JUDGMENT
Monoranjan Mallick, J.
1. This is a suit for ejectment of a premises tenant being the United Bank of India and for mesne profits.
The suit was originally filed by Cooke and Kelvey Private Ltd. claiming to be the owner of the premises No. 20, Old Court House Street, Calcutta on the ground of reasonable requirement, for illegal transfer/assignment/ sub-letting, for violation by the tenant and the alleged transferee/assignee/ sub-tenant of provisions of (m), (o) and (p) of Section 108 of the Transfer of Property Act and for causing annoyance and nuisance of the plaintiff and other tenants.
3. As during the pendency of this suit a scheme of arrangement amongst Cooke and Kelvey Private Ltd., Cooke and Kelvey (Delhi) Private Ltd. and Cooke and Kelvey Properties Private Ltd. was duly approved by the High Court, Calcutta by its order dated March 25, 1986 as modified and/or corrected by two subsequent orders-respectively dated August 12, 1986 and December 24, 1986 the light, title and interest of the suit premises became vested in and transferred to the Cooke and Kelvey Properties Private Ltd. with effect from April 1, 1985 and Cooke and Kelvey Properties Private Ltd. has been substituted for the original plaintiff. It is alleged that the Cooke and Kelvey Properties Private Ltd. has thus become the owner by order of the High Court, Calcutta and has become entitled to continue the present legal proceeding initiated against the present defendant.
4. Following grounds for eviction have been alleged in the plaint-
(1) The defendant had transferred, assigned and sub-let the whole of the premises to United Bank of India Employee Association, Central Committee (hereinafter referred to as the said Union) which Union is a registered body and a separate entity.
(2) The bank as well as the Union without the permission of the plaintiff made additions and alterations to the premises and has violated the provisions of (m), (o) and (p) of Section 108 of the Transfer of Property Act.
(3) The defendant as well as the Union had been guilty of conduct which is a nuisance or annoyance to the neighbours including the plaintiff.
(4) The plaintiff reasonably requires the suit premises as the existing possession of the plaintiff is not-sufficient for the business purpose of the plaintiff.
5. By a notice in writing dated 14th December 1978 duly served upon the defendant the plaintiff duly determined the tenancy of the defendant with the expiry of the month of January 1979 and called upon the defendant to quit and vacate the premises upon the expiry of the period of notice. As the defendant has not vacated, the present suit has been filed for eviction of the defendant and for mesne profits at the rate of Rs. 250 per diem being the reasonable letting value of the said premises and claims the same from 1st February 1979 until delivery of vacant possession of the premises in suit to the plaintiff. Total claim in this respect is Rs. 66,250 upto 23rd October, 1979. The plaintiff has also claimed further mesne profits till the date of delivery of possession.
6. The defendant has contested the suit by filing a written statement against the plaint originally filed. The allegation of transfer/ assignment/ sub-letting of the premises to the Union has been denied. It is also denied that the defendant or the alleged Union made any additions and alterations in the premises. It is also denied that the defendant or the alleged Union as committing the act of nuisance or annoyance to the neighbours including the plaintiff. The plaintiff’s claim of reasonable requirement of the suit premises on the ground of reasonable requirement has also been denied.
7. The legality of the notice to quit has also been challenged. By filing additional written statement it is contended that the substituted plaintiff is not entitled to get any decree for eviction on the ground of reasonable requirement as the said relief is barred Under Section 13 (3A) of he West Bengal Premises Tenancy Act, 1956.
8. From the pleadings the following issues have been framed :
Issues
1. Is the Notice dated December 14, 1978 legal, valid and sufficient ?
2. Has the defendant sublet and/or transferred and/or assigned the suit premises to United Bank of India Employees’ Association without written consent of the plaintiff?
3. Did the defendant make any additions or alterations of permanent nature in the suit premises without the consent of the plaintiff? Did the defendant commit any act contrary to the provisions of Clauses (m), (o) and (p) of the Transfer of Property Act, 1882 7
4. Is the defendant guilty of conduct which is nuisance and/or annoyance as alleged in paragraph 6 of the plaint ?
5. Does the plaintiff reasonably require the suit premises as alleged in paragraph 7 of the plaint?
6. Has the plaintiff any other reasonably suitable accommodation as alleged in paragraph 8 of the written statement ?
7. Is, the plaintiff entitled to get any decree for eviction as prayed for?
8. Is the plaintiff entitled to get any decree for mesne profits from the defendant, if so, at what rate ?
9. To what other relief, if any, is the plaintiff entitled ? Additional Issues:
(a) Is the substituted plaintiff Cooke & Kelvey Properties Private Ltd. entitled to get a decree for eviction on reasonable requirement as the Scheme of Management has become effective with effect from 1st April, 1985?
