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2003 DIGILAW 270 (CAL)

BENOTA GHOSH v. SITESH CHANDRA LAHIRI

2003-05-23

PRANAB KUMAR CHATTOPADHYAY

body2003
PRANAB KUMAR CHATTOPADHYAY, J. ( 1 ) THIS seeond appeal is directed against ihe judgment arid deeree dated 3rd June, 1996 passed by the learned Additional District Judge. 3rd Court at Alipore, 24-Parganas (South), in Title Appeal No. 290 of 1994 affirming the judgment arid decree dated 30th April, 1994 and 1st August. 1994 respectively passed by the 3rd Court of Additional Munsif at Alipore in Title Suit No. 64 of 1993. ( 2 ) THE plaintiff/respondents brought the suit being Title Suit No. 64 of 1993 before the learned Munsif for ejectment and recovery of khas possession and damages or compensation for wrongful use and occupation valued at Rs. 4,010/ (Rs. 3. 960/- for ejectment, and Rs. 50/- for damages tentatively ). ( 3 ) THE plaintiff/respondent staled in the plaint filed in connection with the said suit that the appellant/defendants herein have sub-let or assigned the entire ground floor of the tenanted premises to various persons for commercial purpose without the consent of the plaintiff/ respondent although the tenancy was created for residential purposes only. The appellant/defendants contested the said suit denying specifically the sub letting of the ground floor of the tenanted premises to different persons besides challenging the notices. The learned Munsif after considering the evidence on record held that the appellant/defendants actually sub-let the tenanted premises for the purpose of business to different persons without the consent of the plaintiff and accordingly, the learned Munsif decreed the suit and directed the defendants to quit. vacate and handover the peaceful khas possession of the suit premises to the plaintiff. ( 4 ) THE defendants being aggrieved by the aforesaid judgment and decree passed by the learned Munsif preferred the Title Appeal No. 290 of 1994 in the Court of the learned Additional District Judge, 2nd Court, alipore. By the judgment and decree dated June 3, 1996, learned additional District Judge, 2nd Court Alipore affirmed the judgment and decree passed by the learned Munsif. ( 5 ) BEING aggrieved by and dissatisfied with the aforesaid judgment and decree dated 3rd June. 1996 passed by the learned Additional District judge. 2nd Court. Alipore in Title Appeal No. 290 of 1994, the defendants/ appellants filed (he instant appeal \which was admitted by the Division bench of this Hon'ble Court. ( 5 ) BEING aggrieved by and dissatisfied with the aforesaid judgment and decree dated 3rd June. 1996 passed by the learned Additional District judge. 2nd Court. Alipore in Title Appeal No. 290 of 1994, the defendants/ appellants filed (he instant appeal \which was admitted by the Division bench of this Hon'ble Court. ( 6 ) AT the time of admission of this appeal no substantial question of law was formulated by this Hon'ble Court and as such before proceeding with the hearing of this appeal, following substantial questions of law are formulated for the purpose of deciding the instant second appeal. (1) Whether the learned Courts below have applied the proper tests for deciding the question of sub-letting in the suit property. (2) Whether the decisions of the Courts below are based on legal evidence. ( 7 ) THE appellants/defendants herein specifically denied the sub-letting or assignment of the ground floor of the tenanted premises to different persons and urged before this Court that both the Courts below have failed to apply the proper tests for deciding the question of sub-letting in respect of the suit property. The learned Counsel of the appellants/defendants also urged before this Court that the decision of the Courts below are not based on proper appreciation of the evidences on record. ( 8 ) THE learned Counsel of the defendants/appellants submitted that the sub-letting cannot be presumed on account of mere presence of a third party in the tenanted premises. Mr. Roychowdhury, learned Counsel of the appellants specifically submitted that the court cannot assume sub-letting unless it is proved as such. Mr. Roychowdhury contended that two ingredients are necessary to be proved in case of sub-letting of tenanted premises, namely, (i) exclusive possession of the sub-tenant in respect of the tenanted portion of the premises in question and also (2) the payment of consideration against such possession of the sub-tenant. ( 