Kalyani Dutt vs Pramila Bala Dassi

M.M. Dutt, J.—This appeal is at the instance of the Plaintiff and it arises out of a suit for ejectment of the Defendant from the suit premises and for recovery of khas possession.

The suit premises is 295/A Upper Chitpur Road, Calcutta. It belonged to one Kishen Chand Boral since deceased. The Defendant was a tenant of the suit premises under the said Kishen Chand Boral. The Plaintiff purchased the suit premises from the said Kishen Chand Boral on July 14, 1958, and instituted the suit on December 23, 1958. The Plaintiff alleged that she reasonably required the suit premises for her own use and occupation and for the occupation of the members of her family. The Plaintiff herself resides in a rented house at 3K Raja Naba Kissen Street, Calcutta. Out of seventeen rooms in the suit premises the Defendant occupies only three rooms and she sublet the remaining fourteen rooms to different subtenants. The sub-tenants have not been made parties to the suit.

The Defendant denied that the Plaintiff required the suit premises for her own occupation and for the occupation of the members of her family. It was contended by the Defendant that the accommodation available to the Plaintiff in the rented premises No. 3K Raja Naba Kissen Street, Calcutta, was sufficient. It has been alleged by the Defendant that the Plaintiff has another house in the suburbs of Calcutta which is in her khas possession.

The learned Judge came to the findings that the Plaintiff did not require the suit premises inasmuch as the accommodation available to the Plaintiff in the said premises No. 3K Raja Naba Kissen Street was sufficient. Further, the learned Judge held that the Plaintiff had her own house at Cossipore which was not proved to be fully tenanted. In that view of the matter, the learned Judge dismissed the suit. Against the said judgment and decree of the learned Judge there was an appeal to this Court and this Court by its judgment dated December 19, 1967, remanded the case back to the trial Court granting liberty to both parties to adduce further evidence on issue No. 4 which relates to the Plaintiff''s requirement of the suit premises. It appears from the judgment of this Court that" this Court was of the view that the Plaintiff should be given an opportunity to adduce further evidence so as to enable her to prove that the house in which she resides was'' in a bad state of disrepair. Further, this Court also permitted the Plaintiff to adduce evidence to show that no accommodation was available to the Plaintiff in the other house which is a bustee as the whole of the same was tenanted. It appears that both the parties agreed to the order of remand made by this Court.

After the case came back on remand, further evidence was adduced by the Plaintiff. As to the Plaintiff''s case that the house in which she resides is in a bad state of disrepair, there was a local inspection by an Advocate Commissioner. The Advocate Commissioner found that the Plaintiff occupied three rooms on the. second floor of 3K Raja Naba Kissen Street. In the room situate at the extreme west, the Commissioner found, cracks on the eastern wall -and all along the southern wall near the ceiling. There was a curvature on the southern wall below the beam at one place. The curvature and the recent plastering on the wall at the affected portion and white-washing thereon -clearly indicated that the portion was damaged. In the room situate on the east of the above room, the Commissioner found bamboo props upto the ceiling. One of the props was found bent at both ends. The props were given for the purpose of supporting the roof. There were continuous cracks on the southern wall below the beams and also on the eastern wall which extended to the northern wall. The above two rooms were being used by the Plaintiff as bed-rooms.

The small room on the contiguous north of the western room was found by the Commissioner as the Thakurghar TJhere were also cracks on the northern and western walls and the floor was also found to be badly damaged.

As to the roofs the Commissioner in his report observed as follows:

The long and continuous cracks prominently visible over the plastering at the top of the wall near the ceiling, inside both the rooms in the southern block as well as the room in the western block, the defect noted in the southern wall of the western room near the ceiling, the insertion of additional wooden rafters in between T-iron rafters for providing additional support for the roof, the repairs on the roofs very clearly indicate the badly damaged condition of the roofs.

Apart from these three rooms it transpires from the evidence of P.W. 10 Barendra Nath Das that the Plaintiff had to take another room from the landlord on rental basis. Therefore, the Plaintiff has in her occupation three rooms and one Thakurghar.

The learned Judge came to the findings that the premises in occupation of the Plaintiff was not in such a bad state of disrepair as to be considered inhabitable. The learned Judge found that the Plaintiff had no vacant room in her possession in the bustee which is premises Nos. 5/H/15 and 7A/H/7 Satchashi Para Road. The learned Judge was, however, of the view that the accommodation which was available to the Plaintiff in premises No. 3K Raja Naba Kissen Street was quite sufficient for the purpose of her residence and for the residence of the members of her family. Hence, this appeal.

