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2005 DIGILAW 235 (CAL)

NETAI BHATTACHARJEE v. ARUNODAY DUTTA

2005-04-07

MAHARAJ SINHA, PRABIR KUMAR SAMANTA

body2005
M. SINHA, J. ( 1 ) THIS first appeal is against the judgement and decree passed in ejectment suit No. 846 of 1984 by the learned Judge of the 11th Court of City Civil Court, at Calcutta, on 24th August, 1999. In the month of August, to be precise on 31st August, 1994, the respondent/plaintiff herein Arunoday Dutta instituted a suit for ejectment against the appellant/defendant herein Netai Chandra bhattacharjee claiming ejectment of Netai from the suit premises and vacant possession thereof. ( 2 ) THE main grounds upon which the said suit was instituted against the defendant/tenant Netai appear to be as follows :-The defendant/tenant Netai became a defaulter in payment of monthly rent to the plaintiff since June 1980. The suit premises was reasonably required by the plaintiff, Arun for his own occupation. ( 3 ) THE defendant, Netai without the consent of his landlord Arun in writing illegally created a sub-tenancy in favour of one Sri Paritosh chakraborty within the meaning of section 13 (1) (a) of the West Bengal premises Tenancy Act 1956. Netai being the only defendant and the tenant of the suit premises contested the said suit by filing his written statement to which I shall refer to a little later. ( 4 ) PLAINTIFF Arun's case is that he is the owner of the premises No. 17, Girish Bidyaratna Lane, at Calcutta and the defendant, Netai was a monthly tenant under him and the said tenancy consisted of one room and verandah on the first floor of the said premises at a rental rs. 40/- payable according to english calendar. ( 5 ) THE said tenancy in favour of Netai was duly determined by a notice to quit dated 15th April 1984 and the said notice, needless to mention, was duly served upon the defendant, Netai. In spite of such notice to quit the defendant. Netai did not vacate the suit premises nor did he deliver the peaceful vacant possession of the suit premises to the plaintiff as demanded in the said notice or at all. ( 6 ) AT the time when the said suit was instituted plaintiff Arun's family consisted of himself his wife and two daughters, aged about 11 and 9 1/2 years respectively and Arun's mother (an elderly lady ). ( 6 ) AT the time when the said suit was instituted plaintiff Arun's family consisted of himself his wife and two daughters, aged about 11 and 9 1/2 years respectively and Arun's mother (an elderly lady ). At the time when the said suit was instituted Arun was working as cashier in a nationalized Bank, namely, Bank of Baroda. ( 7 ) PLAINTIFF, Arun also gave a short account in the plaint as to why he and his family required the suit premises for his own use and occupation and for the use and occupation of his family members. ( 8 ) IN his written statement, the only defendant and tenant, Netai admitted the case of sub-tenancy in clear words but the stand taken by Arun was that the plaintiff had the knowledge of such sub-tenancy at the time when he became the owner of the premises in question by purchase in the year 1977. ( 9 ) IN paragraphs 4 and 5 of the written statement the defendant, Netai made the following allegations:-a) The alleged sub-tenant is a notified sub-tenant since 1973 under the then landlord and as such the suit as filed cannot go on in his absence. b) The plaintiff was made known of the facts of tenancy and subtenancy at the time of his purchase of the suit house and as such the instant suit is barred by the principle of waiver acquiesence and waiver. ( 10 ) NETAI took the stand in his written statement that Arun became the owner of the suit premises, namely, 17, Girish Chandra vidyaratna Lane. Calcutta, in the year 1977 as he purchased the said property from its erstwhile owner - one Smt. Provati Chatterjee. Netai became a tenant of the suit premises under the said Smt. Provati Chatterjee and with the consent of the said Smt. Provati chatterjee, the then owner and landlady of the suit premises, he inducted his brother-in-law, the said Paritosh Chakraborty as subtenant of the suit premises and the said brother-in-law occupies the suit premises on payment of rent of Rs. 40/- per month to the defendant/appellant, Netai. ( 11 ) IN paragraph 8 of the written statement of Netai the following statements were made:-"it was from Smt. Provati Chatterjee, consent was obtained for inducting this defendant's Bhagnipati as sub-tenant and due notice was given to him both by this defendant and the sub-tenant. 