Holding

The landlord failed to prove abandonment or transfer of the tenancy; therefore, no sub‑letting occurred and the appeal is dismissed.

Summary

The landlady (appellant) sued the partnership firm W.B. Engineering Co. for eviction on the grounds of personal use and alleged sub‑letting of a residential premises let under the West Bengal Premises Tenancy Act, 1956. The tenancy began on 1‑Dec‑1965 with the firm as tenant; an employee, Mr. Tahilian, occupied the premises from the start and later became the sole owner after the firm dissolved. The trial court granted eviction for personal use but rejected the sub‑letting claim; the first appellate court set aside the personal‑use finding but upheld the trial court’s view that sub‑letting was not proved. The High Court dismissed the landlady’s second appeal, holding that no substantial question of law arose. The Supreme Court examined the sub‑letting issue, holding that to establish sub‑letting the landlord must prove abandonment or transfer of the tenancy, which was absent as the tenancy remained with the firm and Mr. Tahilian was occupying as the firm’s employee and later owner. Consequently, the appeal was dismissed.

Issues considered

Whether the landlord proved the existence of sub‑letting under Section 14 of the West Bengal Premises Tenancy Act, 1956.
Whether the relationship of the occupant (son‑in‑law of a partner) affects the characterization of sub‑letting or family tenancy.
Whether the ground of personal use and occupation requires proof of necessity by the landlord.

Legislation cited

West Bengal Premises Tenancy Act, 1956s. 13(1)(a), s. 14(1)

Subjects

rent controlevictionsub‑lettingWest Bengal Premises Tenancy Actpartnership dissolutiontenancypersonal uselandlord‑tenant

Judgment

A LABANY A NEOGI THROUGH LRS., POWER OF ATTORNEY
HOLDER SHRI DR. SUBHASIS NEOGI
v.
W.B. ENGINEERING COMPANY

SEPTEMBER 7, 1999
B
[V.N. KHARE AND S.N. PHUKAN, JJ.]

Rent Control and Eviction:

C West Bengal Premises Tenancy Act, 1956: Section 14.

Sub-letting-Proof of-Landlord inducted partnership firm as tenant
for residential purposes-Employee of said firm, who was also the son-in-law
of one of the partners, occupied the house as tenant right from the inception
of tenancy-Later said firm dissolved and employee became its sole owner-
D Held: To establish sub-letting abandonment or transfer of tenancy must be
proved-Since this is not the case, sub-letting not established-Further, the
fact that tenant is the son-in-law is of no consequence since he is not
claiming tenancy as a son-in-law but as owner of the firm-High Court
rightly dismissed second appeal as no substantial question of law involved
E The respondent-partnership firm was a tenant of the suit premises
belonging to the appellant-landlady. The tenancy was for residential purposes.
T, who was an employee of the firm and also the son-in-law of one of the
partners, was in occupation of the suit premises right from the inception of
the tenancy. Subsequently partnership firm was dissolved and T became the
F sole owner of the firm and continued to reside in the suit premises with his
family.
The appellant filed a suit for eviction on the grounds of personal use
and occupation and sub-letting. The Trial Court decreed the suit on the
ground of personal use and occupation only. The ground of sub-letting was
G rejected. However, the first appellate court set aside the decree on the ground
that the appellant failed to prove that 'the suit premises were required for
personal use and occupation. The High Court dismissed the second appeal
on the ground that no substantial question of law was involved. Hence this
appeal

H Dismissing the appeal, the Court
228
...
LABANYA THROUGH LRS. v. W.B. ENGG. CO. [PHUKAN, J.] 229
HELD: 1.1. To establish sub-letting, the landlady has to prove A
abandonment or transfer of interest in favour of another person. In the
instant case, the tenancy was between the landlady and the respondent which
was originally a partnership firm and from the records of this case, it
transpires that T became the sole owner. The original tenancy,was for the
purpose of residential accommodation of the firm and right from the inception
of the tenancy Twas in occupation of the suit premises. Therefore, there was B
no abandonment or transfer of the tenancy by the respondent-firm, the
tenant. (232-C-D]

1.2. Further, T is not claiming tenancy in his capacity as a son-in-law
but as an owner of the firm. The High Court rightly dismissed the second
appeal as no substantial question of law was involved. (232-G; 231-A]
c
Pu/in Beshari Lal v. Mahadeseb Dutta, (1993) 1 SCC 629~ referred to.

