Kanailal Das and Others vs Hari Sankar Dutta

Chittatosh Mookerjee, J.—Having heard the learned advocates for both sides and having considered the materials on record, we are satisfied that the learned Judge of the court be low has rightly passed a decree for eviction against the defendant appellants under clauses (a) and (ff) of subsection (1) of section 13 of the West Bengal Premises Tenancy Act. Kanailal Das, since deceased, the defendant appellant, was admittedly a tenant of the suit premises No. 6A, Akrur Dutta Lane at a rent of Rs. 123, - per month. Manick Lal Dutta, the original landlord and the owner died in the year 1955 and on 28th February 1969 Sarojini, widow of Manicklal and his two sons, Dulal and Gorachand executed a registered deed of trust in favour of Susama, a daughter of Manick la! and her husband, Hrishikesh. The said trust deed was made an exhibit in the case. The trust deed, inter-alia recited that Susama Dutta who had been married to Hrishikesh Dutta had several children, but they had no dwelling house of their own to reside. The settlors further directed that the trustee of 6A. Akrur Dutta Lane shall allow Sm. Susama Dutta and her husband Hrishikesh Dutta during their respective natural lives to reside in and occupy such portions of the trust property as they might choose to reside free of rent. The trustee was also directed to allow the daughters of Sm. Susama Dutta, until their respective marriages to reside and occupy portions of trust property free of rent. After the death of both Sm Susama Dutta and Hrishikesh Dutta the trustee was to make over and con vey to the sons of Susama Dutta the said trust property absolutely and thereupon the trust in question was to be extinguished.

It was not very much disputed in the trial court and it is not challenged before us that at the date of the passing of the decree by the trial court the aforesaid two beneficiaries, Susama and her husband Hrishikesh, were residing in two rooms and two verandahs in the tenanted premises The said accommodation was insufficient and unsuitable for them. Susama and her husband had three sons and four unmarried daughters. In our view, the plaintiff has fully established that the aforesaid two beneficiaries reasonably required the suit premises for use and occupation by themselves and such of their children who would be living with them. We are unable to accept the extreme submission of the learned advocate for the appellants that in considering reasonableness or otherwise of the requirement we should confine our decision to the accommodation required by Sm. Susama Dutta and her husband Hrishikesh Dutta and exclude requirement of accommodation of their children. At the date of the hearing of the suit both Hrishikesh and his wife Susama were already very old, the former being about 95 years of age and the later being about 82 years of age. We un derstand now Hrishikesh is dead. It also appeared that all their four daughters who were unmarried had right to reside in the suit premises till their marriages. In the circumstances, decree for reasonable requirement of the aforesaid beneficiaries under the said trust deed constituted reasonable requirement within the meaning of clause (ff) of section 13 (1) of the West Bengal Premises Tenancy Act. Further, it was only reasonable, and probable that Sm. Susama Dutta who was very old would require assistance and nursing atleast by some of her children. Therefore, we cannot altogether leave out of our consideration, requirement of space for those of her children who would be living with her.

In the instant case the ejectment decree has been passed also on the ground of subletting. Therefore, it is wholly unnecessary to enter into the question of partial eviction under subsection (4) of section 13 of the West Bengal Premises Tenancy Act. For this reason, we do not prolong our judgment by discussing at length the total requirement of the beneficiaries and the persons who are entitled to reside in the suit premises.

