SANKAR MUKHERJEE v. ATULANANDA — 1986 DIGILAW 262 (CAL)

AJIT KUMAR SENGUPTA, J. ( 1 ) THE present appellant filed the Title Suit No. 131 of 1978 in the Court of Munsif, Second Additional Court, Alipore. It is a suit for ejectment of a premises tenant. A decree for ejectment was sought for on the ground that the defendant No. 1 sublet the premises in question to the defendant No. 2. The learned Munsif dismissed the suit on the finding that the plaintiff failed to prove that the defendant No. 1 was a sub-tenant in the premises under the defendant No. 1. The learned First Appellate Court affirmed that finding and dismissed that appeal. Hence the second appeal by the plaintiff. The question of subtenancy was the only point that was canvassed in this appeal. ( 2 ) THE plaintiff's case is mainly this. The defendant No. 1 was a monthly tenant under the plaintiff in respect of the premises No. 5/1h, Keyatala Road described in the schedule to the plaint at a rent of Rs. 550/- per month payable according to English calendar month. Defendant No. 1 is in police service and he was inducted into the suit premises in 1965. The premises was taken for residential purposes and the defendant No. 1 himself was in occupation of the premises till he was transferred from Calcutta to Durgapur in early 1974. The defendant No. 1 is still posted at Durgapur for about 4 years. The defendant No. 1 is not in occupation of the suit premises. Immediately on his transfer he sublet the suit premises to one Bijan Kumar Nag who lived there for about 2 years. On the said Bijan Kumar Nag vacating the suit premises it is again to be sublet to one Sri Bimal Nag the defendant No. 1 who is still in occupation of the same. Both Bijan Nag and Bimal Nag have independent and substantial income. After the defendant No. 1 left for Durgapur the plaintiff generally received rent by money orders. Considering the salary of the defendant No. 1, the ways of his living etc. it is improbable that the defendant No. 1 by month for a period of about 4 years just for the sake of retaining the suit premises in. expectation of his transfer to Calcutta at an uncertain date. Sending rents from Durgapur was merely a camouflage. Considering the salary of the defendant No. 1, the ways of his living etc. it is improbable that the defendant No. 1 by month for a period of about 4 years just for the sake of retaining the suit premises in. expectation of his transfer to Calcutta at an uncertain date. Sending rents from Durgapur was merely a camouflage. The plaintiff verily believes that persons who were and are in occupation of the suit premises during the absence of the defendant No. 1 pay rents to the defendant No. 1. A scrutiny of the accounts of the defendants Nos. 1 and 2 and the relevant persons would support the contention of the plaintiff. In the premises the defendant No. 1 is guilty of having sublet and/or parted with possession of the suit premises in 1974 and again in 1977 without the consent of the plaintiff. The defendant's tenancy was terminated with effect from the expiry of the month of November, 1977 by a notice of ejectment which the defendant received on 8-10-77. Both the defendants Nos. 1 and 2 filed the written statement denying the allegation of sub-tenancy. The defendant No. 1 makes the following case in his written statement. The defendant who is in police service was sent on deputation by the Vigilence Department at Durgapur for a specified period and is due to come back to his original department in Calcutta within a short time. The defendant was all along and still now is possessing the suit premises and is using the same for residential purpose. The plaintiff's case that the defendant has not been in occupation of the suit premises and that on his transfer to Durgapur he sublet the suit premises to one Sri Bijan Kumar Nag and thereafter to Bimal Nag the defendant No. 1 is not true. The defendant was sent on deputation to Durgapur where he has not been transferred permanently. The period of deputation being 3 years the defendant did not remove his establishment from the suit premises and the defendant and his family members as usual live in and occupy the suit premises. Bijan Kumar Nag and Bimal Kumar Nag did never and do not even now live in the suit promises. The said two gentlemen are the brothers of the defendant's wife and they have their own house just by the side of and very close to the suit premises. Bijan Kumar Nag and Bimal Kumar Nag did never and do not even now live in the suit promises. The said two gentlemen are the brothers of the defendant's wife and they have their own house just by the side of and very close to the suit premises. They do not have to live in the suit premises. It is true that the defendant's said brother-in-law have