(b) Is the claim for eviction on the ground of reasonable requirement barred Under Section 13(3A) of the Act?
9. Issue No. 1 : Copy of the notice, dated 14th December, 1979 has been exhibited in the suit as Ext. D. The defendant does not challenge the service of the said notice. In the written statement the legality of the said notice has been challenged. But at the time of hearing the validity has not been challenged. On a perusal of the said copy of Ext. D, I find the same is legal, valid and sufficient. So the notice Under Section 13(6) of the West Bengal Premises Tenancy Act is valid and Issue No. 1 is answered in the affirmative.
10. Issue Nos. 5 and 6 and Additional Issue Nos. 1 and 2 :
It is urged on behalf of the defendant that the plaintiff who is now substituted in place of original plaintiff cannot get the decree for eviction on the ground of reasonable requirement as it is an admitted fact that by the order of the High Court it has become the substituted plaintiff being the transferee cannot get the decree for eviction on the ground of reasonable requirement when he does not file such suit at least three years from the date of transfer and the present suit having been filed prior to the date of transfer the ground for reasonable requirement cannot be available to it. On behalf of the plaintiff it is conceded that the substituted plaintiff being the transferee cannot get the decree for eviction on the ground of reasonable requirement as such relief is barred Under Section 13 (3A) of the West Bengal Premises Tenancy Act.
10A. Thus, the Issue Nos. 5 and 6 and additional Issue Nos. 1 and 2 are all answered against the plaintiff.
11. Issue No. 2 : It is the plaintiff’s case that the defendant transferred/assigned/sub-let the whole suit premises to its employees’ Union and that fact is admitted by the defendant’s own witnesses and when the said Union is registered under the Trade Union Act and is a separate legal entity the act of the defendant amounts to transfer and also assignment of the tenancy. It is also urged that when admittedly the possession of the premises was transferred to that Union sometime in 1974 and the Union according to the own evidence of the defendant is running its Office it has to be presumed in the absence of any satisfactory explanation by the defendant that the possession was on monetary consideration and there was thus sub-letting. So it has been urged that the defendant has lost protection from eviction as it did not take any previous written consent from the present plaintiffs predecessor namely, Cooke and Kelvey Private Ltd. before handing over possession of the said premises to the Union.
12. In the written statement the defendant has denied that it has sublet/transferred/assigned the suit premises to the Union. In the evidence Satyabrata Sen, an Officer of the Bank, the first witness of the defendant has admitted that since 1974 the Union is in occupation of the whole of the premises (Question No. 35-46). He has also conceded in cross-examination that the Union and the Bank are separate entities (Question Nos. 125-27). He has also no knowledge if the Union pays any rent to the bank or not. The next witness for the defendant is Mr. Panchanan Dey who is a Director of the Bank and the President of the Union. His evidence is that Union does not pay any rent to the bank, that the bank maintains the premises, that the furniture and fittings of the premises belong to the bank, that Bank pays electricity bills, Municipal bills and tax of the premises and that the Staff of the Bank cleans the premises (Question Nos. 18 to 29). He however, concedes that the Union is in exclusion possession of the whole of the premises (Question Nos. 33 to 43).
13. In view of the above evidence given by the defendant’s witness it is urged on behalf of the plaintiff that the Union is admittedly a separate entry from the bank, that its activity is separate from that of the “activity of the bank and that the Union being in exclusive possession of the premises since 1974 the bank must be held to have effaced himself completely from the said premises and that even though no evidence has been produced to show if any rent is paid by the Union for such occupation or not, the possession must be presumed to be that of a sub-tenant. It is also urged that there is also transfer and assignment of the premises. It is submitted that transfer means parting with possession, that such parting of possession is complete in this case as the Union is in exclusive possession of the premises since 1974 and that Clause (a) of Section 13(1) attracts to this case and the defendant is liable to be evicted Under Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956. In support Mr. Bachawat has referred to several decisions, namely, J. Mc. Gaffin v. Life Insurance Corporation, 81 Calcutta Weekly Notes page 629. Central Calcutta v. Hoshang (1976) 1 Cal LJ page 500, Probhabati v. R. R. Joneja 82 Calcutta Weekly Notes 684. In support of the contention that assignment would include every kind of transfer he has referred to the decision of Bombay, High Court Dr. Anant v. Vasant Pratap, which has been approved by Supreme Court in .
