Tushar Kanti Mondal vs Kashi Nath Bardhan

The present second Appeal is directed against the judgment

dated 15th July, 2005 passed by the learned Judge, Bench- IX,

City Civil Court at Calcutta in Title Appeal No. 09 of 2004

affirming thereby the decree dated 9th June, 2003 passed by

the learned Judge, 3rd Bench, Presidency Small Causes Court in

Ejectment Suit No. 960 of 2000.

The Plaintiff in the Suit Shri Kashi Nath Bardhan is the

Respondent and Shri Tushar Kanti Mondal and Tarun Kanti

Mondal the Defendants in the Suit are the Appellants herein.

Plaintiff/Respondent''s case in the Suit may be summarised as

follows:-

The Plaintiff/Respondent purchased the Suit premises being

premises No. 104, Raja Ram Mohan Sarani, P. S.- Amherst

Street, Kolkata- 700 009 by a registered deed dated 18th June,

1979 and sometimes after such purchase, he inducted the

Defendant/Appellants in the Suit premises as a tenant at a

monthly rental of Rs. 200.00 payable according to English

Calendar month. The Defendant/Appellants, during their

occupation of the Suit premises as the tenants, sublet the Suit

premises illegally without the consent of the

Plaintiff/Respondent. The Plaintiff/Respondent reasonably

required the Suit premises for the use of his own family. Hence

the Plaintiff/Respondent served a notice of eviction upon the

Defendant/Appellants terminating the tenancy thereby and

asking the Defendant/Appellants to vacate the Suit premises, in

terms of such notice. The Defendant/Appellants refused to do

so. Hence, the Plaintiff/Respondent filed the Suit for the eviction of the Defendant/Appellants from the Suit premises

being Ejectment Suit No. 960/2000.

The Defendant/Appellants contested the Suit filing their written

statement denying therein all the material allegations in the

plaint. It was their specific case, inter alia, that their father

was running a printing press under name and style ''M/s Naba

Gouranga Press'' as a tenant in the Suit building, since prior to

the purchase of it by the Plaintiff/Respondent and after the

death of their father they inherited the said business as well as

the tenancy. Subsequently on the basis of a tenancy agreement

dated 18th August, 1982, they surrendered a portion of their

original tenancy and continued their business in a portion of the

Suit building which, is the present Suit premises, under the

Plaintiff/Respondent, as a tenant at an increased rent. They

further alleged that they never sublet the Suit premises to

anyone and the Plaintiff/Respondent did not require the Suit

premises for any bonafide purpose of his personal requirement

as, such requirement stood satisfied after a portion of the

original tenancy was surrendered in terms of the tenancy

agreement entered into subsequently. With such defence, the

Defendant/Appellants prayed for dismissal of the Suit.

Parties adduced oral as well as documentary evidence during

the trial. Considering the evidence thus adduced, the Trial

Court came to the conclusions that the Plaintiff/Respondents''

claim of subletting as well as personal requirement were

proved and hence the Trial Court passed decree of eviction in

the Suit.

Being aggrieved by the decision and judgment of the Trial

Court, the Appellant/Defendants filed the Title Appeal being

Title Appeal No. 9 of 2004. The Appellate Court was also of the

view that the case of subletting was proved and hence the

Appellate Court affirmed the decree of eviction on such

ground. However, the Appellate Court did not express any view

in respect of the issue of personal requirement.

Being also dissatisfied with such finding of the Appellate Court,

the Defendants in the Suit filed the present appeal,

challenging, inter alia, the legality of the decisions of both the

Courts below.

At the time of admission of the appeal the Division Bench by its

order dated 20th December, 2005 formulated the following

substantial question of law for hearing of the appeal.

I} In granting a decree for eviction on the ground of

subletting, whether the learned Courts below committed substantial error of law in not taking into

consideration the fact that one of the Defendants is the

owner of the printing business and the alleged sub-

tenants are the employees of the said business.

II} Whether learned Courts below committed substantial

error of law in granting a decree for eviction on the

ground of reasonable requirement by not considering

the question of partial eviction in terms of the Section

13 (4) of the West Bengal Premises Tenancy Act.

