A decree for eviction passed by a trial court can be set aside by an appellate court if the West Bengal Premises Tenancy Act, 1956 is extended to the suit property during the pendency of the appeal and the landlord fails to prove any ground for eviction under the Act.

( 1 ) THIS appeal is by the defendant Niranjan Modak who suffered a decree for ejectment in respect of the suit premises in the original suit filed by the plaintiff Lakshminarayan Guin and others, the respondents before this Court. In the first appeal below also Niranjan Modak was unsuccessful.

( 2 ) BRIEFLY stated, the case of the plaintiffs is that they are the owners of the suit property, a house and the defendant was a tenant under them in respect of the premises in question at a monthly rent of Rs. 100 payable according to Bengali Calendar month. The defendant did not pay any rent for the suit premises to the plaintiffs in spite of demand. Moreover, the plaintiffs required the premises for reconstruction of a new house on the land for their own use. As the defendant did not vacate the house in spite of service of notice to quit, the suit was filed for recovery of khas possession and also for arrears of rents. The defendant filed a written statement stating that there was no relationship of landlord and tenant as between him and the plaintiffs. The allegation about arrears of rent is false. According to the defendant, one Sishubala is the owner of the house and the defendant is a tenant under her and he paid rents to the said landlady. It has been further stated that the father of the plaintiffs obtained several deeds from Sishubala by making misrepresentation and by practising fraud. The trial court found that the case of the plaintiffs was proved and the defence case was not accepted. The suit was, therefore, decreed. In the first appeal taken by the defendant, it was held that the defendant was a tenant under the plaintiffs and the appellate court below also agreed with the triall court to affirm the decree passed against the defendant.

( 3 ) I have heard Mr. Banerjee, the learned Advocate appearing on behalf of the appellant and Mr. Ghosh for the respondents.

( 4 ) THE only point that has been urged by Mr. Banerjee on behalf of the defendant-appellant is that as the provisions of the West Bengal Premises Tenancy Act, 1956, hereinafter referred to as the Act were extended during the pendency of the first appeal below to the area where the suit premises stands, the decree passed by the trial court under the Transfer of Property Act is liable to be set aside in the absence of any evidence on record to prove any case as required under the Act. Mr. Ghosh's contention on the other hand, is that as the provisions of the Act have been extended to the suit properties after the passing of the original decree against the defendant, there can be no occasion for application of the provisions of the Act in the present case. The learned Advocates referred to several decisions which I have discussed hereafter.

( 5 ) THE original suit was filed on 12-6-67. The decree was passed by the trial court against the defendant on 17-2-69. The appellate court below dismissed the appeal on 16-1-70 and the present second appeal was presented on 25-3-70-Admittedly when the decree was passed by the trial court, the Act was not extended to the area of the suit property. The suit relates to a house which comes under the definition of 'premises' according to the Act. By the Notification No. 18398-LR/41-29/69 the Government extended the Act to the area called Memari where lies the suit premises. Both the courts below dealt with the case as one under the Transfer of Property Act. Regarding these facts there is no dispute.

( 6 ) MR. Ghosh at one stage made an attempt to argue that the records would show that the decisions arrived at by both the courts below were made according to the evidence as required under the provision of the Act. The record, however, reveals that no notice was served upon the defendant under Section 13 (6) of the Act and moreover, there is no evidence whatsoever proving any ground for ejectment of a tenant as mentioned in Section 13 (1) of the Act and therefore, Mr. Ghosh gave up that point. His main conten