SHYAM SUNDAR CHOWDHURY v. N. C. BATABYAL — 1998 DIGILAW 137 (CAL)

S. BARMAN ROY,J. ( 1 ) THIS second appeal is directed against the Judgment dated 14. 1. 97 and decree dated 24. 1. 97 passed by the learned Second Additional District Judge, Sealdah in Title Appeal No. 68 of 1996 affirming the Judgment dated 31. 5. 96 and decree dated 17. 6. 96 passed by the learned Additional Munsif, Sealdah in Title Suit No. 61 of 1979. ( 2 ) THE respondent/landlord instituted the aforesaid suit for eviction of the appellant/tenant on the ground that the appellant/tenant sublet the suit premises without previous consent from the plaintiff/respondent to the sub-tenants. Other grounds taken in the plaint for ejectment of the appellant were that the appellant defaulted in payment of rent and also for plaintiff's bonafide requirements of the suit premises. ( 3 ) THE case in short is that the plaintiff is the owner of the suit premises wherein the defendant was inducted as a tenant on a monthly rent of Rs. 140/ -. the appellant was stated to be a habitual defaulter in paying the rents. Furthermore, the appellant needed the suit premises for personal use. Subsequently, by amending the plaint, a new ground was added. The new ground for ejectment is that the appellant/tenant left the suit premises since January, 1975 and that he left the suit premises by subletting the same to some others. On these grounds, the plaintiff served the notice through his lawyer by registered post with A/d and another notice under certificate of posting. Another copy of the notice was hanged on the door of the suit premises. The registered envelope returned without delivery with an endorsement "left". Despite all these, the appellant did not deliver possession of the suit premises to the plaintiff. In these circumstances, the plaintiff brought the aforesaid suit for ejectment of the defendant/appellant. ( 4 ) ULTIMATELY, the suit was decreed in favour of the respondent on the ground of subletting the suit premises without prior permission from the plaintiff and also on the ground that the plaintiff bonafide needed the suit premises for his personal use. Being aggrieved by and dissatisfied with the aforesaid judgment and decree passed by the trial court, the appellant was prejudiced due to lack of these particulars in the pleading or in the evidence. This is, therefore, the substantial question of law as contended by the learned counsel for the appellant. Being aggrieved by and dissatisfied with the aforesaid judgment and decree passed by the trial court, the appellant was prejudiced due to lack of these particulars in the pleading or in the evidence. This is, therefore, the substantial question of law as contended by the learned counsel for the appellant. ( 5 ) ON the other hand, the learned counsel for the respondent drew my attention to Order 6 Rule 4 of the Code of Civil Procedure and submitted that the material particulars are to be given when the pleading relies upon any misrepresentation, fraud, breach of trust, wilful default, undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid. According to Mr. Bhattacharjee, in the plaint, the plaintiff nowhere pleaded any case of misrepresentation, fraud, breach of trust, wilful default or undue influence. Under the later part of Order 6 Rule 4 of the Code of Civil Procedure, apart from the aforesaid cases particulars may be necessary beyond such as are exemplified in the forms and in such cases only particulars shall be stated in the pleading. ( 6 ) ON perusal of the written statement, I am unable to hold the view that the defendant did not understand the case of the plaintiff that he was required to meet. As the defendant understood the nature of the case of the plaintiff fully, the question of prejudice cannot arise. The question of prejudice may arise when due to lack of particulars, the defendant failed to understand or appreciate the nature of the charge brought against him by his adversary in the pleading. ( 7 ) IN fact, the defendant in his additional written statement filed after amendment of the plaint has clearly stated that he never let out suit premises or any part thereof. The defendant further asserted in his written statement that he maintained his chamber and is still maintaining a chamber in one portion of the suit premises. It is also his specific case that he is using other portions of the suit premises as living rooms and kitchen. Therefore, the defendant clearly understood the nature of the case of the plaintiff. The defendant further asserted in his written statement that he maintained his chamber and is still maintaining a chamber in one portion of the suit premises. It is also his specific case that he is using other portions of the suit premises as living rooms and kitchen. Therefore, the defendant clearly understood the nature of the case of the plaintiff. By his total denial that he had let out any part or the whole of the suit premises to sub-tenant, he has exhibited clear symptom that he has fully understood the nature of the pleading of the plaintiff on the question of subletting. On perusal of the plaint, I am fully satisfied that neither it was necessary nor it was possible for the plaintiff to give any further particulars apart from those he pleaded in his plaint. ( 