S.A. Vengadamma v. Jitendra Vor~ [1997) 11 SCC 334, held inapplicable.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9127 of D
1996.
From the Judgment and Order dated 15.9.95 of the Calcutta High Court
in S.A.T. No. 1654of1995.

Rakesh Dwivedi, Himanshu Munshi, Anip Sachthe and Braj Shiv Rajesh E
Roshan Agrajit for the Appellant.

Hardev Singh and Ms. Madhu Moolchandani for the Respondent.

The Judgment of the Court was delivered by

PHUKAN, J. This appeal is by the landlady against the judgment and F
order of the High Court of Calcutta in SA No. 709 of 1995. By the impugned
judgment, the High Court dismissed the second appeal filed by the present
appellant against the judgment of the Lower Appellate Court namely Assist8:Jlt
District Judge at Sealdah in Title Appeal No. 58/91.
G
The Lower ·Appellate Court set aside the judgment of the Trial Court
namely Third Munsiff Sealdah in Title Suit No. 523/81. The Appellant filed a

-- suit for ejectment and mesne profit against the respondent on the grounds
· - of personal use and occupation, subletting and other grounds. In the present
appeal only above two grounds have been urged, namely, subletting and
bgnafide requirement. H
230 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A The Trial Court decreed the suit on the ground that the suit premises
were required for personal use and occupation by the landlady. The ground
of subletting was rejected .

The Lower Appellate Court reversed the findings of the Trial Court on
the ground that the landlady failed to prove that the suit premises were
B required for personal use and occupation. It may be stated that a cross appeal
was also filed by the landlady in respect of the findings of the Trial Court
regarding subletting, which was dismissed.

The High Court took note of the fact that the Lower Appellate Court
has recorded that the family of the landlady consists of four members and one
C child and total rooms in the occupation of the landlady were nine. The High
Court also took note of the fact that the Lower Appellate Court extensively
dealt with the question of user of the above rooms and the fact that an
alternative accommodation was available to the landlady adjacent to the suit
property. Regarding the question of subletting the High Court refused to
D interfere with the findings of the courts below· as there was no substance to
hold in favour of the appellant landlady on the ground of subletting . The
High Court was further of the opinion that no substantial question of law was
involved and therefore, dismissed the appeal.

Heard Mr. Rakesh Dwivedi, Sr. Advocate for the appellant and Mr.
E Hardev Singh, Sr. Advocate for the respondent.
Regarding requirement of personal use and occupation, we are of the
opinion that this is a question of fact and we find from the judgment of the
Lower Appellate Court that the Court not only considered the entire evidence
on record but also report of the Commissioner appointed by the Court. The
F Lower Appellate Court also took note of the fact that though according to
the landlady one room in the building in question was in possession of
another tenant but it was found that it was in the possession of her daughter.

The Lower Appellate Court has extensively discussed the evidence on
G record and has come to the finding that the property in question is not
required for the 'use and occupation of the landlady in as much as she has
got sufficient accommodation. We hold that the High Court rightly refused
to interfere with the findings on this point of the Lower Appellate Court. We
may state here that learned Counsel for the appellant has drawn our attention
to the judgment of the High Court wherein it has been recorded that nine
H rooms were in occupation of the landlady which was not a fact and therefore,
LABANYA THROUGH LRS. v. W.B. ENGG. CO. [PHUKAN, J.] 231
High Court has misdirected itself. This contention has no force as High Court A
dismissed the appeal on the ground that there was no substantial question
of law involved.

