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2001 DIGILAW 99 (CAL)

ARTI BASAK v. UMA SANKAR BOSE

2001-02-23

ASHIM KUMAR BANERJEE, SAMARESH BANERJEE

body2001
ASHIM KUMAR BANERJEE, J. ( 1 ) APPELLANT is the transferee landlord of premises No. 9/1a, Sahitya Parisad Street, Calcutta. ( 2 ) THE Respondent is the tenant of the said premises in question under the Appellant. ( 3 ) APPELLANT filed an ejectment suit on November 26, 1981 in the City Civil Court, Calcutta praying for a decree for eviction against the Respondent as well as mense profit inter alia, on the ground of subletting and transferring possession without the knowledge and consent of the Appellant in respect of a portion of the suit premises to one, Shri Suryadeo Tewari in the year 1972 and one, Girija Sarkar Bose in the year 1964. ( 4 ) THE said suit was contested by the Respondent by filing a written statement wherein the Respondent contended, inter alia, as follows :-I) There had been no subletting. However, Respondent admitted that the said Girija Sankar Bose and Suryadeo Tewari were staying in the said suit premises. II) Girija Sankar Bose is the first cousin of the Respondent. The father of the Respondent and the father of the said Girija Sankar Bose were own brothers who inherited the said tenancy from their father being the grand father of Uma Sankar and Girija Sankar who was the tenant in respect of the said premises under the transferor landlord. Hence, although the said tenancy stands inthe name of the present Respondent Girija Sankar Bose being the member of the same family, cannot be called as sub-tenant. III) With regard to Surya Deo Tewari, it was contended that Surya Deo Tewari has been reared up by the father of Respondent as his own son and was always considered to be a member of the same family. Surya Deo Tewari's son had been adopted by the Defendant and renamed as Pradesh Tapan Basu. Hence the allegation of subletting is misconceived. ( 5 ) ONE Baidyanath Basak, being the husband of the Appellant deposed on behalf of the Appellant. Apart from reiterating the statement made in the plaint, Baidyanath deposed that from the pleader Commissioner's report resulting from a loacal inspection it appeared that ground floor was occupied by Surya Deo Tewari and first floor was occupied by Girija Sankar whereas second floor was in possession of the Respondent. Apart from reiterating the statement made in the plaint, Baidyanath deposed that from the pleader Commissioner's report resulting from a loacal inspection it appeared that ground floor was occupied by Surya Deo Tewari and first floor was occupied by Girija Sankar whereas second floor was in possession of the Respondent. ( 6 ) IN cross-examination Baidyanath admitted that his wife is the transferee landlord by virtue of the purchase made in the month of March, 1981. He was not aware whether the Respondent had got the tenancy through inheritance. He deposed that Girija Sankar stated that he was paying rent to Umasankar. ( 7 ) WITH regard to Surya Deo Tewari, witness said Surya Deo Tewari also stated that he paid rent to Umasankar. ( 8 ) THE Pleader Commissioner, Shri Ashok Kanti Roy deposed as witness on behalf of the Appellant and proved his report. ( 9 ) ON behalf of the Respondent Umasankar himself and Chandramati Tewari, being the widow of Surya Deo Tewari who died during the pendency of the suit premises deposed. ( 10 ) UMASANKAR reiterated that after the death of Girija Sankar who also died in the meantime, his wife and son were dependent on Umsankar and Umasankar was the head of the family. Upendra Nath Bose was the grandfather of the Respondent who was the original tenant of the said premises. Upendra had four sons and after the death of Upendra and his two sons, his father Jitendra and Girija's father Amalendu was living permanently in the said house. After the death of Amalendu his son Girija and Tarun Sankar continued to stay in the said house. Initially the rent receipts was in the name of Upendra, after the death of Upendra the rent receipts was made in the name of father of the Respondent and after the death of his father the rent receipt was made in his own name. Tarun Sankar, however, left the said house and started staying elsewhere. At present the Respondent and Girija's family are staying. ( 11 ) WITH regard to Surya Deo, it was stated that Surajmal was a bosom friend of the Respondent and used to reside in