Tapash Mookherjee, J.
The present Second Appeal is directed against the judgment and decree dated 27th October 2005 in Title Appeal No. 10 of 2005 passed by the learned Judge, VIth Bench, City Civil Court at Calcutta, reversing the judgment and decree dated 20th December 2004 passed by the learned Judge, 2nd Bench, Court of Small Causes, Calcutta in Ejectment Suit No. 1297 of 2000.
2. Plaintiff in the suit is the appellant herein and the defendant in the suit is the respondent herein.
3. Appellant/Plaintiff's case in the suit was that his father late Jyotish Chandra Ghosh was the original owner of the suit premises detailed in the schedule to the plaint and he created a Trust in respect of the suit premises along with some other properties belonging to him and after the death of his parent and sister, he became the absolute owner of the suit premises as per the terms and conditions of the said Deed of Trust dated 3rd July, 1971. It was the case of the appellant/plaintiff that the father of the respondent/defendant, late Dhirendra Nath Bose was originally inducted as a tenant in the suit premises at a monthly rental of Rs.100/- payable according to English Calendar month and the tenancy continued till his death and after his death, the present respondent/defendant became the tenant in the suit premises. Such tenancy continued for sometime and subsequently the respondent/defendant left the suit premises and shifted with his family members at a different house, transferring/assigning/subletting the suit premises to one Kanai Bose and Balai Bose without the consent of the appellant/plaintiff and hence appellant/plaintiff served a notice of ejectment upon the respondent/defendant under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (Old) and thereby terminated the tenancy. The respondent/defendant refused to vacate the suit premises in terms of the ejectment notice and hence the appellant/plaintiff filed the suit praying for the eviction of the respondent/defendant from the suit premises and other related reliefs as well.
4. The respondent/defendant contested the suit by filing a written statement in which he denied all the material facts alleged in the plaint. Besides, it was his specific case that he along with his family members had been residing all along in the suit premises and he never shifted permanently to any other house and hence there was no question of subletting or transferring the exclusive possession of the suit premises to anybody outside his family.
5. On the basis of the pleadings of the parties, the Trial Court framed nine issues for consideration. Both the parties adduced their respective evidence and after considering the evidence, oral as well as documentary, adduced by the parties, the Trial Court decided all the issues in favour of the appellant/plaintiff and in consequence passed a decree of ejectment against the respondent/defendant.
6. Being aggrieved by such decision and decree passed by the Trial Court, the respondent/defendant preferred an appeal being T.A. No. 10 of 2005 challenging the judgment and decree of the Trial Court. In the said appeal, the First Appellate Court observed that the brothers of the respondent/defendant, namely Subir and Prabir were residing in the suit premises with others all along since the days of their father and after the death of their father, they inherited the tenancy right and as such there was no subletting of the suit premises by the respondent/defendant as alleged. With such observation, the First Appellate court set aside the judgment and decree passed by the Trial Court and allowed the appeal accordingly.
7. Being dissatisfied with such judgment and decree, passed by the First Appellate Court, the appellant/plaintiff filed the present Second Appeal.
8. The following substantial questions of law have been framed in this appeal; by the Division Bench.
i. Whether the learned Judge of the First Appellate court committed substantial error in law in reversing the judgment and decree passed by the learned Trial Court?
ii. Whether the learned Judge of the First Appellant Court committed substantial error in law in not holding that the defendant/respondent of the tenanted suit premises sublet the said tenanted portion in favour of his brothers without the prior permission and/or sanction of the plaintiff/appellant?
9. Learned Advocate, Mr. Bhattacharyya appearing for the appellant/plaintiff has submitted that the appellant/plaintiff filed the suit for eviction of the respondent/defendant from the suit premises on the ground of subletting and such subletting having been proved, the Trial Court has passed decree in the suit in favour of the appellant/plaintiff.
