M.L. Dalmiya and Company vs Chinta Haran Mukherjee

Renupada Mukherjee, J.—This appeal arises out of a suit instituted by the Plaintiffs Respondents for eviction of the Defendants Appellants, who represent a firm and its proprietors from a brick field described in the schedule of the plaint after service of notice to quit and for recovery of damages. The suit was brought on the footing that the Defendants were non-agricultural tenants.

The suit was contested by the Defendant firm. The contesting Defendant pleaded, inter alia, that Defendants Nos. 2 and 3 were not necessary parties, that the notice to quit was invalid and insufficient, that the Defendants had erected pucca structures with the knowledge and consent of the Plaintiffs and was not liable to be evicted and that the Plaintiffs were not entitled to recover any damages.

The trial court negatived all the contentions of the contesting Defendants and decreed the suit. The Defendants were allowed to remove their structures, kilns and other implements of the brick field within the time specified by the court.

An appeal was preferred by the Defendants which succeeded in part. The lower appellate court held that the Defendants were liable to be evicted, but such eviction would follow only after the Plaintiffs paid reasonable compensation to the Defendants according to the provisions of 9(1)(c)(iii) of the West Bengal Non-Agricultural Tenancy Act. In this view of the matter the lower appellate court remanded the case to the trial court for determining the amount of compensation and for passing a decree for eviction after payment by the Plaintiffs landlords the amount so determined to the Defendants tenants The second appeal has been preferred by the Defendants against the above judgment and decree passed by the lower Appellant court.

Dr. Gupta appearing on behalf of the Defendants Appellants urged two points for our consideration in this appeal. He contended in the first place that all the rights of the Plaintiffs Respondents who are admittedly intermediaries within the meaning of the West Bengal Estates Acquisition Act, 1953, having vested in the State Government under Sub-section (8) of Section 4 of the above Act, the suit for eviction and consequently the decree pending in appeal have become infructuous and the Appellants who are the actual possessors and tenants of the disputed brick field have become direct tenants under the State His second contention was that the Appellants having purchased pucca structures in the brick field from the Respondents and they laving also erected pucca structures themselves with the consent of the landlords are protected from eviction u/s 7(5) of the West Bengal Non-Agricultural Tenancy Act. We shall take both these points one after another.

As regards the first point, there is no question that the interest of the Respondents landlords in the brick field was that of an intermediary and that their interest has vested in the State Government on 1st Baisakh, 1362 B.S. corresponding to April 15, 1955, that is, when the appeal was pending in this Court. It was argued by Dr. Gupta and conceded to by Dr. Pal on behalf of the Respondent, that the court should take into its consideration the altered circumstances brought about by legislative changes which have supervened since the decision under appeal was given. Pursuing this argument Dr. Gupta submitted that by reason of the vesting of the entire interest of the Respondents in the State Government their right to get an effective decree for eviction against the Appellants has become lost and the latter have automatically became direct tenants under the State simultaneously with the vesting. Dr. Pal on behalf of the Respondents advanced a two-fold argument for repelling this contention of Dr. Gupta. He submitted, in the first place, that the State was practically in the position of an assignee and as it has not chosen to defend the appeal in spite of service of notice, the Respondents can, on the analogy of Rule 10 of Order 22 of the Code of Civil Procedure, defend the appeal. The second argument of Dr. Pal was that whatever may be the legal effect of the order of vesting, the conditional decree for eviction passed by the lower appellate court stands good until it is set a side by a competent court or rendered infructuous by operation of law. Dr. Pal submitted that there is no express or implied provision in the West Bengal Estates Acquisition Act which nullifies the effect of all decrees for eviction passed before the date of vesting but pending in appeal on that date. We are not impressed by the first part of Dr. Pal''s argument because there cannot be any real analogy between a vesting under the Estates Acquisition Act and an assignment inasmuch as the order of vesting not only wipes the legal existence of the intermediary but confers upon his erstwhile tenants the status of a direct tenant under the State. The second branch of Dr. Pal''s argument, however, seems to be a substantial one and must be given effect to for the following reasons.

