Tarun Kumar Gupta, J.
This second appeal is directed against the judgment and decree dated 13th June, 2001 passed by the learned Additional District and Sessions Judge, 5th Court, North 24-Parganas, Barasat in Title Appeal No.140 of 1996 affirming the judgment and decree of eviction dated 28th June, 1996 and 4th July, 1996 passed by the learned Munsif, 4th Court at Sealdah in Title Suit No.282 of 1990.
Respondent as plaintiff filed a suit for eviction against the appellant-tenant, alleging default, and subletting after sending a notice under Registered Post with AD which returned with postal remarks ‘refused’.
The appellant/defendant contested the said suit alleging, inter alia, that no notice was properly served. It was further case that though the defendant was residing at Andul, Howrah but he executed a power of attorney in favour of his brother Amalendu Bhusan Sengupta for looking after the tenanted premises on payment of rent. It is further case of the defendant-tenant that elder brother of the defendant along with other brothers were in joint mess being members of a joint family and hence belonged to the family of the defendant and hence there was no subletting.
On the basis of the pleading of the parties, learned trial court framed several issues including one issue as to the validity and proper service of the notice. Another issue was framed as to whether the defendant was guilty of subletting. Learned trial court decreed the suit for eviction on the ground of subletting. It was confirmed by the lower appellate court by the impugned judgment and decree.
The appeal was heard on the following substantial question of law:-
(1) Whether the learned courts below substantially erred in law to hold that the defendant was guilty of subletting the suit premises without applying the correct legal test.
Mr. Hiranmoy Bhattacharya, learned counsel for the appellant, submits that the plaint was conspicuously silent about the name of the alleged sub-tenant as well as the specific date of starting of sub-tenancy and that in view of vagueness in the plaint learned Courts below should not have passed any decree on the ground of subletting.
Mr. Asit Baran Raut, learned counsel for the landlords, on the other hand, submits that the defendant / tenant did not make any such allegation of vagueness in his written statement and rather specifically admitted that presently his elder brother Amalendu Bhusan Sengupta was residing in the suit premises for looking after the suit premises on the strength of a power of attorney executed by the appellant tenant. He further submits that both the parties also led evidence on that score and hence it cannot be said that the defendant/tenant was prejudiced in any way for said alleged vagueness in the plaint.
I have considered the submissions made by learned counsels of the parties on this point. There is no scope of taking this point at the time of hearing of the second appeal which can be heard only on a substantial question of law which has already been formulated. However, it appears from the written statement as well as from the evidence on record that the defendant tenant took a specific stand about the occupation of the suit premises by his elder brother Amalendu Bhusan Sengupta and that defendant was not misled in any way. Actually a question of prejudice may arise when due to lack of particulars, the defendant / tenant failed to understand or appreciate the nature of the charge brought against him by his adversary in the pleadings and accordingly failed to meet the same. But in this case this did not happen.
Mr. Bhattacharya next submits that in order to prove alleged sub-tenancy the landlord is required to establish that the alleged sub-tenancy was in an exclusive possession of a portion or of the entire suit premises and that too against some consideration. He further submits that the onus is upon the plaintiff landlord to establish that the tenant has lost control in the suit premises and that a third party was in exclusive possession of the same and that too on passing of consideration. He further submits that it was a specific defence case in the pleadings as well as in the evidence that the defendant tenant along with his brothers and sisters and mother came to the suit premises as a joint family living in joint mess and that though defendant tenant had to reside in Andul, Howrah in connection with his service but he did not lose control over the suit premises at any point of time and that presently his elder brother Amalendu Babu was residing in the suit premises with his family members and that said elder brother cannot be said to be a sub-tenant.
