By operation of Section 2(g) of the West Bengal Premises Tenancy Act, 1997, tenants in common who inherit a tenancy from their predecessor lose their tenant status after the expiry of five years from the date of death of the original tenant, and are liable to be evicted even in the absence of any of the grounds for eviction under Section 6 of the Act.

Jyotirmay Bhattacharya, J.

The certified copy of the judgment and decree of the learned Trial Court which is filed in Court today, be kept with the record.

2. With regard to the payment of court fees, we find from the decree of the Trial Court that the suit was valued at nil and only court fees of Rs. 10/- was paid by the plaintiff. The present appeal is also valued at nil. Court fees of Rs. 10/- has also been paid on the memorandum of appeal. Though we find that the suit was not properly valued and sufficient court fees was not paid thereon but the courts below considered the said suit and/or the appeal arising therefrom on merit by overlooking the erroneous valuation of the suit and/or non-payment of proper court fees thereon.

3. Be that as it may, since no issue was raised at the instance of the defendants/appellants regarding non-maintainability of the suit due to payment of insufficient stamp and/or defective valuation of the suit, this Court cannot permit the defendants/appellants to raise this point for the first time in the second appeal.

4. As such, we accept the valuation statement made by the appellants in this appeal as correct and accept the court fees, which is paid thereon as sufficient.

5. Let us now consider as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted under the provision of Order 41, Rule 11 of the Code of Civil Procedure, or not.

6. This second appeal is directed against the judgment of affirmance. The learned Trial Court was pleased to pass a decree for eviction against the tenant on the ground of unauthorised change of user of the tenancy in question by the tenant. The learned First Appellate Court however, maintained the said decree for eviction on a different ground. The learned appeal court held that the defendants are no longer a tenant in respect of the suit premises in view of the provision contained in Section 2(g) of the West Bengal Premises Tenancy Act, 1997 and as such, they are not entitled to get any protection against eviction under the said Act particularly when they have admitted the title of the plaintiff in respect of the suit premises.

7. The legality and/or propriety of the said judgment and decree of the learned First Appellate Court is under challenge in this appeal at the instance of the defendants/appellants.

8. Let us now consider as to how far the learned First Appellate Court was justified in passing the decree in the facts of the present case.

9. Our attention has been drawn by Mr. Mukherjee, learned advocate appearing for the appellants to the ejectment notice, plaint and deposition of the plaintiff's witness to demonstrate that the plaintiffs accepted the defendants as tenant in common who inherited their tenancy on the death of their predecessor-in-interest being the original tenant in the suit property. We find that acceptance of the defendants as tenant-in-common in respect of the suit premises has not only been recognised by the plaintiff in the plaint but also in the ejectment notice as well as in the evidence.

10. Mr. Mukherjee thus, contends that when the plaintiff himself admitted the defendants as tenant in common, the learned First Appellate Court ought not to have passed any decree for eviction without being satisfied as to the existence of any of the grounds for eviction pleaded in the plaint. He further contends that the plaintiff never claimed in the plaint that the tenancy of the defendants ceased to operate by operation of Section 2(g) of the West Bengal Premises Tenancy Act, 1997 and as a result thereof they are not entitled to get any protection against eviction under the provision of the said Act. According to him, such being the pleadings of the plaintiff in the plaint, the learned First Appellate Court ought not to have maintained the decree for eviction by holding that by operation of law the tenancy of the tenant in common ceased to operate and they are liable to be evicted after