independent income and they live with their family members in their father's rented house at 5/1a, Keyatala Road, Calcutta-29. They have no reason or necessity to occupy the suit premises as sub-tenant as alleged. ( 3 ) THE plaintiff's allegation that sending rent from Durgapur was a camouflage and that the defendant was guilty of having sublet or parted with possession of the suit premises in 1974 and 1977 are denied. The defendant No. 2 in a separate written statement in effect supported the allegations made in the written statement of the defendant No. 1. ( 4 ) IN his affidavit for taking note of subsequent events the defendant has stated that his period of deputation at Durgapur being over he has returned to Calcutta and is occupying the suit premises. The facts stated in this affidavit remained unchallenged. It has already been stated that the courts below could not uphold the plaintiff's plea of sub-tenancy. ( 5 ) THE learned advocate for the appellant contended that the second appeal lies against the finding of the court below because he argued that this finding of fact has been arrived at by the court below by ignoring important evidence namely, the electoral role in which the suit premises has been described as the residence of Bimal the defendant No. 1 and his wife Sulata (Ext. 8) and the letter of the defendant's advocate, Ext. B and that the legal inference drawn by the courts below from the finding of fact of possession of Bimal in the suit premises was erroneous. The learned advocate for the respondent after citing the decision reported in AIR 1974 SC 280 ( (Krishnawati v. Hans Raj) and AIR 1970 SC 986 (Bhagwan Dass v. Rajdev) argued that the finding with regard to the question of sub-tenancy being a finding of fact no second appeal lies. As the electoral roll Ext. 8 and the letter of the defendant's advocate Ext. As the electoral roll Ext. 8 and the letter of the defendant's advocate Ext. 8 have not been considered by the courts below while arriving at the finding regarding the question of sub-tenancy that finding cannot be accepted as conclusive and therefore can be looked into in second appeal. ( 6 ) BOTH the courts below disbelieved the defendant's case that Bimal the defendant No. 1 was not in occupation of the suit premises. They found mainly on consideration of the facts that Bijan and Bimal were brothers of the defendant's wife and the evidence of the plaintiff that he took the defendant No. 1 to be a care-taker, that it is not unnatural that the defendant No. 1 would ask his brother-in-law to look after the suit premises as a caretaker and that therefore from the mere occupation of the defendant No. 1 of the suit premises it could not be held that he was a sub-tenant in the suit premises. ( 7 ) THE learned advocate for the appellant seriously challenged the aforesaid finding of the court below. He contended by analysing the written statement that the case made out by the court below that possession of the suit premises by Bimal was the possession as a care-taker was a third case which could not be made in view of the pleadings. The learned advocate for the appellant Sri Saktinath Mukherjee, a very eminent advocate of the court on being asked as to whether he wants the court to presume sub-tenancy on the basis of an adverse inference to be drawn on the ground that the defendant's case that Bijan and Bimal never lived in the suit premises has been found to be false, the learned advocate replied as follows :- "sub-tenancy will have to be presumed on the basis of the adverse inference because the defendant, though otherwise able and in possession of material facts, could not offer any explanation for the possession of Bimal and the possession of Bimal was such that both the defendant No. 1 and Bimal had to come out with a total denial of Bimal's possession both in the pleading and in evidence and no explanation whatsoever had offered. " He cited before me the decision reported in AIR 1954 SC 758 (Sheodhari Rai v. Suraj Prasad Singh) in support of his proposition that the Court cannot make out a new case for the defendant not only not made out in the written statement but wholly inconsistent with that made out in the written statement, and AIR 1970 SC 2025 (G. S. Mahalaxmi v. Shah Ranchhoddas) stating that the defendant cannot be allowed to set up a case wholly inconsistent with that pleading. He cited before me the decision reported in AIR 1969 SC 1291 (Gappulal v. Thakurji Shriji Dwarkadheeshji) in which it has been held that as sub-tenancy was denied the Court have no jurisdiction to decide if the sub-tenancy was made with permission because one excludes the other. To decide the question of applicability of the principles enunciated in several cases the facts of the case should be