Pramatheswar Bakshi v. Jahar Lal Sett — 1997 DIGILAW 274 (CAL)

JUDGMENT Sudhendu Nath Mallick, J. 1. The instant second appeal is directed at the instance of the defendant/appellant the judgment and decree dated 29.11.89 passed by the learned Additional District Judge, 8th Court, Alipore in Title Appeal No.130 of 1987 affirming the judgment and decree of eviction dated 9.1.87 passed by the learned Munsif, First Court, Sealdah, 24, Parganas (South) in Title Suit No.593 of 1976. The appeal has been admitted on the question of law raised in ground Nos. (II), (III), (XI), (XIV) and (XX) taken in the memo of appeal. 2. The plaintiff/respondent brought the aforesaid suit for ejectment against the defendant/ appellant in respect of the suit premises under the provisions of the West Bengal Premises Tenancy Act on ground of subletting and reasonable requirement for the plaintiff's own use and occupation. Both the Courts below disallowed the ground of reasonable requirement for own use and occupation. It appears from the record that the plaintiff-respondent of preferred a cross-objection before the Lower Appellate Court against the Trial Court's finding on the ground of reasonable requirement which was dismissed by the First Appellate Court by the Impugned judgment. The only question in this appeal is whether the First Appeal Courts concurrent finding on the point of subletting allegedly made by the appellant is legally correct or not. It has been urged by Mr. Roychowdhury the learned Counsel appearing for the appellant while referring to the aforesaid grounds taken in the memo of appeal that both the Courts below erred in a deciding the question of sub. tenancy without considering the basic tests for deciding such question for which the entire findings are vitiated, that the First Appeal Court failed to appreciate that the initial onus was on the plaintiff to prove the alleged subletting, that both the Court below erred in drawing a presumption under Section 114 of the Evidence Act in favour of the plaintiff-landlord in the matter of subletting, that both the Courts below erred in drawing a presumption under Section 114 of the Evidence Act in favour of the plaintiff-landlord in the matter or subletting, that both the Court below did not take into consideration that no cogent evidence regarding subletting was adduced on the side of the plaintiff-landlord. that the First Appeal Court failed to appreciate that in order to constitute sub-tenancy there must be a transfer of exclusive possession from the principal or bead tenant to the subtenant of the entire or part of the disputed premises and that there is not evidence that the suit premises was sublet by the principle tenant to some other person and that the said subtenant is an exclusive possession and the transfer was for valuable consideration. It has been contended by Mr. Roychowdhury that there is practically no evidence to show that the present defendant at all sublet the suit premises to his brother Bireshwar Bakshi, who bas been examined as a witness on behalf of the appellant in the trial Court. Before I take up the instant second appeal for deciding on merits I think it necessary to refer to an application filed on behalf of the present appellant for production of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure filed before the Bench presided over by D.K. Jain, J. on 16.8.96 but at the time of hearing of this appeal by me the learned Counsel did not refer to that app1ication and did not make any submission for any order of this Court on the same as such it would not be unreasonable to say that the application has not been pressed by the petitioner's Advocate and as such it should be rejected, and it stands rejected. 3. It is also worthwhile to note that while hearing a second appeal on substantial question of law High Court cannot reappreciate the evidence on record on questions of fact finally decided by the First Appeal Court. At the same time, under the provisions of Section 103 of the Civil Procedure Code the High Court may if the evidence on the record is sufficient determine any issue necessary for the disposal of the appeal which (a) has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or (b) has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100. It is quite clear that a finding of fact is not liable to be reopened in the second appeal by the High Court except under Section 103. It is quite clear that a finding of fact is not liable to be reopened in the second appeal by the High Court except under Section 103. The power of the High Court while hearing the second appeal to determine a question of fact is limited to evidence on record which again must be sufficient to determine an issue of fact necessary for disposal of the appeal and which has not been determined or has been wrongly determined by the Lower Appellate Court. It is well established in law that when the subordinate Court has decided a question of fact without considering material evidence on record, the High Court is competent to decide that question. Furthermore, in an appropriate case, Appellate Court while hearing an appeal from the judgment and decree may in exercise of its powers under Section 41 Rule 24 Civil Procedure Code finally determine the suit where evidence on record is sufficient. 