Smt. Kana Dey vs Dipak Dasgupta

Malay Kumar Basu, J.—This Second Appeal has arisen out of the judgment and order dated August 20, 1997 passed by the Learned Civil Judge (Sr. Division) Sealdah in Title Appeal No. 91 of 1996 reversing the decision of the Learned Munsif, Sealdah dated July 31, 1996 in T.S. no, 149/94 of his Court. The relevant facts leading to this Second Appeal consist in filing of a suit by the Plaintiff landlord (Thika Tenant) against the Defendant-tenant for a decree of eviction of the latter from the suit property as described in the ''B'' Schedule and ''C Schedule of the plaint mainly on the ground of violation of the terms of the lease deed.

The Plaintiff''s case is as follows. He is a Thika tenant in respect of 1 Bigha 2 Cottahs ot land as described in Schedule ''A'' of the plaint. Out of that he let out 8 Cottahs 16 square feet as described in the ''B'' schedule of the plaint to the Defendant for a term of 10 (ten) years with effect from August 1, 1966 at a monthly rental of Rs. 200.00 on the terms and conditions as stipulated in the lease deed. Later, the Plaintiff constructed two sheds on the vacant land lying in between the houses and sheds which were in the lessee''s possession and upon the Defendant''s offer to pay an additional sum of Rs. 50.00 per month as rent he let out those two sheds also in continuation of the earlier tenancy. One of the conditions of the lease was that the lessee would not assign, sub-let or under-let any part of the demised premises.

The Defendant paid rent upto March, 1976, but then defaulted in payment of rent. A suit was instituted by the Plaintiff against him being S.C.C. Suit No. 319/77 wherein the Defendant was allowed to pay the arrears of rent by instalments. But since January, 1977 the Defendant again defaulted in payment of rent. He also violated the terms of the lease by sub-letting a part of the premises to other persons, viz., M/s, Print Art without the consent of the Plaintiff, Hence the Plaintiff sent a combined notice to quit u/s 13(6), W.B.P.T. Act and u/s 106, T.P. Act by registered post with AD to the Defendant who received the same in due time, but did not vacate the premises and continued to occupy the same wrongfully and illegally as a trespasser. The Defendant, moreover, has encroached upon the contiguous land including three rooms with asbestos shed belonging to the Plaintiff measuring more or less one cottah as described in the ''C Schedule of the plaint and has been liable to be ejected from that portion also. Moreover, the Plaintiff amended the plaint to the effect that during the pendency of the suit the Defendant quite unauthorisedly and illegally made certain major alterations inside the demised property by converting the existing ten rooms into eleven rooms. In these premises, the Plaintiff brought the suit against the Defendant praying for a decree of ejectment of the Defendant from the suit property as described in Schedule ''B'' and ''C'' of the plaint and of Khas possession of the suit property in his favour, a decree for permanent injunction and also for mesne profits.

The Defendant, Sri Khirendra Lai Dasgupta, filed a written statement denying the material-allegations of the plaint and averting as follows. It was admitted that by virtue of the lease deed dated August 3, 1966 he took lease from the Plaintiff, who was a Thikha Tenant, for a term of ten years of the structures consisting of 8 Rooms on the land measuring 8 cottahs 16 squire feet as described in the ''B'' Schedule of, the plaint at a rental of Rs. 200.00 for the purpose of carrying out a manufacturing business there. The Defendant''s positive case was that during the continuance of that lease on another piece of land adjoining to the abovementioned suit land he at his costs erected boundary walls and constructed a permanent factory premises and also two other sheds (asbestos) with the knowledge and consent of the Plaintiff and at the request of the Plaintiff he delivered a vacant piece of land measuring about four cottahs to the Plaintiff who transferred the same to his daughter who in turn erected building for her residence. The Defendant never constructed any sheds or rooms on the ''B'' Schedule suit property as alleged by the Plaintiff. The Plaintiff had no land in his possession in the suit property beyond the abovementioned four cottahs already delivered to his daughter. The asbestos sheds were constructed by him as Thikha tenant and under the provisions of the Calcutta Tikha Tenancy Act, 1949 there was no bar against subletting by a Tikha Tenant and the persons who were inducted by the Defendants as tenant under him, he being treated as Tikha Tenant, were so inducted with the knowledge and consent of the Plaintiff and therefore, there was no scope for the saying that there had been any violation of any agreement. In this view of the matter no wrong or illegal act was committed by the Defendant in introducing M/s. Print Art in the suit premises as tenant under him and therefore the Plaintiff''s suit for ejectment on the ground of sub-letting by the Defendant had no legs to stand upon. Although the original Defendant in this way made an admission in the W.S. that he inducted M/s. Print Art as a sub-tenant under him in the suit premises, after his death during the pendency of the suit his legal representatives, that is, the present Defendants, having been substituted in his place appears to have filed a joint additional written statement taking the plea that they or their predecessors had never inducted any subtenant like M/s. Print Art, nor any other person, named, Babu Dutta and that the suit property was under the exclusive possession of the Defendants. By another additional written statement they further denied that, they had made any addition or alteration on the suit property or had raised any permanent construction thereon and they have not done anything in the suit property which might attract the provisions of Sections 108(m), (o) and (p) of the Transfer of Property Act. According to the Defendants, the Plaintiff''s suit being a false one and having no merit is liable to be dismissed with costs.

