Munni Debi vs Pushpalata Mandal

P.N. Mookerjee, J.—This appeal is by the Defendant and it arises out of a suit for ejectment.

The suit was instituted on April 1, 1964. It is, admittedly, governed by the West Bengal Premises Tenancy Act, 1956 and the, ground, taken under that Act, was unlawful subletting by the tenant without the consent in writing of the landlord.

The suit has been decreed by the learned trial Judge upon a finding that there has been such unlawful subletting and upon the further finding that there was due service on the Defendant of a valid notice of ejectment u/s 106 of the Transfer of Property Act and Section 13(6) of the West Bengal Premises Tenancy Act, 1956. The tenant Defendant has now come up on appeal.

In support of this appeal, three points have been urged by Mr. Ghosh, who appears for the Appellant.

In the first place, he contends that, on the materials before the Court, the finding on the question of service of notice of ejectment should have been in favour of the Defendant and against the Plaintiffs, or, in other words, that the Court ought to have held that there was no proper or valid service of any notice of ejectment upon the Defendant.

We are unable to accept this contention. The notice of ejectment, to which no objection can be taken in law and as a matter of fact, no such objection has been taken, appears to have been served on the Defendant by registered post. The registered cover came back with the postal peon''s endorsement of refusal by the Defendant. Under the circumstances, a strong presumption arises of due service of the notice on the Defendant u/s 27 of the Indian General Clauses Act, read with Section 114 of the Indian Evidence Act and the strength of that presumption has been stressed in a large number of judicial decisions, of which mention may be made of the Privy Council decision in 23 CWN 77 (Privy Council) and the Bench decision of this Court in Sushil Kumar Chakravarty Vs. Ganesh Chandra Mitra, . We may also point out, in this connection, that Saibalini''s case (1960) 65 C.W.N. 690 does not lay down that the examination of the postal peon or formal proof of the postal endorsement is necessary in every case to raise the above presumption or prove such postal service, but only points out that there may be cases where such examination or proof, may be required.

It is argued, however, on behalf of the Appellant that, on the materials on record, this presumption, however strong, has been rebutted and in that connection, reference has been made to the Defendant''s denial on oath of such service and the supporting evidence of her two witnesses (D.W. 7 and D.W. 9) on the point. The learned trial Judge upon a consideration of the above evidence, including the Defendant''s, has given effect to the above presumption and refused to hold that the same has been rebutted. We are in entire agreement with the learned trial Judge on this point. The Defendant''s denial on oath is by itself hardly sufficient particularly having regard to the nature of that denial in the present case. Of the supporting evidence, the evidence of the lawyer witness (D.W. 7) would not, in our opinion, on a proper reading, be sufficient to show that the Defendant was absent from her house, that is, the tenanted premises, on the relevant date, from 10 in the morning till 2 P.M. and as to the evidence of D.W. 9, we agree with the learned trial Judge in holding that the said evidence is not acceptable and accordingly, there is no proof that the Defendant was absent from her house from 2 P.M. up till 5.30 P.M. on the relevant date. In the circumstances, the evidence, adduced by the Defendant, is not sufficient to prove non-service or impossibility of service of the notice by registered post on her. In the premises, this argument in support of the appeal fails and it is rejected.

Mr. Ghosh next contends that there was, in the circumstances of this case, implied consent to subletting on the part of the original landlord. That may or may not be correct, but, even assuming that there was such implied consent, there is no writing, evidencing or containing such consent. In the circumstances, it is clear that there was no consent in writing of the landlord to subletting by the tenant and as the statute requires previous consent in writing of the landlord to such subletting for its protection under the statute, such implied consent, even if there was any, would not be relevant.

It is urged next by Mr. Ghosh that there was no proof of any subletting in the instant case at any relevant period. Upon this point, accepting that the relevant period will be only the post Act period or the period after March 1956, the materials on the record, as considered by the learned trial Judge, would show that there was such post Act subletting On this part of the case, the learned trial Judge relied on certain municipal papers, which have, however, not been included in the paper book by the Appellant. In the circumstances Mr. Ghosh accepted the position that the said municipal papers would show that there was subletting after the Act of 1956 had come into operation. He, however, raised a further contention that there is no proof that there was any subletting after the Plaintiff''s purchase in. 1962 and any previous subletting, although it might be post Act, would not be available to the Plaintiffs however much it might have been available to their predecessor or vendor, who was the previous landlord or the landlord at the corresponding date.

In developing the above argument, Mr. Ghosh contended that this right, which was given to the landlord for claiming eviction on the ground of unlawful subletting without his consent in writing was in the nature of a personal right and could be availed of only by himself and could not be transmitted to his transferee.

We are unable to accept this argument. The statute, in Section 13, deals with status or substantive rights of the parties. Under that section, the landlord is given a limited right of ejectment but, none the less, it is a substantive right, which is transferable and available to transferee. The tenant loses his protection under certain circumstances and the benefit of this loss of protection is as much available to the then landlord as to his successor. By unlawful subletting without the landlord''s consent in writing, the tenant loses his status of non-ejectibility, or become ejectable, under the statute and the landlord, at the time has or gets the right to eject him and by transferring the property, he transfers this right also to the transferee; otherwise the transferee, by the transfer or by his purchase, would not be acquiring the full right, title and interest of the transferor (vendor). Such a proposition, unless specifically provided for in the statute, or in the absence of any clear indication in that behalf, cannot be accepted. In the above view, we overrule also this contention of Mr. Ghosh.

In the result, this appeal would fail but, having regard to the nature of the case and the circumstances of the parties, we are inclined to grant the Defendant a fairly long time or grace period for vacating the disputed property and taking everything into consideration, we would grant her time till the end of November, 1968, to quit and vacate the disputed premises and deliver up vacant and peaceful possession thereof to the Plaintiffs decree-holders or, in other words, until the expiry of the said period, the present decree for ejectment will remain inexecutable, provided, of course, that the Defendant Appellant goes on depositing, in the trial Court, to the credit of the Plaintiffs decree-holders, month by month, regularly, according to the English calendar, within the 15th of the next succeeding month according to the same calendar, a sum of Rs. 100 (Rupees one hundred) per month, on account of current mesne profits and in default of any two of such deposits, this decree for eviction will become executable at once and the above provision for time or grace period will automatically lapse.

The Plaintiffs decree-holders will be entitled to withdraw any deposit, made under this order, without furnishing any security therefore and without prejudice to any of their rights under the law.

Subject as above, this appeal fails and it will be dismissed.

There will be no order for costs, so far as this Court is concerned.

Gupta, J.

I agree.