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REPORTABLE      

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4539 OF 2013 (Arising out of Special Leave Petition (Civil) No.30300 of  

2011)

ANAMIKA ROY Appellant(s)

VERSUS

JATINDRA CHOWRASIYA AND OTHERS Respondent(s)

M.Y. EQBAL, J.:

  Leave granted.

2.         Aggrieved by the  judgment dated 10.2.2011  

passed by  learned Single  Judge of  the  Calcutta  High  

Court  in  S.A.  No.342  of  2007,  whereby  the  second  

appeal filed by the defendant-respondents was allowed,  

the judgments and decrees of the courts below were  

set aside and the matter was remitted to the trial court  

after  expressing  the  view  that  considering  the  

provisions of Section 13(4) of the West Bengal Premises  

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Tenancy Act, 1956   it is a duty cast upon the Court to  

consider whether the requirement of the plaintiff could  

be satisfied  by  evicting  the defendant from a part  

only  of  the  suit  property,  plaintiff-appellant  has  

preferred this  appeal  by  special  leave  under Article  

136 of the Constitution of India.  The trial court and the  

first  appellate  court  had  passed  decree  for  eviction  

against  the defendant/tenant  in  respect  of  the entire  

suit premises in question.

3.    The  litigation  between  the  parties  started  on  the  

filing of Title Suit No.66 of 1993 by the plaintiff in the  

Court  of  4th Civil  Judge  (Senior  Division)  at  Alipore,  

District 24 Parganas (South) for eviction and recovery  

of  khas  possession  of  the  suit  premises  against  the  

original  defendant/tenant  –  Lalji  Chowrasia  

(predecessor of the respondents) and for mesne profits  

and  compensation  for  damages  to  the  suit  property.  

The suit property happens to be a portion of the ground  

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floor flat consisting of three bed rooms with attached  

three bathrooms with  modern  fittings,  sanitary  privy,  

one store room, one kitchen, one dining room and one  

covered verandah in the front portion with grill in the  

premises No.128/15, Hazra Road, Kolkata.

4.        The case of the plaintiff in the above mentioned  

suit, inter alia, is that she is the owner and landlady of  

suit property in terms of a decree passed on 17.3.1988  

in  Title  Suit  No.55  of  1986.  She  requires  the  suit  

property in occupation of the defendant for her own use  

and occupation.  She alleges that she is a divorcee and  

is occupying one room on the second floor of the three-

storeyed building where her brother with his family is  

residing.  Entire first floor of the building has been in  

occupation of a Bank (State Bank of India) as a tenant.  

The plaintiff alleges that she has been permitted by her  

brother to stay in  one room, but  since she is  having  

bitter relationship with her brother’s wife, she wants to  

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reside in the suit property.  Her further case is that she  

does not  have any source of  income except a paltry  

amount of Rs.500/- which she gets as her share in the  

rent collected from the tenant-bank.  According to her,  

if she rearranges the suit premises and makes provision  

for  one  room  flat,  she  will  be  able  to  augment  a  

minimum income of Rs.2500/- per month by letting or  

leasing it out.  She alleges that the original defendant  

was guilty of causing damage to the suit premises.

5.        The suit was contested by the defendant by filing  

written statement contending  inter alia  that there was  

no  relationship  of  landlord  and  tenant  between  the  

parties  to  the  suit.   Defendant  further  alleged  that  

although the plaintiff might have realized rent from the  

defendant  and  the  defendant  might  have  

paid/deposited monthly rent in the name of the plaintiff,  

yet there could not be any relationship of landlord and  

tenant  in  between  the  plaintiff  and  the  defendant.  

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Although  defendant  did  not  dispute  the  fact  that  

plaintiff  has  been  residing  with  her  brother  and  his  

family on the second floor of the suit holding, but he  

denied that the plaintiff requires the suit premises for  

her  own  use  and  occupation.   According  to  the  

defendant, her present accommodation is suitable and  

her  statement  that  she  had  no  alternative  suitable  

accommodation  elsewhere  is  not  correct.   The  

defendant  also  disputed  the  plaintiff’s  claim  of  

ownership  of  the  suit  premises  on  the  basis  of  

compromise decree passed in the said Title Suit No.55  

of 1986.  It is further contended that the alleged decree  

is not binding upon the defendant.  It appears from the  

judgments of  the courts  below that  after  the original  

defendant  died,  the  respondents  herein  were  

substituted  in  place  of  the  original  defendant.  

Defendant No.5 also filed a separate written statement  

denying pleas of the plaintiff.

