Section 46 of the West Bengal Estates Acquisition Act, 1953 requires a distinction between the determination of rent, status of the tenant, or incidents of the tenancy, and the existence or non-existence of the particular tenancy for the purpose of stay of proceedings in suits.

P. N MOOKERJEE, J.-

1. This Rules was obtained by some of the defendants, namely, Nos. 1, 3 and 4, in a suit for partition and khas possession with other incidental reliefs. The Rule was obtained against an order of the learned Subordinate Judge, refusing the application of the present petitioners and another defendant namely defendant No. 2, who is opposite party No. 4 before us, for stay of further proceedings in the suit under section 46 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954 ). The present suit was a suit for partition, but, therein, the above applicants defendants, who were admittedly co-sharers to the extent of eight annas, the remaining eight annas belonging to plaintiff No. 1 and pro forma defendants Nos. 10 and 11, raised a defense that the said eight annas interest of the plaintiff and proforma defendants Nos. 10 and 11 had been settled with them the said applicants, by the above owners thereof and, accordingly, they (the said applicants) had full ownership in eight annas and tenancy right in respect of the remaining eight annas share of the disputed properties and, in the circumstances, the plaintiffs' present suit for partition would not be maintainable. Plaintiffs Nos. 2 and 3 were, or claimed to be, lessees from the plaintiff No. 1. The learned Subordinate judge came to the conclusion that the application for stay could not succeed and that he did, apparently, upon the view that the question involved in the above pleading of the defendants which was the only relevant plea for purposes of the said section 46, would be the existence of the tenancy and not really "the determination of rent or the determination of the status" of the alleged tenant or "the incidents" of the alleged tenancy.

2. IN our view, the learned Subordinate Judge's decision is correct and should be affirmed. In support of his above view the learned Subordinate Judge relied upon a decision of this Court, namely, Lala Gangaram v. Krishna Gopal Jhunjunwala and Ors. (1) 59 C.W.N. 1006. Whatever might be said about some of the observations in the said reported decision, there can be little doubt that the actual decision in that case was correct and that has been followed in subsequent decisions of this Court. It appears to us clear also that what section 46 contemplates is stay of further proceedings in suits where the "question of rent" or the "question of status" of the tenant or "incidents" of the tenancy were-or, at least, were also-matters for determination as distinct from the question of existence or non-existence of the particular tenancy. That distinction should always be borne in mind in applying the said section and. from that point of view, the learned Subordinate Judge's decision appears to be clearly correct. We would, accordingly discharge this Rule, but there will be no order for costs.