On the basis of these pleading of the parties the trial court framed issues as follows.

Is the suit maintainable in its present form and prayer?

Has the Plaintiff any cause of action to file the instant suit?

(Page 7 begins) Is the daft. is defaulter in payment of rent?

Is the notice valid, legal and sufficient? Was the notice served upon the daft?

Has the daft. sublet any portion of the suit premises?

Is the Plaintiff entitled to get a decree as prayed for?

To what other relief if any is the Plaintiff entitled?

After taking evidence adduced by both the parties and hearing arguments the learned Munsif passed his judgment dated July 31, 1996 decreeing the suit on contest without cost. The Plaintiff was granted a decree of khas possession by evicting the Defendant from the suit property and also of mesne profits and the Defendant was directed to vacate the same within two months from that date, in default, the Plaintiff was given liberty to get the same done by putting the decree into execution. Being aggrieved by that judgment and decree of the learned Munsif the Defendant-tenant preferred an appeal in the court of District Judge, South 24-parganas, wherefrom it was transferred to the court of the Civil Judge (Sr. Division), Sealdah and that First appellate court by his judgment and order dated August 20, 1997 set aside the impugned judgment and decree of the trial court and dismissed the suit.

Being aggrieved by and dissatisfied with that judgment and order of the First appellate court the Plaintiff/Appellant has preferred the present second appeal challenging the said impugned judgment of the first appellate court as erroneous, illegal and unsustainable.

The learned Munsif found that the service of notice was valid, legal and sufficient and further that the Defendant-tenant could not be held to be a defaulter in view of the provisions of Section 17(4) of the W.B.P.T. Act since this was an instance of his first default and he was to be protected under the abovementioned provisions of law. These findings of the trial court were not the subject-matter of challenge before the First appellate court. The learned Munsif thereafter found that the Defendant tenant had failed to show any document by virtue of which it could be claimed that the Defendant had been given the right to raise any structure or make any construction other than boundary walls or collapsible gates, nor he could claim the right to. assign or transfer or sublet any portion of the demised premises without the consent or permission of the Plaintiff. His further finding was that the Defendant in his original W.S. having admitted that some persons had been inducted by him as his tenants in the suit property on the plea that there was no bar against such subletting, was debarred from making out a contrary case while deposing as a witness. In other words, the Defendant''s denial of the fact of subletting was not permissible under the law. According to learned Munsif, the plea of the defence that the substituted Defendant being not bound by the averments made in the written statement by his predecessor has no legs to stand upon, because, according to him, the contention of the Defendant that an admission is not admissible against a person other than the person making it will not be applicable in such a case, inasmuch as, the original Defendant was not a third party, but the father of this Defendant and he got his right, title and interest from his father by way of inheritance and hence in such a case this Defendant would be bound by the statements of the original Defendant since deceased. In view of such reasons the Learned Munsif did not accept Defendant''s contention that although in the original W.S. there was an admission to the effect that the M/s. Print Art had been inducted into the suit premises as a tenant, yet since the present Defendant introduced some addition and alterations in the W.S. denying the correctness of such averments in the original W.S., the same will have no binding effect on him. The learned Munsif was of the opinion that since the Defendant was bound by such admission and since he failed to show any document empowering him to sublet any portion of the disputed premises, he had violated the terms of the lease deed and consequently became liable to be evicted.