10. It was further submitted by Mr. Bhattacharya that it was the specific case of the appellant/plaintiff that the respondent/defendant was a tenant in the suit premises under him and it was the specific case of the respondent/defendant also in his written statement that he was the tenant in the suit premises under the plaintiff and it was never a case of any of the parties in their respective pleadings that the defendant/respondent or any other legal heir of the original tenant, late Dhirendranath Bose inherited the tenancy right after the death of the said Dhirendranath Bose. But the First Appellate Court made out a third case to the effect that the respondent/defendant in particular and his family members inherited the tenancy from their predecessor-in-interest and on the basis of such view, the First Appellate Court set aside the judgment of the Trial Court and, consequently, dismissed the suit.
11. Mr. Bhattacharyya has further added that an Appellate Court before setting aside any judgment or decree of the Trial Court must consider whether the grounds on the basis of which the Trial Court arrived at certain decisions are correct in law or not. But in the present case, the First Appellate Court instead of looking into the correctness and legality of the judgment of the Trial Court, set aside the judgment of the Trial Court on the basis of a third case made out by the First Appellate Court, which is not permissible in law.
12. On the other hand, Mr. Banerjee, learned Advocate appearing for the respondent/defendant has submitted that it is the case of both the parties, that the father of the respondent/defendant, late Dhirendranath Bose, was the original tenant in the suit premises under the appellant/plaintiff and after the death of Dhirendranath Bose, the respondent/defendant as well as his brothers, mother and un-married sister who were living together with late Dhirendranath Bose all along have together inherited the tenancy right and as such the brothers of the respondent/defendant who are now residing in the suit premises are also the tenants and not outsiders or strangers.
13. Mr. Banerjee has further submitted that the respondent/defendant has not permanently shifted to any other place and he is still residing in the suit premises and as such the decision of the Trial Court on the point is wrong.
14. Mr. Banerjee has also added that in para 5 of the plaint, it has been stated that one Balai and Kanai are now occupying the suit premises but it has not been proved that the said Balai and Kanai are occupying the suit premises. However, it is the contention of Mr. Banerjee that the brothers of the respondent/defendant, namely, Subir Bose and Prabir Bose are now occupying the suit premises.
15. In reply to the aforesaid contentions of Mr. Banerjee, Mr. Bhattacharyya has argued that nowhere in the written statement it has been stated that Subir and Prabir, the brothers of the respondent/defendant are the necessary party in the suit because of their tenancy right in the suit premises and hence, the contention of Mr. Banerjee is of no basis. Mr. Bhattacharyya has cited the following decisions in his support: -
1) Santosh Hazari v. Purushottm Tiwari (Deceased) by LRS ( 2001) 3 S.C.C.179).
2) M/s. Bharat Sales Ltd. v. Life Insurance Corporation of India (AIR 1998 S.C.C. 1240).
3) Smt. Rajbir Kaur and another v. M/s. S.Chokosiri and Co. (AIR 1988 S.C. 1845).
4) Pushpa Rani and others v. Bhagwanti Devi (AIR 1994 S.C. 774).
Mr. Banerjee has also referred to the following decisions to establish his points :-
1) Kailasbhai Shukaram Tiwari v. Jostna Laxmidas Pujara and another ( 2006) 1 S.C.C. 524).
2) Shama Prashant Raje v. Ganapatrao and others ,( (2007) 7 S.C.C. 522).
3) Vaishakhi Ram and others v. Sanjeev Kumar Bhatiani, (2008) 14 S.C.C. 356).
4) Dipak Banerjee v. Smt. Lilabati Chakraborty (AIR 1987 S.C. 2055).