Before we consider the case on merits it is necessary to dispose of an objection taken on behalf of the Respondent who was the Defendant in the suit, namely, that in view of Sub-section (3A) inserted in Section 13 of the West Bengal Premises Tenancy Act, 1956, by the West Bengal Premises Tenancy (Second Amendment) Act, 1969, (hereinafter referred to as the Amendment Act) read with Section 13 of the Amendment Act, the suit should have been dismissed inasmuch as the Plaintiff instituted the suit for ejectment on the ground of reasonable requirement before the expiration of three years from the date of her acquisition of the suit premises. On behalf of the Appellant, however, it was submitted that Sub-section (3A) insofar as it is retrospective in operation is ultra vires Article 19(1)(f) of the Constitution and as such void. It may be stated here that as the vires of Sub-section (3A) of Section 13 was challenged by the Respondent, notice was given to the learned Advocate-General as required by Order 27A of the Code of Civil Procedure.

Section 13 enumerates the different grounds under which a tenant loses his protection against eviction. One of the grounds as provided in Clause (f) of Section 13 is where the premises are reasonably required by the landlord either for purposes of building or re-building or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held.

By Sub-section (1) of Section 4 of the Amendment Act Clause (f) was substituted as follows:

(f) subject to the provisions of Sub-section (3A) and Section 18A, where the premises are reasonably required by the landlord for purposes of building or re-building or for making thereto substantial additions or alterations, and such building or re-building, or additions or alterations cannot be carried out without the premises being vacated.

A new Clause (ff) and a Sub-section (3A) were inserted in Section 13 by Sub-section (1) and Sub-section (2) respectively of Section 4 of the Amendment Act. Clause (ff) and Sub-section (3A) are as follows:

(ff) subject to the provisions of Sub-section (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation.

(3A) Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in Clause (f) or Clause (ff) of Sub-section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest:

Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in Clause (f) of Sub-section (1) before the expiration of the said period of three years if the Controller, on the application of the landlord and after giving the tenant an opportunity of being heard, permits by order the institution of the suit on the ground that the building or re-building, or the additions or alterations, as the case may be, are necessary to make the premises safe for human habitation.

In view of Sub-section (3A) a landlord is prohibited from, instituting a suit for ejectment of the tenant on the ground of reasonable requirement before the expiration of a period of three years from the date of his acquisition of interest in the premises. Under the proviso to Sub-section (3A) a suit by a landlord on the ground of reasonable requirement for building or re-building or for the additions or alterations may be instituted before the expiration of three years from the date of the transfer with the permission of the Controller.

Section 13 of the Amendment Act provides the amendment made to the said Act by Sections 4, 7, 8 and 9 of this Act shall have effect in respect of suits including appeals which are pending at the date of the commencement of this Act. The question whether Sub-section (3A) was made retrospective or not by Section 13 of the Amendment Act came up for consideration before a Bench of this Court in Kameswar Singh v. Sahadev Singh (1970) 74 C.W.N. 715 . It has been held in that case upon the interpretation of the provisions of Section 13 of the Amendment Act that Sub-section (3A) will apply to pending suits and appeals. I was a party to the decision in Kameswar Singh''s case (Supra,). Mr. Mukherjee, learned Advocate appearing on behalf of the Appellant, has contended that on a proper interpretation of Sub-section (3A) it should be held that it is only prospective and does not apply to pending suits and appeals. We are unable to accept this contention. We agree with the view expressed in Kameswar Singh''s case (1) that by reason of Section 13 of the Amendment Act Sub-section (3A) has been made applicable to pending suits and appeals. In other words, Sub-section (3A) is also retrospective in operation.

It was contended that the right of a landlord to evict his tenant and to recover possession of the property from the occupation of the tenant is a fundamental right under Article 19(1)(f) of the Constitution. Suspension of the said fundamental right, though for a specified period, with retrospective effect is an unreasonable restriction on the exercise of the right as contemplated by Clause (5) of Article 19. It was submitted that by the impugned provision, namely, Sub-section (3A), the right of the landlord to hold and dispose of property has been infringed with retrospective effect. The provision of Sub-section (3A) insofar as it is retrospective, or in other words, insofar as it effects pending suits and appeals, is ultra vires Article 19(1)(f) of the Constitution.

