H.R. Krishnan, J

This is an appeal under Section 23 of the Madhya Bharat High Court of Judicature Act corresponding to Clause 10 of Letters Patent from the decision of the single Bench (Mr. Justice B.K. Chaturvedi) dismissing Defendant's (ex-tenant's) appeal against a decree of eviction from land leased out by him from the Plaintiff-Respondent, for a non-agricultural purpose, that is, for building a factory. The latter had in his own turn filed a cross-appeal in regard to the profits and compensation, but there is no certificate or special appeal on his behalf. The questions for decision are, firstly whether the single Bench is correct in holding that this decree is not affected by the subsequently enacted Section 12 of the Sthan Niyantran Vidhan (Accommodation Control Act) (Act 15 of 1950 Smt. 2006); more precisely whether the word ''tenant" in that Act, should be understood to include an ex-tenant who had, even before the commencement of that Act become one by sufferance, who is no better than a trespasser. Secondly, whether and to what effect at all the Appellants can be heard in the Special Appeal to urge that in view of the operation of the Zamindari Abolition Act, the Plaintiff lessor, has ceased to be the landlord, and so has no interest in pursuing the litigation for eviction of the lessee from this land. It may be noted even here that the second ground definitely bars the Appellant from asking for the benefit of Section 12 of the said Act, even if it is otherwise available to him. Because, a tenant who denies the title of the landlord is to be deemed unwilling to pay rent to him, which, in any view of the matter, is an essential condition for the application of Section 12 of the said Act.

Assuming that the claim on the first issue is not neutralised by the stand on the second, the Appellant is to a considerable extent supported by the F.B. decision of the M.B. High Court in Bhagwan Dass and Ram Chandra (1954 MBLJ 616). The single Judge who has certified this special appeal was also on the Full Bench and while agreeing with his brothers in that case has expressly stated that the principles governing the Full Bench decision were not in his view applicable to the present case, which he bad disposed of earlier, and which in fact was the reason why another single Judge thought fit to make a reference to a Full Bench. We have not made a reference to another Full Bench because we assume that a F.B. decision of the now defunct M.B. High Court is persuasive, and is to be given due consideration, but is not binding, and it is open in appropriate cases for a Divisional Bench of the new Madhya Pradesh High Court to differ from it. This view is accepted by counsel on both sides in this appeal. Nor, do we question in any manner the applicability of that ruling following (Karnani Industrial Bank Ltd. v. Satya Niranjan Shaw and Anr. AIR 1928 PC 227) to cases where the ex-tenant's tenancy was terminated by lapse of the time or otherwise, after the commencement of the Act.

The relevant facts are undisputed. There is a spacious plot of land within the Municipal area of Morena, belonging to the Plaintiff-Respondent and used by him as well as the Defendant for building purposes. Whether originally it was agricultural or abidi is purposely left open. There is insufficient material for this, and an answer is unnecessary for the decision of this case, and proceedings in this regard are likely between Government and the ex-Zamindar. Part of it, about 3 local bighas, was leased out to the Defendant for a 12 years term by a deed dated 30-2-1933, for the purpose of fitting tip an oil mill; there is no controversy about the location, area and the rent, or about the express provision that on the termination of the lease, the lessee should remove all the materials and leave the land in its original condition. The lease itself commenced on the 10th April of 1933 and was determined by lapse of time on the 10th April 1945. In July 1944 itself the