Bibek Chaudhuri, J. - One Smt. Uma Rakshit, since deceased and her son Sri. Amitava Rakshit instituted a suit for eviction, recovery of khas possession and mesne profits against one Bijay Bhusan Guha @ B.B Guha, since deceased in the 8th Court of the learned Civil Judge (Senior Division) at Alipore which was registered as Title Suit No.47 of 1990. The said suit was decreed on contest by the learned trial judge by judgment and decree dated 31st August, 1998. The defendant/tenant preferred Title Appeal No.263 of 1998 assailing the judgment and decree passed by the learned trial court in the above mentioned suit which was heard and disposed of by the learned Additional District Judge, Fast Tract, 4th Court at Alipore, 24 Parganas (South). The learned Judge in First Appellate Court allowed the appeal by setting aside the judgment and decree passed in the said suit and remanded the suit for fresh trial with a direction to the said Amitava Rakshit, plaintiff No.2 to file fresh application for commission to show his requirement in the suit house and also directing the learned trial judge to dispose of the suit afresh on the basis of the report of the Local Inspection Commissioner. The instant first miscellaneous appeal is filed by the substituted plaintiffs/appellants assailing the judgment and order of remand passed by the learned 1st Appellate Court.

2. Salient facts necessary for disposal of the instant appeal are narrated below:-

3. One Dr. Bibhuti Bhusan Rakshit was the original owner of premises No.26, S.R Das Road under police station Tollygang in the district of South 24 Parganas. The said Dr. Rakshit died intestate leaving behind his widow, one son and two married daughters, namely, Smt. Suchisri Das and Smt. Santisri Roy as his legal heirs and representatives. By virtue of a registered deed of partition and family settlement, original plaintiffs, i.e., the widow of Dr. B.B Rakshit and their son jointly got three flats in three different floors of the suit house with proportionate right in the land and right to use the common areas. The original defendant was a tenant under the plaintiffs in respect of western side flat on the first floor of the suit premises at a monthly rental of Rs.390/- payable according to English calendar month. The plaintiffs further pleaded in the plaint that the widow of the original owner Dr. Rakshit was in occupation of a flat situated on the second floor of the suit premises. Her daughter Santisri Roy had been staying with her in the said second floor flat with her husband and son as licensees. By virtue of partition and family settlement Santisri Roy was allotted with a flat on the front portion of the first floor of the suit house which was also under occupation of another tenant. The western side flat of the ground floor of the premises was in occupation of Smt. Suchisri Das, another daughter of the original plaintiff No.1, since deceased. The flat which was allotted to Suchisri by virtue of the said deed of partition was under occupation of a tenant against whom she instituted a suit for eviction. Plaintiff No.2 Amitava Rakshit is an engineer and obtained PHD degree from Texus A.M University, USA. He has been carrying on business of computer software in USA. He decided to come back to India permanently with his wife and son and intended to start his own business in Calcutta. Present accommodation of the plaintiffs was inadequate and insufficient. Therefore, they instituted the suit for eviction against the original defendant/tenant, after service of notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (hereafter described as the said Act).

4. The original defendant contested the suit by filing written statement. He disputed his relationship of landlord and tenant with the plaintiff No.2. He also denied the case of the plaintiff regarding reasonable requirement. It was further pleaded by the defendant that the plaintiff No.2 permanently resides in USA and he would never return to Calcutta as alleged. He also disputed legality, validity and sufficiency of the ejectment notice and also denied service thereof.

5. On the basis of the pleadings, the learned trial judge framed as many as eight issues. Parties led evidence in respect of their respective case and defence and on the basis of the evidence on record, both oral and documentary, learned trial judge decreed the suit in favour of the plaintiffs.

6. Being aggrieved by and dissatisfied with the said judgment and decree passed in Title Suit No.47 of 1990 on 31st August, 1998 by the learned Civil Judge (Senior Division), 8th Court at Alipore, the original defendant preferred Title Appeal No.263 of 1998. The said appeal was heard by the learned Additional District Judge, Fast Track, 4th Court at Alipore, South 24 Parganas. The learned Judge in 1st Appellate Court passed the impugned judgment allowing the appeal and remanding the suit back with certain directions that already recorded hereinabove.