In support of his contention he has referred a case law reported in (1987) 4 SCC page 270 (Md. Salim vs. Md. Ali) wherein a person was entrusted through a power of attorney to look after the existing business of the tenant in the suit premises for a specified period. It was held that in absence of provision in the agreement for parting of exclusive possession of the premises the agreement was for management of the tenant’s business only and that it did not create any sub-tenancy. Unfortunately, the facts of said case law are quite different from the facts of the present case and as such it has no applicability in this case. Mr. Bhattacharya has also referred a case law reported in (1987) 4 SCC page 161 (Dipak Banerjee vs. Lilabati Chakraborty) wherein it was held that the person alleged to be a sub-tenant must be shown in exclusive possession in the premises over which the tenant had no control. That is a well-settled proposition of law which requires no further discussion.
Mr. Bhattacharya also refers to a case law reported in (2006) 1 SCC 524 (Kailashbhai Shukaram Tiwari vs. Jostna Laxmidas Pujara and another) to impress upon this Court that the elder brother of the defendant/tenant being head of the joint family was certainly a family member of the tenant and hence his possession cannot be treated to be a possession of sub-tenant. In said referred case it was held by Hon’ble Court that in absence of a statutory definition of family no straight jacket formula can be laid down as to who can be treated to be a member of tenants’ family and the question has to be decided on facts and circumstances of each case. Mr. Bhattacharya also referred a case law reported in 1986(1) All India Rent Control Journal page 240 (Smt. Anant Kumari vs. Prem Pal Chatrath and another) wherein it was held that when tenant shifted to Chandigarh but his younger brother who was residing with him resides in the suit premises he has to be treated as a member of the family of the tenant and not as a sub-tenant. It appears that said referred case relates to the Delhi Rent Control Act, 1958. It appears that said Delhi case relied on a judgment of a Supreme Court in Baldev Sahai Bangia vs. R. C. Bhasin as reported in 1982 (2) RCJ 98 wherein the Supreme Court held that “the word family has been defined in various legal dictionaries and several authorities of various Courts and no Court has ever held that mother or a brother or a sister who is living with the older member of the family would not constitute the family of the said member. Mr. Bhattacharya has next referred a case law reported in CAL. LT. 1993(1) HC 34 (Debraj Wadhera vs. Md. Ashraf Ali) wherein this Court held that when the younger brother was inducted as a tenant in the suit premises and that later on after joining his elder brother just by way of courtesy the tenancy was transferred in the name of his elder brother and thereafter when elder brother left for abroad leaving his younger brother in the suit premises as a constituted attorney then it cannot be said that said younger brother was a sub-tenant. The facts of the referred cases do not tally at all with the facts of the present case. In the case in hand, the tenancy was standing in the name of younger brother though he claimed to reside in the tenanted house along with his elder brother Amalendu Babu and other brothers and sisters in a joint family.
Mr. Raut, on the other hand, submits that it came out from evidence on record that appellant tenant has shifted to his place of office i.e., at Andul, Howrah along with his family members for long and that he was residing there in a rented house and his wards are studying in local schools. He further submits that it also came out during evidence that the names of the appellant /tenant and his wife have been struck off from the voter list of the constituency of the suit premises and rather their names were appearing in the voter list of their present place of residence i.e., at Andul, Howrah. He further submits that had the tenant retained his possession in the suit premises then there was no question of striking out his name from the voter list of that locality. In this connection he further refers to the judgment of learned Courts below to show that though ration card of the tenant was lying in the address of the suit premises but there was interpolation in the name of the head of the family in said ration card. He submits that had there been joint family at the time of induction of the defendant/tenant in the suit premises then certainly the tenancy would have been taken in the name of his elder brother Amalendu Babu being ‘karta’ of the family and not in the name of the defendant tenant who is younger to him. According to Mr. Raut the concurrent findings of learned Courts below on the point that defendant tenant lost control over the suit premises which is presently in exclusive possession of his elder brother Amalendu Babu and that execution of power of attorney by appellant tenant in favour of his elder brother Amalendu Babu was nothing but clandestine arrangement between the parties