Das Gupta, J. - (1.) The appellants brought the present suit to obtain a permanent mandatory injunction on the defendant restraining him from making certain pucca structures on the suit land. Their case is that on the terms of the kabuliyat under which the defendant's predecessor-in-interest took lease of this land from the plaintiffs, he and consequently defendant had no right to raise any pucca structure. The defence was that the present defendant as well as his predecessor Nani, who had taken the lease from the plaintiffs, had right to raise pucca structures.
(2.) The trial Court rejected the defendant's plea and holding that the defendant has no such right, decreed the suit and restrained the defendant from making any permanent structure on the land and also directed him to demolish the walls that he had already constructed on the suit land. On appeal the learned Additional Subordinate Judge has ordered that an issue should be framed whether the tenancy in suit is governed by the provisions of the West Bengal Non-Agricultural Tenancy Act, 1949, and whether in view of the provisions of that Act the plaintiffs are entitled to the relief claimed and has remitted the suit to the trial Court for disposal of the case after allowing the parties an opportunity to amend their pleadings and to adduce evidence with regard to a new issue. It is now contended before us on appeal that there was no justification for remand of the case to the trial Court and no necessity deciding whether the tenancy is governed by the provisions of the West Bengal Non-Agricultural Tenancy Act 1949, or not.
(3.) The first question is whether under section 88 of the West Bengal Non-Agricultural Tenancy Act. the provisions of the Act shall have effect in respect of the present suit. Section 88 is in these words : "The provisions of this Act shall have effect in respect of all suits, appeals or proceedings including proceedings in execution for ejectment of a non-agricultural tenant which are pending at the date of the commencement of this Act.";