Calcutta High Court (Appellete Side)
Amit Sen & Ors vs Asish Roy & Ors on 17 February, 2026
2026:CHC-AS:279
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
S.A. 325 of 2009
With
IA. No. CAN 7 of 2022
With
IA No. CAN 8 of 2022
Amit Sen & Ors.
Vs.
Asish Roy & Ors.
For the Appellant : Mr. Probal Kumar Mukherjee
Ms. Shebatee Datta
For the Respondents : Mr. Iftekar Munshi
Mr. A.S. Tarafdar
Heard on : 20.11.2025
Judgment on : 17.02.2026
Dr. Ajoy Kumar Mukherjee, J.
1. Being aggrieved by and dissatisfied with the judgment and decree of
eviction of premises tenant, dated 30th August, 2006 passed by learned 3rd
Additional Civil Judge (Junior Division), Alipore in Title Suit no. 1 of 2005,
the opposite parties herein preferred Title Appeal no. 23 of 2007 before
learned Civil judge (Senior Division) 5th court, Alipore, who by the impugned
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judgment and decree dated January, 14, 2009 has allowed the appeal on
contest, thereby set aside the judgment and decree passed by the trial court.
2. The brief background of the suit for eviction is that plaintiff/appellant
herein claiming themselves as sole land lords filed the aforesaid ejectment
suit against the defendants/respondents herein, on the ground of
reasonable requirement. Plaint case is that the original owner, who is the
predecessor of the plaintiff, Sri Manmatha Nath Sen during his lifetime
executed a trust deed on 30.01.1956. Said settlor of the trust named his
wife Smt. Pramila Bala Sen as the trustee and clause 7 of the said trust
deed states that Rs. 100/- would be drawn by the said trustee Pramila Bala
towards her monthly maintenance from the income of the trust properties.
She was also given the right to act as a trustee to collect rent and to induct
tenants in the trust property. The distribution of other portion of the income
from the trust property has also been mentioned in the trust deed. As per
clause 13 and 14 of the trust deed, the trust would come to an end with the
death of Smt. Pramila Bala and with the death of trustee, the trust
properties will be vested upon his five sons as follows:
(a) Chandi charan Sen: 27 A Chakraberia Road
(b) Bibhuti Bhusan Sen: 27 B Chakraberia Road
(c) Gopal Chandra Sen: 27 C Chakraberia Road
(d) Santosh Kumar Sen: 32 D Sarat Bose Raod
(e) Deb Kishore Sen: 32E Sarat Bose
3. Further plaint case is by the said trust deed, the predecessor of the
present appellant Bibhuti Bhusan Sen after demise of his mother Pramila
Bala became absolute owner of the suit premises namely 27 B Chakraberia
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Road, where the respondents herein were inducted as tenant and against
whom the plaintiff filed the aforesaid eviction suit.
4. The plaintiffs further case is that they are at present residing as
licensee in the above mentioned 32 E Sarat Bose Road, under the owner of
said premises Santosh Kishore Sen and Deb Kishore Sen. Plaintiffs further
case is his family consists of himself, his wife, four sons, married daughters
and two unmarried daughters and that the suit property i.e. 27B
Chaknaberia Road, consists of two rooms in the ground floor two rooms in
the first floor and two small tiles sheded rooms in the second floor. Plaintiffs
require the entire suit property for personal use and occupation as plaintiff’s
licensee has already revoked the license.
5. Defence contention on the other hand is that though a trust deed was
executed by Manmatho but the same was not acted upon and Pramila used
to collect rent from the defendant not as a trustee but in her individual
capacity. Upon the enactment of Hindu Succession Act w.e.f. 17.06.1956
and upon Promulgation of section 14(1) of the Hindu Succession Act. 1956,
the limited interest of Pramila Bala Sen created by virtue of the trust deed,
in lieu of maintenance ripened into full ownership and she became the
absolute owner of the property of late Manmatho nath Sen. Therefore, after
the death of Pramila Bala on 09.02.1976, all her sons and daughters
including the original plaintiff Bibhuti Bhusan Sen became the joint owners
in respect of all the above mentioned properties mentioned in the alleged
trust deed, each having 1/8th share in all those properties. Therefore, since
the plaintiffs have alternative suitable accommodation, they do not
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reasonably require the suit property and as such plaintiffs’ suit for eviction
is not sustainable.
