R.P. Mookerjee, J.
1. Premises No. 4/D Mohanlal Street belongs to defendant No.1. He had let out the entire premises to defendant No. 2. Defendant No. 1 had obtained a decree in ejeet-ment against defendant No. 2 some time in 1848. When execution of the decree was started objections were taken by certain persons claiming to be sub-tenants under defendant No. 2. Subsequently in 1949 different suits were filed by the different sets of such sub-tenants for declaration that in spite of the decree in ejectment obtained by defendant No. 1 against defendant No. 2, the plaintiffs were not liable to be ejected. The present appellant had filed one of those suits. We are concerned here only with regard to the claim of the present plaintiff as the matters arising out of the other suits are not before me in connection with the present appeal. Both the Courts below have dismissed the plaintiff's suit.
2. The facts relevant for the disposal of the present appeal may be shortly stated. Defendant No. 2 sometime after he had been inducted had sublet different portions of the premises to different sub-tenants. It is admitted that the premises consisted of nine rooms and four sheds. It is admitted that out of these different rooms and sheds, only one room on the second floor of the building was retained by defendant No. 2, while the rest was in the occupation of the different sets of sub-tenants. The present plaintiff-appellant occupies two rooms and two sheds.
3. During the pendency of the appeal in this Court, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (XVII of 1950) came into force. On behalf of the appellant, it is contended in the first instance that the provisions of this Act should be applied for deciding the issues in the present appeal. The only provision under which this Act may be attracted in the case of pending proceedings are those contained in Section 18 of that Act. It is specifically stated that where
'Any decree for recovery of possession of any premises has been made on the ground of default in payment of arrears of rent under the provisions of the West Bengal Precises Rent Control (Temporary Provisions) Act, 1948'
and if such a decree has not been enforced and possession recovered from the tenant that certain steps might be taken by the tenant. There were no materials in the record in this case to show the ground under which the decree had been passed in favour of defendant No. 1 against defendant No. 2 on the 25th August, 1948. With the consent of both the parties, a certified copy of the judgment passed in that ejectment suit was used in this appeal and it appears that default of payment of arrears of rent was not the ground for the passing of the decree in that case. Mr. Banerjee appearing for the appellant had to concede, therefore, that his first contention has no substance.
4. The arguments advanced in support of the appeal based upon the provisions of the 1948 Act were a twofold nature. It was argued that proviso b (i) to sub-section (1) of Section 11 of the 1948 Act bars out only such tenants who had sublet for more than six consecutive months and to the extent, either of the whole or major portion of the premises, but in the present case, the test to be applied is not with reference to the occupation of all the sub-tenants under the defendant No. 2, but only so far as we are concerned in the subject-matter of the present suit. In other words, though defendant No. 2 had let out all the rooms and sheds except one which he had retained for his own use, and that was prima facie a major portion of the premises, the sub-tenant who is the plaintiff in the present suit being in occupation of only two rooms and two sheds, this could not be regarded as being a major portion of the premises. This sub-tenant, it was contended, not being in the occupation of a major portion of the premises could not be ejected on the basis of the decree which defendant No. 1 had already obtained against defendant No. 2. There is a fallacy in this argument inasmuch as the provisions contained in the proviso b (i) referred to above did not give any substantive right to the tenants. The principle which is applicable in the case of ejectment sought by a landlord against a tenant is to be governed by the provisions contained in the Transfer of Property Act. Such rights which are assigned in favour of the landlord or of the tenant under the general law are modified by the Rent Acts to a certain extent; or more Strictly speaking, certain provisions in the general law are suspended under certain circumstances. These circumstances are as detailed in the Rent Control Act. The attendant words of sub-section (1) of Section 11 of the Act make it abundantly clear that the right's which the landlord has got under the Transfer of Property Act are not taken away in their entirety, or the operation of those provisions in the Transfer of Property Act suspended, but the rights are modified in the manner indicated in Section 11. Section 11 of this Act provides that in spite of the provisions contained in the Transfer of Property Act or the Indian Contract Act, no decree for the recovery of possession of any premises shall be made as long as the tenant pays to the full extent the rent allowable under the Rent Control Act and performs the condition of his tenancy. Such immunity granted in favour of the tenant, however, cannot be availed of if the tenant in any particular case falls within the ambit of any one of the provisos to sub-section (1) of Section 11. The respective rights or the suspension of rights under certain circumstances are as between the owner and the tenant under him. The question whether a tenant is entitled to avail of any one or other of the provisos mentioned above would depend on the circumstances in each case; or whether sub-clause (i) of proviso (b) to sub-section (1) of Section 11 of the 1948 Act are attracted only as between the landlord and the tenant under him, for determining whether the tenant would be entitled to avail of the provisions suspending the operation of the law contained in the Transfer of Property Act and the Contract Act would, therefore, have to be regulated as between the owner and the tenant, and the sub-tenant or sub-tenants did not come into the picture at all.