and that defendant /tenant was guilty of subletting were based on evidence and should not be interfered by this Court during hearing of the second appeal. In this connection he refers a case law reported in (2007) 1 SCC 546 (Gurdev Kaur and others vs. Kaki and others) wherein it was held by the Hon’ble Apex Court that after amendment of Code of Civil Procedure in 1976 there was no scope to act as a third Court of facts by the High Court while dealing with a second appeal under Section 100 of the Code of Civil Procedure. He also refers a case law reported in (1997) 11 SCC 334 ( S. A. Vengadamma and others vs. Jitendra P. Vora and another) wherein Hon’ble Apex Court held that had the tenant been living in the premises and his brother was living with him permissibly, then one could perhaps rule out a case of sub-letting or otherwise as transfer of interest, but when the tenant himself had vacated the premises and had gone to live elsewhere, it does not lie in his mouth to say that in leaving his brother behind the tenanted premises, he has left behind a member of his family. Unless, of course, he could have successfully pleaded that the tenancy at the inception was obtained by a joint family of which the brother was a member. It was further held in that case that said plea of joint tenancy even though raised was not accepted by the Courts below and that the very act of the tenant of vacating the premises shows that he had abandoned his interest in the tenancy in favour of his brother which virtually amounted to sub-letting.
It came out from the evidence on record that admittedly the appellant tenant started to reside at Andul, Howrah for long along with his family members. It also came out from evidence that his wards were studying in a local school in that area and that his name appeared in the voter list of the constituency which included Andul area after striking his name from the voter list of the constituency within which the suit premises is situated. All these things prima facie go to show that the defendant /tenant abandoned the suit premises and started to live at Andul with his family members. It is true that his elder brother Amalendu Babu with his family members is presently residing in the suit premises on payment of rent to the landlord on the strength of a power of attorney executed by the tenant in his favour and that receipts are being issued in the name of original tenant. Learned Courts below also observed that had there been a joint family at the time of taking tenancy in the suit premises then the tenancy would have been in the name of elder brother Amalendu Babu being ‘karta’ of the family and not in the name of the defendant / tenant. Learned Courts below further held, and rightly held, that as subletting is made behind the back of the landlord and in a clandestine manner landlord is not expected to give any evidence either, oral or documentary, regarding passing of consideration for giving exclusive possession of the suit property to a third party. As it came out from evidence on record, both oral and documentary, that the appellant tenant left the suit premises along with his family and his elder brother Amalendu Babu started to occupy the same along with his family members exclusively, the onus shifted upon the defendant / tenant to prove under what capacity Amalendu Babu started to possess the same. It is true that the defendant tenant tried to take a plea that there was a joint family and that there was joint tenancy but no explanation was given as to why the tenancy was made in his name instead of his elder brother Amalendu Babu being ‘karta’ of the family. It also came out that other brothers of the appellant tenant were residing elsewhere with the respective families. As such, the story of joint family in joint mess lost its relevancy. Learned Courts below on the basis of evidence on record, both oral and documentary, came to concurrent findings of fact that present occupant Amalendu Babu was in exclusive possession in the suit property and that defendant tenant had no possession in the suit premises and that defendant tenant was guilty of sub-letting. It is true that perhaps there was a scope of coming to an alternative finding by holding that Amalendu Babu being elder brother of the appellant tenant was in possession of the suit premises as a licensee under the defendant tenant if not as his family member but at the time of hearing of second appeal there is no scope of substituting concurrent findings of facts of learned Lower Courts by the findings of High Court being a third court of fact finding so long said finding is not perverse. I have already stated that aforesaid concurrent findings of fact by learned Courts below were based on evidence and according to the settled legal test. As such there is no scope of interference in this second appeal.
As a result, the appeal is hereby dismissed on contest.
However, I pass no order as to costs.
Office is directed to send Lower Court record along with a copy of this judgment at the earliest.
Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.