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2000 DIGILAW 656 (CAL)

Dipak Kumar Mitra v. Basaota Kumar Misra

2000-12-21

RANJAN KUMAR MAZUMDAR

body2000
Judgment 1. The instant Second Appeal is at the instance of the defendant appellants and this is directed against the Judgment and Order passed by the learned Assistant District Judge, Birbhum on 31.7.91 in Title Appeal No. 13 of 1990 confirming the Judgment and Order dated 14.12.89 passed by the learned Munsif, Suri, Birbhum in Title Suit No. 54 of 1983. 2. The case of the defendant-appellants was in brief that the plaintiff-respondent instituted a suit being Title Suit No. 54 of 1983 in the Court of learned Munsif, Suri for eviction of the tenant from the suit premises. In the said suit, the plaintiff-respondent claimed that he was the owner of the suit premises and that the defendant No. I-appellant was a tenant under him at a monthly rental of Rs. 61/- payable according to English calendar month. It was also alleged that the defendant No. 1-appellant was a defaulter in the matter of payment of rent. It was also averred that although the defendant No. 1-appellant was inducted in the suit premises for carrying on his business of purchase and sale of wheat, rice and paddy, he sublet the suit premises to defendant No.2 without the consent of the plaintiff. It was also averred in the plaint that the accommodation of the plaintiff-respondent was not sufficient and hence he required the suit premises for his own use and occupation and also for building and rebuilding. It was also alleged that defendant No. 1-appellant caused damages to the suit premises inasmuch as he constructed some structures without the permission of the plaintiff-respondent. It was also claimed by the plaintiff-respondent that he duly served notice of ejectment on defendant No. 1-appellant under Section 13(6) of the West Bengal Premises Tenancy Act read with Section 106 of the Transfer of Property Act. 3. Defendant No. 1-appellant contested the said suit by filing a. written statement denying all material allegations brought by the plaintiff-respondent against him. According to the defendant No. 1 appellant, he was never a defaulter in the matter of payment of rent and also never caused any damage to the suit premises. It was also averred that the plaintiff-respondent did not require the suit premises for his own use and occupation at all. According to the defendant No. 1 appellant, he was never a defaulter in the matter of payment of rent and also never caused any damage to the suit premises. It was also averred that the plaintiff-respondent did not require the suit premises for his own use and occupation at all. Again according to the defendant No. 1- appellant, the story of his subletting the suit premises to defendant No. 2 was entirely concocted and hence the suit was liable to be dismissed. 4. After a full-dressed trial, learned trial Court below decreed the suit holding inter alia that the notice to quit as served on defendant No. 1-appellant was legal and valid and that the defendant No. 1-appellant sublet the suit premises to defendant No. 2 without any consent from the plaintiff-respondent. But, as to plaintiff's reasonable requirement of the suit premises, it was held by the learned trial Court below that the plaintiff did not require the suit premises reasonably for his own use and occupation. Being aggrieved by such findings, the defendant appellants preferred First Appeal before the learned Assistant District Judge, Suri, Birbhum challenging the order as to eviction on ground of subletting. The plaintiff-respondent also filed cross-appeal against the said Judgment and Order passed by the learned trial Court challenging the adverse finding as to reasonable requirement. The said appeal and cross-appeal preferred by the parties were dismissed on contest by the learned First Appellate Court vide Judgment and Order passed on 31.7.91. However, the learned First Appellate Court held that the defendant No. 1-appellant sublet the suit premises to defendant No.2-appellant. It was also held by the said learned First Appellate Court that notice to quit was duly served on the defendant No.1 appellant and the same was lawful, valid and sufficient and hence plaintiff-respondent was entitled to get a decree for eviction on ground of subletting. Being aggrieved by such a decision the defendant appellants have preferred the instant Second Appeal for redressal of their grievances. 5. I have had the opportunity of hearing learned Counsels of both sides in the matter at length. 6. The only point requiring consideration in this Second Appeal was whether the Judgment and order passed by both the learned lower Courts below were liable to be set aside as prayed for by the defendant appellants or not. 7. 5. I have had the opportunity of hearing learned Counsels of both sides in the matter at length. 