Binata Ghosh v. Amiya Dasgupta — 1996 DIGILAW 365 (CAL)

JUDGMENT 1. This Appeal is preferred by the Defendants-Appellants (hereinafter referred to as Defendants) against the Judgment and Decree dated 21st January, 1987 passed by the learned Assistant District Judge, Nadia, at Krishnagar in Title Appeal No. 299 of 1985, confirming the Judgment and Decree dated 30th November, 1985 passed by the learned Munsif, Additional Court at Krishnagar in Title Suit no.69 of 1985, for the reasons stated and on the grounds made out in the Memo of Appeal. 2. The Plaintiff-Respondent (hereafter referred to as Plaintiff) had filed the relevant Suit before the Court below against the Defendants for recovery of possession of the Suit premises, as described and detailed in the Schedule to the Plaint, after evicting the Defendants therefrom. It is contended by her that she is the exclusive owner of the Suit premises by virtue of a Partition Deed dated 4.1.1980 in the manner stated in the Plaint. The Defendants were her monthly tenants in respect of the Suit premises at a monthly rental of Rs. 60/-, payable according to English Calender. She has sought for eviction of the Defendants therefrom on the grounds that she reasonably requires the Suit premises for her own use and occupation, that the Defendants had defaulted in payment of rent since June 1979, and that they have sub-let a room in the ground floor of the Suit premises to 'Nilhil Banga Prathamik Sikshak Samity' (hereinafter referred to as Samity), and the said Samity is carrying on their official work therein. 3. The Defendants had contested the Suit contending, inter alia, that the Plaintiff is an absentee from Krishnagar for a long time and that she does not reasonably require the Suit premises for her own use and occupation, that they are not defaulters in payment of rents by the Plaintiff, and that they had neither sub-let the Suit premises, as alleged. They sought to contend that they had left the Suit premises temporarily in June 1981 and had returned back there in December 1981, and had found the Samity to be in occupation of a portion thereof. The legality and validity of the notice had also been challenged by them. It is thus contended by them that the Suit is liable to fail. 4. The Trial Court, upon trial, had decreed the Suit only the ground of sub-letting. The legality and validity of the notice had also been challenged by them. It is thus contended by them that the Suit is liable to fail. 4. The Trial Court, upon trial, had decreed the Suit only the ground of sub-letting. So also the Lower Appellate Court by passing the impugned Judgment and Order for the reasons recorded therein. 5. Being aggrieved by the Judgment and Decree rendered by the Lower Appellate Court, the Defendants have preferred the instant Appeal. 6. As already noted above, the Suit has been decreed by the two Courts below only on the ground of sub-letting, as alleged by the Plaintiff. That the Samity is in occupation of a room in the ground floor of the Suit premises is not disputed and is admitted by the Defendants as well According to them, it was the Plaintiff who had inducted the Samity, to the said room. The Plaintiff. on the other hand, has pleaded with more than usual clarity and conviction that it is the Defendants who had sub-let the said room to the Samity, The Courts below had found, on the evidence on record, for the reasons discussed by them, that it was the Defendants who bad inducted the Samity to the said room. The said concurrent finding of fact cannot certainly be challenged before this Court in Second Appeal. Nor. could be the materials on record being, what they are as I shall presently state. 7. The Plaintiff has stated in the Plaint that the Defendants were her monthly tenants in respect of the entire Suit premises, covering the ground floor and first floor thereof, as described and detailed in the Schedule to the Plaint. There is no denial by the Defendants in their Written Statement thereagainst. That being so, the Plaintiff’s case that the Defendants were tenants in respect of the entire Suit premises, covering the ground floor and the first floor thereof, must clearly, be deemed to have been admitted by the Defendants on the application on the principles of Doctrine of Non-Traverse. The Defendants have further stated with clarity in their Written Statement that the Plaintiff is an absentee from Krishnagar for a long time. That being so, the Plaintiff could not conceivably have inducted the Samity to the room in question in the ground floor of the Suit premises. The Defendants have further stated with clarity in their Written Statement that the Plaintiff is an absentee from Krishnagar for a long time. That being so, the Plaintiff could not conceivably have inducted the Samity to the room in question in the ground floor of the Suit premises. The Defendants' plea that they had temporarily left the Suit premises in June 1981 and returned back there in December 1981, having been disbelieved by the Courts below, there could be no running away