8 ) THE learned counsel for the appellant also contended that the plaintiff did not adduce even an iota of evidence as to what was the amount of rent or as to who were the sub-tenants. On perusal of the evidence on record, I find that it is admitted by the defendant that his nephew and two Care-takers are living in and occupying the suit premises. However, the defendant is still insisting that he is continuing possession by maintaining his chamber in a portion of the suit premises. In other portion of the suit premises, he has merely permitted his nephew and his two care-takers to live. According to the appellant, he has full control or possession over the suit premises. Relying upon these circumstances, the learned counsel for the appellant referred to a decision of the apex court in United Bank of India v. Cooks and Kelvey Properties (P) Limited reported in AIR 1965 SC 380. ( 9 ) THE facts of that case are that the suit premises were taken on rent by the Bank. The ground for eviction was that the tenant/bank inducted Trade Union of its employees into the premises for carrying on trade union activities. In this case, the Supreme Court found that the membership of the Union was confined to only the employees of the Bank. The Supreme Court further found that no monetary consideration was received by the Bank from the Trade Union. In this case, the Supreme Court found that the membership of the Union was confined to only the employees of the Bank. The Supreme Court further found that no monetary consideration was received by the Bank from the Trade Union. The Bank retained its power to call upon the Union of its employees to vacate the premises at any time and maintaining the suit premises at its own expenses and also paying charges for the electricity consumed by the Trade Union. ( 10 ) IN these circumstances, the Supreme Court held that there was no evidence that any part of the suit premises was sublet by the Bank to the Union of its employees. It further appears in paragraph 11 of the report that some office bearers of the said Union were examined as witnesses on behalf of the Bank and they fully supported the case of the Bank that they never took any part of the suit premises on rent and the Bank is maintaining full control over the entire suit property by maintaining the premises at its own expenses and also by paying charges for the electricity consumed by the Trade Union. In these circumstances, the Supreme Court held that the Bank did not sublet any part of the suit premises on rent to the Union of its employees. ( 11 ) THE facts of that case are quite different from the facts of the present case. I am, therefore, of the opinion that the decision of the apex court in the aforesaid United Bank of India's case is not at all applicable in the facts and circumstances of the present case. ( 12 ) THE learned counsel for the appellant further relied upon the decision of the Supreme Court in Delhi Stationers and Printers v. Rajendra Kumar reported in AIR 1990 SC 1208 . It is true that in that case, the Supreme Court had to deal with a case under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Section 13 (1) (c) is similar to the provision of section 13 (1) (a) of the West Bengal Premises Tenancy Act, 1956. In that case, the Supreme Court held that parting with legal possession within the meaning of the aforesaid provision means possession with right to include and also right to exclude others. Section 13 (1) (c) is similar to the provision of section 13 (1) (a) of the West Bengal Premises Tenancy Act, 1956. In that case, the Supreme Court held that parting with legal possession within the meaning of the aforesaid provision means possession with right to include and also right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession. The facts of that case are that it was alleged that sub-tenant was brother-in-law of the tenant and was also employed with him and, therefore, mere user of kitchen and latrine in occupation of the tenant by the said brother-in-law would not mean that the tenant has transferred the exclusive right to enjoy the kitchen and latrine and has parted with legal possession of any part of the premises in favour of his brother-in-law, the alleged sub-tenant so as to make the tenant liable for eviction. ( 13 ) A perusal of the facts of that case would show that in an adjacent portion, not covered by the suit premises, the brother-in-law of the said tenant was living and he was not living in any part of the suit premises. As he was living in a room adjacent to the suit premises, the brother-in-law of the tenant also used occasionally the toilet and kitchen of the suit premises. The tenant allowed his brother-in-law occasionally to use kitchen and the toilet of the suit premises. It further appears from the materials that the tenant never parted with his possession over the suit properties or any part thereof. In these circumstances, the Supreme Court declined to hold that the tenant had sublet the suit premises or any part thereof to any sub-tenant as alleged in the plaint. In view of the aforesaid finding on question of fact arrived at by apex court and the ultimate decision given on that basis, I am of the view that it does not apply in the present case in view of the nature of