DIPAK BANERJEE versus SMT. LILABATI CHAKRABORTY

Citation: [1987] 3 S.C.R. 680 · Decided: 30-07-1987 · Supreme Court of India · Bench: SABYASACHI MUKHERJI · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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A 
DIPAK BANERJEE 
v. 
SMT. LILABATI CHAKRABORTY 
JULY 30, 1987 
B 
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[SABYASACHI MUKHARJI AND G.L. OZA, JJ.) 
y 
Constitution of India, 1950: Article 136-Concurrent findings of 
fact-Normally no interference-Where essential ingredients necessary 
for finding of a fact-Not found by courts below-Court bound to 
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c interfere. 
! 
West Bengal Premises Act, 1956: Section J3(l)(a)-Sub-letting 
without written consent of landlord-Essential ingredients to be estab-
lished-Services in lieu of right of occupation-Whether amount to 
D receipt of rent so as to create sub-tenancy. 
'I 
The landlord-respondent filed a suit against the appellant-tenant 
for contravention of Section 13(l)(a) of West Bengal Premises Act, 1956 
for sub-letting withont his written consent by parting with the posses-
E 
sion of two rooms out of the four rooms of the premises in question to 
the sub-tenant who had established a tailoring business therein. The 
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trial court held that there was evidence of a sewing machine being used, 
that the sub-tenant was occupying the suit premises for tailoring busi-
ness, and that it was for the tenant to establish that the sub-tenant had 
not been inducted as a sub-tenant and that he had given shelter to a 
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helpless man. In the absence of the evidence of the sub-tenant, the trial 
court drew the inference that there was sub-tenancy. 
The first appellate court upheld the finding of the trial court, and 
the High Court, in appeal, did not interfere with the findings of the 
courts below. 
G 
r 
In the appeal before this Court, it was contended that the question 
of sub-tenancy in a situation like the present case is an inference to he 
drawn from a certain condnct, and that the qnestion was whether the 
sub-tenant was in exclusive possession of the part of the premises or 
H whether the tenant had retained no control or that part of the premises. 
680 
D. BANERJEE v. LILABATI 
681 
-t 
Allowing the appeal, this Court, 
A 
HELD: 1. In order to prove tenancy or sub-tenancy, two ingre· 
dients had to be established, firstly, the tenant must have exclusive right 
of possession or interest in the premises or part of the premises in 
question and secondly, that right must be in lieu of payment of some 
B 
compensation or rent. [684G] 
' 
f 
2.1 In view of the provisions of Rent Act, services cannot be 
'1 
consideration for sub-lease. [ 686B I 
' 
2.2 Services in lieu of the right of occupation would not amount to 
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receipt of rent under the Rent Act to create sub-tenancy. Work per· 
formed by sub-tenants and the wages paid by doing certain kind of c 
..,... 
services may be in lieu of rent as in the case of Agricultural Tenancies . 
But in urban area in civilised time that cannot be so. The Rent Act, 1956 
cannot be fitted into a position where the services can be rendered in 
exchange of the right of occupation. [6870, El 
D 
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3. In the second appeal, no court should interfere with the con· 
current findings of fact. [684F] 
I
Normally, this court is too reluctant to interfere with the concur· 
rent findings of fact. But if the essential ingredients necessary for find· 
ing of a fact have not in fact been found by the courts below then this 
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court is bound to examine the question where injustice or wrong is 
done. That jurisdiction has to be exercised sparingly but, that cannot 
mean that injustice must be perpetuated because it has been done two or 
three times in a case. The burden of showing that a concurrent decision 
of two or more courts or tribunals is manifestly unjust lies on the 
appellant but once that burden is discharged, it is not only the right but F 
the duty of the Supreme Court to remedy the injustice. [687F, 688A] 
In the instant case, as there is no finding of exclusive possession 
nor of any payment of money in exchange of the user of the part of the 
premises the rmding of subletting cannot in law be upheld. As the 
sewing machine in question was used as a part of the apparatus of the G 
-1 appellant'in the facts of this case it could not be said to have been used 
separately or independently and cannot constitute a change of user as 
defined in Section 13(1)(h) of the Rent Act. [688B·C] 
[Justice of the case demands increase of rent. The appellant has 
been in occupation since 1972 at a monthly rent of Rs.250. By present 
H 
4
682 
SUPREME COURT REPORTS 
[1987] 3 S.C.R. 
A standards, this is wholly inadequate. The appellant shall pay at least -f · 
Rs.350 per month from 1st

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