7. It is pertinent to mention at the outset that during pendency of the first appeal the original plaintiff No.1 had expired. Her daughters, namely, Smt. Santisri Roy and Suchisri Das have been substituted as the plaintiffs/appellants in place of original plaintiff No.1, since deceased. Similarly, the defendant/respondent also died during pendency of the appeal. His legal heirs and representatives were also substituted as defendants/respondents.

8. The instant appeal came up for hearing on the point on admission before the Division Bench of this Court on 3rd February, 2012 when the Division Bench Passed the following order:-

"Prima facie case has been made out to stay the operation of the said judgment and decree passed by the learned Appellate Court below. We intend to here out the appeal. However, a notice should be served upon the respondents so that we can dispose of the stay petition including the appeal in the presence of the respondents/opposite parties."

9. In view of such order of admission of the appeal, lower courts record were called for, and the appeal along with the application for stay were taken up for hearing.

10. Mr. Amal Krishna Saha, learned Advocate for the appellants submits that the learned trial court decreed Title Suit No.47 of 1990 for eviction against predecessor-in-interest of the respondents on the ground of reasonable requirement. Mr. Saha draws my attention to page 25 of the paper book on perusal of which it is ascertained that the learned trial court elaborately discussed about the requirement of the original plaintiffs on due consideration of the evidence on record as well as the commissioners report. The learned trial court found that the appellants are in possession of two bedrooms on the top floor of the suit house and two bed rooms on the ground floor of the suit house and two bedrooms on the ground floor along with the covered dalan, a covered varanda, a kitchen and a bath cum privy on the western side of the ground floor of the suit house. The learned trial judge also found that the existing accommodation of the appellants is not sufficient and the tenanted premises is reasonably required for the plaintiffs/appellants as well as for the persons for whose benefit the premises is held by them.

11. Mr. Saha next draws my attention to the judgment delivered by the learned Judge in 1st Appellate Court. He refers to page 49 of the paper book. It is found that the learned 1st Appellate Court on due consideration of the local inspection report (Exhibit-9), held that the plaintiffs/appellants were in possession of ten rooms in the suit house. Subsequently, the learned Judge in the impugned judgment observed as follows:-

"From Exhibit-9 it is not clear to me at present how many rooms are in possession of the plaintiff. After the death of Uma Rakshit, how many rooms remain vacant, a clear picture should come before this learned Court. So a fresh commission is required to meet up the present bone of contention. Fact is that tenancy cannot be a bar to the landlord for his requirement which is legal one but at the same time it is to be judged how many rooms are left at present in the suit house for the occupation of the plaintiff. I think the said dispute may be resolved by the report of the commissioner if the suit house be inspected again."

12. With this finding, the learned Judge in 1st Appellate Court reversed the judgment and decreed passed by the learned trial court and sent the suit back on remand with a direction upon the leaned trial court to appoint an Advocate Commissioner for local inspection of the suit house to ascertain the present accommodation of the appellants and on the basis of the said report the learned trial judge was directed to pass fresh judgment in accordance with law. According to Mr. Saha the finding of the learned 1st Appellate Court as quoted above is absolutely contradictory with the finding where the learned Judge held that as per the Commissioners report (exhibit-9), the plaintiffs/appellants are in possession of ten rooms in the suit house. It is submitted by Mr. Saha that the learned Judge in 1st Appellate Court could have disposed of the appeal on the basis of the local inspection report which was marked as exhibit-9 during the trial of the suit. According to Mr. Saha the order of remand is not at all justified and liable to be set aside.