from the inescapable conclusion that it was the Defendants who had inducted the Samity to the aforesaid room. The Defendant in her evidence as the D.W. 2 had further admitted that she had deposited all arrears of rent and is depositing current rents (for the Suit premises covering the ground floor and first floor thereof) month by month. Even though it is contended by them that it is the Plaintiff who had inducted the Samity to the aforesaid room in question they do not, even so, appear to have sought for apportionment of rent to that extent which seems to be significant and observable. They have neither taken any step whatsoever for recovery of possession of that portion. No protest either ever appears to have been made by them thereagainst so far, giving the clearest and conclusive indication that it is they who had inducted the Samity therein. With things as they are, it would not certainly lie in the mouth of the Defendants to say now that they had not inducted the Samity to the room in question. 8. Realising the difficulty somewhat tardily, Mr. S.P. Roy Chowdhury, appearing for the Appellants, referring to the decision of the Supreme Court in (1) Dipak Banerjee v. Lilabati Chakraborty, AIR 1987 SC 2055 , had submitted that in order to prove sub-tenancy it is obligatory for the Plaintiff to prove that (i) the alleged sub-tenant his exclusive right of possession or interest in the room in question, and (ii) that the right must be in lieu of some compensation or rent. He had also referred to the decisions of the Supreme Court in (2) Jagan Nath v. Chander Bhan and Others, AIR 1988 Supreme Court 1362, and (3) M/s. Delhi Stationers and Printers v. Rajendra Kumar, AIR 1990 Supreme Court 1208 in support of his said contention. He had also referred to the decisions of the Supreme Court in (2) Jagan Nath v. Chander Bhan and Others, AIR 1988 Supreme Court 1362, and (3) M/s. Delhi Stationers and Printers v. Rajendra Kumar, AIR 1990 Supreme Court 1208 in support of his said contention. The Supreme Court in the first decision has held "it is well-settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant ; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the, right to possession there is no parting with possession in terms of Clause (b) of Section 14(1)". The Supreme Court in the aforesaid second decision has held that "Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession;. In-the said, decision the alleged sub-tenant was the brother-in-law of the tenant and was also employed with him, where the user of the kitchen and the latrine was alleged to have been shared by the alleged sub-tenant. The facts therein clearly do not appear to be applicable to the facts herein. 9. The Supreme Court in (4) Smt. Rajbir Kaur and Another, AIR 1988 Supreme Court 1845 has also held that "exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and there is no. single, simple litmus-test to distinguish from the other". In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and there is no. single, simple litmus-test to distinguish from the other". It has also been observed, therein that one of the twin principal tests by which a lease is distinguishable from the relationship created under a licence is the element of the right to exclusive possession involving the transfer of an interest in the property; the other being the 'rent' stipulated for the grant. 10. In (5) M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and Others, AIR 1988 Supreme Court 145 it was again held by the Supreme Court that "in order to constitute sub-letting there must be parting of the legal possession by the lessee. Parting of the legal possession means' possession with the right to include and also right to exclude others." 11. As against the aforesaid decisions of the Supreme Court, a Division Bench of this Court in (6) Shantilal Sarogi and Another v. Mukund Lal Kothari and Another, AIR 1980 Calcutta 381 has held that where the alleged sub-tenant was in exclusive possession of the property in question and there is nothing to indicate that tenant retained any control over the premises in question it can be presumed, in spite of the landlords failure to lead evidence that the sub-tenant's occupation was for consideration, that there had been transfer of the interest and the tenant has sub-let or transferred his interest in the premises. It has been observed therein that it would have been suicidal for the Plaintiffs to call the actual occupiers of the rooms in question as P.W. 2 because they would have no right of cross-examining them. Evidently, they would have deposed against the Plaintiffs and thereby placed the plaintiffs in an awkward position. It is not possible for the Plaintiffs to adduce any further evidence to show what was actually paid by the aforesaid occupiers to the Defendants. In such circumstances their Lordships had believed the Plaintiffs' version and had rejected the evidence of the D.W. 1, while echoing the aforesaid observation, I would also like to add in this context, that it would certainly not be in the interest of the tenant and the alleged sub-tenant to allow the alleged sub-tenancy to be proved to their prejudice. In such circumstances their Lordships had believed the Plaintiffs' version and had rejected the evidence of the D.W. 1, while echoing the aforesaid observation, I would also like to add in this context, that it would certainly not be in the interest of the tenant and the alleged sub-tenant to allow the alleged sub-tenancy to be proved to their prejudice. It would obviously be in their interest to disprove the alleged sub tenancy so as to maintain and protect their possession in respect of the disputed premises from which they are sought to be evicted by the Plaintiff/Landlord. 