Regarding subletting drawing our attention on Section 14 of the West
Bengal Premises Tenancy Act, 1956, it has been urged that as there was no
previous consent in writing of the landlady there was subletting which was B
not taken note of by the Courts below.

We extract the same Section 14 of the Act which runs as follows:

S.14. Restriction of subletting - (1) After the commencement of this
Act, no tenant shall, without the previous consent in writing of the C
. landiord,-

(a) sublet the whole or any part of the premises held by him as a
tenant; or (b) transfer or assign his rights in the tenancy or in any part
thereof(c) (2) No landlord shall claim, demand or receive any premium
or other consideration whatsoever for giving his consent to the D
subletting of the whole or any part of the premises held by a tenant.
(Emphasis supplied )

The question of subletting came up for consideration by this Court in
Pu/in Beshari Lal v. Mahadseb Dutta and Ors., [1993] 1 SCC 629 and it was
.. held that when there was no previous consent in writing of the landlord for E
creation of sub-tenancy, it shall be a ground for eviction in terms of Section
13(1) (a) of the Act. It was further held that mere knowledge and/or acceptance
of rent cannot defeat the landlord's right to get a decree for ejectment on the
ground of subletting. We do not find any reason to take a different view in
view of the clear legislative mandate laid down in Section 14 of the Act.
F
Now the question is whether there was subletting in the case in hand?

There was a written agreement of lease for the tenancy with effect from
1.12.1965 between the landlady and a partnership firm, namely, Mis. W.B.
Engineering Company Ltd. and the tenancy was for residential purposes of G
the above partnership firm. The agreement was marked as Exhibit -11. The
allegations of the landlady was that there was sub-letting of the suit premises
in favour of Mr. Tahilian, who was also son-in-law of one of the partners of
the firm. The Trial Court noted that the said Mr. Tahilian joined the firm as
an employee and since 1965 was residing in the suit premises. The Trial Court
also noted that according to Mr. Tahilian ( D. W. l) who was examined as a H
232 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A witness, the partnership firm got dissolved and he became a proprietor of the
firm and thereafter running the said firm. On these facts the Trial Court held
that there was no subletting.

The first appellate court also took note of the fact that since inception
of the tenancy D. W. l has been residing with his family in the suit premises,
B as at that time he was an employee of the partnership firm. This fact was also
admitted by the husband of the landlady, namely, P. W. l. Therefore, the first
appellate court confirmed the findings of the Trial Court that the landlady
failed to prove subletting.

To establish sub-letting, the landlady has to prove abandonment or
C transfer of interest in favour of another person. In the case in hand, the
tenancy was between the landlady and Mis. W.B. Engineering Company,
which was originally a partnership firm and from records of this case, it
transpires that Mr. Tahilian (D.W.l) became the sole owner as stated above.
The original tenancy was for the purpose of residential accommodation of the
D firm and right from the inception of tenancy Mr. Tahilian was in occupation ·
of the suit premises. Therefore, there was no abondonment or transfer of the
tenancy by the M/s.W.B. Engineering Company, the tenant.

Learned counsel for the appellant has drawn our attention to a decision
of this court in SA. Vengadamma and Ors. v. Jitendra Vora and Anr., [1997]
E 11 SCC 334 in support of his contention that Mr. Tahilian, being son-in-law
of one of the original partners, cannot be treated as a member of the family
of the said firm.

In the above decision, this court while considering Kamataka Rent
Control Act, 1961, particularly, Section 3{ff) of the Act, wherein the word
F 'family' has been defined, inter-alia, held that a brother not living with the
tenant permissively cannot be treated as. a member of the family.

In the present case, Mr. Tahilian is not claiming tenancy in his capacity
as a son-in-law but as an owner of the firm, namely, Mis. W.B. Engineering
Company. Therefore, the ratio laid down in that above decision is not applicable
G to the present case.
·-
For the reasons stated above, the appeal is dismissed.

No costs.

v.s.s. Appeal dismissed.