By Article 245 of the Constitution the State Legislatures have been conferred with the power to enact laws for the whole or any part of the State, but this power has been made subject to the provisions of the Constitution. By virtue of Articles 245 and 246 the State Legislatures are competent to legislate retrospectively, but this power, as aforesaid, is subject to the provisions of the Constitution. It is clear that if a retrospective legislation puts unreasonable restriction on the fundamental right of the citizens within the meaning of Clause (5) of Article 19, it is unconstitutional and void.

It was, however, argued by Mr. Das Gupta, learned Advocate appearing on behalf of the Advocate-General, that the right of a landlord to evict a tenant and to recover possession is not property within the meaning of Article 19(1)(f). There can be no doubt that unless a particular right is a right of property, Article 19(1)(f) cannot be invoked. In Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, Mukherjee J. has observed that the right ''to hold'' property in Clause (f) of Article 19(1) means the right to possess it as well as to enjoy all the benefits which are ordinarily attached to the ownership of property. Under the said decision, the right of property includes both-abstract and concrete rights and is not confined only to the abstract or basic right to property. In The State of West Bengal Vs. Subodh Gopal Bose and Others, Patanjali Shastri C.J. was of the view that Article 19(1)(f) dealt with only those great and basic rights which were recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country, that it declared the citizen''s right to own property and had no reference to the right to the property owned by him and that the word ''hold'' must be understood to mean ''own'' and not as having reference to something different, viz. "rights to specific things owned by a citizen. The view expressed by Patanjali Shastri C.J. was not, however, approved by the Supreme Court in a subsequent decision in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., . It has been held in that case that the word ''property'' as used in Article 19(1)(f) should be given liberal and wide connotation and as interpreted should be extended to those well-recognised types of interest which have the insignia or characteristics of proprietary right and that the Article applies equally to concrete as well as abstract rights of property. The observation of Shastri C.J. in Subodh Gopal''s case (Supra) referred to above was considered by the Supreme Court in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., . Mukherjee J. who delivered the judgment of the Court observed as follows:

This, it may be noted, was an expression of opinion by the learned Chief Justice alone and it was not the decision of the Court; for out of other four learned Judges, who together with the Chief Justice constituted the Bench, two did not definitely agree with this view, when the remaining two did not express any opinion one way or the other.

In M. Transport v. Sankaraswamigal Mutt AIR 1962 S.C. 864 the Supreme Court has maintained the same view as expressed in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., . It is now settled that Article (1)(f) applies both to abstract as well as to concrete rights of property.

The question whether the expression ''to hold'' property includes also the right to recover possession of the property from a tenant was considered by P. B. Mukharji J. (as he then was) in S.B. Trading Co. Ltd. Vs. Shyamlal Ramchandra, . It was observed by Mukharji J. as follows:

the right to hold property should include the right to recover possession of the property. In one sense the landlord holds the property even when he lets it out to the tenant, but that is only in the sense of holding the reversion which is also property. Holding the reversion is only a portion of the total right to hold. I am, however, inclined to construe the word ''to hold'' to mean not only to hold the reversion but also to hold the property in present and that to the exclusion of others.

It follows from the aforesaid decisions that the right to hold property also includes the right to recover possession. of the same from the tenant. We would, therefore, overrule the said contention that the landlord''s right to evict the tenant and to recover possession of the premises for the purpose of his own requirement is not right to property within the meaning of Article (1)(f) of the Constitution.

Under the principal Act, namely, the West Bengal Premises Tenancy Act, 1956, before the same was amended, the transferee landlord had undoubtedly the right to evict the tenant on the ground of reasonable requirement even within three years of the transfer. The suit out of which the appeal arises was instituted within three years of the date of the transfer. The maintainability of the suit is sought to be affected by the operation of Sub-section (3A) which has been made applicable to suits and appeals pending on the date of the Amendment Act. There can, therefore, be no doubt that the right of property of the Plaintiff has been sought to be taken away by the Legislature with retrospective effect. The question is whether this restriction is reasonable or not within the meaning of Clause (5) of Article 19. Clause (5) provides as follows:

(5) Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect operation of any existing law insofar as it imposes or prevents the State from making any law imposing reasonable restriction on the exercise of any of the rights conferred by the said sub-clause either in the interests of the general public or for the protection of the interests of any scheduled tribe.

It is manifestly clear from Clause (5) that in the interests of the general public or for the protection of the interests of any scheduled tribe the State has the right to impose restriction upon the freedom of property of citizens. Reasonableness of the restriction has to be judged from the standpoint of the interests of the general public in an objective manner. It has been already stated that the Legislature has the power to make laws with retrospective effect. The Legislature is also competent to impose restriction on the exercise of the fundamental rights by retrospective legislation, but that is subject to the provisions of the Constitution including Clause (5) of Article 19. If the restriction is unreasonable and is not made in the interests of the general public, the law imposing the restriction must be struck down as invalid.

