The main legal point established in the judgment is that the defendants were not guilty of causing substantial damage to the suit premises but were guilty of subletting without evidence of payment and acceptance of rent, and delivery of possession to the sub-tenant.

JUDGMENT

Bibek Chaudhuri, J. - The defendants in a suit for eviction and recovery of possession being Title Suit No.324 of 1992 are the appellants before this Court challenging concurrent finding of fact by both the learned Trial Court as well as the learned First Appellate Courts wherein the following substantial questions of law are involved:-

i) Whether the learned judges in the courts' below substantially erred in law in decreeing the suit for eviction on the ground of violation of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1882?

ii) Whether the learned judges in the courts' below substantially erred in law in holding that the defendants are guilty of sub-letting without adverting the legal principle regarding payment and acceptance of rent coupled with delivery of possession.

2. It is pertinent to mention at the outset that the plaintiffs/defendants became the owners of premises No.9 Karl Marx Sarani within P.S Watgung by auction purchase. The appellants were the premises tenants in respect of one shop room wherein they have been running business of selling footwear. The plaintiffs filed the above mentioned suit on the grounds of default of payment of rent, reasonable requirement for extension of their business, subletting and causing substantial damage of the suit premises in violation of Clause (m), (o) and (p) of Section 108 of the Transfer of Property Act. The learned Trial Court, by its judgment and decree dated 30th June 2007 decreed the suit holding, inter alia, that the plaintiffs were able to prove their case on the grounds of default, subletting and causing material damage and substantial addition and alteration of the suit shop room and, therefore, liable to be evicted from the suit premises.

3. The defendants being aggrieved by and dissatisfied with the judgment and decree passed by the learned Trial Court filed an appeal before the learned District Judge, South 24 Parganas at Alipore. The said appeal was transferred to the Court of the learned Second Additional District Judge at Alipore and registered as Title Appeal No.258 of 2007. By a judgment and decree dated 30th September, 2010 the said appeal filed by the defendants/appellants was dismissed on contest. The learned Judge in First Appellate Court however gave protection to the defendants against eviction under Section 17(4) of the West Bengal Premises Tenancy Act, 1956. The appeal was dismissed affirming the finding of the learned Trial Court in respect of subletting and causing substantial damage of the suit premises by the defendants/appellants.

4. It is necessary to mention here that the plaintiffs did not file any appeal against the finding of the First Appellate Court on the grounds of reasonable requirement and default.

5. Therefore, in the instant appeal this Court confines its discussion exclusively on the substantial questions of law framed by the Division Bench of this Court at the time of admission of appeal.

6. For adjudication of substantial questions of law involved in the instant appeal it is necessary to state in a nutshell the case of the respective parties on the grounds of subletting and causing addition and alteration and damage to the suit premises.

7. It is the case of the plaintiffs/respondents that the defendants have parted with possession of a portion of the suit premises in favour of one Laxmidhar Bhunia and sublet the same for opening a pan shop (betel shop) without their consent.

8. It is also pleaded by the plaintiffs that the defendants caused addition and alteration and substantial damage to the suit premises without the knowledge and consent of the plaintiffs in contravention of Clauses (m), (o) and (p) of the Transfer of Property Act. The defendants fixed one iron safe on the main wall cutting the beam of the suit shop room and erected a false roof under the ceiling of the tenanted premises without the permission and consent of the plaintiffs.

9. In their written statement, the defendants den