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6.        The trial court by its judgment dated 30.7.2002  

decreed the said suit  and directed the defendants to  

hand over the vacant possession of the suit premises to  

the plaintiff within a stipulated period of time. The trial  

court  found  that  the  defendant  had  admitted  in  

evidence  that  the  plaintiff  is  the  landlady  of  the  

defendant and that the suit premises is the portion of  

the  ground  floor  and  the  remaining  portion  of  the  

ground floor is in possession of the plaintiff’s brother’s  

son.  The trial court further found that admittedly the  

original defendant was inducted in the suit premises as  

a  tenant  by  the  father  of  the  plaintiff  and  the  

defendants have been substituted on the death of the  

original defendant.  However, the trial court did not find  

any cogent evidence with regard to the alleged damage  

to  the  suit  property.   The  trial  court  found  that  the  

present accommodation of the plaintiff on the second  

floor is not suitable where she has got only one room as  

per the Will of her father and she has got no separate  

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kitchen and bath-cum-privy for herself.  Finding the said  

Title Suit No.55 of 1986 being suit for declaration and  

not a partition suit, the trial court found that the decree  

passed  in  the  suit  was  a  compromise  decree,  from  

which it is clear that the plaintiff has got title in respect  

of the suit premises and from Ex.4 – the probate of the  

Will  executed by  plaintiff’s  father  it  is  clear  that  the  

plaintiff has got life-estate in one room on the second  

floor and 15% share of rent from the said bank-tenant  

on the first  floor.   Admitting the compromise decree,  

the trial court concluded that the plaintiff is the owner  

of the suit premises and the present accommodation of  

the  plaintiff  is  not  suitable  and  the  suit  premises  is  

reasonably and in good faith required by the plaintiff for  

own use and occupation and for augmentation of her  

income from the suit premises and there cannot be any  

partial eviction as such.

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7.        Challenging the judgment and decree of the trial  

court, the defendants filed Title Appeal No.280 of 2002,  

which  was  placed  before  the  Additional  District  and  

Sessions Judge,  Fast  Track Court-II,  Alipore,  who also  

opined that a complete flat is required for the purpose  

of  the  residence of  the  plaintiff  and the  plaintiff  has  

bona fide requirement of the suit premises for her own  

use  and  occupation.   Dismissing  the  title  appeal  on  

28.2.2005, the first appellate court took note of the fact  

that the trial court had already decided that there was  

a  relationship  of  landlord  and  tenant  between  the  

parties and held that the trial court had rightly decreed  

the  suit.   The  lower  appellate  court  also  found  that  

there is bitter relationship between the plaintiff and her  

brother’s wife and it is not expected that the plaintiff  

being a divorcee will reside in the house of her brother  

at the mercy of her brother’s wife.

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8.        The defendants (contesting Respondent Nos.1 and  

2 herein) challenged aforesaid judgment and decree of  

the lower appellate court before the High Court by way  

of second appeal.  It  appears that the second appeal  

was  admitted  by  the  High  Court  on  the  following  

substantial questions of law:

(a)   Whether  the  learned  Courts  below  committed  substantial  error  of  law  in  not  considering the question of partial eviction of  the appellants from the suit property? (b) Whether  the  learned  Court  of  appeal  below committed substantial  error of law in  refusing  to  consider  the  question  of  partial  eviction on the ground that no such prayer  was  made  by  the  defendants  by  totally  overlooking  the  fact  that  in  view  of  the  provision  contained  in  Section  13(4)  of  the  West Bengal Premises Tenancy Act, a duty is  cast upon the Court to consider whether the  requirement of the plaintiff  can be satisfied  by  evicting  the  tenants  from a  part  of  the  property?

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9. On the aforesaid  substantial  questions  of  law,  it  

was  contended  by  the  defendants  (appellants  in  second  

appeal)  in  the  High  Court  that  the  courts  below  did  not  

consider question of partial eviction and it is the plaintiff’s  

case to let out a part of the suit property for augmenting her  

income.  It is the case of the defendant that there is a vacant  

flat in the ground floor of the suit holding which was allowed  

to the brother of the plaintiff and the same can be provided  

to the plaintiff for residence.  There is no dispute that in the  

instant case no local inspection was held in respect of the  

suit premises and/or suit building itself.   

10. Defendants referred to a decision reported in AIR  

1978 SC 413 (Rahman Jeo Wangnoo vs. Ram Chand and  

others) in support of their contention submitting that it is  

mandatory for the Court to consider the question of partial  

eviction as contemplated under the West Bengal Premises  

Tenancy Act, 1956.  Reference was also made to this Court’s  

judgment  in  Krishna  Murari  Prasad  vs.  Mitar  Singh,  

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1993 Supp (1) SCC 439, in which this Court has observed  

that the landlord’s requirement having been found proved,  

the Court had to consider the matter further according to the  

relevant provision of law and the order for eviction from the  

entire premises could be made only if a decree for partial  

eviction  in  the  manner  provided  could  not  substantially  

satisfy the landlord’s requirement.  Plaintiff  (respondent in  

second  appeal),  on  the  other  hand,  submitted  that  the  

question  of  local  inspection  in  the  present  case  does  not  

arise as the present occupation of the plaintiff is precarious  

and that is enough to prove her reasonable requirement for  

own use and occupation and there can be no partial eviction  

in the present case.