6. The only point requiring consideration in this Second Appeal was whether the Judgment and order passed by both the learned lower Courts below were liable to be set aside as prayed for by the defendant appellants or not. 7. At the time of hearing, learned Counsel for the defendant appellants Shri S.P. Roy Chowdhury drew my attention to the provisions contained ill Section 100 C.P.C and also to the principles of law laid down by the Hon'ble Supreme court in the case of (1) K.D. K.D. Kadam v. S.S. Gujar & Ors. as reported in 1999(3) SCC page 742, and submitted that the learned trial Court below failed to apply the legal tests to find out whether defendant No.1 had sublet the suit premises to defendant No.2 as alleged and arrived at a decision in the matter based on surmise conjectures and inferences which were not permissible under the law. He further contended that there was no evidence whatsoever about payment of rent by the alleged sub tenant to the original tenant. He further submitted that the finding of the learned trial Court and also the learned First Appellate Court were manifestly wrong, unjust and hence the High Court should interfere in this Second Appeal to do away with the injustice done to his clients. He further Submitted that mere occupation of the alleged sub-tenant simpliciter was not sufficient to infer that the original tenant created a sub-tenancy or parted with his legal possession in the suit premises. It was again submitted by him that there could not be any subletting when no legal possession was parted with. It was once again submitted that there was no exchange of consideration between the tenant and the alleged sub-tenant. He further submitted that the learned trial Court below and the learned First Appellate Court failed to consider that the relationship between the tenant and alleged sub-tenant was that of a father and son. He, therefore, urged upon this Court for setting aside the impugned Judgment and Order passed by both the learned Courts below. 8. He further submitted that the learned trial Court below and the learned First Appellate Court failed to consider that the relationship between the tenant and alleged sub-tenant was that of a father and son. He, therefore, urged upon this Court for setting aside the impugned Judgment and Order passed by both the learned Courts below. 8. learned Counsel for the plaintiff-respondent submitted on the other hand, that concurrent findings of fact arrived at by both the learned Courts below that defendant No. l tenant sublet the suit premises to defendant No.2 could not be interfered by this Court in Second Appeal when there was no impropriety, infirmity, perversity or illegality in the said findings of both the learned Courts below. It was further submitted by him that there was plethora of evidence both oral and documentary to show that the defendant No. 1 (tenant) actually sublet the suit premises to his father being defendant No. 2. He further submitted that the learned Courts below applied the legal tests for determining the question as to whether there was subletting or not and came to the finding that there was actually subletting by defendant No. 1 to defendant No.2. 9. It has been held by the Apex Court in the case of K.D. Kadam v. S.S. Gujar & Ors. reported in 1999(3) SCC page 722., that concurrent findings of fact, however erroneous cannot be disturbed under Section 100 C.P.C. but the High Court may hear an appeal on a substantial point of law even though not formulated by it in the interests of Justice under the proviso to Section 100 C.P.C. It has also been held in that case that when no question of law was involved, the High Court could not disturb the findings of fact of the 1st Appellate Court without adhering to the principles and limitations imposed by Section l00 C.P.C. In other words, the High Court could not substitute its own opinion for that of the 1st Appellate Court unless the findings of the lower Court were erroneous being :- (i) Contrary to mandatory provisions of law, or (ii) Contrary to law pronounced by the Apex Court, or (iii) Based on inadmissible evidence or no evidence. 10. 10. It appears from record that in his evidence the plaintiff respondent stated that defendant No. 1-appellant was inducted in the suit premises as a monthly tenant for doing the business in purchase and sale of rice, wheat and paddy and that after such induction the defendant appellant carried on such business for sometime, but, unfortunately, thereafter, the defendant No. 1-appellant inducted defendant No.2 as a subtenant in the suit premises for carrying on business. It appears from the evidence of P. W. 2 that defendant No.2 was carrying on business in the suit premises and that the original tenant being defendant No. 1 appellant was running his business in a different holding. Again it appears from the evidence of P. W. 3, who was an employee of Sainthia Municipality that he brought papers from the Municipality and it was mentioned therein that the trade licence relating to the suit property stood in the name of defendant No.2 and that a trade licence in the name of defendant No. 1 appellant stood recorded in Municipal records in respect of another holding, being not the suit holding. As against the said evidence of the plaintiff-respondent's side, the defendant No. 1appellant stated that he had not filed any licence to