JUDGMENT TARUN KUMAR GUPTA, J. 1. THIS Second Appeal is directed against judgment and decree dated 31st July, 2000 passed by learned Civil Judge (Senior Division) in Title Appeal No.1 of 1997. By said impugned judgment and decree learned Lower Appellate Court set aside judgment and decree dated 31st July, 1996 passed by learned Munsif, Additional Court, Sealdah in Title Suit No.107 of 1983. 2. THE respondent plaintiffs case, in short, is that defendant Shiba Brata Kabiraj was a tenant under him in the ground floor of premises No.3/B Shyamlal Street in respect of one room partitioned into two rooms and common latrine at a rental of Rs.110/- per month according to English Calendar month. THE defendant defaulted in payment of rent since January, 1975. Defendant along with his youngest brother started to occupy the suit premises initially. Later on another brother came to reside there and thereafter they inducted some other persons as boarders for running a mess in the suit premises. THE defendant converted mode of user of the suit premises from residential to commercial. Presently original defendant/tenant is residing in a separate premises at 22/2A Galiff Street in Kolkata and parted his possession with boarders and brothers. THE defendant was guilty of subletting the whole or major portion of tenancy without consent of plaintiff/landlord. THE tenancy of the defendant was terminated by sending a notice to quit. The appellant/defendant contested said suit by filing written statement followed by additional written statement denying material allegations of the plaint and contending inter alia that the allegation of running a mess in the suit premises was false and that since inception of tenancy, brothers of defendant resided in the suit premises along with defendant with consent of landlord and that one of the brothers namely Subha Brata has taken a separate flat nearby where all the brothers are taking meals. The suit was liable to be dismissed with cost. 3. ON the basis of the pleadings of the parties learned Trial Court framed as many as six issues including an issue as to whether defendant uses the suit premises other than for residential purposes. After contested hearing learned Trial Court dismissed the suit for eviction. 4. The suit was liable to be dismissed with cost. 3. ON the basis of the pleadings of the parties learned Trial Court framed as many as six issues including an issue as to whether defendant uses the suit premises other than for residential purposes. After contested hearing learned Trial Court dismissed the suit for eviction. 4. BY the impugned judgment and decree learned Lower Appellate Court, however, decreed the suit for ejectment on the ground that defendant/tenant changed the mode of user and that he was also guilty of parting with possession of the suit premises in favour of others. At the time of admission of this second appeal it was decided by the Division Bench of this Court that this appeal will be heard on the substantial question of law as to whether the learned Lower Appellate Court was justified in reversing the judgment and decree of the learned Trial Court on the basis of the evidence on record. 5. IN the case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others as reported in (1999) 3 SCC page 722 Honble Apex Court held that the second appeal under Section 100 of Code of Civil Procedure is maintainable only if any substantial question of law in involved in the case. It was further held that High Court cannot substitute its own opinion for that of the First Appellate Court unless it finds that the conclusions drawn by the lower court were erroneous being (1) contrary to the mandatory provisions of applicable law; or (2) contrary to the law as pronounced by the Apex Court; or (3) based upon inadmissible evidence or no evidence. 6. Mrs. Santi Das, learned advocate for the appellant has submitted, at the very outset, that learned Lower Appellate Court decreed the suit for eviction on the ground of subletting also though no specific issue on that score was framed either by learned Trial Court or by learned Lower Appellate Court. According to her, the impugned judgment of learned Lower Appellate Court so far as it relates to subletting should be set aside on that ground alone. Mr. According to her, the impugned judgment of learned Lower Appellate Court so far as it relates to subletting should be set aside on that ground alone. Mr. T. C. Dey, learned advocate for the respondent, on the other hand, has submitted that though the suit was initially filed on the ground of illegal change of mode of user i.e, from residential purposes to other purposes but later on through amendment of plaint the ground of illegal parting with possession and / or subletting was introduced and that appellant/defendant also filed additional W.S. denying said allegation and that both the parties adduced evidence touching said ground of assignment / subletting. According to him, non-framing of any specific issue is of little consequence under the facts and circumstances of the case. 7. I find much force in the aforesaid submission of Mr. Dey. When there were pleadings on the point of alleged assignment /subletting as well as evidence in support, as well as against said point and learned Lower Appellate Court discussed on that point it mattered little whether any specific issue