9 ) THE learned Counsel of the defendants/appellants urged before this court that persons other than the appellants were in exclusive possession in respect of any part and/or portion of the tenanted portion of the premises in question and this has not been established before the Courts below. ( 10 ) MR. ( 9 ) THE learned Counsel of the defendants/appellants urged before this court that persons other than the appellants were in exclusive possession in respect of any part and/or portion of the tenanted portion of the premises in question and this has not been established before the Courts below. ( 10 ) MR. Roychowdhury, learned Counsel of the defendants/appellants, specifically urged before this Court that the fact that tenant has parted with the right of possession and interest with any part or portion of (he tenanted area has not been established before the Courts below. According to Mr. Roychowdhury, it has also not been established that the tenant has lost exclusive control in respect of any part or portion of the tenanted area of the premises in question. The learned Counsel of the appellants further submitted before this Court that there is no evidence to the effect that the alleged sub-tenants were and/or are in exclusive possession of any part and/or portion of the premises over which the tenants did not retain any control. ( 11 ) MR, Roychowdhury referred to various decisions of the Apex Court and submitted that in absence of evidence of exclusive possession in respect of any part and/or portion of the tenanted area by the third party it cannot be presumed that the tenant has sub-let the premises or it cannot be said also that the sub-letting has been established. ( 12 ) LEARNED Counsel of the appellants/defendants submitted that no evidence has been adduced by the plaintiff in support of the contention that the tenants have parted with the possession of the tenanted portion of the premises in question to the third party. According to the learned counsel of the appellants/defendants, learned Munsif of the Trial Court has erroneously held that the tenants have parted with the possession of the portions of the tenanted area to third party although the documents referred to and relied upon by the learned Munsif in this regard are not proper documents at all in support of the aforesaid finding. ( 13 ) ACCORDING to the appellants/defendants, learned Judge of the lower appellate Court has erroneously affirmed the findings of the Trial Court. ( 13 ) ACCORDING to the appellants/defendants, learned Judge of the lower appellate Court has erroneously affirmed the findings of the Trial Court. Learned Counsel of the appellants/defendants submitted that the findings of the Courts below are not based on adequate and proper evidence, as according to the said learned Counsel of the appellants/defendants, there is no evidence in support of parting with possession to the third party by the tenants who are the defendants/appellants herein. ( 14 ) LEARNED Counsel of the appellants/defendants referred to and relied upon the following decisions of the Supreme Court in support of his aforesaid arguments : 1) AIR 1997 SC 2055 (Union of India vs. C. Rama Swamy and Ors. l 2) AIR 1988 SC 1362 [jagan Nath (Deceased) through L. Rs. vs. Chander Bhan and Ors. ] 3} 1989 (3) SCC 56 [gopal Saran vs. Satyanarayana] 4! AIR 1990 SC 1208 [delhi Stationers and Printers vs. Rajendra Kumar] 5) AIR 1996 SC 510 /dev Kumar 'died) throngh L. Rs. vs. Swaran Lala] ( 15 ) THE learned Counsel of the appellants/defendants further submitted thai the issue regarding change of user under Section 1 (1h) of the West bengal premises Tenancy Act has also not been, considered by the lower appellate Court although the same was decided by the Trial Court as issue No. 4. According to the learned Counsel of the appellants/ defendants, non consideration of the aforesaid issue by the Lower appellate Court vitiates the entire judgment of the lower appellate Court. ( 16 ) MR. Roychowdhury also submitted before this Court that the judgment and decree passed by the Trial Court and subsequently affirmed by the Lower Appellate Court cannot be sustained in law in view of the various irregularities and/or infirmities as mentioned hereinbefore by the said learned Counsel of the appellants herein. ( 17 ) MR. Jyotirmoy Bhattacharjee, learned Counsel of the plaintiff/ respondent, however, submitted that the suit for eviction was filed on two-fold grounds, namely, on