Calcutta High Court (Appellete Side)
Sri Ashok Kumar Mukherjee vs Usha Rani Debi & Ors on 18 May, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. No.120 of 1997
Sri Ashok Kumar Mukherjee
Versus
Usha Rani Debi & Ors.
For the appellant: Mr. S. P. Roychowdhury
Mr. Anit Rakshit
Mr. Pritibhusan Chakraborty
Mr. Pashupati Sana
For the respondent: Mr. A. K. Ghoshal
Mr. S. K. Bhattacharya Ms. Chandramala Mukherjee Judgment on: May 18, 2012 Tarun Kumar Gupta, J.:-
Defendant tenant is the appellant against this judgment of confirmation. The respondent No.1 as the plaintiff filed a suit for eviction against the present appellant defendant tenant (defendant No.1) as well as against the proforma respondent No.2 (defendant No.2) alleged to be a sub-tenant. According to plaintiff, she purchased the suit property from one Latikabala Sadhukhan through a registered kobala dated 17th January, 1983. Defendant No.1 was a tenant in respect of the suit 2 premises under Latikabala Sadhukhan who issued a letter of attornment to the tenant. In spite of receipt of letter of attornment, defendant tenant did not pay rent. He defaulted in payment of rent since February, 1983. He also illegally sub-let and transferred suit premises to the defendant No.2 without the knowledge and written consent either of the plaintiff or of earlier owner landlord. Suit premises was in exclusive possession of the defendant No.2. Accordingly, plaintiff landlord issued a notice to quit to the defendant tenant on the ground of default as well as sub-letting which was duly received by the defendant tenant. As defendant tenant did not vacate the suit premises in spite of receipt of notice, the suit for eviction was filed.
Defendant No.1 contested the suit by filing written statement denying ownership of the plaintiff in the suit premises and contending, inter alia, that both the defendant No.1 and 2 were joint tenants under Jitendra Nath Sadhukhan, husband of Latikabala Sadhukhan. Both defendant No.1 and 2 were living in joint mess and the tenancy was a joint tenant though the rent receipt was issued in the name of the defendant No.1. The allegation of sub-letting was false and the suit was liable to be dismissed. Several issues were framed including one issue as to whether defendant No.1 sub-let the premises of the defendant No.2. Learned Trial Court granted decree of eviction only on the ground of sub-letting which was confirmed by the learned court of appeal. At the time of hearing of this second appeal, the following substantial question of law was formulated:-3
(a) Whether learned Courts below substantially erred in law by holding that the suit premises has been sub-let by defendant No.1 in favour of the defendant No.2 without considering the established legal test.
Mr. S. P. Roychowdhury, learned senior counsel for the appellant tenant, submits that plaintiff landlady purchased the suit property on 19th January, 1983 and filed the suit for eviction on the ground of sub-letting and other grounds in March, 1985. He further submits that admittedly the defendant tenant took tenancy of the suit premises long before said purchase of the plaintiff. According to him, plaintiff had no personal knowledge as to the terms of induction of the defendants in the suit premises. He further submits that no exact date, month or year of alleged sub-letting by defendant No.1 to the defendant No.2 was pleaded in the plaint. He further submits that plaintiff's vendor namely Latikabala Sadhukhan was not also examined to establish the plaintiff's case that defendant No.1 was the sole tenant and that he sub-let the suit premises to the defendant No.2 without the knowledge and consent of said Latikabala Sadhukhan, the earlier landlady. It is further submitted by Mr. Roychowdhury that in order to establish sub-letting the landlord has to establish that the alleged sub-tenant was in full or in exclusive control of the suit premises and that too, against some consideration. According to him, in the case in hand, the plaintiff landlord failed to state that wherefrom and whenfrom the alleged sub-tenancy started. He further submits that there is also no iota of evidence to show that the defendant 4 No.2 was in exclusive possession of the suit premises or that any consideration was passed for said possession of the defendant No.2 in the suit premises. iN support of his contention Mr. Roychowdhury refers the case of Dipak Banerjee vs. Smt. Lilabati Chakraborty reported in (1987) 4 SCC 161, wherein it was held that in order to prove sub-tenancy, it has to be established that the alleged sub-tenant was in exclusive possession of the suit premises and that tenant had no control over the same, and that said right to occupy the premises was in lieu of payment of some consideration of rent. Mr. Roychowdhury also refers to a case law reported in (1996) 1 SCC 25 (Deb Kumar (died) Through LRS. vs. Swaran Lata (Smt. and Ors) wherein it was held that the conclusion on the question of sub-letting is a conclusion on a question of law derived from findings on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration and that the burden of making a case of sub-letting is on the landlord / landlady. He further refers to another case law reported in AIR 1987 SC 2055 (Dipak Banerjee vs. Lilabati Chakraborty). In this connection, Mr. Roychowdhury submits that the learned courts below wrongly held that the defendant No.2 being nephew of defendant No.1 was a sub-tenant under defendant No.1 without applying the correct legal tests and that said findings of fact being arrived at without applying correct test is liable to be scrutinized and explored in the second appeal. In support of his contention, he refers the case of Budhwanti & Another vs. Gulab Chand Prasad 5 reported in AIR 1987 SC 1484. In the said case, it is held by the Hon'ble Court that in the second appeal, the finding of fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong test or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal patently erroneous findings in order to render justice to the party affected by the erroneous finding.
