- (1.) Heard the learned Advocates appearing for the parties.
(2.) This Second Appeal has been preferred by defendant of Title Suit No. 26 of 1982 challenging the judgment and decree dated 20th November, 1987 passed by learned Assistant District Judge, 1st Court at Alipur in Title Appeal No. 85 of 1987, who affirmed the judgment and decree dated 2nd December, 1986 passed by learned Munsif, 2nd Court at Sealdah in Title Suit No. 26 of 1982. Appellant before this Court was the tenant in respect of a suit premises. The plaintiff/landlord filed the suit for ejectment and mesne profit on three grounds namely : (i) the defendant was a defaulter in payment of rent; (ii) defendant had sublet the entire suit property without taking any consent in writing from the plaintiff and the defendant was residing elsewhere; and (iii) the sub-tenants was using the residential premises for business put-pose without consent of the plaintiff;
(3.) The learned Trial Court decreed the suit in favour of the landlord/plaintiff on assessing the material evidence on record. The defendant/tenant took a stand that after constructing his own house though defendant shifted himself and other members of his family in the said house but in the tenanted premises the defendant's married daughter with her husband and the widowed sister were living and accordingly the case of sub-tenancy as alleged by the plaintiff/landlord was not legally tenable. Learned Trial Court on considering the material evidence came to the conclusion that the defendant/tenant parted with the possession of the suit premises and occasional visits even everyday for certain hours to the tenanted premises to look after the family for married daughter, would not be considered as an evidence of possession of the suit premises by the tenant/defendant. Learned Trial Court further held that son-in-law in fact was utilizing the suit premises by living there in separate mess with his wife, the daughter of the defendant/tenant and the said son-in-law was working elsewhere. It has accordingly been held by the learned Trial Court that the suit premises was sublet to the son-in-law and a decree of eviction was passed. An appeal was preferred being Title Appeal No. 85 of 1987 by the defendant/tenant challenging the judgment and decree of Learned Trial Court. The Appeal Court confirmed the judgment and decree passed by the Trial Court upon holding, inter alia, that from the material evidence on records since it appears that the tenant/defendant patted with the possession of the suit premises and thereby was living in his own house separately, subletting as alleged by the plaintiff/landlord was proved. Learned 1st Appellate Court considering the entire evidence and material on records, analyzed the issue in details . In this Second Appeal, the only point has been thrashed by the appellant/tenant that even if the daughter-in-law after marriage was living in the tenanted premises exclusively, it cannot be said as parting with the possession of the suit premises by the original tenant her father. It has been contended by the learned Advocate for the appellant that the widowed sister and the daughter of original tenant all through were living with the defendant/tenant in the suit premises and in view of dirth of accommodation, the defendant/tenant on constructing his own house kept some members of his family that is the widowed sister and the married daughter with her husband, in the tenanted premises, which never can be said as a case of subletting of the suit premises. On hearing the parties, this Court, formulated substantial questions of law by the order dated 3rd January, 2003 to this effect : "1. Whether on the facts and circumstances of this case, the daughter who was residing from the pre-marriage stage with the father, if allowed to reside by the father/tenant even after marriage in the tenanted premises, would be attracted the wrath of the provision of law under Section 3(1)(a) of the West Bengal Premises Tenancy Act, on the ground of subletting and/or transfer and/or assignment of the tenanted premises to the married daughter and/or to the son-in-law and whether the widowed sister who was living in the tenanted premises with the brother/tenant, if still resides in the same premises, would be considered as a sub-tenant in terms of the said provision ? 2. Whether on the changed circumstances, after the death of the original tenant, the appellant, when married daughter has been substituted as appellant in the instant appeal as legal heir of the original tenant, provision of Section 2(h) of the West Bengal Premises Tenancy Act, would be applicable to consider the married daughter as a tenant in respect of the suit premises ?";