of partial eviction has to be considered since it is a mandatory requirement of law. The High Court has further committed serious error of law in setting aside the judgment and decree of the trial court and that of the appellate court. Indisputably, the appellant-landlady has been residing in one room at the mercy of her brother and she needs the suit premises on the ground of her personal requirement. The suit premises is a flat consisting of three bedrooms with bathroom, one store room, one kitchen and one dining room. The suit was filed in the year 1993 and for the last 20 years the appellant-landlady, who is 58 years old, has been fighting with the tenant for getting her flat for her own use and occupation. Both the trial court and the appellate court have considered the question of partial eviction as noticed above and recorded the finding that the appellant-landlady needs the entire flat to live there comfortably. In our considered opinion, it would be too harsh if the flat which consists of three rooms is divided and a decree in respect of the portion of the flat is passed which will result in inconvenience for both the parties. Moreover, the defendant- respondent neither before the appellate court nor before the trial court or in the High Court has asserted that a portion of the premises will satisfy the requirement of the appellant.
19.There is no dispute with regard to the ratio laid down by this Court in Rahman Jeo Wangnoo vs. Ram Chand and Others (AIR 1978 SC 413) that the provision contained in the West Bengal Premises Tenancy Act, 1956 mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire building should be directed to be vacated. However, while deciding the issue of reasonable personal requirement of the landlord, if the trial court or the appellate court also considers the extent of requirement and records a finding that the entire premises or part thereof satisfies the need of the landlord, then, in our considered opinion, there is sufficient compliance of the provision contained in the said Act. JUDGMENT
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. (P. Sathasivam) (M.Y. Eqbal) New Delhi, May 9, 2013.