Chunder, J. - (1.) These are five appeals against five appellate decrees by tenants with respect to some suits in ejectment. The same question of law arises and therefore the same judgment will govern all the five appeals.
(2.) The facts are very clear. On 2-6-1947, plaintiffs Nos. 2 and 3 made a deed of gift in favour of the Calcutta Corporation by Ext. 3 of some bustee land out of the bustee sityated at No 18, Monoharpukur Road. For each plot of land then in occupation of a tenant there were joint landlords, namely, plaintiffs Nos. 1, 2 and 3. None of them was a separate landlord so far as the tenant in each of these cases is concerned of any particular separate tenancy land. The whole tenancy land was vested and possessed in the right of a landlord by three persons together, namely, plaintiffs Nos. 1, 2 and 3. These five suits in ejectment were brought by plaintiffs Nos. 1, 2 and 3 together as constituting the joint body of landlords for ejectment of these tenants. These lands have been made over to the Calcutta Corporation for the purpose of a 20 ft. wide road. The plaint was filed on 23-3-1949. The Calcutta Thika Tenancy Act (West Bengal Act 2 of 1949) had come into operation from 28-2-1949. The plea was taken in the trial Court in all the five suits that the tenants were protected from ejectment by the provisions of the Thika Tenancy Act. In view of the decision of the definition of 'tenant' under the Thika Tenancy Act of 1949, the trial court held, by a judgment delivered on 29-11-1949, that such protection was not to be given to these tenants, and therefore the suits were decreed in favour of the landlord. An appeal was taken against all the five decrees but the appellate court upheld all the five decrees on 9-2-1952 and dismissed all the five appeals. Out of the Second Appeals, four were filed in this Court on 26-3-1952 and one had been filed previously on 10-3-1952. It is beyond dispute that all these five appeals were pending in the second Appellate Court when the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 was passed on 21-10-1952. It is also admitted by both parties that no application under Sub-section (2) of Section 5 of that Ordinance was actually filed in the trial court in any of these five cases. I am not concerned with the application filed in the appellate court. Then on 14-3-1953 West Bengal Act 6 of 1953, the Calcutta Thika Tenancy (Amendment) Act, 1953 came into operation. Section 1 enacts in its proviso that "the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by this Act, shall, subject to the provisions of Section 9, also apply and be deemed to have always applied to all suits, appeals and proceedings pending before any Court........on the date of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952." It is beyond dispute, as I have said, that all these five Second Appeals were pending before the second appellate Court on 21-10-1952 when that Ordinance commenced. Therefore, subject to Section 9 of the Amendment Act of 1953, the Calcutta Thika Tenancy Act, 1949, as amended by the Act of 1953, shall be deemed to have always applied. Section 9 runs thus: "Any proceedings commenced under Sub-section (2) of Section 5......were in force."
(3.) I have pointed out that it is the admitted position in this case that no application under Sub-section (2) of Section 5 was ever made in the trial court in any of these five cases. Therefore, the restriction regarding Section 9 does not apply. It is beyond any shade of a doubt that the Calcutta Thika Tenancy Act, 1949, as amended by the Act of 1953 has got to be applied in the Second Appeal and one of the amendments which will now apply is the amendment of the definition of a thika tenant. The reasons given by both the Courts below for holding that the Calcutta Thika Tenancy Act, 1949, did not apply is now untenable in view of the change in the definition of a thika tenant. The question, therefore, will have to be decided in the light of the new definition of a thika tenant whether the protection given will apply or not.;