The landlord's right to get a decree for ejectment under Section 13 (1) (a) of the West Bengal Premises Tenancy Act, 1956, cannot be waived by the landlord.

( 1 ) THIS appeal has been assigned to me by the Hon'ble Chief Justice on the difference of opinions of the Hon'ble Mr. Jus-lice N. C. Mukherji and the Hon'ble Mr. Justice S. M. Guha. The question for my consideration is whether the respondent landlord has waived his right to get a decree under Section 13 (1) (a) of the West Bengal Premises Tenancy Act because he accepted the rent from the tenant knowing fully well that the tenant has sub-let the premises in question without the previous consent of the landlord as incumbent under Section 13 (1) (a) of the West Bengal Premises Tenancy Act.

( 2 ) MR. Banerjee on behalf of the appellant supported the judgment passed by the Hon'ble Mr. Justice Guha while Mr. Das Gupta appearing for the respondent supported the view of the Hon'ble Mr. Justice N. C. Mukherjee. Mr. Banerjee contended that it has been found by both the Hon'ble Judges that the landlord knew of the existence of the sub-tenancy when he accepted the rent from the tenant and therefore has waived his right to file a suit and get a decree under Section 13 (1) (a) of the Act. Mr. Banerjee argued that this is the benefit given to the landlord in case of the tenant sub-letting ft part or the whole of the premises in question. It is argued by Mr. Banerjee that in view of this waiver the landlord is not entitled to yet a decree under Section 13 (1) (a) of the West Bengal Premises Tenancy Act. Mr. Das Gupta however contended that the findings of both the Hon'ble Judges on the question of knowledge of the sub-tenancy by the tenant is wrong. In my opinion, when a reference is made to the third Judge on the difference of opinion on the question of law, it is not possible for Mr. Das Gupta to argue that the Hon'ble Judges' findings on; fact are wrong, inasmuch as, under Section 98 of the Code of Civil Procedure it is not open to the third Judge to go behind the question: of fact arrived at by both the Hon'ble Judges and under the said section only the question of law on the admitted fact can be referred to the third Judge for the disposal. The only consideration is, therefore, whether by acceptance of rent by the landlord after he: came to know of the sub-letting constitutes the waiver of his right to get a decree on the ground of Section 13 (1) (a) of the West Bengal Premises Tenancy Act, 1956.

( 3 ) BEFORE I deal with the question raised it appears to me that Section 13 of the West Bengal Premises Tenancy Act. 1950 provides protection to tenant against eviction and no decree or order for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds mentioned in the section. In Section 13 (1) (a) it has been provided that "whether the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sub-lets in whole or in part the premises held by him". If the elements of Section 13 (1) (a) are present, then landlord is entitled to get a decree in his favour and the protection of the tenant against eviction will no longer be there. In the facts of this case, admittedly on findings of the Hon'ble Judges, there was no previous consent in writing by the landlord before the tenant assigned or sub-let in whole or in part the premises held under the landlord. In the present case the landlord is a purchaser from the original landlord. It is nobody's case that he sub-let the premises without (with?) previous written consent of the landlord but the case of the tenant is that as the landlord accepted the rent after coming to know of the sub-tenancy as such he has forfeited his right to get a decree of ejectment under Section 13 (1) (a) of the Act on the principle of waiver. The findings of both the Hon'ble Judges were that the plaintiff has knowledge of the assignment of sub-letting in favour of Sujoy Kumar Das Gupta much earlier than the last payment of rent