The First Appellate Court reversed these findings of the trial court. The points which fell for determination before that court were whether it had been established from the materials on record that the Appellant had sublet the suit property to others named M/s. Print Art and whether the Defendant-tenant had violated the provisions of els. (m), (o), and (p) of Section 108 of the Transfer of Property Act. The learned Civil Judge (Sr. Dvsn.) came to hold that the trial court erroneously found that the Defendant would be bound by the averments made by his predecessor in the original written statement. According to him, admission will be admissible against the person who makes it and admission cannot be admissible against a third party who does not make it. He has further held that since the allegation of subletting has been made by the Plaintiff-landlord, the responsibility should be on his shoulder to prove the same. Learned Civil Judge (Sr. Dvsn.) has further observed that the entire onus of proof of the allegation that the Defendant had sublet a portion of the suit property was oh the shoulder of the Plaintiff who alleged it and since the Plaintiff failed to show a single scrap of paper to establish the story that one M/s. Print Art, or, somebody named Bablu Dutta as subsequently alleged, were inducted as sub-tenants under the Defendant, the Defendant could not be held liable for violating any term or condition of the deed of lease and the Plaintiff was not entitled to get a decree on such a score. As regards the other points, namely, whether the Defendant had violated the terms of the lease deed or, for that matter, the provisions of Section 108(m), (o) and (p) of the Transfer of Property Act the learned First Appellate Court has held that in view of the contents of the Exhibits 6 and ''E'', two agreements between the lessor and the lessee, the latter was authorised to make addition or alteration to the existing structures or make construction and from that point of view the Defendant could not be accused of having violated the provisions of the above sections of the Transfer of Property Act. In consideration of such reasons the First Appellate Court allowed the appeal preferred by the tenant/Defendant and dismissed the suit.

In the memo of appeal the point taken by way of challenging the verdict of the court below is that the court fell into error of law by failing to appreciate that any admission made by the original Defendant in his pleadings is binding on his successor-in-interest in view of the provisions of Sections 17 and 18 of the Evidence Act and that the Defendants were estopped from adducing any evidence contrary to the statements, or, for that matter, the admissions made in the original W.S. filed by their predecessor-in-interest and this was more so, when the Defendants had not denied the factum of the presence Or existence of M/s. Print Art in the suit premises but, instead, had sought to set up a new story by asserting that the said M/s. Print Art was a firm of the Defendant''s father himself. According to the Appellants, the burden of proof shifted as soon as the Defendants admitted such factual position and it became their onus to show that the said person was a sister concern of his father''s firm and since the Defendant had totally failed to prove such an allegation, a fact which was within their special knowledge, by adducing any evidence whatsoever, the court below ought to have held that the said M/s. Print Art had been there as a sub-tenant under the Defendant, as there was no other third case. According to the Appellant, the impugned judgment of the court below was perverse and erroneous and therefore it should be set aside and that of the trial court should be upheld.

At the commencement of hearing of this second appeal this Court formulated the following substantial questions of law within which the scope the second appeal was to be limited:

I. For that the court of appeal below was not justified by refusing to pass a decree on the ground of subletting by not following the settled legal principle that the heirs and/or legal representatives of the original Defendant cannot set up a different and/or contrary plea to that of the plea of the original Defendant.

II. For that the learned First appellate court was not justified in refusing to grant a decree for eviction on the ground of sub-letting by not drawing an inference of sub-letting from the proved fact that the stranger is carrying on business in the suit premises particularly ''when the relationship of the stranger with the tenant/Defendant still remains unexplained by the Defendant/Respondent.

Thus in this second appeal the first point to be gone into is whether the allegation of the Plaintiff that the suit property had been sublet by the Defendant-tenant has been established and for that purpose, further, the question that falls for determination is on whom the burden of proof of this allegation lies. It has been the contention of Mr. Deb, learned Advocate for the Defendant-respondent that the entire onus of proving that there had been sub-letting lies on the shoulder of the Plaintiff-landlord and he having totally failed to substantiate such a story the court below, namely, the first appellate Court has rightly found this issue against the Plaintiff. As against this, the contention of Mr. Roy Chowdhury, Learned Counsel for the Appellant is that the concept of onus is a changing one and as soon as the Defendant admitted in his pleadings that one M/s. Print Art was possessing a part of the suit premises, as a tenant under him the burden at once shifted to him to prove that such sub-letting was done with the knowledge or consent of the Plaintiff.

