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2015 DIGILAW 708 (CAL)

Gopal Ram Gupta v. Jitendra Nath Dutta (since deceased), Atanu Dutta

2015-08-21

ASHIS KUMAR CHAKRABORTY

body2015
JUDGMENT : Ashis Kumar Chakraborty, J. The second appeal, at the instance of the defendant-tenant has been filed against the judgment and decree passed by the learned 10th Court of Additional District Judge at Alipore, in Title Appeal No. 145 of 2007 affirming the judgment and decree for eviction passed by the learned Civil Judge (Senior Division), 4th Court, Alipore in the ejectment suit being Title Suit No. 125 of 2000, on the ground of default of payment of rent. 2. At the time of admission of the second appeal, the Division Bench directed that the appeal will be heard on the following substantial question of law:- "Whether the learned Judges in the Courts' below substantially erred in law and on fact in rejecting the application under Section 151 of the Code of Civil Procedure filed by the defendant-tenant for condonation of delay in depositing the arrears of rent." 3. After receipt of notice of the second appeal, the respondents also filed a cross-objection under Order 41, Rule 22 of the Code of Civil Procedure, 1908 against the judgment and decree of the first appellate Court affirming the judgment of the trial Judge rejecting the ground of eviction that the defendant appellant had sublet and transferred the suit property to third party without previous consent in writing of the original owner and the original plaintiff. 4. In the year 1966, the father of the original plaintiff, inducted the appellant as a monthly tenant in respect of the suit property at Premises No. 3E, Kundu Road, Kolkata, at a monthly rental of Rs. 500/-. The suit property is a double storied building in the heart of the city of Kolkata comprising three bedrooms, two kitchens, bath rooms and a courtyard on the ground floor and three bedrooms and one verandah on the first floor. After the death of the original owner, the suit property devolved upon the original plaintiff by virtue a will executed by the original owner (his father), duly probated by the competent Court. After the death of the original owner, the suit property devolved upon the original plaintiff by virtue a will executed by the original owner (his father), duly probated by the competent Court. After issuance of ejectment notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 hereinafter called as "the Act", to the appellant tenant, the original plaintiff filed the ejectment suit before the Court of the Civil Judge, (Senior Division), 4th Court, Alipore, on the grounds, inter alia, that the defendant-tenant has sublet the suit property without any consent in writing from the landlord, the defendant-tenant caused damage to the suit property and also made default in payment of rent. The defendant-tenant filed his written statement and contested the eviction suit. 5. The trial Judge framed various issues, inter alia, whether the defendant has sublet the suit property, whether the defendant caused damage to the suit property and whether the defendant, is a defaulter in payment of rent. 6. The original plaintiff and one of his sons, the present respondent no. 1 adduced both oral and documentary evidence before the trial Judge. The defendant -tenant himself adduced evidence, both oral and documentary. After considering the evidence of both the parties the trial Judge held the suit filed by the original plaintiff was maintainable and decreed the ejectment suit only on the ground that the defendant-tenant defaulted in payment of rent. The trial Judge, however, rejected the claim of the original plaintiff that the defendant-tenant caused damage to the suit property or that he had sublet the suit property. 7. The substantial question of law framed by the Division Bench at the time of admission of the second appeal arise out of the decision of the learned trial Judge that the defendant-tenant was a defaulter in payment of rent and resulting in passing of the eviction decree; the decree for eviction on the ground of default of payment of rent was affirmed by the lower appellate Court. In the second appeal before this Court, the appellant has challenged the validity of the eviction decree on the ground of default in payment of rent. Thus, I think that the main appeal of the appellant should be decided first. 8. The facts on which both the trial Judge as also the lower appellate Court held the defendant appellant defaulted in payment of rent are stated below. 9. Thus, I think that the main appeal of the appellant should be decided first. 8. The facts on which both the trial Judge as also the lower appellate Court held the defendant appellant defaulted in payment of rent are stated below. 9. In the ejectment suit, the defendant-tenant filed an application under Section 17(2) of the Act, inter alia, for determination of rent payable by him. The said application was contested by the original plaintiff. After hearing both the plaintiff and the defendant, the learned trial Judge fixed the date on September 08, 2003 for passing order in the said application. On September 08, 2003, the learned trial Judge passed an order disposing of the said application under Section 17(2) of the Act. The defendant was found to have defaulted in payment of monthly rent of Rs. 500/- for 85 months from September, 1996. By the said order dated September 08, 2003, the learned trial Judge directed the defendant to pay the arrear rent of Rs. 54,300/- (inclusive of interest of Rs. 11,800/-) in instalments at the rate of Rs. 5000/- per month, together with the current rent to be paid within the fifteenth day of each month. Thereafter, the trial of the suit commenced and in his cross-examination the defendant denied to have defaulted in making of the said sum of Rs. 54,300/- in terms of the said order dated September 08, 2003. 