the ground of sub-letting and change of user. According to the learned Counsel of the plaintiff/respondent. Lower appellate Court did not consider the issue relating to change of user in terms of provisions of Section 13 (1h) of the West Bengal Premises Tenancy act. ( 18 ) MR. According to the learned Counsel of the plaintiff/respondent. Lower appellate Court did not consider the issue relating to change of user in terms of provisions of Section 13 (1h) of the West Bengal Premises Tenancy act. ( 18 ) MR. Bhattacharjee submits that the lower appellate Court did; not discuss anything in respect of the issue related to Section 13 (1h) of the west Bengal Premises Tenancy Act as the appellants/defendants have, abandoned the said issue at the time of hearing of the appeal before the lower appellate Court. ( 19 ) THE appellants herein also did not mention anything regarding the non-consideration of the aforesaid issue by the lower appellate Court in respect of the change of user in terms of Section 13 (1h) of the West bengal Premises Tenancy Act in the Memorandum of Appeal filed before this Court. The appellants/defendants also did not, urge before this Court that the aforesaid ground was pressed before the lower appellate Court. Mr Bhattacharjee contended before this Court that the lower appellate court was never invited to decide the ground of eviction under Section 13 (Ih) of the West 'bengal Premises Tenancy Act, ( 20 ) IT has been submitted by Mr. Bhattacharjee that the suit for eviction was filed on two-fold grounds i. e. under Section 13 (1 a) and Section 13 (lh)of the West Bengal Premises Tenancy Act and the learned trial Court passed the decree for eviction on being satisfied with both the grounds. ( 21 ) THE tenants-defendants/appellants challenged the said judgment and decree of the Trial Court in appeal but pressed only one ground relating to section 13fla) i. e. issue relating to sub-letting and thereby accepted the existence of the other ground i. e. change of user in terms of Section 13 (1h)of the West Bengal Premises Tenancy Act. The learned Counsel of (he plaintiff/respondent, therefore, contended that in the aforesaid circumstances, decree can be maintained as the provisions of Section 13 of the West Bengal Premises Tenancy Act authorises the Court to pass a decree for eviction on satisfaction of anyone of the grounds as enumerated in Section 13. The learned Counsel of (he plaintiff/respondent, therefore, contended that in the aforesaid circumstances, decree can be maintained as the provisions of Section 13 of the West Bengal Premises Tenancy Act authorises the Court to pass a decree for eviction on satisfaction of anyone of the grounds as enumerated in Section 13. As no ground has been mentioned challenging the decree passed by the Trial Court on the ground of change of user in terms of Section 13 (1h) of the West Bengal Premises Tenancy Act and for non-consideration of the same by the lower appellate court in the Memorandum of Appealt filed before this Court, it cannot be said that the same has been challenged in the appeal before this Court and as such the decree can be sustained on the sole ground of change of user as mentioned in Section 13 (1h) of the west Bengal Premises Tenancy Act. ( 22 ) FOR the purpose of proper appreciation of the aforesaid arguments, section 13 of the West Bengal Premises Tenancy Act is set out hereunder:"section 13. ( 22 ) FOR the purpose of proper appreciation of the aforesaid arguments, section 13 of the West Bengal Premises Tenancy Act is set out hereunder:"section 13. Protection of tenant against eviction.- (1) 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, namely: a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord, transfers, assigns or sub-lets in whole or in part the premises held by him; b) where the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions of clause (m), clause (o) or clause (p) of Section 108 of the Transfer of Property Act, 1882; c) where the tenant has been using the premises or any part thereof or allowing the premises or any part thereof to be used for immoral or illegal purposes; d) where the tenant or any person residing in the premises let to the tenant is guilty of any act of waste or of any negligence or default resulting in material deterioration of the condition of the premises; e) where the tenant or any person residing in the premises let to the tenant has been guilty of conduct which is a nuisance of annoyance