was framed or not. 8. Mrs. Dey, learned advocate for the appellant, has submitted that the onus was upon the respondent /plaintiff /landlord to establish that there was change of mode of user or that there was assignment /subletting but plaintiff/landlord failed to discharge said onus miserably. She has further submitted that as per plaint case appellant /defendant/tenant Shiba Brata Kabiraj came to reside in the suit premises as a tenant along with his youngest brother but later on his other brothers started to reside there and that the tenant also inducted some other persons as paying guests and finally shifted to another house namely premises No.22/2A Galiff Street leaving possession of the suit premises in favour of alleged boarders and his other brothers. According to her there was no convincing evidence to that effect. In this connection she has further submitted that as per evidence of P.W.s. there was no kitchen in the house and as such there was no scope of keeping paying guests or running mess without having any arrangement of cooking. According to her there was no convincing evidence to that effect. In this connection she has further submitted that as per evidence of P.W.s. there was no kitchen in the house and as such there was no scope of keeping paying guests or running mess without having any arrangement of cooking. She has also referred a case law reported in AIR 1987 Supreme Court 409 (Sachindra Nath Shah v. Santosh Kumar Bhattacharya) wherein it was held that tenant taking a person or two as paying guest for available spare rooms did not amount to using premises for different purposes within the meaning of Section 13(1)(A) of the West Bengal Premises Tenancy Act, 1956. Mr. Dey, learned advocate for the respondent/landlord in refuting the aforesaid contention, has submitted that it came out from the evidence of defendant that they used the space under the staircase for the purpose of cooking and as such it cannot be said that there was no arrangement for cooking by the tenant. He has further submitted that the referred case law has no application in this case as in the referred case law the tenant used to reside in the suit premises but in the case in hand it came out that the appellant/tenant has shifted from the suit premises. 9. Mrs. Santi Das, learned advocate for the appellant/tenant has further submitted that in order to establish the alleged case of subletting it has to be shown that tenant has given exclusive possession to a third party in respect of entire suit premises or at least a part thereof and that some consideration was passed between them. 10. ACCORDING to her, one of the brothers of appellant/tenant namely Subhabrata Kabiraj was a tenant in respect of premises No.22/2A Galiff Street and that present appellant/defendant/tenant and his other brothers residing in the suit premises used to go there to take their meals and that there is no evidence to show that present appellant/tenant gave exclusive possession of the suit premises or even a part thereof to a third party or that for that purpose any consideration was passed. In this connection she has referred a case law reported in AIR 1990 Supreme Court page 1208 (Mrs. In this connection she has referred a case law reported in AIR 1990 Supreme Court page 1208 (Mrs. Delhi Stationers and Printers v. Rajendra Kumar) wherein Honble Apex Court in connection with subletting under Rajasthan Premises (Control of Rent and Eviction) Act, 1950 held that tenant is liable to be evicted if assigned, sub-let or otherwise parted with possession of the whole or any part of the premises without the permission of the landlord and that subletting means transfer of an exclusive right to enjoy the property in favour of the third party that too in lieu of payment or some consideration and that mere occupation not sufficient to infer either sub-tenancy or parting with possession. She has also referred a case law reported in AIR 1987 (Supreme Court) page 2055(Dipak Banerjee v. Smt. Lilabati Chakraborty) wherein it was held by the Honble Apex Court that in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly the sub-tenants must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent. 11. MR. Dey, on the other hand, has submitted that as transaction between tenant and sub-tenant is usually done in a clandestine manner keeping the landlord in dark, landlord is not in a position to give any evidence about passing of consideration. 12. According to him, if it can be shown prima facie that the third party is in possession of a portion or entire suit premises then onus shifts upon tenant to establish that the said occupancy did not amount to parting with possession and or subletting. It has been decided in a number of cases that as subletting takes place without consent of the landlord he is generally a stranger to the agreement, if any, of subletting between his tenant and sub-lessee, and it is difficult for him to produce direct evidence. To prove subletting the landlord has no alternative but to rely on attending circumstances. Once it is proved that there has been transfer of possession of the lease hold property without permission of landlord, the only person who can account for it is the lessee and his transferee. To prove subletting the landlord has no alternative but to rely on attending circumstances. Once it is proved that there