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1999 Supreme(SC) 977
1999(7) Supreme 519
Supreme Court of India
(From Calcutta High Court)
V.N. Khare & S.N. Phukan, JJ.
Ms. Labanya Neogi Through LRs., Power of Attorney Holder Shri Dr. Subhasis Neogi -Appellant
versus
M/s. W.B. Engineering Co. -Respondent
Civil Appeal No. 9127 of 1996
Decided on 7-9-1999
Counsel for the Parties :
For the Appellant : Rakesh Dwivedi, Sr. Advocate, Himanshu Munshi, Anip Sachthe, Braj Shiv Rajesh Roshan Agrajit, Advocates.
For the Respondent : Hardev Singh, Sr. Advocate, Ms. Madhu Moolchandani, Advocate.
Important Point
To establish sub-letting landlord/landlady has to prove abandonment or transfer of interest in favour of another person by the tenant.
Headnote:(i) West Bengal Premises Tenancy Act, 1956 - Eviction on ground of personal requirement-Trial Court ordering eviction-Lower appellate Court on reappreciating evidence rejecting personal requirement-High Court upholding lower appellate Court’s decision dismissing appeal on ground no substantial question of law involved-High Court rightly refused to interfere with findings of lower appellate Court. (Para 6)
(ii) West Bengal Premises Tenancy Act, 1956 - Section 14-Eviction on ground of subletting-Abandonment or transfer of interest must be proved-Building let out to partnership firm for residential purpose-Employee of firm residing in premises from inception of tenancy - Employee became proprietor of firm-Landlady s plea that firm sub-let premises without her consent-Not tenable-Tenancy was between firm and landlady-Alleged sub-tenant became sole owner of firm-There is no abandonment or transfer of tenancy by firm.
Held : The allegations of the landlady was that there was sub-letting of the suit premises in favour of Mr. Tahilian, who was also son-in-law of one of the partners of the firm. The trial Court noted that the said Mr. Tahilian joined the firm as an employee and since 1965 was residing in the suit premises. The trial Court also noted that according to Mr. Tahilian (D.W. 1) who was examined as a witness, the partnership firm got dissolved and he became a proprietor of the firm and thereafter running the said firm. On these facts the trial Court held that there was no subletting. To establish sub-letting, the landlady has to prove abandonment or transfer of interest in favour of another person. In the case in hand, the tenancy was between the landlady and M/s. W.B. Engineering Company, which was originally a partnership firm and from records of this case, it transpires that Mr. Tahilian (D.W. 1) became the sole owner as stated above. The original tenancy was for the purpose of residential accommodation of the firm and right from the inception of tenancy Mr. Tahilian was in occupation of the suit premises. Therefore, there was no abandonment or transfer of the tenancy by the M/s. W.B. Engineering Company, the tanant. (Paras 10 & 11)
Judgment
Phukan, J.-This appeal is by the landlady against the judgment and order of the High Court of Calcutta is SA No. 709 of 1995. By the impugned judgment, the High Court dismissed the second appeal filed by the present appellant against the judgment of the Lower Appellate Court namely Assistant District Judge at Sealdah in Title Appeal No. 58/91.
2. The Lower Appellate Court set aside the judgment of the Trial Court namely. Third Munsiff Sealdah in Title Suit No. 523/81. The Appellant filed a suit for ejectment and mesne profit against the respondent on the grounds of personal use and occupation, subletting and other grounds. In the present appeal only above two grounds have been urged, namely, subletting and bona fide requirement.
3. The Trial Court decreed the suit on the ground that the suit premises were required for personal use and occupation by the landlady. The ground of subletting was rejected.
4. The Lower Appellate Court reversed the findings of the trial Court on the ground that the landlady failed to prove that the suit premises were required for personal use and occupation. It may be stated that a cross appeal was also filed by the landlady in respect of the findings of the Trial Court regarding subletting which was dismissed.
5. The High Court took note of the fact that the Lower Appellate Court has recorded that the family of the landlady consists of four members and one child and total rooms in the occupation of the landlady were nine. The High Court also took note of the fact that the Lower Appellate Court extensively dealt with the question of user of the above rooms and the fact that an alternative accommodation was available to the landlady adjacent to the suit property. Regarding the question of subletting the High Court refused to interfere with the findings of the courts below as there was no substance to hold in favour of the appellant landlady on the ground of subletting. The High Court was further of the opinion that no substantial question of law was involved and therefore, dismissed the appeal.
6. Heard Mr. Rakesh Dwivedi, Sr. Advocate for the appellant and Mr. Hardev Singh, Sr. Advocate for the respondent.
Regarding requirement of personal use and occupation, we are of the opinion that this is a question of fact and we find from the judgment of the Lower Appellate Court that the Court not only considered the entire evidence on record but also report of the Commissioner appointed by the Court. The Lower Appellate Court also took note of the fact that though according to the landlady one room in the building in question was in possession of another tenant but it was found that it was in the possession of her daughter.
7. The Lower Appellate Court has extensively discussed the evidence on record and has come to the finding that the property in question is not required for the use and occupation of the landlady in as much as she has got sufficient accommodation. We hold that the High Court rightly refused to interfere with the findings on this point of the Lower Appellate Court. We may state here that learned Counsel for the appellant has drawn our attention to the judgment of the High Court wherein it has been recorded that nine rooms were in occupation of the landlady which was not a fact and therefore, High Court has misdirected itself. This contention has no force as High Court dismissed the appeal on the ground that there was no substantial question of law involved.
8. Regarding subletting drawing our attention on Section 14 of the West Bengal Premises Tenancy Act, 1956, it has been urged that as there was no previous consent in writing of the landlady there was subletting which was not taken note of by the Courts below.
9. We extract the same Section 14 of the Act which runs as follows :
S.14. Restriction of subletting.-(1) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord,-
(a) sublet the whole or any part of the premis