A tenant against whom a decree for eviction has been passed before the date of vesting under the West Bengal Estates Acquisition Act becomes a trespasser in relation to his land from the date of the decree subject to the result of any appeal which he may have preferred against the decree. The decree is left untouched by the above Act and so it would be absurd to pay that the effect of the decree is completely nullified by reason, of the vesting. The position becomes further complicate where, as in the present case, a decree for damages is also passed against the tenant on the footing that he is declared to be a trespasser from a date prior to the date of vesting. This part of the decree for damages cannot in any way be rendered nugatory by the order of vesting and where such a question is pending in appeal on the date of vesting the question must be finally determined in the appeal. The determination of the question of the tenant''s liability for damages being dependant on the question of the existence of his tenancy, it would be absurd to say that the whole decree including the decree for damages has become infructuous by reason of the vesting. In this connection I may usefully refer to Clause (c) of Section 5 of the West Bengal Estates Acquisition Act:

(c) Every non-agricultural tenant holding any land under an intermediary and until the provisions of Chapter VI are given effect to, every raiyat holding any land under an intermediary, shall hold the same directly under the state, as if the State had been the intermediary and on the same terms and conditions as immediately before the date of vesting.

The above quoted Clause (c) of Section 5 shows that the erstwhile tenant would become a direct tenant on the same terms and conditions as immediately before the date of vesting. The expression "on the same terms and conditions as immediately "before the date of vesting" is very significant. It shows that where there is an ejectment decree against the tenant prior to the date of vesting, the ex-tenant cannot be elevated to the position of a direct tenant until the decree is set aside in apple Where an appeal is pending.

The above question appears to have come up for the consideration of a Division Bench of this Court in the case Lalji Aganrwalla Jain v. Jhingu Goala (1956) 61 C.W.N. 607. The Appellant there was the landlord. The Respondent tenant took a preliminary objection that the appeal was no longer maintainable because the estate of the Appellant had vested in the State. This contention was negatived by the learned Judges, because in their opinion the compensation for the land would vary according as the land was khas or tenanted and so it was to the interest of the Appellant to prosecute the appeal to establish that the land was not tenanted. I respectfully agree with this view. In this connection Dr. Pal relied on a case, Reliance Development Engineering Ltd. v. The Corporation of Calcutta (1957) 61 C.W.N. 533. In that case it has been held that the intermediary of a brick field is entitled to retain it in his khas possession under Sub-clause (g) of Sub-section (1) of Section 6 of the West Bengal Estates Acquisition. Act in Spite of the order of vesting. In my opinion this case has got no application to the facts of the present case because the Respondents here have not got a final decree for khas possession as yet as in the case cited above. The final decree for khas possession would be passed in this case only upon the determination of the amount of compensation payable to the Appellants and payment of the amount by the landlords Although, therefore, both parties filed a number of affidavits and counter-affidavits in this case to show that they are in possession of the disputed brick field on payment of rent to Government, the question of retention of the land by the Respondents does not arise at the present stage inasmuch as the question of the determination of Appellants'' tenancy has yet to be decided finally in this case.

A recent case, Ganesh Chandra Mahato v. Sudarshan Dey (1957) 62 C.W.N. 86O would help the contention of the Respondents that the suit for eviction does not become incompetent by reason of the vesting of the interest of the Plaintiffs. In the abovementioned case Sen, J. held that the right of an occupancy raiyat to obtain pre-emption was not affected by reason of the vesting of his interest in the State and he was entitled to prosecute an application for pre-emption in spite of the vesting. The right of an intermediary to prosecute a suit for eviction after the vesting of bis interest in the State stands on the same footing as the right of an occupancy raiyat to prosecute an application for pre-emption after the vesting of Ms interest in the Estate. The case reported in 62 C.W.N., 360 and the other case to which I have already referred negative the Appellants'' contention that the suit for eviction has become infructuous ah initio and the Respondents are no longer competent to obtain an effective decree for eviction after the vesting of their interest in the State. The first contention urged by Dr. Gupta, therefore fails.

