- (1.) THE petitioner is the landlord of bustee land, being premises No. 11/3 Jagannath Sarkar Lane. The opposite party was a tenant under the petitioner in respect of land measuring two cottahs ten chattaks eleven square-feet out of the aforesaid premises paying therefor a monthly rent of rupees ten and annas eight according to the Bengali Calendar month. The case for the petitioner is that the opposite party was not occupying the entire land of the tenancy for her awn residential or manufacturing purposes. Moreover the petitioner required the suit land for his own occupation. Therefore, the petitioner terminated, the tenancy of the opposite party by a notice to quit. On failure of the tenant-opposite party to vacate, the petitioner started proceedings under section 5 of the Calcutta Thika Tenancy Act. The case was contested by the tenant-opposite party who disputed all the pleas on which the petitioner claimed to evict her. The learned Controller negative the contention of the petitioner to the effect that the tenant-opposite party had sublet the entire or alternatively the major portion of the premises in dispute.
(2.) ON the question of the requirement of the landlord the learned Controller came to the following finding: "the petitioner (P. W. I.) has contended that he needs the suit premises for his own residence and that he has no place for staying in. P. W. I has further contended that he would construct buildings on the suit land. The learned lawyer for the opposite party, has contended that the plea of building has not been taken in the original petition and that court should not consider this plea in the witness-box. Even if I leave aside this plea of building, there is still one other allegation that the petitioner needs the suit premises for his residence. There is no evidence before me to the effect that the petitioner has got some other house elsewhere. The opposite party has not led any evidence on this point" In the above view of the matter the learned Controller allowed the application made by the petitioner for recovery of possession subject to payment of compensation for the structures as might be agreed upon by the parties or, in default thereof, fixed by the Controller. The tenant-opposite party took an appeal to the appellate authority under section 27 of the Calcutta Thika Tenancy Act.
(3.) THE Appellate Tribunal came to the findings as hereinafter stated: (a) The landlord stated in his petition that he required the land for his own occupation. At the hearing, however, the landlord stated that he wanted to build a house on the land and for that purpose had submitted a plan before the Corporation. There was thus a change of the case made by the landlord at the time of hearing. If the landlord's case was that he wanted to construct a building on the land, that would show that his case that he wanted the land for his own occupation was not true. As the landlord did not bring the case on the ground that he wanted the land for the purpose of building on it, that case could not be considered in allowing the application, (b) The landlord also stated in his evidence that he had no place to stay in and that he wanted the suit land for residential purpose. He did not say that the place where he was residing was not sufficient or suitable or that he was being pressed for vacating the same. A mere statement of the landlord that he wanted the land for his residential purpose and had no other place to stay was not sufficient to prove the "must have" element in the requirement of the landlord. A mere wish will not do. Some element of need was necessary. In the above view of the matter the appellate tribunal allowed the appeal and dismissed the landlord's application for eviction of the tenant.;