calcutta high court

Calcutta High Court: While deciding a second appeal against an eviction decree based on the violation of Section 108 of the Transfer of Property Act, 1882, as well as the ground of reasonable requirement, a single-judge bench comprising of Ajoy Kumar Mukherjee,* J., held that the alleged construction is indeed outside the tenancy and remanded the case back to First Appellate Court to consider the plaintiff’s reasonable requirement in light of a subsequent property purchase.

Factual Matrix

In the instant matter, the original plaintiff-respondent, initiated an Ejectment Suit against the predecessor in interest of the present appellant (tenant) for one room on the grounds of default in rent, unauthorized construction, and reasonable requirement. The plaintiff alleged that the defendant, the tenant, had defaulted in paying rent since February 1980 and had constructed an unauthorized room with a mezzanine floor and an attached staircase. During the trial, the plaintiff passed away, and his four married daughters were substituted in the appeal.

The appellant argues that the Mezzanine floor constructed by the tenant is outside the tenancy. The Trial Court dismissed the suit, stating that the appellant was not liable to be evicted for contravention of certain clauses of Section 108 of the Transfer of Property Act, as the construction was made outside the tenancy.

The First Appellate Court reversed the decision, finding in favor of the plaintiff, based on alleged unauthorized construction and reasonable requirement.

Appellant’s Contentions

The appellant contended that the plaintiff admitted to purchasing another building with multiple rooms after the First Appellate Court’s decree and this purchase negated the plaintiff’s claim of reasonable requirement for the suit premises.

With regards to the unauthorized construction, the appellant contended that the construction was outside the tenanted portion, as evidenced by the commissioner’s report, sketch map, and pleadings in the plaint. The appellant further contended that unauthorized construction outside the tenancy cannot lead to eviction under Section 108 of the Transfer of Property Act.

Respondent’s Contentions

The respondent contended that the appellant’s reliance on subsequent events, such as the plaintiff’s new property purchase, should not be allowed, as the Second Appellate Court cannot re-appreciate evidence. It was contended that the appellant’s arguments failed to demonstrate perversity in the First Appellate Court’s findings.

Moot Point

1) Whether the construction made by the defendant was unauthorized and whether it fell within the tenanted portion.

2) Whether the subsequent purchase of another property by the plaintiff affects the reasonable requirement claim.

Court’s Observations

On the issue of unauthorized construction, the Court held that the evidence, including the commissioner’s report, suggested that the construction was outside the tenanted portion, and thus the plaintiff was not entitled to a decree of eviction on these grounds.

The Court stated that “there is no dispute in the proposition of law that the First Appellate Court is final court of fact but if that court has patently gone wrong in casting the burden of proof and has misread the evidence and has also not considered, the basic requirement to prove the case of unauthorized construction, it cannot be said that High Court as a second Appellate Court is not competent to re-appreciate the same to correct the mistake committed by court below.”

The Court observed that the question of whether the subsequent property purchase affected the plaintiff’s reasonable requirement was a factual issue that needed to be re-examined, therefore, the case was remanded to the First Appellate Court for further consideration in light of the new information regarding the property purchase.

The Court held that-

  1. Second Appellate Courts can re-examine factual findings if there is a clear error, such as misdirection or non-consideration of relevant evidence by the lower court.

  2. Unauthorized construction outside the tenanted portion cannot lead to eviction under certain clauses of Section 108 of the Transfer of Property Act.

  3. All subsequent events must be taken into consideration to ascertain the landlord’s bona-fide need to evict the tenant.

Court’s Verdict

The Court remanded back the matter to the First Appellate Court for further consideration in light of changed facts and circumstances. The Court directed the appellant to continue depositing occupational charges during the pendency of the appeal. The execution proceedings were stayed until the First Appellate Court disposed of the case.

[Ajoy Sharma v. Dwijendra Nath Dhar, 2023 SCC OnLine Cal 2309, order dated 10-08-2023]

*Judgment by Justice Ajoy Kumar Mukherjee

Advocates who appeared in this case :

Mr. Siddheswar Chandra and Mr. Sandip Dutta, Counsel for the Appellant;

Mr. Krishna Das Poddar, Counsel for the Respondent/State.

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