40/- per month to the defendant/appellant, Netai. ( 11 ) IN paragraph 8 of the written statement of Netai the following statements were made:-"it was from Smt. Provati Chatterjee, consent was obtained for inducting this defendant's Bhagnipati as sub-tenant and due notice was given to him both by this defendant and the sub-tenant. Although the defendant' s Bhagnipati occupies the suit premises on payment of rent of Rs. 40/- per month to this defendant. This defendant has his ration card and the electric metre still at that address in his name. This defendant having a large number of dependants had to use this suit premises also jointly with his brother-in-law as the defendant's other rented house is not sufficiently spacious to accommodate. " ( 12 ) AGAIN in paragraph 11 of the written statement Netai stated as follows:"with reference to para 4 of the plaint this defendant submits that the plaintiff after purchasing the property did not accept any rent from him as his brother-in-law and his family were occupying as a sub-tenant (notified ). " ( 13 ) THE defendant Netai further stated as follows:-". . . . . . . . . . the plaintiff is in absolute possession of the entire premises excepting the portion occupied by this defendant through his brother-in-law. " ( 14 ) IN para 12 of the written statement the defendant again stated that the defendant inducted the sub-tenant with permission and the said sub-tenancy was a duly notified sub-tenancy. ( 15 ) AS usual the defendant, Netai denied the plaintiffs claim for reasonable requirement of the suit premises for his own use and occupation and for the use and occupation of his family. ( 16 ) ON the basis of the pleadings of the parties to the said suit, namely the respondent/plaintiff and the appellant/defendant the issues were framed, the following issues, in my opinion, were the main issues or principal issues the learned Trial Judge had to deal with and answer: (1) Has the defendant sublet the suit premises as alleged?" (2) "does the plaintiff require the suit premises for his personal use and occupation?" ( 17 ) AT the trial the plaintiff/respondent, Arun and his wife and one of his employees and the Manager of the branch of Bank of Boroda of which the Arun was an employee gave evidence. It appears from the evidence of the parties and the documents tendered in support of such evidence that the suit premises 17, Girish Chandra Vidyaratna Lane, calcutta, is a two-storied building and there are three rooms and one verandah on the ground floor and also three rooms and one verandah on the 1st floor. Arun is the sole owner of the said premises and he became the sole owner of the said premises as he purchased the said property, as aforesaid, from its erstwhile owner. The defendant/ appellant, Netai was inducted as a tenant by the previous owner of the said premises, one Smt, Rama Devi, at a monthly rental of Rs. 40/-payable according to English, calendar. The said tenancy consisted of one room and a varandah on the 1st floor of the said premises 17, girish Chandra Vidyaratna Lane, Calcutta. ( 18 ) ACCORDING to the plaintiff/respondent Arun, the defendant/ appellant continued to occupy the suit premises as a tenant thereof till the year 1980. However, after 1980 Netai left the suit premises and inducted his brother-in-law, the said Paritosh Chakraborty as a sub-tenant of the tenanted portion of the said premises by giving him the physical possession of the tenanted premises in his favour and since then or rather since 1980 the said Paritosh Chakraborty has been in occupation of the suit premises and residing thereat with the members of his family. Arun accepted Netai as his tenant as Netai was the tenant at the time when Arun purchased the said property from the said Smt. Rama Devi being the previous landlady and owner of the premises-in-question. ( 19 ) IN the year 1993 when Arun gave evidence his family consisted of his mother who was a widow, his wife, his two unmarried daughters and two maid-servants and there were altogether five rooms in which they were all accommodated. Out of his two daughters the elder daughter was studying in College and the younger daughter was a school student attending Class-X. Both of them were students of Victoria college and Victoria School respectively. Arun gave in his evidence the full accounts as to why he required the suit premises for his own use and occupation and or the use and occupation and or the use and occupation of his family members. Arun gave in his evidence the full accounts as to why he required the suit premises for his own use and occupation and or the use and occupation and or the use and occupation of his family members. ( 20 ) ALTHOUGH the first, evidence was given by the plaintiff/ respondent, Arun in the year 1993, but by the time Arun again came to give evidence in support of his case six years had elapsed. In cross-examination held in the month of August 1999 Arun maintained that he sought for eviction of the defendant/appellant, Netai as he sublet the premises-in-question