It is to be noted that in the suit the original Defendant filed a written statement, but during its pendency before the trial court he died and then the present Defendants being his legal representatives were substituted and after entering their appearance in the court they filed an additional written statement whereunder they made a total departure from the above stand. They have stated that either they or their predecessors have never introduced or inducted any subtenant in the suit premises and the same has been under their exclusive possession all along. The important question is whether it is legally permissible for any party Jo introduce a new case in this way by making a statement contrary to what has been averred in the original pleadings. The answer is in the negative. It is a well settled principle that introduction of a contradictory or a totally different case by means of amendment of the plant (in case of Plaintiff) or written statement (in case of Defendant) is not permissible. In C.D. Dhanaraj and Another Vs. S. Nami Stella Sarojini and Others, and Rajinder Kishore and Others Vs. Kesar Dass and Others, it has been held that when a plea inconsistent with the earlier plea is sought to be raised by the Defendant by way of amendment of W.S., the Court may be liberal if the earlier admission is made by a mistake. But when such admission is found to be made not by any mistake, but the party deliberately changed its mind, the proposed amendment is liable to be rejected. The principle is equally applicable to the case of filing of additional written statement. In S.K.D. Laboratories v. Bank of India (1988) 2 CCC 377 (A.P.) it has been held by the Andhra Pradesh High Court that by filing additional written statement no plea inconsistent with original written statement can be raised. In Jainal Singh v. Kanan Debi (1985) 1 CCC 305 the Delhi High Court has held that in the garb of filing addl. W.S. against amended plaint the Defendant cannot give a go-by to his earlier written statement. According to Mr. Roy Chowdhury, such an addl. written statement filed by the Defendants ought not to have been accepted or allowed to be filed by the trial Court, but even if it has been allowed, that does not mean that the legal mandate will lose its significance or the course of law will be impeded. I find little fallacy in Mr. Roy Chowdhury''s argument that in the eye of law this addl. W.S. in so far as it contradicts the original defence case that they inducted one M/s. Print Art as a subtenant under them should be taken as inconsequential and the said averments of the original W.S. should continue to remain in force as admission which will bind the Defendants for all time to come.

Here, the point which has been seriously urged by Mr. Deb is that in the event these averments of the original W.S. are taken as admission, the same will not have any binding effect on the present Defendants for two reasons. First admission by the predecessors of these substituted Defendants should not be taken as admission made by themselves and according to Mr. Deb the finding arrived at by the First Appellate Court should be accepted as correct that in view of the settled principle that admission is admissible against only the person who makes it and not against a third party and since these Defendants being subsequently brought on record on death of the original Defendant are like third parties, they cannot be made bound by such admission.

It goes without saying that this reasoning of the court below is absurd and suffers from perversity. u/s 18 of the Indian Evidence Act, 1872, it is provided that statements made by a party interested in subject-matter of the proceeding and who make the statement in their character of persons so interested or by persons from whom the parties to the suit have derived their interest in the subject matter of the suit are admission, if they are made during the continuance of the interest of the persons making the statements. It is well known that an admission in pleading means the admission of an averment made by the opposite party. Therefore, the substituted Defendants cannot avoid or escape the application of this rule of evidence regarding such an-admission made by their predecessor-in-interest who made such statements in the W.S: during the continuance of his interest in the subject matter, of the suit'' and they having stepped into the shoes of their predecessor are not to be treated as third party. They are privies in blood (privet means successive relationship of the same rights of property) and the ground on which admissions bind those in privity with the party making them is that they are identified in interest.

It is a cardinal principle of law of evidence that admitted facts need not be proved (vide Section 58 of the Evidence Act). Since the substituted Defendants (the present Respondents) are bound by the admission made by their predecessor-in-interest in his pleadings, it will be taken as admitted fact that they inducted one M/s. Print Art into the suit premises as a sub-tenant under them and this will hot require any further proof. In this connection Mr. Deb has canvassed his second ground why such admission, if at all, will not bind his clients. He contends that it is a settled principle of law that admission in the pleadings cannot be dissected and if it is to be taken, it is to be taken in its entirety including any condition which accompanies such admission. According to Mr. Deb, in the original W.S. filed by the predecessor of the present Defendants-Respondents it has been averred that such induction of a sub-tenant was done by the Defendant to the knowledge and with the consent of the Plaintiff and, therefore, if the admission-part is to be accepted, the second part indicating the giving of consent by the Plaintiff should also go hand-in-hand therewith. In support of this contention Mr. Deb has referred to a host of reported decisions, namely, M.M. Assabhoy v. M: Haridas AIR 1915 P.C. 2 , Union of India (UOI) Vs. H.C. Goel, ; Sunil Chandra Ghosh Vs. Hemendra Kr. Deb, , Fateh Chand Murlidhar Vs. Juggilal Kamlapat, , Md. Ziaul Haque Vs. Calcutta Vyaper Pratisthan, . in all these rulings more or less the same principle has been enunciated, namely, that a pleading cannot be dissected and if a written statement contains an admission of certain facts which are favourable to the Plaintiff, and at the same time it also contains a denial of Other facts or an assertion of other facts which are unfavourable to him, the Plaintiff must, if he wants to avail himself of the admission, take both the sets of facts together equally Mr. Deb contends that since in the original W.S. filed by the predecessor of the present Defendant simultaneously two sets of facts were averred, namely, that the induction of the sub-tenant had been done h.y the Defendant subject to the knowledge and approval of the Plaintiff, the Plaintiff cannot be permitted to utilise the first part only to his advantage turning a blind eye to the second part.

