Decided on July 06,1960

Probodh Chandra Roy Choudhury Respondents


- (1.) This second appeal is on behalf of the Defendant in a suit for ejectment in a case relating to West Bengal Premises Tenancy Act of 1956. Mr. Ganguly appearing on behalf of the Appellant has drawn my attention to the fact that this is the fourth suit, which has been instituted by the landlord against the tenant. The first suit was instituted in 1950 and that was dismissed. The second suit was instituted in 1952. The third suit was instituted in 1953 and the present was thereafter instituted in April, 1956.
(2.) The first point that Mr. Ganguly urges is that, the landlord as his very conduct shows, is not in so much need as to occupy the present premises. He says that in these various suits he has taken the following grounds for ejectment, default, bona fide requirement, breach of provisions of Section 108(m)(o) and (p) of the Transfer of Property Act. In another suit he took this very question but that also failed. There has been no subsequent change of events and the suit is mala fide. This very suit was instituted on three grounds default, violation of the provisions of Clauses (m), (o) and (p) of the Transfer of Property Act and own appeal. The appeal court sent the matter back for decision on case as well the trial court dismissed the suit. There was an the question of default without expressing any opinion what souse and occupation. Only the last one has succeeded. In this ever on the other matters but at the same time setting aside the judgment and decree. The trial court thereafter did not consider the question of bona fide requirement but merely expressed his opinion on the question of default and the appeal court has finally held the question of bona fide requirement in favour of the Plaintiff. On these facts Mr. Ganguly says the unavoidable? conclusion of fact is that the Plaintiff had no requirement for his own use and occupation and it would also prove the mala fide of the landlord; at least it would conclusively prove that there was no bona fide requirement. The whole intention was to eject the Defendant by any means whatever. These are all the facts, which have been considered by the court of appeal below and having considered these he has not come to a finding that the ground of personal use and occupation is a mere show and there is, in fact, no reality in it. He has, on the other hand, it is stated, not given very much importance to it. What importance is to be given to a particular circumstance is a question of fact and what conclusion should be made from that fact is also another question of fact. Final court of fact has not come to any decision in favour of the Defendant on the point. The second ground taken is that four rooms in the, ground floor were let out. The appeal court considered as if it was not four but two. Mr. Ganguly says that this is a very serious error of fact, which the appeal court made, and the matter should, therefore, be sent to the appeal court. But the appeal court considered this fact and found that no adverse conclusion can be necessarily made from that fact and the appeal court referred to a decision of this High Court in Sumatibala Sen v. Herembo Kumar Roy, 1955 60 CalWN 783. According to the appeal court the very fact of re-letting is not by itself sufficient to prove the mala fide. The question whether there were two rooms or four rooms is not important because the question is whether that by itself does not prove mala fide. It is also stated by Mr. Ganguly that in a previous suit the ground of bona fide requirement was taken but withdrawn. According to Mr. Ganguly, all the previous proceedings, the fact of re-letting, the fact of withdrawing the claim for ejectment on the ground of bona fide requirement all can lead to one conclusion, viz., it was not for requirement that he filed the suit but for ejecting the Defendant by making a show of requirement. This again is a question of fact and the appeal court lias not drawn any conclusion of mala fide offer having considered all these questions of fact. It is not possible for me to interfere under Section 100 of the Code of Civil Procedure. The question of law that was next argued by Mr. Ganguly is a question of interpretation of Section 13(1)(f) of the premises tenancy Act of 1956.
(3.) The fact relevant for this purpose is that the Plaintiff instituted the suit as an executor. Legatees to this property are the Plaintiff and his two brothers. The position, therefore, is that the executor instituted the suit for the benefit of the legatee, who does alone require it. The question then comes is legatees require it for their own use and occupation. The trial court has come to a finding that the other two legatees do not require it. The appeal court has not reversed that finding.;

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