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2001 DIGILAW 77 (CAL)

B. G. Chanda v. Kiranmoy Banerjee

2001-02-14

BHASKAR BHATTACHARYA

body2001
Judgment 1. This second appeal is at the instance of a tenant/defendant in a suit for eviction and is directed against the judgment and decree dated April 30, 1933 passed by the learned Assistant District Judge, 3rd Court, Alipore in Title Appeal No. 439 of 1992 thereby affirming those dated July 29, 1992 passed by the learned Munsif, 4th Court, Alipore in Title Suit No. 16 of 1987. 2. The respondent herein filed the aforesaid suit for eviction on the grounds of default in payment of rent, subletting and violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. 3. So far the ground of default is concerned, the learned trial Judge decided the issue against the plaintiff holding that the defendant was not a defaulter. 4. However, the learned trial Judge passed a decree for eviction on the grounds of subletting and violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. 5. Being dissatisfied, the tenant/defendant preferred an appeal before the learned first appellate Court below and by the judgment and decree impugned herein the said Court has affirmed those passed by the learned trial Judge. 6. Being dissatisfied, the tenant has come up with the instant second appeal. 7. There is no dispute that the tenancy was taken by the appellant herein for the purpose of running the office of his Company, viz. M/s. House and Bridge. It was further stipulated in the written agreement of tenancy that tenancy should run in his personal name and he should be personally liable in respect of affairs including termination of tenancy. 8. There is no dispute that the tenant is also running another business in the suit premises named C. M. C. Floors. The case of the tenant/defendant is that he is a partner of the said C. M. C. Floors having three other partners and, thus, he has control over the property. The appellant, thus, contends that for allowing the said C. M. C. Floors to run its business in the property he should not be held guilty of subletting. 9. The case of the tenant/defendant is that he is a partner of the said C. M. C. Floors having three other partners and, thus, he has control over the property. The appellant, thus, contends that for allowing the said C. M. C. Floors to run its business in the property he should not be held guilty of subletting. 9. As regards the ground of violation of Clames (m), (o) and (p) of Section 108 of the Transfer of Property Act, both the learned Courts below have concurrently found that the tenant/defendant has demolished a 5 inch wall and has also changed nature and character of the property by making substantial construction thereon. 10. As regards the ground of subletting, Mr. Roychowdhury, the learned Senior Counsel, appearing on behalf of the appellant has strongly relied upon the decision of this Court in the case of (1) Chira Kumar Basli v. Property Development Trust Limited and Others reported in 93 CWN page 725, and has contended that the appellant himself being a partner of the said business, it cannot be said that he is guilty of subletting. 11. After going through the materials-on-record I find that the tenant/defendant himself has admitted in his evidence that C.M.C. Floors is run from the suit property and that he has 1/4th share in the said business. Thus, it cannot be said that the tenant/defendant has "controlling interest" over the said business. The said tenant has admitted in his evidence that the said C.M.C. Floors is a different business from the House and Bridge and there are three other partners to look after the business. He has, however, admitted that such business was duly registered with the Registrar of Firm and the audited balance sheets of the company are produced in the Income Tax Office. Specific suggestion was given to• the said tenant that the balance sheet of C. M. C. Floors would disclose that rent for the suit property was being paid on behalf of the company. The tenant specifically stated that he would produce the copy of the return of C.M. C. Floors, if necessary, but the fact remain that such document was not produced. The tenant specifically stated that he would produce the copy of the return of C.M. C. Floors, if necessary, but the fact remain that such document was not produced. Under such circumstances, in my view, adverse presumption should be drawn against the appellant for non-production of the best document which would conclusively show the actual control of the appellant over the said business and whether any rent is being paid to the appellant on behalf of the said business. Thus, the learned Courts below in the fact of the present case did not commit any illegality in holding that the appellant was guilty of subletting as admittedly a different business is being run from the property where apart from the plaintiff there are other three partners. I, thus, find no reason to interfere with such concurrent findings of fact recorded by the learned Courts below which are based on appreciation of the evidence on record. Thus, the appellant could not produce material before Court showing that he was holding controlling interest over the C. M. C. Floors so as to get the benefit of the principles laid down in the case of Chira Kumar Basil (supra). 