to neighbours including the landlord; f) subject to the provisions of sub-Section (3a) and Section 18a, where the premises are reasonably required by the landlord for purposes of building or re-building or for making thereto substantial additions or alterations, and such building or re-building, or additions or alterations, cannot be carried out without the premises being vacated; (ft) subject to the provisions of sub-Section (3a), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation; (g) where the premises were let to the tenant for use as residence by reason of his being in the service or employment of the landlord and the tenant has ceased before or after coming into operation of this Act to be in such service or employment; (h) where premises let out for residential purpose have been used for any other purpose for more than four months without the consent in writing of the landlord; (i) where the tenant has made a default in the payment of rent for two months within a period of twelve months or for two successive periods in cases where rent is not payable monthly; (j) where the tenant has given notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice; (k) where subsequent to the creation of the tenancy, the tenant having agreed in writing with the landlord to deliver vacant possession of the premises (o the landlord has failed to do so; (1) where the landlord is a member of the Armed Forces of the Union of India and requires it for the occupation of his family and produces a certificate of the prescribed authority referred to in Section 7 of the Indian Soldiers (Litigation) Act, 1925 (4 of 1925), that he is serving under special condition within the meaning of Section 3 of that Act or is posted in a non-family area. " ( 23 ) ADMITTEDLY, Section 13 has provided eviction on one or more of the grounds mentioned in sub-Sections 1 (a) to 1 (1 ). Accordingly, one ground is sufficient for the purpose of passing the decree in favour of the landlord against the tenant. The appellants/defendants herein have abandoned their challenge with regard to the finding of the trial Court on the ground of Section 13 (lh) and the appellants cannot argue before this Court on the said point at the time of final hearing of the second appeal particularly when no ground has been mentioned in the Memorandum of Appeal filed before this Court. ( 24 ) TRIAL Court decreed the suit admittedly, on both the grounds mentioned in Section 13 (la) and Section 13 (1h) of the West Bengal premises Tenancy Act. Before the lower appellate Court challenges were made against the findings of the trial Court on both the aforesaid grounds but from the judgment of the lower appellate Court it appears that the only argument that was advanced with regard to the ground of sub-letting relating to Section 13 (1a) of the West Bengal Premises Tenancy Act and no discussion has been made on the other ground relating to use of the tenanted premises other than residential purposes as prohibited under section 13 (1h) of the West Bengal Premises Tenancy Act. Learned Counsel of the respondent urged before this Court that no argument was advanced on behalf of the defendants-tenants before the lower appellate Court on the aforesaid ground of change of user under Section 13{lh ). ( 25 ) THE learned Counsel of the plaintiff/respondent contended that the lower appellate Court was never called upon to decide the correctness of the aforesaid finding of the trial Court on the said ground relating to provisions of Section 13 (1h) of the West Bengal Premises Tenancy Ad. The lower appellate Court admittedly did not discuss the aforesaid ground relating to use of the tenanted premises other than residential purpose ss prohibited under Section 13 (lh) of the West Bengal Premises Tenancy act and the appellants/defendants also did not urge before this Court that the same was argued before the lower appellate court on behalf of the defendant-tenants. The lower appellate Court admittedly did not discuss the aforesaid ground relating to use of the tenanted premises other than residential purpose ss prohibited under Section 13 (lh) of the West Bengal Premises Tenancy act and the appellants/defendants also did not urge before this Court that the same was argued before the lower appellate court on behalf of the defendant-tenants. ( 26 ) LEARNED Counsel of the plaintiff also submitted that the trade licenses were obtained at the instance of the third parties who occupied the