4. Keeping the above provisions of law and the legal principles to be followed in this regard it is to be seen whether there is any lawful reason to interfere with the concurrent findings of fact made by both the Courts below. Subletting is one of the grounds of eviction provided under the West Bengal Premises Tenancy Act, 1956 Section 13 (1) (i) which may be quoted below:- "Section 13 (1) (i) notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, viz. (a) where the tenant or any person residing in the premises let to the tenant without previous consent in writing of the landlord transfers, assigns or sublets in whole or in part the premises held by him." In the instant case the story of subletting is to be found in paragraph 2 of the plaint which runs as follows:- "The defendant shifted to his house and sublet the premises in suit without the consent of the plaintiff Mr. Roychowdhury bas rightly contended that though the said paragraph may be praised for its brevity but its purposeful vagueness has also to be condemned. It is surprising to find that no necessary particulars of the alleged subletting have been given in the said paragraph. Roychowdhury bas rightly contended that though the said paragraph may be praised for its brevity but its purposeful vagueness has also to be condemned. It is surprising to find that no necessary particulars of the alleged subletting have been given in the said paragraph. It is not stated when such subletting was made, under what circumstances and to whom. It may be said that the subtenant may not always be known to the landlord. But in the instant case the tenants own brother is alleged to be the subtenant in the evidence given by the plaintiff before the Trial Court. The plaint was filed on 27.8.76. The plaintiff/respondent examined himself as a witness on 6.8.86. He says in his examination in chief that the defendant bas left the suit premises and his brother lives there that his brothel is not a tenant in respect of the suit premiers and that at the time of the induction his brother was not there. He has denied the suggestion in his chief that the defendant's brother came there at the time of induction and that they live together. In his cross-examination he says that he knows Bireshwar Bakshi for the last 15/20 years as he came to his elder brother and that the talk of induction was held in 1960. So, admittedly the plaintiff knew Bireshwar Bakshi. D.W.1 the alleged subtenant since 15/20 years before be deposed in the trial Court on 6.8.86. So, on his own evidence he knew Bireshwar Bakshi from 1956/1961. In that position there is no reason why the plaintiff should remain silent and should not disclose in plaint that the premises was sublet to defendant's brother Bireshwar Bakshi. Parties are not required to disclose evidence in their pleadings. But, in order to make out a case so that no one is taken by surprise at the time of evidence material particulars must be given which are within their knowledge. The defendant's case on the above cryptic ground of subletting is to be found in Paragraphs 7 and 9 of the written statement. It is stated there that his brother Bireshwar Bakshi has been residing there for more than 17/18 years (the written statement was filed on 23.4.77) and that the said Bireshwar used to payment to the plaintiff and the plaintiff is used to accept rent from the said Bireshwar Bakshi and issued rent receipts to him. It is stated there that his brother Bireshwar Bakshi has been residing there for more than 17/18 years (the written statement was filed on 23.4.77) and that the said Bireshwar used to payment to the plaintiff and the plaintiff is used to accept rent from the said Bireshwar Bakshi and issued rent receipts to him. This takes us to 1960 the year of creation of tenancy in respect of the suit premises. It has been further stated in paragraph 9 that though the tenancy stood in the name of the defendant, the defendant never resided there even for a single day, that he used to reside another house nearby as a tenant and that his brother Bireshwar Bakshi has been residing in the suit premises from very inception as a monthly tenant. It is further alleged that previously rent receipts were used to be issued in the name of Bireshwar Bakshi but subsequently due to some difference of opinion between the brothers the receipts was issued in the name of the defendant although rents were being paid by Bireshwar. Accordingly the defence is the question of subletting never arises or arose." 5. On the point of subletting the findings of the Trial Court may be referred to. It has taken note of the admitted fact that the defendant has been residing at 15/1, Northern Avenue, P.S. Chitpur, that D.W.1 Bireshwar Bakshi the alleged sub-tenant has been residing there exclusively that the defendant is net in possession of the suit property that there is no evidence that the plaintiff gave consent to such possession of the D.W.1 and that the defendant himself has not come forward of say in evidence that he has been possessing the suit premises through D.W.1. The Trial Court bas placed much reliance on the evidence of plaintiff as the P.W.1 that the defendant has left the suit premises and his brother lives there and that his brother is not a tenant in respect of the suit premises. The Trial Court has further observed, presumably on the legal requirement