Balmukund Lachminarayan vs Amulya Kumar Biswas

P.N. Mookerjee, J.—This appeal is by Defendant No. 1 and it arises out of a suit for, inter alia, a declaration of the Plaintiff-Respondent''s title as a direct tenant under the Appellant in respect of the suit premises (No. 187, Maharshi Debendra Road, Calcutta) and for an appropriate permanent injunction. The relevant facts lie within a short compass and may be stated as follows:

The Plaintiff''s allegation was that he was a monthly tenant with effect from May 1953, under Messrs Timber Emporium the then direct tenant under Defendant No. 1, who was the tenant of the first degree in respect of the disputed premises.

That, in August 1955, after service of the requisite ejectment notice in May 1955, Defendant No. 1 instituted ejectment suit No. 1796 of 1955 in the Court of Small Causes, Calcutta, against the said Timber Emporium and obtained a decree therein on September 29, 1956.

That, as a result of the said decree and the extinction or determination of Timber Emporium''s above tenancy, the Plaintiff Respondent became a direct tenant under Defendant No. 1 in respect of the suit premises.

In the suit, Sunil Krishna Choudhury, who was alleged to be the sole proprietor of Timber Emporium at that time, was added as Defendant No. 2.

The suit was contested by Defendant No. 1 and his defence, inter alia, was that the Plaintiff''s story of sub-tenancy under Timber Emporium or, for the matter of that, under Defendant No. 2, was a myth and he had no interest in the disputed property that, in any event, the suit was barred as the Plaintiff''s attempt to have a declaration of direct tenancy u/s 16(3) of the West Bengal Premises Tenancy Act, 1956, had failed.

The learned trial Judge overruled the defence and decreed the Plaintiff''s suit. Hence this appeal by Defendant No. 1.

In support of his claim of sub-tenancy, the Plaintiff relied on certain documents, of which mention may be made of Ex. 4 series, municipal trade licences, showing Plaintiff''s occupation of the disputed premises from 1953, rent receipts Ex. A series, supporting the Plaintiff''s case of tenancy or sub-tenancy and Corporation Inspection Book, Ex. 8, showing the Plaintiff as a sub-tenant. The oral evidence, also, of the Plaintiff himself and Parithish Kumar Sen, who was admittedly one of the original proprietors of Timber Emporium, definitely supported the Plaintiff''s case on the point. It is true that there was some contradiction as to the date of commencement of his tenancy in the Plaintiff''s present case before the Court and his case on the point in the Section 16(3) proceeding, wherein the said commencement was stated to have been in May 1954. But the Plaintiff''s explanation that that was a mistake is sufficiently supported by the other evidence on record and also the evidence recorded on the said previous occasion. In view of the above circumstances and upon the above materials, there being really no competent contradictory evidence on the defence side, the learned trial Judge accepted the Plaintiff''s case of sub-tenancy under Timber Emporium and the materials before us, we have no reason to differ from him in his said conclusion. Once this finding is made, the position appears to be clear. The ejectment suit of Defendant No. 1 was instituted at a time, when the Rent Control Act of 1950 was in force. The effect of the said suit on the rights of the parties and their status would, therefore, have to be judged under the said Act. u/s 13(2) of the said Act, it was provided, inter alia, as follows:

Where any premises or any part thereof have been or has been sub-let by ''a tenant of the first degree'' or by ''a tenant inferior to a tenant of the first degree'', as defined in explanation to Sub-section (1) and the sub-lease is binding on the landlord of such last mentioned tenant, if the tenancy of such tenant in either case is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in Clause (h) of the proviso to Sub-section (1) of Section 12, the sub-lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord of the tenant whose tenancy has been determined, on terms and conditions on which the sub-lessee would have held under the tenant if the tenancy of the latter had not been so determined.

In the instant case, there is nothing on the record to show that the Plaintiff''s sub-lease would not be binding on Defendant No. 1 once that sub lease is accepted as a matter of fact. It is clear also that the tenancy of the intermediate tenant, Timber Emporium, has been determined by the ejectment decree in question in a suit on the ground of default or non-payment of rent, that is, on a ground other than that mentioned in Clause (h) of the proviso to Sub-section (1) of Section 12 and accordingly, under the above statutory provision the sub-lessee or the Plaintiff will be deemed to be a tenant in respect of the disputed premises, holding directly under the landlord, Defendant No. 1. That being the position, the Plaintiff will, prima facie, be entitle to declaration of his direct tenancy under Defendant No. 1 in respect of the disputed premises. It is, however, urged that this result will be prevented in the instant case, by reason of legal bar in view of the Plaintiff''s failure to obtain a declaration of direct tenancy u/s 16(3) of the West Bengal Premises Tenancy Act, 1956, in the proceeding, instituted by him under the said section for the purpose. This argument, however, is obviously untenable as the basis of the Plaintiff''s claim, which arises as a result of the above ejectment decree, has to be judged under the Rent Control Act, 1950 and would not be relevant for purposes of the Act of 1956, which would be inapplicable to the case. Indeed, this was the view taken by the Rent Controller in dismissing the Plaintiff''s claim u/s 16(3) of the above Act and in the circumstances, that proceeding and the result thereof would not prejudice the Plaintiff''s present claim, if it is otherwise maintainable in law.

In the premises, this appeal will fail and it will be dismissed.

There will be no order for costs.

Bagchi, J.

I agree.