12. In the case of (2) M/s. Madras Bangalore Transport Company v. Inder Sing & Ors. reported in AIR 1986 SC 1564 , relied upon by Mr. Roychowdhury, the tenant which was a partnership firm, itself founded a limited company with its partners as the directors in order to circumvent the ban against the firm from operating in the area. In such circumstances, the Supreme Court held that there was no subletting. Thus, the said case is factually different from the present one where the original tenant with the help of three additional person started a total new business in a portion of the suit premises. 13. Similarly, the principles laid down in the case of (3) Helper Giridharbai v. S.M. Mirasaheb Kadri & Ors. reported in AIR 1987 SC 1782 , cannot be of any help to the appellant unless the appellant proves his real status and relation with other partners by producing audited balance sheet of the company. In this connection, Mr. 13. Similarly, the principles laid down in the case of (3) Helper Giridharbai v. S.M. Mirasaheb Kadri & Ors. reported in AIR 1987 SC 1782 , cannot be of any help to the appellant unless the appellant proves his real status and relation with other partners by producing audited balance sheet of the company. In this connection, Mr. Dasgupta has placed strong reliance upon the decision of the Apex Court in the case of (4) Shah Phoolchand Lalchand v. Parvati Bai reported in AIR 1989 SC page 865, where the Apex Court in a similar situation drew adverse inference against a socalled partner for non-production of the Income Tax return and account books. 14. So far the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act is concerned I find that the learned Courts below on consideration of the Commissioner's report as well as deposition have rightly held that the tenant has demolished a 5 inch wall and has also made other additions and alterations which were not in existence at the time of creation of the tenancy. Mr. Roychowdhury vehemently contended that even if any 8uch construction is made or a wall is demolished such acts on the part of tenant will not amount to violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, if it appears from the record that at the time of surrender of the property by tenant, the property can be restored to in the earlier position. I am afraid such contention is not acceptable. In my view once a portion of the property which is material in nature has been demolished, the tenant violates the provision mentioned above and merely, because it can be again repaired and restored to the original position, such fact win not absolve the tenant of the wrong committed by him. Thus, there is no escape from the conclusion that the tenant defendant has also violated the provisions contained in Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. 15. The case of (5) Brijendra Nath Bhargava v. Harshwardhan & Ors. reported in AIR 1988 SC page 293, relied upon by Mr. Roychowdhury cannot help his client in any way. 15. The case of (5) Brijendra Nath Bhargava v. Harshwardhan & Ors. reported in AIR 1988 SC page 293, relied upon by Mr. Roychowdhury cannot help his client in any way. In the said decision, construction of wooden structure built on beams and planks was held to be "not a material alteration". In this case, the tenant has demolished a wall altogether and made other construction and as such both the Courts below right1y held that such alteration of structure was material in nature. 16. In the case of (6) Om Prokash v. Amar Singh & Ors. reported in 1987(1) SCC page 458, a case relied upon by Mr. Roychowdhury, the Apex Court held that the question whether the construction materially altered the accommodation was a fixed question of law and fact and in the fact of the said case held that the partition wall was made without digging any foundation of the floor and did not touch the ceiling, it was a temporary wall of 6 ft. height converting a big hall to two portions for its convenient use. In the instant case, both the Courts on consideration of the materials-on-record concurrently found that the tenant made material alteration. Such findings are based on appreciation of evidence. It is not a case that such findings are based on no evidence or on the basis of inadmissible evidence. Thus, there is no scope of inference with such findings within the limited scope of Section 100 of the Code. 17. The case of (7) Gurubachan Singh v. Shivalak Rubber Industries, 1996(2) SCC page 626, in my view, cannot guide a case in interpreting Clauses (m), (o), (p) of Section 108 of the Transfer of Property Act. In that case, the Supreme Court was considering the provision of Section 13(2)(iii) of the East Punjab Rent Restriction Act where the question was whether the alteration comes within the expression "to impair materially" the value or utility of the building rented. Therefore, the principles laid down therein cannot have any application to the case in hand. Therefore, the decisions cited by Mr. Roychowdhury are of no avail to the appellant. Both the point raised by Mr. Roychowdhury having failed. I find no substance in the instant second appeal and the same is dismissed. In the facts and circumstances there will be, however, no order as to costs.