TORENCE OSBORNO ELLIE Vs. NAMITA GANGULY

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment dated 22.02.1995 passed by the Assistant District Judge, Sealdah in Title Appeal No. 32 of 1992 reversing the judgment dated 29.01.1992 passed by the Munsif Second Court, Sealdah in Title Suit No. 298 of 1979.

(2.) THE case of the defendant/appellant is that the plaintiff/respondent filed the suit praying for eviction of the defendant from the suit premises on various grounds. According to the plaintiff/respondent, the defendant/appellant was a tenant in respect to the suit premises under him at a monthly rent of Rs. 190/- payable according to English Calendar month. As the tenant defaulted in paying the rent and as he was guilty for causing annoyance and nuisance, damages to the suit property and as he was guilty of sub-letting, so the plaintiff/respondent issued a notice to the defendant/appellant asking him to vacate the suit premises. But as the tenant did not vacate, so the plaintiff/landlord filed a suit for the eviction of the defendant/tenant from the suit premises. THE defendant contested the suit by filing written statement wherein he denied the allegations of the landlord on material points. He clearly denied that he defaulted in making payment of rent or was guilty for causing annoyance or nuisance, as alleged and he also denied that he was guilty of sub-letting of the suit premises as contended by the landlord. 2. Upon the said pleadings of both the parties, the learned Munsif framed several issues and thereafter by his impugned judgment he was pleased to dismiss the suit, as according to him the landlord failed to prove his case. Being aggrieved and dissatisfied with the said decision of the trial Court, the plaintiff/landlord preferred an appeal before the Assistant District Judge, Sealdah. THE Lower Appellate Court by his impugned judgment was of the opinion that the plaintiff/landlord was successful in proving that the defendant/tenant was guilty of sub-letting the suit premises without his consent and as such he was pleased to decree the suit and directed eviction of the defendant/tenant from the suit premises. Being aggrieved and dissatisfied with the said decision of the Lower Appellate Court, this second appeal has been preferred on various grounds. It appears from the record that on 10.04.1995, the appeal was admitted by the learned Division Bench and at that time the substantial question of law, that is required to be considered in this appeal, has been indicated in the said order to the following effect. "This appeal will be heard orthe property of reversal by the appeal Court of the finding about sub-tenancy made by the Trial Court overlooking the elements needed to be proved by the plaintiff in establishing such a-ground and placement or onus as, in our view, such points constitute substantial questions of law."THE appeal in question was heard on the basis of the above substantial question of law, as framed by the learned Division Bench. 4. It has already been pointed out that the plaintiff/landlord prayed for eviction of the tenant from the suit premises on various grounds. But before the Court below as well as in this Second Appeal, the ground of sub-letting has only been pressed. In fact learned Lower Appellate Court also passed the decree of eviction on the ground of sub-letting. It may be mentioned here, that the trial Court disbelieved the claim of the plaintiff/landlord that the defendant/tenant was guilty of sub-letting the suit premises and as such, he was pleased to dismiss the suit. But the learned Lower Appellate Court reversed the said decision and decreed the suit by accepting the contention of the plaintiff/landlord that the defendant/tenant was guilty of sub-letting. Main question that is to be considered, so far as this appeal is concerned, is, whetherthis reversal order, as passed by the Lower Appellate Court, was justified or not and whether the appellate Court in coming to such a decision overlooked the elements which are needed to establish the fact of sub-tenancy. In order to establish a claim that the tenant is guilty of sub-letting the suit premises, several factors are required to be proved. In this respect, the decision as reported in AIR 1987 Supreme Court page 2055 Dipak Banerjee v. Lilabati Chakraborty is most important. In this decision, Hon'ble Apex Court, clearly laid down the proposition that when an allegation of sub-tenancy is made, two ingredients have to be established, firstly the sub-tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, that right must be in lieu of payment of some compensation or rent. THE ratio as decided in this case by the Hon'ble Apex Court is now the settled law. But it appears that the learned First Appellate Court heavily relied upon the decision reported in 82 CWN page 684, Pravabati v. R.R. Toneja which enunciates