tenanted area of the premises in question at the behest of the defendants/tenants. It has further been contended on behalf of the plaintiff/respondent that for the purpose of running the business and to use the tenanted area for commercial purposes trade license was not only obtained by the third parties but the same was also renewed subsequently and the said facts have been established before the Courts below. ( 27 ) IN any event, the learned Counsel of the plaintiff/respondent submits that issue raised and not pressed before the lower appellate Court cannot be raised again at the time of hearing of the appeal before this court. ( 28 ) ACCORDING to Mr. Bhattachajee. learned Counsel of the plaintiff, this appeal has become' academic as eviction is a must even if the appellant succeeds on other ground. Mr. Bhattacharjee submitted that eviction of the defendants-tenants should be directed on satisfaction of any one of the grounds mentioned in Section 13 of the West Bengal Premises tenancy Act. Mr. Bhattacharjee also contended that the ground of eviction under Section 13 (1h) has been finally decided by the trial Court and not pressed before the lower appellate Court and as such the appellants are liable to be evicted on the said ground alone. ( 29 ) MR. Bhattachajee referred to and relied upon the decision of this hon'ble Court in the case of Minati Sen alias D. P. Sen vs. Kalipada Ganguly and Ors,, reported in AIR 1997 Calcutta. 386. Paragraph 3. ( 30 ) MR. Bhattacharjee also referred to and relied upon another derision of the Supreme Court reported in AIR 1954 SC 263 Wali Singh is. Sahan singh. Paragraph 6 of the aforesaid judgement is quoted hereunder:"6. But we notice that the above aspect has not af all been raised in the Courts below. 386. Paragraph 3. ( 30 ) MR. Bhattacharjee also referred to and relied upon another derision of the Supreme Court reported in AIR 1954 SC 263 Wali Singh is. Sahan singh. Paragraph 6 of the aforesaid judgement is quoted hereunder:"6. But we notice that the above aspect has not af all been raised in the Courts below. There is no mention of it in the ground of appeal to (he High Court or in the rase filed for the respondent in this Court. . . . . . . . . In these circumstances, it is too late to allow this point fo be raised at this stage. " ( 31 ) IN view of the aforesaid decision of the Supreme Court. I am constrained to hold that ihe eviction of the appellants/defendants is inevitable as the ground of eviction in lerms of Section 13 (1h) has been established before the trial Court and was not challenged before ihe lower appellate Court effectively and presumably the same was abandoned at the lime of hearing of the appeal before the said lower appellate Court. Furthermore, no ground in this regard has also been mentioned in the memorandum of Appeal before this Court. ( 32 ) IN my view, the appellants are liable to be evicted on the aforesaid ground alone and this appeal is therefore, bound to fail. ( 33 ) HOWEVER, on (he point of sub-letting. Mr. Bhattacharjee, learned counsel of the plaintiff/respondent submits that when an outsider is in possession of the tenanted portion or in part thereof, the onus lies on the tenant to prove that there was no sub-letting and it is the duty of the tenant to disclose why and for what purpose the outsiders were allowed to retain possession in respect of any part or portion of the tenanted area otherwise presumption of sub-letting must be drawn in such circumstances. Mr. Bhattacharjee referred to and relied upon a decision of this Hon'ble Court in the case of Prabhabati Das and Ors. vs. R. R. Joneja. reported in 82 CWN 684. (Paragraphs 1 1 and 12 ). ( 34 ) THE learned Councel of the plaintiff /respondent also contended that the plaintiff asteblished the sub -letting by adducing evidence and both the courts below upon considering the pleadings of the respective parties. their evidents and also considering the circumstantial evidence concurrently that there was sub-felting. Mr. reported in 82 CWN 684. (Paragraphs 1 1 and 12 ). ( 34 ) THE learned Councel of the plaintiff /respondent also contended that the plaintiff asteblished the sub -letting by adducing evidence and both the courts below upon considering the pleadings of the respective parties. their evidents and also considering the circumstantial evidence concurrently that there was sub-felting. Mr. Bhattacharjee also contended that the ground of sub letting has been specifically mentioned