6. The Trial court decreed the suit on the ground of reasonable
requirement observing that after demise of Pramila Bala, in terms of the
deed of settlement, the suit property was mutated in the name of plaintiffs’
predecessor Bibhuti Bhusan only, as appearing from exhibit 3 to 3(f) and
that the defendant having paid rent to Bibhuti Bhusan after demise of
Pramila Bala and that the other properties mentioned in the trust deed are
not the properties of the plaintiffs and in view of the fact that plaintiff is
residing elsewhere along with his family, as licensee, plaintiff has succeeded
in proving reasonableness of his requirement.
7. However, when the defendants preferred first appeal the appellate
court reversed the eviction decree upon coming to a conclusion that the
trust deed conferred upon Pramila, a monthly maintenance of Rs. 100/-
which is a pre-existing right and as such the limited interest conferred upon
her by virtue of the trust deed being in lieu of maintenance and recognition
of her pre-existing right, transformed into absolute right under section 14(1)
of Hindu Succession Act and section 14(2) of the said Act has no
application. Thus, Pramila bala during her life time became full owner of all
the aforesaid five properties owned by her husband Manmatho Sen on and
from 17.07.1956 and after her death all her legal heirs became owner of all
the properties mentioned in the trust deed and therefore plaintiff failed to
prove bonafideness of his requirement and as such plaintiff is not entitled to
get decree as prayed for.
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8. Being aggrieved by the said judgment passed by the first appellate
court, the present second appeal has been preferred by the plaintiff/
appellant. At the time of admission of this second appeal a Division Bench of
this Court vide order dated 21.08.2009 framed following substantial
questions of law for adjudication
(i) Whether the learned judge of the First Appellate Court below was right
in coming to the conclusion that Late Bibhuti Bhusan Sen cannot be a
licensee of 32E, Sarat Bose Road and he is the cosharer of the same and
also Co-sharer of the other property left by Manmatha Sen?
(ii) whether the learned Judge of the First Appellate Court was right in
coming to the conclusion that the provisions contained in sub-section (2)
of section 14 of the Hindu Succession Act, 1956 has no application in the
Instant Case?
(iii) Whether the learned Judge of the First Appellate Court committed
substantial error in law in not holding that the plaintiffs reasonably
require the suit premises for their own use and occupation and also for
the use of their family members as they have no other alternative
accommodation save and except the suit premises?
9. This court vide order dated 28th April,, 2025 decided aforesaid first
two substantial questions of law as follows:-
“Accordingly both the aforesaid substantial questions of law are answered in
favour of plaintiff/appellant with the specific observation that as per trust deed,
after the death of Pramila the trust extinguished and in terms of trust deed
plaintiff became owner only in respect of the suit property and no other property
mentioned in the trust deed.
Let the matter be listed in the monthly list of June 2025 for hearing the
substantial question of law no (iii) namelyWhether the learned Judge of the First Appellate Court committed substantial
error in law in not holding that the plaintiffs reasonably require the suit premises
for their own use and occupation and also for the use of their family members as
they have no other alternative accommodation save and except the suit
premises?”
10. Further it appears from the record that Respondent/Defendant
/tenant had assailed the aforesaid order dated 28th April, 2025 before
Supreme Court in Special Leave to appeal (c) No. 197875/2025 and the
Supreme Court dismissed the said appeal on 01st August, 2025 observing
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“having considered the matter , we do not find any merit in the matter warranting
interference by this court. Accordingly, the Special Leave Petition stands
dismissed.
11. Therefore, as state above I now need to consider only the third
substantial question of law namely:-
(iii)Whether the learned Judge of the First Appellate Court committed
substantial error in law in not holding that the plaintiffs reasonably require
the suit premises for their own use and occupation and also for the use of
their family members as they have no other alternative accommodation save
and except the suit premises?