show that he was a tenant in the suit premises. Upon a consideration of the said evidence of the parties learned First Appellate Court came to the conclusion that defendant No.2 was running the business in the suit premises and that licence No. 175/7/75/76 stood in the name of the said defendant No.2. It was also observed by the learned First Appellate Court that the defendant No. 1-appellant could not produce any licence or document to show that he was really carrying on business in the suit premises and not elsewhere. Again the learned First Appellate Court held that there was sufficient evidence on record to prove that defendant No. 1-appellant, who was the original tenant in the suit premises, was not doing any business in the suit premises and that the defendant No.2 was doing business in the suit premises alone. 11. I, thus, find that in the instant case, there is plethora of evidence, both oral and documentary, to show that the sub tenant was in exclusive possession of the suit premises and there is nothing on record to show that the tenant was exercising control over the suit premises. 11. I, thus, find that in the instant case, there is plethora of evidence, both oral and documentary, to show that the sub tenant was in exclusive possession of the suit premises and there is nothing on record to show that the tenant was exercising control over the suit premises. The Cash Memos issued by the sub-tenant in connection with his own business depicted the address of the suit premises. Even the trade licence of the sub-tenant showed that the sub-tenant was carrying in his business from suit premises, the address of the suit premises having been clearly mentioned therein. So, it cannot be argued that the exclusive physical, possession of the suit premises was lying with the tenant and that the tenant was having exclusive control over the tenanted premises. Hence, the fact remains that possession of the suit premises is lying with the sub-tenant and not with the original tenant. In other words, there was evidence to show that the sub-tenant was in exclusive possession of the suit premises. 12. As regards the question of consideration, it was argued by Shri Roy Chowdhury that there was nothing on evidence to show that necessary consideration in the alleged subletting actually passed from the subtenant to the tenant. It is true that there is no such evidence on record about payment of consideration by the alleged sub-tenant to the tenant but the law is very clear on the point. It has been laid down by the Hon'ble Supreme Court in the case of (2) M/s. Bharat Sales Ltd. v. Life Insurance Corporation of India as reported in AIR 1998 Supreme Court 1240, that it was not necessary to prove by affirmative evidence that monetary consideration actually passed from the sub-tenant to the tenant. In that connection, it was observed by the Hon'ble Supreme Court that since payment of rent or monetary consideration might have been made secretly, the law did not require such payment to be proved by affirmative evidence and that the Court was permitted to draw its own inferences upon the facts of the case proved at the time of trial including the delivery of exclusive possession. As already stated there is ample evidence on record to show that the defendant No.2 was in actual physical possession of the suit premises exclusively and that the tenant was not having any control over the suit premises any more. As already stated there is ample evidence on record to show that the defendant No.2 was in actual physical possession of the suit premises exclusively and that the tenant was not having any control over the suit premises any more. Hence, the objection raised by Shri Roy Chowdhury in this regard is overruled. 13. As already stated, both the learned Courts below came to the finding that defendant No. I actually sublet the suit premises to defendant No.2 without the consent of the plaintiff. Such a finding of fact cannot be said to be based on conjectures or surmises. As a matter of fact, I find no question of law, far less any substantial question of law, in this case. 14. In consideration of the facts and circumstances of the case, and having due regard to the entire materials-on-record, I am constrained to hold that both the learned Courts below correctly held that there was subletting of suit premises by defendant No. 1 to defendant No.2 without the consent of the plaintiff. Hence, the Judgment and Order passed by the learned First Appellate Court confirming the findings of the learned trial Court in this respect must be upheld. 15. The instant Second Appeal is, therefore, dismissed without costs. 16. The defendant-appellants are hereby directed to deliver vacant possession of the suit premises to the plaintiff-respondent within four months from this day failing which the plaintiff-respondent will be entitled to get vacant possession of the suit premises by execution of the decree. The order of stay passed by this Court is hereby vacated. Let the lower Court records be sent down to the Courts below concerned immediately. The instant Second Appeal is thus disposed of. S. K. G.