JUDGMENT 1. THIS second appeal is by the defendant. The plaintiffs instituted the suit for ejectment of the defendant from two plots, namely, c. s. plots Nos. 787 and 793 of mouza Satigachi, on the ease that the defendant was a tenant under a written lease from 1st February, 1939 to 31st January, 1949 and that under the terms of the written lease, the defendant was bound to vacate on the expiry of the term, and the defendant having failed to do so inspite of the demand of the plaintiff, the plaintiff had to institute the suit on 4th July, 1951. The total area of these two plots is 1069 acre or about 7 cottahs. 2. THE defendant contested the suit, contending that the suit for ejectment was not maintainable as the defendant had been in possession for more than 12 years and had built substantial pucca structures on the suit land with the knowledge and consent of the plaintiff. In respect of c. s. plot no. 793, the plot is recorded in the finally published c. s khatian as in the possession of one Dukhan Shaw as dakahalkar. The defendant's case was that Dukhan Shaw sold the plot in 1932 to the defendant's father by executing a kobala and thereafter the landlords granted a lease to the defendant's father by executing a patta on 20th June, 1932 by which a lease for the term of ten years was granted and the defendant's father was permitted to build a pucca structure for setting up a petrol service station. It should be mentioned that mouza Satigachi is situated near Dum Dum on the Jessore Road. According to the defendant c. s. plot on. 787 is recorded in the c. s. khatian as in the possession of one Ramkishan Shaw as Dakhalkar and the defendant's father purchased that plot from Ramkishan Shaw by a kobala dated 2nd May, 1934. There alter on 30th January, 1939 the plaintiffs landlords granted a lease to the defendant in respect of both c. s. plot no. 793 and c. s. plot no. 787, defendant's father being dead in the meantime. This was a bilateral registered lease deed and the term was ten years. But according to the defendant he had been in possession of c. s. plot no. 793 since 1932 and of c. s. plot no. 793 and c. s. plot no. 787, defendant's father being dead in the meantime. This was a bilateral registered lease deed and the term was ten years. But according to the defendant he had been in possession of c. s. plot no. 793 since 1932 and of c. s. plot no. 787 from 1934 and he had completed 12 years of possession and he had also been permitted to build the pucca structures on the land and that therefore he could not be ejected. In the trial court the defendant sought to argue that the tenancy was governed by the Bengal Tenancy Act. The learned Munsif found against the defendant on that point and held that the tenancy was governed by the West Bengal Non-Agricultural Tenancy Act. 1949. It is now not challenged that the tenancy would be governed by the Non-Agricultural Tenancy Act. In view of the fact that pucca structures had been allowed to be built on the land and the case would be governed by the West Bengal Non-Agricultural Tenancy Act, the learned Munsif held that under the provisions of sec. 7 (5) of the Act the defendant was entitled to remain on the land and that the plaintiff could not therefore obtain a decree for ejectment. The ejectment suit was therefore dismissed by the learned Munsif. There was an appeal by the plaintiffs which was heard by Shri B. K. Panda, Subordinate Judge, Alipore. The learned Subordinate Judge held in respect of c. s. plot no. 787 that the defendant's contention that his father had purchased the plot from Ramkishan Shaw by a kobala on 2nd May, 1934 was not correct, because the relevant kobala Ext. D. showed only a purchase of kutcha structures standing on the land and not the purchase of the tenant's interest in the land. The learned Subordinate Judge, therefore, held that c. s. plot no. 787 was first let out by the bi-lateral registered lease deed for the term of 10 years executed on 30th January, 1939, namely, Ext. 1 and that therefore on the expiry of the term of the lease the plaintiffs were entitled to recover possession thereof. The learned Subordinate Judge found that no pucca structure existed on c. s. plot no. 787. 3. AS regards c. s. plot no. 1 and that therefore on the expiry of the term of the lease the plaintiffs were entitled to recover possession thereof. The learned Subordinate Judge found that no pucca structure existed on c. s. plot no. 787. 