Judgement

SABYASACHI MUKHARJI, J. :- This is an appeal by special leave from the judgment and order of the High Court of Calcutta dated the 7th May, 1982 dismissing the second appeal and passing a decree for eviction. The High Court refused to interfere with the concurrent findings of facts, inter alia, on sub-letting. The main question here in this appeal is whether in fact there was any sub-letting. The respondent is the owner of the premises No. P-71, C.I.T. Road, Scheme No. (iv)M, Calcutta and the appellant was a tenant at a monthly rent of Rs. 200/- plus service charge Rs. 50/- according to English calender month. It is alleged that the appellant was in arrear of rent for long time. For the purpose of this appeal as the decree was not passed on the ground of default it is not necessary to go into detail regarding the correctness of that allegation. The ground on which the suit proceeded and which resulted in this appeal is whether the defendant had sublet or parted with the possession of two rooms out of four to Lalit Mohan Biswas and he has established tailoring business there. Therefore, subletting without the written consent of the landlord either the whole or part of the building in violation of S. 13(1)(a), West Bengal Premises Tenancy Act, 1956 (hereinafter called the Rent Act) and user for non-residential purpose of tailoring the premises let out for residential purposes, in violation of S. 13(1)(h), Rent Act. are two offences alleged against the tenant. There was one Mritunjoy Mukherjee who opened a Music School there for more than four months prior thereto without the written consent of the landlord. Mr. Mritunjoy Mukherjee is no longer in the picture and his case was not pressed any further.

2. The main contention was whether the premises in question was sublet to Lalit Mohan Biswas who had established some tailoring business or not. There was evidence before the learned trial court and it is material in view of the contentions urged on the question of subletting to set out the same, of the plaintiff, the respondent herein who gave evidence and stated as under :-

"I am the owner of the suit property. The defendant is a tenant at a monthly rental of Rs. 250/- payable according to English calendar month. The defendant is a defaulter since July, 1977. The defendant sublet one room to Lalit Mohan Biswas in December. 1976. The sub-tenant has established tailoring business there. Customers visit his tailoring shop. Another room was sublet to Mritunjoy Mukherjee who opened a Music School there."

3. In was further stated that notice had been given for terminating the tenancy. It was further stated in the evidence as. under :-

"My wife Lilabati Chakraborty is the owner of the suit property. I do not know how much rent is collected by the defendant from the sub-tenants. I am not aware of the profits made by the sub-tenants. The defendants pay a sum of Rs. 200/- plus Rs. 50/- as service charge. The defendant paid the arrear rents by instalments. I am at present receiving rents from the defendant. It is not a fact that Lalit Mohan Biswas is not a sub-tenant and trades on behalf of the defendant."

4. It appears that a suggestion made that Lalit Mohan Biswas was not a sub-tenant, which was denied by the witness. There was however no suggestion that Lalit Mohan Biswas was in exclusive possession of any part of the premises in question. Sree Lalit Mohan Biswas did not give evidence in the witness box.

5. There was also evidence that a sewing machine was used by Lalit Mohan Biswas, who owned the machine was not clear. From this evidence as above the learned trial Judge came to the conclusion there was evidence of a sewing machine being used. The learned judge also came to the conclusion that Lalit Mohan Biswas was occupying the suit premises for tailoring business and he further came to the conclusion that it was for defendant to establish that Lalit Mohan Biswas, had not been inducted as a sub-tenant the moment his physical presence i