The main legal point established in the judgment is that when the transfer of exclusive possession of the suit premises by the tenant in favor of third parties is proved, the onus shifts upon the tenants to prove that such transfer was not in lieu of any compensation or rent.

JUDGMENT :

1. The Instant Second Appeal is filed by the defendants/appellants against the judgment and decree dated 31st February, 1992 passed by the learned Additional District Judge, 6th Court at Alipore in Title Appeal No.242 of 1987, thereby reversing the judgment and decree of dismissal of the suit dated 28th February, 1987 passed by the learned Assistant District Judge, 8th Court at Alipore in Title Suit No.140 of 1977.

2. The respondents/plaintiffs filed Title Suit No.140 of 1977 for eviction of the defendants/appellants from the suit premises on the grounds of default, committing nuisance and annoyance, violating the provisions of (M), (O) and (P) of Section 108 of Transfer of Property Act and subletting in the 8th Court of the learned Assistant District Judge at Alipore. The original defendant contested the said suit and after trial, the learned trial judge dismissed the suit on contest.

3. The plaintiff/respondent filed an appeal against the judgment and decree of dismissal of the suit before the learned Additional District Judge, 6th Court at Alipore which was registered as Title Appeal No.242 of 1987. The said appeal, however was allowed on contest and a decree for eviction was passed against the defendants/appellants.

4. The said judgment and decree, passed by the First Appellate Court is assailed in the instant Second Appeal.

5. At the time of admission of the appeal for bearing under Order 41 rule 11 of the Code of Civil Procedure, the Division Bench of this Court vide order dated 5th May, 1992 passed the following order:- "this appeal will be heard only on ground No.13 as taken in Memo of Appeal."

6. At the time of hearing of the instant appeal, this court in addition to ground No.13 of Memo of Appeal framed to more grounds as substantial questions of law. The grounds are as follows:-

1. For that the court below did not at all consider that the two important ingredients is to be satisfied before it can be held that a particular premises is sublet by tenant to some other person, that is the subtenant was in exclusive possession and the tenant has no control over them and secondly, the transfer was for valuable consideration.

2. Whether the learned judge in first appellate court erred substantially in law in holding the present occupants of the suit premises as subtenants without considering that they are near relatives of the original tenant, since deceased.

3. Whether the impugned judgment suffers from substantial error in law for non consideration of material evidence on record.

7. Mr. Animesh Kanti Ghoshal, learned Senior Advocate submits that in the trial court the daughter of the original plaintiff had deposed as PW1. PW2 Ramanath Bose was an Engineer Commissioner who locally investigated the premises in suit to ascertain as to whether the original defendant had made substantial additional alteration and damage of the suit premises and submitted a report which was marked as Exhibit-6. PW3, Amullaya Kumar Sarkar was a law clerk and PW4, Praddut Kumar Das was a local resident who deposed on behalf of the plaintiffs/respondents in support of the case of the plaintiffs/respondents.

8. One Ramesh Kumar Podder, on the other hand was examined as DW1 on behalf of the defendant. The original defendant/tenant, since deceased was his father's elder brother's wife. DW2 was the husband of the original defendant/tenant.

9. It is fairly pointed out by Mr. Ghoshal, learned Senior Advocate for appellants that the learned first appellate court allowed the appeal and passed a decree for eviction of the appellants only on the ground of subletting. Other grounds taken by the plaintiffs/respondents for evicting the appellants, viz, grounds of default, committing nuisance and annoyance and violating the clauses (M), (O) and (P) of Section 108 of Transfer of Property Act were concurrently held by both the courts below to be not proved and no cross appeal was filed by the respondents against such concurrent findings by the courts below. Theref