To dwell upon this contention properly let us look into the exact averments in the pleadings and assertion ascertain the nature of the admission in question. The Plaintiff in his plaint (vide para. 5) has alleged that the Defendant sub-let a portion of the suit property to one M/s. Print Art without his (Plaintiff''s) written consent. As against this the Defendant has stated in para. 11 of his W.S. the following: ''There was no bar of law for assigning and subletting and no wrong or violation of law was committed by introducing M/s. Print Art as a tenant under the Defendant. Moreover, there was written consent of the Plaintiff at the time of construction of structure''. It is to be marked that while in the first part of the above para there is admission in clear terms of the allegation of the Plaintiff that M/s. Print Art was introduced as a tenant by the Defendant in the suit premises, in the second part it is not clear as to which the ''written consent'' is referred to. Rather, in all probability such ''written consent'' appears to be in relation to construction of structure. Because, it is also the case of the Plaintiff that the Defendant raised construction on the vacant portion of the disputed plot without any authority. It should also be noted that in para. 9 of the W.S. the following plea has been taken by the Defendant. ''Some persons were inducted as tenants under the Defendant with the knowledge and consent of the Plaintiff from 1972 and there is no scope for violation of agreement of law''. This plea does not relate to the Plaintiff''s specific allegation about the induction of M/s. Print Art as a sub-tenant under the Defendant, but it is made in a general way and cannot be taken as admission of the said averment of the Plaintiff. Therefore, admission of, the naid averment of the Plaintiff is found to consist in the words expressed in Para 11 of the W.S. mentioned above in the case of which it cannot be said that such admission is accompanied by a condition. The contention of Mr. Deb that Defendant''s admission regarding subletting to M/s. Print Art is to be qualified by the fact that it was on that basis of written consent given by the Plaintiff has no legs to stand upon. The ''written consent'' that has been referred to in the next time in this paragraph appears to be, as I have already pointed out, with regard to ''Construction of Structure'' and not induction of this particular subtenant.