carefully analysed. The learned advocate for the appellant also drew attention to Section 114 (g) of the Evidence Act stating hat the court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. It should be noted that presumptions are logical inference drawn from given facts and are discretionary. So, before drawing any presumption the facts of each case should be thoroughly scrutinised and considered in order to ascertain whether the presumption desired to be drawn may be drawn in the particular case in question. ( 8 ) THE pleadings of the respective parties to which my attention was drawn by the learned advocate for the plaintiff by appellant who analysed before me the respective cases have already been stated at the outset. The learned advocate for the appellant after reading the pleadings contended before me that the evidence of the defendant (D. W. 1) "when I left for Durgapur I kept certain files in the suit premises and I kept my keys for the house in the house of my father-in-law and requested them to look after the house" contradicts the case made out in the written statement "that the defendant did not remove his establishment from the suit premises and the defendant and his family members as usual live in and occupy the suit premises". It will be noted here that the house of the defendant's father-in-law at 5/1a, Keyatala Road is adjacent to the suit premises. He pointed out that the evidence of the defendant (D. W. 1) that he, and Bimal Babu never resided at 5/1h, Keyatala Road is contradicted by the electoral roll exhibit 8 wherein the suit premises that is, 5/1h, Keyatala Road is shown as the residence of Bimal and his wife Sulata. He also drew my attention to the evidence of the defendant (D. W. 1) "i do not know whether Bimal Babu on 8-3-80 left the suit premises for Southern Park" and wanted me to conclude on the basis of this evidence that Bimal therefore in the suit premises before he left for Southern Park". The evidence of the defendant (D. W. 1) that Bimal resided in his father's place at 5/1a, Keyatala Road could not be believed by the courts below and court found that Bimal resided in the suit premises. The evidence of the P. Ws. 2 and 3 also supports the finding of the courts below. Considered with the other evidence discussed by the court below support the finding of the appeal court that the defendant No. 1 Bimal resided in the suit premises. ( 9 ) THE learned advocate for the appellant contended that the evidence of the defendant that "my wife resides in Calcutta and sometimes she comes to Durgapur to meet us" is contradicted by the defendant's lawyer's letter exhibit B wherein it is stated that it is absolutely necessary that the defendant's wife must have a Ration Card in her name and that her Ration Card at Durgapur should be surrendered to the Rationing Office, Durgapur and Certificate obtained therefrom to be sent to Calcutta for obtaining Ration Card here in her name. He submitted that the contents of exhibit B which the defendant No. 1 in his cross-examination admitted to be a letter of his lawyer are admissible in evidence in view of the decision reported in AIR 1972 SC 608 . He submitted that the contents of exhibit B which the defendant No. 1 in his cross-examination admitted to be a letter of his lawyer are admissible in evidence in view of the decision reported in AIR 1972 SC 608 . In that case the Police report about meetings held were admitted and contents thereof were relied upon because they were marked without objection and it was held that once the documents were properly admitted the contents were also admitted in evidence and were held to be relevant because of the first part of S. 35 of the Evidence Act. In the present case Ext. B not being a public document its contents cannot be held to be relevant under S. 35 of the Evidence Act. The learned advocate for the appellant argued that Ext. B was relevant under S. 8 of the Evidence Act as showing agent's conduct. I am unable to accept this contention of the learned advocate for the appellant before statements made in this letter in the absence of other evidence cannot be accepted as conduct admissible under Section 8 of the Evidence Act. A lawyer's statement showing his conduct in giving a particular advice to his client cannot be accepted as the conduct of the client. ( 10 ) THE learned advocate for the appellant submitted that the evidence of Bimal, the defendant No. 1 (D. W. 4) that he u-as at 55/a, Hindustan Park from 1975-77 August as a care-taker is falsified by the entry in the electoral roll Ext. 8 and the evidence of the defendant No. 1 to that effect is also contradicted by Ext. 8, showing that defendant No. 1 Bimal resided at 5/1 H that is the suit premises. The learned advocate for the appellant submitted