Damage caused by the tenant not ground for eviction if the value of building not decreased: High Court of Calcutta

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE The Hon’ble JUSTICE BIBEK CHAUDHURI S.A 411 Smt. Sarbati Debi & Ors. Vs Pratima Sharma & Ors For the Appellants: Mr. Buddhadeb Ghoshal Mr. Lakshmi Kanta Pal For the Respondents: Mr. Anirban Ray Mr. Bandhu Brata Bhula. Mr. Debdut Mukherjee Ms. Urmila Chakraborty Mrs. Debasmita Mitra. Heard on: February 20 2020. Judgment on: December 24 2020. BIBEK CHAUDHURI J. : The defendants in a suit for eviction and recovery of possession being Title Suit No.324 of 1992 are the appellants before this Court challenging concurrent finding of fact by both the learned Trial Court as well as the learned First Appellate Courts wherein the following substantial questions of law are involved: Whether the learned judges in the courts’ below substantially erred in law in decreeing the suit for eviction on the ground of violation of Clauses (o) and of Section 108 of the Transfer of Property Act 1882 ii) Whether the learned judges in the courts’ below substantially erred in holding defendants are guilty of sub letting without adverting the legal principle regarding payment and acceptance of rent coupled with delivery of possession. is pertinent to mention at plaintiffs defendants became the owners of premises No.9 Karl Marx Sarani within P.S Watgung by auction purchase. The appellants were the premises tenants in respect of one shop room wherein they have been running business of selling footwear. The plaintiffs filed the above mentioned suit on the grounds of default of payment of rent reasonable requirement for extension of their business subletting and causing substantial damage of the suit premises in violation of Clause(o) and p) of Section 108 of the Transfer of Property Act. The learned Trial Court by its judgment and decree dated 30th June 2007 decreed the suit holding inter alia that the plaintiffs were able to prove their case on the grounds of default subletting and causing material damage and substantial addition and alteration of the suit shop room and therefore liable to be evicted from the suit premises. The defendants being aggrieved by and dissatisfied with the judgment and decree passed by the learned Trial Court filed an appeal before the learned District Judge South 24 Parganas at Alipore. The said appeal was transferred to the Court of the learned Second Additional District Judge at Alipore and registered as Title Appeal No.258 of 2007. By a judgment and decree dated 30th September 2010 the said appeal filed by the defendants appellants was dismissed on contest. The learned Judge in First Appellate Court however gave protection to the defendants against eviction under Section 17(4) of the West Bengal Premises Tenancy Act 1956. The appeal was dismissed affirming the finding of the learned Trial Court in respect of subletting and causing substantial damage of the suit premises by the defendants appellants. It is necessary to mention here that the plaintiffs did not file any appeal against the finding of the First Appellate Court on the grounds of reasonable requirement and default. Therefore in the instant appeal this Court confines its discussion exclusively on the substantial questions of law framed by the Division Bench of this Court at the time of admission of appeal. For adjudication of substantial questions of law involved in the instant appeal it is necessary to state in a nutshell the case of the respective parties on the grounds of subletting and causing addition and alteration and damage to the suit premises. It is the case of the plaintiffs respondents that the defendants have parted with possession of a portion of the suit premises in favour of one Laxmidhar Bhunia and sublet the same for opening a pan shop without their consent. It is also pleaded by the plaintiffs that the defendants caused addition and alteration and substantial damage to the suit premises without the knowledge and consent of the plaintiffs in contravention of Clauses (o) and of the Transfer of Property Act. The defendants fixed one iron safe on the main wall cutting the beam of the suit shop room and erected a false roof under the ceiling of the tenanted premises without the permission and consent of the plaintiffs. In their written statement the defendants denied the allegation of subletting made by the plaintiffs in the plaint. It is the specific case of the defendants that one Uma Sankar Agarwala @ Gupta since deceased was the original tenant in respect of the suit shop room under the erstwhile landlord. For augmentation of income the said Uma Sankar Agarwala started a pan shopin the road side wall space of his tenancy with the knowledge and consent of the previous landlord. One Laxmidhar Bhunia was appointed by the said Uma Sankar Agarwala as an employee to look after the said business and the said Laxmidhar Bhunia was not a sub tenant but a mere licensee under the defendants. It is also pleaded by the defendants that the said Uma Sankar Agarwala filed a suit being Title Suit No.437 of 1983 against Laxmidhar Bhunia treating him as licency and for his eviction. In respect of the plaintiff’s case of causing substantial damage to the suit premises in violation of Clauses(o) andof the Transfer of Property Act the allegation of fixing one iron chest or iron safe cutting the main wall of the suit shop room and erection of a false roofinside the tenanted premises were denied by the defendants. 