of passing of consideration from the subtenant to the principal tenant that the payment of rent by the D.W.1 to the defendant may not be with in the knowledge of the plaintiff. The Trial Court has further observed, presumably on the legal requirement of passing of consideration from the subtenant to the principal tenant that the payment of rent by the D.W.1 to the defendant may not be with in the knowledge of the plaintiff. The Trial Court has ignored the admitted fact in evidence that the electric meter of the suit premises has all along been in the name of the D.W.1 Bireshwar. The Trial Court observes that the electric meter of the premises may stand in the name of D.W.1 because he was the previous tenant and such meter may be used by the defendant, but this does not support the defence plea that the defendant did not live at the suit premises. The Trial Court has further observed as follows:- "Admittedly the rent receipt was granted in the name of the defendant change of name from Bireshwar Bakshi to the defendant in the rent receipt certainly creates induction of new tenant in the suit premises. On these reasoning the learned Trial Court has held that the ground of subletting as embodied in Section 13(1)(a) of the West Bengal Premises Tenancy Act has been proved and that the plaintiff is entitled to get decree as prayed for on this ground. It may be important to note here that this P.W.1 has been cryptic in the allegation of subletting made in paragraph 2 of the plaint and it is surprising to see that in evidence to he does not take any positive assertion. In his evidence he never says categorically that the defendant has subject the suit premises to his brother Bireshwar Bakshi. It is in evidence that the defendant and his brothers are 4 (four) in number. Be that as it may, the plaintiff in his examination in chief has denied the suggestion that he took rent from Bireshwar the brother of the defendant which is, however, contradicted by him in cross-examination. In his cross-examination the plaintiff bas stated that at the time of induction the electric meter of the suit premises was in the name of Bireshwar Bakshi and that he has granted rent receipts to Bireshwar Bakshi as per Ext-A series. It is worthwhile to note that from October 1960 to September 1962 rent for the suit premises has been realized from the D.W.1 as per Exts. A to A-21. From the rent receipts as per Exts. It is worthwhile to note that from October 1960 to September 1962 rent for the suit premises has been realized from the D.W.1 as per Exts. A to A-21. From the rent receipts as per Exts. A-22 to A-57 it appears that from October 1971 to February 1976 rent receipts were issued in the name of the defendant in respect of the suit premises. On the basis of these two sets of rent receipts the Trial Court has held that this change of name of the defendant from Bireshwar Bakshi to the defendant certainly creates induction of new tenant in the suit premises. But it must be pointed out here that in the plaint itself the plaintiff has not come out with a specific and definite case about the creation of new tenant in respect of the suit premises. Every thing has been kept vague and left to be drifted at the time of evidence. In the cross-examination the plaintiff has been constrained to admit that he has granted rent receipts to Bireshwar and that after granting such receipts tenancy bas not been changed. The defendant bas not examined himself in this case D.W 1 Bireshwar Bakshi is the only witness examined on behalf of the defendant. It has been explained bat the defendant could not come to depose due to examination at school. It is the categorical evidence of the D.W. 1 that be is the tenant in respect of the suit premises and that the defendant has not sublet the same to him. He has said in his cross-examination that the tenancy was transferred to his brother i.e. the defendant about 12/13 years ago, that the tenancy was made in his name for the purpose of service of the defendant and that he asked the plaintiff to do so. In his cross-examination he has denied the suggestion that he has surrendered his tenancy. It has been rightly contended by Mr. Roychowdhury that this bundle of material evidence has not at all been considered by the Trial Court and the Appeal Court also has blindly concurred with the findings of the Trial Court although his observations made in the impugned judgment do not justify such conclusion. Mr. It has been rightly contended by Mr. Roychowdhury that this bundle of material evidence has not at all been considered by the Trial Court and the Appeal Court also has blindly concurred with the findings of the Trial Court although his observations made in the impugned judgment do not justify such conclusion. Mr. Roychowdhury bas referred to the Appellate Courts finding in the impugned judgment which may be quoted below:- The evidence before the Trial Court has further disclosed that as a matter of fact Bireshwar Bakshi was a tenant in respect of the self-same suit premises. But subsequently the tenancy so far as the rent receipts are concerned appears to have been issued in the name of the defendants continuously for several years." The Appeal Court has further observed as follows:- "I mean Exts. A1 to A6 wherefrom it appears that although Bireshwar Bakshi was a tenant in respect of the suit premises but subsequently the tenancy was in the name of the present defendant, Pramatheswar Bakshi and there is no evidence on the side of the defendant that after the tenancy was changed in.........in fact tenant in respect of the wit premises." 