A lease of a building for residence with tank and land as appurtenant is a lease of premises within the meaning of the West Bengal Premises Tenancy Act, 1956 and its provisions are applicable to the parties concerning the tenancy in respect of the suit property.

1. THIS is an appeal against a judgment and decree of reversal. The plaintiffs instituted the suit on May 9, 1969 for recovery of possession of a piece and parcel of bastu land measuring 11 cottahs forming the demarcated portion of plot 128. Khatian 1695 and 576. Mouja Barisa, P. S. Behala being premises No. 28/16/1, Kalikinkar Road within South Suburban Municipality with a tank and two storeyed pucca building thereon with appurtenances. The plaintiffs respondents case is that the suit land with a tank and two storeyed building on part thereof was purchased by Nirod Barani widow of Surapati Roy Choudhury out of her stridhan money on February 18,1949. On October 17, 1958 a lease in respect thereof was executed between Nirod Barani as lessor and the defendant appellant as lessee for ten years at a rent of Rs. 50/- per month payable according to the English Calendar month. Nirod Barani died on October 19, 1964 and on her death, the plaintiffs got the property by inheritance, as her brother's sons' sons and daughters. The lease expired on and from October 17, 1968 and the plaintiffs by notice dated November 12, 1968 called upon the defendant to quit and vacate the premises within fifteen days of the receipt of the notice. As the defendant failed to comply with the requisition the suit was instituted claiming a decree for eviction of the defendant and for mesne profits.

2. THE suit was contested by the defendant and in his written statement stated that the lease was granted by one Srish Chandra mookerjee and not Nirod Barani, who was thus a necessary party to the suit. In any event it was stated that the plaintiffs were not the legal heirs of Nirod Barani who died without leaving any legal heir. The legal validity of the notice was also challenged.

It transpired in evidence that the property originally belonged to Nirod barani who sold it to Sarbeswar on December 21, 1940 for Rs. 2200/- only. On February 18, 1949 Sarbeswar sold the property to Srish Chandra Mukherjee for the same consideration. Srish it is claimed by the plantiffs, was a benamdar of Nirod Barani and as such benamder granted the said lease to the defendant. On July 3 1964 a nadabi deed was executed by Srish declaring Nirod Barani as the owner of the property and soon thereafter on October 19, 1964 Nirod Barani died leaving the plaintiffs as her legal heirs:

3. THE learned Munsif found on evidence that the custody of the sale deed was not established nor the financial capacity of Nirod Barani to purchase the property or her payment of consideration was established. The Nadabi was executed by Srishs constituted attorney but none of them was examined. It was held that the benami nature of transaction was not established end even though the defendant paid rent to Nirod Barani for few months after execution of the nadabi, no importance should be paid to the same. Further, since Surapati, husband of the Nirod Barani had a brother, even if it was assumed that she was the real owner there was no evidence to indicate that the said brother was dead or left no heirs since such heirs would be preferential heirs to the exclusion of the plaintiffs, It was accordingly held that though no notice to quit was necessary the plaintiffs were not entitled to any relief and the suit in the premises was dismissed.

4. ON appeal, it was held that the lease was governed by the Transfer of property Act and Srish was a benamder of nirod Barani. It was further held that the plaintiffs were the legal heirs of Nirod barani and were accepted as landlords by the defendant, depositing rent in the name of the plaintiffs. Further the defendant having recognised Nirod Barani was stopped from challenging her title to the suit property. Further by partition Surapada gave up his interest in favour of Gouripada son of Nirod Barani who inherited the property from her son on his death on october 14, 1960. The appeal accordingly was allowed and the suit was decreed. The present appeal is against this de