The main legal point established in the judgment is that sub-tenancy without the landlord's written permission is not permissible under the West Bengal Premises Tenancy Act, 1956, and the burden of proof lies on the party alleging sub-tenancy.

JUDGMENT

Bibek Chaudhuri, J. - Judgment of reversal passed in Title Appeal No.71 of 2000 by the learned Additional District Judge, Fastrack, 3rd Court at Sealdah is under challenge in the instant appeal by the plaintiff of Title Suit No.529 of 1989.

2. One Narendra Kumar Chakraborty as plaintiff filed Title Suit No.529 of 1989 against one Hemanta Kumar Chattopadhya, the defendant praying for eviction, recovery of possession and mesne profits under the West Bengal Premises Tenancy Act, 1956 (hereinafter described as the said Act) on the ground of default, subletting and reasonable requirement.

3. The suit was decreed by the learned Civil Judge (Junior Division), 2nd Court at Sealdah holding, inter alia that the defendant had parted with and/or sublet the suit premises in favour of his younger brother Subhash Chattopadhya and permanently left the suit premises. The learned trial judge also held that before filing of the suit the landlord/plaintiff served legal, valid and sufficient notice under Section 13(6) of the said Act.

4. The defendant preferred an appeal before the learned Additional District Judge, Fastrack, 3rd Court at Sealdah which was registered as Title Appeal No.71 of 2000. The learned Judge in First Appellate Court, however, came to the finding that the original defendant did not part with possession of the suit premises in favour of his brother and the plaintiff/respondent failed to prove his case of subletting within the requirement of Section 13(1)(a) of the said Act. Accordingly the appeal was allowed.

5. The plaintiff (hereinafter described as the appellant) has preferred the instant second appeal assailing the judgment and decree passed by the First Appellate Court reversing the judgment and decree passed by the trial court. The appeal was admitted for hearing under Order 41 Rule 11 of the Code of Civil Procedure on the following substantial questions of law:-

i) Whether the learned Court of appeal below committed substantial error in law in reversing the judgment and decree passed by the learned trial court?

ii) Whether the learned Court of appeal below committed substantial error in law in not appreciating that the family of the defendant/respondent was not a Hindu Undivided Family and therefore exclusive possession of the brother of the defendant/respondent in the tenanted portion of the suit premises constitutes an act of sub-tenancy for which ejectment under Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956 can be ordered?

iii) Whether the learned Court of appeal below committed substantial error in law in not taking into consideration that in case of a creation of sub tenancy consent from the landlord in writing is mandatory and such consent cannot be implied or waived by the landlord under any circumstances?

6. It is pertinent to mention here that during the pendency of the suit the original plaintiff sold out the suit property to one Santosh Roy and he impleaded himself as plaintiff in the suit vide order dated 1st February, 1995 passed by the learned trial judge.

7. The moot substantial question of law involved in the instant appeal is therefore, whether the finding of the learned Judge in First Appellate Court in adjudicating the question as to whether the defendant/respondent had parted with or sublet the suit premises is perverse due to non-consideration of evidence on record or improper finding of fact on shifting onus of proof of certain facts upon the appellant on the question of sub-tenancy and if such finding is to be treated as perverse or not.

8. The case of the plaintiff/appellant on sub-tenancy is that the defendant was inducted as a tenant in respect of the suit premises at a monthly rental of Rs.120/- payable according to the Bengali calendar month. Sometime after the inception of the tenancy, the defendant sublet the suit premises to Sri. Subhash Chattopadhya without written permission of the plaintiff and parted with possession of the entire suit premises in favour of him