Decided on August 09,1996

Nihar Bala Bhar Respondents

Referred Judgements :-



S.R.MISRA,J. - (1.)DEFENDANT 's first appeal No. 39 of 1991 in a suit for recovery of Khas possession of the suit room by evicting defendant and also recovery of damages/mesne profit the subject matter is in respect of ground floor of premises No. 1/7, Fakir Chakraborty Lane, shown in the plaint. Plaintiff alleged that the premises No. 1/7, Fakir Chakraborty Lane, Calcutta is owned by the plaintiff and the defendant is a tenant of the suit room at a rent of Rs. 55.00 per month, plaintiff requires suit room for use and occupation as the present accommodation available to the plaintiff is insufficient. Plaintiff asked the defendant to vacate the premises but defendant did not pay any heed. So, the plaintiff determined to quit the tenant and served a notice upon the defendant to vacate the suit premises. Subsequently, the plaintiff also amended the plaint and it was also stated that the plaintiff owns another premises No. 2, Fakir Chakraborty Lane, Calcutta-6 adjoining to the premises No. 1/7, Fakir Chakraborty Lane, Calcutta-6. The said premises is now in occupation of his two sons, which consists of two rooms. The accommodation available to the plaintiff does not fulfil her requirement and she has been experiencing difficulty to accommodate her family members and his sons who are living along with the plaintiff are not in a position of marriage for want of accommodation.
(2.)THE suit was contested by the defendant stating therein that the suit is not maintainable. The suit is bad for non-joinder of necessary parties. The accommodation available to the plaintiff in premises No. 2, Fakir Chakraborty Lane, as well as suit premises No. 1/7, Fakir Chakraborty Lane is enough for her requirement. Both the accommodation consists of seven bed-rooms in all. Other pleas were taken in the written statement which are not necessary to give details of the same.
According to the plaintiff, her family requires seven rooms in all, one each for his five sons, one for herself and one drawing room for the use of her married daughters who often visit with the plaintiff. The trial Court framed eight issues. Issue No. 5 was the main issue which was as follows :-

"Is the suit premises reasonably required by the plaintiff for her own use and occupation ?" Issue No. 6 was "To what relief plaintiff is entitled ?" Issue No. 7 was "Is the plaintiff entitled to a decree as prayed for ?" and issue No. 8 was "whether the defendant is (sic) the suit premises let out to him for residential purpose and/or commercial purpose."

(3.)PLAINTIFF in support of her case produced two witnesses PW-1 and PW-2 and defendant Basudev Das appeared as DW-1. In fact PW 1 is only a formal witness having been appointed as advocate commissioner. In his statement he has stated that there was direction upon him to measure rooms of the defendant. Neither of the parties drew his attention to special feature of the room at the time of inspection. He further stated that I cannot remember whether the room of the defendant has any separate entrance or not or whether the right side of their rooms was locked abuts on the main room and has separate entrance. PW-2 is the only witness in support of the plaintiff's case where the defendant appeared as DW-1. After considering the materials on the record and taking into consideration the statement of the witnesses adduced on behalf of the parties, the Trial Court came to the conclusion that the suit room is reasonably required by the plaintiff for her use and occupation and accordingly, the suit was decreed.

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