12. Mr. Probal Mukherjee, learned Senior counsel argued in support of
appellant/plaintiffs case that the suit was filed only on the grounds of
reasonable requirement of plaintiff and his family members. In the written
argument he states even at present plaintiffs family comprising of following
members namely (i) Shri Amit Sen (unmarried) (ii) Shri Ashim Sen, his wife,
daughter aged about 17 years old and his mother in law, (iii) Shri Joy Sen
(unmarried), (iv) Smt. Subhra Sen (unmarried) (v) Smt. Ratna Roy (married)
and (vi) Smt. Jayati Sen (unmarried). He further submits that from the
plaint case it remains uncontroverted that there are 6 rooms in the suit
property which are fully occupied by the tenant/respondent. He further
submits that though the respondent by filing an application under order XLI
rule 27 sought to bring on record certain subsequent fact and alleged that
there lies a vacant land behind premises no. 32 D and 32 E Sarat Bose
Road, Kolkata and apparently the vacant land behind the premises no. 32 D
Sarat Bose Road as well as the building at premises no. 32 E Sarat Bose
Road have been demolished for development of said premises, but the
appellants herein have no nexus with the said development of the premises
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as they are not the owners of the same, and as such their requirement of the
suit premises still prevails. He further submits that it is well settled
principle of law that the rights of the parties crystallised as on the date of
the institution of the suit and therefore the decree in a suit should be in
accordance with the rights of the parties as they would at the
commencement of the lis. In this context he relied upon the judgment of
Gaya Prosad Vs. Pradeep Srivastava reported in (2001) 2 SCC 604. He
also relied upon the judgment of Atma bear Vs. Muktiar Singh reported in
(2003) 2 SCC 3 and Protap Ray Tanwani Vs. Uttam Chand reported in
(2004) 8 SCC 490.
13. Mr. Aniruddha Chatterjee and Mr. Iftekar Munshi learned counsel for
the respondent argued that the appellants as plaintiffs had failed to prove by
documentary or oral evidence that the plaintiffs are residing at present at
32E Sarat Bose Road as licensee under his brother Santosh Kishore Sen or
that said Santosh Kishore Sen had revoked the license or constantly
pressing the plaintiffs to quit or vacate the said premises. In this context
neither any notice of revocation of license was exhibited nor the same was
proved by oral evidence.
14. Respondents further case is that the plaintiffs/appellants have
sufficient accommodation available to them at 10 B Nafar Kundu Road,
Kolkata and at Mirza Galib Street, Kolkata. However, neither the trial court
nor the appellant court considered regarding the sufficiency and the
suitability of the accommodation already available to the plaintiffs and for
which they have filed application under order XLI rule 27 of CPC.
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15. Further case of the respondent is that both the courts below have
erred in law in not considering that a decree of eviction on the ground of
reasonably requirement cannot be passed by the court without making any
local inspection under order XXXIX rule 7 of the Code of Civil Procedure,
which is a sine qua non for passing a decree of eviction solely on the ground
of reasonable requirement. Learned counsel for the respondent further
pointed out that during cross examination, Bibhuti Bhusan Sen admitted
that there was no inspection of the ancestral dwelling house and PW 2
namely aforesaid Santosh Kumar Sen admitted that eight people stay in one
room at 32E Sarat Bose Road which is a two storied building and there is no
room on the terrace and no commissioner was appointed to inspect the
house. He further submitted that nevertheless the defendant tenant had
made endeavour to file application under order XXXIX rule 7 and get it
heard before the trial court as well as before the first appellate court.
However, said application was rejected by the said court by an order dated
September, 12, 2005 and being aggrieved by the said order the respondent/
defendant preferred CO 3612 of 2005 and this court while disposing such
application was pleased to pass an order holding that prima facie onus of
reasonable requirement of the suit premises is to be discharged by the
plaintiff before the court below. Even after passing of the said order and
though it was upon the plaintiff/Appellant to file an application under
XXXIX rule 7 but they have miserably failed to do the same.