13. Mr. Budhadeb Ghosal, learned Advocate on behalf of the respondents, on the other hand, submits that there are certain undisputed facts and circumstances in the instant case. The facts and circumstances are as follows:-

i) One Bibhuti Bhusan Rakshit, since deceased was the original owner of premises No.26, S.R. Das Road within P.S Tollyganj.

ii) He died in the year 1979 leaving behind his widow Uma Rakshit, one son Amitava Rakshit and two daughters namely Suchisri Das and Santisri Roy.

iii) After the death of Bibhuti Bhusan, his legal heirs inherited the said premises and it was partitioned sometimes in 1981 by a registered deed of partition amongst the cosharers.

iv) By virtue of the said deed of partition, Smt. Uma Rakshit, widow of Bibhuti Bhusan and Amitava Rakshit jointly became the owners of entire second floor with chilekotha room, western side flats on the first floor and also the ground floor of the said premises.

v) The predecessor of the respondents was the tenant in respect of the western side first floor flat of the said premises.

vi) Smt. Santisri Roy exclusively got front portion of the first floor of the said premises and Smt. Suchisri Das got the front partition of the ground floor.

14. From the report of the local inspection (Exhibit-9) it is ascertained that there are four bed rooms, two store rooms, two sitting rooms, kitchen, dining room, covered dalan, varanda and bath cum privy on the second floor of the said premises. During the life time of Smt. Uma Rakshit, she used to stay on the second floor of the said premises. Smt. Santisri Roy along with her family used to reside with her mother on the second floor of the suit house as the first floor flat of the suit house which was exclusively allotted to the said Santisri Roy was under occupation of a tenant. The plaintiffs/appellants were also in possession of two bed rooms, another small room, one covered varanda, one covered dalan and tin shade room on the western side of the ground floor of the suit house. It is pointed out by Mr. Ghosal that during the pendency of the First Appeal, Smt. Uma Rakshit died on 10th July, 2007. After the death of the plaintiff No.1, her two daughters were substituted in place of deceased plaintiff No.1. At the time of institution of the suit the plaintiff pleaded that Smt. Santisri Roy used to reside with the original plaintiff No.1 on the second floor of the suit house as a licensee. But during the pendency of the suit and appeal arising out of the suit, Smt. Santisri got possession of the front portion of the first floor in execution of decree passed against the tenant who was in possession of the front portion flat on the first floor of the suit house. Secondly, after the death of, plaintiff No.1, her portion is now being possessed by the plaintiff/appellant No.2. Therefore, present accommodation of the plaintiff No.2 has been increased.

15. Mr. Ghosal further submits that requirement of the landlord is to be considered taking into account his bona fide need on the date of delivery of judgment. The Court must take into account the changing circumstances to the effect that original plaintiff No.1 has expired. Secondly, the daughters of the original plaintiff No.1 got possession of their respective portions which were allotted to them by virtue of the deed of partition executed by and between the parties in the year 1981 and all other relevant circumstances as they stand on this date. The present picture as to the existing accommodation of the appellants has not been produced at the time of delivery of judgment in Title Appeal No. 263 of 1998 Therefore, the learned 1st Appellate Court remanded the suit back to the trial court with a direction to hold local inspection afresh and on the basis of such inspection report, the learned trial court was directed to pass judgment in accordance with law.

16. According to Mr. Ghosal there is no illegality in the impugned judgment and order of remanded and the instant appeal is liable to be set aside.

17. Well settled is the proposition that in a suit for eviction on the ground of reasonable requirement it is for the landlord to prove that he not only requires the tenanted premises for his own use and occupation as well as for the benefit of the persons for whom the premises is held, but also that his requirement is reasonable. What is material is that the landlord, as a matter of fact, bona fide and reasonably is in need of the tenanted premises for residence of his family and for that he has no other premises than one from which eviction is sought. There must be an element of need before a landlord can be said to require the premises for his own use and occupation. The connotation of the term "need or requirement" should not be artificially extended nor its language so undoubtedly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction.