the principle that where a person is found to be in possession of any premises apparently exclusive under a tenant, it is for the tenant to establish that inspite of the possession of such person under him there is no sub-letting as contemplated in law. Mainly, on the basis of this decision, the First Appellate Court placed the onus on the tenant to prove that there was no sub-tenancy. But in view of the decision as reported in AIR 1987 Supreme Court page 2055 (supra) it must be said that the learned First Appellate Court followed a wrong approach in deciding the question of sub-letting. This decision was considered in the case reported in Calcutta Law Times 1989 (2) High Court page 25, Mrs. R.S.Agha v. Sk. Ainul Hoq where the learned Single Judge was of the clear opinion that in view of the ratio as decided in AIR 1987 SC page 2055 (supra), the principle as laid down in the decision reported in 82 CWN page 684 (supra) can no longer be held to be good law. 5. Be that as it may, we are to decide the question of sub-tenancy on the basis of the principles as decided in AIR 1987 SC page 2055 (supra) viz. whether there was parting with the exclusive possession by the tenant in respect of a stranger and whether there was any consideration paid for the creation of the alleged sub-tenancy. Learned Advocate for the respondent argued that it is not possible to adduce direct evidence regarding proof of payment of consideration money. Same can only be inferred. In this respect, he cited the decision reported in AIR 1988 (SC) page 1845, Smt. Rajbir Kaur and Another v. M/s. S. Chokosiri and Co. I have considered those decisions carefully. It appears that in both the decisions it has been laid down that such inference can legitimately be inferred only when the landlord had proved the fact of parting with the exclusive possession of the tenancy. So in order to take the advantage of the ratio as decided in those decisions, it is obligatory on the part of the landlord to prove initially that the tenant in fact parted with the possession of his tenancy exclusively and he has totally lost control over such tenancy. Let us now see how far the landlord has been able to prove this fact. In this respect, learned Advocate for the respondent argued that as this finding of sub-letting is a question of fact, so it is not permissible that the said finding can be inferred with in this Second Appeal. In support of his contention, he relied on the decisions reported in 1999 (4) Supreme Court Cases page 350, Arumugham (dead) By L.Rs. and Others, v, Sundarambal and Another and AIR 1963 Supreme Court page 302, V. Ramachandra Ayyar and Another v. Ramalingam Chettiar and Another, As against this, the learned Advocate for the appellant cited decision reported in 2003 (7) Supreme page 105, Krishna Mohan Kul @ Nani Charan Kul and Another v. Pratima Malty and Others, where it has been laid down that where the Court below mis-directed itself in placing the onus, High Court can interfere in Second Appeal. Almost same principle has been laid down in AIR 1960 Supreme Court page 115, Radhan Prasad Singh v. Gajadhar Singh and Others and 2001 (3) Supreme Court Cases page 179, Santosh Hazari v. Purushottam Tiwari (deceased) L.Rs. Besides that, he has also cited decision reported in AIR 1987 Supreme Court page 1484, Budhwanti and Another v. Gulab Chand Prasad wherein it has been laid down that generally High Court will not interfere into the finding if fact even of it is erroneous, but if it is found that the finding was vitiated by application of wrong tests or on the basis of conjecture and assumption then interference in second appeal is permissible. THE ratio as decided in this decision still holds good and it is now well settled law that the High Court can interfere in the second appeal in respect of findings of fact if it appears to the Court that the said finding of fact was arrived at by following wrong approach or on the basis of application of wrong tests. Keeping these legal principles in mind, let us now see whether there is any scope for this Court to interfere into the finding in respect of the alleged sub-tenancy as decided by the First Appeal Court. It may be pointed out here that the trial Court disbelieved the claim of the plaintiff/landlord in this respect. But the First Appellate Court reversed that decision and was of the opinion that the plaintiff/landlord was able to prove the sub-tenancy. Said decision has been under challenge in this appeal. It appears that the learned First Appellate Court was of the opinion that as the defendant was not residing in the premises and as somebody else was staying there, so the allegation of sub-tenancy was proved. But in order to decide as to whether there was any sub-tenancy or not, certain facts are to be looked into. In this respect, the ratio decided by the Hon'ble Supreme Court in 1987 (4) Supreme Court page 161, Dipak Banerjee v. Lilabati Chakraborty is very much relevant. THEre it has been clearly laid down that the landlord is to prove that the tenant parted with exclusive possession of the suit premises in favour of the stranger without his consent and secondly, that creation of sub-tenancy was in lieu of payment. Some principle was decided in 1988 (2) S.C.J. page 550, Jagan Nath (deceased) through L.Rs. v. Chander Bhan and Others, 1994 (5) Supreme Court Cases page 9, United Bank of India v. Cooks and kelvey Properties (P) Ltd. and 1988(1) S.C.J. page 358, M/s. Shalimar Tar Products Ltd. v. H. C. Sharma and Others. As against this, the learned Advocate for the respondent relied on the decision reported in AIR 1988 (SC) page 2126, Southern Command M.E.S.E. Co-op. Credit Society v. K, N. Nambiar.But the fact of that case was completely different and as such, in my opinion, it is not applicable so far as the present appeal is concerned. THE decisions as cited in AIR 1990 Supreme Court page 1208, M/s. Delhi Stationers and Printers v. Rajendra Kumar and 1994 (5) Supreme Court Cases page 9 (supra) are most relevant. In those decisions it as been clearly laid down that mere occupation is not sufficient to infer either sub-tenancy or parting with possession. It must be in lieu of payment of some compensation. Moreover, it must be proved that the sub-tenant was in exclusive possession of the tenancy. Learned Advocate for the respondent argued that it is not possible for the landlord to adduce direct evidence regarding payment of consideration. Citing decisions, as discussed earlier, he argued that it can only be inferred. I have considered the decisions cited by the learned Advocate for the respondent in this respect. It appears that it was clearly laid down that if parting with the exclusive possession is proved then and then only this question of inference can come in. So, main thing that is to be looked into, is, whether the defendant/tenant parted with the exclusive possession of the tenancy or not. It appears from the evidence of the tenant that he has stated that he had to stay at Hyderabad in connection with his job for a period of 5/6 years and he would return back to Calcutta after the job is finished. As such, he has kept the possession of the tenancy in his custody. According to him, he has authorized his sister-in-law to look after the tenancy on his behalf. He has also stated in his evidence that he is staying in the tenancy whenever he comes to Calcutta. So from his evidence it cannot be said that he parted with exclusive possession of the tenancy in favour of the alleged sub-tenant. THE plaintiff/landlord in his evidence has claimed that he saw the payment of consideration. But nothing could be produced by the landlord in support of this contention. THEre is practically no evidence at all. If we look into the judgment passed by the learned trial Court, then it will appear that he mentioned in his judgment about the inconsistent answers given by the landlord at the time of his deposition in this respect. THE learned trial Court actually had the opportunity of seeing the demeanour of the witness when he was in the dock. I find nothing to disagree with this observation of the learned trial Court. So the fact remains that the plaintiff/landlord was not in a position to prove his claim that consideration money was paid for creating, the alleged sub-tenancy. As such, this claim plaintiff/landlord must be rejected. If we look into the evidence of the defendant/tenant then it cannot be said that he parted with the possession exclusively or he has tost control over it. Learned First Appellate Court did not discuss about all those points which were taken into consideration by the learned trial Court. Instead the learned First Appellate Court relied much on the electricity bill and he was of the opinion that as some amount of electricity charge was paid, so it must be presumed that some persons were using the tenancy in absence of the tenant and as such, it must be presumed that the tenant actually lost exclusive control over the suit premises. But this view of the learned First Appellate Court has got no rational basis. It is the case of the defendant/tenant that he is sometimes staying in the suit premises during his visit to Calcutta. Moreover, he has also stated that he has authorized his sister-in-law to look after the said premises on his behalf. This sister-in-law has come forward and deposed in favour of the tenant. As such, it is not unusual at all that there would be some amount of electricity charge in respect of the suit tenancy. In fact it is most natural. To my mind, the learned First Appellate Court was totally wrong in relying heavily on this irrelevant part of the evidence. THE appreciation of evidence in this respect by the learned First Appellate Court, appears to me to be wholly devoid of any logic. 