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IN THE HIGH COURT OF CALCUTTA
Subrata Talukdar, J.
Prasanta Kumar Chakraborty and others - Appellants
Versus
Kalyani Kali and others - Respondents
F.M.A. No. 105 of 1988
Decided On : 11-3-2015
For the Appellants :Biswajit Basu, Sabyasachi Mukhopadhyay and Kaushikee Banerjee, Advocates.
For the Respondent:Ranjan Kali, Advocate.
Subletting without consent is a statutory ground for eviction and cannot be waived by the landlord's conduct.
Headnote:
EVICTION SUIT - SUBLETTING WITHOUT CONSENT - WAIVER - REASONABLE REQUIREMENT - OWNERSHIP DISPUTE - REMAND - [SECTION 13(1)(a), 13(1)(ff), 17(2A) WEST BENGAL PREMISES TENANCY ACT, 1956]
Fact of the Case:
Suit for eviction of tenant on grounds of subletting without consent, reasonable requirement, and dispute over ownership of the premises. Trial court decreed eviction on all grounds. Appellate court set aside the decree and remanded the suit for retrial on the ground of discrepancy in the holding number of the premises.
Finding of the Court:
1. Subletting without consent is a ground for eviction and cannot be waived by the landlord's acceptance of rent or maintaining a cordial relationship with the tenant. 2. Reasonable requirement is a bona fide and objective need of the landlord for the premises, not a mere desire. 3. Ownership dispute cannot be raised for the first time in appeal, especially when the tenant has admitted the landlord's ownership in the written statement and in an earlier application under Section 7(2) of the Act.
Issues: 1. Whether the ground of subletting is available to the landlord despite the absence of a written consent and the landlord's acceptance of rent and cordial relationship with the tenant. 2. Whether the ground of reasonable requirement is available to the landlord. 3. Whether the ownership dispute can be raised for the first time in appeal.
Ratio Decidendi: 1. Subletting without consent is a statutory ground for eviction and cannot be waived by the landlord's conduct. 2. Reasonable requirement is a bona fide and objective need of the landlord for the premises and can be assessed by the landlord himself. 3. Ownership dispute cannot be raised for the first time in appeal, especially when the tenant has admitted the landlord's ownership in the written statement and in an earlier application under Section 7(2) of the Act.
Final Decision: The judgment of the appellate court is set aside, and the decree of the trial court is restored, allowing the appellants to execute the decree forthwith.
Subrata Talukdar, J.
1. This appeal arises out of the judgment and order dated 19th January, 1987 passed by the Ld. 2nd Assistant District Court, Nadia in Title Appeal No. 243 of 1985. The Ld. Appellate Court was pleased to set aside the judgment and decree dated 31st July, 1985 passed by the Ld. Civil Court (Junior Division) - Ld. Munsif in Title Suit No. 208 of 1981.
2. The present appellants are the plaintiffs-landlords and respondents are the defendants-tenants.
3. The Ld. Trial Court, inter alia, held as follows:-
(a) That in respect of the suit premises being 13 Ballavi Acharjee Para Lane, Plot No. 3144, Municipality-Santipur, Mauja-Santipur, P.S.- Santipur, District-Nadia the plaintiffs are the owners thereof. The defendants are the tenants at a rental of Rs. 32/- per month. The plaintiff no.2 ordinarily resides for business purposes in the State of Assam and due to disturbances in Assam, he requires the suit premises for his own use and occupation. The defendants are tenants in respect of the ground floor but the defendant no.1 inducted a sub-tenant namely, one Panchanan Bakshi without the consent of the plaintiffs.
After a 'salishi' between the parties the said sub-tenant was evicted and the plaintiffs took possession of the first floor. Subsequently however, the defendants occupied both the first and ground floors. On the request of the plaintiffs the defendants vacated one room of the first floor which is now being possessed by the plaintiff no.1. The plaintiff no.2 has 7 members in his family, including maid servant and therefore requires the suit premises for his own use. The notice of eviction also stood proved.
(b) The case made out by the defendants in their written statement is that the suit is not maintainable. The defendants are the tenants in the entire holding and in possession of one room on the first floor as well as the entire ground floor. The defendants deny that the said Panchanan Bakshi was inducted as a sub-tenant in the suit premises. The defendants contend that the plaintiffs do not have any reasonable requirement.
(c) The Ld. Trial Court found that the defendants admitted in their written statement that they inducted a sub-tenant by subletting part of the tenancy. Such admission finds place in the written statement. PWs 1, 2 & 3 have also corroborated the fact of subtenancy and such evidence could not be dis-proved. The Ld. Trial Court also found that the evidence adduced on behalf of the defendants in respect of the sub-tenancy is contrary to their admission in the written statement. The Ld. Trial Court was therefore pleased to hold in favour of the plaintiffs with regard to the point of induction of a sub-tenant in the suit premises without consent of the plaintiffs. The Ld. Trial Court therefore held that the defendants were liable to be evicted.
(d) On the point of reasonable requirement the Ld. Trial Court found that the plaintiff no.2 is now desirous of settling in the suit premises since it is no longer possible for the plaintiff no.2 to continue to stay in Assam. The plaintiff no.1 also resides in the suit premises in one room although he has 7-8 members in his family, including a maid servant. Such facts have been corroborated from the evidence of the PWs. The Ld. Trial Court did not believe the evidence of DW1 with regard to the residence of PW2 that prior to moving to Assam he would reside at Alipurduar. Ld. Trial Court was therefore pleased to decree the suit in favour of the plaintiffs.
4. The judgment and decree of the Ld. Trial Court was carried in appeal in Title Appeal No. 243 of 1985 by the defendants whereby, the Ld. Appellate Court, inter alia, held as follows:-
(i) That the main points for determination in the appeal were whether the defendants were tenants in respect of the entire suit holding; whether the defendants are liable to be evicted from the suit premises for having sublet the suit premises without the previous written consent of the landlords; and whether the plai