By the aforesaid order dated 20th December, 2005, the Division

Bench stayed all further proceedings of the execution case in

the Trial Court, on condition that the Appellants would vacate

one room in the first floor and one room in the ground floor in

favour of the landlord within a prescribed period. The order of

such partial eviction by the Court was complied with by the

Appellants and the order of stay of further proceeding of the

Execution case continued. Thereafter, the Appellants by an

application being CAN No. 7506 of 2016 prayed for considering

the aforesaid development of facts during the pendency of this

appeal. The said application has also been heard along with the

appeal.

Learned Advocate Mr Bhattacharya appearing for the

Appellants has submitted that although the Trial Court has

passed a decree of eviction on both the grounds of subletting as

well as personal requirement, but the first Appellate Court has

not scrutinised at all, the decision of the Trial Court on the

point of personal requirement. He has further submitted that

the decision of the first Appellate Court is against the principles

of law relating to the point of subletting as well as against the

evidence on record, and for all such reasons, the decision of

the first Appellant Court suffers from gross illegality and

perversity as well, calling for interference in this second

appeal. Mr Bhattachary has further pointed out some

subsequent events during the pendency of this second appeal

for which the personal requirement of the landlord stands

legally satisfied, according to him.

Mr Bhattacharya has cited the following decisions in his support

1) (1984) 2 SCC 590 ( Jagdish Prasad - versus - Smt. Angoori

Devi), 2) (1987) 4 SCC 161 (Dipak Banerjee - versus -

Lilabati Chakraborty) and 3) (1996) 1 SCC 25 (Dev Kumar -

versus - Swaran Lata & Others).

In reply, learned Advocate Mr Chatterjee appearing for the

Respondent has argued that since there is concurrent finding of both the Courts below, there is hardly any scope for

interference with the findings of the Courts below, in this

second appeal. However, Mr Chatterjee has also expressed his

view that even in a case of concurrent findings of the Courts

below, the second Appellate Court may interfere, where it is

found that the findings of the Courts below are totally illegal or

perverse, but in the present case there is no such gross

illegality or perversity either in the judgment of the first

Appellate Court or in the judgment and findings of the Trial

Court. Hence, such judgments of the Courts below should not

be interfered with.

Mr Chatterjee has further submitted that the Appellants have

themselves admitted during evidence that both of them do

reside in their respective own houses, constructed by them in

some other places and as such they have parted with their

possession in favour of the persons now found residing in the

Suit premises and the Appellants have also failed to explain

under what rights or circumstances those persons are now

possessing the Suit premises. So, the Appellants having failed to

discharge their onus, the case of subletting of the Suit premises

by the Appellants stands automatically proved.

Mr Chatterjee has cited the following decisions in his support. 1)

1994 Supp (3) SCC 697 (Dial Singh - versus - Amrish Kumar

and others), 2) 89 CWN 447 (Nandalal Chowdhury - versus -

Monika Banerjee), 3) 1996 (5) SCC 353 (Prativa Devi (Smt) -

versus - R. V. Krishnan), 4) 86 CWN 938 (Santosh Kumar

Bhattacharjee - versus - Sachindra Nath Saha), 5) (2016) 3

SCC 78 (Damodar Lal - versus - Sohan Devi and others) and

6) 1994 (4) SCC 325 (Nihal Chand Rameshwar Dass and

another - versus - Vinod Rastogi and others).

Admittedly, the Appellants were in possession of the Suit

premises when the Respondent purchased the suit building by a

registered deed dated 18th June, 1979. It is also an admitted

fact that subsequent to such purchase, an agreement of

tenancy was made on 18th August, 1982 by the parties in the

Suit. The said agreement has been produced and marked

Exhibit - A. from the said document it is found that the father

of the Appellants Late Dhirandra Nath Mondal had been running

a Printing press under the name and style of "M/s Naba

Gouranga Press" and had been residing also in a part of the Suit

building. It is further found from the said document that the

present Suit premises were let out to the Appellants for the

purpose of continuing their business of Printing press and also

for the purpose of their residing in a portion thereof. The first Appellate Court''s finding that the Suit premises was let out to

the Appellants for the residential purpose only is, therefore,

absolutely wrong and against the evidence on record.

The Appellants claim that they are still occupying the Suit

premises for the purpose for which it is let out to them in terms

of the agreement of tenancy. However, Appellant No. 2 Tarun

Kanti Mondal while deposing for both the Appellants, admitted

during his cross- examination that both he himself as well as his

elder bother have constructed their separate residential houses

at two different places where they are residing. However, at

the same time he also stated that he occasionally resides in the

Suit premises also under their occupation. He has further stated

that they are running their press in the Suit Premises, through

their employees.

