SUDHENDU NATH MALLICK,J. - (1.) THE instant second appeal is directed at the instance of the defendant/appellant the judgment and decree dated 29.11.1989 passed by the learned Additional District Judge, 8th Court, Alipore in Title Appeal No. 130 of 1987 affirming the judgment and decree of eviction dated 9.1.1987 passed by the learned Munsif, First Court, Sealdah, 24 Parganas (South) in Title Suit No. 593 of 1976. The appeal has been admitted on the question of law raised in ground Nos. (II), (III), (XI), (XIV) and (XX) taken in the memo of appeal.
(2.) THE plaintiff/respondent brought the aforesaid suit for ejectment against the defendant/appellant in respect of the suit premises under the provisions of the West Bengal Premises Tenancy Act on ground of sub-letting and reasonable requirement for the plaintiff's own use and occupation. Both the Courts below disallowed the ground of reasonable requirement for own use and occupation. It appears from the record that the plaintiff-respondent preferred a cross-objection before the Lower Appellate Court against the Trial Court's finding on the ground of reasonable requirement which was dismissed by the First Appellate Court by the impugned judgment. The only question in this appeal is whether the First Appeal Court's concurrent finding on the point of sub-letting allegedly made by the appellant is legally correct or not. It has been urged by Mr. Roychowdhury, the learned Counsel appearing for the appellant while referring to the aforesaid grounds taken in the memo of appeal that both the Court below erred in deciding the question of sub-tenancy without considering the basic tests for deciding such question for which the entire findings are vitiated, that the First Appeal Court failed to appreciate that the initial onus was on the plaintiff to prove the alleged sub-letting, that both the Courts below erred in drawing a presumption under Section 114 of the Evidence Act in favour of the plaintiff-landlord in the matter of sub- letting, that both the courts below erred in drawing a presumption under Section 114 of the Evidence Act in favour of the plaintiff-landlord in the matter of sub-letting, that both the Courts below did not take into consideration that no cogent evidence regarding sub-letting was adduced on the side of the plaintiff-landlord, that the First Appeal Court failed to appreciate that in order to constitute sub-tenancy there must be a transfer of exclusive possession from the principal or head tenant to the sub-tenant of the entire or part of the disputed premises and that there is no evidence that the suit premises was sublet by the principal tenant to some other person and that the said sub-tenant is an exclusive possession and the transfer was for valuable consideration. It has been contended by Mr. Roychowdhury that there is practically no evidence to show that the present defendant at all sublet the suit premises to his brother Bireshwar Bakshi, who has been examined as a witness on behalf of the appellant in the Trial Court. Before I take up the instant second appeal for deciding on merits I think it necessary to refer to an application filed on behalf of the present appellant for production of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure filed before the Bench presided over by D.K. Jain, J. on 16.8.1996 but at the time of hearing of this appeal by me the learned Counsel did not refer to that application and did not make any submission for any order of this Court on the same as such it would not be unreasonable to say that the said application has not been pressed by the petitioner's Advocate and as such it should be rejected, and it stands rejected. It is also worthwhile to note that while hearing a second appeal on substantial question of law High Court cannot reappreciate the evidence on record on questions of fact finally decided by the First Appeal Court. At the same time, under the provisions of section 103 of the Civil Procedure Code the High Court may if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal which (a) has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or (b) has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100. It is quite clear that a finding of fact is not liable to be reopened in the second appeal by the High Court except under Section 103. The power of the High Court while hearing the second appeal to determine a question of fact is limited to evidence on record which again must be sufficient to determine an issue of fact necessary for disposal of the appeal and which has not been determined or has been wrongly determined by the Lower Appellate Court. It is well established in law that when the subordinate Court has decided a question of fact without considering material evidence on record, the High Court is competent to decide that question. Furthermore, in an appropriate case, Appellate Court while hearing an appeal from the judgment and decree may in exercise of its powers under Section 41 Rule 24 Civil Procedure Code finally determine the suit where evidence on record is sufficient.
(3.) KEEPING the above provisions of law and the legal principles to be followed in this regard it is to be seen whether there is any lawful reason to interfere with the concurrent findings of fact made by both the Courts below. Sub-letting is one of the grounds of eviction provided under the West Bengal Premises Tenancy Act, 1956 Section 13(1)(i) which may be quoted below :- Section 13(1)(i):".....notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, viz. (a) where the tenant or any person residing in the premises let to the tenant without previous consent in writing of the landlord transfers, assigns or sublets in whole or in part the premises held by him." In the instant case the story of sub-letting is to be found in Paragraph 2 of the plaint which runs as follows :- "The defendant shifted to his house and sublet the premises in suit without the consent of the plaintiff". Mr. Roychowdhury has rightly contended that though the said paragraph may be praised for its brevity but its purposeful vagueness has also to be condemned. It is surprising to find that no necessary particulars of the alleged sub-letting have been given in the said paragraph. It is the not stated when such sub-letting was made, under what circumstances and to whom. It may be said that the sub-tenant may not always be known to the landlord. But in the instant case the tenant's own brother is alleged to be the sub-tenant in the evidence given by the plaintiff before the Trial Court. The plaint was filed on 27.8.1976. The plaintiff/respondent examined himself as a witness on 6.8.1986. He says in his examination in chief that the defendant has left the suit premises and his brother lives there, that his brother is not a tenant in respect of the suit premises and that at the time of the induction his brother was not there. He has denied the suggestion in his chief that the defendant's brother came there at the time of induction and that they live together. In his cross-examination he says that he knows Bireshwar Bakshi for the last 15/20 years as he came to his elder brother and that the talk of induction was held in 1960. So, admittedly the plaintiff knew Bireshwar Bakshi, D.W.1 the alleged sub-tenant since 15/20 years before he deposed in the Trial Court on 6.8.1986. So, on his own evidence he knew Bireshwar Bakshi from 1956/1961. In that position there is no reason why the plaintiff should remain silent and should not disclose in plaint that the premises was sublet to defendant's brother Bireshwar Bakshi. Parties are not required to disclose evidence in their pleadings. But, in order to make out a case so that no one is taken by surprise at the time of evidence material particulars must be given which are within their knowledge. The defendant's case on the above cryptic ground of subletting is to be found in Paragraphs 7 and 9 of the written statement. It is stated there that his brother Bireshwar Bakshi has been residing there for more than 17/18 years (the written statement was filed on 23.4.1977) and that the said Bireshwar used to pay rent to the plaintiff and the plaintiff used to accept rent from the said Bireshwar Bakshi and issued rent receipts to him. This takes us to 1960 the year of creation of tenancy in respect of the suit premises. It has been further stated in Paragraph 9 that though the tenancy stood in the name of the defendant, the defendant never resided there even for a single day, that he used to reside another house nearby as a tenant and that his brother Bireshwar Bakshi has been residing in the suit premises from very inception as a monthly tenant. It is further alleged that previously rent receipts were used to be issued in the name of Bireshwar Bakshi but subsequently due to some difference of opinion between the brother the receipts was issued in the name of the defendant although rents were being paid by Bireshwar. Accordingly the defence is, the question of sub-letting never arises or arose. ;