The only other contention made by Dr. Gupta was that the Appellants are not liable to eviction because they have got some pucca structures in the brick field, 11 themselves and some others erected with the knowledge and consent of the Respondents. It is an admitted fact that the Appellants at first took the land of the brick field only from the Respondents for a period of three years from Kartick, 1347" B.S. to Aswin. 1350 B.S. (vide Ext. 1). It la also admitted that later on in Jaistha, 1949 B.S. the Appellants purchased the structures of the brick field, namely, the kilns the office rooms and the cooly linos, etc. (vdie receipt Ext. B). They also made some additions and alterations in these structures and sank a tube-well. The lower appellate court has held that these are not pucca structures within the meaning of Section 2(7) of the; West Bengal Non-Agricultural Tenancy Act and so the Appellants are not entitled to claim the benefit of Section 7(5) of the same Act.

After hearing the learned Advocates for both parties on the above question I am of opinion that the question has not been properly dealt with by the courts below and it requires further investigation. The contentions of the Appellants under this head are of a two-fold character. First, they purchased pucca structures on the brick field from the Respondents themselves which amounts in law to the same thing as allowing by a landlord the erection of pucca structures by the tenant within the meaning of Section 7(5) of the West Bengal Non-Agricultural Tenancy Act. Secondary, the Appellants improved those structures with the knowledge and consent of the landlords and also erected fresh pucca structures with their knowledge and consent. This second part of the contention of the Appellants is not borne out by any reliable evidence and it has rightly been repelled by the lower appellate court. So, the only question which remains for our consideration is whether the purchase of the structures from the landlords subsequent to the taking of the lease of the land entitles the Appellants to the protection Tinder Section 7(5) of the Act mentioned above, assuming for the moment that the structures were pucca. It was submitted by Dr. Pal on behalf of the Respondents that the lower appellate court was right in holding that the Appellants are not so entitled as the Respondents never allowed them to erect those structures.

The material portion of Section 7(5) runs in the following terms:

Notwithstanding anything contained in any other law for the time being, in force or in any contract-

(5) if the landlord has allowed pucca structures to be erected on any non-agricultural land held under a lease in writing for a period specified therein, whether such structures have been erected,

(a) before the expiration of the said period, or

(b) where such non-agricultural land continues to be held with the express or implied consent of the landlord after the expiration of the said period, during the period such non-agricultural land so continues to be held, then (i) the tenant holding the non-agricultural land comprised in such tenancy shall not be ejected by his landlord from such land except on the ground that he has used such land in a manner which renders it unfit for use for the purposes of the tenancy.

The above quoted portion would show that a non-agricultural tenant enjoys a large measure of protection against eviction if he has made some substantial commitments in his holding in the shape of pucca structures with the assent of the landlord. On principle there can be no difference between the case of such a tenant and the case of a tenant who has first taken settlement of the land and then purchased existing pucca structures from the landlord as was done by the Appellants, because in the latter case the landlord''s assent to the continuance of the pucca structures on the tenant''s holding is clear and unequivocal. I am, therefore, of opinion that the Appellants would get the benefit of Section 7(5) of the Non-Agricultural Tenancy Act provided the structures purchased by them from the Respondents were pucca. The question, therefore, narrows itself down to this: Whether the structures which were sold by the Respondents to the Appellants in Jaistha, 1349 B.S. were pucca at the date of the sale. A pucca structure has been defined in Section 2(7) of the above mentioned Act. It is a structure constructed mainly of brick, stone or concrete or any combination of these materials. The lower appellate court, although it has referred to the above definition, has been mainly influenced by the value of the structures which was Rs. 1,300. It did not discuss the actual evidence adduced by the parties bearing on the question of pucca or katcha character of the structures with special reference to the definition of a pucca structure as given in the Act. The matter, therefore, requires a closer and fuller examination by the lower appellate court. I would, therefore, remand the matter to that court for deciding the question whether the structures purchased by the Appellants from the Respondents by the receipt marked Ext. B were pucca structures within meaning of Section 2(7) of the West Bengal Non-Agricultural Tenancy Act at the date of the purchase. Since the matter is being remanded parties will be given reasonable opportunities to adduce further evidence on the above question. If after a consideration of the entire evidence the lower appellate court comes to the conclusion that the structures purchased by the Appellants from !the Respondents were pucca within the meaning of Section 2(7) of the West Bengal Non-Agricultural Tenancy Act, then it will dismiss the suit of the Plaintiffs Respondents and it will maintain its previous decree if the finding is to the contrary.

