Ashis Kumar Chakraborty, J. - (1.) The second appeal is directed against the judgment and decree dated August 04, 2011 passed by the learned Judge, IVth Bench, City Civil Court at Calcutta in Title Appeal No. 15 of 2010, affirming the judgment and decree dated December 22, 2009 passed by the learned 6th Court of the Presidency Small Causes Court at Calcutta in Ejectment Suit No. 1249 of 2001, thereby dismissing the ejectment suit filed by the original appellant against the respondent. During the pendency of the second appeal, on August 17, 2016 the original appellant Mayarani Karmakar died intestate and her only son and three married daughters have been substituted in the appeal, as the appellants.
(2.) The facts leading upto this appeal may be briefly stated.
(3.) The plaintiff Mayarani Karmakar, since deceased claiming herself to be the owner of the three storied building at Premises No. 30, Hidaram Banerjee Lane, Kolkata (hereinafter referred to as "the said building") filed the ejectment suit, before the learned 2nd Judge, Presidency Small Causes Court at Calcutta, claiming a decree for eviction against the present respondent, the suit property comprising two rooms on the first floor of the said building (hereinafter referred to as "the suit property"). The ejectment suit was filed under the West Bengal Premises Tenancy Act, 1956 (in short "the Act of 1956") and the plaintiff sought for eviction of the defendant from the suit property, inter alia, on the grounds that she bona fide and reasonably required the suit property for the use and occupation of herself and her family members and that the defendant defaulted in payment of rent. The plaintiff alleged that she was in joint mess with her family members and her existing accommodation with two bed rooms and a kitchen on the first floor of the said building is absolutely insufficient, causing great hardship to herself and her family members and, as such, she reasonably required the suit property. The defendant filed his written statement denying all material allegations made in the plaint. He alleged that two rooms are sufficient for a family like the plaintiff. The plaintiff amended the plaint filed in the suit and alleged that she herself requires one room as bed room and another room for her Thakurghar, her adult son requires one room as his bed room, one room is required for her married eldest daughter who resides with her permanently, one separate room is required for the married second daughter and her youngest daughter respectively and one room is required for the purpose of drawing room for the use of her family members. She further claimed that her family requires one room as the study room for the school going members of the family and another room is required for her son's business. The defendant filed his additional written statement disputing that any of the three married daughters of the plaintiff resides with her or there is any requirement of the plaintiff of the suit property. The defendant alleged that there is no requirement of any room of the said building for the business of the plaintiff's son, as he is running the business of a goldsmith shop at 31, Hidaram Banerjee Lane, Kolkata and that the plaintiff suppressed that apart from the said building she also owns a two storied building at 108A, Uttarpally, Sodepur, District- North 24 Parganas (hereinafter referred to as "the said Sodepur property"). In the suit, the plaintiff filed an application under Order XXXIX Rule 7 of the Code of Civil Procedure, 1908 (in short "the Code") for appointment of an advocate commissioner to carry out the local inspection of the accommodation of both the parties to the suit at the said building. The said application was allowed, the advocate commissioner appointed by the Court inspected the respective accommodations of both the plaintiff as well as the defendant, at the said building and filed his report. However, neither the said advocate commissioner was examined nor was his report proved through evidence.;