18. It appears from the record that the suit was filed in the year 1990. It was pleaded in the plaint that plaintiff No.1 Uma Rakshit, since deceased reasonably required four rooms for herself and also for her younger married daughter Smt. Santisri Roy, her husband and their son who used to reside with plaintiff No.1 as licensee because at the time of institution of the suit, the flat that was allotted to Santisri Roy by virtue of the deed of partition was under occupation of a tenant. It was also pleaded that plaintiff No.2 Amitava Rakshit wanted to return to Calcutta from USA and start a business of his own. Requirement of plaintiff No.2 was also detailed out in the plaint.

19. After the decree was passed in the suit against the defendant/tenant and during the pendency of the first appeal, plaintiff No.1 died. Therefore, the requirement of plaintiff No.1 is no longer there at the time of disposal of the first appeal. The Honble Supreme Court in the case of Pratap Rai Tanwani vs. Uttam Chand, 2004 8 SCC 490 [LQ/SC/2004/1004] held that the crucial date on which bona fide or reasonable requirement is to be considered is the date of the petition for eviction. During the long interval that a lis may creep through long years from the start to the ultimate termini in order to judicial system, many events are bound to take place which might happen in relation to parties as well as the subject matter of lis. If the cause of action is to be submerged in such subsequent events on account of malady of the system, it would shatter the confidence of the litigant despite the impairment already caused. The Supreme Court observed in the case of Sail Nagjee Purushotham & Co. Ltd. vs. Vindabai Mabhulal, 2005 8 SCC 252 [LQ/SC/2005/1009] that ordinarily the eviction suit or petition would relate to the date when the suit or petition is filed and bona fide requirement as on that date would have to be considered unless subsequent event materially changed the ground of relief. Subsequent events may in some situation be considered to have overshadowed the genuineness of landlords need. But only if they are of such nature and dimension as to completely eclipse such need.

20. Therefore, following the ratio laid down by the Honble Supreme Court, this Court in Shila Sanyal vs. Probhat Kumar Paul, 2005 3 CalHN 38 held that it is the duty of the court to consider change of circumstances occurring at the time when eviction suit is heard.

21. Thus reasonable requirement of the appellants are required to be considered taking into account the changed circumstances after the death of original plaintiff No.1 and recovery of possession of the portion of the suit house which was allotted to substituted appellant No.1(a) Smt. Santisri Roy.

22. The short question, involved in the instant appeal is as to whether the learned 1st Appellate Court was justified in holding that there should be a local inspection afresh to ascertain the requirement of the plaintiffs/appellants in view of changing circumstances and subsequent events as stated above.

23. In the impugned judgment passed by the learned 1st Appellate Court, the learned Judge did not come to such finding that local inspection report in respect of the suit house (Exhibit-9) suffers from suppression of any material fact in terms of the existing accommodation of the appellants in the suit house. On the contrary the learned Judge held in his judgment that the local inspection commissioner found that the appellants were in possession of ten rooms. No allegation was made from the side of the respondent/tenant that the appellant had suppressed their existing accommodation for which fresh local inspection is required. The learned 1st Appellate Court could have disposed of appeal on the basis of (Exhibit-9) and taking into consideration the subsequent events on account of both of the plaintiff No.1.

24. In view of the above discussion, I am of the considered opinion that the learned Judge in 1st Appellate Court committed substantial error in law by remanding the suit back to the learned trial court with a direction to hold local inspection afresh and then to write down fresh judgment in the suit.

25. For the reasons stated above the impugned judgment and order of remand passed in Title Appeal No.263 of 1998 cannot be sustained. The instant appeal is therefore allowed on contest, however without cost.

26. The judgment and order of remand passed by the learned District Judge, Fast Track, 4th Court at Alipore in Title Appeal No.263 of 1998 dated 23rd December, 2011 is set aside.

27. The learned Additional District Judge, Fast Track, 4th Court at Alipore is directed to dispose of Title Appeal No.263 of 1998 on the basis of evidence on record and the local inspection report (Exhibit-9) as well as taking note of subsequent events within two months from the date of receipt of the lower court record.

28. With the disposal of appeal, CAN 841 of 2012 is also disposed.

29. Department is directed to transmit the lower court records forthwith.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.