5. The argument which was being advanced on behalf of the appellant in the present case would not, therefore, avail of any rights in favour of the sub-tenant on the basis of the portion of the premises which is in the occupation of the sub-tenant. Whether that proviso is attracted or not must be determined with reference to ,the premises let out to the tenant by the owner of the portion sublet by the former to a tenant or more than one tenant. It must, therefore, be held that the tenant in this case was not entitled to avail of any relief under the provisions contained in proviso b (i) to sub-section (1) of Section 11.
6. The next part of the argument on behalf of the appellant was founded on the provisions contained in sub-section (3) of Section 11 of-the 1948 Act. The relevant portion of this subsection is in the following terms:
'any person to whom any premises or any part thereof have been or has been lawfully sublet by a tenant shall, where the interest of the tenant in such premises or part is lawfully determined otherwise than by virtue of a decree or order obtained by the landlord on any of , the grounds specified in Clause (f) of the proviso to Sub- section. (1) be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord......'.
The question for consideration is whether the portion of the premises now in occupation of the plaintiff appellant had been lawfully sublet by the tenant defendant No. 2. It is contended that under clause (j) of Section 108 of the Transfer of Property Act, a tenant is entitled to sublet the whole or any part of his interest in the property. The opening words of Section 108 of the Transfer of Property Act exclude such cases where there are specific provisions in the contract or a local usage limiting the operation of the provisions contained in Clause (j). In the Lower! Court the defendant No. 1 had attempted to make a definite case that the letting out to defendant No. 2 was under a restrictive clause to the effect that the premises were not to be sublet. Reference was made in this connection to a certain clause appearing in the counter-foils of the rent receipt of the landlord defendant No. 1, exhibit B, and a letter, dated the 4th December, 1944, given by defendant No. 2 to defendant No. 1 in implementation of the restrictive clause. The Trial Court had on a consideration of these pieces of evidence reached the conclusion that there was a contract in the present case between the parties forbidding subletting. The Lower Appellate Court affirmed this decision. If this be taken as a finding, then the argument founded on Clause (j) of Section 108 of the Transfer of Property Act sustaining the subletting to be lawful must fail. Had not this been the case, and the subletting had been deemed to be a lawful one, the question raised by the appellant was really a debatable one. But in view of the facts found in the present case, that interesting question of law does not arise and require decision in the present appeal. I need not, therefore, refer to the decisions relied upon by the learned Advocate for the appellant in support of this part of the case.
7. All the grounds taken in this appeal fail. This appeal is therefore dismissed with costs.
8. In view of the orders passed in this, appeal, I further direct that the execution of the decree obtained by defendant No. 1 against defendant No. 2 in respect of the portion now in the occupation of the plaintiff and which had been stayed under the orders of this Court be not put into execution before the 1st March, 1951.
9. Leave to appeal under Clause 15 of the Letters Patent prayed for is refused.