Case: Flora Elias Nahoum &amp; Others Vs. Idrish Ali Laskar

3. The appellants are the plaintiffs (landlords) whereas the respondent is the defendant (tenant) in the eviction suit out of which this appeal arises.4. The appellants (plaintiffs) are the owners/landlords of one shop (room) bearing premises No.1, Hartford Lane, Calcutta (hereinafter referred to as), which was originally owned by Late Nahoum Elias and Miss Resmah Nahoum. The present appellants are theof the suit shop. They had let out the suit shop to oneAlfajuddin Laskar on a monthly rent of Rs.In the suit shop, Alfajuddin Laskar used to do the business of sale of eggs under the name>5. Alfajuddin Laskar expired in 1976. The respondent being his son became the tenant of the appellants on same terms and conditions. The respondent, however, closed his fathers business of selling of eggs and started his tailoring business under the namein the suit shop.6. In 1978, the appellants filed an Eviction Suit against the respondent under the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as. The eviction was claimed on four grounds, viz., default in payment of monthly rent, bona fide need,and lastly, making of unauthorized construction in the suit shop by the respondent.7. The respondent filed the written statement and denied all the four grounds. Parties adduced their evidence. The Trial Court, by order dated 30.01.1984, partly decreed the suit. It was held that so far as the grounds relating to default of rent and bona fide need are concerned, both are not made out whereas the other two grounds, namely,and making of unauthorized construction in the suit shop, both stood made out against the respondent.8. In this view of matter, thesuit was decreed in part against the respondent and the decree for eviction on the ground ofand unauthorized construction made by the respondent in the suit shop was passed. The respondent was granted sixtime to vacate the suit shop and handover its vacant possession to the appellants.9. Being aggrieved by the said order, the respondent filed appeal before the High Court at Calcutta. The appellants, however, did not file any cross appeal oragainst that part of the order by which two grounds, viz., default in payment of rent and bona fide need were held not made out. The judgment of the Trial Court thus became final to that extent.10. Therefore, the only question before the High Court was whether the Trial Court was justified in decreeingsuit on the grounds ofand making of unauthorized construction in the suit shop.11. In other words, the question was whether the Trial Court was right in holding that the ground ofand making of unauthorized construction in the suit shop was made out.12. The High Court, by impugned judgment, allowed theappeal and dismissed theeviction suit. The High Court held that no ground of eitheror an unauthorized construction was made out, hence, the suit was liable to be dismissed in its entirety. It was accordingly, dismissed.13. Against this judgment, the landlords felt aggrieved and filed this appeal by way of special leave in this Court.

Reasoning: 15. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned judgment, we restore that of the Trial Court and, in consequence, decree thesuit in part, as indicated below.16. There can be no dispute to the legal proposition that even if the landlord is able to make out only one ground out of several grounds of the eviction, he is entitled to seek the eviction of his tenant from the suit premises on the basis of that sole ground which he has made out under the Rent Act.17. In other words, it is not necessary for the landlord to make out all the grounds which he has taken in the plaint for claiming eviction of the tenant under the Rent Act. If one ground of eviction is held made out against the tenant, that ground is sufficient to evict the tenant from the suit premises.premises.34. In our considered opinion, keeping in view the pleadings and the nature of the evidence adduced by the parties, the ground ofTo begin with, he denied havingthe suit shop to anyone in his written statement. Then, contrary to what he alleged in the written statement, he said in histhat Joynal Mullick was his employee. Then, again contrary to this statement, he said, in next breath, that Joynal Mullick is his partner in tailoring business.37. So far as Joynal Mullick is concerned, he admitted that he has been sitting in the suit shop for the last 7/8 years but he has been sitting in a capacity as anof the respondent.38. In our opinion, the contradictory stand of the respondent and that too without any evidence clearly leads to an inference that the respondent was unable to prove, in categorical terms, as to which capacity, Joynal Mullick was sitting in the suit shopwhether as an "employee" or a "business partner" or in any. It seems that the respondent was not sure as to what stand he should take to meet the plea ofHe, therefore, went on changing his stand one after the other and could not prove either.40. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.41. In other words, if Joynal Mullick was theemployee then, in our view, he should have proved it by filling a declaration form, which he had submitted under the Shops and Establishment Act to the authorities. But it was not done. Rather he admitted that he did not disclose the name of Joynal Mullick in the declaration form. That apart, the respondent could have proved this fact by filing payment voucher, or any other relevant evidence to show that Joynal Mullick was his employee and that he used to sit in the suit shop in that capacity only. It was, however, not done.42. Second, if Joynal Mullick was a partner of the respondent in the tailoring business then the respondent could have proved this fact by filing a copy of the partnership deed. However, he again failed to produce the copy of partnership deed. In this way, he failed to prove even this fact.43. Now so far as the appellants are concerned, they appear to have discharged their initial burden by pleading the necessary facts in Para 4 and then by proving it by evidence that firstly, they let out the suit shop to the respondent and secondly, the respondent hasthe suit shop to Joynal Mullick, who was in its exclusive possession without their consent.44. In a case ofif the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any thirdinduction in the tenanted premises, no case ofis made out against such tenant.45. In other words, the sin qua non for proving the case of theis that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlords consent.46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1 , while dealing with the case ofsuccinctly explained the concept ofand what are its attributes.47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held asng comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and theIt would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had beenhad paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease orIt may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out orIn our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynalpresence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.49. In view of the foregoing discussion, we have formed an opinion that the appellants were able to prove the case ofagainst the respondent.