S.N. Bhattacharjee, J. - (1.) In this appeal the substantial question of law, in the facts and circumstances of this case, may be formulated as under: (i) Whether the learned first appellate court committed error of law in coming to a finding that the defendant/appellant is guilty of sub-letting without appreciating that the appellant did not surrender his legal possession by handing over exclusive possession of the suit premises in favour of the sub-tenant and without taking any compensation from him; (ii) Whether the findings of the courts below that the tenant had left the suit premises sometime in 1974 for Izol to live with her husband thereby surrendering the tenancy in favour of the sub- tenant is based on no evidence and hence are perverse.
(2.) The respondent herein filed Title Suit No. 585 of 1978 for eviction against the appellant/tenant from the suit premises on the ground of unauthorised sub-letting in favour of her elder sister and for default in payment of rent. The defence was that the defendant shifted the suit premises at 22, Nasiruddin Road, Calcutta from her earlier residence at 12, Syed Amir Ali Avenue, Calcutta in 1970-71 as a tenant along with elder sister Mrs. Anna Tibi and children of the latter as members of one family. The tenancy was taken in the name of the defendant for the use and occupation of the defendant as also her sister to the knowledge of the landlady. The defendant thereafter got married and her elder sister also took her second husband. Their mother also lived with them. With the growth of family the defendant required additional accommodation and shifted to 54, Elliot Road without sacrificing the tenancy in the suit premises. Therefore, according to the defendant, the elder sister was never a sub-lessee under the plaintiff.
(3.) On the basis of evidences of record the Id. trial Judge found, "It is quite usual for two unmarried sisters to live together but when one of them on getting married shifts her to a separate tenanted matrimonial house and then leaves for Mizoram where her husband carried on business the joint family ceases to subsist and parting of possession exclusively in favour of the elder sister may be legally interpreted to be assignment of tenancy of sub-letting although there may not be evidence of receipt of any consideration by the person so relinquishing possession exclusively." The learned trial Judge further found: "Admittedly, just after getting married the defendant took tenancy of a different premises at 54, Elliot Road, Calcutta. The defendant's evidence that after marriage she and her husband would sleep at 54, Elliot Road and take food at the suit premises with her elder sister Miss Tibi is totally unacceptable inasmuch as 54, Elliot Road is not at all adjacent to the premises No. 22, Nasiruddin Road. The plaintiff produced electoral rolls (Ext. 4) to show that in 1984 Constituency roll the defendant's name does not appear under the address of the suit premises and in 1982 Electoral Roll her name does find berth under the address at 54, Elliot Road, Calcutta. The defendant's evidence that in 1984 she gave up possession of the tenanted premises at 54, Elliot Road as her husband moved outstation in connection with business may not be disbelieved but that cannot exonerate her of charges of sub-letting or parting with exclusive possession because firstly conduct and intention of the parties clearly reveal that with the defendant's moving to 54, Elliot Road soon after marriage she severed her jointness with Mrs. Anna Tibi thereby resulting in the end of the presumption that tenancy was taken for the use and benefit of both the sisters and secondly it is not imperative on the part of the landlord to prove that sub-tenancy must subsist till the institution of the suit or at the time of delivery of judgment. Regard being had to the facts and circumstances of this case as well as evidence on record, I am of the judgment that the defendant has exclusively parted with possession and sub-let and transferred the tenancy in favour of Mrs. Anna Tibi who ceases to belong one family in 1974.";