9911796707
TMI Blog2008 (4) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge, 5th Bench, City Civil Court at Calcutta in Ejectment Suit No. 191 of 1982. 2. The plaintiff filed the aforesaid Ejectment Suit No. 191 of 1982 for eviction of the appellant by describing him as monthly tenant under him in respect of the two rooms which had been partitioned and made into four rooms, one common bath and privy with open terrace on the first floor of the Premises No. 5A, Bhowani Dutta Lane, Calcutta - 700073. 3. So far the ground of reasonable requirement is concerned, the specific case of the original plaintiff was that he required the suit property for accommodation of himself and his wife who were then staying as licensee of his brother's house. The plaintiff due to strained relationship with his son was una ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the conclusion that the plaintiff reasonably required the suit property for his own use and occupation and he has no other suitable accommodation elsewhere. 8. As regards the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, the learned Trial Judge accepted the allegation of the plaintiff and in holding that the defendant constructed a new wall relied upon the Commissioner's report who indicated that a newly constructed wall was apparent. 9. Being dissatisfied, the tenant-defendant has preferred the present first appeal. 10. During the pendency of the appeal, the original plaintiff and his wife have died and on his death, his son was substituted. Subsequently, the substituted def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, Mr Jana submits that even the Commissioner was not called upon to decide whether there was any new construction on the first floor of the building and, therefore, the report on that point that there was a new construction is not acceptable. Mr Jana further submits that it would appear from the field note that in the said field note there is no indication as regards the inspection of the said new wall and the Commissioner has admitted such fact in his cross-examination. Mr Jana, therefore, prays for setting aside the judgment and decree passed by the learned Trial Judge. 13. Mr Ghosh, the learned advocate appearing on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff cannot get the benefit of the decree passed on the ground of reasonable requirement as the plaintiff did not claim reasonable requirement for their need and it will be a totally new cause of action of the legatee. 15. We are quite conscious that in an appeal preferred against grant of a decree on the ground of reasonable requirement an Appellate Court can take into consideration the subsequent events but in such a case, the subsequent even must have relation with the original claim of requirement made in the plaint. In the case before us, the original case of the plaintiff has totally wiped out and instead of that, the subsequent owner during the pendency of the appeal wants to assert his claim, which was not there in the ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he wall appeared to have been newly constructed. The learned Trial Judge further found that if the bathroom, privy and kitchen were not common and were included in the defendant's tenancy, it was not understood why the defendant raised brick built wall encroaching upon the open terrace. 19. We find that the original plaintiff in his evidence stated that the originally there were two rooms which were partitioned into four rooms and there was also bath and privy included in his tenancy. It is further asserted that there is an open terrace in front of this room, which is also within this tenancy. In cross- examination, the said plaintiff specifically admitted that the tenancy of the defendant comprised of four rooms, privy and one terra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decree of reasonable requirement now cannot be enjoyed by the grandson of the original plaintiff, as indicated above and, at the same time, the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act has not been established. 24. We, further, make it clear that we have not gone into the question of requirement of the grandson of the original plaintiff and dismissal of the appeal will not stand in the way of the said grandson in filing a fresh suit on such ground. In view of the disposal of the appeal itself, we dismiss the application for vacating the stay filed by the respondent. 25. In the facts and circumstances, there will be, however, no order as to costs. R.N. Banerjee, J. 26. I ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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