SANKAR MUKHERJEE Vs. ATULANANDA

JUDGEMENT

(1.) The present appellant filed the Title Suit No. 131 of 1978 in the Court of Munsif, Second Additional Court, Alipore. It is a suit for ejectment of a premises tenant. A decree for ejectment was sought for on the ground that the defendant No. 1 sublet the premises in question to the defendant No. 2. The learned Munsif dismissed the suit on the finding that the plaintiff failed to prove that the defendant No. 1 was a sub-tenant in the premises under the defendant No. 1. The learned First Appellate Court affirmed that finding and dismissed that appeal. Hence the second appeal by the plaintiff. The question of subtenancy was the only point that was canvassed in this appeal.

(2.) The plaintiff's case is mainly this. The defendant No. 1 was a monthly tenant under the plaintiff in respect of the premises No. 5/1H, Keyatala Road described in the schedule to the plaint at a rent of Rs. 550/- per month payable according to English calendar month. Defendant No. 1 is in police service and he was inducted into the suit premises in 1965. The premises was taken for residential purposes and the defendant No. 1 himself was in occupation of the premises till he was transferred from Calcutta to Durgapur in early 1974. The defendant No. 1 is still posted at Durgapur for about 4 years. The defendant No. 1 is not in occupation of the suit premises. Immediately on his transfer he sublet the suit premises to one Bijan Kumar Nag who lived there for about 2 years. On the said Bijan Kumar Nag vacating the suit premises it is again to be sublet to one Sri Bimal Nag the defendant No. 1 who is still in occupation of the same. Both Bijan Nag and Bimal Nag have independent and substantial income. After the defendant No. 1 left for Durgapur the plaintiff generally received rent by money orders. Considering the salary of the defendant No. 1, the ways of his living etc. it is improbable that the defendant No. 1 by month for a period of about 4 years just for the sake of retaining the suit premises in. expectation of his transfer to Calcutta at an uncertain date. Sending rents from Durgapur was merely a camouflage. The plaintiff verily believes that persons who were and are in occupation of the suit premises during the absence of the defendant No. 1 pay rents to the defendant No. 1. A scrutiny of the accounts of the defendants Nos. 1 and 2 and the relevant persons would support the contention of the plaintiff. In the premises the defendant No. 1 is guilty of having sublet and/or parted with possession of the suit premises in 1974 and again in 1977 without the consent of the plaintiff. The defendant's tenancy was terminated with effect from the expiry of the month of November, 1977 by a notice of ejectment which the defendant received on 8-10-77. Both the defendants Nos. 1 and 2 filed the written statement denying the allegation of sub-tenancy. The defendant No. 1 makes the following case in his written statement. The defendant who is in police service was sent on deputation by the Vigilence Department at Durgapur for a specified period and is due to come back to his original department in Calcutta within a short time. The defendant was all along and still now is possessing the suit premises and is using the same for residential purpose. The plaintiff's case that the defendant has not been in occupation of the suit premises and that on his transfer to Durgapur he sublet the suit premises to one Sri Bijan Kumar Nag and thereafter to Bimal Nag the defendant No. 1 is not true. The defendant was sent on deputation to Durgapur where he has not been transferred permanently. The period of deputation being 3 years the defendant did not remove his establishment from the suit premises and the defendant and his family members as usual live in and occupy the suit premises. Bijan Kumar Nag and Bimal Kumar Nag did never and do not even now live in the suit promises. The said two gentlemen are the brothers of the defendant's wife and they have their own house just by the side of and very close to the suit premises. They do not have to live in the suit premises. It is true that the defendant's said brother-in-law have independent income and they live with their family members in their father's rented house at 5/1A, Keyatala Road, Calcutta-29. They have no reason or necessity to occupy the suit premises as sub-tenant as alleged.

(3.) The plaintiff's allegation that sending rent from Durgapur was a camouflage and that the defendant was guilty of having sublet or parted with possession of the suit premises in 1974 and 1977 are denied. The defendant No. 2 in a separate written statement in effect supported the allegations made in the written statement of the defendant No. 1.