16. The appellant/plaintiff in para 2 of his plaint says that the respondent/defendant is a tenant under him in the suit premises detailed in the schedule to the plaint at a monthly rental of Rs. 100/- payable according to the English calendar month. In reply to para 2 of the plaint, the respondent/defendant in para 7 of his written statement does not specifically dispute the fact. The respondent/defendant in para 9 of his written statement alleges that he along with his family members have been residing in the suit premises. It should be mentioned here that nowhere of his written statement the respondent/defendant claims that he or any of his family members living with him in the suit premises has ever inherited tenancy right. In para 9 of his affidavit as examination-in-chief, the respondent/defendant further says that he is the lawful tenant in the suit premises and he is residing in the suit premises along with his family members. So, the gist of the claim of the respondent/defendant is that he is the tenant in the suit premises, however, he is residing in the suit premises along with his family members.
17. Admittedly, the rent receipts issued in connection with the tenancy in question were all issued in the name of the respondent/defendant no. 1 (Exhibit-'A' series). Similarly, the rents deposited in the office of the Rent Controller are also in the name of the respondent/defendant only (Exhibit-'B' series). After appearance in the trial court, the respondent/defendant submitted an application under Section 17(2) of the West Bengal Premises Tenancy Act, l956. In that application also the respondent/defendant claimed himself as the only tenant in the suit premises as found from the order dated 26th June, 2001 passed by the trial court in the matter. It should be noted here that the respondent/defendant in his written statement did not allege that his brothers, who are residing in the suit premises till date, are also the tenants in the suit premises in their individual capacity and, as such, they are necessary parties in the suit or that ejectment notice not being served upon them, the suit is not maintainable in law.
18. Having regard to the facts and circumstances of the case discussed above, I have no hesitation to hold that the respondent/defendant is the sole tenant in the suit premises in his own capacity and there was never any question of inheritance of the tenancy right by the respondent/defendant in particular or by any of the family members of late Dhirendra Nath Bose. It should also be noted here that there is no evidence on record to show who were residing in the suit premises with late Dhirendra Nath Bose when he was alive. So, the question of surrender of tenancy by any legal heir of late Dhirendra Nath Bose does arise at all in the present case.
19. On perusal of the judgment of the First Appellate Court, it is found that the First Appellate Court was of the view that the brothers of the respondent/defendant, who are now occupying the suit premises, inherited tenancy right from their deceased father, which was nobody case in the suit. It should be also noted that the First Appellate Court never looked into the legality or correctness of the decisions taken by the trial court or the reasons recorded by the trial court in support of its decisions. The First Appellate Court therefore, committed a gross error in law for such reasons. The decision reported in Santosh Hazari's case (supra) is relied on the point.
20. Admittedly, the respondent/defendant has constructed his own house at a different place and he has enrolled his name in the Electoral Roll of that Constituency (Exhibit-'7') and in the said Electoral Roll, the respondent/defendant has shown his permanent residential address as 163/14, Canal Street which is now renamed and renumbered as 195, Dakshindari Road which is not the suit premises. Exhibit-10 collectively further disclose that the electric connections in the said premises stand in the name of the respondent/defendant and his mother, Puspa Rani Bose.
21. The respondent/defendant during his evidence has taken up a plea that in spite of having his own house at Canal Street he is still residing in the suit premises but occasionally visits his own house in the week ends. But nobody else have come forward to support such claim. Even the brothers of the respondent/defendant, who are now admittedly occupying the suit premises, have not also come forward to support that they lived in the joint mess with his elder brother, Sukumar Bose. On the other hand, a neutral witness, namely, Kartick Shaw (PW2), who has a business very close to the suit premises, has stated that the respondent/defendant used to reside in the suit premises at one point of time but, subsequently, shifted his residence at a different place. It needs to be noted here that according to the appellant/plaintiff (PW-1) as well as PW2, one Kanai and Balai are now residing in the suit premises. According to the appellant/plaintiff, those two persons are the brothers of the respondent/defendant. It is true that the correct identity of those two persons has not been established by evidence. However, the learned advocate for the respondent/defendant during his argument has admitted that the persons residing in the suit premises are his brothers. So, the exact name of the brothers of the respondent/defendant, who are occupying the suit premises, is not of much importance.