16. Their further argument is that the First appellate court was not at all
justified also in rejecting the respondents prayer for amendment of the
memo of appeal incorporating the ground that the learned court below ought
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not to have rejected the application for local inspection. However for
abundant precaution they have filed an application under order XXXIX rule
7 because the exercise of local inspection is a sine qua non for passing a
decree of eviction solely on the ground of reasonable requirement. In this
context they also relied upon section 103 of the Code and argued that this
High Court in a second appeal exercising the power under section 103 could
have heard such point of law and fact as to whether there is an element of
reasonable requirement of the landlord with respect to the suit property or
not because evidence on record are not sufficient to decide the issue of
reasonable requirement of the landlord and as such the same needs to be
remanded back for fresh trial on such issue after allowing a local
inspection.
17. He further argued that in view of the facts and circumstances of the
case, this court invoking power under order XLI rule 25 of the Code may
frame an issue with respect to such question for effective and complete
adjudication of the suit. He further submits that the trial court erred in law
in passing decree in the eviction suit on the sole ground of reasonable
requirement without first conducting a local inspection to ascertain the true
nature, sufficiency and suitability of the accommodation allegedly available
to the plaintiffs to determine the appellants bonafide requirement.
Accordingly he prayed for dismissal of the appeal.
Decision
18. It is clear from the language of section 13 (1) (ff) of the West Bengal
Premises Tenancy Act, 1956 that on satisfaction of the following conditions
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plaintiff is entitled to get a decree on the ground of reasonable
requirements:-
(i) Where the premises are reasonably required by the land lords
for their own occupation
(ii) Where they are the owner or requirement is for the occupation
of any person for whose benefit the premises are held
(iii) Where such persons are not in possession of any reasonable
suitable accommodation.
19. The expression “reasonable requirement” in clause (ff) has not been
defined in the Act. The words “if he is owner” in the statute of 1956
indicates that legislative intention is that land lord is required to be owner in
order to get decree for eviction on the ground of reasonable requirement,
which is the first condition as mentioned above. In the instant case in view
of aforesaid judgment of affirmation, it has been settled that plaintiff became
owner only in respect of the suit property and no other property mentioned
in the trust deed, after extinguishments of trust created by Manmath.
Therefore, plaintiffs being landlord have succeeded to prove their ownership
in respect of the suit property
20. Now so far as the other condition which states that the premises are
reasonably required by the plaintiffs for their own occupation, it is well
settled that such a requirement in order to be reasonable must have some
relation to the actual need of the person for such kind of occupation and the
test must relate to the standard of requirement of a reasonable man under
circumstances occurring in the particular case. Nevertheless the landlord
must prove a genuine present need for the house for his own occupation
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and the words “reasonably required” connotes something more than desire
but something much less than absolute necessity.
21. Coming back to the instant case the plaintiff in his plaint has averred
in para 11 onwards that the family of the plaintiff consists of himself his
wife, 4(four) sons and 2 (two) aged unmarried daughters and 2 (two) married
daughters and the suit building consists of two rooms in the ground floor,
two rooms in the first floor and two small tile shaded rooms in the second
floor. Such averment has not been seriously challenged anywhere either in
the pleading or in the evidence. Even plaintiffs case as on this date is that
the suit building at 27B Chakraberia Road is wholly occupied by the tenant
and the plaintiffs family is comprising of two unmarried son, one married
son who stays with his wife daughter and mother in law, two unmarried
daughters and one married daughter. It further appears that the learned
appellate court below though reversed the judgment passed in favour of the
plaintiff by the Trial Court but he has not disagreed the bonafideness of the
plaintiffs requirements or the existing structure in the suit house but his
sole consideration for setting aside the decree is that since the plaintiffs are
also co sharer of other trusted properties so they have reasonable alternative
accommodation elsewhere and therefore their requirement is not bonafide.