the evidence recorded in this case which will be dealt with little later. The learned counsel for the appellant further relied upon a decision of the Supreme Court in Jagannath v. Chander Bhan reported in AIR 1988 SC 1362 . The learned counsel for the appellant further relied upon a decision of the Supreme Court in Jagannath v. Chander Bhan reported in AIR 1988 SC 1362 . In that case, it is undoubtedly true that the apex court held that it is well-settled that parting with possession meant giving possession to persons other than those to whom the possession had been given under the lease and the parting with possession must have been by the tenant; user by the 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) of Delhi Rent Control Act, 1959. ( 14 ) APART from that it further appears that the tenanted premises were residential-cum-commercial and the tenant himself was carrying on joint family business with his sons and the family was a joint Hindu family. It was difficult to presume that when the tenant had retired from the business and his sons had been looking after the joint family business, the tenant had divested himself of the legal right to be in possession. If the father had the right to displace the possession of the occupants i. e. , his sons, it could not be said that the tenant had parted with possession. It, therefore, appears that the business was carried on in the premises by the members of the Joint Hindu Family and they lived together. In these circumstances, the Supreme Court declined to hold that the suit premises were let out to the sons by the father who were looking after the business of the joint family and were jointly carrying on with the said business. It, therefore, appears to me that this case is also not applicable in the facts and circumstances of the present case. Facts of the present case are quite different from the facts of above noted case decided by Supreme Court. It, therefore, appears to me that this case is also not applicable in the facts and circumstances of the present case. Facts of the present case are quite different from the facts of above noted case decided by Supreme Court. ( 15 ) THERE is evidence on record that the defendant is not living in the suit premises since long though it was part of his defence that he was maintaining a chamber in a portion of the suit premises. There is reliable evidence on record that the defendant does not reside in the suit premises. He had left the suit premises long time ago. ( 16 ) IT further appears from the evidence on record that the suit premises consists of only two living rooms, one kitchen and one toilet. It has been admitted by the defendant and is also the case of the plaintiff that in one such living room, the nephew of the defendant is living who is a married person and he earns his own livelihood and for his livelihood, he is not dependant upon the defendant and the other room is being occupied by two other persons who are allegedly care-takers, namely, Bhola Sur and Dilip Sur. It is the case of the learned counsel for the respondents that no further room is left behind for use of the appellant as a chamber. Therefore, he contends that the case of the appellant that he is maintaining a chamber in the suit premises is totally false, fabricated and concocted. The learned counsel for the respondents also drew my attention to the Commissioner's report marked Ext. 7. The Commissioner's report does not disclose the existence of any such chamber as claimed by the appellant/defendant. ( 17 ) THEREFORE, there is evidence on record that the appellant is not maintaining possession over any part of the suit premises. In this connection, it is relevant to point out that the notices issued to the defendant by the plaintiff's lawyer at the address of the suit premises returned undelivered with an endorsement of the postal Peon "left". It, therefore, appears that the defendant left the suit premises for ever and he is not occupying any part thereof. ( 18 ) DESPITE the aforesaid, the learned counsel for the appellant contended that there is no evidence as to what was the rent paid by the sub-tenant as claimed by the plaintiff. It, therefore, appears that the defendant left the suit premises for ever and he is not occupying any part thereof. ( 18 ) DESPITE the aforesaid, the learned counsel for the appellant contended that there is no evidence as to what was the rent paid by the sub-tenant as claimed by the plaintiff. On this question, the learned counsel for the respondents referred to the decision of the apex court in Rajbir Kour v. M/s S. Chokosiri and Co. reported in AIR 1988 SC 1845 . In that case, Supreme Court had an occasion to deal with a case under section 13 of the East Panjab Urban Rent Restriction Act. In that case, in paragraph 22 Supreme Court held that when the plaintiff merely pleaded that the tenant had sublet the premises without pleading anything on point of money consideration/rent, yet in the circumstances, the pleading should be construed liberally. It was further held that in a suit for eviction on the ground of subletting if exclusive possession is established and the version of the tenant as to the particulars and incidents of the transactions is found unacceptable 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 