The Respondent allege that the Appellants have sublet the Suit

premises without his consent to one Tamal Kumar Ghosh, Mohit

Karak and Srikanta Roy who are now occupying the Suit

premises. In the electoral roll of the locality (Exhibit- 7) the

Suit premises is noted as the address of the aforesaid three

persons. Respondent in his evidence stated that he found the

Appellant No. 2 collecting money from those three sub-tenants

and that one of them, i. e., Mohit Karak approached to accept him as a direct tenant. On this point, the Appellant No. 2 in his

evidence-in-chief stated that the said Tamal Kumar Ghosh is

their employee as a computer operator and Mohit Karak is also

their employee since the days of their father and Srikanta Roy

is their nephew who occasionally visits the Suit premises. It

should be noted here that the Respondent during his cross-

examination also admitted that Tamal Ghosh is a computer

operator working for the Respondents. The Respondent in his

cross-examination further admitted that the Appellant No. 2

occasionally resides in the Suit premises.

Mohit Karak has been examined by the Appellants. He has stated

that he is an employee of "M/s Naba Gouranga Press", owned

by the Appellants. He has further stated that Tamal Kumar

Ghosh is also an employee of the press as a computer operator

and Srikanta Roy is a nephew of the Respondent and that none

of them is a subtenant under the Appellants. He denied having

ever paid any rent to the Appellant No. 2 or having approached

the Respondent for becoming a direct tenant under the

Respondent. So, his evidence on oath contradicts the claim of

the Respondent on the point of subletting. It is true that no

salary register or salary certificate has been produced by the

Appellants, but oral evidence is also a good evidence in this case especially when there is no corroboration to the claims of

the Respondent on the point.

The Suit was filed in the year 2000. From Exhibit B it is found

that the Appellants have renewed their trade licence for their

press in the Suit premises up to 01st July, 2002. From Exhibit - C

(series) it is further found that the Appellant No. 1 in his

Income Tax Return for the assessment year 2001/02, has shown

an amount of Rs. 3,479.55/- (rupees three thousand four

hundred seventy-nine and fifty-five paisa only) as income from

his business.

From the evidence on record discussed above, it is found that

Appellant No. 2 occasionally visits the Suit premises, to look

after their business. The business was in running condition

when the Suit was filed. The Respondent himself has admitted

that one of the occupants of the Suit premises, Tamal Ghosh, is

an employee of the Appellants as a computer operator. The

other occupant, i. e., Mohit Karak has deposed in the case

(D.W. 2). He has stated that he is an employee in the

Appellant''s printing business since the year 1962. He has

further stated that the other occupant Tamal Ghosh is also an

employee of the Appellants and other occupant Srikanta Roy is

a son of the Appellants'' sister. He categorically stated that none of them is a sub-tenant under the Appellants. His

evidence on the point stands unshaken. The business of the

Appellants in the Suit premises was in running condition at the

time of the filing of the Suit.

So, from the evidence on record it is quite clear that the

Appellants never parted with their exclusive possession or

control over the Suit premises, although they do not reside in

the Suit premises continuously.

It has been clearly laid down in Jagadish Prasad''s case (supra)

"it is only when a person other than the tenant sits in the shop

in exercise of his own right that the presumption of subletting

can arise. As long as control over the premises is kept by the

tenant and the business run in the premises is of the tenant,

subletting flowing from the presence of a person other than

the tenant in the shop cannot be assumed". Similar view has

also been expressed in the Dipak Banerjee''s case (supra). As

discussed above, in the present case the Appellants have

proved that they have never parted with their exclusive

possession and control over the Suit premises. So, the decisions

reported in 1994 Supp (3) SCC 697, (1994) 4 SCC 325, 89

CWN 447 and 86 CWN 938 cited for the Appellants are not

applicable in the present case.

First Appellate Court was of the view that the Suit premises was

let out for the residential purpose only, which is totally against

the evidence on record (Exhibit - A). Both the Courts below

have held that the alleged subletting has been proved because

of the fact that some persons other than the Appellants have

been residing in the Suit premises and while coming to such

conclusion both the Courts below did not take into

consideration, the point whether the Appellants parted with

their complete control over the Suit premises in favour of the

employees of the Appellants. The decisions of both the Courts

below are, therefore, perverse and against the evidence on

record considered together. In fact, the Respondent has failed

to prove the issue of subletting. So, the decision of both the

Courts below in the issue is not sustainable in law.

