Sisir Kumar Mukherjea, J. - (1.) By this Rule the petitioners have sought to challenge an order passed by the Additional District Judge, Howrah, under Section 27(4) of the Calcutta Thika Tenancy Act in Miscellaneous Appeal No. 282 of 1959 by which the learned Judge dismissed an appeal from an order of the Thika Controller made on an application under Section 5 of the Calcutta Thika Tenancy Act in Miscellaneous Case No. 154 of 1957.
(2.) The application was made by the petitioners under section 5 of the Calcutta Thika Tenancy Act for eviction of the opposite parties. It is not in dispute that the present case is governed by the said statute. The grounds for eviction as pleaded by the petitioner were that the opposite parties had made default in payment of rent for a substantial period of time and that the land was required by the petitioners for the purpose of building on the land or otherwise developing the land by discontinuing the system of letting out to thika tenants. The learned District Judge has rightly stated in his judgment that the sole question in the appeal with which he was concerned was whether the landlord had satisfied the court that he was entitled to obtain an order for eviction on the ground mentioned in section 3(iv) of the Calcutta Thika Tenancy Act. It is not in dispute that the tenants have paid up all arrears of rent and the ground of default in payment of rent is no longer available.
(3.) On the evidence adduced on behalf of the petitioners it is clear that the only ground on which the petitioners rely is that they require the land in suit for building a structure for their own occupation. No doubt that in the application all the grounds mentioned in clause (iv) of section 3 have been pleaded but the evidence given is largely, if not entirely, confined to requirement by the landlords of the land for the purpose of a building for their own occupation. The tribunals found that the petitioners did not require the land for the purpose specifically alleged in course of the evidence given on their behalf. It was found that out of six petitioners, five were employed outside Calcutta and only one brother who was an MB BS student was residing in Calcutta. It was also found that only a year before the application was made, the petitioners had let out a substantial portion of a dwelling house which they are occupying The dwelling house is situate near the land in suit. The tribunals also found that there is a plot of land adjoining the petitioners' dwelling house on which a building could be suitably raised. It is not in dispute that the petitioners have the means to build a structure or that a sanctioned plan for the proposed building is in existence. The learned Add. District Judge has, however, rightly pointed out that these ingredients, namely, the means to build and the sanction of a plan, by themselves, are not enough to substantiate the case of requirement. Other factors have also to be taken into consideration. The original as also the appellate tribunal on a consideration of the entire evidence came to the conclusion that no case of requirement by the landlords for the purpose of building for their own occupation, that is to say, the specific case with which the petitioners came before the court, has been established.;