It is true that only after the commission for local Inspection of the suit permises was held the plaintiff had amended the plaint by inserting paragraph 5(a) which contained the averments that the defendants had sublet a portion of the suit premises to three persons named Gouri Sankar Bhattacharyya Bama Charan Mondal and Banshi Charan Banerjee. In his additional written statement the defendant did not deny that he had sublet to aforesaid three persons but claimed that all, the said sub tenants were inducted before commencement of the West Bengal Premises Tenancy Act, 1956. The question of subletting may be disposed of on a short ground. The defendant Kanai Lal in his examination in chief testified that he was staying in the suit premises, since the last World War involving Japanese in 1940-42. He was then a tenant under Manick Lal Dutta. "There are three subtenants under me at present in the suit premises-one Bamacharan Nag (?) since 26-27 years. Gouri Bhattacharyya inducted 2 or 3 years later and Banshi Banerjee for the 17 or 18 years." Thus, the defendant Kanai Lal himself admitted that at least Banshi Banerjee was inducted 17 or 13 years before the date on which he was deposing in the court below, i.e, on 4th March, 1976. Therefore, on his own statement Kanailal had inducted Banshi Banerjee in the year 1958-59. Thus, the defendant himself admitted that he had inducted Banshi Banerjee as a subtenant after the commencement of the West Bengal Premises Tenancy Act, 1956. The then landlord of the premises did not consent in writing to the said subletting by the defendant tenant and the said sub-tenancy in favour of Banshi was in violation of section 14 of the West Bengal Premises Tenancy Act, 1956. It is nobody''s case that any of the sub-tenants of the suit premises had given to the landlord notice u/s 16 of the said Act. Therefore, irresistible conclusion is that the plaintiff landlord is entitled to recover possession of the premises from the defendant tenant u/s 13 (1) (a) of the West Bengal Premises Tenancy Act. The defendant did not raise in the trial court any objection about the non-joinder of his said alleged sub-tenants as defendants in the present suit. Therefore, ordinarily the defendant appellant who himself contested the suit would be precluded from raising in this appeal the said point of non-joinder (vide Order 1 Rule 13 of the Code of Civil Procedure). We may also point but that joinder of parties in a suit for ejectment governed by the West Bengal Promises Tenancy Act is now regulated by sub-section (2) read with sub-sebtion (3) of section 13 of the West Bengal Premises Tenancy Act, 1956 Only those sub tenants who had given notices of their sub tenancy to the landlord are required to be made parties according to section 13(2) of the West Bengal Premises Tenancy Act. It follows that the defendant appellant who himself contested the suit without raising the question of non-joinder in the trial court now cannot challenge the ejectment decres otherwise although they did not give notice u/s 16(3) of the Act validly passed against him on the ground that his alleged sub-tenants, ought to have been joined as his co-defendants in the suit. The decision of N. C. Mukherji and S. M. Guha, J J., in Ram Khilan Das v. Sm. Radharani Dassi and others 1980(1) CLJ 197, upon which Mr. Roy, learned advocate for the appellant, placed reliance is distinguishable on facts.

The said decision was given in an appeal arising out of a suit brought by an alleged sub-tenant as plaintiff, inter-alia, for declaration that the decree in an ejectment suit governed by the West Bengal Premises Tenancy Act, 1956 passed against the tenant of the first degree was not binding upon the plaintiff nor executable against him and for permanent injunction. In the connection, the Division Bench examined the status of the plaintiff and for reasons given by their lordships came to the conclusion that the plaintiff was not bound by the ejectment decree in question. Their lordships did not consider in the case of Ram Khilan Das''s case (supra), the scope of clause (a) of sub section (1) or those of the sub-sections (2) and (3) of section 13 of the West Bengal Premises Tenancy Act, 1956. Therefore, the ratio of the said decision in Ram Khilan Das''s case (supra), is not attracted to the facts of this case.

We may also respectfully point out that the Division Bench in Ram Khilan Das''s case (supra), while considering the effect of the repeal of the West Bengal Premises Tenancy Act did not refer also to the Special Bench decision in Tarak Chandra Banerjee v. Ratan Lal Ghosal 61 C.W.N. 263, which at length had considered the effect of repeal of the said Bent Control Act of 1950. Chakravarti C. J., at page 287 of the report had referred to section 40 of the West Bengal Premises Tenancy Act (inserted by section 5 of the Amending Act of 1956) and had inter-alia observed, that, apart from verbal infelicities the effect of section 40(2) of the 1956 Act was to Keep the Act of 1950 alive for the purposes of all proceedings pending on 31st March, 1956 and also pending at the date of amendment in which the application of the Act was called for, whether such proceedings were brought under the Act itself or under any other laws. Thereafter, the West Bengal Act 27 of 1959 had inserted sub-section (2A) in section 40 declaring for removal of doubts that notwithstanding any decision of any court to the contrary any proceeding which was pending on 31st March 1956 could be validly continued after the date and any decree passed or order made after that date in accordance with the provisions of 1950 Act shall be deemed to have been validly passed or made under the said Act.