to the said Paritosh Chakraborty and as the premises was required for his own use and occupation. ( 21 ) IN his evidence, however, the defendant/appellant Netai took an utter inconsistant stand. On one hand, he was trying to establish that he never parted with the possession of the suit premises in favour of his brother-in-law and at the same breath he denied that the said paritosh Chakraborty was inducted as sub-tenant of the suit premises without the permission of the landlord. He said, "i did not vacate my aforesaid tenancy. I also did not part with any part or portion of my tenancy". Then he said that it was not a fact that he inducted the said paritosh Chakraborty without the permission of the landlord. ( 22 ) HE, however, said that he was a tenant in respect of the suit premises at 17, Girish Chandra Vidyaratna Lane, Calcutta-9 at a rental of Rs. 40/- payable according to English Calendar month. ( 23 ) AGAIN, in the month of August, 1999 the appellant/defendant, netai said in his evidence that he was also residing at 10a, Garpar road, Calcutta-9 where his brother was a tenant. He also said that it was a fact that the said Paritosh Chakraborty had been residing in the suit premises with his wife and three sons. ( 24 ) ALTHOUGH the defendant/appellant, Arun took the stand in his written statement that the sub-tenancy in favour of the said Paritosh chakraborty was created with the permission of the previous landlady of the premises-in-question but in his evidence he said that the previous landlady gave written permission that she had no objection if his sister and her husband (meaning thereby the said Paritosh chakraborty) resided with him in his tenancy occasionally. ( 25 ) NETAI, however, admitted that he paid rent to Arun, the respondent/plaintiff, after he became the owner of the said premises only once. He also said that in his office record premises No. 10a, garpar Road was shown as his residential address and lastly he again said that it was not a fact that he handed over possession of his tenancy to his brother-in-law without the permission of the plaintiff/respondent. Arun. ( 26 ) HAVING taken this utter inconsistent stand he was neither able to show any document or tender any evidence from which it could be proved or established that he obtained previous permission of his landlady to create any sub-tenancy nor could he prove that such subtenancy was created with the permission of the plaintiff/respondent arun at any point of time. From the entire evidence of the defendant/ appellant on the question of sub-tenancy I have no hesitation in my mind to hold that the sub-tenancy was proved and the defendant/ appellant Netai himself admitted the case of sub-tenancy both in his evidence and in his written statement. ( 27 ) THE learned Trial Judge, in my opinion, took an extremely lenient view on the evidence in this regard and tried to substantiate the case of sub-tenancy upon the reasons with which I do not quite agree but the fact remains that the case of sub-tenancy in favour of Paritosh chakraborty was sufficiently establised and admitted by the defendant/ appellant himself both in his written statement and in his evidence. ( 28 ) IN my opinion, in his Judgement on the question or issue of creation of sub-tenancy by the appellant/defendant the learned Judge did not quite appreciate the weight of the evidence or the most material evidence on record, namely the evidence of the appellant/defendant himself and the stand or the admissions of the appellant/defendant in his written statement. ( 29 ) THE learned Trial Judge, however, quite correctly found that the defendeant/appellant was unable or failed to lead any evidence or product any document as asserted by him of any consent or written permission of the previous landlady of the premises in question to induct any sub-tenant at the suit premises. The learned Judge also correctly found that the address of the appellant/defendant as given to his office namely Port Trust Authority, was at Garpar Road, Calcutta, to be precise 10a Garpar Road, Calcutta. The learned Judge also correctly found that the address of the appellant/defendant as given to his office namely Port Trust Authority, was at Garpar Road, Calcutta, to be precise 10a Garpar Road, Calcutta. ( 30 ) AS I have said above on the question or issue of creation of subtenancy by the appellant/defendant no reasonable man should have any doubt and that there is no doubt that such sub-tenancy was created by the defendant/appellant and on that ground alone the defendant/ appellant was and is liable to be evicted from the suit premises and the learned Judge was right in passing the decree for eviction on the ground of creation of sub-tenancy by the defendant/appellant, Netai without the consent or permission of the landlord, the