22. However I have already stated above that the claim of co-sharership of
the plaintiffs in other trust mentioned properties as made by the
defendants/ respondents, has already been turned down by the Apex Court
and this High Court as above. From the judgment of court below also it is
clear that he rejected defendant’s application under order XXXIX rule 7,
where defendant sought to prove that plaintiffs existing accommodation at
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Sarat Bose Road is sufficient and also to note the accommodation available
at premises no. 27A Chakraberia Road and the number of rooms and its
extent and measurement. Such rejection order is perfectly justified and no
challenge has also been offered against that observation. Though plaintiff
has also filed petition for local inspection commission and prayed thereafter
to remand the case for fresh trial, but I do not find any substance in
aforesaid prayer, since plaintiffs ownership in their present accommodation
have already been disproved, so it is immaterial whether their
accommodation at Sarat Bose Road is sufficient or insufficient. Though PW2
Santosh Kumar Sen has stated that the suit building is two storied and
there is no room on the terrace but no credence could be given over such
deposition firstly because said Santosh Kumar Sen having no ownership
over the suit property is supposed to know the local feature of the suit
building and his deposition is material only to the extent that he has
revoked the license granted to the plaintiffs to reside at Sarat Bose Road.
Secondly, whether there exists any room on the terrace of the suit building
have hardly any impact in the merit of the case i.e. the bonafideness of
plaintiffs requirements, considering number of family members of plaintiffs.
23. In view of case law reported in Sajanendra Nath Tagore Vs. Barindra
Kumar Dutta Gupta reported in 92 CWN 758, it is now well settled that in
a suit for ejectment on the ground of reasonable requirement, the land lords
requirement is to be tested from two angles (i) why does he require the suit
premises (ii) how much of it does he require. The first question as to the
quality or purpose of his requirement may very often give rise to a question
of law, which would require the court to consider as to whether the avowed
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purpose can in law be regarded to be a reasonable one. But once such
purpose is found to be a reasonable one, the finding as to the quantity or
extent of his requirement would by and large be a question of fact and not a
question of law and far less a question within the meaning of section 100 of
CPC as it stands now.
24. Therefore, when the trial court have come to a finding that the land
lord/plaintiffs requirements is bonafide for their personal use and
occupation and when such bonafideness of requirement has been interfered
by the appellate court only with a preserve finding that the plaintiffs are also
co sharer in respect of other trust mentioned properties, the tenant
respondent hardly have any right to re agitate the matter in second appeal
or to adduce additional evidence on subsequent event, if any.
25. It is true that though the right of the parties can be crystallised as on
the date of institution of the suit and therefore the decree should be in
accordance with rights of the parties as they stood at the commencement of
the lis however, in the event, the court takes note of any subsequent fact to
promote substantial justice, the court may mould the reliefs and in doing so
it must take utmost caution. In Gaya Prasad Vs. Pradeep Srivastava
(supra) the Apex Court observed that the crucial date for deciding as to the
bonafide requirement of the land lord is the date of his application for
eviction and it was further observed that for the subsequent events to over
shadow the genuineness of the need must be of such a nature and of such
dimension that the need propounded by the petitioning party should have
completely eclipsed by such subsequent events. Here whatever subsequent
events which the respondents have tried to brought before the court, even if
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accepted in its entirety, does not eclipse bonafide of plaintiffs requirement,
which still subsists.
26. In Atma S. Berar Vs. Muktiar Singh (supra) the Apex Court quoted
an earlier Three Judges Bench decision in Prateva Devi Case where it was
observed that the land lord is the best judge of his residential requirement
and he has complete freedom in the matter. It is no concern of the courts to
dictate to the land lord how and what manner he should live or to prescribe
for him a residential standard of their own and the High Court need not be
soliticized and venture in suggesting what would be more appropriate for the
landlord to do as there is no law which deprive the land lord of the beneficial
enjoyment of his property.
27. In Pratap Ray Tanwani Vs. Uttam Chand (supra) the Apex Court
also made it clear that while considering the bonafide of the need of the land
lord the crucial date is the date of the petition. The normal rule is that rights
obligations of the parties are to be determined as they were when the lis
commenced and the only exception is that the court is not precluded from
moulding the reliefs appropriately in consideration of subsequent events
provided such events had an impact on those rights and obligations. Since
in the instant case it has been well established that the plaintiffs do not
have any right title interest in other trust mentioned properties except suit
property and since there is nothing to show that they have any other
property and on the contrary their present possession at Sarat Bose Road as
a licensee, has already been revoked, their bonafideness of requirements
still subsist and no subsequent events is coming before the court which can
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be said to have an impact on the rights and obligations of the parties nor
there appears to be any reason to mould the reliefs mentioned in the plaint.
