ivil Appeal No 125 of 1963
Appeal by special leave from the judgment and decree dated June 2 1959 of the Calcutta High Court in Appeal from Appellate Decree No 536 of 1964
section Murthy and BP Maheshwari for the appellant
MC Chakraborthy and R Gopalakrishnan for respondent No 1
The Judgment of the Court was delivered by Ramaswami J
The sole question for determination in this appeal is whether respondent No 2 Atul Chandra Patitundi is protected from being evicted by the landlord from the premises No 90A Harish Mukerjee Road situated in Bhawanipur District 24 Parganas in view of the provisions enacted in section 132 of the West Bengal Premises Rent Control Temporary Provisions Act 1950 West Bengal Act XVII of 1950 hereinafter called the 1950 Act
Some time before 1948 respondent No 2 was inducted as a monthly tenant under Rai Sahib Chartdan Mal Inder Kumar the predecessor in interest of the appellant
One of the conditions of the lease was that the tenant will not sub let the premises or any portion thereof
As respondent No 2 defaulted in the payment of rent the appellant made an application under section 14 of the Calcutta Rent Ordinance 1946 for permission to sue him for eviction
The application was granted by the Second Additional Rent Controller on September 10 1948
On December 1 1948 the West Bengal Premises Rent Control Temporary Provisions Act 1948 West Bengal Act XXXVIII of 1948
hereinafter called the 1948 Act came into force
On September 15 1949 the appellant flied a Title Suit No 171 of 1949 in the Court of the 1 st Subordinate Judge Alipore 24 Parganas against respondent No2 for his eviction on the ground that the tenancy had been determined on account of default in payment of rent
While the suit was pending the 1950 Act came into force on March 31 950
The suit was eventually decreed in favour of the appellant on February 25 1951
The appellant took out execution proceedings being Title Execution Case No 39 of 1951 of the Court of the First Sub Judge
Alipore
The suit was resisted by respondent No 1 who alleged that he had taken sub tenancy from respondent No 2
Respondent No 1 also filed Title Suit No 578 of 1951 in the Court of 4th Munsif at Alipore impleading the appellant and respondent No 1 and praying for a declaration that on the termination of the tenancy of respondent No 2 respondent No 1 became a direct tenant of the appellant under section 132 of the 1950 Act and that he was not liable to be evicted in the execution case
The suit was decreed in the Court of the Subordinate Judge and the decree was affirmed by the District Judge of 24 Parganas in Title Appeal No 157 of 1953
A Second Appeal was also dismissed by the Calcutta High Court on June 2 1959
331 On behalf of the appellant the argument put forward was that the sub lease granted by respondent No 1 in favour of respondent No 2 was contrary to the agreement of lease and not binding upon the appellant
It was therefore submitted that the sub lessee did not acquire the status of a tenant under section 132 of the 1950 Act and the sub lessee could not be deemed to be holding directly under the appellant within the meaning of that sub section
The question at issue depends upon the proper interpretation of section 132 of the 1950 Act which states 13
2 Where any premises or any part thereof have been or has been sub let by a tenant of the first degree  or by a tenant inferior to a tenant of the first degree  as defined in explanation to sub section 1 and the sublease is binding on the landlord of such last mentioned tenant if the tenancy of such tenant in either case is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in clause h of the proviso to subsection 1 of section 12 the sub lessee shall be deemed to be a tenant in respect of such premises or part as the ease may be holding directly under the landlord of the tenant whose tenancy has been determined on terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the latter had not been so determined Provided that it shall be competent for the landlord or any person deemed under this section to be a tenant holding directly under the landlord to make an application to the Controller for fixing rent of the premises or part thereof in respect of which such person is so deemed to be a tenant and until the rent is fixed by the Controller on such application such person shall be liable to pay to the landlord the same rent as was payable by him in respect of the premises or part thereof as the ease may be to the tenant before the tenancy of the tenant therein had been determined
The Controller in fixing the rent shall not determine such rent at the rate which is beyond the limit fixed by paragraph 4 of Schedule A
The rent so fixed shall be deemed to be the standard rent fixed under section 9
Section 131is also relevant in this connection and it states 13