For reasons set forth above this appeal is allowed. The judgment and decree of the lower Appellate court are hereby set aside and the case remanded to that court for re-hearing of the appeal in the light of the above observation and in accordance with law. Parties will bear their own costs in this Court but costs of the courts below will abide the final result of the suit.

BANERJEE, J: I agree, but I desire to add, a few words of my own, on the question as to whether a landlord becomes disentitled to a decree for eviction, after his interest as an intermediary vests in the State Government, under the West Bengal Estates Acquisition Act.

The point arises in this appeal, at hereinafter indicated. The Plaintiffs Respondents were proprietors of a brick-field land, measuring 5 acres 16 decimals, in village Krishnagar, P.S. Mahestola. Dt. 24-Parganas. recorded in Khatian No. 344 of the said village. The Appellant firm had taken a lease of the aforesaid land, together with office rooms, cooly lines and brick-kiln thereon for one year from Kartick, 1346 B.S. to Aswin, 1347 B.S. at a rental of Rs. 1,001 and after the expiry of the aforesaid tenancy, a fresh non-agricultural tenancy was created in favour of the Appellant firm for three years from Kartick, 1347 B.S. to Aswm, 1359 B.S. only in respect of the disputed land at a rental of Rs. 727-8. The creation of the latter tenancy is evidenced by a kabuliyat, executed on October 24, 1941, by Defendants Appellants Nos. 2 and 3, who are partners of the Appellant firm. After the expiry of the term of the second lease, in favour of the Appellant firm, the Plaintiffs Respondents settled the disputed land with one Thadmall, in the expectation that the Appellant firm would quit and vacate the disputed land in terms of the kabuliyat. The Appellant firm, however, did not make over possession and, thereupon, in the year 1944, the Plaintiffs Respondents of the present appeal instituted a suit against the present Appellants, claiming their eviction. The said suit remained stayed under the provisions of the Non-Agricultural Tenancy Act, 1949, until August, 2, 1950 and thereafter was dismissed for default. The Defendant Appellant firm continued in its possession of the disputed land, of payment of rent to the Plaintiffs Respondents, up to Aswin, 1358 B.S. and also, in the meantime purchased the office rooms, cooly line, kiln, etc. standing on the disputed land, for a consideration of Rs. 1,300. On March 29, 1951, the Plaintiffs Respondents caused notice of termination of the tenancy served upon the Defendants Appellants, calling upon them to vacate with the expiry of the month of Aswin, 1358 B.S. On the failure of the Defendant Appellant firm to vacate, the suit, out of which this appeal arises, was filed on November 11, 1951.

The trial court decreed the suit. An appeal by the Defendants Appellants to the court below, however, succeeded to this extent that the case was sent back on remand to the trial court for determination of the amount of compensation to be paid by the Plaintiffs Respondents to the Defendants Appellants for the structures. On payment of the compensation to be determined, the trial court was directed to pass a decree for eviction against the Defendants.

This second appeal was filed on August 9, 1954 against the decree for remand.

Subsequent to the filing of the second appeal, the declaration u/s 4 of the West Bengal Estates Acquisition Act, 1953, was made, causing vesting of estates and rights of intermediaries in the, State, with effect from April 15, 1955. The interest, of the Plaintiffs Respondents, as intermediaries in the disputed land vested in the State of West Bengal.

By an application, affirmed on April 17, 1956, the Appellants brought to the notice of this Court the factum of the vesting and also the fact that on February 29, 1956, the collecting officer of the State Government had realised from the Defendants Rs. 791-1-9, on account of rent for the year 1362 B.S. In the circumstances, it was prayed that the suit for possession should be dismissed.

By an affidavit-in-opposition, filed on behalf of the Plaintiffs Respondents and affirmed on April 20, 1956, it was urged that the Plaintiffs did exercise their option of retention in respect of the disputed land u/s 6 of the West Bengal Estates Acquisition Act and in the preparation of record-of-rights, which was going on and reached the attestation stage, the Defendants Appellants were not shown as tenants. It was further urged that the receipt of rent by the State Government was granted to the Defendant Appellant without prejudice to right to possession, the money paid kept in suspense account subject to final adjustment.

