JUDGMENT Chakravartti, J. - The only question involved in this Rule is whether the learned Munsif was right in staying the Petitioner's suit under sec. 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act. The suit is against two Defendants. The Plaintiff's case is that the lands were originally held by one Rajmohishi Dassi, who was, however, ejected therefrom but she applied for a resettlement which was granted by a kabuliyat containing a clause against alienation. The clause provided that if Rajmohishi transferred the tenancy to any third person, then the tenancy would lapse immediately and the lands would revert to the landlord as his khas lands. After the death of Rajmohishi, the tenancy, it is stated, devolved upon her heirs and upon a partition between them was ultimately assigned to Defendant No. 2. Defendant No. 2, however, transferred the tenancy to Defendant No. 1, but even after such transfer he is residing on the lands by arrangement with Defendant No. 1 as a sub-tenant under him. It was on these allegations that the Plaintiff brought a suit against both the Defendants on the footing that neither of them had any longer any right to retain the land, or remain on the premises. 2. An objection was taken on behalf of Defendant No. 1 that the suit was liable to be stayed under the provisions of the Bengal Non-Agricultural Tenancy (Temporary Pro-visions) Act. The learned Munsif gave effect to that objection and in doing so he seems to have considered the case of Defendant No. 2 alone. His argument can briefly be summarised as follows: He refers to the decision of the Special Bench in the case of Sm. Sukumari Devi v. Rajdhari Pandey (1) and says that if there can be a stay where ejectment is asked for on the ground that the tenancy has terminated by operation of law, there can be no reason why there should not be a stay where ejectment is asked for on the ground that the tenancy had terminated by reason of some act of the parties. In that view and relying upon the decision of the Special Bench, where it was held that a tenant, as contemplated by the Act, included an ex-tenant, the learned Munsif decided that the present case came under the principle laid down in the Special Bench case and, therefore, there should be an order for stay. 3. In that view and relying upon the decision of the Special Bench, where it was held that a tenant, as contemplated by the Act, included an ex-tenant, the learned Munsif decided that the present case came under the principle laid down in the Special Bench case and, therefore, there should be an order for stay. 3. In my opinion, this view is plainly wrong. It is perfectly true that the word "tenant" must include an ex-tenant, for, as has been so often pointed out, there cannot possibly be a suit for ejectment against a person who is still a tenant and whose right to remain on the land subsists. The suit in ejectment must, in the very nature of things, be against a person, who was at one time a tenant but has, at the time of the suit, ceased to be so. The learned Munsif was right in observing that there could be no valid or reasonable distinction between termination of a tenancy by operation of law and such termination by act of parties. What he overlooked, however, was that in the present case, defendant No. 2 had ceased to be a tenant on either view of the case. His tenancy had come to an end either because, as the Plaintiff alleged, the forfeiture clause had come into operation or because, as the Defendant alleged, the tenancy had been transferred to Defendant No. 1. This is not a case where the landlord is (1) (1941) 46 C.W.N. 174 saying that the tenancy came to an end and that the Defendant is only an ex-tenant and the Defendant is saying that the tenancy still subsists and he is still a tenant. This is a case where, so far as Defendant No. 2 is concerned, he does not pretend to be a tenant and on his own showing has ceased to be one. I am clearly of opinion that Defendant No. 2 is not an ex-tenant within the meaning of the rule laid down in the Special Bench case. 4. The case of Defendant No. 1 stands on a different footing. In his case the position is that the Plaintiff is saying that he never became a tenant and is only a trespasser, whereas he says that he acquired the tenancy by valid transfer from Defendant No. 2. 4. The case of Defendant No. 1 stands on a different footing. In his case the position is that the Plaintiff is saying that he never became a tenant and is only a trespasser, whereas he says that he acquired the tenancy by valid transfer from Defendant No. 2. This, therefore, is a case where the Plaintiff is trying to eject the Defendant as a trespasser and the Defendant is saying that he is a tenant. The procedure to be followed in a case of this character was laid down in great detail by Mr. Justice Mukherjea and Mr. Justice Biswas, in Provabati Debi v. Pratap Chandra Majumdar (1940) 45 C.W.N. 991. There it was held that a suit purporting to be one for ejectment of a trespasser, wherein the Defendant contended that he was a non-agricultural tenant, could not be stayed in limine. The Court must take evidence and if it finds that the Defendant is a non-agricultural tenant, the question of stay would depend on whether the suit, as it stood, could be regarded as a suit to eject the tenant on the ground that his tenancy had been determined. If it was admitted or proved that although the Defendant was not a trespasser, his tenancy, if any, had come to an end prior to the institution of the suit, the Plaintiff could still ask for a decree for ejectment on a proper amendment of the plaint and if the Court allowed the suit to be converted into one for ejectment of a tenant, it was thereafter to be stayed. But if the suit was not so converted and remained the kind of suit it originally was, it was bound to fail but it would fail on the merits and no question of stay would arise. 5. Applying that principle to the present case, the position appears to me to be the following: The Plaintiff alleges that the tenancy was not transferable and by the transfer Defendant No. 1 acquired no rights whatsoever. Defendant No. 1, on the other hand, alleges that he has become a non-agricultural tenant. The Court must, therefore, take evidence and come to a decision on the question whether Defendant No. 1 is or is not a tenant. Defendant No. 1, on the other hand, alleges that he has become a non-agricultural tenant. The Court must, therefore, take evidence and come to a decision on the question whether Defendant No. 1 is or is not a tenant. That would practically mean the end of the suit, for it is not alleged in the present case that even if the tenancy was legally transferred, there was still something else which had brought the tenancy to an end. The second part of the procedure laid down in the case above referred to would not have to be applied in the present case, because clearly no occasion would arise. If the Munsif found that there was a genuine forfeiture clause in the kabuliyat and that the effect of that clause was to bring the tenancy to an end if an unauthorised transfer was made, then Defendant No. 1 would be a trespasser and so far as this part of the case was concerned, the Plaintiff's claim would be established. If, on the other hand, it be found that the tenancy was validly transferred, there would be nothing else to try; because it is not the Plaintiff's case that Defendant No. 1 was still liable to ejectment. 6. As regards Defendant No. 2, I have already held that he is not an ex-tenant within the meaning of the rule laid down by the Special Bench. Defendant No. 2, at the present day, is on the premises in the capacity of a sub-tenant. Although I have held that the suit against Defendant No. 2 can proceed as a suit against a trespasser, the Plaintiff cannot reach him unless he succeeds in dislodging Defendant No. 1. The simple reason is that Defendant No. 2 now holds under Defendant No. 1 and, therefore, the real contest is between that Defendant and the Plaintiff. For the reasons given above, the suit, in my opinion, must proceed, but it cannot proceed to any purpose against Defendant No 2 alone and he cannot be ejected if Defendant No. 1 remains. 7. The Rule is accordingly made absolute, the judgment and order of the learned Munsif, dated the 2nd of June, 1948, are set aside and the case is sent back to him for a decision in the light of the observations contained in this judgment. 7. The Rule is accordingly made absolute, the judgment and order of the learned Munsif, dated the 2nd of June, 1948, are set aside and the case is sent back to him for a decision in the light of the observations contained in this judgment. The Petitioner is entitled to the costs of this Rule which I assess at one gold mohur.