10. However, after conclusion of the evidence in the suit, on February 19, 2007 at the stage of argument the defendant filed an application under Section 151 of the Code of Civil Procedure, 1908, hereinafter called as "the Code", admitting that he defaulted to make payment of the arrear rent as directed by the said order dated September 08, 2003 and prayed for leave of the Court to deposit the monthly arrear rent which was payable from the month of September, 2003 to April, 2004 by condoning his latches. Since the said application was filed by the defendant at the stage of the argument, the learned trial Judge disposed of the said application along with the judgment passed in the ejectment suit. Since the said application was filed by the defendant at the stage of the argument, the learned trial Judge disposed of the said application along with the judgment passed in the ejectment suit. In the said application the defendant alleged that the date fixed for passing said order went out from the mind his advocate and as the Court was lying vacant his advocate failed to know the outcome of the order and he went on filing hazira through his advocate keeping track of the case. He further alleged that since September, 2003 till April, 2004 he had faced manifold circumstances which prevented him from contacting his advocate in Court and for personally coming to the Court to know the order. His advocate was also busy with his professional work in other courts where presiding officers were available and his case went out the mind of the advocate. The prayer of the defendant in the said application was that he should be permitted to deposit the monthly arrear rent from the month of September, 2003 to April, 2004 by condoning the latches. However, at the time of argument of the said application under Section 151 of the Code, on March 13, 2007, the defendant filed challans before the trial Judge that he has deposited the arrear rent together with interest amounting to Rs. 5,700/- on February 27, 2007. However, the said challan did not mention the period for which arrears of rent the defendant deposited the amount. On the basis of payment of the said amount of Rs. 5,700/- by the said challans, the defendant claimed that there was no default on his part to comply with the said order dated September 08, 2003. 11. The learned trial Judge found that the said application of the defendant under Section 17(2) of the Act was contested by the original plaintiff and September 08, 2003 was the date fixed for passing of the order in the said application and even after passing of the said order dated September 08, 2003 on various dates the defendant filed his hazira/presence through his advocate before the Court. After considering the records, the trial Judge did not accept the contention of the defendant-appellant that either his advocate or he himself was not aware of the said order dated September 08, 2003. After considering the records, the trial Judge did not accept the contention of the defendant-appellant that either his advocate or he himself was not aware of the said order dated September 08, 2003. The trial Judge further held that in the meantime, after the said date of September 08, 2003 on the subsequent dates the defendant has filed hazira and it cannot be said that the 17(2) order was not known to the defendant. After considering the facts of the case, the trial Judge held that it cannot be believed that the defendant had no knowledge of the said order dated September 08, 2003 for eight months. According to the trial Judge when the said application filed under Section 151 was pending, the defendant without obtaining any order or direction of the Court deposited a sum of Rs. 5,700/- on March 13, 2007 by a challan, (which even did not disclose the period for which the said sum of Rs. 5,700/- was paid) cannot be accepted as payment of arrear rent in terms of the said order dated September 08, 2003. Thus, on the basis of the aforesaid findings reached after appreciation of the facts of the case, the learned trial Judge rejected the said application of the defendant under Section 151 of the Code and held the Issue No. 4, that is, whether the defendant is a defaulter in payment of rent in favour of the original plaintiff and consequently decreed the eviction suit. The trial Judge, however, decided the issue of subletting by the defendant in the negative against the original plaintiff. 12. The defendant-tenant carried the said eviction decree passed by the learned trial Judge in appeal to the first appellate Court. The original plaintiff also filed a cross-objection against the judgment and decree of the learned trial Judge deciding the issue of subletting and/or transferring of the suit property by the defendant in the negative. 