L. Neogi through LRS Power of Attorney
Holder Dr. S. Neogi Vs. M/S W.B. Engineering Company  INSC 321 (7
This appeal is by the landlady against the
judgment and order of the High Court of Calcutta in SA No. 709 of 1995. By the
impugned judgment, the High Court dismissed the second appeal filed by the
present appellant against the judgment of the Lower Appellate Court namely
Assistant District Judge at Sealdah in Title Appeal No. 58/91.
The Lower Appellate Court set aside the
judgment of the Trial Court namely Third Munsiff Sealdah in Title Suit No.
523/81. The Appellant filed a suit for ejectment and mesne profit against the
respondent on the grounds of personal use and occupation, subletting and other
In the present appeal only above two grounds
have been urged, namely, subletting and bonafide requirement.
The Trial Court decreed the suit on the
ground that the suit premises were required for personal use and occupation by
the landlady. The ground of subletting was rejected .
The Lower Appellate Court reversed the
findings of the trial court on the ground that the landlady failed to prove
that the suit premises were required for personal use and occupation. It may be
stated that a cross appeal was also filed by the landlady in respect of the
findings of the Trial Court regarding subletting, which was dismissed.
The High Court took note of the fact that the
Lower Appellate Court has recorded that the family of the landlady consists of
four members and one child and total rooms in the occupation of the landlady
were nine. The High Court also took note of the fact that the Lower Appellate
Court extensively dealt with the question of user of the above rooms and the
fact that an alternative accommodation was available to the landlady adjacent
to the suit property.
Regarding the question of subletting the High
Court refused to interfere with the findings of the courts below as there was
no substance to hold in favour of the appellant landlady on the ground of
subletting . The High Court was further of the opinion that no substantial
question of law was involved and therefore, dismissed the appeal.
Heard Mr. Rakesh Dwivedi , Sr. Advocate for
the appellant and Mr. Hardev Singh, Sr. Advocate for the respondent.
Regarding requirement of personal use and
occupation, we are of the opinion that this is a question of fact and we find
from the judgment of the Lower Appellate Court that the Court not only
considered the entire evidence on record but also report of the Commissioner
appointed by the Court. The Lower Appellate Court also took note of the fact
that though according to the landlady one room in the building in question was
in possession of another tenant but it was found that it was in the possession
of her daughter.
The Lower Appellate Court has extensively
discussed the evidence on record and has come to the finding that the property
in question is not required for the use and occupation of the landlady in as
much as she has got sufficient accommodation. We hold that the High Court
rightly refused to interfere with the findings on this point of the Lower
Appellate Court.We may state here that learned Counsel for the appellant has
drawn our attention to the judgment of the High Court wherein it has been recorded
that nine rooms were in occupation of the landlady which was not a fact and
therefore, High Court has misdirected itself .
This contention has no force as High Court
dismissed the appeal on the ground that there was no substantial question of
law involved. Regarding subletting drawing our attention on Section 14 of the
West Bengal Premises Tenancy Act, 1956, it has been urged that as there was no
previous consent in writing of the landlady there was subletting which was not
taken note of by the Courts below.
We extract the same Section 14 of the Act
which runs as follows:
S.14. Restriction of subletting - (1) After
the commencement of this Act, no tenant shall, without the previous consent in
writing of the landlord,- (a) sublet the whole or any part of the premises held
by him as a tenant; or (b) transfer or assign his rights in the tenancy or in
any part thereof (c) (2) No landlord shall claim, demand or receive any premium
or other consideration whatsoever for giving his consent to the subletting of the
whole or any part of the premises held by a tenant.
(Emphasis supplied ) The above Section came
up for consideration by this Court in PULIN BESHARI LAL VS. MAHADSEB DUTTA AND
OTHERS 1993 (1) SCC 629 and it was held that from the above Section it is clear
that when there was no previous consent in writing of the landlord for creation
of sub- tenancy, itself a ground for eviction in terms of Section 14(1) (a) of
the Act. It was further held that mere knowledge and/or acceptance of rent
cannot defeat the landlords right to get a decree for ejectment on the ground
of subletting. We do not find any reason to take a different view in view of
the clear legislative mandate laid down in Section 14 of the Act.
Now the question is whether there was
subletting in the case in hand? There was a written agreement of lease for the
tenancy with effect from 1.12.1965 between the landlady and a partnership firm,
namely, M/s. W.B. Engineering Company Ltd. and the tenancy was for residential
purposes of the above partnership firm. The agreement was marked as Exhibit
-11. The allegations of the landlady was that there was sub-letting of the suit
premises in favour of Mr. Tahilian, who was also son-in-law of one of the
partners of the firm.
The trial court noted that the said Mr. Tahilian
joined the firm as an employee and since 1965 was residing in the suit
premises. The trial court also noted that according to Mr. Tahilian ( D.W.1)
who was examined as a witness, the partnership firm got dissolved and he became
a proprietor of the firm and thereafter running the said firm. On these facts
the trial court held that there was no subletting.
The first appellate court also took note of
the fact that since inception of the tenancy D.W.1 has been residing with his
family in the suit premises, as at that time he was an employee of the
partnership firm. This fact was also admitted by the husband of the landlady,
Therefore, the first appellate court
confirmed the findings of the trial court that the landlady failed to prove
To establish sub-letting, the landlady has to
prove abandonment or transfer of interest in favour of another person. In the
case in hand, the tenancy was between the landlady and M/s. W.B. Engineering
Company, which was originally a partnership firm and from records of this case,
it transpires that Mr. Tahilian (D.W.1) became the sole owner as stated above.
The original tenancy was for the purpose of residential accommodation of the
firm and right from the inception of tenancy Mr. Tahilian was in occupation of
the suit premises. Therefore, there was no abondonment or transfer of the
tenancy by the M/s. W.B. Engineering Company, the tenant.
Learned counsel for the appellant has drawn
our attention to a decision of this court in S.A. Vengadamma in support of his
contention that Mr.Tahilian, being son-in- law of one of the original partners,
cannot be treated as a member of the family of the said firm. In the above
decision, this court while considering Karnataka Rent Control Act, 1961,
particularly, Section 3(ff) of the Act, wherein the word `family has been
defined, inter-alia, held that a brother not living with the tenant
permissively cannot be treated as a member of the family. In the present case,
Mr. Tahillian is not claiming tenancy in his capacity as a son-in-law but as an
owner of the firm, namely, M/s.W.B. Engineering Company. Therefore, the ratio
laid down in that above decision is not applicable to the present case. For the
reasons stated above, the appeal is dismissed. No costs.