By another affidavit-in-opposition, affirmed on August 2, 1956 the Plaintiffs Respondents disclosed copies of documents on which the allegations of fact in the first affidavit in opposition were based.

By an affidavit-in-reply, affirmed on August 6, 1956, the Defendant Appellant alleged that the option for retention, by the Plaintiff Respondent, in respect of the disputed land was exercised long after the demand of rent from the Defendant, by the State Government. In the return filed, for the retention of the land in suit, untrue allegation was made by the Plaintiffs Respondents to the effect that the land in suit was their khas land, while, in fact, the Defendants were in possession thereof. In the attestation papers the possession of the Defendants, in respect of the land in suit, was recorded as based on fact, in view of the litigation going on.

These are, of course events subsequent to the filing of appeal in this Court and the material provision of the West Bengal Estates Acquisition Act itself came into operation during the pendency of the second appeal in this Court. But as a court of appeal we are entitled to take notice of the situation brought about by the new Act.

In the case of Shyamakanta Lal v. Rambhajan Singh [1939] F.C.R. 193, Sulaiman, J. observed as follows:

The second ground is that -we can in appeal take into account the imperative provision of the new Money Lender''s Act, which has already come into force and which automatically repeals the old Act. Of course we are not hound to do so, as the Appellant can move the Execution Court afresh to act under the new Act and it is the duty of that Court so to act oven without an application. But In Quitier v. Mapleaon (1882) 9 Q.B.D. 672, it was held that an appellate court could grant relief according to the new law, which had come into force in the meantime, even though the judgment of the court below had been correct according to the law as it then stood. It may, however be pointed out that under the English Order 58 Rule 2 appeals were by way "rehearing" and the appellate court had power not only to make any order which ought to have been made by the court below, but also to make such further or other order as the case may require. The last words occur in the Indian Code of Civil Procedure, Order 41 Rule 33 also.

In exercise of our powers under Order 41, Rule 33 of the Code of Civil Procedure, we took note of the changes introduced and effected by the West Bengal Estates Acquisition Act.

Dr. Atul Chandra Gupta, appearing for the Appellants, made a point on the situation arising out of the vesting of the Plaintiffs landlords'' interest, as intermediary, in the State. He argued that because of the vesting, the relief claimed by the Plaintiffs was no longer available to them and the decree for possession should be set aside. He argued, further, that the Plaintiffs could not escape the consequence by setting up a case that they had exercised their option to retain the land in dispute. Dr. Gupta emphasised on the fact that the decree for possession, passed by the trial court was set aside by the court of appeal below. In the event of the Plaintiff landlord paying down the amount of compensation, to be determined by the trial court, the direction, in the decree of the court appeal below, was that a decree for eviction against the Defendants Appellants would be passed. In fact the Defendants Appellants were in possession of the land in suit. Such land was not, therefore, non-agricultural land in khas possession of the intermediary landlords, which they were entitled to retain u/s 6(1)(c) of the West Bengal Estates Acquisition Act. Belying on Section 6(1)(g) and Section 6(3) of the West Bengal Estates Acquisition Act, Dr. Gupta contended that the Defendants Appellants as lessees were entitled to retain the brick field, which must be regarded as land comprised either in factories or in workshops. For the last proposition Dr. Gupta relied on a decision. The Reliance Development and, Engineering Ltd. v. Corporation of Calcutta (1957) 61 C.W.N. 533 (supra).

The argument made by Dr. Gupta is attractive but I am unable to accept the same.

In the first place, there is a judgment of a Division Bench of this Court, directly against the contention made by Dr. Gupta, P.N. Mookerjee and P.K. Sarkar, JJ. in delivering the judgment in the case of Lalji Agarwalla v. Jhingu Goala (1956) 61 C.W.N. 607 (supra) which was also a case of eviction of a non-agricultural tenants observed as follows:

At the hearing a preliminary objection was raised to the maintainability of this appeal on the ground that the Appellant''s estate including the disputed land having vested in the State under the Estates'' Acquisition Act, 1953, the Appellant had no locus standi to maintain or continue this appeal. We do not think, however, that this objection is sound. So far as the disputed land is concerned, the Appellant''s claim for compensation will greatly vary in amount according as it is tenanted or khas. If the present appeal succeeds, the Appellant will be entitled to khas possession of the land though the possession will ultimately ensure to the State''s benefit and his claim for compensation will be determined on that footing. If it fails, the land will remain the tenant Respondent''s land under the Appellant and will be tenanted land so far as the Appellant is concerned and his compensation will be determined accordingly. In this view, we overrule the preliminary objection and proceed to decide the appeal on the merits.

