J.N. Hore, J.
1. This second appeal at the instance of defendant No. 2 is directed against the judgment and decree dated 30.11.90 passed by the learned Additional District Judge, 11th Court, Alipore, in Title Appeal No. 105 of 1990, affirming those of the learned Munsif, 3rd Additional Court, Alipore, in Title Suit No. 57 of 1988 dated 23.11.89. The respondent No. 1 Aloke Kumar Panda filed Title Suit No. 421 of 1987 which was subsequently transferred to the learned Munsif, 3rd Additional Court, Alipore, and renumbered as Title Suit No. 57 of 1988 against the appellant and two others for ejectment and damages, alleging inter alia that defendant No. 1 Biswanath Chakraborty was a monthly tenant in respect of two rooms, common privy and bath and common passage in premises No. 38/C, Protapaditya Road, Tollygunge, at a monthly rent of Rs. 65/- payable according to English Calendar month. The defendant No. 1 defaulted in payment of rent from the month of September, 1987. He has also sublet and/or assigned and/or transferred the suit premises to the defendants Nos. 2 and 3-Dhirendra Nath Hazari and Sankar Chakraborty respectively without the written permission of the landlord. The defendant No. 1 has also demolished certain portion of the suit premises in violation of the provisions of Clauses (m), (o), (p) of Section 108 of the Transfer of Property Act and he is also guilty of causing nuisance and annoyance to the neighbours including the plaintiff. The plaintiff accordingly sent a notice of ejectment dated 4.9.87 to the defendant No. 1 by registered post with A/D and the notice was duly served upon the defendant No. 1.
2. Neither the defendant No. 1 Biswanath Chakraborty nor defendant No. 3 Sankar Chakraborty appeared before the Court or contested the suit. Defendant No. 2 Dhirendra Nath Hazari, the present appellant, appeared and contested the suit by filing a written statement having all the material allegations of the plaintiff and contending inter alia, that the defendant No. 1 is not a monthly tenant in respect of the suit premises and that he is a tenant in respect of the suit premises on payment of rent of Rs. 30/- per month to the previous landlord since 1965 but the landlord did not grant receipt to him. The defendant No. 1 did not sublet, assign or transfer the suit premises to the defendant No. 2. The defendant No. 1 is not a tenant under the present plaintiff and as such the notice should have been served upon the defendant No. 2, who is a tenant in respect of the suit premises under the previous landlord and the notice was therefore illegal and inoperative. The other grounds of ejectment were also denied.
3. Upon a consideration of the evidence on record, the learned Munsif has held that the defendant No. 1 is a tenant in respect of the suit premises and that he has defaulted in payment of rent since September, 1987 and is not entitled to get protection Under Section 17(4) of the West Bengal Premises Tenancy Act as he has not complied with the provisions of Section 17(1) of the said Act. It has further been held by him that the defendant No. 1 has sublet the suit premises to the defendants Nos. 2 and 3. He has further held that the defendant No. 1 has not caused any damage to the suit property or committed any nuisance or annoyance. He has accordingly decreed the suit directing the defendants Nos. 1, 2 and 3 to vacate the suit premises within six months from the date of the order. The prayer for mesne profits was also allowed.
4. On appeal the lower Appellate Court has held that neither at the time of sending the notice nor at the time of filing of the suit, defendant No. 1 Biswanath Chakraborty was a defaulter in payment of rent for two months within a period of 12 months as required Under Section 13(1) (i) of the West Bengal Premises Tenancy Act and he has therefore overruled the decision of the learned Munsif in this regard. He has, however, affirmed the finding of the learned Munsif that the defendant No. 1 sublet the disputed premises to defendants Nos. 2 and 3 without the written permission of the landlord and as such the defendants are liable to be evicted. He has, therefore, dismissed the appeal and affirmed the decree for recovery of possession and mesne profits. Being aggrieved, the defendant No. 2 has preferred this second appeal.
5. Mr. Das Gupta, learned Advocate for the appellant has assailed the judgment of the lower Appellate Court on two grounds. Firstly, there is no sufficient evidence to warrant a conclusion that the defendant No. 1 is a tenant under the plaintiff or his vendor and that the defendant No. 1 created unauthorised sub-tenancy in respect of a part of the suit premises and the concurrent findings of the courts below cannot be sustained. Secondly, alternatively it has been contended that even if defendant No. 2 was inducted as a sub-tenant by defendant No. 1 there was waiver of right to get a decree Under Section 13 (1) (a) of the West Bengal Premises Tenancy Act in view of acceptance of rent from defendant No. 1 not only by the erstwhile landlord but also by the plaintiff after his purchase with full knowledge of the sub-tenancy which was created in 1965.
