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PETITIONER: L.NEOGI THROUGH LRS POWER OF ATTORNEY HOLDER  DR. S.NEOGI

       Vs.

RESPONDENT: M/S W.B.  ENGINEERING COMPANY

DATE OF JUDGMENT:       07/09/1999

BENCH: V.N.Khare, S.N.Phukan

JUDGMENT:

PHUKAN,J.

     This  appeal  is by the landlady against the  judgment and  order  of the High Court of Calcutta in SA No.  709  of 1995.   By  the impugned judgment, the High Court  dismissed the second appeal filed by the present appellant against the judgment  of  the  Lower Appellate  Court  namely  Assistant District Judge at Sealdah in Title Appeal No.  58/91.

     The  Lower  Appellate Court set aside the judgment  of the  Trial Court namely Third Munsiff Sealdah in Title  Suit No.   523/81.  The Appellant filed a suit for ejectment  and mesne  profit  against  the  respondent on  the  grounds  of personal  use and occupation, subletting and other  grounds. In  the  present  appeal only above two  grounds  have  been urged, namely, subletting and bonafide requirement.

     The  Trial  Court decreed the suit on the ground  that the  suit  premises  were  required  for  personal  use  and occupation  by  the landlady.  The ground of subletting  was rejected .

     The Lower Appellate Court reversed the findings of the trial  court on the ground that the landlady failed to prove that  the  suit premises were required for personal use  and occupation.   It may be stated that a cross appeal was  also filed  by  the  landlady in respect of the findings  of  the Trial Court regarding subletting, which was dismissed.

     The  High  Court took note of the fact that the  Lower Appellate Court has recorded that the family of the landlady consists  of  four members and one child and total rooms  in the  occupation  of the landlady were nine.  The High  Court also  took  note of the fact that the Lower Appellate  Court extensively  dealt  with the question of user of  the  above rooms  and  the fact that an alternative  accommodation  was available  to  the landlady adjacent to the  suit  property. Regarding  the question of subletting the High Court refused to  interfere with the findings of the courts below as there was no substance to hold in favour of the appellant landlady on the ground of subletting .  The High Court was further of the opinion that no substantial question of law was involved and therefore, dismissed the appeal.

     Heard  Mr.   Rakesh  Dwivedi , Sr.  Advocate  for  the appellant  and  Mr.   Hardev Singh, Sr.   Advocate  for  the respondent.

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     Regarding  requirement of personal use and occupation, we are of the opinion that this is a question of fact and we find from the judgment of the Lower Appellate Court that the Court  not only considered the entire evidence on record but also report of the Commissioner appointed by the Court.  The Lower Appellate Court also took note of the fact that though according  to  the  landlady  one room in  the  building  in question  was  in  possession of another tenant but  it  was found that it was in the possession of her daughter.

     The  Lower  Appellate Court has extensively  discussed the  evidence on record and has come to the finding that the property  in  question  is  not required  for  the  use  and occupation  of  the  landlady  in as much  as  she  has  got sufficient  accommodation.   We  hold that  the  High  Court rightly refused to interfere with the findings on this point of  the Lower Appellate Court.We may state here that learned Counsel  for  the appellant has drawn our attention  to  the judgment of the High Court wherein it has been recorded that nine  rooms were in occupation of the landlady which was not a  fact  and therefore, High Court has misdirected itself  . This  contention  has no force as High Court  dismissed  the appeal  on the ground that there was no substantial question of law involved.  Regarding subletting drawing our attention on Section 14 of the West Bengal Premises Tenancy Act, 1956, it  has been urged that as there was no previous consent  in writing  of the landlady there was subletting which was  not taken note of by the Courts below.

