P L D 1969 Supreme Court 617 (PLP)

SAJJAD AHMAD, J.‑This is an appeal, by special leave, against the decision of a learned Single Judge of the High Court of East Pakistan (Dacca), made in a second appeal arising from an ejectment suit. The trial Court had decreed the suit for khas possession in favour of the plaintiff ‑respondent, but the first appellate Court (Subordinate Judge, Dacca) reversed the decree and dismissed the suit. In the second appeal, the learned Single Judge differed from the first appellate Court and restored the judgment and decree of the trial Judge. The litigation related to a holding No. 21 of the Narayanganj Municipality consisting of a single‑storey building and some vacant land, which was subsequently changed into holding No.

22. It belonged originally to Hiralal Paul and others in joint proprietorship and was let out by them to one, Panchananda Das, defendant No. 1, on a monthly rent of Rs. 25 according to the Bengali calendar. Panchananda Das allegedly sub‑let it to defendant No.

2. Tulsidas Paul, without the authority of the landlords and in contravention of the terms of the lease. Tulsidas Paul managed to erect an Ekchala tin‑shed on a portion of the vacant land on the premises which was numbered as holding No. 23 in the municipal records. This Ekchala was described separately in Schedule `B' annexed to the plaint, the other item of disputed property being shown in Schedule `A'. Tulsidas Paul had inducted defendant No. 3, Dilip Kumar Paul, as a sub‑tenant in the holding. One of the proprietors, namely, S. M. Sorojini Roy, brought a partition suit (T. S. No. 108/47) for partition of the joint holdings, including the property in dispute, in which Panchananda Das and Tulsidas Paul mentioned above, were impleaded as defendants Nos. 7 and 6, respectively. Tulsidas Paul claimed that the Ekchala tin‑shed belonged to him, but this was not accepted. His statement, Exh. S. 7, was recorded in these proceedings by a Commissioner, wherein he admitted having taken the bhara of the holding from Panchananda Das in the year 1345 B. S. The estate was partitioned and the proprietors got their separate shares. The plaintiff-respondent (Mayan Bepari) purchased the shares of each one of the proprietors in the suit holding and thus became its sole owner. Holding No. 23 comprising the Ekchala tin‑shed was also recorded in his name as the owner in the municipal records which led to a title suit by Tulsidas Paul (No. 47 of 1954) on, the claim that he was a non‑agricultural tenant of that holding and not liable to ejectment. This suit was dismissed by the trial Court and was unreservedly withdrawn at the appeal stage in the High Court. The plaintiff respondent then sought the permission of the Rent Controller to sue Panchananda Das and the present appellants as heirs of Tulsidas Paul, for their ejectment. Permission was granted against the first‑named, but was considered unnecessary against the others who were regarded as sub‑tenants. In the ejectment suit that followed, Panchananda Das (defendant No. 1) entered into a sulenama. The other defendants, viz., the appellants, contested the suit on the ground that their predecessor Tulsidas Paul and they as his successors, were monthly tenants directly under the landlords without any link with Panchananda Das in respect of property described in Schedule `A' and that they were non‑agriculturists of the Ekchala tin‑shed mentioned in Schedule `13'. The suit was also resisted on the ground that it was barred by res judicata and was not maintainable for lack of proper legal notice and also for want of` permission from the Rent Controller. As already stated above, the first Court found against the defendant‑appellants, holding that they were neither monthly tenants of the property of Schedule `A' nor were they non agricultural tenants of the property mentioned in Schedule `B'. It was further held that their predecessor‑in‑interest, Tulsidas Paul, was inducted into the disputed premises as a sub‑lessee by Panchananda Das without the consent of the landlords. The objections that the suit was barred by res judicata and was bad for want of legal notice and absence of permission to sue from the Rent Controller, were also ruled out. In the result, the plaintiff's suit was decreed. On appeal, the first appellate Court came to the conclusion that Tulsidas Paul was a monthly tenant in his own right directly under the landlords, of holding No. 22 and that he was a non‑agricultural tenant of holding No.

23. It was also held that the suit was bad for lack of six months' notice as required under the Transfer of Property Act. In the second appeal preferred by the plaintiff ‑respondent, the High Court has held that the finding of the learned Sub‑Judge (First Appellate Court) that Tulsidas Paul was a tenant under the plaintiff‑landlord being against the weight of evidence could not be maintained. It was further held, in agreement with the trial Judge, that Tulsidas Paul was a sub‑lessee under Panchananda Das and he or his successors were not entitled to any notice nor was the permission of the Rent Controller necessary for their ejectment. Leave to appeal was granted by this Court to consider the contention that the High Court had acted without jurisdiction in upsetting, in second appeal, the findings of fact arrived at by the First Appellate Court. The finding of fact for which this sanctity is claimed, pertains to the status of Tulsidas as a direct tenant qua holding No. 22 and as a non‑agricultural tenant of holding No.