6. With regard to the first point urged on behalf of the appellant it appears that the lower Appellate Court upon a consideration of the evidence, both oral and documentary, has arrived at a specific finding that the defendant No. 1, who is admittedly in possession of a part of the suit premises, was a monthly tenant under the plaintiff in respect of the entire suit premises. The defence case that the defendant No. 2 was tenant under the original landlord and defendant No. 1 has no tenancy in respect of any part of the suit premises was negatived by the lower Appellate Court on the ground that the defendant No. 2 was not able to produce a single rent receipt or any scrap of paper in support of his tenancy directly under the owner. These findings of fact arrived at upon a consideration of the evidence on record cannot be said to be in any way perverse nor do they suffer from any legal infirmity and these findings of fact are final and cannot be challenged in the second appeal.
7. Mr. Das Gupta has contended that there is no evidence of payment of rent by the defendant No. 2 to defendant No. 1 and the plaintiff has therefore failed to prove the alleged sub-tenancy. In support of his contention he has referred to the decision of the Supreme Court in the case of Dipak Banerjee v. Sm. Lilabati Chakraborty reported in : [1987]3SCR680 where in it has been held that in order to prove tenancy or sub-tenancy, two incredients have to be established. Firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, that right must be in lieu of payment of some compensation or rent. In that case the alleged sub-tenant Lalet Mohan Biswas used to perform some tailoring work both for the tenant and for the landlord and there was no evidence that he was in exclusive possession of a portion of the premises over which the tenant had not retained any control. The facts of the present case are quite different and in my opinion the Supreme Court decision referred to above, has no manner of application in the present case. Admittedly, the defendant No. 1 is in exclusive occupation of one room of the suit premises and the other room is in occupation of defendant No. 2. The defence case that the defendant No. 2 was a direct tenant under the owner has been rejected and it has been found that the defendant No. 1 is the tenant under the vendor of the plaintiff and after purchase under the plaintiff. Defendant No. 2 is an outsider and it is nobody's case that he is occupying a part of the suit premises as a member of the family of the defendant No. 1, who is a tenant or as a licencee. In such circumstance, the defendant No. 2 is to explain the nature of his occupation and that he has not come to occupy the part of the suit premises as a sub-tenant under the defendant No. 1. Direct evidence as to payment of rent is seldom available to the plaintiff. The facts of the case clearly point to a sub-tenancy created by defendant No. 1 in favour of defendant No. 2 and the concurrent finding in this respect of the courts below does not suffer from any infirmity.
8. With regard to the second contention raised by Mr. Das Gupta, Mr. Roy Chowdhury, the learned Advocate appearing on behalf of the respondent, has raised a preliminary objection. It has been contended that the question of waiver is a mixed question of fact and law and as it is not a pure question of law but depends on facts, this cannot be raised for the first time in second appeal. There was no pleading nor any issue nor the defendant No. 2 did raise this point either before the trial court or before the first Appellate Court. In support of his contention he has referred to a decision of this Court in Promode Kumar Pandit v. Mrityunjoy Mukherjee and Anr. reported in : AIR1967Cal354 wherein it has been held that a point which is not a pure question of law but depends on facts as well and which was not taken in the courts below, cannot be entertained in second appeal. There is substance in this contention which must be accepted. The point raised by Mr. Das Gupta as to waiver is not a pure question of law but is a mixed question of law and facts. There is neither any evidence nor any admission that the erstwhile landlord had full knowledge of the alleged sub-tenancy or that the sub-tenancy was created as early as in 1965. Specific defence case was that the defendant No. 2 himself was a direct tenant under the erstwhile landlord. No alternative case of waiver was taken nor this point was urged in the courts below. The point being not a pure question of law but depending on facts as well, cannot therefore be urged for the first time in second appeal.
9. The contention of Mr. Das Gupta must be dismissed on merits also. In the case of Pulin Behari Pal v. Mahadeb Dutta and Ors., reported in : AIR1981Cal61 it has been held that the landlord does not waive his right to get a decree Under Section 13 (1) (a) of the West Bengal Premises Tenancy Act because he accepts the rent from the tenant knowing fully well that the tenant has sublet the premises in question without the previous consent of the landlord as incumbent Under Section 13 (1) (a) of the Act. On difference of opinion between N. C. Mukherji, J. and S. M. Guha, J., as Their Lordships then were, the matter was referred to P. K. Banerjee, J., as His Lordship then was. Agreeing with the view of N. C. Mukherji, J., P. K. Banerjee, J. held upon a consideration of the provisions of Sections 23 and 24 of the West Bengal Premises Tenancy Act that if a suit is filed on any other ground except that of default, the acceptance of rent will not operate as a waiver of notice to quit given to the tenant by the landlord. The question of waiver is not at all relevant except where the matter comes within the meaning of Sections 23 and 24 of the 1956 Act.