the said premises since 1948. After his death both his sons namely, Tarun Tapan and Pradesh Tapan continued to reside in his family as members thereof. At present the Respondent and Girija's family are staying. ( 11 ) WITH regard to Surya Deo, it was stated that Surajmal was a bosom friend of the Respondent and used to reside in the said premises since 1948. After his death both his sons namely, Tarun Tapan and Pradesh Tapan continued to reside in his family as members thereof. Pradesh Tapan was adopted during the lifetime of Suryadeo by a registered deed of adoption. He deposed that there was no kitchen in the second floor of the house. The kitchen is in the ground floor. Family of Girijas and family of Surya Deo were in joint mess with the Respondent. During rainy season, however, when the ground floor got submerged they made a stand by arrangement for cooking in the first floor. ( 12 ) IN cross-examination the Respondent admitted that Surya Deo used to occupy one room with his wife in the ground floor whereas Girija Sankar used to reside in two rooms in the first floor. He deposed that Girija Sankar did not give any cash for maintenance of his portion. The family of Suryadeo and Girija Sankar never separated in mess. The case of subletting had been denied by the said witness. ( 13 ) THE second witness on behalf of the Respondent Chandramati deposed that she cooked food for the whole family, she did not pay any rent. Her husband used to stay in the same house since the childhood. Their marriage also took place in the said house. She did not receive any remuneration for cooking. The expenses of her family was borne by the Respondent including cost of education of the two children. The cooking was being done in the ground floor of the house, nobody cooked in the first floor. She reiterated that they were the members of the family of Umasankar. ( 14 ) THE suit was heard by the 10th Bench of the City Civil Court and was disposed of by a judgment and order dated August 26, 1986 wherein the learned Judge dismissed the said suit upon appreciation of the pleadings and evidence. According to the respondent,the learned Judge found that neither there was any pleading on the plea of resonable requirement nor any evidence had been led. As such the said issue was answered in negative. According to the respondent,the learned Judge found that neither there was any pleading on the plea of resonable requirement nor any evidence had been led. As such the said issue was answered in negative. Similarly, since the respondent deposited rents before the Court below, issue of default was also answered in negative. The issue of non service of notice of ejectment had been answered in favour of the Appellant inasmuch as acknowledgement due card shows that the son of the Respondent had received the said notice. ( 15 ) WITH regard to the issue of subletting there had been detailed discussion made in the said judgment. According to the learned Judge, subject tenancy was not a tenancy created in favour of the respondent. It was a tenancy by way of inheritance. The learned Judge completely relied on the evidence of Chandramati and observed that the old widow staying in the same house with her two sons without paying any rent and cooking food for the entire family, cannot be disbelived. According to the learned Judge if they were really the sub-tenant she would never have come to Court to depose that she cooked for the entire family and that too, because of the ailments of the wife of the respondent. The learned Judge, although disbelieved the case of adoption, placed reliance on the naming of the two sons of Chandmati. Tarun Tapan and Pradesh Tapan which is common in the middle class bengali family. ( 16 ) COMING back to the question of the family of Girija,the learned Judge was of the view that they belong to the said family. The learned Judge was of the view that case of subletting had not been proved by the Appellant. ( 17 ) BEING aggrieved by the said judgment and order dated August 21, 1986 the Appellant filed the instant appeal. ( 18 ) SHRI Bidyot Banerjee, learned Advocate, appearing for the appellants sought to assail the judgment, inter alia, on the following grounds :-i) the concept of joint family had not been pleaded by the Respondent. ii) Exclusive possession of Girija Sankar and Surya Deo had been categorically admitted both in the pleadings as well as in the evidence. The