tenant to rebut the same. Such transaction of subletting in the guise of licences are in their very nature clandestine arrangement 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 subletting is of course on the landlord. The burden of establishing the 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 this to the appropriate standard, he will loose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon the party bearing legal burden, shifts according as the weight of the evidence adduced by the party during the trial. Therefore, it appears that the matter of monetary consideration or rent in case of subletting may also be inferred or presumed in a given situation. Therefore, it appears that the matter of monetary consideration or rent in case of subletting may also be inferred or presumed in a given situation. It is a matter of common knowledge that at times, monetary consideration in case of subletting takes place clandestinely to prevent detection and therefore, it is not very easy to adduce evidence. If the tenant did not let out the said suit-premises, he could have easily adduced evidence by examining those persons who are occupying the same to show that they are not paying any rent whatsoever to the tenant. The defendant did not opt for that easy course. ( 19 ) A Division Bench of this court in D. Ennis v. M/s. Calcutta Vyapare Pratisthan Limited reported in AIR 1991 Calcutta 152 held that it cannot be said that since payment of rent was neither pleaded nor proved, the premises cannot be said to have been sublet because in such a case where the third party is found to be in exclusive possession of the tenanted premises, the burden lies on the tenant to explain the circumstances, this being within his special knowledge and in the absence of the direct and cogent evidence from either party, the court will be entitled to consider the available circumstantial evidence and the probability to be drawn from the same and conclude that the premises were sublet or that the parting with possession was for payment of consideration. These observations were made by the Division Bench of this court relying upon a number of the decisions of the apex court. ( 20 ) THEREFORE, in view of the nature of the evidence on record and pleadings and also in view of the legal position in this behalf, as discussed above, I have no hesitation to hold that this court in Second Appeal cannot interfere with the concurrent findings and conclusions arrived at by the trial court as well as the Lower Appellate Court unless substantial question of law is involved. It was contended by the learned counsel for the appellant that neither the learned trial court nor the learned Lower Appellate Court considered the case that the plaintiff failed to plead or adduce any evidence on the question of the amount of rent that the sub-tenant had to pay the appellant and therefore, this ground constitutes substantial question of law for which interference by this court is called for. I have considered the evidence on record. I have found certain silent circumstances. It is too well known that a witness may lie but mute circumstance cannot lie. There are mute circumstances in the evidence on record on the basis of which the court can very well draw inference or presumption that the tenant inducted some sub-tenants on monetary consideration. These mute circumstances may be acted upon legitimately by a court of law to give such a finding. That no permission was taken by the defendant from the plaintiff is not in dispute in this case. What was in dispute is whether the persons occupying the suit premises were, in fact, inducted by the defendant as sub-tenant or they were merely permitted by the defendant to stay there. On this point, I have already discussed the matter that such transactions usually occur under a veil for which evidence may not be easily available and in such a situation, it will be just and proper to act upon circumstantial evidence on the basis of which decision has to be given by a court of law. I am dealing with in this case a Second Appeal. In a second appeal, the High Court cannot interfere with concurrent findings of fact arrived at by the courts below unless some substantial question of law is involved. I have found that all circumstances available on record were duly considered by the learned trial court and on the basis of which the conclusions were given by them. In the result, the appeal is dismissed. While parting with the records of this case, it must be mentioned that the plaintiff also filed a cross objection against that part of the judgment and decree passed by the appellate court below which relates to the ground of reasonable requirement. In the result, the appeal is dismissed. While parting with the records of this case, it must be mentioned that the plaintiff also filed a cross objection against that part of the judgment and decree passed by the appellate court below which relates to the ground of reasonable requirement. As I have already decided the main appeal preferred by the defendant in favour of the plaintiff, I do not consider it that any further decision on the cross objection is at all required or called for. The parties shall bear their own cost respectively. Appeal dismissed .