11. Mr. Buddhadeb Ghoshal learned Advocate for the appellants submits that the plaintiffs became the owners of the suit premises by auction purchase. The predecessor in interest of the appellant was inducted as a tenant in respect of suit shop room at a monthly rental of Rs.100 by the erstwhile landlord. No tenancy agreement was executed by and between the original landlord and tenant in respect of the suit premises delineating the terms and conditions of the tenancy granted to the predecessor in interest of the defendants. From the evidence of PW1 it is ascertained that after they became owners of the premises in suit they found one iron safe fixed on the wall of the tenanted shop room and one wooden false roof fixed below the concrete roof of the tenanted shop room. It is pointed out by Mr. Ghoshal that the respondents failed to establish during trial of the suit that the defendants appellants caused substantial damage of the suit shop room by fixing an iron safe on the wall of the suit shop room and constructing a false roof inside it. Even assuming that the appellants fixed one iron safe cutting a portion of a wall of the tenanted room and constructed a wooden false roof there is no iota of evidence on record that by such construction the suit premises was substantially damaged. There was no violation of Clauses(o) andof Section 108 of the Transfer of Property Act as well as Clauses and of Section 13(1) of the West Bengal Premises Tenancy Act 1956. It is contended by Mr. Ghoshal that such construction was carried out by the predecessor in interest of the present appellants with the permission and consent of the erstwhile tenant. It is also pointed out by him that the respondents failed to refute such positive case of the defendants appellants in course of evidence. According to Mr. Ghoshal findings of both the Trial Court as well as First Appellate Court on the issue of causing substantial damage to the suit premises by the appellants are based on perversity of fact finding and erroneous application of law. In support of his contention Mr. Ghoshal relies on a Full Bench decision of this Court in the case of Ratanlal Bansilal & Ors. vs. Kishorilal Goenka & Ors. reported in AIR 1993 Cal 144. 12. Learned Advocate for the respondents on the other hand submits that the question as to the perversity of finding of fact by the Trial Court as well as the First Appellate Court or failure to appreciate the evidence on record properly is not a substantial question of law formulated by the Division Bench of this Court at the time of admission of appeal. Therefore the learned Advocate for the appellants cannot raise such issue at the time final hearing of the appeal. According to the learned Counsel for the respondents Clauses (o) and of Section 108 of the Transfer of Property Act operate altogether in different circumstances. Under Clause m) of Section 108 of the Transfer of Property Act the liability of the lessee is : To keep the property in good condition non compliance of which entitles the landlord a decree for ejectment To restore the property after termination of the lease in the same condition in which it was let out. Clause of Section 108 stipulates that the lessee is to use the land as a man of ordinary prudence would use his own land. This clause debars the lessee from pulling down or damaging building belonging to the lessor. The lessee may not use the property for a purpose other than that for which it was leased for it is waste to change the nature of the premises. If this were done by structural alteration it would involve demolition and reconstruction which is expressly forbidden by Clause of Section 108 of the Transfer of Property Act. 13. From the pleadings of the parties it is ascertained that the plaintiffs respondents tried to make out a case within the scope of Clause o) of Section 108 of the Transfer of Property Act alleging inter alia that the appellants damaged the suit premises by fixing one iron safe and constructing a wooden floor below the concrete roof of the suit shop room. According to the learned Counsel for the respondents such construction specially fixation of iron safe cutting portion of wall and beam of the room is an instance of causing substantial damage and both the courts on appreciation of evidence rightly decided the issue in favour of the respondents. This Court sitting in second appeal having limited scope to decide substantial question of law is not in a position to alter the findings of fact of both the courts below. 14. Having heard the learned Advocates for the appellants and the respondents and on careful perusal the evidence on record I like to point out at the outset that existence of iron safe fixed on a wall of suit shop room under occupation of the defendants tenants as well as wooden roof under the concrete roof are not denied. The defendants appellants claimed that the said iron safe was fixed and wooden roof was constructed with the permission of the erstwhile landlord. However the appellants failed to produce any document to show that permission to fix one iron safe on the wall and construction of wooden roof was granted by the original landlord to their predecessor in interest at any point of time. 15. Now the question that arises for consideration is as to whether fixing of iron safe and construction of wooden roof inside the suit premises are acts of substantial damage or waste. 