PROMATHESWAR BAKSHI Vs. JAHAR LAL SETT

JUDGEMENT

(1.) THE instant second appeal is directed at the instance of the defendant/appellant the judgment and decree dated 29.11.1989 passed by the learned Additional District Judge, 8th Court, Alipore in Title Appeal No. 130 of 1987 affirming the judgment and decree of eviction dated 9.1.1987 passed by the learned Munsif, First Court, Sealdah, 24 Parganas (South) in Title Suit No. 593 of 1976. The appeal has been admitted on the question of law raised in ground Nos. (II), (III), (XI), (XIV) and (XX) taken in the memo of appeal.

(2.) THE plaintiff/respondent brought the aforesaid suit for ejectment against the defendant/appellant in respect of the suit premises under the provisions of the West Bengal Premises Tenancy Act on ground of sub-letting and reasonable requirement for the plaintiff's own use and occupation. Both the Courts below disallowed the ground of reasonable requirement for own use and occupation. It appears from the record that the plaintiff-respondent preferred a cross-objection before the Lower Appellate Court against the Trial Court's finding on the ground of reasonable requirement which was dismissed by the First Appellate Court by the impugned judgment. The only question in this appeal is whether the First Appeal Court's concurrent finding on the point of sub-letting allegedly made by the appellant is legally correct or not. It has been urged by Mr. Roychowdhury, the learned Counsel appearing for the appellant while referring to the aforesaid grounds taken in the memo of appeal that both the Court below erred in deciding the question of sub-tenancy without considering the basic tests for deciding such question for which the entire findings are vitiated, that the First Appeal Court failed to appreciate that the initial onus was on the plaintiff to prove the alleged sub-letting, that both the Courts below erred in drawing a presumption under Section 114 of the Evidence Act in favour of the plaintiff-landlord in the matter of sub- letting, that both the courts below erred in drawing a presumption under Section 114 of the Evidence Act in favour of the plaintiff-landlord in the matter of sub-letting, that both the Courts below did not take into consideration that no cogent evidence regarding sub-letting was adduced on the side of the plaintiff-landlord, that the First Appeal Court failed to appreciate that in order to constitute sub-tenancy there must be a transfer of exclusive possession from the principal or head tenant to the sub-tenant of the entire or part of the disputed premises and that there is no evidence that the suit premises was sublet by the principal tenant to some other person and that the said sub-tenant is an exclusive possession and the transfer was for valuable consideration. It has been contended by Mr. Roychowdhury that there is practically no evidence to show that the present defendant at all sublet the suit premises to his brother Bireshwar Bakshi, who has been examined as a witness on behalf of the appellant in the Trial Court. Before I take up the instant second appeal for deciding on merits I think it necessary to refer to an application filed on behalf of the present appellant for production of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure filed before the Bench presided over by D.K. Jain, J. on 16.8.1996 but at the time of hearing of this appeal by me the learned Counsel did not refer to that application and did not make any submission for any order of this Court on the same as such it would not be unreasonable to say that the said application has not been pressed by the petitioner's Advocate and as such it should be rejected, and it stands rejected.

(3.) KEEPING the above provisions of law and the legal principles to be followed in this regard it is to be seen whether there is any lawful reason to interfere with the concurrent findings of fact made by both the Courts below. Sub-letting is one of the grounds of eviction provided under the West Bengal Premises Tenancy Act, 1956 Section 13(1)(i) which may be quoted below :-