28. Now coming to the third requirement i.e. whether plaintiffs have any
other reasonable suitable accommodation elsewhere save and except suit
building. It appears that the respondent in this context tried to make out
evasive allegations by filling connected applications CAN 7 and CAN 8 that
during pendency of the second appeal the respondents have discovered that
the appellants herein along with other members of the Sen family have
undertaken to develop the premises no. 32D and 32E Sarat Bose Road
Kolkata and that a portion allegedly forming part of premises no. 32E Sarat
Bose Road have been significantly developed and the premises no. 32D
Sarat Bose Road has been partly developed and there exists vacant land
behind the existing building but the plaintiffs/appellants have categorically
stated that they do not have any connection with the said properties nor
they have ownership in the same which has also been affirmed in the above
mentioned judgment and therefore he does not have any relation with the
same.
29. Respondents in their connected applications further alleged that they
have learnt that the sister of the predecessor in interest of appellant namely
Purabi Sinha was sole owner of a building situated at 10 B Nafar Kundu
Road, Kolkata 26, who died intestate and issueless and after her death the
appellants have acquired right, title, interest in the said property. Such
contention has been denied by the opposite parties in their affidavit in
opposition contending that they do not have any right title interest either in
the other trust mentioned properties or in the property at 10B Nafar Kundu
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Road, which is the matrimonial home of late Purabi Sinha and as such
appellants do not have any right title interest over the same, even if said
Purabi Sinha died intestate and issueless, because under the Hindu
Successions Act, the matrimonial property of late Purabi Sinha would evolve
upon the legal heirs and representative of her husband line of succession
and not hers. Therefore, mere mentioning of certain property to show that
the plaintiffs have sufficient accommodation elsewhere, is not sufficient and
in view of aforesaid oath Vs. oath the merit of the case does not call for local
inspection commission or for adducing additional evidence and therefore the
prayer made in connected applications being CAN 7 and CAN 8 are meritless
and both connected applications are liable to be rejected.
30. In the instant case plaintiffs have sufficiently proved that PW2 who
had granted them license have already revoked their license.
Accommodation of the plaintiff as an licensee cannot be considered to be a
reasonable suitable accommodation. If a persons is in occupation of some
premises on sufferance i.e. to say under leave and license and which has
already been revoked at the pleasure of the licensor, it can never be said
that plaintiffs are in possession of reasonably suitable accommodation
because his right to remain depends entirely on sufferance and his
possession is precarious and unsecured in the extreme. This is also because
from the evidence of PW2 it is clear that the plaintiffs/land lord is living in
the house of their relative/brother and their relationships with relative/
brother must have become strained for not vacating licensors property even
after revocation of license and to that score also plaintiffs present
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accommodation is precarious and does not call for any additional evidence
to prove.
31. Therefore when the facts and circumstances of the case suggest that
the plaintiffs are compelled to live in a house owned by another as a
licensee, the possession of the plaintiffs being precarious cannot be said to
be reasonable suitable accommodation elsewhere and the requirement of the
premises occupied by their tenants must be held to be reasonable, as there
is nothing to show that the plaintiffs have any other reasonably suitable
accommodation elsewhere. As also the plaintiffs/land lord have no legal
right to their present accommodation.
32. In view of aforesaid discussion I find that the plaintiffs have
successfully proved all the three aforesaid requirements in order to get a
decree for eviction on the ground of reasonable requirement under section
13(1) (ff) of the West Bengal Premises Tenancy Act, 1956 and the trial court
was justified in granting decree to the plaintiff on that ground.
33. In view of above SA 325 of 2009 is allowed.
34. The impugned judgement passed by the court below dated January,
14, 2009 in Title Appeal No. 23 of 2007 is hereby set aside and the judgment
and decree dated August, 30th, 2006 passed by learned 3rd Additional Civil
Judge (Jr. Division) at Alipore in T.S. 1 of 2005 is hereby affirmed. All
pending connected applications are also dismissed in view of aforesaid
discussions.
Urgent photostat certified copy of this order, if applied for, be supplied to the
parties, on priority basis on compliance of all usual formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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