It must, however, be pointed out that merely because the legislation is retrospective, it cannot be presumed that it is unreasonable; The reasonableness has to be judged from the standpoint of public interest. If it serves the interests of the general public, in that case it cannot be said to be unreasonable even though it takes away vested rights with retrospective effect.

In considering the question of reasonableness of the impugned legislation it is pertinent to refer to the statement of objects and reasons of the Amendment Act whereby the impugned provision of Sub-section (3A) was inserted. The statement of. objects and reasons which was published in the Calcutta" Gazette Extra-ordinary dated August 2, 1969, is as follows:

It has been ^considered necessary that some more relief should be given to the tenants against eviction, that the necessity of tender of rent to the landlord every time the rent is deposited with the Controller during a continuous period should be dispensed with, that the interests of the residents of hotels and lodging houses should be safeguarded and that the penalties for contravention of some of the provisions of the West Bengal Premises Tenancy Act, 1956, should be made more stringent.

The principal object appears to be to grant some more relief to the tenants, or as the Supreme Court has observed in V.N. Sarin Vs. Ajit Kumar Poplai, in connection with Section 14(6) of the Delhi Rent Controller Act, 1959, which is similar to Sub-section (3A), that the object is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants from the premises let out to them. This seems to be also the object of the Legislature in enacting Sub-section (3A).

Keeping that object in view, the question is whether the object is achieved by making the impugned provision retrospective. The effect of the retrospective operation is to non-suit the transferee landlords who, before the Amendment Act came into force, brought actions for ejectment within three years of the acquisition of premises by them. Under the principal Act there was no such restriction on the transferee landlords to institute suits for ejectment on the ground of reasonable requirement. Consequently, suits were filed by the transferee landlords against the tenants for eviction on that ground. When the Amendment Act came into force, some of such, suits had been pending either in the trial Court or in the Court of Appeal including the High Court. These suits are old suits and the period of three years had long passed from the date of the acquisition by the transferee landlords of the respective premises from which ejectment of the tenants has been sought for. If the impugned legislation has to be-given effect to these suits have to be dismissed and the only course open to the Plaintiffs, who are the transferee landlords, is to institute fresh suits for ejectment on the ground of reasonable requirement.

The transferee landlords who have been litigating for several years for the purpose of getting back possession of the premises are no doubt taken by surprise. The object of the impugned legislation is to prevent a particular type of ejectment suit for a certain period. That object no doubt will serve the interests of the general public but to curb pending suits or appeals does not achieve that object. The day the suits are dismissed in view of the impugned legislation, on the next day fresh suits may be filed by the Plaintiffs whose suits have been so dismissed.

Such suits are not many, and at the same time most of them are pending for more than ten years. If the landlords are forbidden to bring suits on a particular ground for a particular period that would be in the interests of the tenants generally, but when a particular type of ejectment suits pending for a considerable length of time is to be dismissed it cannot be said that the tenants in general would be benefited. In such a case, only a few tenants against whom the ejectment suits are pending will get the benefit. The object is not to benefit only a few tenants but to benefit tenants generally. In our view, by making the impugned legislation retrospective that object is not achieved. The relationship between the impugned legislation and the ground mentioned in Clause (5) of Article 19 should be rational or proximate, but in the instant case, however, we do not find any such rational or proximate relationship of the impugned retrospective legislation with the ground in Clause (5), namely, the interests of the general public. After giving our best consideration to the matter we are unable to hold that Sub-section (3A) of Section 13, insofar as it is retrospective, puts a reasonable restriction on the rights Of the transferee landlords ''to hold and dispose of property'' under Article 19(1)(f) of the Constitution. In our view, therefore, Sub-section (3A) of Section 13, insofar as it is made applicable to pending suits and appeals, is ultra vires the provisions of Article 19(1)(f) of the Constitution for it purports to put unreasonable restriction on the rights of the landlords whose suits or appeals for eviction on the ground of reasonable requirement are pending.

