GOUR CHARAN MULLICK Vs. R P BLANCHETTEE

JUDGEMENT

(1.) THE facts in this case are shortly as follows : the plaintiff appellant, Kumar Gour Charan Mullick, is the owner and landlord of premises No. 6/6, Lower Circular Road (northern portion), Calcutta. The defendant No. 1 in the suit in the Court below, is one R. P. Blanchettee who was an Inspector of Police and it is said that he occupied a shop room in the ground floor in the northern portion of the aforesaid premises, and ran a barber's shop there, through defendant No. 3, Md. Shish, under the name and style of "auckland Hair Dressing Saloon. The tenancy was in the name of the said defendant No. 1 and his wife, defendant No. 2, Mrs. N. Blanchettee, who held the same at a monthly rate of rent at Rs. 50/- per month payable according to the English calendar month. The defendants nos. 1 and 2 left India for good and went to Australia sometime in 1956-57. Since then, what happened was as follows : The defendant No. 3 tried to pay rent in his own name but this was not accepted by the landlord. During all these years, rents were being taken from defendant No. 3 in the same of defendants Nos. 1 and 2. After sometime, notice to quit was served, dated 22nd August 1958 and further payments were refused, whereupon deposits wore being made with the Rent Controller. Sometime in July 1959 the suit was instituted by the plaintiff appellant against the said defendants in the City Civil Court. Calcutta. In the plaint in the said suit it was grated, that the defendants nos. 1 and 2 were the tenants in respect of the said shop-room and that they Transferred or assigned the said tenancy to the defender No, 3, without the Knowledge and consent of the plaintiff and in violation of the terms of the tenancy. This is a ground for losing protection under the provisions of the West Bengal Premises Tenancy Act. 1956 ( hereinafter referred to as the "said act" ). It is stated in the plaint that, the plaintiff terminated the tenancy of the defendants Nos. 1 and 2 with effect from the expiry of the last day of September. 1956 and that defendant No. 3. was in wrongful occupation and should be evolved. The plaintiff accordingly asked for a decree against the defendant for khas possession and for other reliefs. The defendants Nos. 1 and 2 have not entered appearance nor did they defend the suit. The only defence was by defendant No. 3 who was in actual occupation of the said shop. His case is, as will be found from the written statement filed in the said suit, that he was a sub-tenant of defendants Nos. 1 and 2 since 1946 with the permission and knowledge of the plaintiff. The entire defer is based on this pub-tenancy. At the trial, five issues were raised. We are really concerned with Issues Nos. 1 and 3. Issue No. 3 is whether the tenancy of defendants Nos. 1 and 2 was legally determined and as they have not defended die suit. this has been decided in the affirmative and is not. challenged, Issues Nos. 4 and 5 are residuary issues as to who reliefs can be granted, Issue No. 1 is as to whether defendants Nos. 1 and 2 transferred or assigned their tenancy in favour of defendant No. 3 without the knowledge and consent of the plaintiff. Issue No. 2 is as to whether defendant No. 3 was a subtenant under defendant Nos, 1 and 2, and was the sub-tenancy created with the knowledge and consent of the plaintiff. The learned Judge in the Court below has considered the evidence in detail and has come to the conclusion that defendant No. 3 was a sub-tenant of the defendants Nos. 1 and 2, and this was with the knowledge and consent of the plaintiff. In our opinion, he has come to the right conclusion. It is impossible to accept the fact that although the defendants Nos. 1 and 2 went, to Australia so many years ago, the plaintiff unaware of the fact and was going on accepting rent from defendant No. 3 without his having some kind of a status. It is true that the defendant No. 3, while giving evidence tried to make out a case that he was a direct tenant of the plaintiff, but this was not his case in the pleadings and this part of the evidence has been rightly disbelieved. The learned Judge in the Court below has answered issue No. 1 in the negative, and with regard to issue No. 2, in the affirmative, and we agree with the findings. Now we come to issue No. 4, namely whether the defendants were liable to be evicted. So far as defendants Nos. 1 and 2 are concerned, they have not defended the suit and have not been making any payments, right from 1956, so that a decree for eviction has rightly been passed against them. So far as defendant No. 2 is concerned, the position is that he was ft sub-tenant under defendants Nos. 1 and 2. whose tenancy has been determined by a notice to quit. Under the common law, that is to say, the Transfer of Property Act, a decree for eviction against the tenant is binding on the sub-tenant, and visa-vis the landlord he has no defence to delivery of possession. The said Act has given a subtenant a certain degree of protection. The protection is contained in sub-sections (2), (3), (4) and (5) of section 13 of the said Act. Reference may also be made to section 16. Sub-sections (2) and (3) of section 16 lay down the method by which a sub-tenant can be recognised by the landlord or become his direct tenant. Sub-sections (2) and (3) of section 13 run as follows :