Appellant filed the suit alleging subletting of Girija Sankar and Surya Deo and not their family members. ii) Exclusive possession of Girija Sankar and Surya Deo had been categorically admitted both in the pleadings as well as in the evidence. The Appellant filed the suit alleging subletting of Girija Sankar and Surya Deo and not their family members. The learned Judge did not discuss anything about the state of affairs during the life time of Girija Sankar and Surya Deo. It was also contended by Shri Banerjee that he need not prove as to whether any consideration had passed for subletting. The case that the Respondent had sublet the house to Girija Sankar and Surya Deo had not been dealt with by the learned Judge specifically when the stay of Girija Sankar and Surya Deo in the said premises, had been categorically admitted in the pleadings as well as in the evidence. ( 19 ) IN support of his contention Shri Banerjee cited the following decision :- AIR 1996 SC 112 : AIR 1930 PC 57 (1) : AIR 1980 Cal 381 : (1998) 2 CHN 1 : ( AIR 1998 SC 1240 ) : (1982) 86 Cal WN 938 : (1988) 2 Ren CJ 248 : (1988 All LJ 190) : ILR (1969) 1 Cal 582 : (1983) 87 Cal. WN 92 ( 20 ) SHRI Mrinal Kanti Das, learned Advocate, appearing for the Respondent contended that :-I) The appellant had failed to prove the case made out in the plaint case made in the plaint that Girija came in the year 1964 and Surya Deo came in the year 1972. II) On the contrary from the evidence as well as local inspection report it was conclusively proved that they were residing in a joint family having a joint mess. III) In case of subletting, the land lord has to discharge his onus which he had failed to do in the instant case. ( 21 ) ACCORDING to him the case of exclusive possession sought to be made out in the evidence as well as in the argument has not been made categorically in the plain. In any event the concept of exclusive possession does not get any support from the evidence laid by the plaintiff. ( 21 ) ACCORDING to him the case of exclusive possession sought to be made out in the evidence as well as in the argument has not been made categorically in the plain. In any event the concept of exclusive possession does not get any support from the evidence laid by the plaintiff. ( 22 ) IN support of his contention he has cited the following decision :- AIR 1987 SC 2055 : (1998)8 SCC 688 : (1999)7 SCC 263 : ( AIR 1999 SC 3087 ) : (1999)7 SCC 431 : ( AIR 1999 SC 3331 ) : (1998) 6 SCC 573 : ( AIR 1998 SC 2773 ) : (1988) 3 SCC 57 : ( AIR 1988 SC 1362 ) : AIR 1987 SC 409 . ( 23 ) THE respondent, in paragraph 9 of the written statement has justified the stay of Girija Sankar and Surya Deo. From an analysis made out of the said paragraph it isclear that both Girija Sankar and Surya Deo were treated as members of the family. The concept of joint family can clearly be inferred from paragraph 9 of the written statement. The said case made out by the Respondent in paragraph 9 has been proved by the witness as discussed hereinbefore. Hence we feel the first contention of Shri Banerjee is not tenable. Shri Banerjee in support of his contention that the evidence need not be looked into in absence of pleadings, cited three decisions being AIR 1996, SC, 112, AIR 1930, PC 57 (1) and AIR 1980, Cal. 381. Since we find that the concept of joint family had been pleaded in paragraph 9 of the written statement we do not feel it necessary to discuss the said three decisions. ( 24 ) ACCORDING to Shri Banerjee the case of subletting of Girija Sankar and Suraj Deo had been admitted in the written statement. Exclusive possession of Girija and Suraj Deo in respect of a portion of the tenancy was also proved by the Commissioner's report. Hence the question whether there was any consideration passed therefor is not a relevant factor to be looked into. The stay of Girija Sankar and Suraj Deo in the said family was an admitted fact and the parties did not join issue to the said effect. Hence the question whether there was any consideration passed therefor is not a relevant factor to be looked into. The stay of Girija Sankar and Suraj Deo in the said family was an admitted fact and the parties did not join issue to the said effect. The only question which is relevant for consideration is whether Girija Sankar and Suraj Deo and/or their family members were having exclusive possession of any portion of the tenancy or not. To decide this issue