12. The defendant-tenant carried the said eviction decree passed by the learned trial Judge in appeal to the first appellate Court. The original plaintiff also filed a cross-objection against the judgment and decree of the learned trial Judge deciding the issue of subletting and/or transferring of the suit property by the defendant in the negative. After considering the facts as stated in the said application of the defendant -tenant under Section 151 of the Code and the records of the case, the first appellate Court, that is, the learned Additional District Judge agreed with the finding of the trial Judge that even during vacancy of the Court, the defendant regularly took steps in the suit before the learned trial Judge and as such it can hardly be believed that the learned advocate of the defendant or the defendant was not aware of the order dated September 08, 2003 and dismissed the appeal of the defendant-tenant. The learned lower appellate Court however, also dismissed the cross-objection, filed by the original plaintiff appellant. 13. Mr. Ahmed appearing for the appellant strenuously urged that the decisions of both the learned trial Judge and the lower appellate Court rejecting the application filed by the defendant appellant under Section 151 of the Code and the eviction decree passed against the defendant appellant on the ground of default of payment of rent is vitiated by perversity. In support of his contention, he relied on a decision of the Supreme Court in the case of Monojlal Seal and Ors. v. Octavious Tea and Industries Ltd. reported in 2015 (5) Scale 436 . 14. However, Mr. Sudhis Dasgupta, learned senior counsel, appearing for the respondents landlords submitted, that in the instant case, the decision of the learned trial Judge rejecting the application of the defendant-tenant under Section 151 of the Code as also the decision of the first appellate Court affirming the said decision of the trial Judge that the defendant-tenant has defaulted in payment of rent are based on appreciation of facts and the counsel appearing for the appellant has not been able to demonstrate that the decision of either the learned trial Judge or the learned first appellate Court is vitiated by perversity. Thus, according to Mr. Dasgupta, there is no substantial question of law to be determined by this Court in this appeal. In support of his contention, Mr. Thus, according to Mr. Dasgupta, there is no substantial question of law to be determined by this Court in this appeal. In support of his contention, Mr. Dasgupta relied on the decision of the Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari (deceased) reported in (2001) 3 SCC 179 . He further submitted that decision of the Supreme Court in the case of Monojlal Seal and ors. (supra) cited by Mr. Ahmed has no manner of application in this case. 15. In the instant case, from the records, particularly the order sheets of the trial Court it is evident that the application under Section 17(2) of the Act filed by the defendant-tenant was contested by the original plaintiff and after hearing the parties by order no. 42 dated August 29, 2003, the learned trial judge fixed the date September 08, 2003 for passing the order in the said application. By an order no. 43 dated September 08, 2003, the learned trial Judge disposed of the said application under Section 7(2) of the Act by directing the defendant appellant to pay, the arrear rent together with interest amounting to Rs. 54,300/- by instalment of Rs. 500/- per month plus current rent to be paid within fifteen day of each month. The next date was fixed on December 03, 2003 before the trial Judge for discovery of documents. On December 03, 2003, the defendant appellant appeared before the trial Court and filed a petition for time to take steps regarding discovery and next date was fixed on January 03, 2004. From time to time in the month of January, April, July and September, 2004, the suit appeared before the trial Judge, the defendant filed haziras/presence and obtained extension of the time to discover his documents. From the month of May 2004, the defendant appellant started to deposit the arrear occupation charges at the rate of Rs. 5000/- per month. The trial of the suit commenced, witnesses of both the plaintiff and the defendant respectively adduced the evidence. In his cross-examination defendant appellant denied to have committed any default in payment of the monthly instalment of arrear rent in terms of the said order dated September 08, 2003. 5000/- per month. The trial of the suit commenced, witnesses of both the plaintiff and the defendant respectively adduced the evidence. In his cross-examination defendant appellant denied to have committed any default in payment of the monthly instalment of arrear rent in terms of the said order dated September 08, 2003. After conclusion of evidence of the parties, it was at that time of the oral argument, the defendant-appellant filed the application under Section 151 of the Code praying for extension of time to deposit the arrear monthly rent, in terms of the said order dated September 08, 2003 for the months of September, 2003 to April, 2004. In the application there was no statement of the defendant appellant that he came to know about the said order dated September 08, 2003 only in April 2004 and thereafter he started to deposit the occupation charges from May, 2004. From the order sheets of the trial Court, forming part of the record of the appeal, it is evident that on December 03, 2003 a prayer was made on behalf of the defendant appellant for extension of time for discovery of documents and on the subsequent dates of hearing, hazira/presence was filed on behalf of the defendant appellant before the trial Judge. In his cross-examination the defendant appellant asserted that he has complied with the order dated September 08, 2003. 