that the evidence of the defendant (D. W. 1) that "bijan Kumar Nag resides at New Alipore at present since 2 years back" supports the evidence of the plaintiff (P. W. 1) that previously Bijan resided in the suit premises and thereafter Bimal began residing in the suit premises from Feb. 1977 till March 8, 1980 and that the evidence of the defendant No. 1 (D. W. 4) contradicts that he resided at Hindusthan Park contradicts the evidence of defendant (D. W. 1) that the defendant No. 2 resided in his father's premises at 5/1a. Keyatala Road. 1977 till March 8, 1980 and that the evidence of the defendant No. 1 (D. W. 4) contradicts that he resided at Hindusthan Park contradicts the evidence of defendant (D. W. 1) that the defendant No. 2 resided in his father's premises at 5/1a. Keyatala Road. The learned advocate for the appellant contended that as the defendant No. 1 has proved to have resided in the suit premises the onus lies on the defendant No. 1 to prove in which capacity the defendant No. 1 resided there, whether as a licensee or as a sub-tenant. He cited before me the decisions reported in (1978) 82 Cal WN 684 (Probhabati Das v. R. R. Joneja) in support of his proposition that in such a case it is for the tenant to establish that in respect of the possession of such person under him there is no subletting and that the failure to produce relevant evidence on this aspect may entitle the court to make an adverse inference against him. He also cited the decision reported in AIR 1980 Cal 381 (Shantilal v. Mukund Lal) stating that when others are found to be in exclusive possession and there is nothing to show that tenant retained in control then in spite of landlord's failure to prove consideration sub-tenancy may be presumed. He referred to the decision reported in (1982) 86 Cal WN 926 Corpn. of Cal v. E. J. Commercial Co. wherein paying guests were held to be sub-tenants. He also cited a decision reported in (1977) 2 Cal LJ 153 (Anath Bandhu Chakraborty v. Ashim Mukherjee) to show that inference from circumstantial evidence regarding subletting can be made. He also referred to the decision reported in (1964) 68 Cal WN 786 (S. P. Agarwalla v. Anil) wherein on the basis of the evidence on record a partnership deed was construed to be a deed of lease. Thus showing hidden leases. He contended that the inference of the court below that Bimal the defendant No. 1 possessed as care-taker cannot be made in view of the case made out in the written statement stating that Bimal and Bijan never possessed the suit premises and that in the circumstances, no new case can be made out at trial. Thus showing hidden leases. He contended that the inference of the court below that Bimal the defendant No. 1 possessed as care-taker cannot be made in view of the case made out in the written statement stating that Bimal and Bijan never possessed the suit premises and that in the circumstances, no new case can be made out at trial. He cited before me the decision reported in (1921) 48 Ind App 214 (Ma Shwemya v. Mauns Mohnaung) in which an amendment to introduce a contract in place of the one which was not proved at trial was disallowed. He contended that in view of the defence case the onus shifts on the defendant to explain the possession of Bimal the defendant No. 1 who has been found to be in possession of the suit premises by the courts below. ( 11 ) EACH case is to be considered in the light of the circumstances of that case. The point is whether from the fact that Bimal the defendant No. 1 was found to be in possession of the suit premises for sometime it can be presumed in the circumstances of this case that Bimal possessed the suit premises as a sub-tenant. ( 12 ) IN this connection an extract from the case reported in (1978) 82 Cal WN 684) (Probhabati Das v. R. R. Joneja) is quoted below :- "subletting like lease is a transfer by the lessee of a right to enjoy the leased property in whole or in part for a certain time or in perpetuity in consideration of a price paid or promised. . . . . . If a person is given an exclusive right of enjoyment of property or a portion thereof for consideration of anything of value such right may amount to an interest in property as sub-lease or subletting. When a person is found to be in possession of property apparently exclusive under a tenant it may not always be possible for the landlord to establish that such parting or possession amounts to subletting. In such case, when possession by any person under a tenant is not disputed, it will be for the tenant to establish that in spite of the possession of the premises or portion thereof by such person under him there is no subletting as contemplated in law, as the relevant facts are within his special knowledge. In such case, when possession