(1.) This appeal arises out of a suit for ejectment, rent and mesne profits. The suit was dismissed by the trial court except for the claim for rent, the amount of arrears of rent appearing to have been deposited in court during the pendency of the suit in the trial court for obtaining stay of the same under Section 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940. On appeal, the aforesaid decree of dismissal was set aside and the claim for ejectment also was allowed and the suit was decreed for ejectment with certain directions, the mesne profits and also the claim for rent being left to be determined by the trial court in a future proceeding. Against this appellate decree, the present appeal has been preferred by the Defendants Nos. 2 and 3, who were purchasers pendente lite of the interest of the original tenant, Defendant No. 1, against whom alone the suit was brought in the first instance.
(2.) The facts, relevant, for our present purpose, may now be stated briefly as follows:
The principal Defendant, who was Defendant No. 1 in the present suit, had a lease of the suit lands for a term of 9 years, under a lease dated February 26, 1932, at a rental of Rs. 30 annum. That lease under and by virtue of the above term, expired in February, 1941. Thereafter, however, the Defendant No. 1 continued in possession and, eventually on June 2, 1941, a notice was served upon him by the Plaintiff-landlords, directing him to give up possession by the end of June, 1941. This notice appears to have been disregarded by the tenant and, in consequence, the present suit was brought on February 13, 1945. At an earlier stage of this suit, a question arose whether, due to certain alleged dispossession of the tenant by the landlords, there would be suspension or abatement of rent, or whether the landlords would be entitled to rent and that, again, at the original rate and the court, having come to the conclusion that the plea of suspension or abatement would fail in the circumstances of this case, upheld the landlords' right to recover rent at the original rate, and, in view of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, vide Section 3, the learned Munsif directed that, on deposit of the rent by the tenant, Defendant No. 1, the suit would remain stayed until the expiry of the said Act, in terms of the aforesaid section. The suit, thereafter, remained stayed, as aforesaid, but the stay order was eventually vacated on the expiry of the aforesaid statute and its replacement by the West Bengal Non-Agricultural Tenancy Act, 1949, and the suit was token up for trial. In the meantime, however, the tenant, Defendant No. 1 had transferred his interest to the pro forma Defendants Nos. 2 and 3, who were brought on the record at the instance of the Plaintiffs, and the suit proceeded against all the three Defendants on record. The contest, however, was eventually made by Defendant No. 2 alone and his plea was that, in the circumstances of the case, the original tenant, Defendant No. 1 had the protection of the West Bengal Non-Agricultural Tenancy Act, 1949, under Section 7(5) of that statute, inasmuch as, during the currency of his aforesaid tenancy, "pucca structures" had been erected on the suit land by him and had been allowed to be so erected by the landlords and that the said protection, which was available to the Defendant No. 1 at the date of the suit, was eventually, obtained by the transferees, pro forma Defendants Nos. 2 and 3, by their purchase pendente lite as aforesaid. It was, accordingly, contended that, in the present suit, the Plaintiff's could not get any decree for ejectment in view of the aforesaid Section 7(5) of the West Bengal Non-Agricultural Tenancy Act, 1949. This plea was accepted by the learned Munsif and the Plaintiffs' suit was dismissed, as we have stated earlier in this judgment.
(3.) The learned Subordinate Judge, before whom the Plaintiffs' appeal came up for hearing, however, took a different view in the matter-not on the question that there were "pucca structures" on the said land, as claimed by the Defendants nor on the question that they were allowed by the landlords to have been constructed by the tenant (Defendant No. 1) but upon the view that, the tenant Defendant No. l's tenancy having expired by efflux of time, in February, 1941, or at any rate, by reason of the notice to quit in June, 1941, at the date of the present suit or at the date of the 1949 Act, referred to above, or earlier, at the date of the transfer pendente lite to Defendants Nos. 2 and 3, the said tenant, Defendant No. 1 had become a trespasser and so, Defendants Nos. 2 and 3 also, who were mere transferees from him, could not claim to be in a better position and they also were trespassers and all the Defendants being thus trespassers at the date of the instant suit and/or at the time when the 1949 Act came into operation, they could not be regarded as non-agricultural tenants within the meaning of the said Act and could not, therefore, claim any protection there under. This, indeed, was the main or the substantial reason for the decision of the learned Subordinate Judge, decreeing the Plaintiffs' claim for ejectment. The learned Subordinate Judge also disagreed with the learned Munsif on his other finding that, in the circumstances of this case, the tenant Defendant No. 1 could not be said to have been holding over after June 1941, and that finding of the learned Munsif also was expressly set aside.;