6, Learned Advocate for the appellant argued that in this case burden of proof lies on the plaintiff/landlord to prove the alleged sub-tenancy and as he has failed in that respect, so the First Appellate Court was not justified in decreeing the suit. As against this, learned Advocate for the plaintiff/respondent agrued that when both the sides adduced evidence, then question of burden of proof pales into insignificance. For this, he cited decisions reported in 1997 (11) Supreme Court Cases page 714, Rebti Devi (Smt.) v. Ram Dutt and Another and AIR 1991 Supreme Court page 1040, Raghunathi and Another v. Raju Ramappa Shetty. Against this learned Advocate for the appellant cited decision reported in AIR 1960 Supreme Court page 100, Narayan Bhagwantrao Gosavi Balajiwaie v. Gopai Vinayak Gosavi and Others. I have considered all those decisions. THEre cannot be any dispute that when both the sides adduced evidence then burden of proof shifts from one end to another. Main thing that is to be looked into is, upon whom the initial burden lies to prove certain fact. If the party concerned discharges the initial burden, then responsibility lies on the other side to disprove it. Here in this case, the plaintiff/landlord is certainly liable initially to prove that the defendant/tenant was guilty of sub-letting the suit premises in favour of a stranger without his consent. If that is proved, then it will be the liability of the defendant/tenant to disprove it. But I have already pointed out that the plaintiff/ landlord has failed to prove this allegation of sub-letting of the suit premises. So, question of disproving that fact by the tenant, does not arise as all. 7, Learned Advocate for the plaintiff/respondent argued that his client clearly stated by way of amendment of the plaint that the defendant left the suit premises after shifting all his belongings therefrom and thereafter had sublet the suit premises to one Shib Shankar Ghosh and one non-Bengali woman. According to the learned Advocate for the plaintiff/landlord this specific allegation has not been denied by the defendant/tenant in the additional written statement. So, according to him, as per provisions of Order- VIII Rules 3, 4, and 5 the allegation which has not been specifically denied, that part of the allegation must be treated to be an admission on the part of the defendant and it is not obligatory on the part of the plaintiff to adduce any evidence in support of the allegation made in the plaint. If we look into the provisions of Order VIII Rule 5 of the C.P.C. then it will appear that it has been stated therein "every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted..............". So it appears that this provision has made it obligatory on the part of the defendant to deny any allegation made in the plaint either specifically or by necessary implication. Let us now see whether the allegation made in the plaint which has been incorporated by way of amendment, has been denied by the defendant/tenant either specifically or by implication. In this respect, para 3 of the addition W.S. filed by the defendant/tenant on 23.07.1985 is relevant. In the said paragraph the defendant/tenant clearly stated that he never parted with possession of his tenancy to any third party stranger. He has also specifically denied the story of induction of a non-Bengali woman in the suit premises. Of course there is no specific denial about the allegation of induction of Shib Shankar Ghosh as a sub-tenant in the suit premises. But if we look into the entire additional W.S., as mentioned above, then it will clearly appear that by way of necessary implication the defendant/tenant clearly denied the allegation of sub-tenancy made by the landlord. From this additional W.S., we can safely presume that the defendant/tenant in fact denied the induction of Shib Shankar Ghosh in the suit premises, if not specifically but by necessary implication. In this respect, learned Advocate for the plaintiff/respondent cited decisions reported in AIR 1930 Privy Councli page 57, Siddik Mohomed Shah v. Mt. Saran and Others, AIR 1977 (SC) page 2262, Smt. Chancier Kali Bail and Others v. Jagdish Singh Thakur and Another, 2003 (8) Supreme Court Cases page 673, Sushil Kumar v. Rakesh Kumar, I have perused those decisions. It appears that in all those decisions it has been laid down that in case there is no specific denial of any allegation made in the plaint then the said allegation shpuld be treated as admitted and the plaintiff does not require to adduce any evidence for proving the said allegation. Learned Advocate for the respondent argued that in the plaint it was alleged that the tenant shifted all his articles and in the additional W.S. there is no specific denial on this point. But I have already pointed out that in the additional W.S. the tenant