12. It would be pertinent to note in this context that the Supreme Court in (7) Roop Chand v. Gopi Chand Thelia, AIR 1989 Supreme Court 1416 has held that where there is no evidence to show that the tenant had at any time exercised his right to exclusive possession and kept the premises looked it could be presumed that there had been a sub-tenancy. A Division Bench of this Court in (8) Miss. D. Ennis v. M/s Calcutta Vyapar Pratisthan Ltd. and Another, AIR 1991 Calcutta 152, has as well held that where a tenant leaving India installs a person who was stranger to her in the disputed premises and the said person is in exclusive possession of the premises since then, sub-letting can be presumed in such a case. It would be pertinent to note in this context that the Samity in the instant case does neither appear to be related to the Defendants. And, the Defendants do neither claim to be members thereof. None of them either claim to be Teachers. And it is neither in dispute that the Samity is in exclusive possession of the room in question in the ground floor. That being so, sub-letting can certainly be presumed in this case as well. 13. And, the Defendants do neither claim to be members thereof. None of them either claim to be Teachers. And it is neither in dispute that the Samity is in exclusive possession of the room in question in the ground floor. That being so, sub-letting can certainly be presumed in this case as well. 13. The law is by now well-settled in such a case as the present where a third party is found to be in exclusive possession of the tenanted premises, the burden lies on the tenant to explain the situation, this being within his special knowledge, and in the absence of direct and cogent evidence from either party the Court will be entitled to consider the available circumstantial evidence and the probabilities to be drawn from the same and conclude that the premises were sub-let and/or that the parting with possession was for payment of consideration. 14. There is not the morest and faintest whisper by the Defendants in the relevant case before us that they have retained possession of the room in question under occupation of the Samity. They could neither plead so because it is their positive case that it is the Plaintiff who had inducted the Samity to the said room. The question of retention of possession by the Defendant, in view of the aforesaid plea, could neither conceivably arise. It would further be pertinent to note that a Commission was taken out in the relevant Suit and the learned Advocate Commissioner, on local inspection, had found that the room in question was not in occupation of the Defendants, but in occupation of the Samity, who are found to be strangers to them. And, in terms of the decision of the Supreme Court in (9) Southern Command v. V.K.N. Nambiar, 1988 (2) SCC 292 : AIR 1988 SC 2126 inference of sub-letting could certainly be drawn in the instant case, in the aforesaid circumstances. 15. In view of the discussions above, the Court below does not appear to have erred in the least, either in fact or on law, that the Plaintiffs case of sub-letting by the Defendants, as alleged, has been established according to law. That being so, there seems little substance in the instant Appeal which is liable to fail, as it must. In the premises above, the instant Appeal fails, and be accordingly dismissed with usual costs: besides bearing fee of Rs. That being so, there seems little substance in the instant Appeal which is liable to fail, as it must. In the premises above, the instant Appeal fails, and be accordingly dismissed with usual costs: besides bearing fee of Rs. 2,500/- only. in the facts acid circumstances and nature of the instant matter. The Judgment and Decree passed by the Court below decreeing the Plaintiff's Suit for eviction be hereby confirmed. On the submissions made by the learned Advocate for the Defendants/Appellants, I, however, direct that the Decree for eviction shall not be executed by the Plaintiff till 31st March, 1997 provided they file usual undertakings in this Court within three weeks from date, and on further condition that they shall go on depositing before the Court below the equivalent of rent month by month by the 7th of the month on which the same falls due. On their failure to do so, the Decree shall be executable at once.