3. AS regards c. s. plot no. 793, the learned Subordinate Judge accepted the finding of the learned Munsif that there was a pucca structure erected on the land, but the learned Subordinate Judge observed that the pucca structure which the landlord had expressly authorised the defendant or the defendant's father to build was the necessary pucca structure for setting up a petrol service station, and that instead a go down for kerosene tins had been erected by the defendant or defendant's father, and that in the circumstances it could not be held that the landlords had permitted the defendants to erect the existing pucca structure. The learned Subordinate Judge held that in respect of this plot, namely, c. s. plot no. 793. the tenancy had run from 20th June, 1932 when the landlord granted the patta, Ext. B. But the learned Subordinate Judge pointed out that; under sec. 90 of the West Bengal Non-Agricultural Tenancy Act, 1949 the landlords are entitled to exclude the time or the period for which the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940 had been in force. Excluding that time the learned Subordinate Judge pointed out that the period of the tenancy did not exceed 12 years before the institution of the suit, and so the learned Subordinate Judge held that in respect of c. s. plot no. 793 also, the landlords were entitled to a decree for ejectment. Accordingly, the learned Subordinate Judge allowed the appeal and decreed the suit in full. 4. AGAINST that decision the defendant has preferred this appeal. There is an application by the defendant appellant for admission of additional evidence, namely, the sale deed by which the defendant's father is supposed to have purchased c. s. plot no. 793 from Dukhan Shaw. The defendant appellant has explained that owing to evacuation at the time of the bombing, he had lost the original kobala and could not obtain the certified copy in time to file the same in the courts below. 793 from Dukhan Shaw. The defendant appellant has explained that owing to evacuation at the time of the bombing, he had lost the original kobala and could not obtain the certified copy in time to file the same in the courts below. I do not, however, think that sufficient cause has been shown for admission of additional evidence at this stage and the appeal should be disposed of on the materials already on record. Accordingly the application for admission of further evidence stands rejected. Mr. Sarat Chandra Janah appearing for the appellant has urged that in respect of c. s. plot no. 793, the learned Subordinate Judge came 'to a wrong decision, because in respect of that plot the landlord granted a lease on 20th June, 1932 for the period of 10 years, and the landlord expressly by the patta granted permission to build the pucca structure, namely, the necessary structure for a petrol service station. It is true that this patta, Ext. B, is not a bi-lateral lease deed, but the patta being executed by the plaintiffs may be taken into consideration as their admission. It is true that instead of a necessary structure for a petrol service station, the defendant or the defendant's father chose to erect a godown for kerosene tins as they started business in kerosene and not in petrol. But it is clear that the plaintiffs were aware of what the defendant was doing on the land, for when the defendant wanted lease of the additional land, namely, c. s. plot no. 787 the landlords granted a lease, exhibit 1, for both the plots taken together, again granting a permission for building a pucca structure for starting a petrol service station. It cannot but be held that the landlords knew what had already been built on c. s. plot no. 793. Therefore the kerosene godown must be held to have been built with the tacit consent of the landlords. 5. THE learned Subordinate Judge also gave another reason for allowing a decree for ejectment in respect of c. s. plot no. 793. He pointed out that when the landlords had given permission to erect a pucca structure for starting a petrol service station by the patta, exhibit B of 20th June, 1932, sec. 5. THE learned Subordinate Judge also gave another reason for allowing a decree for ejectment in respect of c. s. plot no. 793. He pointed out that when the landlords had given permission to erect a pucca structure for starting a petrol service station by the patta, exhibit B of 20th June, 1932, sec. 7 (5) of the West Bengal Premises Non-Agricultural Tenancy Act, 1949 was not contemplated by anybody and it was not known that such a provision would be introduced, viz., that if the landlords allowed the tenant to build a pucca structure on the demised land the tenant would get a permanent interest and this would stand in the way of the landlord's getting back possession of the