16. Hon’ble Supreme Court in Rafat Ali vs. Sugni Bai reported in 1999 1 SCC 133 was pleased to hold that all acts of waste or damage does not amount to a ground for eviction and it is only those acts of waste which would very probably impair the value of the building or its utility which would make the tenant liable for eviction. It is not enough that some impairment has been caused to the building. But the value of the building or the utility thereof should have decreased in a reasonably substantial degree and then only can it be said that the acts of waste and damage are likely to impair the value or utility of the building. In Waryam Singh vs. Baldev Singh reported in 2003 SCC 59 the tenant covered the adjoining verandah of the suit shop room by constructing walls on two sides and rolling shatter in front of it and removed the original door. The question arose whether enclosing the verandah amounts to impairing materially the value or utility of shop. The landlord failed to prove that as a result of the change the shop was damaged substantially. In fact by putting the shatter in front of the shop flow of light and air was increased and the shop being in a business locality the area of shop gets increased by verandah being getting enclosed. The Hon’ble Supreme Court was pleased to hold in the above facts that the act of the tenant did not materially impair the value or utility of the tenanted shop room and refused to grant eviction against the tenant. In the instant case the appellants admittedly run the business of selling footwear in the said shop room. In order to keep the sale proceed in the shop they fixed one iron safe. Measurement of the is 1½ inch X 1½ inch. The said iron safe was fixed cutting a portion of wall. Similarly there is no iota of evidence to the effect that the wooden roof constructed inside the suit shop room caused substantial damage to the suit shop room. There is also no evidence that such construction of wooden roof or fixation of iron safe diminished the value and utility of the suit shop room. In the absence of such evidence it is not possible for this Court to agree with the findings of the learned courts below on the issue of causing substantial damage to the suit shop room by fixing one iron safe and 18. Substantial question of law No.1 is thus decided in favour of the constructing a false roof. appellants. 19. Now let me adjudicate the substantial question of law No.2. I have already quoted the substantial question of law at the very beginning of my judgment. Ground No.2 of the substantial question of law is having two distinct parts viz whether the defendants are guilty of subletting without having any evidence regarding payment and acceptance of rent and delivery of possession in favour of sub tenant It is not in dispute that one Laxmidhar Bhunia has been running a business of betel shop in an almirah shop fixed the outer wall of the suit by the tenant. premises. 22. The case of the defendants appellants on this score is that the original owners Uma Sankar Agarwala @ Gupta started the said business of betel shop on the exterior wall of the shop room to augment income and appointed Laxmidhar as his employee to look after the said business. Laxmidhar is not a sub tenant under the defendants. 23. Thus the defendants have claimed the business of betel shop as of their own and Laxmidhar is running the business on behalf of the defendants. Appellant No.2 Gajanand Gupta deposed during trial of the case as DW1. In his cross examination he candidly admitted that Laxmidhar has been running a betel shop on the exterior wall of the suit shop room. It is also stated by him on oath that Laxmidhar does not submit accounts of business to DW1. Laxmidhar also does not make any payment to DW1. Laxmidhar is the absolute owner of the said betel shop business. DW2 Rajendra Prasad Gupta also admitted in his cross examination that Laxminath @ Laxmidhar Bhunia exclusively runs the betel shop situated on the exterior wall of the tenanted premises. 24. From the evidence of witness on behalf of the defendants it is clear that Laxmidhar is in exclusive possession of an almirah shop situated on the exterior wall of the suit shop room and he exclusively runs betel shop business in the said shop room. It is also found from the evidence on record that the original tenant Uma Sankar Agarwala filed a suit against the said Laxmidhar praying for his eviction claiming that he was a licensee under the original tenant. Laxmidhar on the other hand filed a suit for permanent injunction claiming himself to be a tenant under Uma Sankar Agarwala. Both the suits and subsequent appeals were however dismissed. It is strenuously argued by Mr. Ghoshal that Laxmidhar was neither a licensee nor a sub tenant. Status of Laxmidhar was not established even by the court of law in previous suits and appeals. Therefore it cannot be said that Laxmidhar was a sub tenant under the original tenant or under the present appellants. 26. There is no dispute on the question that exterior wall of a tenanted premises is part of tenancy albeit the term premises has been defined in the West Bengal Premises Tenancy Act 1956 in the following words: 2. "premises" means any building or part of a building or any hut or part of a hut let separately and includes i) the gardens grounds and out houses if any appertaining thereto ii) any furniture supplied or any fittings or fixtures affixed for the use of the tenant in such building or part of a building or hut or part of a hut but does not include a room in a hotel or a lodging house It is true that the exterior wall of a tenanted premises has not been specifically stated as part of tenancy but it is well settled that a demise of a part a building divided horizontally or vertically includes the external walls enclosing the part so demised. An extraordinary fixture to an external wall of which part encloses the demised premises is included in the demise if it is