Ajit Kumar Halder v. Swapan Kumar Roy — 1994 DIGILAW 17 (CAL)

JUDGMENT Taroo Chatterjee, J. 1. This appeal is directed against the judgment and decree passed by the appellate Court whereunder the findings of the trial Court were reversed and the suit for eviction filed by the landlord/ respondent was decreed. 2. The respondent sought the eviction of the appellant from the suit premises on two grounds. The grounds are default and sub-letting. 3. So far as the ground of default is concerned, the trial Court found that the appellant was not a 'defaulter' within the meaning of s. 13(1)(a) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) and before the appellate Court, the ground of default was not pressed by the plaintiff/respondent. Therefore, the question of eviction of the appellant on the ground of default could not be gone into this appeal. 4. The only ground on which the suit was decreed by the appellate Court is that the appellant had sublet the suit premises to the defendant No.2. without the consent of the respondent. It is this judgment and decree of the appellate Court which is now under challenge in this second appeal. 5. Now for some of the facts. The plaintiff/respondent is the owner of the suit premises. The appellant was inducted by the plaintiff/respondent as a monthly tenant in respect of the suit premises at a rental of Rs. 110/- per month. According to the plaintiff/respondent, the appellant had sublet the suit premises to defendant No. 2 without his consent. The defendant No. l/appellant filed a written statement denying that he was a defaulter in payment of rent and that he had sublet the suit premises to defendant No.2. 6. The trial Court dismissed the suit and held that the respondent could not prove sub-letting on the findings that the appellant was not a defaulter in payment of rent and that the plaintiff/respondent was not entitled to a decree for eviction on the ground of sub-letting as the plaintiff/respondent had failed to prove that the defendant No. 2 had been in possession of the suit premises. 7. In appeal, the appellate Court reversed the findings of the trial Court on the ground of sub-letting after independently assessing the evidence: adduced by the parties and allowed the appeal and decreed the suit for eviction in favour of the plaintiff/respondent on the ground of sub-letting. 8. Mr. 7. In appeal, the appellate Court reversed the findings of the trial Court on the ground of sub-letting after independently assessing the evidence: adduced by the parties and allowed the appeal and decreed the suit for eviction in favour of the plaintiff/respondent on the ground of sub-letting. 8. Mr. Banerjee, appearing on behalf of the defendant No. l/appellant submits that the appellate Court erred in law in holding that the appellant had sublet the suit premises to the defendant No.2. He submits that as the onus of proving sub-letting was not successfully discharged by the plaintiff/respondent and as the respondent had failed to prove that the defendant No.2 had been in possession of the' suit premises, therefore, the appellate Court erred in law in decreeing the suit on the ground of sub-letting. Mr. Banerjee further submits that the appellate Court erred in law in holding that the plaintiff/respondent was entitled to get a decree for eviction on the ground of subletting without coming to a finding that some consideration money was fixed and paid by the defendant No.2 to the appellant in connection with the suit premises. 9. Mr. Bihani, appearing on behalf of the plaintiff/respondent, however, contested the said submissions made on behalf of the appellant. 10. Having heard the learned Advocates, appearing for the parties and after going through' the judgments of the Courts below and other materials on record. I am of the view that this appeal must fail. In my view, the appellate Court was right in holding that before the trial Court there were adequate materials to conclude that 'the appellant had sublet the suit premises without the consent of the plaintiff/respondent to the defendant No.2. 11. So far as the exclusive possession of the suit premises by the defendant No. 2 and the fact of the appellant not being in possession of the suit premises for a long time is concerned, the Appellate Court came to such a finding of fact on consideration of the evidence adduced by the parties including the admission made on behalf of the appellant that the defendant No. 2 was in exclusive possession of the suit premises for a good number of /years and that the appellant was not at all in possession of the suit premises. 12. 12. The appellate Court, on consideration of the evidence of the appellant in which the appellant had admitted that he was posted in Purulia upto January, 1974 and had retired from service in January, 1974, and on consideration of the Vakalatnama, filed in Court by the appellant showing the residence of the appellant in Calcutta found that the appellant was residing in Calcutta for a long time and not in the 'suit premises which is in the District of Burdwan. The appellate Court on consideration of the admission made by the appellant in his deposition that he had been residing at Calcutta since 1977, came to finding of fact that the appellant had not been in possession of the suit premises for a good number of years. 13. This finding of fact having been arrived at by the appellate Court on consideration of materials and evidence on record including the admission of the appellant, cannot be challenged in Second Appeal. 