- (1.) Defendant tenant is the appellant against this judgment of confirmation. The respondent No.1 as the plaintiff filed a suit for eviction against the present appellant defendant tenant (defendant No.1) as well as against the proforma respondent No.2 (defendant No.2) alleged to be a sub-tenant. According to plaintiff, she purchased the suit property from one Latikabala Sadhukhan through a registered kobala dated 17 th January, 1983. Defendant No.1 was a tenant in respect of the suit premises under Latikabala Sadhukhan who issued a letter of attornment to the tenant. In spite of receipt of letter of attornment, defendant tenant did not pay rent. He defaulted in payment of rent since February, 1983. He also illegally sub-let and transferred suit premises to the defendant No.2 without the knowledge and written consent either of the plaintiff or of earlier owner landlord. Suit premises was in exclusive possession of the defendant No.2. Accordingly, plaintiff landlord issued a notice to quit to the defendant tenant on the ground of default as well as sub-letting which was duly received by the defendant tenant. As defendant tenant did not vacate the suit premises in spite of receipt of notice, the suit for eviction was filed.
(2.) Defendant No.1 contested the suit by filing written statement denying ownership of the plaintiff in the suit premises and contending, inter alia, that both the defendant No.1 and 2 were joint tenants under Jitendra Nath Sadhukhan, husband of Latikabala Sadhukhan. Both defendant No.1 and 2 were living in joint mess and the tenancy was a joint tenant though the rent receipt was issued in the name of the defendant No.1. The allegation of sub-letting was false and the suit was liable to be dismissed. Several issues were framed including one issue as to whether defendant No.1 sub-let the premises of the defendant No.2. Learned Trial Court granted decree of eviction only on the ground of sub-letting which was confirmed by the learned court of appeal. At the time of hearing of this second appeal, the following substantial question of law was formulated:- (a) Whether learned Courts below substantially erred in law by holding that the suit premises has been sub-let by defendant No.1 in favour of the defendant No.2 without considering the established legal test. Mr. S. P. Roychowdhury, learned senior counsel for the appellant tenant, submits that plaintiff landlady purchased the suit property on 19 th January, 1983 and filed the suit for eviction on the ground of sub-letting and other grounds in March, 1985. He further submits that admittedly the defendant tenant took tenancy of the suit premises long before said purchase of the plaintiff. According to him, plaintiff had no personal knowledge as to the terms of induction of the defendants in the suit premises. He further submits that no exact date, month or year of alleged sub-letting by defendant No.1 to the defendant No.2 was pleaded in the plaint. He further submits that plaintiff's vendor namely Latikabala Sadhukhan was not also examined to establish the plaintiff's case that defendant No.1 was the sole tenant and that he sub-let the suit premises to the defendant No.2 without the knowledge and consent of said Latikabala Sadhukhan, the earlier landlady. It is further submitted by Mr. Roychowdhury that in order to establish sub-letting the landlord has to establish that the alleged sub-tenant was in full or in exclusive control of the suit premises and that too, against some consideration. According to him, in the case in hand, the plaintiff landlord failed to state that wherefrom and whenfrom the alleged sub-tenancy started.
(3.) He further submits that there is also no iota of evidence to show that the defendant No.2 was in exclusive possession of the suit premises or that any consideration was passed for said possession of the defendant No.2 in the suit premises. iN support of his contention Mr. Roychowdhury refers the case of Dipak Banerjee vs. Smt. Lilabati Chakraborty, 1987 4 SCC 161, wherein it was held that in order to prove sub-tenancy, it has to be established that the alleged sub-tenant was in exclusive possession of the suit premises and that tenant had no control over the same, and that said right to occupy the premises was in lieu of payment of some consideration of rent. Mr. Roychowdhury also refers to a case law reported in Deb Kumar (died) Through LRS. vs. Swaran Lata (Smt. and Ors), 1996 1 SCC 25 ( wherein it was held that the conclusion on the question of sub-letting is a conclusion on a question of law derived from findings on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration and that the burden of making a case of sub-letting is on the landlord / landlady. He further refers to another case law reported in Dipak Banerjee vs. Lilabati Chakraborty, 1987 AIR(SC) 2055. In this connection, Mr. Roychowdhury submits that the learned courts below wrongly held that the defendant No.2 being nephew of defendant No.1 was a sub-tenant under defendant No.1 without applying the correct legal tests and that said findings of fact being arrived at without applying correct test is liable to be scrutinized and explored in the second appeal. In support of his contention, he refers the case of Budhwanti & Another vs. Gulab Chand Prasad, 1987 AIR(SC) 1484. In the said case, it is held by the Hon'ble Court that in the second appeal, the finding of fact even if erroneous will generally not be disturbed but where it is found that the finding is vitiated by application of wrong test or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal patently erroneous findings in order to render justice to the party affected by the erroneous finding.;