One way of looking at the matter is undoubtedly as stated in the above decision.

The real question, however, is what happens to an "intermediary" after the vesting of his estate in the State under "the provisions of the "West Bengal Estates Acquisition Act. Does an intermediary cease to exist in the eye of law and as such become disentitled to maintain his suit or appeal and also disentitled to the benefits of any decree for possession in his favour?

A question, somewhat analogous to the present one, was considered in relation to merger of certain acceding States in Bihar and Orissa with the then Dominion of India. The State of Seraikella and certain other princely States, in Bihar and Orissa, instituted a batch of suits in the Original Jurisdiction of the Federal Court, as it was functioning before the Constitution of India came into force, claiming certain declaratory reliefs in regard to the alleged wrongful merger of their respective territories in the territories of the adjoining Provinces of Bihar and Orissa. The substance of the Plaintiffs'' case, in each suit, shorn of verbiage was that the merger and the taking over of the administration of the territory concerned, carried out in purported exercise of powers conferred by the States'' Merger (Governor''s Provinces) Order, 19491, made by the Governor-General of India u/s 290A of the Government of India Act, 1935, was a breach of the terms of the Instrument of Accession executed by the Rulers and accepted by the Governor-General in August, 1947, which continued the Sovereignty of the Rulers in and over the State, and that all notifications, orders or enactments issued or made in violation of the rights and obligations flowing out of the Instrument were ultra vires, void and inoperative. The Constitution of India having come into force, after the filing of the aforesaid suits, those suits, by virtue of Article 374(3) stood removed to the Supreme Court of India. An issue was thereafter raised as to whether having regard to the provisions of the Constitution the Plaintiffs States had legal capacity to maintain the suits. It was argued on behalf of the Plaintiffs States that if there was any limitation in the jurisdiction of the Supreme Court to hear such suits, if instituted under its original jurisdiction, such limitation was not relevant to be considered in respect of suits;

which stood transferred to the Supreme Court under Article 374 (2). The judgment in the above case is reported in State of Seraikella Vs. Union of India (UOI) and Another, . Excepting Mahajan, J., all the other Judges of the Supreme Court held that the Supreme Court could not hear and determines the suits. Das, J. (as the present Chief Justice of India then was) in delivering a separate judgment observed as'' follows:

The question is whether territories of the Plaintiff States "were in fact being administered as if they formed part of the "Provinces of Bihar and Orissa and whether such territories "were being so administered by virtue of an order made "under Section 290A of the Government of India Act. There "can be no doubt that the answer must be in the affirmative. "this Court is bound by the Constitution and cannot question the "validity of any of its provisions. The Constitution says that "the territories of Bihar and Orissa shall comprise the territories "specified in part A and this Court must accept that position. "None of these States in included amongst the States named in "Parts A, B and C. Our Constitution does not recognise any of "these States as acceding State. The Government of India Act, "which recognised them as acceding States has been repealed. "Therefore the Plaintiff States have no existence in the eye of "the Constitution and cannot come to this Court to enforce their "political rights. *****. Our constitution has quite clearly "eliminated these States as such by absorbing their territories "with the States of Bihar and Orissa. As our Constitution does "not recognise these States as acceding States or even as States "this Court cannot recognise these States or their political "rights.

The above case was decided on certain special provisions of the Constitution. These considerations are not relevant in deciding the present question. Therefore, however, akin may be the present problem with the problem in the State of Seraikella Vs. Union of India (UOI) and Another, cannot be utilised for the solution of the present problem.