in the plaint by the plaintiff and the definite charge of sub letting made by the plaintiff was denied evasively and not effectivity in the written statement filed by the defendants. ( 35 ) ACCORDING to Mr. Bhattacharjee. the defendants did not diselose or explain under what curcumentence and why the others were allwed to occupay the tenanted portion of the premises in question. Mr. Bhattacharjee specifficaly refferred to and relied upon the written statement filed by the defendents in this regard. ( 36 ) THE positive evidence of the plaintiff on sub-letting has been discussed by the trial Court and the learned Munsif of the trial Court arrived at a positive finding in respect of the sub-letting which has also been accepted by the learned Judge of the lower appellate Court. In view of the concurrent findings of facts of both the Courts below on the point of sub letting, learned Counsel of the plaintiff/respondent submits that this Court in the instant second appeal should not interfere with the aforesaid positive finding of tlie Courts below. ( 37 ) MR. Bhattacharjee. learned Counsel of the plaintiff/respondent referred to and relied upon the following decisions of the Supreme Court in this regard: a. AIR 197o SC 986 [bhagwan Dass and Anr. vs. S. Rajdev Singh and. Anr. ] b. (1993) 3 scc 1 (Bharat Sate; Ltd. vs. Life Insurance Corporation of india] c. [1999) 3 SCC 722 [kondiba Dagadu Kataran vs. Sawitribai Sopan Gujar and Ors. ] ( 38 ) SCRUTINISING the judgments of the Courts below and also considering the rival contentions of the respective parties I find that the specified portions of the tenanted area of the premises in question are occupied by some outsiders at the behest of the tenants and the said facts have not only been established before the Trial Court but the same have also been accepted by the lower appellate Court. ( 39 ) THE trial Court has come to the definite conclusion that the tenant has sub-let various portions of the tenanted area and the lower appellate court has also accepted the said finding of the trial Couri. ( 40 ) THE tenant has never explained why the outsiders were allowed to occupy the tenanted area and also why the said outsiders are in occupation of the specified portions of the tenanted area of the premises in question. The tenants also did not come forward with any explanation in this regard in the written statement filed before the trial Court. ( 41 ) ADMITTEDLY, both the Courts below arrived at the conclusion that sub-letting by the tenant in the present case has been approved on Ihe basis of the evidence and materials on record and such concurrent findings of the Courts below on sub-letting are the findings of fact which in my opinion should not be disturbed and/or interfered with by this Court in the present Second Appeal. ( 42 ) MR. Bhattacharjee. learned Counsel of the plaintiff/respondent referred to and relied upon a decision of this Court in the case of Guirum pal vs. Snchalata Dey and Ann. reported in 1991 (II) CLJ 17, wherein this honble Court specifically held that concurrent finding of sub-tenancy being finding of fact should not be interfered with in second appeal unless such finding is manifestly unjust or perverse. The aforesaid decision is very much applicable in the facts of the present case. ( 43 ) IN view of the foregoing discussions. I am of the view that both the Courts below have properly appreciated the pleadings and evidence on record and correctly arrived at the conclusion that sub-letting has been proved in the present case. ( 44 ) I do not find any irregularity and/or illegality in the aforesaid finding of the Courts below and accordingly, the decision made by the Courts below is upheld. ( 45 ) FOR the aforementioned reasons, I find no substance in the instant second appeal and I am also of the view that no substantial question of law is involved in this second appeal. Accordingly, this appeal fails and the same is dismissed. ( 46 ) THE judgment and decree of the Courts below are hereby affirmed. ( 47 ) HAVING regards to the facts and circumstances of this case, there will be. Accordingly, this appeal fails and the same is dismissed. ( 46 ) THE judgment and decree of the Courts below are hereby affirmed. ( 47 ) HAVING regards to the facts and circumstances of this case, there will be. however, no order as to costs. ( 48 ) LET urgent xerox certified copy of this judgment be handed over to the learned Advocates of the parties, if applied for.