or is fixed to such part of the external wall as encloses the demise premises. In the absence of any agreement to the contrary the tenant has right of exclusive occupation not only all the inside area of the room but of the outside walls as well. 28. Therefore the outside wall of the tenanted premises is within the tenancy of the appellants. In their written statement specific case of the defendants is that the original tenant namely Uma Sankar Agarwala @ Gupta since deceased opened the betel shop on the exterior wall of the tenanted premises and appointed Laxmidhar to run the said business. The defence case has been demolished when both DW1 and DW2 admitted in their cross examination that the said business is being run exclusively by Laxmidhar Bhunia. Therefore Laxmidhar Bhunia is in exclusive possession of a part of exterior wall of the suit premises where he has been running a business since long. Filing of suit by Uma Sankar Agarwala and counter suit by Laxmidhar are ample proof in support of exclusive possession of the said betel shop by Laxmidhar. It is true that respondents failed to produce any evidence as to payment of rent or premium of any kind by Laxmidhar in favour of the defendants. but it is consistently held by the Hon’ble Supreme Court that when sub tenancy is created between the tenant and sub tenant is a clandestine arrangement in favour of a third person and in such a situation it would be difficult for the landlord to prove by direct evidence that the person to whom the tenant has parted with the exclusive possession had paid monetary consideration to the tenant. When it is established that the tenant has parted with possession of the tenanted premises or part of it in favour of a third person and the suit third person is in exclusive possession of the same the court in such cases is permitted to draw its own inference to infer that the premises or part of it were sublet. In support of the above observation the decision of the Hon’ble Supreme Court in M S Bharat Sales Ltd vs. L.I.C of India reported in 1998 SCC 1 may be relied on. In view of above discussion substantial question of law No.2 is decided against the appellants and in favour of the plaintiff. In view of the above discussion this Court holds that there is no reason to interfere with the judgment and decree passed by the Trial Court in Title Suit No.324 of 1992 and affirmed by the First Appellate Court in Title Appeal No.258 of 2007 on the ground of subletting. This 14 Court however does not agree with the findings on the issue of violation of clauses (o) and of Section 108 of Transfer of Property Act by the 31. For the reasons state above I do not find any merit in the instant appeal and the same is liable to be dismissed. 32. Accordingly the appeal is be and the same is dismissed on contest however without cost. 33. The department is directed to draw up fresh decree for eviction in favour of the respondents on the ground of subletting. 34. The appellants are directed to quit vacate and deliver peaceful possession of the suit premises within 60 days from the date of this order failing which the respondents are at liberty to put the decree in execution before the executing court. Bibek Chaudhuri J.) 

Summary: A suit for eviction cannot be sustained merely because the damage was caused to the building without showing that the value of the building has been reduced. This was decided by the Hon’ble Justice Bibek Chaudhuri of Calcutta High Court while exercising appellate jurisdiction in the case ofSmt. Sarbati Debi &amp; Ors. vs. Pratima Sharma &amp; Ors. [Second Appeal No. 46 of 2011]. In this case, the plaintiff who is the owner of the aforementioned suit premises had rented it to the respondent to run a shoe shop. The plaintiff filed a suit on grounds of default payment, causing substantial damage to the suit premises and subletting. They pleaded that the damage caused by the respondent was done by fixing an iron safe on the main wall cutting the beam of the shop owned by the respondent. It was also argued that a false roof under the ceiling of the tenanted premises was erected without the permission of the plaintiff. After the decision was made in favor of the plaintiffs, the respondents appealed on the substantial questions of damage and subletting.  The main issue considered by the Judge in the said case dealt with the correctness of judgement given by lower courts in decreeing the suit for eviction. It was concerned with the applicability of Clauses (o) and (m) of Section 108 of the Transfer of Property Act, 1882 which states that reasonable care must be taken by the tenant and non-compliance to this could lead to ejectment. The court referred to the Supreme Court judgement in Rafat Ali vs. Sugni Bai [1999 1 SCC 133] where it was held “that all acts of damage do not amount to a ground for eviction and it is only those acts of waste which would very probably impair the building or its utility. The value of the building or the utility thereof should have decreased in a reasonable substantial degree and then only can it be said that the acts of waste and damage are likely to impair the value of the building”.  The court observed that in the instant case there was no iota of evidence to prove that the construction of wooden roof or fixation of iron safe diminished the value of the suit shop. It further stated that in absence of such evidence it could not agree to the decision made by the lower court and the Act does not come into the picture. Keeping the above points in mind, the court decided in favor of the appellant concerning the first issue raised in the case.