land after the expiry of the term of the lease in accordance with the contract. The learned Subordinate Judge observed that the lease had come to an and on 1st February, 1949, before the West Bengal Non-Agricultural Tenancy Act had come into force and necessarily sec. 7 (5) was not in force, and the right of the landlords to obtain ejectment had accrued on the date; and though they could not file a suit immediately because the Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 barred the filing of suit for ejectment against non-agricultural tenants during the time when the temporary Act was in force, the learned Subordinate Judge observed that there was nothing in the West Bengal Non-Agricultural Tenancy Act, 1949 which took away the vested right of the landlord to obtain ejectment which had accrued on 1st February, 1949 and that in the circumstances the tenant could not in the present case obtain the benefit of the provisions of sec. 7 (5 ). I am, however, unable to accept this reasoning of the learned Subordinate Judge. The provisions of the West Bengal Non-Agricultural Tenancy Act of 1949 must clearly apply to all suits which have been filed after the Act came into force and therefore, in my opinion, the provisions of sec. 7 (5) can be availed of by the tenant. 6. I should mention in this connection that Mr. Lala Hemanta Kumar appearing for the landlord respondents has put the argument in another form. He has urged that sec. 7 (5) can be availed of by the tenant. 6. I should mention in this connection that Mr. Lala Hemanta Kumar appearing for the landlord respondents has put the argument in another form. He has urged that sec. 88 of the West Bengal Non-Agricultural Tenancy Act of 1949 provides only that the provisions of the Act shall apply to all suits pending at the commencement of the Act. He has pointed out that the present suit was not such a pending suit, because it was filed after the West Bengal Non-Agricultural Tenancy Act of 1949 had come into force. Mr. Lala has referred to the definition of a tenant in sec. 2 (5) of the Act Which is as follows :- "non-Agricultural Tenant means a person who holds non-agricultural land under another person and is or but for a special contract would be liable to pay rent to such person for that land but does not include" the tenant of a premises. Mr. Lala has urged that in this case the term of this tenancy created by the bi-lateral deed, exhibit 1, had expired on 31st January, 1949 or the 1st February 1949 before the West Bengal Non-Agricultural Tenancy Act had come into force which was on 15th May, 1949. He has, therefore, urged that when this Act came into force the defendant could no longer be described as a non-agricultural tenant within the meaning of sec. 2 (5), because in that definition the present tense is used and an ex-tenant would not be included within the definition Mr. Lala has, therefore, urged that the defendant cannot get the protection of sec. 7 (5) of the Act. I should, however, refer to the decision of this court in Bamapada Bhattacharya v. Luxshmi Bibi (1) (A. I. R. 1953, Calcutta 780) where it was held that for the purpose of applying the Non-Agricultural Tenancy Act of 1949 to proceedings pending at the commencement of the Act, the words "non-agricultural tenant" must be taken to include a tenant whose tenancy was determined by a notice to quit but who remained in possession in spite of a notice and a decree for ejectment. It is true that for the purpose of the above decision their Lordships were only concerned with the meaning of the term "nonagricultural tenant in connection with a suit which was pending at the date of the commencement of the Act. But the same extended meaning would also apply to the case of a tenant whose tenancy had expired for some reason or other before the Act came into force but for whose ejectment the suit was filed after the Act had come into force. There is also the Special Bench decision-Sukumari Devi v. Rajdhari Pandey, (2) (46 C. W. N. 174) where the word "tenant" as used in Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940 was considered and it was held that the word "tenant" would include an ex-tenant, that is, a person who was a non-agricultural tenant but whose tenancy had ceased through efflux of time or through service of notice or through any other cause but who had continued to be in occupation of the demised land. In view of the above Division Bench Ruling and Special Bench Ruling, I think that the term "non-agricultural tenant" in sec. 2 (5) has also the same meaning in respect of a suit such as the present one, namely, where