1 Notwithstanding anything contained in this Act or in any other law for the time being in force if a tenant inferior to the tenant of the 1st degree sub lets in whole or in part the premises let to him except with the consent of the landlord and of the tenant of a superior degree above him such sub lease shall not be binding on such non consenting landlord or on such non consenting tenant
332 Explanation In this subsection a a tenant of the first degree  means a tenant who does not hold under any other tenant b a tenant inferior to the tenant of the first degree  means a tenant holding immediately or mediately under a tenant of the first degree c landlord  means the landlord of a tenant of the first degree
It is manifest that section 131 makes a distinction between the two classes of sub tenancies namely 1 sub tenancy created by a tenant of the first degree and 2 sub tenancy created by a tenant inferior to the tenant of the first degree by which is meant a tenant holding immediately or mediately under a tenant of the first degree
So far as the second class of sub tenancy is concerned the sub section enacts that the sub letting will not be binding upon the landlord or on the tenant of the superior degree unless each of them has consented to the transaction of sub lease
There is no express provision in section 131 that a sub lease of the 1st class requires previous consent of the landlord or that in the absence of such consent the sub lease shall not be binding upon the nonconsenting landlord
Section 132 refers to both the classes of sub leases and states that if the sub lease has been made by a tenant of the first degree the sub lessee shall be deemed to be a tenant in respect of the premises demised to him if the tenancy of such tenant is lawfully determined under the provisions of the Act otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in el
h of the proviso to sub section 1 of section 12
In the case of second class of sub leases ie sub leases created by a tenant inferior to the tenant of the 1st degree also the sub lessee will acquire the status of a tenant as mentioned in the statute but in this class of sub leases the rights of the tenant are conferred on the sub lessee only if the sub lease is binding upon the landlord
In enacting section 131 and 2 of the 1950 Act the legislature has deliberately made a distinction between the two classes of sub tenancies and provided that in the case of sub lease of the first class namely sub leases created by a tenant of the first degree the sub lessee will acquire the status of the tenant in respect of the premises demised though the sub lease is not binding upon the landlord according to the agreement of lease
The legislature has further provided that in the case of sub lease of the second class the sub lessee will acquire the status of a tenant of the premises only if the sub lease is binding upon the landlord as defined in section 131
It follows that in the case of sub letting by a tenant of the first degree no consent of the landlord to sub letting is required as a condition precedent for acquisition by the sub lessee of the tenant s right but in the case of sub letting by a tenant inferior to the tenant of the first degree the consent of the landlord and 333 also of the tenant of the superior degree above him to the subletting is necessary if the sub lessee is to acquire the rights of the tenant contemplated by section 132
It was argued on behalf of the appellant that the clause and the sub lease is binding on the landlord of such last mentioned tenant in section 132governs both classes of tenancies namely sub tenancies created by tenant of the first degree and also by a tenant inferior to the tenant of the first degree as defined in section 131
We do not consider that there is any justification for this argument
Having regard to the grammatical structure and Context of the clause it is obvious that it imposes a qualification only upon sub tenancies of the second class
It was also submitted on behalf of the appellant that if a sub lease is granted by the tenant of the first degree against the terms of the contract of lease the landlord is entitled under section 121c of the 1950 Act to bring a suit for eviction of the tenant and that in such a suit the tenant and the sub lessees are both liable to be evicted from the premises in question
It was submitted therefore that the rights mentioned in section 132 are conferred upon the sub lessee only in a case where sub letting is not in violation of the agreement for lease
In our opinion there is no substance in this argument
Section 121c states 12
1 Notwithstanding anything to the contrary in any other Act or 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 including a tenant whose lease has expired Provided that nothing in the sub section shall apply to any suit for decree for such recovery of possession c against a tenant who has sub let the whole or a major portion of the premises for more than seven consecutive months Provided that if a tenant who has sub let major portion of the premises agree to possess as a tenant the portion of the premises not sub let on payment of rent fixed by the Court the Court shall pass a decree for ejectment from only a portion of the premises sub let and fix proportionately fair rent for the portion kept in possession of such tenant which portion shall thenceforth constitute premises under clause 8 of section 2 and the rent so fixed shall be deemed standard rent fixed under section 9 and the rights and  obligations of the sub tenants of the portion from which the tenant is ejected shall be the same as of sub tenants under the provision of section 13