I have, therefore, to examine the position of an intermediary after vesting as under the West Bengal Estates Acquisition Act. Upon the making of a declaration u/s 4 of the Estates Acquisition Act, estates and rights of intermediaries in the estates, to which the declaration applies, vest in the State free from all incumbrances and u/s 5 of the Act every non-agricultural tenant, in particular, holding land under an intermediary shall hold the same directly under the State, as if the State had been the intermediary and on the same terms and conditions as immediately before the date of vesting. The Collector shall, in exercise of the power u/s 10 of the Act, thereupon, take charge of estates and interests of intermediaries which vest in the State and, for that purpose, may by written order require any intermediary or any person in possession (khas or symbolical) to give up such possession by a date to be specified in the order. In Section 11 of the Act, there is provision; for imposition of penalty for non-compliance with the Collector''s order stated above. AH estates and all interests of intermediaries which vest in the State and which have been taken possession of by the Collector, shall, under the provision of Section 11 of the Act, be managed according to such rules as the State Government may from time to time make. After vesting, an intermediary becomes entitled, if he choses, to retain u/s 6 of the Act certain lands, in particular non-agricultural land in his khas possession, up to a certain acreage and also land comprised in mills, factories or workship as tenant under the State, subject to payment of such rent as may be determined. Intermediaries also become entitled to compensation, to be assessed according to the provisions of the Act. Such assessment of compensation are made on different footing in respect of tenanted land and khas land, as will appear from Section 16 of the Act. Now, if prior to the date of vesting, an intermediary becomes entitled to clear a land of tenant, either under a valid cause of action or under a decree already passed, whether under appeal or not, there is nothing in the Estates Acquisition Act, to prevent such an intermediary from enforcing his rights. If the clearance of tenant from a plot of land, already vested in ''"the State, is an economic proposition for an intermediary from the point of view of assessment of compensation, he may try to evict the tenant from the land and claim compensation from the same as bare land, not encumbered with any tenancy. Therefore an intermediary does not cease to be existent in the eye of law, after vesting and does not lose all interests in the vested land.

Dr. Gupta argued that courts should look to the intention of the recent land law legislation before arriving at the conclusion on the problem raised. It is no doubt true that "West Bengal Estates Acquisition Act, 1953,. and the. West Bengal Land Reforms Act, 1955, were passed with the object of acquisition, by the State, of all estates and rights of intermediaries "therein so that consequent upon the vesting of such rights in the State, certain reforms in the land tenure in the State could be effected Section 49 of the Land Reforms Act 1955 provides as follows, in prescribing principles of distribution of lands:

Subject to the provision of this Act, settlement of lands which are at the disposal of the State Government shall be made**with persons who are residents of the locality where the land is situated and who intend to bring the land under personal cultivation and who own no land or less than two acres of land preference being given to those among such persons who form themselves into a Co-operative Farming Society.

Dr. Gupt''s argument in effect was that any interpretation which concedes, to the quondam landlord, right to chase out an actual occupier of land by legal process should be avoided. That may be the proper way of interpreting the present day land laws, if it can be done without doing violence to the language of the Statutes. But where the Statute, either expressly or by implication, afford no such protection to the actual occupier, it is not permissible to import such a protection for the person or persons in actual occupation of land.

Here in the present case, at the date of the suit the Plaintiffs landlords may have had a cause of action to evict the tenant. They instituted a suit in enforcement of that cause of action. The suit was decreed. It went up in appeal and in second appeal. Such appeals are continuation of the suit. There is nothing to indicate in West Bengal Estates Acquisition Act that such appeals or suits must abate or the quondam landlord must become disentitled to a decree, consequent upon the vesting of the rights of the intermediaries, who are Plaintiffs, in the State Government. Whether in execution of the decree that may be passed, the Plaintiffs landlords can recover possession of land in suit or whether the State Government may accept the Defendants as tenants or whether the Plaintiffs landlords may retain the suit land after turning out the tenants Defendants are questions, which need not be considered. Assuming, as Dr. Gupta argued, that the land in suit, being in fact in possession of the Defendants, could not be treated as khas land of the Plaintiffs intermediaries even then the Plaintiffs have interest in obtaining the decree for eviction. They may then claim, on the basis that the tenancy ceased to exist under the decree, compensation for the land as not encumbered with any tenancy.

In the above view of the matter, I am of opinion that even after vesting of a land under the Estates Acquisition Act, an outgoing landlord can continue a suit for eviction and obtain a decree for eviction and also that suits for eviction, whether or not pending in appeal do not become infructuous.

In other respects, I agree with the order made by My Lord.