Sashi Prova Agarwal vs Debasish Paul And Ors
2023 Latest Caselaw 2058 Cal

28.03.2023
 KC(12)
                                S.A.T. 29 of 2022
                               Sashi Prova Agarwal
                                     -versus-
                              Debasish Paul and Ors.
                                       With
                                  CAN 1 of 2022
                                       With
                                  CAN 2 of 2023


             Mr. Sukanto Chakraborty,
             Mr. Sunny Nandy,
             Mr. Tamal Singha Roy,
             Mr. Zuber Ahmed......................For the appellant.

             Mr. Souradipta Banerjee,
             Mr. Sounak Bhattacharya,
             Mr. Anirban Saha Roy,
             Mr. Sounak Mandal,
             Ms. Fatima Hassan..................For the respondents.

This intended second appeal raises some

interesting legal issues.

Admittedly in the demised premises the

daughter's family of the original tenant is residing. The

case of the respondents/plaintiffs was that the suit

premises had been wrongfully sub-let by the appellant/

defendant.

Three situations are possible:

The first, as the appellant/defendant alleges that

the original defendant's family was living under leave

and licence. The second possibility is that the premises

had been sub-let by the original tenant to his

daughter's family, wrongfully. The third is that the

tenant terminated the relationship of landlord and

tenant, abandoned the premises where his family

members were found to be in occupation. This if proved

is nothing but trespass by the family members for

which the respondents/plaintiffs were entitled to

immediate possession of the suit premises.

Both Mr. Sukanto Chakraborty, learned advocate

for the appellant and Mr. Souradipta Banerjee, learned

advocate for the respondents have taken us through the

facts of the case and also the evidence which is on

record.

Mr. Banerjee has also cited Joginder Singh Sodhi

-vs- Amar Kaur, reported in (2005) 1 SCC 31 and Smt.

Padmabati Devi -vs- Chittaranjan Dasgupta and Anr.,

reported in (2005) 3 CAL LT 516 (HC).

The Calcutta decision categorically lays down that

handing over of possession of the suit premises by the

tenant to his brother amounts to sub-letting following

Bhairab Chandra -vs- Ranadhir Chandra, reported in

AIR 1988 SC 396 (paragraph 50) and S.A. Vengadamma

and Ors. -vs- Jitendra P. Vora and Anr., reported in

(1997) SCC 334 (paragraph 49).

If we have to decide this issue we have to embark

upon some fact finding by evaluating the evidence

adduced by the parties.

We are of the view that although reasons have

been advanced by the learned judge of the first

appellate court in coming to his conclusion, specific

findings ought to have been entered on the three

situations enumerated by us earlier in this judgment.

For complete and proper determination of the

question involved, we are of the view that a limited

remand should be made to the first appellate court to

decide the issue afresh on the basis of our observations

made, within ten weeks of communication of this order

so that this long pending litigation between the parties

finally comes to rest.

We order accordingly.

The appeal is formally admitted treating the above

issue as a substantial question of law and disposed of

by this order, dispensing with all formalities. Connected

applications are also disposed of.

(I.P. MUKERJI, J.)

(BISWAROOP CHOWDHURY, J.)