But even if it is assumed for a moment for the sake of argument that induction of this sub-tenant has in the W.S. of the Defendant been linked with such a condition, namely, that the Defendant inducted this subtenant after obtaining written consent of the Plaintiff-landlord, even then that will have to be taken as a separate and independent case of the Defendant which the Plaintiff denied and hence the Defendant has to furnish strong proof in support of such a story. But premising the evidence on record I find that the evidence of the Defendant in this regard is practically nil. He has not produced a single scrap of paper to show that he obtained such written consent as alleged from the Plaintiff-landlord before such subletting. Even his oral evidence on this score also is hollow. In the denial from he (D.W.-1) tries to give some evidence but that too suffers from some infirmity. He says that he or his predecessor did not induct any person like ''Art Printers'' in the suit premises as a sub-tenant. But he never mentions the name of ''M/s. Print Art''. So strictly it cannot be said that the Defendants have even denied in their evidence that they inducted M/s. Print Art as a sub-tenant in the suit premises as alleged by the Plaintiff in his plaint. It should also be pointed out that the statement of the P.W. 1 made in his C.R. that he will not be able to show that any person other than the Defendant resides in the suit premises as a tenant is without any help to the Defendants, since it is the onus of the Defendants to show in what capacity M/s. Print Art has been living in the suit house. They have made a definite assertion in their pleadings, but if they fail to substantiate this by cogent evidence they cannot escape the consequences of such failure by taking the plea that their admission regarding the induction of the sub-tenant cannot be taken into consideration in isolation of this accompanying condition that such subletting was done in view of written consent given by the landlord. Admission, as I have already observed above, means acceptance as true certain averments made by the opponent in his pleadings. If that much of admitted fact is excluded from consideration of the court merely on the ground that such admission was linked with certain facts which are not found established, then that will debilitating against the principle of equity justice and good conscience. Here, while admitting the allegation of the Plaintiff that one M/s. Print Art was inducted as a sub-tenant in the suit premises, the Defendant added a rider that such induction was in view of a written consent given by the Plaintiff. The law of evidence demands that this latter part of the plea of the Defendant constitutes a distinct and separate case of the Defendant hot emanating from the admission part not being interlinked and the Defendant has to prove this allegation, this independents story averred by him in the prescribed manner; but it cannot be the legal position that if the Defendant fails to prove this alleged story, the admission which he makes in his pleadings cannot be treated as admission and the Plaintiff cannot derive any benefit out of such admission made by the defendant. All this boils down to the conclusion that the alleged sub-letting by the Defendant being admitted in the written statement of the Defendant need not be proved by further materials and should be taken as established, but the Defendants1 alleged story of obtaining of written consent from the Plaintiff in this behalf cannot be taken as part and parcel of the said admission and the same having not been substantiated at all by appropriate evidence. I am unable to accept the contention of Mr. Deb that it should be presumed that the sub-letting was done after taking permission from the Landlord under the Thika Tenancy Act if we are to go by the Defendant''s admission in the W.S., since an admission in the pleading must be taken as a whole and the court cannot accept one part and reject another part. On the contrary, the view expressed by Mr. Roy Chowdhury approaches nearer the truth that the two factums one of sub-letting and another of giving of consent are independent of each other and the two should not be mixed up. It is not a case where it can be said that if one is true, the other also will be so, or, that the two factums constitute parts of one whole so much so that there cannot be any dissection of them. These are the reasons why the abovementioned reported decisions cited by Mr. Deb on this point are not found applicable here.

Thus it has been established from the entire materials on record that the Defendants inducted a subtenant named M/s. Print Art in the suit premises without the consent of the Plaintiff-landlord and certainly thereby they violated the terms of the agreement and as a result the Plaintiffs have become entitled to get a decree for eviction of the Defendant-tenant from the suit premises on such a ground. The substantial questions of law which were formulated are thus decided in favour of the Plaintiff-Appellant.

The next contention of Mr. Deb is that the substantial question of law that .aid been formulated, particularly the question No. II which invites the court to make a reprisal of the evidence on record cannot be gone into by this Court of second appeal in view of the provisions of Section 100 of the Code of Civil Procedure, The question whether there was sub-letting is a question of fact and not a question of law, far less a substantial question of law and such a question can not be said to have arisen out of the findings of the court below and therefore it will be erroneous on the part of this Court to dwell upon that question in this second appeal. In support of such contention Mr. Deb refers to a number of reported decisions as follows: Shama Prashant Raje Vs. Ganpatrao and Others, , Bhagwan Dass and Anr. v. S. Rajdev Singh and Anr. AIR 1970 S.G. 986 , Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, , Arumugham (dead) by Arumugham (Dead) By Lrs. and Others Vs. Sundarambal and Another, and Dnyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor, . The principles that have been enunciated in these rulings appears to be that when the question is whether the finding of fact arrived at by the court below is against the weight of evidence adduced by the parties, it is not a question of law, much less a substantial question of law, but it is a question of fact which a court of second appeal cannot enter into in view of the rigors of Section 100 CPC which debars it from embarking on a reappraisal of the evidence on such a question of fact.

But this contention is to be subjected to the principles enunciated by the apex Court in a host of decisions where the above findings have been modified or contradicted in view of the particular circumstances underlying such cases. Such decisions which Mr. Roy Chowdhury relies upon are as follows: Budhwanti and Anr. v. G.C. Prasad AIR 1987 Ratanlal Bansilal and others Vs. Kishorilal Goenka and others, , State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., and Rohini Prasad and Others Vs. Kasturchand and Another, .