by any person under a tenant is not disputed, it will be for the tenant to establish that in spite of the possession of the premises or portion thereof by such person under him there is no subletting as contemplated in law, as the relevant facts are within his special knowledge. Failure to produce relevant evidence on this aspect may entitle the court to make an adverse inference against him. " In the present case according to the learned advocate for the appellant the defendant in view of the case made out in the written statement was not entitled to be heard to explain the change of possession of the defendant No. 1 in the suit premises and that the court was not entitled to make an inference that Bimal the defendant No. 1 a close relative of the defendant No. 1 occupied the suit premises as a care-taker in spite of the plaintiff's evidence that he was under the impression that Bimal Kumar Nag had come over as a care-taker. Plaintiff P. W. 1 states that "bimal Kumar Nag had come over to the suit premises in February, 1977. I did not take any legal action that the latter had come over as a care-taker. That thereafter Bimal Kumar Nag had himself informed me that he is residing in the suit premises as a sub-tenant and this was confirmed by the people of our locality. " It may be noted here that Bimal (D. W. 4) denied that he told the plaintiff that he was residing in the suit premises as a sub-tenant and none of "the people of the locality" has come to depose that Bimal was residing there as a sub-tenant. However according to the learned advocate for the appellant the people of the locality need not be examined to depose to that effect because according to him the case is to be disposed of on the basis of presumption. The cases he has cited show that exclusive right of enjoyment of property or a portion thereof must be found before a presumption of sub-tenancy can be made. Before making any such presumption it must be found that there was nothing to show that the tenant retained control and that the person alleged to be subtenant was given an exclusive right of enjoyment of property or a portion thereof. Before making any such presumption it must be found that there was nothing to show that the tenant retained control and that the person alleged to be subtenant was given an exclusive right of enjoyment of property or a portion thereof. All the circumstances should be thoroughly scrutinised before finding whether the presumption sought to be drawn can be duly drawn. ( 13 ) IT is true that the defendant No. 1 the tenant has made a false statement to the effect that his brother-in-law never lived in the suit premises. The question is whether from that fact that the defendant made a false statement that his brother-in-law never lived in the suit premises it can be presumed that Bimal Kumar Nag was in exclusive possession of the suit premises for the period he possessed the same and that the defendant No. 1 never retained in control over the same during that period. It has already been noted that according to the learned advocate for the appellant as the defendant's case that Bimal never lived in the suit premises has been found to be false the defendant was not entitled to explain at the time of trial in what capacity Bimal possessed the suit premises. The decisions he cited in support of this contention has already been noted above. ( 14 ) THE defendant's case, to repeat on the basis of which the learned advocate for the appellant wants the court to presume that Bimal resided in the suit premises as subtenant is mainly this : "the defendant as already stated above, was sent on deputation but he has not been transferred to Durgapur permanently the period of deputation being three years the defendant did not remove his establishment from the suit premises and the defendant and his family members as usual live in and occupy the suit premises". . . . . . . , "that Sri Bijan Kumar Nag and Bimal Kumar Nag did never and do not even now live in the suit premises. The said two gentlemen are the defendant's brother-in-law and they have their own house just by the side of and very close to the suit premises. " These statements are made in paragraph 8 of the written statement. , "that Sri Bijan Kumar Nag and Bimal Kumar Nag did never and do not even now live in the suit premises. The said two gentlemen are the defendant's brother-in-law and they have their own house just by the side of and very close to the suit premises. " These statements are made in paragraph 8 of the written statement. In paragraph 10 of the written statement the defendant denies the plaintiff's allegation made in paragraph 5 of the plaint that the defendant was guilty of having sublet and/or parted with possession of the suit premises in 1974 and in 