The Trial Court passed decree of eviction also on the ground of

reasonable requirement of the landlord, i. e., the Respondent.

Admittedly two rooms, a kitchen and a separate ''Thakurghar''

was in the occupation of the Respondent at the time of filing of

the Suit.

The Division Bench by the order dated 20.12.2005, while

admitting the appeal and formulating the substantial question

of law, passed an order staying all further proceedings of the Execution Case in the Trial Court on condition that the

Appellants would vacate one room in the first floor and one

room in the ground floor in favour of the Respondent. The said

order has been complied with as admitted by the learned

Advocates on both sides, during the hearing of the appeal. So,

during the pendency of this appeal the Respondent got

possession over two additional rooms, one in the ground floor

and the other in the first floor. So, the Respondent is now

occupying four rooms, a kitchen and a ''Thakurghar''.

At the time of filing of the Suit the Respondent''s family

consisted of the Respondent, his wife and their one unmarried

daughter. The unmarried daughter of the Respondent is now

married as admitted.

So, the reasonable requirement of the Respondent may be

assessed as follows:- one bedroom for the Respondent and his

wife, one bed room for the married daughter of the

Respondent. The Respondent is a retired Bank Officer. So,

according to his status, he requires a separate Dining room and

a Sitting room. The Respondent has claimed a separate guest

room to accommodate his married brother and sisters who

occasionally visit his house. According to the Appellants no such

relative does pay visit in the Respondent''s house. In our society, visit of brothers and sisters in the house of their elder

brother is not rare. Learned Advocate for the Appellant has

expressed his view that such casual visitors may be

accommodated in the bed room of the married daughter of the

Respondent. The view, according to me, is not logical. So, the

Respondent''s claim of a separate room for his guests is quite

reasonable. The Respondent, therefore, requires at least five

rooms of reasonable size.

The two rooms under the occupation of the Respondent at the

time of filing of the Suit are of reasonable size as found from

the Commissioner''s report, (Exhibit- 9) which can be used as

Bed rooms. The room in the first floor surrendered by the

Appellants during the pendency of this appeal may be also used

as a bed room or as a drawing room. The room in the ground

floor surrendered by the Appellants during the pendency of the

appeal is a room of a very small size. The Appellants in their

written statement have described the said room as "very small

divided half portion of a room which cannot be used for any

purposes". The fact being so, the said room cannot be used

either as a bed room or as a dining or as a drawing room. It can

be, at best, used as a store room or for any other similar

purpose. So, the minimum requirement of the Respondent does

not stand satisfied even after the surrender of a portion of the Suit premises by the Appellants during the pendency of the

Suit. After such surrender, only one room in the ground floor is

under the occupation of the Appellants at present. So, the

question of partial eviction does not arise now, in the case.

The Trial Court passed decree of eviction also on the ground of

reasonable requirement of the Respondent. The facts and

circumstances considered by the Trial Court has not been

substantially changed even after a partial surrender of a

portion of the Suit premises by the Appellants during the

pendency of the Appeal. So, the eviction of the Appellants on

the ground of personal requirement of the Respondent is

justified. It is surprising to note that the First Appellate Court

has not considered the issue at all. So, the judgment of the

First Appellate Court is perverse and not sustainable in law on

such ground also.

To conclude, the findings and decisions of both the Courts below

on the issue of subletting are perverse and against the

principles of law. The First Appellate Court has not considered

at all the issue of personal requirement. The Trial Court has

passed a decree on the ground of personal requirement also,

which is justified. Hence, the decisions of both the Courts

below on the issue of subletting are set aside. The judgment and decree of eviction by the Trial Court on the ground of

personal requirement being justified, is affirmed. The order of

stay of further proceedings of the Execution Case pending in

the Trial Court is vacated and the Trial Court is to proceed with

the Execution Case according to law. The questions of law

formulated are answered accordingly and the present second

appeal is also disposed of accordingly.

No separate order is needed in C. A. N. 7506 of 2016 and it is

disposed of accordingly.

Let the Lower Court records be returned to the Lower Courts

along with copies of this judgment and order.

Urgent certified photocopy of this judgment, if applied for, be

supplied to the learned Counsels for the parties upon

compliance of all formalities.