The rights and interests of all non-agricultural tenants and under-tenants under the West Bengal Non-Agricultural Tenancy Act 1949 vested in the state free from all incumbrances on and from 9th September 1980.

( 1 ) -THE instant appeal is directed a against the judgment and decree dated 10th August, 1977 passed by the learned Additional District Judge, 1st Court at Jalpaiguri in O. C. Appeal No. 48 of 1976 reversing the judgment and decree of dismissal dated 21st June, 1976 passed in O. C. Suit No. 82 of 1971 passed by the learned Munsif, Jalpaiguri.

( 2 ) PLAINTIFF/respondents brought the said O. C. , Suit No. 82 of 1971 against the appellant/defendant for ejectment. The plaintiff case was that he purchased the suit land by a registered deed dated 27. 2. 68 and became the owner of the same. The plaintiff's dwelling house is on a portion of the disputed land. A portion of the land was lying vacant. In the early part of 1968, the defendant approached the plaudit to allow him occupy the vacant land for the purpose of running a coal depot. The defendant assured the plaintiff that he would vacate the same whenever he demanded. The tenancy agreed upon in respect of the suit land commenced on and from 1st April 1968 and the rent was fixed at Rs. 20/- and it was increased to Rs. 28/ -. The defendant raised a structure on the land en condition that he would dismantle the same when he would vacate the suit land. The defendant was a defaulter from April 1969. The plaintiff required the suit, land for guilds his own house so the plaintiff issued a nonce through his lawyer on 23. 9. 70 under the West Bengal Non-Agricultura1 Tenancy Act determining the tenancy but inspite of the notice the defendant did not vacate the land. Hence the suit.

( 3 ) THE defendant contested the suit by filing a written statement in which it was contended inter alia that the plaintiff let out to the defendant not only a vacant land but also structure in a dilapidated condition thereon at a monthly rent 6f Rs. 20/- arid it was agreed that the defendant would dismantle the structure and build a new structure for the purpose of running the business of store and selling soft coke etc. and would construct suitable culvert and partway at his own cost. The rent was enhanced to Rs. 28/ -. The alleged default in payment of rent was denied. It was further pleaded that the plaintiff previously served n combined notice through his lawyer under the provisions of the West Bengal Premises Tenancy Act, admitting thereby that the tenancy was governed by the West Bengal Premises Tenancy Act. It was contended that the tenancy was governed the provisions of the West Bengal Premises Tenancy Act and the notice was, therefore, ba5 in law and the suit was not maintainable.

( 4 ) DURING the pendency of the suit the original plaintiff died and her legal heirs were substituted who contested the suit.

( 5 ) THE learned Munsif held that land with structure was let out to the defendant and accordingly tenancy was governed by the West Bengal Premises Tenancy Act and the notice been given under the Non-Agricultural Tenancy Act, the suit was not maintainable. The learned Munsif accordingly dismissed the suit.

( 6 ) THE plaintiff preferred an appeal against the judgment and decree passed by the learned Munsif being O. C. Appeal No. 48 of 1976 which was heard by the learned Additional District Judge, 1st Court, Jalpaiguri. Upon a consideration of the evidence on record both oral and documentary he held in disagreement with the learned Munsif that only vacant land was let out to the defendant and net any premises. The learned Additional District Judge was of the opinion that even if land with a dilapidated structure was let out to the defendant and the defendant was given a right to dismantle the same and constructed a new structure as the defence case was, the defendant would because a non-agricultural tenant from the time when the structure was demolished. In view of the Division Bench decision of this court in a case reported in A. I. R. 1956, Cal. 168 it has been held in that case that where at the inception of the tenancy is given in respect of the land as also the structure st