Durga Charan Saha vs Baradamani Dasi

Satyabkata Sinha, J.—This appeal is directed against a judgment and decree dated 29.3.79 passed in Ejectment Suit No. 207 of 1975. The respondent filed a suit for eviction. The said suit was decreed by the learned trial Judge upon acceptance of the plea of the plaintiff that the defendant/appellant had sub-let a portion of the suit premises in favour of the respondent No. 2. The only question which arises for consideration in this appeal is as to whether the plaintiff has been able to prove that the defendant had sub-let a portion of the tenanted premises in favour of the respondent. The fact is that the defendant was a monthly tenant under her in respect of one room at premises No. 103B. Baithakkhana Road, Calcutta-9 at a rental of Rs. 42/- is not in dispute. The plaintiff in Paragraph 3 of the plaint stated that the defendant had sublet a part of the premises to one Sm. Chhabi Sarkar after the commencement of the West Bengal Premises Tenancy Act, 1956 without any written consent of the plaintiff. The plaintiff has not stated as to how and under what circumstances the defendant had allowed the aforementioned Chhabi Sarkar to occupy a portion of the tenanted premises as a sub-tenant. The respondent on the other hand, in Paragraph 9(b) of the written statement while denying and disputing the said allegation infer alia, stated that the respondent, Chhabi Sarkar, used to work under one Breswar Chakra borty who was evicted from the premises held by him in execution of a decree passed by the City Civil Court. Calcutta. The aforementioned Chhabi Sarkar approached the defendant to allow her to use and occupy a portion of the room temporarily just to earn her livelihood. The defendant refused. It is further alleged that subsequently the plaintiff also requested this defendant to allow the said Sm. Chhabi Sarkar on the said terms. Accordingly, out of humanitarian ground, the defendant allowed the said sm. Chhabi Sarkar to sit and work in a corner of his room, without realising any money on any account from her. But subsequently it transpired that the said Sm. Chhabi Sarkar entered the said space in collusion and conspiracy with the plaintiff and on her dictation deliberately refused to vacate the said space inspite of repeated request. This defendant submits that he did not transfer any part of his tenancy to Sm. Chhabi Sarkar by sub-letting or assignment and as such on this ground also he is not liable to be evicted. Admittedly the respondent No. 2 has purchased the premises in question from the plaintiff. Curiously enough, the said Sm. Chhabi Sarkar examined herself as witness on behalf of the plaintiff. In her examination in chief she stated that she had been paying rent to the appellant at the rate of Rs. 40/- per month but she was not granted any rent receipt. According to her there are four doors for entering into the said room. She stated that only one door of the disputed room was in possession of the defendant and the remaining three doors were in her possession. However, she admitted that there was no partition wall inside the disputed room. According to her, she had been in possession of the room since 1969. She was maintaining Books of Accounts but the same had hot been produced. She had no witness to prove the settlement. She admitted that she was enjoying the electrical energy from the plaintiff which benefit the plaintiff had denied to ether tenants. Although she alleged that she had been paying rent to the defendant, in cross-examination she admitted that she has not paid any rent to the plaintiff during the period of suit.

The plaintiff did not examine herself. P.W. 1, Durga Mohan Das is said to be an employee and tadbirkar of the plaintiff. He merely stated that the plaintiff is old and cannot move. In his cross-examination, he contradicted P.W. 2 stating that the electric meteris in the name of the plaintiff. He, however, admitted that the respondent had been enjoying electricity from the meter of the plaintiff for which (sic)charges are paid. He also admitted that the disputed room does not have any partition. It is stated that the disputed room has only two doors, one is used by the defendant and another is used by Sm. Chhabi Sarkar. In his deposition, he however stated "I do not know when and under what terms and conditions defendant permitted Chhabi Sarkar to put up in the disputed room. I have never seen defendant to realise rent from Chhabi Sarkar."

3 On the other hand, the defendant/appellant examined himself as D.W. 1. He categorically stated that the respondent was allowed to occupy a portion of the tenanted premises at the instance of the plaintiff. He further stated that there was no relationship of landlord and tenant between him and the respondent. He has deposed in support of the statements made in the written statement to the effect that the said Chhabi Sarkar was a licencee.

The learned trial Judge unfortunately without going into the question as regard existence of requirements of Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956, arrived at a finding that the plaintiff has been able to prove the allegations made in the plaint to the effect that the defendant has sublet a portion of the disputed room is favour of the said Chhabi Sarkar.

The question as to whether the said Sm. Chhabi Sarkar is in possession of a portion of the tenanted premises is not in dispute. However there cannot be any doubt that before an order of eviction can be passed, the plaintiff is under a statutory obligation to prove ingredients of the statutory provision of Section 13(1)(a) of the West Bengal Premises Tenancy Act, which reads thus -

13(1)(a). Protection of tenant against eviction-

(1). Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be under by any Court in favour of the landlord against a tenant except on one of more of the following grounds, namely.

(a) Where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sublets in whole or in part premises held by him.

A bare perusual of the aforementioned provision would clearly show that for the purpose of providing sub-tenancy the tenant is required to put the sub-tenant in exclusive possession of the tenanted permises or a part thereof. Furthermore it is also well-settled law that for the purpose of making a distinction between lease and licence exclusive possession is a relevant factor. In the instance case, there is evidence to prove exclusive possession of the respondent.

In this view of the matter, there cannot be any doubt what so ever that the plaintiff has failed to prove the element of sub-tenancy as is required in terms of Section 13(1)(a) of the West Bengal Premises Tenancy Act. This aspect of the matter has been considered by the Supreme Court of India in the case reported in (1) Dipak Banerjee Vs. Lilabati Chakraborty, ; (2) Rajbir Kaur and Another Vs. S. Chokesiri and Co., (3) Capt. B.V. D''Souza Vs. Antonio Fausto Fernandes, and (4) M/s. Delhi Stationers and Printers Vs. Rajendra Kumar,

Furthermore, in this case admittedly the plaintiff was not examined. It is now well-settled that non examination of the plaintiff must be viewed seriously. The judicial Committee in the case reported in (5) AIR 1927 230 (Privy Council) has deprecated the practice of non-examination of the parties to the suit. The said decision has been followed by the Bombay High Court in the case reported in (6) Martand Pandharinath Chaudhari Vs. Radhabai Krishnarao Deshmukh, . Furthermore, if the plaintiff did not have any role to play in the matter of occupation of a portion of the tenanted premises by Sm. Chhabi Sarkar, there was absolutely no reason as to why and under what circumstances he has been supplying electrical energy to her, although the said amenity has been denied by her to other tenants. Such supply of electricity was also made without any consideration whatsoever. We cannot also lose sight of the fact that ultimately the plaintiff has sold the tenanted premises to the said Sm. Chhabi Sarkar. The fact, as narrated herein before, leads to only one conclusion that the defence set up by the defendant/appellant is correct. In that view of the matter, we are of the opinion, that it is not possible to uphold the judgment and decree passed by the learned trial judge.

For the reasons aforementioned, this appeal is allowed the judgment and decree passed by the learned trial Judge is set a aside with costs.

Counsel''s fee is assessed at 100 G. Ms.

Bhaskar Bhattacharya, J.

I agree.