The view which we have taken, namely, that Sub-section (3A), insofar as it is made applicable to pending suits and appeals, puts an unreasonable restriction on the rights of the transferee landlords also finds support from a recent Bench decision of this Court in Sailendra Nath Ghosal and Others Vs. S. Ena Dutt and Others, . We would not have taken so much pains in independently considering the question and could have disposed of the matter by relying on that decision, but unfortunately that decision has not disposed of the appeals in which it has been given, and it was argued on behalf of the Appellants that it could not be relied on as a precedent. Instead of deciding whether it can be relied on or not as a judicial precedent we propose to consider the question independently of that decision and as aforesaid we have come to the same conclusion that the impugned Sub-section (3A), insofar as it is applicable to pending suit and appeals,, is ultra vires Article 19(1)(f) of the Constitution.

On behalf of the Respondent it was also contended that Sub-section (3A) was ultra vires Article 14 of the Constitution. It has been submitted that Sub-section (3A) makes a classification between landlords similarly situated and that such classification is not based on any intelligible differentia and has no rational basis having regard to the object of the Amendment Act.

Article 14 guarantees equal protection which means equal treatment of persons in similar circumstances. But, this does not prevent the State from classifying persons for legitimate purposes. It is well-settled that before declaring a particular provision of an Act as violative of Article 14, the Court must be satisfied that the classification is not founded on an intelligible differentia which distinguishes, those that are grouped together from others and that such differentia must have a rational relation to the object sought to be achieved by the Act.

There is no doubt that Sub-section (3A) has placed the transferee landlords in a separate class. This classification exists only for a limited period, i.e. for a period of three years from the date of acquisition of interest in the premises by a transferee landlord. During this period a transferee landlord is prohibited from instituting suit for ejectment against his tenant from that premises on the ground of reasonable requirement except with the permission of the Rent Controller in certain circumstances.

The question is whether this classification has any rational relation to the object sought to be achieved by the Amendment Act. It has been already found that the principal object of the Amendment Act is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants from the premises let out to them. In view of \\he said object it cannot be said that the impugned provision is arbitrary or without any rational basis with reference to the object, sought to be achieved by the Legislature in enacting the impugned provisions of Sub-section (3A). We would, accordingly, overrule the contention of the Respondent that Sub-section (3A) is ultra vires Article 14 of the Constitution.

For the reasons aforesaid the contention of Mr. Roy that the suit was no longer maintainable in view of Sub-section (3A) read with Section 13 of the Amendment Act of 1969, is overruled.

Now coming to the merits of the case it appears that the. Plaintiff in her evidence has stated that her family consists of herself, her husband, her son and her Pujari and a maid-servant. She has alleged that she requires only six or seven rooms for her occupation and she will let out the remaining rooms in the suit premises as she has got no income. The Plaintiff, however, has admitted in her cross-examination that she lives in the suit premises with P.W. 10 Barendra Nath Das as man and wife for the last 22/23 years. She has also admitted that she has no son but one Vivekananda aged* about 18 years, who is the sister''s son of Barendra, has been living with the Plaintiff as her adopted son. There is no satisfactory evidence about the Plaintiff''s case that a Pujari also resides in the Plaintiff''s house. The three rooms which are available to the Plaintiff are sufficient for the members of the Plaintiff''s family consisting of herself, the said Barendra Nath Das and the said Vivekananda. The maid-servant can use the verandah. In our view, the learned Judge was right in holding that the accommodation available to the Plaintiff and the members of her family in the tenanted house was sufficient.

We do not, however, agree with the finding of the learned Judge that the house in which the Plaintiff resides cannot be said to be inhabitable. We have referred to the report of the Commissioner which on the face of it shows that the house is in a bad state of disrepair. P.W. 10 Barendra says that the premises is in a dilapidated condition, that the roof of the building is in a bad state of disrepair and that water incessantly percolates through the roofs into the rooms during rains. The learned Judge did not believe the evidence of Barendra on the ground that the Plaintiff did neither make any written complaint to her landlord nor did she bring any proceeding before the Rent Controller for repairs. P.W. 10 Barendra has stated in his evidence that he verbally complained to the landlord. We do not find any reason to disbelieve the evidence of P.W. 10 Barendra. His evidence finds support from the report of the Advocate Commissioner. It has been already stated that the Advocate Commissioner in his report stated that the roof of the Plaintiff''s house was in a badly damaged condition. He also found patch repairs all over the roofs and also long stretch of cement plastering from east to west over the roof. In our view, the learned Judge should not have disbelieved the evidence of Barendra that water percolates through the roof during the rainy season. Apart from that, the Advocate Commissioner has in his report pointed out cracks in the walls of the rooms and also curvature appearing in the ceiling of one of the rooms. This goes to show the miserable condition of the building in which the Plaintiff resides. The ceiling of the bed-room of the Plaintiff and the said Barendra Nath Das has to be propped up by bamboo poles. From all these, it cannot be said that the building is a habitable one. Disagreeing with the learned Judge we hold that the house in which the Plaintiff has been residing is inhabitable. In our opinion, it will be unreasonable to compel the Plaintiff to reside in such a house particularly when she has got her own house.