plaintiff/ respondent herein. The learned Judge, in fact, passed the decree for eviction on the ground of sub-tenancy by taking, in my view, a very lenient view on the evidence adduced by the appellant/defendant whereas on a correct evaluation or analysis of evidence of the defendant/appellant. Netai and his admission in the written statement itself for creation of such sub-tenancy no further proof of creation of sub-tenancy was in fact necessary and on that ground alone the plaintiff/respondent Arun was entitled to obtain and obtained a decree for eviction against the defendant/appellant herein. ( 31 ) THE only defence that the defendant/appellant tried to raise both in the written statement and in his evidence was that the subtenancy was created by him with the consent and/or permission (written) of the previous landlady of the premises in question and also the plaintiff/respondent Arun. Needless to mention, however, the appellant/defendant Netai miserably failed to prove by way of any evidence of such permission of creation of sub-tenancy either by the alleged previous landlady of the suit premises or by the plaintiff/ respondent, Arun at all. ( 32 ) ON the ground of reasonable requirement 6f the suit premises by the plaintiff/respondent, Arun. the learned Trial Judge considered the evidence of the plaintiff/respondent and the defendant/appellant and arrived at a finding that the plaintiff/respondent was able to prove that he required the suit premises for his own use and occupation and accordingly a decree was also passed by the learned Judge on the ground of reasonable requirement of the suit premises by the plaintiff. respondent. respondent. ( 33 ) AS aforesaid, the plaintiff/respondent Arun first gave evidence in support of his case for reasonable requirement of the suit premises in the month of May and July 1993 and since the evidence was not complete, after a lapse of more than six years Arun again gave evidence in August 1999 in support of his case for reasonable requirement of the suit premises by him. The defendant/appellant Netai also gave evidence denying the claim of Arun that Arun reasonably required the suit premises for his own use and occupation. ( 34 ) THE learned Judge, as aforesaid, after evaluation of the evidence of the parties on the question of reasonable requirement of the suit premises by the plaintiff/respondent for his occupation the finding that the plaintiff/respondent was able to prove that he bonafide required the suit premises "for his own use an occupation" and as such entitled to a decree for eviction against the defendant/appellant. Netai on that ground as well. ( 35 ) AFTER having considered the evidence of the parties, namely the. plaintiff/respondent Arun and the defendant/appellant. Netai on the question of reasonable requirement of the suit premises, I do not think any interference is necessary with the findings of the learned Trial judge. The learned Trial Judge, in my opinion, on the evaluation and/ or analysis of the evidence of the parties correctly came to the conclusion that the plaintiff/respondent reasonably required the suit premises for his occupation and passed the decree on that ground as well in favour of Arun, the plaintiff/respondent herein. ( 36 ) NEEDLESS to mention again that the learned Trial Judge found and found quite rightly that the tenancy in question was validly determined by the respondent/plaintiff, Arun by service of notice to quit upon the defendant/appellant, Netai. The issue of default in payment of rent by the defendant/appellant, Netai was not, however, pressed at the trial. ( 37 ) AT the hearing of this appeal the learned Advocate on behalf of the appellant/defendant sought to argue that no sub-tenancy was, in fact, created by the defendant/appellant and the defendant/appellant merely allowed his brother-in-law and his family members to reside at the suit premises while the possession of the suit premis was retained by the defendant/appellant as the tenant thereof. He sought to argue that parting with the possession of the tenanted premises in favour of a party is the most fundamental requirement to constitute a case of sub-tenancy. In the present case, he argued no such exclusive possession was given in favour of any third party or rather in favour of the appellant's brother-in-law, the said Paritosh Chakraborty or anybody else at any time. ( 38 ) IN support of his above contentions the learned Advocate for the defendant/appellant relied on the folio-wing decisions : (1) M/s. Delhi Stationers and Printers v. Rajendra Kumar, reported in air 1990 SC 1208 . (2) Ram Kumar and Ors. v. Rajindir Thakur and Ors. , reported in 1985 (2)All India Rent Control Journal page 27. (3) M/s. Reliable Finance Corporation Pvt Ltd. v. M/s. Clearing House and Agencies