22. The respondent/defendant is the only tenant and his brothers have not inherited the tenancy right as mentioned earlier. From the evidence produced by the appellant/plaintiff, it has been proved that the defendant/respondent shifted his residence long ago at a different place. The trial court passed decree in the suit mainly on such ground. The First Appellate Court has also held that the defendant/respondent along with some members of his family shifted their residence at a different premises. However, the respondent/defendant has claimed that his brothers were all along residing with him in the suit premises as his family members. But, there is no evidence on record to support such claim.
23. In Kailashbhai Shukaram Tiwari's case (supra), it has been held that parents, spouses, brothers, sisters, sons and daughters may be considered in a particular case to be the family members of the tenant. But, in the present case, no such evidence is there to show that the brothers of the respondent/defendant occupying the suit premises, ever lived in a joint mess with the family of the respondent/defendant. Moreover, the facts and circumstances of that case is quite different from the present case.
24. In Shama Prasant Raje's case (supra), it has been held that to prove a subletting two ingredients, namely, parting with possession and some consideration therefor have to be established.
25. In Vaishakhiram's case (supra), it has been held that the exclusive possession of the suit premises by the sub-tenant, if proved, then onus stands shifted to the tenant to prove that it was not a case of subletting.
26. In Dipak Banerjee's case (supra), there was no evidence that the alleged sub-tenant was not in exclusive possession of the suit premises. But, in the present case, it is proved that the brothers of the respondent/defendant are in exclusive possession of the suit premises. So, none of the aforesaid decisions cited by Mr. Banerjee is of any help to the case of the respondent/defendant.
27. It has been held in M/s. Bharat Sales Ltd. case (supra), that a sub-tenant is generally inducted by a tenant on the basis of some secret arrangement between them arrived at, behind the back of the landlord. So, it is not mandatory for the landlord to prove payment of monetary consideration or other consideration for subletting and hence, the Court can draw its own inference in the matter from the facts and circumstances of the case proved at the trial court, including delivery of exclusive possession to the sub-tenant.
28. In Smt. Rajbir Kaur's case (supra), it has been held that if the landlord proves the exclusive possession of the Sub-tenant, then monetary consideration may be inferred.
29. As discussed earlier, the respondent/defendant was the tenant in the suit premises and it has been proved by convincing evidence adduced by the appellant/plaintiff that the respondent/defendant shifted his residence at a different premises, owned by him. But, admittedly the brothers of the respondent/defendant are now occupying the suit premises who are not tenants under the appellant/plaintiff. It has not been also proved that the brothers of the respondent/defendant ever lived in a joint mess with the respo
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ndent/defendant in the suit premises. It is, therefore, established that the respondent/defendant has parted with his possession in favour of his brothers who are now in exclusive possession of the suit premises. Since it is a matter between the brothers, there may or may not be any monetary consideration. But, there may be some other consideration, which is definitely very difficult for the landlord to prove by positive evidence. But, fact remains that the exclusive possession of the suit premises has been transferred by the respondent/defendant to his brothers without the consent of the appellant/plaintiff. So, the case comes under the provision in Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956. 30. To conclude, it has been proved in the case that the respondent/defendant being the sole tenant in the suit premises transferred/assigned his possession in favour of his brothers who are now in exclusive possession of the suit premises. So, the appellant/plaintiff's case under Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956, is established. The Trial Court has, therefore, rightly passed decree in the suit and the First Appellant Court has erroneously set aside the decree of the Trial Court on the basis of a third case, which is not pleaded by any of the parties. 31. The substantial questions of law formulated in the appeal are accordingly answered. 32. In view of the decisions above, the judgment and decree of the First Appellate Court is hereby set aside and the decree passed in the suit by the Trial Court is restored and affirmed. 33. The respondent/defendant is directed to vacate the suit premises within three months. 34. The Lower Court Records be sent to the Courts below along with a copy of this judgment and order, at once. 35. Urgent photostat certified copy of this judgment, if applied for, be given to the parties on priority basis.