14. In 81 CWN page 629 the tenant being the defendant No. 1 left the premises leaving it to be occupied exclusively by a person who is not his relative under a caretakership arrangement. Division Bench of this High Court has held that the caretakership arrangement is nothing but parting with possession and held that Clause (a) of Section 13(1) was attracted,
15. In 1976(1) Cal LJ it has also been held that when the tenant permitted his friend Mr. Agarwal to occupy the fiat without payment of rent it was transferred and the act attracted Section 13(1)(a) of the Act.
16. In 82 CWN page 684 at page 688 (para 11) it has also been observe ed that when the tenant permitted his relative to occupy part of the premises, himself retaining control of the premises and the person in occupation did not pay rent to the defendant the onus is on the tenant to prove the nature of such possession and adverse inference has to be drawn against the tenant in the absence of cogent evidence.
17. In the Bombay High Court case it has been held that a person giving property to another by will transferred or assigned the property to that person. Mr. Gautam Chakraborty, Learned Counsel appearing on behalf of defendant has, however, observed that the facts of the above decisions are quite different and distinguishable from the facts of this case, that the Union wholly comprised of the employees of the defendant cannot be treated as separate entity, that it may be a registered body under the Trade Union Act but the Union activities in the Bank must be held to be part of the business activity of the bank, that the Union activity of the employees of the bank being part and parcel of the bank’s functioning where is no parting with possession in the eye of law even if the bank permits its registered Union of the employees exclusively to run its office from a premises taken tenancy of by the bank for its own activity. He has also drawn my attention to the evidence of the President of the Union who is a Director of the Bank where he has stated that the Union is holding the Office in the premises on the permission of the bank and would vacate it as soon as the bank asks it to vacate. He has also submitted that the evidence of Mr. Panchanan Dey would reveal that the Union is part of the Bank and that the President of the Union is a Director of the Bank. He has relied on the decision of Supreme Court of Sm. Krishna Wati v. Shri Nomsraj and Madras Bangalore Transport Co. v. Inder Singh .
18. In Krishna Wati’s case, Supreme Court has clearly held what when the tenant being the wife permits her husband to carry on business in the part of the premises there is neither transfer of possession nor assignment nor sub-letting. In the Supreme Court has held that when the partners of a partnership firm convert the business into a limited company and they carry on the business as Directors in the same premises there is neither parting of possession nor assignment nor sub-letting.
19. On considering the present case from all its aspects I am of the view that there is strong force in the argument of Mr. Chakraborty that the Union activity of the Union of the employees of the defendant bank cannot be regarded activity separate from the bank. As the employees of a bank or any other Commercial Institution have the right to form Union the management have the obligation to render all help to such Union. Union needs a place to carry on its activity and if the bank allots a place to such Union to carry on such union activity it cannot be held that the said activity is separate from that of the bank. It is significant to note that Mr. Panchanan Dey being the President of the Union is a Director of the bank. So the Union President also finds a place in the board of management of the bank itself and participates in the management as the bank. Regard being had to such position, it will be difficult to hold that by permitting the Union exclusively of the employees of the defendant bank, the defendant bank transferred or assigned or sub-let the premises to a third party. It must be held that the defendant bank is carrying on its Union activity which is part of the activity of the bank from the suit premises since 1974. The said Union activity is being carried with the permission of the management and the management may ask it to shift from that place at any time but has in that case allot some other place to it to carry on its activity. In that view’ of the matter, 1 am unable to hold that the plaintiff has succeeded in proving that the defendant transferred or assigned or sub-let the premises to the Union. It is a case in which bank has permitted its Union to run its Office from the premises let out to it by the original plaintiff since 1974 and that act does not amount to either transfer, assignment or sub-letting to attract Clause (a) of Section 13(1) of W.B. Premises Tenancy Act, 1956.
20. So the Issue No. 2 is answered against the plaintiff.
Issue No. 3 : The plaintiff has alleged in the plaint, that the defendant made additions and alterations of permanent nature in the suit premises without the consent of the landlord. The defendant has denied it in the written statement.
