DURGA CHARAN SAHA Vs. BARADAMANI DASI

JUDGEMENT

(1.) THIS appeal is directed against a judgment and decree dated 29.3.79 passed in Ejectment Suit No. 207 of 1975. The respondent filed a suit for eviction. The said suit was decreed by the learned trial Judge upon acceptance of the plea of the plaintiff that the defendant/appellant had sub-let a portion of the suit premises in favour of the respondent No. 2. The only question which arises for consideration in this appeal is as to whether the plaintiff has been able to prove that the defendant had sub-let a portion of the tenanted premises in favour of the respondent. The fact is that the defendant was a monthly tenant under her in respect of one room at premises No. 103B, Baithakkhana Road, Calcutta-9 at a rental of Rs. 42/- is not in dispute. The plaintiff in Paragraph 3 of the plaint stated that the defendant had sublet a part of the premises to one Sm. Chhabi Sarkar after the commencement of the West Bengal Premises Tenancy Act, 1956 without any written consent of the plaintiff. The plaintiff has not stated as to how and under what circumstances the defendant had allowed the aforementioned Chhabi Sarkar to occupy a potion of the tenanted premises as a sub-tenant. The respondent on the other hand, in Paragraph 9(b) of the written statement while denying and disputing the said allegation inter alia, stated that the respondent, Chhabi Sarkar, used to work under one Bireswar Chakraborty who was evicted from the premises held by him in execution of a decree passed by the City Civil Court, Calcutta. The aforementioned Chhabi Sarkar approached the defendant to allow her to use and occupy a portion of the room temporarily just to earn her livelihood. The defendant refused. It is further alleged that subsequently the plaintiff also requested this defendant to allow the said Sm. Chhabi Sarkar on the said terms. Accordingly, out of humanitarian ground, the defendant allowed the said Sm. Chhabi Sarkar to sit and work in a corner of his room and work, without realising any money on any account from her. But subsequently it transpired that the said Sm. Chhabi Sarkar entered the said space in collusion and conspiracy with the plaintiff and on her dictation deliberately refused to vacate the said space in spite of repeated request. This defendant submits that he did not transfer any part of his tenancy to Sm. Chhabi Sarkar by sub-letting or assignment and as such on this ground also he is not liable to be evicted.

(2.) ADMITTEDLY the respondent No. 2 has purchased the premises in question from the plaintiff. Curiously enough, the said Sm. Chhabi Sarkar examined herself as witness on behalf of the plaintiff. In her examination in chief she stated that she had been paying rent to the appellant at the rate of Rs. 60/- per month but she was not granted any rent receipt. According to her, there are four doors for entering into the said room. She stated that only one door of the disputed room was in possession of the defendant and the remaining three doors were in her possession. However, she admitted that there was no partition wall inside the disputed room. According to her, she had been in possession of the room since 1969. She was maintaining Books of Accounts but the same had not been produced. She had no witness to prove the settlement. She admitted that she was enjoying the electrical energy from the plaintiff which benefit the plaintiff had denied to other tenants. Although she alleged that she had been paying rent to the defendant, in cross-examination she admitted that she has not paid any rent to the plaintiff during the period of suit.

(3.) ON the other hand, the defendant/appellant examined himself as D.W.1. He categorically stated that the respondent was allowed to occupy a portion of the tenanted premises at the instance of the plaintiff. He further stated that there was no relationship of landlord and tenant between him and the respondent. He has deposed in support of the statements made in the written statement to the effect that the said Chhabi Sarkar was a licensee.