Mr. A. K. Ghoshal, learned counsel for the respondent landlord, on the other hand, submits that it came out from evidence on record as well as from the admission of the defendant No.1 tenant that since 1978, he was permanently residing at Bankura with his family members and that he was running a medicine shop therein. Mr. Ghoshal further submits that it came out from the evidence of defendant No.1 tenant that defendant No.2 was in possession of the suit premises exclusively since then. He further submits that from the evidence of defendant /tenant, it came out that the defendant No.2 was his nephew and that defendant No.2's father and other relations resided in other portion of the suit house as a tenant. Mr. Ghoshal further submits that it came out from the evidence on record that while defendant No.1 took tenancy in the suit premises then defendant No.2 was a minor and as such the story of taking alleged joint tenancy was nothing but a false one. He has also drawn the attention of this Court to the evidence of defendant No.1 tenant as well as findings of learned courts below to show that though defendant No.1 tenant claimed to have 6 retained possession in the suit premises but he could not state whether defendant No.2 was staying there with his family or not or whether defendant No.2 has any issue out of the wedlock or not. According to him, this shows beyond any shadow of doubt that defendant No.1 tenant had no connection whatsoever with the suit tenancy which is in exclusive possession of the defendant No.2. He next submits that once it is established that a person other than lawful tenant is in exclusive possession of the suit premises then the onus is upon the tenant to show under what capacity said person is in exclusive possession of the suit premises. According to him, the defendant has miserably failed to discharge said onus and accordingly both the courts below came to a concurrent findings of fact that defendant No.2 was in exclusive possession of the suit premises in the capacity of sub-tenant. According to him these concurrent findings of fact are based on evidence and do not call for any interference under Section 100 of the Code of Civil Procedure. In support of his contention, he has referred the case laws reported in AIR 1970 SC 986 (Bhagwan Dass & Another vs. S. Rajdev Singh & Anr.), (1989) 1 SCC 19 (Smt. Rajbir Kaur and Anr. Vs. M/s. S. Chokesiri & Co.) 1994 (11) CHN 172 (Ajit Kumar Halder vs. Swapan Kumar Roy and Ors.) and 2011 (4) Supreme page 704 (V. Sumatiben Maganlal Manani (dead) by L.R. Vs. Uttamchand Kashiprasad Shah & Anr.).
In Bhagwan Dass's case (supra) it was held by Hon'ble Apex Court that when both the authorities duly came to concurrent findings of fact of creation of sub- 7 tenancy applying correct legal test then no second appeal lies as no question of law not to speak of a substantial question of law is involved in that case.
In Rajbir Kaur's case (supra) it was held that if exclusive possession is established, and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, as in the present case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind though it was open to the tenant to rebut this. It was further held that the appellate court should not too lightly interfere with the appreciation of oral evidence made by the trial court, particularly based on the credibility of the witnesses whose demeanour the trial court has had the advantage of observing.
In Ajit Kumar Halder's case (supra) it was held by this Court that where it is not possible for the respondent to prove payment of consideration money in respect of the suit premises the plaintiff is entitled to a decree on the ground of sub-letting by proving that the sub-tenant is in exclusive possession of the suit premises for a long time and that the tenant is not in possession for a long time.
In V. Sumatiben Maganlal Manani's case (supra) Hon'ble Apex Court again held that in order to establish the facts of sub-letting it is not necessary to prove monetary considerations between the tenant and the sub-tenant. 8
There is no denial that the initial onus to prove sub-tenancy was on the landlord. In order to prove sub-tenancy it has to be established that the tenant has parted with possession of the suit premises in favour of a third party who is in exclusive possession of the same and that said transfer of possession was made for some consideration. As subletting takes place without the consent of the landlord, he is generally a stranger to the agreement of subletting between his tenant and sub- tenant and it is difficult for him to produce direct evidence. To prove subletting the landlord has to rely on attending circumstances. Once it is proved that there has been transfer of possession of the tenanted premises without the written permission of the landlord, the only person who can account for it is the tenant and his transferee i.e., sub-tenant. On the proof of transfer of possession of the tenanted premises, the onus shifts upon the tenant to show that said transfer of possession cannot be attributed to subletting. In such a case, it is for the tenant to prove under what arrangements and / or circumstances he transfers the possession to another person.