1977. ( 15 ) THE statements in paragraph 8 of the written statement quoted above if properly construed means that the defendant left the suit premises for Durgapur but did not remove his establishment from the suit premises because the defendant admits there that "he was sent on deputation" to Durgapur. The subsequent statement that the defendant and his family members as usual live in and occupy the suit premises is of exaggeration. The entire statement made in paragraph 8 of the written statement if properly construed means that the defendant did leave the suit premises when he was sent on deputation to Durgapur but that he did not remove his establishment and that he retained his tenancy right over the same. Now the evidence is to be considered to ascertain whether Bimal the defendant No. 2 was ever in exclusive possession of the suit premises and that the defendant never retained in control aver the same. The onus to explain in which capacity Bimal lived in the suit premises would have shifted to the defendant if it could be found that Bimal was in exclusive possession of the suit premises and that the defendant never retained in control over the same. The onus to explain in which capacity Bimal lived in the suit premises would have shifted to the defendant if it could be found that Bimal was in exclusive possession of the suit premises and that the defendant never retained in control over it during that period. From the fact that the defendant's assertion in the written statement that Bimal never resided in the suit premises has been found to be false it cannot be presumed that Bimal was in exclusive possession of the suit premises and that the defendant No. 1 never retained in control over it. From the fact that the defendant's assertion in the written statement that Bimal never resided in the suit premises has been found to be false it cannot be presumed that Bimal was in exclusive possession of the suit premises and that the defendant No. 1 never retained in control over it. In this connection the learned advocate for the defendant/ respondent drew my attention to some of the circumstances of this case which are noted below. The unchallenged evidence of the defendant (D. W. 1) is that he went on deputation to Durgapur in November 1973. The premises where plaintiff resides and the suit premises lie within the same compound. The letters written by the plaintiff to the defendant at Durgapur for the period from 11-4-74 to 25-11-74 are Exts. A to A5. Notice to this suit is dated 6-10-77 and this suit was filed on 23-2-78. All the letters Exts. A to A5 have been marked on admission. Ext. A shows that the plaintiff is known to defendant's mother-in-law. By Ext. A1 dated 20-5-74 and Ext. A2 dated 20-6-74 the plaintiff asked the defendant to vacate the suit premises. In Ext. A5 dated 25th November, 1974 the plaintiff states ". . . . . . . . till early part of this year you have stayed in the house and all along tendered the rent in cash in exchange of which I have personally handed over the formal receipt to you. I have never asked you to alter this arrangement nor we have left Calcutta for Durgapur allowing some other family to occupy the house at my request or consent. How do you therefore expect me td send the formal receipt to you every month under registered post with A/d. . . . . . . . . . . . . . . , However I may suggest that on your confirmation I may handover the formal receipt every month to Mr. B. K. Nag who is now occupying the house at 5/1h, Keyatala Road, "that is the suit premises. Mr. B. K. Nag is defendant No. 2. Although the defendant left for Durgapur on deputation in November, 1973 it is admitted in this letter Ext. A5 that the defendant stayed in the house till the early part of 1974. ( 16 ) THE learned advocate for the respondent submitted with reference to the letters Exts. Mr. B. K. Nag is defendant No. 2. Although the defendant left for Durgapur on deputation in November, 1973 it is admitted in this letter Ext. A5 that the defendant stayed in the house till the early part of 1974. ( 16 ) THE learned advocate for the respondent submitted with reference to the letters Exts. A1 dated 20-5-74, Ext. A. 2 dated 20-6-74 and Ext. A5 dated 25-11-74 that as the plaintiff was wanting to get the suit premises vacated, the plaintiff would have brought a suit for ejectment on the ground of sub-letting if he was not aware of the fact that the defendant's brother-in-law residing in the suit premises was not a sub-tenant. He submitted that in the circumstances it is to be presumed that the plaintiff knew that the brother-in-law Sri B. K. Nag was not a sub-tenant. The learned advocate for the appellant also submitted that non-mention of the fact of alleged sub-letting in the notice of ejectment dated 