16. Considering the above facts, the learned trial Judge refused to accept the case of the defendant-appellant that he had no knowledge of the order dated September 08, 2003, rejected his application under Section 151 of the Code and consequently passed the eviction decree against the defendant appellant on the ground of default in payment of rent. 17. The above decision of the learned trial Judge on the basis of appreciation of facts of the case was upheld by the learned first appellate Court. It is settled law that the High Court hearing a second appeal under Section 100 of the Code should not interfere with the concurrent findings of facts of both the learned trial Judge and the learned first appellate Court unless such finding is perverse or not supported by acceptable evidence. 18. It is settled law that the High Court hearing a second appeal under Section 100 of the Code should not interfere with the concurrent findings of facts of both the learned trial Judge and the learned first appellate Court unless such finding is perverse or not supported by acceptable evidence. 18. After considering the records of and the evidence adduced by the parties before the learned trial Judge, I am unable to find any perversity in the concurrent findings of the learned trial Judge and the learned first appellate Court decreeing the suit for eviction against the appellant on the ground of default of payment of rent. So far as the decision of the Supreme Court in the case of Monojlal Seal (supra) cited by Mr. Ahmed on behalf of the defendant appellant, in the said case, a suit for eviction was filed by the landlord against the tenant under the provisions of West Bengal Premises Tenancy Act, 1997. The tenant filed two applications under Sections 7(1) and 7(2) of the said Act of 1997. Section 7(1) application was disposed of by directing the tenant to deposit the rent as prayed in the said petition. By virtue of an amendment in Section 7 of the 1997 Act, the tenant was required to deposit the rent with the Civil Judge instead of the controller. 19. However, the tenant in the said case, instead of depositing the rent of the Civil Judge, deposited the rent with the controller. Since the tenant in the said case deposited the rent with the controller a contention was raised by the landlord in the said case that the defendant-tenant has become a defaulter and its defence was liable to be struck out. After considering all the facts of the case in the Supreme Court, in the said decision held that the tenant will be at liberty to satisfy, at the trial of the suit, that such deposit with the rent controller instead of Civil Judge was bona fide. Thus, it is evident that the said decision has no bearing in the instant case. 20. For all the above reasons, I do not find any error of law committed by the learned courts below in passing the decree for eviction against the appellant tenant on the ground of default of payment of rent. 21. Thus, it is evident that the said decision has no bearing in the instant case. 20. For all the above reasons, I do not find any error of law committed by the learned courts below in passing the decree for eviction against the appellant tenant on the ground of default of payment of rent. 21. So far as the cross-objection of the respondents landlords the same is against the decision of the lower appellate Court affirming the judgment of the trial Judge in respect of the issue no.9, that is, the ground of sub-letting against the plaintiff/landlord. 22. In the plaint the plaintiff-landlord stated that the tenancy agreement in respect of the suit property was with the defendant and the entire suit property was let out to the defendant with effect from August 1, 1966. The tenancy agreement expressly provided that the tenant shall not be entitled to sublet or assign or transfer in any manner the suit property or any part thereof. The plaintiff further stated that the defendant is not staying in the suit property and he was staying with his family members in his newly purchased flat at 28, Pratapaditya Road as mentioned in the cause title of the plaint. Two bed rooms of the suit property is kept under the lock and key; the remaining two rooms on the first floor is being used by Pankaj Halder and Guptaji and the entire ground floor of the suit property has been sublet and transferred to Purusottam Agarwal, Nitin Agarwal and Nabin Agarwal. Thus, according to the plaintiff, the defendant has sublet and transferred the suit property without previous consent in writing of the plaintiff. 