21. Mr. Satyabrata Das Gupta, the constituted attorney of the plaintiff has stated in answer to the question No. 15 that the defendant has converted a bathroom into a store room and has also a certain portion of the remaining bath room to a bathroom or something else. Mr. Das Gupta has complained that he could not get access and once when he could enter the flat he could see the above. I am of the view that if he plaintiffs were serious about the allegations that the defendant had made additions and alterations in the flat of the permanent nature it was well within its right, to apply for Engineer Commission to inspect the premises and ascertain about the said allegation. Mr. Satyabrata Sen the first witness for the defendant has, however, admitted that a minor alteration was made in the toilet block by changing a western type commode into an Indian type Pan (Question No. 22). He also states that the Caretaker was informed about that minor alteration-(Questions 24 and 25). In cross-examination he has stated that they asked for permission from the original plaintiff to convert one of the two latrines into a record room, that was not fully done and only the latrine was converted from western style to Indian style (Question No. 69). He has also stated that for that permission was taken. But no such written permission has been proved in this case. In answer to question No. 76 he has conceded that latrine has been converted into a record room. In answer to question No. 83 he has stated that a part of bathroom has been converted into a record room. Mr. Panchanan Dey, the other witness for the defendant also spoke of the conversion of a portion of the bathroom into a record room.
22. So, it is now an admitted fact that a bath room has practically been converted into a record room and the commode of the bath room has been changed into Indian Style Pan. When no written permission has been proved it can be held that no written permission was obtained. But it is a fact that permission was sought for. Be that as it may, can it said to be construction of a permanent nature? In my view the conversion of the bath room commode into Indian Style Pan is not a work of permanent nature. The conversion of the portion of the bath room into record room is not a construction of a permanent nature and the bath room can easily be restored to its former state as soon as the records are taken out. So, the allegation of the plaintiff that the defendant made additions and alterations in the flat of permanent nature has not been substantiated. So this issue is answered against the plaintiff.
23. Issue No. 4 : The plaintiff has also alleged that the Union which is now using the suit premises frequently shouted slogans during union meetings as the large number of members assemble there during such meeting and the plaintiff’s director and other co-tenants are terribly annoyed and the defendant is, therefore, guilty of annoyance and nuisance and is liable to be evicted under Clause (e) of Section 13(1) of West Bengal Premises Tenancy Act, 1956.
24. Mr. Satyabrata Das Gupta is the only witness for the plaintiff to prove it. Mr. Satyabrata Sen the first witness for the defendant denies that the members of the Union using the premises make any unusual notce. It is his case that the Union is using the suit premises as the Central Office where the senior executives of the Union meet. It is also his evidence that when the Union members confer among themselves there is no reason as to why they would shout slogans. It is also his evidence that meetings of the Union are held after Office hours and there is no occasion for the plaintiff or the other neighbours to be annoyed because of activity of the members of the Union of the defendant’s employees.
25. Mr. Panchanan Dey the second witness also supports Mr. Sen when he says that the Union is holding Office in the suit premises and no slogan was ever shouted from the suit premises.
26. The Gujrat High Court in Gouri Shankar v. Bhika Lal AIR 1975 Gujrat 72
has held that nuisance or annoyance must be of a very serious character in nature, intensity and frequency. The- following tests have been laid down to decide whether the act complained of is nuisance or annoyance (i) it must be gross in character, (ii) it must be of unusual character; (iii) it must be frequent and persistent; (vi) it is not normally expected in the house-hold; (v) and that it is not possible for the neighbours to lead a normal life. It is significant to note that the evidence adduced on the side of the plaintiff is so meagre that it cannot be held that any of these tests has been fulfilled in this case. The plaintiff has not examined any neighbour to support the story. In Amarendra v. Bibhuti, our High Court has also observed that it must be first established that the conduct of the tenant is nuisance or annoyance and that it is nuisance or annoyance to the occupiers of the adjoining or neighbouring premises. I am of the view that it has not been established in this case satisfactorily that the conduct of the Union who is occupying the premises amounts to either nuisance or annoyance to any occupier of the adjoining premises. So, this issue is also answered against the plaintiff.
27. Issue Nos. 7 to 9 : In view of my findings, the plaintiff is found not entitled to get the decree for eviction against the defendant on any of the grounds alleged as well as for mesne profits. Thus, the suit be dismissed on contest with cost.