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2008 DIGILAW 556 (CAL)

Adhir Kumar Biswas v. Madan Mohan Mondal

2008-05-16

B.PRAKASH RAO, BHASKAR BHATTACHARYA

body2008
Judgment : BHASKAR BHATTACHARYA, J. 1. THIS first appeal is at the instance of a defendant in a suit for eviction, decreed on the ground of subletting, and is directed against the judgment and decree dated 3rd May, 1982 passed by the learned Judge, Second Bench, City civil Court at Calcutta, in Ejectment Suit No. 740 of 1978. 2. THE case made out by the plaintiff-respondent may be summed up thus: (a) The appellant was a monthly tenant in respect of one room on the first floor and one room on the second floor with common bath and privy at the premises No. 29/4, Serpentine Lane, Calcutta-14 at a monthly rental of rs. 60/-payable according to the English calendar under the respondent. (b) The appellant had sublet the aforesaid tenanted portion to one Dhiren biswas for more than a year without the permission of the plaintiff and the appellant had been staying with his family at 54/1a, Serpentine Lane, Calcutta 14. (c) The appellant had also changed the character of the suit property and had damaged the floor of the room, which was previously occupied by him. (d) The respondent sent an ejectment notice under Section 13 (6) of the West bengal Premises Tenancy Act read with Section 106 of the Transfer of property Act asking the appellant to vacate the property but in spite of the said notice, the defendant failed to vacate. Hence the suit. 3. THE suit was contested by the appellant by filing written statement and subsequent additional written statement, and the defence of the appellant may be summarized thus: (i) The notice to quit was not legal, valid and sufficient and the relationship of the landlord and tenant between the parties was still continuing. (ii) Dhiren Biswas is not a subtenant as alleged. In fact, the said Dhiren biswas is a member of the family of the appellant, being his cousin, and the said Dhiren Biswas and his mother had been staying in the family of the father of the appellant and had been staying in the suit property for a long time. (iii) For the shortage of accommodation, the appellant had been residing with his family at 54/1, Serpentine Lane and the part of the family including Dhiren Biswas had been living in the suit property. (iv) The defendant did not damage the floor of the tenanted room as falsely alleged. (iii) For the shortage of accommodation, the appellant had been residing with his family at 54/1, Serpentine Lane and the part of the family including Dhiren Biswas had been living in the suit property. (iv) The defendant did not damage the floor of the tenanted room as falsely alleged. At the time of hearing, the respondent alone gave evidence in support of the case made out in the plant while the appellant alone deposed in opposing the prayer of the respondent. 4. AS indicated earlier, the learned Trial Judge, by the judgment and decree impugned herein, decreed the suit on the ground of subletting in favour of dhiren Biswas. The learned Trial Judge specifically arrived at the conclusion that the appellant left the suit property and inducted the said Dhiren Biswas in the property and the Dhiren Biswas, although, was a cousin of the appellant, not dependant upon the appellant and therefore, the said act on the part of the appellant amounted to subletting. 5. BEING dissatisfied, the tenant has come up with the present first appeal. 6. MR Ghosh, the learned senior advocate appearing on behalf of the appellant, vehemently contended before us that the learned Trial Judge totally overlooked the materials on record that the said Dhiren Biswas was none else than a cousin of the appellant and that the said Dhiren Biswas was all along staying in the suit property even at the time when the father of the appellant was a tenant. Therefore, the said Dhiren Biswas cannot be said to be a subtenant to attract the provision of Section 13 (1) (a) of the West Bengal Premises Tenancy Act, 1956. Mr Ghosh, in this connection, relies upon a decision of the Supreme Court in the case of A. S. Sulochana vs. C. Dharmalingam reported in A. I. R. 1987 SC 242. Mr Ghosh, therefore, prays for setting aside the judgment and decree passed by the learned Trial Judge. Mr Chakraborty, the learned advocate appearing on behalf of the respondent, however, opposes the aforesaid contention of Mr Ghosh and relies upon the reason assigned by the learned Trial Judge. 7. AFTER hearing the learned counsel for the parties and after going through the materials on record, we find that undisputedly the suit property consists of only two rooms, one on the first floor and the other on the ground floor. 