23. With regard to the above allegation of subletting and transfer of the suit property, in the written statement there was a general denial of the said allegation. However, in paragraph 19 of the written statement, the defendant alleged that Sohanlal Agarwal and he himself were two brothers living in joint family mess and they took the suit property as a rented accommodation in his name. After induction, both of them started to live in the suit property with their respective families. Sohanlal died in 1981 intestate, leaving behind his six sons. Out of the said six sons of Sohanlal, one of his sons namely, Amarnath and the defendant himself with their respective family members had been residing at the suit property. After induction, both of them started to live in the suit property with their respective families. Sohanlal died in 1981 intestate, leaving behind his six sons. Out of the said six sons of Sohanlal, one of his sons namely, Amarnath and the defendant himself with their respective family members had been residing at the suit property. After death of Amarnath in 1988 his wife Bhagawati Agarwal and his two sons Nitin Agarwal and Nabin Agarwal have been residing on the ground floor of the suit property. The defendant further made an averment that though he has purchased his flat at 28, Pratapaditya Road, he uses and enjoys the entire first floor of the tenanted premises throughout the day to look as his business place is far away from 28, Pratapaditya Road. 24. According to Mr. Dasgupta, appearing for the respondents landlords from the afore-mentioned averments of the defendant appellant in his written statement it is evident that the defendant appellant has accepted at least to things. First, that he has shifted his residence from the suit premises to his new flat at 28, Pratapaditya Road and at the highest he alone spends sometime of the day on the first floor of the suit property. Secondly, Purushottam Agarwal, Nitin Agarwal and Nabin Agarwal are in exclusive possession of the ground floor of the suit property. Thus, according to him, there was nothing further to be proved by the plaintiff, that the defendant appellant has shifted his residence from the suit property and at least the ground floor is in exclusive possession of the said Purushottam Agarwal, Nitin Agarwal and Nabin Agarwal, and as such the onus lied upon the defendant appellant to prove his defence pleaded in the written statement that there existed any joint family, comprising his own family and the family of his alleged brother Sohanlal since deceased in the year 1966 and that the said Sohanlal, or any of his family members started to reside at the suit property since the inception of the tenancy in the year 1966. He, strenuously urged that the defendant appellant while adducing evidence before the learned trial Judge could not discharge the said onus and he failed to prove the existence of any joint family comprising the members of his own family and the members of his alleged brother Sohanlal, far less that either Sohanlal or his wife or any of his children resided at the suit property since the inception of the tenancy in the year 1966. 25. Relying on the decision of the Supreme Court in the case of Roop Chand v. Gopi Chand Thelia reported in (1989) 2 SCC 383 , Mr. Dasgupta submitted in terms of Section 13(1)(a) of the Act subletting or transferring even a portion of the suit property, without the previous written consent of the plaintiff landlord, would entail the eviction of the appellant-tenant from the suit property. Citing another decision of the Supreme Court in the case of Bharat Sales Ltd. v. Life Insurance Corporation of India reported in (1998) 3 SCC 1 Mr. Dasgupta submitted that it is settled law that sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part and puts another person in exclusive possession thereof; the law does not require payment of any rent or consideration to be proved and delivery of exclusive possession is sufficient to prove sub-letting. Mr. Dasgupta also cited a decision of this Court in the case of Padmabati Debi v. Chittaranjan Dasgupta reported in (2005) 2 WBLR (Cal) 951, where a learned Single Judge while deciding a second appeal held that once the shifting of the tenant to another premises coupled with the exclusive possession of another person is proved, the onus shifts upon the defendant to prove that there was no subletting. The main contention of the respondents landlords is that in the instant case, in views of the averments made in paragraph 17 of the written statement when the onus was on the defendant appellant to prove that there was no subletting or transfer or parting with possession of at least a portion of the suit property, that is, the ground floor and the defendant appellant failed to discharge such onus, both the trial Judge and the first appellate Court committed an error of law by rejecting the ground of sub-letting or transfer or parting with possession of the suit property. 26. 26. However, Mr. Shamim Ahmed, appearing for the defendant appellant opposing the cross-objection contended that since during his cross-examination the PW 1, the original plaintiff stated that he is receiving rent from the said Purushottam, Navin and Nitin, neither the judgment of the learned trial Judge nor the judgment of the learned first appellate Court rejecting the ground of subletting or transfer of the suit property is vitiated by any error of law, which can be interfered with by this Court in second appeal. 27. I have considered the submissions of both Mr. Dasgupta and Mr. Ahmed the counsel appearing for the respective parties. With regard to the cross-objection of the respondents landlords filed in the second appeal, the substantial question of law that falls for consideration is, whether the concurrent findings of both the learned courts below rejecting the ground of subletting can be interfered with by this Court as being vitiated by an error as to the onus of proof. When the decision of the trial Court and the first appellate Court while deciding a case, wrongly cast onus of proof on a party, such decision can be interfered with by the High Court in second appeal under Section 100 of the Code. This view is fortified by the decision of the Supreme Court in the cases of Hero Vinoth v. Seshammal reported in (2006) 5 SCC 545 and Kashmir Singh v. Harnam Singh and Anr. reported in (2008) 12 SCC 796 . 