G. MEHROTRA, J. : This is an appeal against an order of the Dis­trict Judge, Lower Assam Districts, by which he has remanded the case to the Court below for disposal in the light of the observations made by him. He framed certain additional issues and directed the Subordinate Judge to dispose of the remaining issues as well as the additional issues framed by him. (2) The facts briefly are that the appellant brought a suit for declaration of his title and reco­very of khas possession by eviction of the defendant. The land in suit consists of 1 katha and 10 lechas of and appertaining to dag No. 4465 of periodic patta No. 1288 of Ganhati town. Prior to the last resettlement, the land was included in the old pe­riodic patla No. 52. The suit land originally belong­ed to the defendant No. 3, Ratikanta Tamuli, and on 17-12-54 he let out the land to the defendant No. 2, Purnadhar Barman, for a period of ten years. At that time, there were some trees standing on the land. The said lease commenced on 1-1-1945, and on 9-11-1945, the defendant No. 2 sublet the land to the defendant No. 1, Sibnalh Chakrabarty, by executing a registered sub-lease for the remaining term of the lease. The defendant No. 1, after taking the lease, erected a residential house on the land and remain­ed in possession thereof for the remaining period of the sub-lease. The lease of the defendant No. 3 as well as the sub-lease of the defendant No. 1 expired and the plaintiff purchased the land on 25-1-1955 from the defendant No. 3 for a sum of Rs. 3.700/-under a registered deed of sale. The defendant No. 3 sent a registered notice to both the defendants 1 and 2 and directed them to hand over vacant posses­sion of the land to him. The registered notice was issued to the defendants on 4-2-55 asking them to vacate the land within fifteen days of receipt thereof. The defendants received the notice on 8-2-55, and the defendant No. 2, on receipt of the notice, executed a registered deed of surrender in favour of the plaintiff on 10-6-55. The defendant No. 2) also directed the defendant No'. 1 to make over pos­session to the plaintiff, but the defendant No. 1 did not vacate the land. The defendants received the notice on 8-2-55, and the defendant No. 2, on receipt of the notice, executed a registered deed of surrender in favour of the plaintiff on 10-6-55. The defendant No. 2) also directed the defendant No'. 1 to make over pos­session to the plaintiff, but the defendant No. 1 did not vacate the land. On these facts, the present suit was brought by the plaintiff appellant for dec­laration of his title and recovery of possession. The suit was contested only by defendant No. 1 on vari­ous grounds. It is not necessary to refer to the other points taken by the defendant No. 1 because those are concluded by the concurrent findings of the two Courts below against the defendant No. 1. The only point which found favour with the lower appellate Court was that the defendant No. 1 was a tenant and. therefore, he was entitled to pro­tection from ejectment under S. 5 of the Assam Non-Agricultural Urban Areas Tenancy Act (Act 12 of 1955). The trial Court held that the defendant No. 1 was not a tenant and consequently he was not entitled to the protection from eviction under S. 5 of the said Act. But, on appeal, the appellate Court did not agree with the findings of the trial Court and held that the defendant No. 1 was a tenant and was entitled to such protection. On these findings, it set aside the decision of the trial Court and re­manded the case to the trial Court for disposal ac­cording to law and for decision of the additional issues. The two additional issues framed by it are: (1) Whether the structure built by the defen­dant No. 1 on the suit land can be regarded as per­manent in relation to the locality in which the suit land is situated? (2)Whether the improvement effected by the defendant No. 1 is reasonable improvement. If so, what is the value of the improvement so effected? It is against this order that the present appeal has been filed. (3) A preliminary objection was taken by the defendant respondent that no appeal lies against the above-mentioned order of the lower appellate Court. The contention was that it was not a remand under O. 41, R. 23 of the C. P. Code and consequently no appeal lay under O. 43 of tile Code of Civil Pro­cedure. (3) A preliminary objection was taken by the defendant respondent that no appeal lies against the above-mentioned order of the lower appellate Court. The contention was that it was not a remand under O. 41, R. 23 of the C. P. Code and consequently no appeal lay under O. 43 of tile Code of Civil Pro­cedure. The appeal has been filed as a Second Ap­peal, and the order was treated as a decree by the plaintiff. The plaintiff, however, by way of precau­tion, also filed a revision application which can be disposed of along with this appeal. We however, think that there is no substance in this preliminary objection. Order 41, R. 23 is in these terms : "Where the Court from whose decree an ap­peal is preferred, has disposed of the suit upon a preliminary point and the decree is reversed in ap­peal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the) evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand." The