Pvt Ltd. and Ors. , reported in 1984 (2) All India Rent control Journal page 513. ( 39 ) FIRSTLY, all the above three decisions were based on the facts and the circumstances of each particular case before the Court concerned, The Supreme Court in the M/s. Delhi Stationers and Printers case (supra), having examined the entire facts and the circumstances of that case found that question of subleting or sub-tenancy was not proved as the tenant in question merely allowed his employee who happened to be the relation of the tenant to use the latrine and kitchen which formed part of the tenancy. ( 40 ) SIMILARLY, in the case of M/s. Reliable Finance Corporation (supra), the Delhi High Court refused to interfare with the finding of the learned tribunal that the case before it was not a case of sub-tenancy but a case of licence as found by the learned Tribunal and on facts of that case the Delhi High Court did not think it necessary to interfere with the finding of facts that no case of sub-tenancy was proved but the case before it was a case of licence granted by the tenant in favour of the second respondent therein, Ms. Sova Singh. ( 41 ) IN the case of Ram Kumar and Ors. (supra) the Delhi High Court again found that the "learned Tribunal was fully justified to hold there was no subleting, assigning or parting with possession" in favour of any third party. Sova Singh. ( 41 ) IN the case of Ram Kumar and Ors. (supra) the Delhi High Court again found that the "learned Tribunal was fully justified to hold there was no subleting, assigning or parting with possession" in favour of any third party. Needless to mention that the Delhi High Court was also considering the provisions under section 14 (1) (b) of Delhi Rent control Act 1958. ( 42 ) IT is by now well known and well-established that to prove a case of sub-tenancy or subleting, the Court has to consider whether there has been transfer of an exclusive right of enjoyment of a property in favour of the third party by the tenant in question and the said in lieu of payment of some compensation or rent, mere occupation of a third party of a tenanted premises or a portion thereof is not sufficient to infer either sub-tenancy if by allowing such occupation of a third party of the tenanted premises the tenant does not part with the possession of the tenanted premises in favour of a third party either of the entire tenanted premises or any portion thereof exclusively. ( 43 ) IN the present case, however, the picture is completely different, the tenant/appellant, Netai did not and does not deny the factum of sub-tenancy or subleting in favour of a third party, namely his brother-in-law but what he said was in his written statement that such subtenancy was within the knowledge of the plaintiff/respondent, Arun, his landlord. He also admitted the fact in the written statement that his brother-in-law paid him rent for his occupation of the suit premises at the rate of Rs. 40/- per month. I have stated in somewhat detail that stand taken by the defendant/appellant in his written statement and the stand taken by him in those once again. Suffice it to say that the appellant/defendant somehow tried to establish that initially created with the written consent or permission of the previous landlady, (whoever she might have been), of the premises in question and also with the consent or permission of the plaintiff/respondent, Arun. As I have stated before, that he miserably failed to prove any such consent or permission of the plaintiff/respondent, Arun or even the alleged previous landlady of the suit premises. As I have stated before, that he miserably failed to prove any such consent or permission of the plaintiff/respondent, Arun or even the alleged previous landlady of the suit premises. ( 44 ) THE decisions relied upon by the learned Advocate on behalf of the defendant/appellant have, therefore, no manner of application to the facts and the circumstances of the present case to any extent at all. I am at this stage tempted to refer to the observations of the supreme Court in the case of Ambica Quarry Works etc. v. State of Gujarat and Ors. , where speaking on behalf of the Division Bench His Lordship justice Sabyasachi Mukherjee, (as his lordship then was), relying on the observations of Lord Halsbury in Quinn v. Leathern, 1901 SC 495, said "the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it". (See AIR 1987 SC 1073 , para 18 at page 1077 ). Having considered the facts and the circumstances of the entire case and the evidence of the parties I think this appeal does not have any merit at all and same should be dismissed. The appeal is, thus, dismissed. There will, however, be no order for costs. Urgent xerox certified copy of this Judgement, if applied for, be given expeditiously. Appeal dismissed.