let us first examine the real meaning of the word "exclusive possession" in the light of the decisions of the Supreme Court. ( 25 ) IN Resham Singh case reported in (1999) 7 SCC 263 : ( AIR 1999 SC 3087 ) the Supreme Court was of the view that the question of sub-letting is a conclusion on a question of law derived from the findings on the materials on record as to the transfer of exclusive possession and to the said transfer of possession being for consideration. In the said case it was also observed by the Supreme Court that it is a settled position of law that to establish subletting the onus is on the landlord to prove through evidence that the sub-tenent was in exclusive possession of the property in question; that between the sub-tenant and tenant there was relationship between the lessee and the lessor and the possession of the premises in question was parted with exclusively by the tenant in favour of the sub-tenant. In another case being the case of Labanya Neogi reported in (1999) 7 SCC 431 : ( AIR 1999 SC 3331 ) the Supreme Court was of the view that to establish subletting the landlady as to prove abandonment or transfer of interest in favour of another person. ( 26 ) IN the case of Bharat Sales limited, reported in (1998)3 SCC 1 : ( AIR 1998 SC 1240 ) tenancy or subletting comes into existence when tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. The Supreme Court was of the view in the said case that it is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. The Supreme Court was of the view in the said case that it is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. ( 27 ) IN Jagan Nath's case reported in (1988) 3, SCC 57 : ( AIR 1988 SC 1362 ) the Supreme Court was of the view that user by other person is not parting with possession so long as the tenant retains the legal possession himself. 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. ( 28 ) TAKING a sum total of the aforesaid decisions, it appears to us that exclusive possession means a situation by which the tenant looses control not only physically but also legally of the tenanted portion or a part thereof. In the instant case the plaintiff has failed to prove that the stay of Girija Sankar and Suraj Deo and/or their family members in the portion of the tenancy is exclusive i. e. to the exclusion of the respondent. On the contrary, it has come out in the evidence that they lived together as a part of one single unit. There is nothing to show that the rooms where the family of Girija or Suraj Deo were staying were being enjoyed by them to the exclusion of the respondent. There is no proof of passing of consideration between the respondent on the one hand and Girija Sankar and Suraj Deo on the other hand which was necessary to be proved since appellant/plaintiff failed to prove exclusive possession. Nor the same can be inferred from the evidence on record. ( 29 ) HENCE the onus on the part of the Appellant being the plaintiff has not been discharged and in absence of discharge of onus on the part of the Appellant/plaintiff the suit was liable to be dismissed and the learned Judge of the Court below has correctly held to the said effect. ( 29 ) HENCE the onus on the part of the Appellant being the plaintiff has not been discharged and in absence of discharge of onus on the part of the Appellant/plaintiff the suit was liable to be dismissed and the learned Judge of the Court below has correctly held to the said effect. ( 30 ) HENCE, we find substance in the contention of Shri Das to the effect that the case of sub-tenancy had not been proved by the Appellant and the onus on the part of the Appellant/plaintiff was not properly discharged. We also find substance in the contention of Shri Das to the effect that stay of joint family had been proved by the Defendant to justify the stay of Girija Sankar and Suraj Deo and /or their family members. However, the same may not be relevant in view of our finding that the Appellant/plaintiff had failed to discharge her onus. ( 31 ) ACCORDINGLY, we hold that the Appellant/plaintiff is not entitled to decree of ejectment against the respondent on the ground of subletting and we are in total agreement with of the learned Judge of the Court below on that score. ( 32 ) HENCE the appeal fails and is hereby dismissed, in the facts and circumstance there would no order as to costs. ( 33 ) SAMARESH BANERJEA, J. :- -. I agree. Appeal dismissed.