6. The Appeal Court has concurred with the finding of the Trial Court on the ground of subletting on two premises viz. (a) D.W.1 is in exclusive possession of the suit premises; (b) there whatsoever in respect of any portion of the disputed premises. The Appeal Court has ignored lack of evidence on the point of passing of consideration in this case on the ground that it would be impossible for the landlord to prove passing of consideration particularly when the subtenant is the elder brother of the tenant. The Appeal Court has held that therefore a presumption under Section 114 of the evidence will arise in favour of the landlord and if should be concluded that he has discharged his initial onus in the matter of establishing a case of sub-tenancy. Mr. Roychowdhury has attacked the above finding of the Appeal Court on the ground that both the Courts below have not taken into consideration the real impact and import of the admitted rent receipt as per Ext.A series standing in the name of D.W.1 for several years in respect of the suit premises since the inception of the tenancy in 1960. Roychowdhury has attacked the above finding of the Appeal Court on the ground that both the Courts below have not taken into consideration the real impact and import of the admitted rent receipt as per Ext.A series standing in the name of D.W.1 for several years in respect of the suit premises since the inception of the tenancy in 1960. Though the defendant has not examined himself before the Trial Court, in his written statement his categorical case is that rent was all along paid to the plaintiff by Bireshwar Bakshi who issued rent receipts to the latter and that the defendant never resided in the suit premises since the inception of the defendant. Added to this is the admitted fact of the electric meter standing in the name of Bireshwar Bakshi since the inception of the tenancy in 1960 Furthermore, although a suggestion of surrendered of tenancy was given to Bireshwar as D.W.1 and emphatically denied by him no specific case has been made in the plaint that Bireshwar surrendered his tenancy and thereafter the defendant was inducted in the suit premises or a new tenancy was created in favour of the defendant after surrender of tenancy by his brother D.W.1. The learned Advocate appearing for the respondent has referred to the admission made by Bireshwar in cross-examination that tenancy was transferred to his brother about 12/13 years ago. It bas been submitted by him that in view of such admission there cannot he any doubt that the defendant is the tenant in respect of the suit premises. But I am unable to accept such contention because evidence is to be considered in its totality with all surrounding circumstances borne on record. Risk of arriving at Illegal and improper conclusion will always he there if evidence is considered on piecemeal basis without reference to the context in which it is made. Curious devetailing of evidence as has been done by both the Courts below bas, in my view resulted in totally wrong conclusions. It has been explained by D.W.1 in his evidence that such an arrangement was made for the purpose of service of the defendant and that this was made by the plaintiff at his request. Curious devetailing of evidence as has been done by both the Courts below bas, in my view resulted in totally wrong conclusions. It has been explained by D.W.1 in his evidence that such an arrangement was made for the purpose of service of the defendant and that this was made by the plaintiff at his request. There is no explanation on the part of a plaintiff/landlord why rent receipts were issued in the name of Bireshwar in respect of the suit premises for several years from 1960 if his specific case is that the defendant was the tenant in respect of the suit premises. Both the Courts below have failed to appreciate the legal consequences of the rent receipts standing in the name of Bireshwar in view of the categorical evidence that Bireshwar has been in exclusive possession of the suit premises since inception. Neither in the plaint nor in his evidence the plaintiff has stated when the defendant left the suit premises after inducting or subletting the same to Bireshwar. This aspect of the matter has also not been taken into consideration by the Courts below. Under the circumstances, the Appeal Court after holding that as a matter of fact Bireshwar Bakshi was a tenant in respect of the self same suit premises had no reason to concur with the finding of the Trial Court that the suit premises was illegally sublet by the defendant to Bireshwar. The Trial Court has not at all considered the exhibited rent receipts standing in the name of Bireshwar. The D.W.1 Bireshwar has given explanation for subsequent not receipts being granted in the name of his brother. This explanation bas not been considered by the Appeal Court or at least no reason has been given for not accepting the same. The Appeal Court in order to concur with the findings of the Trial Court has observed that there is no evidence on the side of the defendant that