14. Taking the finding of fact, arrived at by the appellate Court on the question of exclusive possession of the suit premises as correct, let us now consider whether the finding of the appellate Court as regards subletting was correct or not. 15. As noted earlier, the trial Court negatived the plea of sub-letting mainly on two grounds. First ground was that the plaintiff could not prove that the defendant No. 2 was in exclusive possession of the suit premises. In appeal, however, the appellate Court, on consideration of the evidence of the parties, including the admission made on behalf of the appellant, came to a finding of fact that the defendant No.2 was in exclusive possession of the suit premises and that the appellant was not in possession of the suit premises. 16. In appeal, however, the appellate Court, on consideration of the evidence of the parties, including the admission made on behalf of the appellant, came to a finding of fact that the defendant No.2 was in exclusive possession of the suit premises and that the appellant was not in possession of the suit premises. 16. So far as the other ground of the trial Court, that the plaintiff failed to prove that some rent in respect of the suit premises, was paid to the appellant, is concerned, in my view, the appellate Court was right in holding that in the facts and circumstances of this case, it was not possible for the respondent to prove payment of consideration money in respect of the suit premises by the defendant No. 2 to the appellant and therefore the plaintiff/respondent was entitled to a decree on the ground of sub-letting by proving that the defendant No. 2 was in exclusive possession of the suit premises for a long time and that the appellant was not in possession of the suit premises for a long time. 17. The Supreme Court in 1989(1) SCC 19 , (Rajbir Kaur vs. Chokesiri and Co.) in paragraph 59 at page 43, has observed as follows:- "59. The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that the parting of the exclusive possession was promoted by monetary consideration could be drawn or not. The High Court did not examine this aspect of the matter, as according to it, one of the essential ingredients, viz., of exclusive possession had not been established. If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found acceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference, the burden of making good a case of sub-letting is, of course, on the appellants. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference, the burden of making good a case of sub-letting is, of course, on the appellants. The burden of establishing facts and contentions which support the party's case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the' appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that, appellants having been forced by the Courts below to have established exclusive possession of the icecream vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by. the Courts below to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary, course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found". 18. Relying on the observations made by the Supreme Court in the aforesaid decision and considering that when no exclusive possession of the suit premises by the defendant No.2 was established and the explanation of the transaction offered by the tenant having been found to be unsatisfactory and unacceptable, it was permissible in law to draw an inference of sub-letting, having regard to the ordinary course of human conduct that the transaction must have been entered into for monetary consideration. 19. In view of the above, I do not find any substance in the argument of Mr. Banerjee that the ground of sub-letting was not proved by the respondent. 20. No other point has been urged on behalf of the appellant. 21. Accordingly, the appeal fails, and the same is dismissed. 22. There will be no order as to costs. 23. The judgment and decree of the appellate Court is affirmed. 24. Banerjee that the ground of sub-letting was not proved by the respondent. 20. No other point has been urged on behalf of the appellant. 21. Accordingly, the appeal fails, and the same is dismissed. 22. There will be no order as to costs. 23. The judgment and decree of the appellate Court is affirmed. 24. The learned Advocate for the appellant prays for time to vacate the suit premises. If the appellant files an undertaking in this Court within a month from date to the effect that the appellant shall quit, vacate and handover peaceful possession of the suit premises, the decree shall not be executed for a period of one year from this date on condition that the appellant would go on depositing in the Court below or in the executing Court, as the case may be, a sum equivalent to rent, month by month, by the 15th of each succeeding month for which rent would become due. In default of any of the payment, decree shall be executed forthwith. 25. Let the lower Court Records be sent down to the Court below as expeditiously as possible, by a special Messenger at the cost of the respondents. Such cost shall be deposited by 4th March, 1994. 26. It is ordered and decreed that the appeal be and the same is hereby dismissed, it is further ordered and decreed that the undertaking having been filed within the stipulated time, the defendant-appellant is allowed time till 12th January, 1995 to quit and vacate the suit premises and to deliver vacant and peaceful possession thereof to the plaintiffs-respondents on condition that the defendant-appellant goes on paying and/or depositing the amount equivalent to monthly rent in the Court below to the credit of the plaintiffs-respondents month by month regularly according to English Calendar within the fifteenth of each succeeding month for which it is due. AND it is further ordered that in the event of the said defendant-appellant's failure to make any payment or deposit, as aforesaid, the decree shall become executable at once. Appeal dismissed.