28. As mentioned above, from the averment made in the written statement it is evident that the defendant has shifted his residence from the suit property to his new flat at 28, Pratapaditya Road, he enjoys the first floor of the suit property during the day time and that Purushottam Agarwal, Nabin Agarwal and Nitin Agarwal, hereinafter called as Purushottam, Nabin and Nitin respectively, are in exclusive occupation at least of the entire ground floor of the suit property. According to the defendant, in his written statement, the said Purushottam, Nabin and Nitin are the descendants of his brother Sohanlal Agarwal, since deceased who started to reside at the suit property since the inception of the tenancy in the year 1966 and the family of the defendant and the said Sohanlal since deceased constituted a joint family. According to the defendant, in his written statement, the said Purushottam, Nabin and Nitin are the descendants of his brother Sohanlal Agarwal, since deceased who started to reside at the suit property since the inception of the tenancy in the year 1966 and the family of the defendant and the said Sohanlal since deceased constituted a joint family. Thus, in view of the above pleadings of the defendant appellant in his written statement there cannot be any doubt that in the instant case, the onus lied on the defendant appellant himself to substantiate his defence that there existed any joint family comprising the members of his own family and the family of the said Sohanlal since deceased and, that Sohanlal, since deceased or his wife or any of his children started to reside at the suit property since the inception of the tenancy in the year 1966. 29. In his examination-in-chief by way of affidavit evidence, the original plaintiff proved and exhibited the agreement of tenancy dated 17.08.1966 the notice dated 14.12.1992 under Section 13(6) of the Act to the defendant and other documents. Apart from the other facts relating to the other grounds of eviction of the defendant the original plaintiff, in his examination-in-chief the plaintiff also stated that the defendant and his family has shifted his residence from the suit property to the new flat at 28, Pratapaditya Road, Kolkata and that the defendant has sublet and transferred the suit property to the said Purushottam, Navin and Nitin without his prior consent in writing. 30. In his cross-examination the plaintiff categorically stated that the family of the defendant consists of himself, wife, three daughters and two sons who all lived in the suit premises before shifting to the said new flat at 28, Pratapaditya Road. He specifically denied the suggestion that the defendant and his brother Sohanlal lived in the suit premises as tenants or that the defendant lived along with Purushottam or that the sons of Purushottam all along lived in the suit premises. The plaintiff categorically stated that the suit premises was let out to the defendant himself. He also denied the suggestion, that when the defendant came to reside in the suit property as tenant, his brother and brother's family lived together with the defendant's family at the suit premises. The plaintiff categorically stated that the suit premises was let out to the defendant himself. He also denied the suggestion, that when the defendant came to reside in the suit property as tenant, his brother and brother's family lived together with the defendant's family at the suit premises. The plaintiff also denied the suggestion that any of the sons of Sohanlal lived in the suit premises since the inception of the tenancy. He also stated Purushottam, Nitin and Nabin are occupying the ground floor of the suit premises, but he could not say for how many years they are in occupation. He further stated that Pankaj Haldar and Guptaji are no more residing on the first floor of the suit property. He further stated that the two rooms in the first floor of the suit premises has been kept under lock and key since the defendant and his family ceased to posses the suit property. However, he said that the said persons pay rent to him for their occupation and he issues rent receipts. 31. Whereas, from the evidence adduced by the defendant before the trial Judge, it is evident that he utterly failed to prove the existence of any joint family comprising the members of his own family and the members of his alleged brother Sohanlal or that either the said Sohanlal or any of his family members started to reside at the suit property since the inception of the tenancy in the year 1966. In his evidence, the defendant did not say that any of his family members is residing at the suit property. 