In Budhwanti and Another Vs. Gulab Chand Prasad, , it has been held by the apex Court that where the trial court on the basis of evidence before it found that the landlord was in bonafide requirement of the tenanted shop for the purpose of business of the members of the joint family, but the 1st appellate court reversed that finding on baseless assumptions and wrong principles of law, the High Court in second appeal is justified in setting aside the finding of the Appellate Judge, even though it was factual in character, it is true that in a second appeal a finding of fact, even if erroneous will generally not be disturbed, but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions, then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous finding. It is rightly argued by Mr. Roy Chowdhury that in the present case the same circumstances have occurred. The first appellate court below has placed the onus of proof wrongly on the shoulder of the Plaintiff ignoring the basic dictum that burden of proof is a shifting concept. As soon as the Defendant was found to have admitted the presence of the alleged sub-tenant in the suit premises, the onus fell on him to show that the latter was living there in a capacity other than that of a sub-tenant. The Learned Additional District Judge'' thus misplaced the onus and overlooked the significant aspect that the Defendant totally failed to discharge such burden of proof. Thus, there cannot be any doubt that the finding ''of the first appellate court becomes vitiated by application of wrong test and in such an event the High Court in the second appeal cannot turn a blind eye to such patently erroneous conclusions on the pretext that in second appeal this Court cannot interfere with the findings of fact of the lower court. In Ratan Lal Banshilal v. Kishori Lal ( Supra). It has been held by a Full Bench of this Court that perversity in the finding of fact or misconduct in the collection and evaluation of evidence can be subject matter of second appeal u/s 100 Code of Civil Procedure. In State of Rajasthan v. Harphool Singh (Supra), the apex Court has come to the finding that where there are glaring inconsistency and contradictions in the evidence and issues raised are serious, the provisions of Section 100 CPC do not hamper the power of the High Court to interfere with even concurrent finding of facts of the lower courts. In Rohini Prasad and Ors. v. Kastur Chand and Anr. (Supra) it was held that where misreading of evidence of appellate court would lead to miscarriage of justice or its finding is based on no evidence and perverse the High Court would be justified in interfering in second appeal.

Thus from the trend of the recent rulings the legal position is established that there cannot be any absolute bar upon the court of second appeal against examining the legality or correctness of the findings of the first appellate court as to the factual aspect and if such findings appear to be shockingly contrary to the accepted principles of law, such court will be within its competence to interfere with such findings or .set aside the same in order to render justice to the party affected by such erroneous findings. Therefore, the formulation c. substantial question No. 2 being or. the point whether * inference of subletting should be drawn from the proved fact that a stranger is carrying business in the suit, premises, particularly when the Defendant does not explain in what way he is related to such stranger cannot be said to be impermissible under the provisions of Section 100 Code of Criminal Procedure. The ruling cited by Mr. Deb in this connection reported in Anath Bandhii Chakraborty and Anr. v. Ashim Mukherjee (1977) 2 C.L.J. 153, it may be mentioned, has been reversed by the Full Bench judgment of this Court mentioned above.

Thus, from the foregoing discussion it is clear that it was the Defendant''s burden to prove that the admitted induction of one M/s. Print Art in the suit premises, by him as a sub-tenant was after obtaining the written consent from the Plaintiff-landlord or to show by adducing cogent evidence that the stranger who was admittedly staying in the suit premises at. the instance of the Defendant was so staying not in the capacity of a sub-tenant. It has been further established that the Defendant has failed to discharge his onus and consequently it has been established that the said stranger was inducted as a subtenant by the Defendant in the suit premises without the consent of the Plaintiff. It goes without saying that on this score the Defendant becomes liable to be evicted from the suit premises.

So far as the question as to whether the Defendant should be evicted from the ''B'' Schedule property of the plaint alone or from both ''B'' Schedule and ''C Schedule property in suit, it is the contention of Mr. Roy Chowdhury that in his plaint the Plaintiff has definitely made a prayer for eviction in respect of not only the ''B'' Schedule property but also the ''C schedule property and u/s 108(d) of the Transfer of Property Act read with the commentary made in the Mullah''s Book (VIM Edn. P. 855) an act of encroachment should be treated at par with accretion and the Plaintiff in such a case is not required to file a separate suit for getting a decree of recovery of possession in respect of the encroached portion of the land. Mr. Roy Chowdhury further contends that u/s 99 of the Code no decree shall be reversed or varied nor any case be remanded in appeal on account of any mis-joinder of cause of action not affecting the merit of the case or the jurisdiction of the Court. So according to Mr. Roy Chowdhury, even if there may be some amount of misjoinder of causes of action, even then since that fact does not have any impact on the merit of the case this Court should not have any impediment before it in the matter of decreeing the suit in its entirety. As against this Mr. Deb''s contention is that if the encroached land is thus taken to be a part of the lease then the Defendant cannot be evicted therefrom without notice u/s 13 of the Transfer of Property Act being given in respect of that potion of land, but as undisputedly the notice which has been served on the Defendant in this case did not include this ''C schedule suit property, this argument will be of no avail and the Defendant cannot be evicted from that part of the suit property by anything short of such a notice. But I am not impressed by this argument. Section 108(d) of the Transfer of Property Act deals with accretions, which implies that where any land which imperceptibly and gradually accretes to the land in dispute, then that added land will have all the legal characteristics of the land on which it is found. This doctrine of accretion is based on the rule of English Law and has been given recognition by the High Courts and the apex Court in their various judgments.