     We  extract the same Section 14 of the Act which  runs as follows:

     S.14.   Restriction  of  subletting -  (1)  After  the commencement  of  this  Act, no tenant  shall,  without  the previous consent in writing of the landlord,-

     (a)  sublet the whole or any part of the premises held by him as a tenant;  or (b) transfer or assign his rights in the tenancy or in any part thereof (c) (2) No landlord shall claim,  demand or receive any premium or other consideration whatsoever  for giving his consent to the subletting of  the whole or any part of the premises held by a tenant.

     (Emphasis supplied )

     The  above  Section came up for consideration by  this Court  in  PULIN BESHARI LAL VS.  MAHADSEB DUTTA AND  OTHERS 1993 (1) SCC 629 and it was held that from the above Section it  is  clear  that when there was no  previous  consent  in writing of the landlord for creation of sub- tenancy, itself a  ground for eviction in terms of Section 14(1) (a) of  the Act.   It  was  further  held  that  mere  knowledge  and/or acceptance of rent cannot defeat the landlords right to get a  decree for ejectment on the ground of subletting.  We  do not  find any reason to take a different view in view of the clear  legislative  mandate laid down in Section 14  of  the Act.

     Now  the  question is whether there was subletting  in the case in hand?

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     There was a written agreement of lease for the tenancy with  effect  from  1.12.1965  between the  landlady  and  a partnership  firm,  namely, M/s.  W.B.  Engineering  Company Ltd.   and  the tenancy was for residential purposes of  the above partnership firm.  The agreement was marked as Exhibit -11.   The  allegations of the landlady was that  there  was sub-letting of the suit premises in favour of Mr.  Tahilian, who  was also son-in-law of one of the partners of the firm. The trial court noted that the said Mr.  Tahilian joined the firm  as an employee and since 1965 was residing in the suit premises.   The trial court also noted that according to Mr. Tahilian  (  D.W.1)  who  was examined  as  a  witness,  the partnership firm got dissolved and he became a proprietor of the  firm  and thereafter running the said firm.   On  these facts the trial court held that there was no subletting.

     The  first appellate court also took note of the  fact that  since inception of the tenancy D.W.1 has been residing with his family in the suit premises, as at that time he was an  employee  of the partnership firm.  This fact  was  also admitted  by  the  husband of the landlady,  namely,  P.W.1. Therefore,  the first appellate court confirmed the findings of  the  trial  court  that the  landlady  failed  to  prove subletting.

     To  establish  sub-letting, the landlady has to  prove abandonment  or  transfer of interest in favour  of  another person.   In  the case in hand, the tenancy was between  the landlady  and  M/s.   W.B.  Engineering Company,  which  was originally a partnership firm and from records of this case, it  transpires  that Mr.  Tahilian (D.W.1) became  the  sole owner  as  stated above.  The original tenancy was  for  the purpose  of residential accommodation of the firm and  right from  the  inception  of  tenancy   Mr.   Tahilian  was   in occupation  of  the suit premises.  Therefore, there was  no abondonment  or  transfer  of the tenancy  by  the  M/s.W.B. Engineering Company, the tenant.

     Learned  counsel  for  the  appellant  has  drawn  our attention  to  a decision of this court in S.A.   Vengadamma and ors.  Vs.  Jitendra Vora and anr.  [ 1997 (11) SCC 334 ] in support of his contention that Mr.Tahilian, being son-in- law  of one of the original partners, cannot be treated as a member  of  the  family  of the said  firm.   In  the  above decision,  this  court  while   considering  Karnataka  Rent Control  Act, 1961, particularly, Section 3(ff) of the  Act, wherein the word ‘family has been defined, inter-alia, held that  a  brother  not living with  the  tenant  permissively cannot be treated as a member of the family.  In the present case, Mr.  Tahillian is not claiming tenancy in his capacity as  a  son-in-law but as an owner of the firm, namely,  M/s. W.B.   Engineering Company.  Therefore, the ratio laid  down in  that  above  decision is not applicable to  the  present case.   For  the  reasons  stated   above,  the  appeal   is dismissed.  No costs.