after the tenancy as changed in the name of the defendant as borne out by the rent receipts the landlord-plaintiff ever accepted the rent from Bireshwar by granting any rent receipt. Such a finding to say the least is perverse per se because it does not take into consideration the evidence on the side of the defendant already noted above. Such a finding to say the least is perverse per se because it does not take into consideration the evidence on the side of the defendant already noted above. There is no question of Bireshwar making double payment of rent for the suit premises and it should not be expected that the landlord would given one set of receipt to the defendant and another set to Bireshwar for the payment of rent for the same premises for the same month or period. Accordingly, I agree with the contention of Mr. Roychowdhury that in view of the above evidence on record no case of subletting as contemplated under Section 13(1)(a) of the West Bengal Premises Tenancy Act has been made out or proved on the part of the landlord. As I have already noted there is no case nor evidence on the side of the plaintiff that Bireshwar's tenancy was 8urrendertd or ceased to exist at any point of time and that thereafter a fresh tenancy was created in respect of the suit premises in favour of the defendant and that thereafter the defendant sublet the suit premises to his brother Bireshwar, D.W.1. The statement of Bireshwar in his evidence regarding the granting of rent receipts in the name of the defendant cannot be said to be an admission so 8S to close the door to him. Mr. Roychowdhury has rightly contended that in view of the above facts and circumstances of the case there is no reason for the Appeal Court to draw an adverse presumption under Section 114 of the Evidence Act against the defendant. 7. I must also note here that although in the pleading the case of subletting has been made or denied in a cryptic way but the evidence on record shows that the parties went to trial with full knowledge of the ambit of the case of each other. In this connection the learned Counsel for the respondent has drawn my attention to a Supreme Court case reported Smt. Rajbir Kaur & another vs. S. Chodostri & Co., AIR 1988 SC 1845 . In this connection the learned Counsel for the respondent has drawn my attention to a Supreme Court case reported Smt. Rajbir Kaur & another vs. S. Chodostri & Co., AIR 1988 SC 1845 . It has been observed by the Supreme Court there in the circumstances the pleadings would require to be construed liberally following its own decision reported in Ram Sarup Gupta vs. Bishun Narain Inter College, AIR 1987 SC 1242 , which may be quoted below:- "Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict Interpretation of law, in such a case it is the duty of the Court to is certain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, Instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of and they proceeded to trial on those issues by producing evidence, in the event it would not be open to a party to raise the question of absence of pleadings in appeal." (Emphasis supplied) After all, the parties do not have the foresight of prophets and their Lawyers and draftsmanship of a Chalmers. There is no substance in this contention of Dr. Chitaley either. 8. This decision of the Supreme Court in my view does not help the respondent in any way. Because, the evidence which has been produced by the plaintiff does not at all support the case of subletting. Furthermore, both the Courts below have not considered the evidence adduced on the side of the defendant to disprove the alleged such-tenancy. The learned Counsel appearing for the respondent has also referred to the cases reported in Bhairab Chandran Nandan vs. Ranadhir Chandra Dutta, AIR 1988 SC 396 ; Ganesh Chandra Das vs. Bijoy Coomer Goyee & another, 88 CWN 1014 and Smt. Binata Ghosh & other vs. Smt. Amiya Dasgupta, 1996 (2) Cal LJ 545, the legal principles laid down in the aforesaid cases are sound and enlightening but they have no application, to the issue raised in the instant appeal. It is a fit case where the High Court should intervene on issue of fact and decide the suit finally under Section 103 read with Order 41 Rule 29 of the Civil Procedure Code. From the above evidence on record I am of the view that both the Courts below have wrongly determined the issue of sub-tenancy by applying wrong tests and without at all considering the evidence on record on the side of the defendant to show that it is not a case of sub-tenancy and that the D.W.1 is the tenant and not sub-tenant In respect of the same within the provisions of the West Bengal Premises Tenancy Act. From the evidence on record both the Courts below should have held that D.W.1 has been the tenant in respect of the suit premises since inception and he is continuing possession of the same as a tenant under the plaintiff. The Trial Court has wrongly decreed the suit on ground of submitting and the Appellate Court has wrongly and improperly concurred with the findings of the Trial Court on the ground of subletting. Under the circumstances the appeal must be allowed. The appeal is allowed on contest. No order as to costs. The impugned judgment and decree passed by the First Appellate Court are set aside. The suit brought by the plaintiff is dismissed.