- (1.) 1. The present appeal from the appellant decree is directed against judgment dated 5th of July 1994 and the decree thereof passed in T. A. No. 74 of 1993 by the Asstt. District Judge, Baruipur, through which the learned Judge dismissed the appeal and affirmed the judgment and decree passed by the Munsif, 2nd Court, Baruipur in T. S. No. 188 of 1984.
(2.) The case of the plaintiffs/respondents in brief is that the defendant No. 1 was a monthly tenant at the rate of Rs. 18/- payable according to Bengali Calendar month under the plaintiffs. The defendant No. 1 defaulted in payment of rent since the month of Falgun, 1387 B.S. It was also alleged that he sublet the suit premises to defendant No. 2 without the knowledge and consent of the plaintiffs. The plaintiffs also reasonably required the suit premises for their own use and occupation. For the aforesaid reasons, the plaintiffs served a notice under Section 13(6) of the West Bengal Premises Tenancy Act to the defendant No, 1 by registered post with A/D, who refused to accept the same and when such defendant failed to vacate and quit in terms of the notice the plaintiffs were compelled to file the suit. Defendant No. 2 Tapan Chakraborty contested the suit by filing Written Statement. His case is that after the disposal of T. S. No. 121 of 1984 of the 1st Court of Munsif, Baruipur, for eviction of the tenant the plaintiff No. 1 Ram Hart Mondal on receiving from the defendant No. 2, a sum of Rs. 5,000/- as Selami created a newtenancy in favour of the defendant a monthly rent of Rs. 19/- according to English Calendar and granted rent receipt. Therefore, defendant No. 2 was not a sub-tenant underdefendant No. 1 as claimed by the plaintiffs. So the plaintiffs were not entitled to get any decree for eviction as defendant No. 2's tenancy was never determined. The learned trial Court found that it was not the case of the contesting defendant No. 2 that the defendant No. 1 was ever surrendered or relinquished his tenancy in favour of the landlords. The learned trial Court further found from Ext. 4, a certified copy of the judgment in the earlier ejectment suit No. T. S. 121 of 1984 that the plaintiffs failed to get a decree for eviction of the defendants due to the defect in the notice under Section 13(6) of the W.B. Premises Tenancy Act and in that case the plea of surrender of tenancy in the month of June, 1975 by defendant Basudeb Mondal was turned down on the ground that relinquishment of tenancy could not be a unilateral transaction and it could only be in favour of the lessor by mutual agreement between them. It was held that the surrender must be.by way of delivery of possession by the tenant to the landlord. The learned trial Court considered the two rent receipts marked Exts. B and B(1) and observed that if those documents were genuine rent receipt granted by plaintiff No. 1in favour of the defendant No. 2 even then it could not be said that a valid tenancy was created by those rent receipts in favour of defendant No. 2. After considering the entire relevant facts and circumstances of the case, the learned trial Court further held that the status of the contesting defendant No.2 in relation to the suit premises was nothing but that of a sub-tenant. Thereafter on consideration of the other evidence he further found that the notice in question was legal, valid and sufficient and the same was duly served upon the tenant that is to say defendant No, 1. He also found that in the facts and circumstances of the case were able to establish that they were entitled to get a decree of eviction on the grounds of sub-letting and default and the defendant was not entitled to get protection under Section 17(4) of the said Act. The learned Court thereafter granted a decree for recovery of the vacant possession of the suit premises after evicting the defendant from such premises. The learned appellate Court below found that there was material contradiction regarding payment of Selami of Rs. 5,000/- (five thousand) and regarding the granting of rent receipts Exts. B and B (1). He came to the ultimate conclusion that the tenancy of the defendant No. 1 had not been extinguished and that still subsisted and in that background there could not be any fresh tenancy in favour of the defendant No. 2 as claimed by the contesting defendant. He further found that on consideration of the material evidence on record, it was established that defendant No. 1 the tenant was a defaulter and sublet the suit premises to the defendant No. 2. He dismissed the appeal by holding that the learned Munsif correctly decided point in issue and he had no reason to interfere with such judgment.
(3.) At the time of admission of the appeal, the learned Division Bench did not formulate any question of law, for consideration in the second appeal. At a later state on July 16, 2002 the learned Single Judge who first took the appeal for hearing and formulated the following question as the substantial question of law to be decided in the appeal:- Whether or not the tenancy of the defendant No. 1 had been determined by virtue of the provisions of Section 111 (f) of the Transfer of Property Act. At the time of final hearing of the appeal the said point has been recast by adding the following words : "and if so whether the instant suit is maintainable.";