10. Mr. Das Gupta has sought to rely on the Supreme Court decisions in A.S. Sulochana v. C. Dharmalingam reported in : [1987]1SCR379 and Dhirendra Nath Gorai and Ors. v. Sudhir Chandra Ghosh and Ors., reported in : [1964]6SCR1001 . None of these decisions is applicable to the facts of this case or can be said to override the decision of this Court reported in : AIR1981Cal61 referred to above. In the case of A. S. Sulochana (supra) the admitted facts were-
(1) The father of the appellant had granted a lease in favour of the father of the respondent prior to 1952 (exact date or year is not on record).
(2) The father of the appellant as also the father of the respondent both have died.
(3) The respondent was accepted as a tenant upon the death of his father in 1968.
(4) The suit for eviction giving rise to the present appeal was instituted for eviction on the ground of unlawful sub-letting in 1970 by the appellant, who had inherited the property from his father.
(5) Admittedly, neither the appellant nor the respondent has any personal knowledge about the terms and conditions of the original lease granted by the father of the appellant in favour of the father of the respondent No. 1.
(6) So also neither the appellant nor the respondent has any personal knowledge in what circumstances the father of the respondent had created sub-tenancy in favour of Kuppuswamy Sah way back in 1952, eighteen years before the institution of the suit.
(7) Neither the appellant nor the respondent has any personal knowledge as to whether or not the sub-tenancy was created with the written consent of the landlord eighteen years back in 1952.
The offending sub-letting was not by the tenant but by his or predecessor. On these facts the Supreme Court has held that the appellant could not successfully evict the respondent on the ground of having created an unlawful sub-tenancy within the meaning of Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act (1960). It has further been held that in order to attract Section 10(2)(ii)(a) of the Act, offending sub-letting must be by a tenant sought to be evicted himself, and not by his predecessor (deceased father of tenant). The sub-letting was made by the late father of the tenant and the tenant could not be said to have been violated the provisions of Section 10(2)(ii)(a) of the Act.
11. The facts of this case are entirely different. Unauthorised sub-tenancy was created by the tenant himself namely, defendant No. 1, who is sought to be evicted. Moreover, there is nothing on record to show that the erstwhile landlord had clear knowledge of the sub-tenancy. There is not even evidence to show that the erstwhile landlord used to reside in a part of the suit building or nearby and was expected to have knowledge of the sub-tenancy. There is also no clear finding that the sub-tenancy was created in 1965 and it cannot be said that the erstwhile landlord remained silent without taking any steps for 22 years till purchase by the plaintiff in June, 1987. The lower Appellate Court referred to the year 1965 only to decide whether the defendant No. 2 is a post Act sub-tenant and he has observed that on his own showing the defendant No. 2 was not in the suit premises before 1965 and he must therefore be a post Act sub-tenant. The suggestion put to the plaintiff that the defendant No. 2 has been living in the suit premises since 1965 has been denied. There is no clear evidence nor any clear finding as to the approximate date of creation of the sub-tenancy.
12. The Supreme Court decision in the case of Dhirendra Nath Gorai and Ors. (supra) also docs not help the appellant in the least. The point for decision in that case was whether non-compliance with Section 35 of the Bengal Money Lenders Act renders the sale a nullity. The Supreme Court has held that sale is not a nullity for non-compliance with Section 35 of the Act. It has been observed that objection regarding non-compliance with sec lion 35 in specifying the property to be sold is a defect in the sale proclamation within the meaning of second proviso to Order 21 Rule 90 of the Code of Civil Procedure. It follows that an objection that the sale proclamation did not conform to Section 35 of the Bengal Money Lenders Act cannot avail a judgment-debtor in an application under Order 21 Rule 90 of the Code of Civil Procedure if he was present at the drawing up of the sale proclamation did not raise any such objection at the time nor can it avail a judgment-debtor, who after receiving notice, did not attend at the drawing up of the sale proclamation at all. It has been observed by the Supreme Court that the safest rule to determine what is irregularity and what is nullity is to see whether the party can waive, the objection. If he can waive it, it amounts to an irregularity, if he cannot, it is a nullity. A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a Court jurisdiction where there is none. Where such jurisdiction is not wanting, a directory provision can be waived but mandatory provision can be waived if it is not conceived in the public interest but in the interest of the party that waives it. Even it is assumed that the provision of Section 35 of the Act is mandatory, on a true construction of that Section, it is clear that it is intended only for the benefit of the judgment-debtor and therefore he can waive the right conferred on him under that Section. It is clear, therefore, that the decision of this case is not at all relevant for our purpose.
13. In fact, this case stands even on a stronger footing then the case of Putin Behari Pal, referred to above. In this case there is no evidence or finding that the landlord had full knowledge of the unauthorised sub-tenancy and he accepted rent with that knowledge.
14. In the result, the appeal fails and the same is dismissed. The judgment and decree of the lower Appellate Court are hereby confirmed. I make no order as to costs in this appeal.
15. On the verbal prayer on behalf of the appellant, the execution of the decree will remain stayed for two months in order to enable the appellant to move the Supreme Court against this judgment. The certified copy of the judgment and decree, if applied for, be supplied to the appellant within 15 days of the application.