In eviction proceedings, the landlord must initially prove a third party is in exclusive possession. If the tenant claims a partnership, the court may probe the transaction; if the arrangement lacks evidence of active business involvement, it may be treated as a sham to camouflage unauthorized sub-letting.

JUDGMENT :

KRISHNA RAO, J.

1. The appellants/defendants have filed this present second appeal against the judgment and decree passed by the Learned Additional District Judge, First Track Court, Sadar, Cooch Behar in Title Appeal No. 01 of 2020 dated 25th August, 2023 and 16th October, 2023 respectively wherein the Learned Judge set aside the judgment and decree passed by the Learned Civil Judge, (Junior Division), Additional Court, Sadar Cooch Behar passed in Title Suit No. 52(A) of 2015 dated 24th December, 2019 and 8th January, 2020.

2. The respondent/plaintiff along with his mother, Manju Sarkar (since deceased) has filed suit against the appellants for eviction and recovery of possession of the tenanted premises i.e. one stall of approximate area of 180 sq. ft. with GCI sheet roof with pucca walls and kutcha floor.

3. As per the case of the respondent, by way of family settlement, the respondent got the portion of the tenanted premises along with other different tenanted premises. As the tenanted premises of the appellant no. 1 came in the share of the respondent, the appellant no. 1 started paying monthly rent of Rs. 35/- to the respondent and became tenant of the respondent. The appellant had kept the shop closed for a considerable period of time and all of a sudden, the appellant no.1 in the month of August, 2014 sublet the tenanted premises illegally and without the consent of the respondent to the appellant no.2 and the appellant no. 2 has started business illegally in the tenanted premises.

4. The appellant no.1 has stopped payment of monthly rent since the month of July, 1990 and the appellant no.1 become defaulter of paying monthly rent of the tenanted premises. It is the further case of the respondent that without the consent and permission of the respondent, the appellant no.2 has altered the tenanted premises by making pucca floor and changing the condition of the surrounding wall and destroyed the major portion of the original construction. The respondent has made out a further case that the suit premises is reasonably required to the respondent for the purpose of new business of the respondent and the respondent has no sufficient premises for starting new business.

5. The respondent has issued a notice to the appellant no. 1 on 17th September, 2014 by determining the tenancy and called upon the appellant no. 1 to vacate the premises by the last day of October, 2014 and to hand over the premises to the respondent on the first day of November 2014. As the appellant no. 1 failed to vacate the tenanted premises and hand over the premises to the respondent, the respondent along with his mother filed the suit.

6. The appellants after receipt of summons of the suit entered appearance in the suit and have jointly filed their written statement. As per the case of the appellants that the appellant no.1 has never sublet the tenanted premises to the appellant no. 2. Due to financial crisis, the appellant no.1 has closed the tenanted premises for considerable period and after long gap the appellant no.1 started business of readymade garments in the tenanted premises along with defendant no. 2 being the partner of the defendant no.1.

7. The appellants in their written statement denied that the allegations made by the respondent and stated that the appellants have never violated the provisions of the tenancy and have not made any alteration in the tenanted premise