When the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was inforce, a tenant of the first degree, even without the consent of his landlord could sublet. A tenant inferior to the tenant of the superior decree could also sublet with consent of the landlord. The aforesaid two classes of sub-tenants under the deeming provisions contained in section 13(2) of the Rent Control Act of 1950 became tenants directly holding under the superior landlord only in the event the tenancy of the person who had sublet was lawfully determined otherwise than by virtue of a decree in a suit on any of the grounds other than clause (h) of section 12(1) proviso of the Rent Control Act, 1950. Thus, when an ejectment decree was passed on any or the grounds specified in section 12(1) proviso (except clause (h) of 1950 Act) against the tenant holding directly under the landlord or the said tenant surrendered his tenancy two classes of sub-tenants mentioned in section 13(2) or the Rent Control Act of 1950 acquired statutory right; to become direct tenants in respect of the premises or part of the premises as the case may be, occupied by them. It may be also pointed out that clause (c) of section 12(1) proviso of the Rent Control Act of 1950 is not exactly pari materia with clause (a) of section 13(1) of the West Bengal Premises Tenancy Act 1956. A landlord u/s 12(1) proviso clause (c) of 1950 Act could eject his tenant Who had sublet or held a major portion of the premises for more then seven consecutive months. But the said provision was subject to the following proviso. If the tenant who had sublet agreed to possess as a tenant the portion of the premises not sublet by him, the court could pass a partial decree for ejectment allowing the tenant in possession of the portion not sublet. The rights and obligations of sub-tenants occupying the portion from which the tenant would be ejected u/s 12(1) proviso (c) of 1950 Act were same as those of sub-tenants u/s 13(2) of the said Act of 1950.

It follows that in case the landlord did not obtain a decree for recovery of possession under any of the clauses of section 12(1) proviso of 1950 Act against his tenant, sub-tenants holding under such a tenant had no vested right to be deemed is a tenant directly under the superior landlord because we have pointed out that the said deeming provision came into operation only upon determination of the tenancy of the tenant who had sub-let, by virtue of passing of an ejectment decree u/s 12(1) proviso of Rent Control Act of 1950 (except clause (n) of the said proviso). Therefore, even in a case where a tenant had sublet but his landlord did not file any ejectment suit against him on any of the clauses mentioned in section 12 (1) proviso of 1950 Act, after the repeal of the said Act of 1950, the landlord could recover possession from such a tenant only upon establishing any one or more of the grounds specified in section 13(1) of the West Bengal Premises Tenancy Act, 1956.

It is settled law that clause (a) of section 13(1) of 1956 Act refers to post-Act and not pre-Act subletting. Further, pre 1956 Act sub-tenants were given opportunity under sub-section (2) of section 16 of the said Act to notify in the prescribed manner the landlords of the premises and also to become direct tenants by making application before the Kent Controller in accordance with subsection (3) of section 16 of the 1956 Act. The section 40 of the Act of 1956 while purporting to save suits and proceedings under the Act of 1950 pending at the date of the commencement of 1956 Act did not further lay down that even when after the repeal of 1950 Act and the commencement of 1956 Act, a landlord brought ejectment suits against his tenant, the sub-tenants inducted by such tenants would be entitled to claim rights under repealed section 13(2) of 1950 Act. The rights of sub-tenants inducted before Act of 1956 came into force u/s 13(2) read with section 12(1) proviso clause (c) have been saved in the following two cases where :

1) before the repeal of the Rent Control Act of 1950 a landlord has obtained ejectment decree against his tenant under any of the clauses of section 12(1) proviso (except clause (h) of 1950 Act).

2) ejectment suits and proceedings u/s 12(1) proviso (except clause (h) of 1950 Act) were pending at the date of the repeal of the Act of 1950.