has been transfer of possession of the lease hold property without permission of landlord, the only person who can account for it is the lessee and his transferee. On transfer of possession of the lease hold property, the onus shifts upon the tenant to make out that transfer of possession cannot be attributed to subletting or assigning. It is for tenant to prove, under what arrangement he transferred the possession to another person. In this connection Mr. Dey has further argued that the Title Suit in the learned Trial Court was decreed ex partie and that a Misc. Case under Order 9 Rule 13 was filed by the present appellant/tenant being Misc. Case No.18 of 1984 wherein present appellant /defendant/tenant and one Bikash Nandan Thakur deposed as P.W.1 and P.W.2 respectively in support of the grounds of the Misc. Case petition. Mr. Dey has referred to the evidence of said witness Bikash Nandan Thakur in said Misc. Case No.18 of 1984 wherein he admitted that he resided with the petitioner/tenant in the suit premises and that five persons including petitioner and said witness resided in the room of the petitioner. In this connection he has also drawn my attention to the evidence of the present appellant/defendant/tenant in the Title Suit wherein he gave evasive answers about giving evidence of Bikash Nandan Thakur in Misc. Case. However, he tried to deny the stay of Bikash Nandan Thakur and other persons in the suit house. 13. MR. Dey has further submitted that as Bikash Nandan Thakur was not produced by the defendant/tenant as a witness in said ejectment suit to deny the averment of Bikash Nandan Thakur in the Misc. Case regarding his and other persons stay in the suit premises, an adverse inference should be drawn against appellant/tenant. In this connection he has referred to the finally published electoral role of 158 Battala Legislative Assembly Constituency of West Bengal for 1995 relating to premises No.22/2A Galiff Street which was marked as Ext.2 in this case. 14. IT appears from Ext. 2 that present appellant/defendant/tenant and his wife along with their other relations including their brothers were shown as resident voters of premises No.22/2A Galiff Street. According to Mr. 14. IT appears from Ext. 2 that present appellant/defendant/tenant and his wife along with their other relations including their brothers were shown as resident voters of premises No.22/2A Galiff Street. According to Mr. Dey said notings of voter list also found support from the evidence of P.W.3 being the landlord of said premises No.22/2A Galiff Street. According to him, said entries in finally published voter list has presumptive value of correctness and that the onus is upon appellant/tenant to show that those entries were wrong. It appears from Lower Court records that appellant/defendant/tenant filed copies of ration cards, copies of voter identity cards to show that the residence of appellant/defendant/tenant was shown as suit premises i.e., 3 B Shyamlal Street, Calcutta. It appears that those ration cards were issued long back i.e., in 1979 1980 etc. 15. IT is true that there is some conflict between the entries of finally published voter lists and voter identity cards regarding the place of residence of the present appellant/defendant/tenant. Entries in voter list are made after door to door checking and verification whereas entries in the voter identity cards are made on the basis of documents produced by the party concerned namely ration card, age proof document etc. without actual verification. 16. IN view of the above, learned Lower Appellate Court gave stress on the entries of voter list and came to the finding that appellant/defendant/tenant started to reside in 22/2A Galiff Street and parted with possession of the suit premises which is being occupied by boarders and some of his brothers who were not tenants. Under the facts and circumstances it cannot be said that the findings of Lower Appellate Court that the appellant/defendant/tenant parted with possession of the suit premises by giving possession to third parties and that the suit premises which was initially let out for residential purposes was being used as mess cannot be said to be based on no evidence. Even if there is scope of interpretation of the evidence on record on some other way, still High Court should not substitute its own opinion for that of the First Appellate Court. Accordingly, I am of the opinion that the impugned judgment and decree of learned Lower Appellate Court granting ejectment decree does not call for any interference by this Court in this Second Appeal. As a result, this Second Appeal is dismissed on contest, however, without cost. Accordingly, I am of the opinion that the impugned judgment and decree of learned Lower Appellate Court granting ejectment decree does not call for any interference by this Court in this Second Appeal. As a result, this Second Appeal is dismissed on contest, however, without cost. Send down L.C.R. along with a copy of this judgment to the Lower Court at the earliest. Xerox certified copy of this judgment be supplied to learned Counsels of the party / parties, if applied for. (Tarun Kumar Gupta, J.) Later Mrs. Santi Das, learned advocate appearing for the appellant, prays for stay of operation of the judgment. The prayer for stay of operation of the judgment is considered and rejected.