the term of the tenancy expired before the Act had come into force but where the ejectment suit was brought after the Act had come into force. Mr. Lala has referred to an unreported Division Bench Decision (3) Balmukund v. Bhubaneswar Ghose in Second Appeal No. 1242 of 1953 decided on March 5, 1957. It is true that in the course of the judgment in that case, there were certain observations which support the contention of Mr. Lala. For instance, tit was observed that sec. 70 which provides that no non-agricultural tenant shall be ejected from the tenancy or from any non-agricultural land which he holds except in execution of a decree in a civil court, would not apply to the case,, because at the date when the suit was instituted the defendants were not non-agricultural tenants within the meaning of the Act but trespassers. It was also observed that sec. 88 of the Act would not help them, because sec. 88 only applied to suit pending at the time of the commencement of the Act but the suit for ejectment had been instituted after the commencement of the Act. It was also observed that sec. 88 of the Act would not help them, because sec. 88 only applied to suit pending at the time of the commencement of the Act but the suit for ejectment had been instituted after the commencement of the Act. But the facts in that case were quite different. In that case the tenants who had obtained lease from the landlords were certain "thiranis" who obtained a lease for a term of 20 years from 15th August, 1927. Before the expiry of the term the "thiranis" had left the premises and 'when the landlords tried to take khas possession at the expiry of the 20 years' term, the landlords found some "bajorias" in possession. The "bajorias" claimed that by successive devolution from the ''thiranis" they had obtained the lease as successors-in-interest of the "thiranis", but both the trial court and the lower appellate court held that legal devolution of the interest of "thiranis" on the "bajorias" had not been established, and therefore the "bajorias" were merely trespassers in occupation of the land, and the landlords had never accepted any rent from the "bajorias". In the circumstances, clearly the defendants "bajorias" were trespassers and not non-agricultural tenants. It was not a case of the old tenants in occupation of this demised land after the expiry of the term of the lease. Accordingly this Division Bench Ruling is not an authority for the contention raised by Mr. Lala, that where the term of the lease of a non-agricultural tenant expired before the commencement of the Act, the tenant can no longer be regarded as a tenant within the meaning of the Act and cannot, therefore, get protection under sec. 7 (5) of the Act. Lastly, in connection with c. s. plot no. 793 1 should observe that the learned Subordinate Judge also doubted whether the structure was a pucca structure. There was evidence, how even, that the floor was covered with bricks and cemented and that the godown up to the roof level had brick-built walls. The roof, however, was not re-enforced concrete roof but was a root: of Ranigunj tiles supported by a frame work. It must be held that the structure was substantially made of bricks and therefore it was a pucca structure within the meaning of sec. 7 (5) taken with sec. 2 (7) of the Act. In respect of c. s. plot no. It must be held that the structure was substantially made of bricks and therefore it was a pucca structure within the meaning of sec. 7 (5) taken with sec. 2 (7) of the Act. In respect of c. s. plot no. 793, therefore, I hold that the tenant defendant is entitled to resist the eviction by the landlords. 7. IN respect of c. s. plot no. 787 the position- is different. It has been found by the courts below that there is no pucca structure standing on that plot. Moreover the lease in respect of that plot only commenced on 1st February, 1939 and the lease expired on the 31st January, 1949 or the 1st February, 1949 in accordance with the terms of the tease. Accordingly under sec. 9 of the West Bengal Non-Agricultural Tenancy Act of 1949 the landlord is entitled to get back possession of that, plot. 8. IT is, therefore, ordered that the appeal be allowed in part and the decree of the courts below be modified and the suit be allowed in part, a decree for ejectment being passed in respect of c. s. plot no. 787 of mouza Satigachi, but the claim for ejectment being dismissed in respect of c. s. plot no. 793. In the circumstances the parties will bear their own costs throughout. Leave to appeal under cl. 15 of the Letters Patent is asked for and is refused.