In this connection, we may refer to the Supreme Court decision in Indra Kumar Karnani Vs. Atul Chandra Patitundi and Another, , which interpreted the scope of sub sections (1) and (2) of sec. 13 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The appellant of the said case had obtained a decree for eviction against its tenant, the res pondent No. 2, on the ground that the tenancy had been determined on account of default in payment of rent. The respondent No. 1 in the Supreme Court appeal had resisted the said execution case on the ground that he had taken sub-tenancy from the respondent No. 2. The said sub-tenant (the respondent No. 2) brought a suit for declaration that on the termination of the tenancy of the respondent No. 2 he had become a direct tenant of the appellant landlord u/s 13(2) of 1950 Rent Control Act and that he was not liable to be evicted in the execution case. The trial court decreed of the suit The lower appellate court dismissed the first appeal preferred by the landlord. The High Court dismissed the second appeal and the Supreme Court in Indra Kumar Karnani''s case (supra), dismissed the landlord''s appeal holding, inter-alia, that section 12(1) (c) of 1950 Rent Control Act saved the right of sub-tenant even in a case in which the landlord had brought a suit for eviction against his tenant u/s 12 (1) (c) and the rights and obligations of the sub-tenant would be governed by the provisions of section 13 of the Rent Control Act, 1950.

But after the repeal of the Rent Control Act of 1950 sub-tenants cannot claim any right u/s 13 of the said repealed Act in the event the superior landlord obtains an eviction decree against the tenant of the first degree on any of the grounds specified in section 13 (1) of the West Bengal Premises Tenancy Act, 1956. The sub-tenants who were inducted before the commencement of the West Bengal Premises Tenancy Act were given opportunities u/s 16(2) of the West Bengal Premises Tenancy Act to give notice within the prescribed time to the landlord. Such sub-tenant u/s 16(3) of the West Bengal Premises Tenancy Act could apply to the Rent Controller for declaring them as a tenant directly under the landlords from the date of the order. But when a tenant who was inducted before the commencement of 1956 Act did not give- any notice and also did not apply u/s 16 of the West Bengal Premises Tenancy Act he would be bound under subsection (3) of section 13 of the West Bengal Premises Tenancy Act 195(5 by any decree or order of possession of any premises passed against the tenant of the first degree u/s 13(1) of the West Bengal Premises Tenancy Act. Only those sub-tenants who had given notice u/s 16 of the 1956 Act of their sub-tenancies, shall be made parties in terms of section 16(2) and such notified sub-tenants under proviso to sub-section (2) of section 13 of 1956 Act have been given protection against the ejectment except in case.? covered by clauses (f) and (g) of section 13(1) of the 1956 Act unless any of the grounds mentioned in clauses (b) to (e) and (h) applied to him.

The Division Bench in Ram Khilan Das''s case (supra), had referred to the decision of one of us in the unreported case of Samad Mistri and others v. Sk. Mohammad Omer and another. Civil Rule No. 1992 of 1974. It is necessary to clarify that in Samad Mistri v. Sk. Mohammad Omer (supra), the landlord had obtained ejectment decree against the tenant of the first degree in a suit governed by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and had tried to execute the said decree passed u/s 12 of Rent Control Act 1950 against alleged sub-tenants who had been inducted before the commencement of the West Bengal Premises Tenancy Act. 1956. Therefore, the observations in Samad Mistri v. Sk. Mohammad omer (supra) regarding the right of the said sub-tenants to resist the ejectment decree in Question were made in the context of the relevant provisions of the Rent Control Art. 1950. For the foregoing reasons, the Division Bench decision in Ram Khilan Das''s case (supra) dose not apply to the facts of the present appeal by the tenant-appellant who had admitted the inducted one of his sub-tenants after the commencement of the West Bengal Premises Tenancy Act without prior consent in writing of the landlord and the plaintiff landlord has otherwise satisfactorily established his right to recover possession of the suit premises under clause (a) of sub-section (1) of section 13 of the West Bengal Premises Tenancy Act 1956.

We, accordingly, dismiss this appeal. There will be no order as to costs. The appellants are granted one months time to vacate the suit premises.

R. K Sharma, J.

I agree.