23. The legal position does' not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law or has failed to determine some material issue of law or usage having the force of law. If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on .the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal. In the present case, the trial Court based its finding regarding the sub‑tenancy of Tulsidas on the latter's own statement (Exh. S. 7) made in the partition suit referred to above, wherein he bad clearly accepted his position as a sub‑tenant under Panchananda Das. This statement which was admissible under section 33 of the Evidence Act, constituted a clear admission and as such provided a formidable proof of his status, as accepted by the trial Court. The lower appellate Court did not attach any importance to this statement on the ground that the High Court in the Partition Suit No. 108 of 1947 had upheld the tenancy rights of Tulsidas in spite of it. This is obviously a mistaken assumption. In the partition suit Tulsidas had, as a pro forma defendant, claimed tenancy rights in the disputed holding, but notwithstanding that in the final decree passed by the trial Judge his ejectment was ordered. However, in the appeal filed in the High Court by Tulsidas, this order was reversed because, as observed by the High Court, "in the partition suit there was no prayer for the eviction of Tulsidas and no cause of action for such eviction was ever alleged in the pleadings. The status of Tulsidas as a direct tenant under the Landlords was not at all in issue in that suit and no finding on it was called for". There was thus no adjudication made on the tenancy rights as claimed by Tulsidas in that suit. The statement of Tulsidas, Exh. S. 7 referred to above, was the best evidence in regard to his status in the property in suit which has been discarded by the lower appellate Court for no valid reasons. Again, in coming to the finding that Tulsidas was a direct tenant, the learned Subordinate Judge relied on the Municipal tax receipts showing payment of Municipal taxes by Tulsidas and also on certain rent receipts Exhs. A(1) to A(6), obtained by him from some of the co‑sharer landlords. The learned trial Judge had rightly held that the Municipal tax receipts were of no avail to prove direct tenancy and the rent receipts were rejected by him as they were filed at a very late stage of the suit and also because they were obtained from the landlords other than those who held major shares in the holding in question. For instance, no receipt was obtained from Hiralal Paul who held a 13‑anna share in the holding. The learned appellate Court, however, accepted these receipts without adverting to the very cogent reasoning given by the trial Judge for their rejection. The High Court was, therefore, right in its view that a finding reached by the first appellate Court which totally ignored the reasons given by the trial Judge for a contrary finding, could not be upheld in second appeal. The lower appellate Court also found that Tulsidas was shown as a direct tenant in kabalas Exhs. 1 to 1(e) in which he was described as a bharatia. A bharatia includes a sub‑lessee, as pointed out by the learned trial Judge, but the learned lower appellate Court has not even referred to this argument. It was also remarked by the learned Sub‑Judge in his appellate order that in kabalas 1(b) to 1(c) Tulsidas was admitted as a tenant. The High Court has pointed out that this finding is not supported by the kabalas in question as they do not contain any mention of Tulsidas's tenancy in the holding in dispute. In fact, his name does not figure in these kabalas. It seems clear to us that this is a case where the first appellate Court has reversed the finding of the trial Judge regarding the status of Tulsidas without paying any heed to the reasoning given by the first Court. It has also wrongly discounted a very fundamental piece of evidence in the case, namely, the admission g of Tulsidas himself in the partition suit, already referred to above. The High Court was, therefore, quite right in disagreeing) with the lower appellate Court and in reversing its finding in second appeal and in restoring that of the first Court as regards the status of Tulsidas as a sub‑tenant. Similarly, the view of the learned Sub‑Judge that Tulsidas was a non‑agricultural tenant of the property described in Schedule `D', was manifestly wrong. Tulsidas bad taken a sub‑lease of the entire land with a but standing on it, from Panchananda Das. He could not have, without the permission of the landlords, split up his holding into two parts to claim that he was a monthly tenant of one portion and a non‑agricultural tenant of the other. Tulsidas had already lost his suit for the claim that he was a non‑agricultural tenant of holding No. 23, having finally withdrawn it in the High Court at the appellate stage after it was dismissed by the Courts below. It was not at all open to him or to his successors, to reagitate that issue. We consider that the defendant‑appellants could not have legally invoked the protection of section 7(2) of the East Bengal Non‑Agricultural Tenancy Act, 1949, against their eviction. The appellants were rightly held to be sub‑tenants by the first Court and they were therefore neither entitled to any notice to quit nor was the permission of the Rent Controller necessary for their ejectment under the Rent Control Act. The first appellate Court had obviously misdirected itself on those issues. In the result, we uphold the judgment of the High Court and dismiss this appeal with no order as to costs. K. B. A. Appeal dismissed.