It is manifest that section 121c saves the right of sub tenants even in a case in which the landlord has brought a suit for eviction against 334 the tenant under section 121c and the rights and obligations of subtenants would be governed by the provisions of section 13
Counsel on behalf of the appellant also referred to the provisions of section 113 of the 1948 Act which states 113 Any person to whom any premises or any part thereof have been or has been lawfully sublet by a tenant shall where the interest of the tenant in such premises or part is lawfully determined otherwise than by virtue of a decree or order obtained  by the landlord on any of the grounds specified in clause f of the proviso to sub section 1 be deemed to be a tenant in respect of such premises or part as the case may be holding directly under the landlord on the terms and conditions on which such person would have held under the tenant if the interest of the tenant had not been so determined It was pointed out that rights are conferred by the statute only upon sub lessees to whom the premises have been lawfully sublet by a tenant
It was contended that though the 1948 Act was repealed and substituted by the 1950 Act the provisions of section 132 of the latter Act have to be construed in the context of the language of section 1131 of the 1948 Act
We are unable to accept this argument as correct
It is manifest that in enacting section 13 of 1950 Act the legislature has deliberately enlarged the class of sub tenants to be protected from eviction by the landlords and the language of the section dealing with the sub lessees has been deliberately changed and proper effect and interpretation must be given to the language of the new section
For the reasons expressed we hold that the suit of respondent No 1 has been rightly decreed and this appeal must be dismissed with costs
Appeal dismissed


Summary:
Respondent No 2 was a monthly tenant of the appellant on a condition that he would not sublet the premises of any portion thereof Under the West Bengal Premises Rent Control Temporary Provisions Act 1948 the appellant filed a suit against respondent No 2 for his eviction on the ground that the tenancy had been determined on account of default in payment of rent
While the suit was pending the West Bengal Premises Rent Control Temporary Provisions Act 1950 came into force
The suit was decreed and the appellant took out execution proceedings
The suit was resisted by respondent No 1 who alleged that he had taken subtenancy from respondent No 2
Respondent No 1 also filed a suit impleading the appellant and respondent No 2 and prayed for a declaration that on the termination of the tenancy of respondent No 2 respondent No 1 became a direct tenant of the appellant under section 132 of the 1950 Act and he was not liable to be evicted in the execution case
The suit was decreed bY the trial court which was affirmed by the appellate courts
In appeal by special leave HELD The appeal must be dismissed
334F In the case of sub letting by a tenant of the first degree no consent of the landlord to sub letting is required as a condition precedent for acquisition by the sub lessee of the tenant s rights but in the case of sub letting by a tenant inferior to the tenant of the first degree the consent of the landlord and also of the tenant of the superior degree above him to the sub letting is necessary if the sub lessee is to acquire the rights of the tenant contemplated by section 132
332 H The clause and the sub lease is binding on the landlord of such last mentioned tenant in section 132 does not govern both classes of tenancies namelY sub tenancies created by tenant of first degree and also by a tenant inferior to the tenant of the first degree as defined in section 131
333 B Is not correct to say that the rights mentioned in s 132 are conferred uon the sub lessee only in a case where sub letting is not in violation of the agreement of lease
The right of sub tenant even in a case in which the landlord has brought a suit for eviction against the tenant under section 121c are saved and the rights and obligations of sub tenants would be governed by the provisions ofs
334A In enacting section 13 of the Act the legislature has deliberately enlarged the class of sub tenants to be protected from eviction by the landlords and the language of the section dealing with the sublessees has been deliberately changed and proper effect and interpretation must be given to the language of the new section
334 E 330