11. The learned Single Judge of the High Court was not  

inclined to upset the concurrent finding with regard to the  

right of  the plaintiff  in  respect of  the  suit premises as  

found by the courts below.  From the materials on record, it  

appeared  to  the  High  Court  that  the  plaintiff  proved  her  

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bona fide requirement.  However, the High Court is of the  

view that the decisions reported in AIR 1978 SC 413 (supra)  

and 1993 (Supp) (1) SCC 439 (supra) supported the case of  

the defendants in so far as their stand on the question of  

partial eviction is concerned.  Without disturbing the finding  

of  the  courts  below  with  regard  to  the  relationship  of  

landlord and tenant between the parties to the suit and the  

plaintiff’s ownership in respect of the suit property, the High  

Court allowed the second appeal filed by the defendants and  

made it clear that the inquiry, that will thereafter be done by  

the courts below, shall be limited to the question whether or  

not the eviction of the defendants from a part only of the suit  

premises  can  substantially  satisfy  the  plaintiff’s  need.  

Liberty has also been given by the High Court to the parties  

to the proceedings to adduce appropriate evidence before  

the trial court and also to make an appropriate application  

for appointment of a Local Commissioner for holding a local  

inspection  in  respect  of  the  suit  premises  and/or  the  suit  

holding.

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12. The relevant portion of the findings recorded by  

the High Court is extracted herein below:-

“In  the  facts  of  the  present  case  no  Commissioner was appointed to hold a  local  inspection  and  consequently  no  local inspection report is on record. The  description of the suit property appears  to  be  a  ground  floor  flat  consisting  of  three  bedrooms  with  attached  three  bathrooms with modern fittings, sanitary  privy, one store, one kitchen, one dining  room, one covered verandah in the front  portion with grill in the suit holding, that  is, premises No.128/15, Hazra Road: P.S.  Bhowanipore  Kolkata  700026.   The  learned Lower Appellate Court has found  that  the  plaintiff  would  require  one  privy,  one  kitchen,  one  bathroom  and  one dinning space that  is   a complete  flat for the purpose of her residence.  As  it appears to this Court that none of the  Courts below has examined the question  of partial eviction, the matter should be  remitted back to the learned Trial court  since  this  Court  is  of  the  view  that  considering  the  said  provisions  of  Section 13(4) of the said Act of 1956 it is  a duty cast upon the Court to consider  whether the requirement of the plaintiff  could  be  satisfied   by  evicting  the  defendant from a part  only of  the suit  property.  The decisions reported at AIR  1978  Supreme  Court  413  (supra)  and  

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1993  SUPP(1)  SCC  439  (supra)  supported the case of the appellants in  so far as their stand on the question of  partial  eviction  is  concerned.  In  the  present case,  the plaintiff’s  reasonable  requirement  has  been  found  to  be  proved  by  both  the  learned  Courts  below  and,  accordingly,  the  inquiry  is  now  required  to  be  made  only  with  regard  to  the  question  of  partial  eviction.   This  Court  is  also  not  disturbing  the  finding  of  the  learned  Courts  below  with  regard  to  the  relationship  of  landlord  and  tenant  in  between the parties to the suit and the  plaintiff’s  ownership  in  respect  of  the  suit property.”

13. We have heard  Mr.  R.K.  Gupta,  learned counsel  

appearing  for  the  appellant  and  Mr.  Shymal  Chakravarti,  

learned counsel appearing for the respondent.

14.  The question that falls for  consideration is  as to  

whether the High Court is justified in holding that both the  

trial  court and the appellate court have not examined the  

question of partial eviction.   

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15. Both  the  courts  have  recorded  the  concurrent  

finding of fact that the appellant is a divorcee old lady and is  

occupying  one  room  on  second  floor  of  three-storeyed  

building owned by her brother.  The first appellate court has  

taken  note  of  the  fact  that  there  is  a  bitter  relationship  

between the  plaintiff  and her  brother’s  wife  and it  is  not  

expected that the plaintiff  being a divorcee resides in the  

house of her brother at the mercy of her brother’s wife.