This contention that simply because the encroached portion of the land that is the ''C Schedule suit property has not been included in the notice u/s 13 of the Act, no decree of eviction can be passed in respect of the same does not appear to be impressive or acceptable for the reason that the prayer of the Plaintiff for a decree of recovery of possession in respect of this encroached portion of the land cannot be strictly treated as one u/s 13 of the W.B.P.T. Act. This part of the prayer of the Plaintiff is not in view of any of the grounds laid down under that Section for the purpose of eviction of a tenant. On the other hand, this prayer is in view of the enabling provisions of cl. ''(d) of Section 108 of the Transfer of Property Act. Therefore this part of the Plaintiff''s prayer will be governed by the provisions of Section 106 of the Transfer of Property Act so far as the question of issue of notice is concerned. Under the provisions of this section notice is to be sent for the purpose of termination of the lease in the absence of a contract only. But where the lease in question has emerged out of a contract between the parties, the question of giving of notice by the lessor to the lessee for termination of the tenancy is to be governed by the terms stipulated therein in such regard. In this connection reference should be made to a Three-Judge-Bench decision of the Supreme Court in Shri Rattan Lal Vs. Shri Vardesh Chander and Others, . It was held by Their Lordships that statutory technicality such as ''notice in writing'' prescribed in Section 111(g) of the Transfer of Property Act cannot be called a rule of equity and the substance of the matter-justice of the situation is whether a condition in the lease has been breached and whether the lessor has by some over act, brought home to the lessee his election to eject on the strength of the said breach. It has been further held that the touch stone is simply whether the formal requirement of the law is part of what is necessarily just and reasonable and in this perspective the conclusion is clear that a notice in writing formally determining the tenancy is not a rule of justice or canon of commonsense and the mere institution of the legal proceeding for eviction fulfils the requirement of law for determination of the lease, the conscience of the court needing nothing more. From this the conclusion by Their Lordships has been that the landlord''s termination of the tenancy in such a case is good even without a written notice. The facts and circumstances of the instant case may not be identical with those of the case under reference, but the principle which has been established will surely have applicability in such a case where it has been established from the evidence that the Defendant-tenant going beyond the framework of legitimacy encroached upon his landlord''s property which did not form part of his tenancy and made a wrongful gain thereby. To find the Plaintiff disentitled to get a decree for recovery of possession in respect of that portion of the land in view of the pure technicality that he has not given notice to the tenant of termination under the provisions of Section 106 of the Transfer of Property Act will be to deny him the salutary principles of justice equity and good conscience. In my opinion the omission of the Plaintiff to include the ''C Schedule suit property within the contents of the notice u/s 106 of Transfer of Property Act cannot be fatal for him or cannot stand in the way of his getting a decree in respect of this part of the suit property when it has been proved from the materials on record that he has been dispossessed by the Defendant from this portion of land forming no part of the leasehold property, particularly when under the provisions of Section 108(d), Transfer of Property Act such encroachment is to be treated at par with accretion.

In view of the foregoing reasons, therefore, this second appeal succeeds and is allowed. The impugned judgment and order of the first appellate court be set aside. The judgment of the trial court be restored. The suit stands decreed. The Defendant-tenant is directed to deliver vacant possession of the said property in suit within 60 (sixty) days from this date failing which the Plaintiff-landlord shall be at liberty to get the same done by putting the decree into execution.

There will be no order as to cost under the circumstances.

Let the L.C.R. go down to the court below forthwith.

Later:

Learned Advocate for the Respondent verbally prays for stay of operation of this judgment. The prayer is considered and rejected.

Let urgent xerox certified copy of this order be given to the Learned Advocates for both parties as early as possible.