clearly and emphatically denied the allegation of sub-letting and he has also asserted that he never parted with possession of his tenancy to any third party. From this denial, it appears to me that it should be treated that the allegation, as made by the plaintiff regarding shifting of all the articles, has been denied, if not specifically but by way of implication. So, the ratio as decided in the decisions as cited by the learned Advocate for the respondent is of no help for the plaintiff/landlord. It is his duty to prove the said allegation of sub-letting of the suit premises by the tenant and I have already pointed out that from the evidence on record it cannot be said that the plaintiff landlord was able to prove this allegation. That apart, if we look into the cross-examination of the defendant/tenant, then it will appear that in fact plaintiff/landlord did not give any suggestion whatsoever to this witness suggesting that he was guilty of sub-letting the suit premises in favour of one Shib Shankar Ghosh. This fact certainly goes against the claim of the plaintiff/ landlord. Again, if we look into the judgment of the learned First Appellate Court then it will appear that he was of the opinion that in the additional W.S. the allegation of sub-letting of the suit premises was not at all denied. But I have already pointed out that (his allegation was clearly denied by the defendant/tenant in the additional W.S. So the observation of the learned First Appellate Court in this respect, appears to me to be palpably wrong. Moreover, in his judgment, the learned First Appellate Court was of the opinion that admittedly some persons are staying in the suit premises in absence of the defendant/tenant. But I have already pointed out that the defendant/tenant is admittedly staying outside Calcutta in connection with his job and he has established by adducing the evidence of D.W. 2 that his sister-in-law is looking after the suit premises on his behalf. From the decisions as discussed above, it appears that it has been clearly laid down that possession of a suit premises by an outsider for certain period in absence of the actual tenant does not necessarily mean that the suit premises has been transferred in favour of a sub-tenant. For this, it is to be proved that the actual tenant has lost all control over the suit premises and the alleged sub-tenant is in exclusive possession of the same. But I have already pointed out that evidence in this respect on behalf of the plaintiff/landlord is very weak and on the basis of the said evidence, it is not possible to come to a definite finding that the defendant/tenant is guilty of sub-letting. THE learned First Appellate Court did not consider all these things as discussed by the learned trial Court in his judgment. To my mind, the decision of the learned First Appellate Court is the result of non-appreciation or incorrect appreciation of the evidence on record and it is also the result of wrong approach on his part to decide the issue in question. Thus, the decision, as arrived at by the First Appellate Court, on the basis of such an approach and on the basis of the non- appreciation of evidence correctly, cannot sustain. To my mind, from the evidence on record it is clear that the learned Trial Court was perfectly justified in holding that the plaintiff/landlord failed to prove that the defendant/tenant was guilty of sub-letting of the suit premises and as such he was justified in dismissing the suit. On the contrary, it may be said that the learned First Appellate Court reversed the decision of the trial Court following a wrong approach and not properly appreciating the evidence on record. Said decision of the learned First Appellate Court, is therefore liable to be set aside. 8. THErefore, frpm my above discussion, I am of opinion that the order of reversal as passed by the learned First Appellate Court holding that the defendant/tenant was guilty of sub-letting of the suit premises was not at all proper and the judgment of the First Appellate Court, to my mind, was passed without properly considering the elements which are required to be proved by the landlord in establishing the allegations of sub-tenancy and as such, the said decision must be held to be perverse in nature and liable to be set aside. 9. Considering all these things, I am of opinion that the judgment as passed by the learned First Appellate Court is liable to be set aside and that of the learned trial Court should be restored. 10. In the result, the appeal succeeds on contest. THE judgment, as passed by the Assistant District Judge, Sealdah in Title Appeal No. 32 of 1992 is set aside and the judgment passed by the Munsif, Second Court, Sealdah in Title Suit No. 298 of 1979 is confirmed. THE suit is dismissed. Send a copy of this judgment along with the Lower Court Record to the Court below at once.