6-10-77 shows that the plaintiff could not decide which ground for eviction is to be taken for filing a suit for eviction till he actually filed the suit on 23-2-78. He drew my attention to the evidence of the plaintiff P. W. 1 that Bijan Nag had come over to the suit premises in April, 1974 and that he did not take any step against him because the defendant No. 1 told him that he shall be returning shortly. This belies the proposition that the defendant did not retain control over the suit premises and that any of his brother-in-law was in exclusive possession of the suit premises. The subsequent unchallenged fact that on the expiry of the period of deputation the defendant No. 1 has returned to the suit premises also shows that the defendant/ tenant did retain control over the suit premises and that his brothers-in-law were never given any exclusive right of enjoyment of the suit premises or any portion thereof. Defendant D. W. 1 states that when he left for Durgapur he retained the tenancy and the rent was paid month by month. He further states that he used to come to Calcutta from Durgapur on official business in every month and used to reside in the suit premises and sometimes in the house of his father-in-law. Defendant D. W. 1 states that when he left for Durgapur he retained the tenancy and the rent was paid month by month. He further states that he used to come to Calcutta from Durgapur on official business in every month and used to reside in the suit premises and sometimes in the house of his father-in-law. He denies that he sublet the suit premises to defendant No. 1 after going to Durgapur and states that when he left for Durgapur he left certain files in the suit premises and he kept the keys for the said house in the house of his father-in-law and requested them to look after the house. ( 17 ) THE learned advocate for the respondent cited before me the decision reported in (1984) 2 SCC 590 : (1984 All LJ 379) in support of his proposition that mere Possession of a third party with the tenant does not prove sub-tenancy. He cited before me the decision reported in (1985) 89 Cal WN 675 (Anaghosh v. R. D. Ankelsaria) in support of his contention that exclusive possession of the third party has got to be proved. The materials on record some of which have been discussed above including the unchallenged subsequent event of the return of the defendant to the suit premises clearly shows that the defendant retained control over the suit premises and that there is nothing to show that his brother-in-law had cover any exclusive right of enjoyment of the suit property or any portion thereon. In the circumstances, the presumption that the learned advocate for the appellant wants to draw cannot be drawn and the findings of the court below that the sub-tenancy has not been proved must be affirmed. ( 18 ) BEFORE concluding some observations with regard to the submission of the learned advocate for the appellant that the court should draw an adverse inference against the defendant also on the ground that in spite of the plaintiff's notice of production of documents under Order 12 Rule 8 CPC served on the defendant's advocate on 19-5-79 the defendant did not produce the documents called for therein. By its notice the following documents were called for. (A) Authenticated document showing basic salary of defendant No. 1 in 1975, 1976, 1977, a 1978 and 1979. By its notice the following documents were called for. (A) Authenticated document showing basic salary of defendant No. 1 in 1975, 1976, 1977, a 1978 and 1979. (B) Authenticated document showing allowance received by the defendant No. 1 under various heads from the Government during the said years. (C) Bank account book or books of the defendant No. 1 during the said years. (D) Receipts for house rent for the quarters of defendant No. 1 in Durgapur. (E) School fee book of the children of defendant No. 1. (F) Bank account of Bimal Bhusan Nag (defendant No. 1) (G) Order of deputation by the Government in the Vigilance Department in Durgapur. ( 19 ) IT is elicited from the defendant No. 1 (D. W. 1) in his crass-examination that "at present I comes to know what documents are called for, but it is not possible for me to bring these documents for adverse reasons. " As it has already been held that there was nothing to show in this case that the brothers-in-law of the defendant were ever in exclusive possession of the said premises or any portion and that the materials on record show that the defendant No. 1 retained control over the suit premises, the defendant had no onus for which he had any liability to produce any of the documents called for. ( 20 ) IN view of the findings already made the already made the appeal is dismissed. No order as to costs appeal dismissed.