16. The  trial  court  while  deciding  the  issue  as  to  

whether  the  suit  premises  is  reasonably  required  by  the  

plaintiff or not, has gone into the details of the difficulties,  

which  the  old  landlady  is  facing.   While  discussing  the  

question  of  partial  eviction,  the  trial  court  referred  to  a  

decision  reported  as  2001  (3)  CHN  244  (Jagat  Bandhu  

Batabayal vs. Jiban Krishna Roy) for the proposition that the  

question of partial eviction was rightly not considered in that  

case by the appellate court as the tenant never raised such  

issue  before  the  appellate  court   nor  any  material  was  

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available before the learned Judge to form an opinion that  

the requirement of plaintiff can be substantially satisfied by  

ejecting the tenant from a portion of the  suit premises.  In  

the  concluding  portion  of  the  judgment,  the  trial  court  

observed:-

“  Considering  the  evidence  adduced  by  both  parties  and  the  principles of law discussed above, I find  that the plaintiff is the owner of the suit  premises, the compromise decree in T.S.  No.55/86 is admissible in evidence, the  present accommodation of  the plaintiff  is not suitable and the suit premises is  required for the reasonable requirement  of  the  plaintiff  for  own  use  and  occupation and for augmentation of her  income from the suit premises and there  cannot  be  any  partial  eviction and  as  such all  these issues be disposed of in  favour of the plaintiff.”

17. Similarly,  in  the appeal  filed by the respondent-

tenant, the appellate court has also gone into the question  

as to the reasonable requirement of the landlady and held  

that a complete flat is required for the purpose of residence  

of the plaintiff.  The appellate court held that:-

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   “It is not expected that the plaintiff  being divorcee will  reside in the house  of  her  brother  and  at  mercy  of  her  brother and brother’s wife.        In  order  to  reside  peacefully  one  privy, one kitchen,  one bath room and  one  dining  space  in  other  words  complete flat is required for the purpose  of the residence of the plaintiff, so in the  circumstances  I  hold  that  the  plaintiff  has bonafide reasonable requirement of  the suit  premises for her own use and  occupation.”

18. Having regard to the finding recorded both by the  

trial  court  and  the  appellate  court  that  the  entire  flat  is  

required by the plaintiff landlady for her use and occupation,  

the High Court has committed grave error in formulating a  

question  mentioned  hereinabove  and  holding  that  the  

question of partial eviction has to be considered since it is a  

mandatory requirement of law.  The High Court has further  

committed serious error of law in setting aside the judgment  

and decree of the trial court and that of the appellate court.  

Indisputably, the appellant-landlady has been residing in one  

room at the mercy of her brother and she needs the suit  

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premises on the ground of her personal requirement.  The  

suit  premises  is  a  flat  consisting  of  three  bedrooms  with  

bathroom, one store room, one kitchen and one dining room.  

The suit was filed in the year 1993 and for the last 20 years  

the  appellant-landlady,  who  is  58  years  old,  has  been  

fighting with the tenant for getting her flat for her own use  

and occupation.  Both the trial court and the appellate court  

have considered the question of partial eviction as noticed  

above and recorded the finding that the appellant-landlady  

needs  the  entire  flat  to  live  there  comfortably.   In  our  

considered opinion, it would be too harsh if the flat which  

consists of three rooms is divided and a decree in respect of  

the  portion  of  the  flat  is  passed  which  will  result  in  

inconvenience  for  both  the  parties.   Moreover,  the  

defendant- respondent neither before the appellate court nor  

before the trial court or in the High Court has asserted that a  

portion of the premises will  satisfy the requirement of the  

appellant.

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19. There is no dispute with regard to the ratio laid  

down  by  this  Court  in  Rahman  Jeo  Wangnoo vs.  Ram  

Chand and Others (AIR 1978 SC 413) that the provision  

contained in the West Bengal Premises Tenancy Act, 1956  

mandates the court to consider whether partial eviction as  

contemplated  therein  should  be  ordered  or  the  entire  

building should be directed to be vacated.  However, while  

deciding the issue of reasonable personal requirement of the  

landlord,  if  the  trial  court  or  the  appellate  court  also  

considers the extent of requirement and records a finding  

that the entire premises or part thereof satisfies the need of  

the  landlord,  then,  in  our  considered  opinion,  there  is  

sufficient compliance of the provision contained in the said  

Act.

20. Taking  into  consideration  these  facts  and  also  

having regard to the finding recorded both by the trial court  

and  the  appellate  court  after  discussing  the  question  of  

partial  eviction,  the substantial  question of law framed by  

the High Court does not arise.  Consequently, the impugned  

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judgment passed by the High Court cannot be sustained in  

law.   

21. For the reasons aforesaid, this appeal is allowed.  

The impugned judgment of the High court is set aside and  

the  judgment  and  decree  of  the  trial  court  is  affirmed.  

However, there shall be no order as to costs.

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22. The defendant-respondents are directed to vacate  

the suit premises within three months and hand over vacant  

possession of the same to the appellant.   

………………………….J. (P. Sathasivam)

………………………….J. (M.Y. Eqbal)

New Delhi, May 9, 2013.

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