In the case in hand, it came out from evidence on record that since 1977 the defendant tenant was residing in Bankura with his family members and that he was running a medicine shop therein. It also appears that the summon of the suit was sent to the defendant tenant in his Bankura address and that the same was duly served upon him. There is no denial also that defendant No.2 Amiya Mukherjee was in exclusive possession of the suit premises since then. Appellant tenant Ashoke 9 Kumar Mukherjee took a plea in his written statement that at the time of commencing of said tenancy in the early part of 1970 he along with defendant No.2 took joint tenancy of the suit premises from its the owner Jitendra Nath Sadhukhan though rent was issued in his name alone. However, it came out from evidence that at the relevant time defendant No.2 was a minor one and as such the story of taking joint tenancy was not believable to the Courts below. During trial appellant tenant tried to make out a case that defendant No.2 was in permissive possession of the suit premises and that defendant No.1 tenant still kept control over the same though he was staying in Bankura in connection with his medicine business. However, it came out from evidence that the appellant tenant could not state whether defendant No.2 occupies the suit premises alone or along with his family or whether they had any issue after said marriage. This only goes to show that appellant tenant had no connection whatsoever with the suit premises since he left the same and started to reside at Bankura with his family members for running his medicine business. There is only one bedroom in the suit premises other than kitchen, bathroom etc. It was not probable that appellant tenant along with his wife resided in said one bedroom along with defendant No.2. It also came out from evidence on record that defendant No.2's father and other two brothers were residing in other portion of the suit house as a tenant and there was no explanation as to why defendant No.2 would stay with plaintiff from his young age. It is also strange to find that defendant No.2 10 did not come forward to give evidence to clarify those hazy points. In view of the aforesaid evidence and other materials on record learned Courts below came to concurrent findings of fact that since 1977 appellant tenant left the suit premises and started to reside along with family members at Bankura for running his medicine shop. Learned Courts below further came to concurrent findings of fact that since then defendant No.2 was in exclusive possession of the suit premises and appellant tenant had no connection with and or control whatsoever over the suit premises. In view of said overwhelming evidence on record regarding parting with possession of the suit premises by appellant tenant and exclusive possession of the same by defendant No.2 the onus shifted to the appellant defendant to explain under what capacity the defendant No.2 was in exclusive possession of the same. Unfortunately, appellant tenant failed to give any satisfactory explanation for the same. In the case in hand, the incident of leaving away the suit premises by the appellant tenant took place in 1977-78 whereas the present plaintiff purchased the same only in 1983. As such, it was not possible for the plaintiff to give the exact year of commencement of said subletting. There is nothing to show that appellant tenant obtained any written consent from the earlier landlord namely Jitendra Nath Sadhukhan or after his death from his wife Latikabala Sadhukhan. Now to discharge said onus defendant tenant could have examined Latikabala Sadhukhan as a witness but he did not dare to examine her to establish his alleged defence. In support of the alleged possession of 11 the suit premises by the appellant tenant one ration card (Ex.8) in the name of appellant tenant in the address of suit premises was filed and was marked as exhibit 8 but it was issued in 1993 whereas the suit was filed in 1985. Had the appellant tenant continued to possess the suit premises and to draw ration from local ration office then the ration card should have been of the years of 1970 and not of 1993. It appears from the judgment of learned Lower Appellate Court that learned Judge took note of those evidence on record and circumstances and came to specific findings of fact that appellant tenant permanently left the suit premises in 1977-78 and started to reside at Bankura with his family members for running his medicine shop and that defendant No.2 was in exclusive possession of the suit premises without written consent of the landlord, be the present one or the previous one, and that appellant tenant failed to state under what capacity defendant No.2 was in exclusive possession of the suit premises. These findings were based on evidence and cannot be said to be perverse. In view of said exclusive possession of the suit premises by defendant No.2, a third party, without written consent of the landlord and in view of the inability of the appellant tenant to account for said exclusive possession of defendant No.2 in the suit premises, learned Courts below rightly came to the concurrent findings of fact that appellant tenant was guilty of subletting.
I find that learned Courts below came to said concurrent findings of fact on applying the established legal tests.
12
As such, there is no scope of interference to said concurrent findings of fact under Section 100 of the Code of Civil Procedure.
As a result, the appeal fails.
However, I pass no order as to costs.
Office is directed to send Lower Court record along with a copy of this judgment at the earliest.
Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)