Bikash Samanta vs Sulekha Mukherjee

Both the Courts have concurrently found that the defendant/appellant is guilty of sub-letting the suit premises to the third party and passed the decree for eviction. The Suit was filed by the plaintiff/respondent for eviction of the defendant/appellant from the suit premises, inter alia, on the ground of default and sub-letting. The trial Court held that the plaintiff/respondent has miserably failed to prove the ground of default and such finding is affirmed by the appellate Court. Since the decree for eviction can be passed on any or more grounds enumerated under Section 6 of the West Bengal Premises Tenancy Act, 1997, the decree for eviction was passed as the plaintiff/respondent proved the ground of sub-letting.

It is not in dispute that the suit premises is a shop-room and let out to the defendant/appellant. The defendant/appellant claims to be a medical practitioner having acquired the decree of MBBS. It does not reveal from the pleadings as well as from the evidence that he has acquired master degree or any expertise in any specialized medical field. Admittedly, the defendant/ appellant is running clinic at different premises. However, it is contended by the defendant/appellant that he is also running physiotherapy centre at the suit premises with the help of other people.

Both the Courts drew inference from the aforesaid statement to the effect that the suit premises is occupied and possessed by a third party and proceeded to decree the suit on the ground of sub-letting.

The learned Advocate for the appellant heavily placed reliance upon a judgment of the Apex Court rendered in Jagadish Prasad Vs. Angoori Devi reported in 1984 (2) SCC 590 for the proposition that mere existence of a person other than the tenant does not ipso facto lead to a presumption of sub-letting.

We have given our anxious thought over the aforesaid report and we find that the Apex Court observed after noticing the evidence adduced by the tenant explaining the factum of the third party being present in the suit premises. It is sought to be contended that mere presence would not invite a presumption of sub-letting. Once both the parties adduced evidence knowing fully well the issues involved in the suit, the Court is required to consider the evidence adduced by the parties in true and proper manner in order to find out whether the defendant have sub-let the premises to a third party.

We are not unmindful of the said proposition of law that in order to succeed on the ground of sub-letting, two things are required to be proved. Firstly, parting with exclusive possession and secondly monetary consideration. There are plethora of judgments of the Supreme Court as well as High Courts that once the landlord proves the exclusive possession inevitable presumption is that the same is for monetary consideration. The reasons for such view can be visualized for the simple reason that the tenant may enter into a clandestine agreement with the third party beyond the conceivable knowledge of the landlord and it is very difficult to prove the monetary consideration. It is no longer res integra that the presence of a third party at the tenanted premises may not always raise a presumption of parting with exclusive possession. However, it is the duty of the defendant/tenant to explain such occupation which, in fact, was the pivotal factor played to the Judges who delivered the judgment in Jagdish Prasad (supra). It would be apt to quote the relevant paragraph of the said judgement which runs thus:-

"We are, therefore, inclined to agree with the appellant's contention that the High Court wrongly interfered with the decision of the Additional District Judge that the landlord failed to establish sub-tenancy. The circumstances in which the son of the proprietor of Pavan Trading Company was in the shop have been clearly explained and we are inclined to agree that there is no material on the record to doubt the explanation placed by way of evidence in the proceeding."

In the instant case, there is categorical admission of the defendant/appellant that he is running a clinic at different places away from the suit premises. Equally it is stated that he runs a physiotherapy centre with the help of the other people. There is no iota of piece of paper produced by the defendant/appealing showing his dominant control over the suit premises. Neither the trade license, or any license required for running such physiotherapy centre nor the equipment procured for smooth running of such centre were produced by the defendant/appellant before the trial Court. The dominant control on the suit premises excludes the presumption of parting with exclusive possession. In the instant case, in absence of the same, mere statement that he runs through the other people cannot be regarded as convincing evidence explaining the presence of the third party thereat.

Reliance can be conveniently placed upon a later decision of the Supreme Court rendered in case of Rajbir Kaur & Anr. Vs S. Choksiri & Co. reported in AIR 1988 SC 1845 where the Apex Court held that it is a initial burden of the landlord to prove and establish the fact that the tenant has sub-let the premises to a third party. It is further held that such burden to prove remains constant through out the trial but it shifts according to the weight of the evidence adduced by the party during the trial. The Supreme Court has also in the said report observed that transaction of the sub-tenancy in the guise of license or permissive occupation is in very nature a clandestine arrangement between the tenant of the sub-tenant and, therefore, there is a least possibility of direct evidence to come up. Ultimately, it is held that it is not impermissible for the Court to draw an inference having regard to the ordinary course of human conduct that the transaction must have been entered into for monetary considerations.

We do not find any infirmity and/or illegality in the impugned judgment. There is no substantial question of law involved in the instant appeal.

The appeal is thus dismissed. However, there shall be no order as to costs.

In view of the dismissal of the appeal the connected application being CAN 7967 of 2019 is accordingly dismissed.

Urgent Photostat Certified Copy of this order be given to the parties, if applied for, within three days from the date of such application.