7. AFTER hearing the learned counsel for the parties and after going through the materials on record, we find that undisputedly the suit property consists of only two rooms, one on the first floor and the other on the ground floor. It has also been established that the defendant has taken a separate tenancy in his name in a nearby house at 54/1, Serpentine Lane and according to his own statement, due to shortage of accommodation, he is staying in a different house. The defendant, however, maintains that Dhiren Biswas was his cousin, being the son of his fathers sister and the said Dhiren Biswas had been staying in the property even from the time when the tenancy was held by his father. It is admitted by the appellant that Dhiren was not dependent on him and has a separate business of his own and he stays in the suit property with his wife and three children and is not in the same mess with the appellant. 8. FROM the aforesaid materials on record, it is well established that the appellant, the real tenant, in whose name the tenancy stands, is now staying in a different house and the suit property is in exclusive possession of Dhiren Biswas. We have already pointed out that the suit property consists of only two rooms and it is proved that Dhiren Biswas stays in the property with his wife, one son and two daughters. 9. IT further appears that Dhiren Biswas has a separate business of his own and it has been admitted by the appellant that Dhiren Biswas is in no way dependant upon the appellant. 10. THEREFORE, the question is whether in such a fact the learned Trial Judge was justified in concluding sub-tenancy or assignment of tenancy right in favour of Dhiren Biswas. 11. IT has come from evidence that the father of the appellant was, at one point of time, a tenant in the property and after his death, the appellant alone holds the tenancy. The appellant has also admitted that his other brothers are staying in different premises. 11. IT has come from evidence that the father of the appellant was, at one point of time, a tenant in the property and after his death, the appellant alone holds the tenancy. The appellant has also admitted that his other brothers are staying in different premises. Once we find that the allegation of the respondent that the appellant is staying in a different property is not disputed and at the same time, no plea has been taken by the appellant that he, alone, is not the tenant nor is it the defence of the appellant that the suit was bad for not impleading the other heirs of his father, it necessarily follows that after the death of father of the appellant, a new tenancy was created after the surrender of the old tenancy held by the father by all his heirs. 12. IN such circumstances, the question is even if, we assume for the sake of argument that Dhiren Biswas, the nephew of the father of the appellant, at one point of time used to stay when the tenancy was in the name of his maternal uncle as his dependant, whether he can be treated to be the member of the family of the appellant when that tenancy has been surrendered and a new tenancy has been created in favour of his cousin brother, the appellant. We have already pointed out that Dhiren Biswas is not dependant upon the appellant and therefore, simply because at one point of time when the tenancy stood in the name of his maternal uncle, he used to stay with his mother under the protection of the father of the appellant, that fact cannot enable Dhiren Biswas to stay with his wife and children as a member of the family of the appellant when the appellant has decided to take a new tenancy in his name and is actually staying there with his family. 13. 13. WE, thus, find that in the fact of the present case, the earlier possession of dhiren Biswas as a dependant of his maternal uncle, even if, is found to be true, cannot absolve the appellant of the act permitting Dhiren, who is in no way dependant upon him, to exclusively occupy the property thereby causing the mischief of sub-tenancy or assignment of the tenancy, once a fresh tenancy was created in his favour and he is not at all staying in the said property. 14. EVEN the principles laid down in the decision cited by Mr Ghosh in the case of A. S. Sulochana (supra) have been subsequently overruled by a Larger bench of the Supreme Court in the case of Imdad Ali v. Keshav Chand and others reported in A. I. R. 2003 SC 1863 and therefore, the said decision cannot be of any help to the appellant. 15. WE, thus, find that it has been proved that the real tenant has left the suit property and taken a new tenancy in a house close by and the entire suit property is in occupation of Dhiren Biswas who has separate business and not even in same mess with the appellant. 16. WE, consequently, find that the learned Trial Judge, in the facts of the present case, rightly granted a decree for eviction on the ground of sub-tenancy in favour of Dhiren Biswas. We find no reason to interfere with the judgment and decree passed by the learned Trial Judge. 17. THE appeal is, thus, dismissed in terms of our aforesaid observations. In the facts and circumstances, there will be, however, no order as to costs.