32. The tenancy in question is admittedly governed by the provisions of the said Act. As it is clear from the language of Section 13(1) of the said Act and as has been held by the Supreme Court in the case of Rup Chand (supra), cited by Mr. Dasgupta on behalf of the respondents subletting or transferring or parting with possession of any portion of the suit property by the defendant tenant without previous consent in writing of the landlord would entitle the plaintiff landlord to claim eviction of the defendant from the suit property. Further as has been held by the Supreme Court in the case of Bharat Sales Limited (supra) cited by Mr. Further as has been held by the Supreme Court in the case of Bharat Sales Limited (supra) cited by Mr. Dasgupta that sub-tenancy or subletting, without the previous consent in writing of the landlord, comes into existence behind the back of the landlord, the law does not require payment of rent or other consideration by the sub-tenant to the tenant to be proved by the landlord as affirmative evidence and the only thing which is to be proved in a case of sub-tenancy of the suit property or any portion thereof, is delivery of the exclusive possession by the tenant to a third party. In spite of the fact that, in his written statement the defendant admitted the exclusive possession of the said Purushottam, Nitin and Nabin in respect of the ground floor of the suit property and that he had shifted his residence along with his family members to his new flat at 28, Pratapaditya Road, the decisions of both the learned trial Court and the learned first appellate Court that the onus lied on the plaintiff to prove the subletting of the suit property by the defendant and the plaintiff could not prove or discharge that exclusive possession was given to Purushottam, Nitin and Nabin, as also the consequent decision rejecting the ground of subletting by the defendant is vitiated by placing the onus on the wrong party. In this regard, I am in respectful agreement with the decision of a learned Single Judge of this Court in the case of Padmabati Debi (supra) that once the shifting of the tenant to another premises coupled with exclusive possession of another person is proved, the burden shifts on the defendant to prove that there was no subletting. 33. In the instant case, the defence of the defendant appellant in the eviction suit that the occupation of Purushottam, Nitin and Navin are in respect of the ground floor of the suit property is in continuity with the occupation of their father and grandfather (being Amarnath and Sohanlal Agarwal, respectively) who started to reside at the suit property from the inception of the tenancy in the year 1966 and as such there was no subletting or transfer or parting with possession of the suit property. The defendant appellant failed to the said defence. The defendant appellant failed to the said defence. It was not the case of the defendant appellant that there is any separate or independent tenancy of either Purushottam or Nitin or Navin. All the three persons Purushottam or Nitin or Navin claimed to be close relatives of the defendant are in occupation of the suit property and they must be aware of the eviction suit filed by the plaintiff. Neither Purushottam or Nitin or Navin has adduced evidence in the suit either to support the defendence of the defendant appellant or to claim any independent tenancy in respect of any portion of the suit property. For all these reasons, after considering the issues framed in the suit, the pleadings of both the defendant appellant and the deceased plaintiff and the evidence of the parties as whole, I cannot accept the contention of Mr. Shamim that the decision of the learned courts below rejecting the ground of subletting of the suit property only in view of a statement of the plaintiff adducing evidence at the age of 87 years that he receives rent from the said Purushottam, Nitin and Navin suffers from no illegality. Even a specific suggestion was put to PW 2, the son of the original plaintiff, that Purushottam, Nitin and Navin are occupying the suit property with the permission of the plaintiff and the PW-2 denied such suggestion. No rent receipt in favour of any of the said Purushottam or Nabin or Nitin could be disclosed by the defendant. 34. After considering the evidence of both the original plaintiff and the defendant appellant as a whole, I am unable to sustain the judgment of both the learned courts below rejecting the ground of subletting and transfer on the ground the PW 1 stated in cross-examination that said Purushottam, Navin and Nitin pays him rent. It settled law that the High Court in exercise of power under Section 100 of the Code can interfere with the concurrent findings of the courts below when the evidence, taken as a whole, is not reasonably capable of supporting the finding of the learned courts below. An authority for this view can be found in the decision of Hero Vinoth v. Seshammal reported in (2006) 5 SCC 545 (para 24). 35. For all the foregoing reasons, the second appeal filed by appellants stands dismissed and the cross-objection filed by the respondents-landlords stands allowed. An authority for this view can be found in the decision of Hero Vinoth v. Seshammal reported in (2006) 5 SCC 545 (para 24). 35. For all the foregoing reasons, the second appeal filed by appellants stands dismissed and the cross-objection filed by the respondents-landlords stands allowed. The judgement of both the learned courts below rejecting the ground of subletting of the suit property by the defendant appellant is set aside. 36. The defendant appellant is directed to vacate the suit property and to hand over vacant the peaceful possession thereof to the respondents landlords within a period of two months from date, failing which liberty is given to the respondents to recover the vacant possession of the suit property by executing the decree. Let the lower Court records be sent down to the learned court below forthwith.