Moreover, it has been stated by the Plaintiff that she wants the suit premises as she has no income. She will occupy a portion of the suit premises and let out the remaining portion to tenants and thereby she will earn some income. The learned Judge has overlooked this evidence of the Plaintiff.

From the facts and circumstances stated above we hold that the Plaintiff reasonably requires the suit premises.

Mr. Tapas Roy, learned Advocate appearing on behalf of the Respondent, submitted that his client could not be evicted from the portion occupied by the sub-tenants. It was not disputed before us on behalf of the Appellant that no decree for eviction could be passed against the sub-tenants who had not been made parties to the suit. There is also no dispute that the requisite notice u/s 16(2) of the West Bengal Premises Tenancy Act, 1956, was served upon the original landlord Kishen Chand Boral. Mr. Roy submitted that it would be a case of partial eviction and the provision of Section 13(4) of the Act would apply. He contended that although his client might be evicted from the portion actually in his possession, namely three rooms of the suit premises, she could not be evicted from the portion occupied by the sub-tenants. Sub-section (4) of Section 13 runs as follows:

(4) Where the landlord requires the premises on any of the grounds mentioned in Clause (f) or Clause (ff) of Sub-section (1), and the Court is of opinion that such requirement may be substantially satisfied by ejecting the tenant or a sub-tenant "from a part only of the premises and allowing the tenant or the subtenant to continue in occupation of the rest, then, if the tenant or a sub-tenant agrees to such occupation, the Court shall pass a decree accordingly and fix the proportionate rent for the portion remaining in the occupation Of the tenant or the sub-tenant. The rent so fixed shall be deemed to be the fair rent for purpose of this Act. If the tenant does not agree but a sub-tenant agrees to such occupation, no decree or order for ejectment shall be passed against such sub-tenant and such sub-tenant shall become, with effect from the date of the decree or order, a tenant directly holding under the landlord.

In our view, Sub-section (4) has no application to the facts and circumstances of the case. Sub-section (4) contemplates a case where the tenant or the sub-tenant has been in actual physical possession of the premises. When a tenant has been in constructive possession through his sub-tenant, in our opinions, Sub-section (4) will not apply. This is clear from the expression ''allowing the tenant or the sub-tenant to continue in occupation of the rest''. It was contended that the word ''occupation'' in Sub-section (4) does not mean actual possession but it also includes constructive possession. We are unable to accept that -contention. The interpretation of the word ''occupation'', as given in Stroud''s Judicial Dictionary (3rd ed., vol. 3, p. 1954), is as follows:

''Occupation'' includes possession as its primary element, but it includes something more. The owner of a vacant house is in possession and may maintain trespass against any one who invades it; but as long as he leaves it vacant, he is not ratable for it as an occupier.

The context in which the word ''occupation'' has been used in Sub-section (4) there can be no doubt that it refers only to actual� physical possession of the tenant or the sub-tenant. If the word ''occupation'' in Sub-section (4) is construed to mean constructive possession that would leave to anomalous position and the very object of Sub-section (4) for which it has been incorporated in the Act will be frustrated. As the Defendant is not in actual physical possession, as she cannot be, of the portion let out to sub-tenants, there is no question of her being allowed to continue in occupation of the said portion. The Defendant will, therefore, be evicted not only from the portion in her occupation, namely the said three rooms, but also from the remaining portion of the suit premises. In other words, the relationship of landlord and tenant between the Plaintiff and the Defendant will come to an end, the sub-tenants who are in occupation of the suit premises will become direct tenants under the Plaintiff.

For the reasons aforesaid, we set aside the judgment and decree of the learned Judge and decree the Plaintiff''s suit with cost. The Plaintiff shall be entitled to recover khas possession of the portion of the suit premises which is in actual possession of the Defendant. The Defendant is given three months time to vacate that portion. If the Defendant fails to vacate the said portion of the suit premises in her occupation within the time allowed, the Plaintiff shall be entitled to evict the Defendant from that portion and recover khas possession of the same in execution of the decree. The sub-tenants will, however, become direct tenants under the Plaintiff.

The appeal is allowed, but in the facts and circumstances of the case there will be no order for costs.

Arun K. Mukherjea, J.

I agree.