appellate Court purported to act under O. 41, R. 23, C. P. Code, inasmuch as in its opinion the trial Court had not disposed of the suit on all the issues. According to the appellate Court, the trial Court had disposed of the suit on the preliminary question that the defendant No. 1 was not a tenant and was not thus entitled to protection under S. 5 of the Act. In this view of the case, an appeal lay under O. 43 and we will treat this Second Appeal as one filed under O. 43 of the C. P. Code. (4) Coming to the merits of the case, the conten­tion of the appellant is that the defendant No. 11 who is a sub-tenant, cannot be regarded as a tenant within the meaning of the word under the Act in question and he is thus not entitled to any protec­tion under S. 5 of the Act. (4) Coming to the merits of the case, the conten­tion of the appellant is that the defendant No. 11 who is a sub-tenant, cannot be regarded as a tenant within the meaning of the word under the Act in question and he is thus not entitled to any protec­tion under S. 5 of the Act. "Tenant" has been defin­ed as follows, in this Act : " 'Tenant' means a person who holds land under another person other than Government and who is, but for a special contract liable to pay rent for that land to the latter, and includes a person v/ho de­rives his title from a tenant, and a person who con­tinues in possession of any land after termination of his tenancy in respect of that land." It is not disputed that defendant No. 1 did not hold this land under any contract with the plaintiff and, therefore, he could not be regarded as a tenant of the plaintiff. Reliance has been placed on the words "and includes a person who derives his title from a tenant" in S. 3 (g) of the Act. We do not think that a sub-tenant can be regarded as a person deriving his title from a tenant. What the words mean is that a person who gets interest which is similar to the inte­rest of a tenant, can be regarded as a person deriv­ing his title from a tenant, but a person who inde­pendently gets a right under some contract with the tenant himself and thus gets a right subordinate to the right of the tenant, cannot be regarded as one) deriving his title from the tenant. The sub-tenancy came to an end after the ter­mination of the tenancy itself and, therefore, no tenancy continued between the sub-tenant and the lessor. Under those circumstances, he acquired no title in the land as a tenant as against the lessor. On a close reading of the definition of the word 'tenant', it will appear that persons who are directly under a contract holding the land have been consi­dered to be tenants, and that persons who derive1 their title through a tenant, have been regarded as tenants for the purposes of this Act. On a close reading of the definition of the word 'tenant', it will appear that persons who are directly under a contract holding the land have been consi­dered to be tenants, and that persons who derive1 their title through a tenant, have been regarded as tenants for the purposes of this Act. But, there is a further clause which says that the term 'tenant' will also include a person who continues in possession of any land after termination of his tenancy in respect for that laud. It cannot, therefore, be said that a subtenant also, if he continues beyond the expiry of the term; of his sub-lease, is a person who continues in pos­session of the land after the termination of his tenancy. He is a person who continues in possession after the termination of his sub-tenancy so far as the lessor is concerned, and cannot be regarded as a person who continues in possession after the termi­nation of his tenancy. In this view of the matter also, the sub-tenant cannot be regarded as a tenant within the definition of the word 'tenant' in this Act; and he is not entitled to protection under S. 5 of the Act. '(5) It was also contended by the defendant No. 1 that he directly paid rent to the plaintiff and thus himself acquired the status of a tenant. There is a clear finding by the appellate Court that the defen­dant No. 1 did not acquire the status of a tenant. The finding is in the following terms : "I am, however, unable to accept Mr. Islam's contention that by reason of such waiver and by ac­ceptance of rent from the defendant No. 1, the latter was raised to the status of a direct tenant under the defendant No. 3." It has also observed as follows : "Thereafter neither defendant No. 3 nor the plaintiff accepted any rent either from the defen­dant No. 1 or the plaintiff assented to the continu­ance in possession of the part of either the lessee or the sub-lessee." The Court below has thus categorically found that the contesting defendant did not acquire the status of an independent tenant of defendant No. 3. (6) In the result, we allow this appeal, set aside the decision of the District Judge with costs, and restore that of the Subordinate judge. (6) In the result, we allow this appeal, set aside the decision of the District Judge with costs, and restore that of the Subordinate judge. In view of our decision in the Second Appeal, it is not necessary to pass any separate order in the revision. (7) SARJOO PROS AD C. J : I agree. Appeal allowed.