JUDGMENT 1. THIS is a second appeal against the judgment of the Seventh Court of Subordinate Judge, Alipore, refusing to reopen the decree under section 5 of the Thika Tenancy Ordinance-Ordinance 15 of 1952. The Trial Court reopened the decree; but the Court of Appeal below refused to re-open against which is the present appeal. There is also an application under section 115 of the Code of Civil Procedure. 2. BEFORE proceeding further I must note the question whether an appeal is maintainable or not, as has been decided between the parties by a judgment and order of P. N. Mookerjee, J. and he has been pleased to hold that an appeal is maintainable. In that view of the matter the question cannot he reagitated and, therefore, a second appeal is maintainable. If a second appeal is maintainable, no petition is maintainable and, therefore, that petition under section 115 of the Civil Procedure Code must be dismissed. I therefore, proceed to consider the second appeal. The plaintiff instituted the suit for ejectment of the defendant on a notice to quit stating that the defendant was a tenant of the land at 48b, Circular Garden Reach Read. The defense was that the defendant was a tenant of Bhukailash Debuttor Estate not under the plaintiff. Even if it would be held that he is a tenant, he is entitled to remain in the land under the Thika Tenancy Act of 1349. In the suit, this question as to whether he was a Thika tenant or not was not adjudicated at all because of certain decisions of this High Court regarding the meaning of the word 'thika Tenant'. The suit was decreed ex-parte. 3. BUT by the time the Ordinance XV of 1952 amending the definition of the word 'thika Tenant' came into force, the plaintiff landlord had not got possession of the land. Therefore, the defendant was entitled to file and filed on or about 22nd July, 1952, an application under section 5 of Ordinance XV of 1952. The present controversy relates to that application. 4. IN the application, the application stated that he was a Thika tenant within the meaning of the Ordinance; but in his petition he did not disclose how he had become a Thika tenant Similarly, in the petition of objection filed by the landlord, the landlord stated that the defendant was not a Thika tenant. 4. IN the application, the application stated that he was a Thika tenant within the meaning of the Ordinance; but in his petition he did not disclose how he had become a Thika tenant Similarly, in the petition of objection filed by the landlord, the landlord stated that the defendant was not a Thika tenant. The landlord, of course, further stated as he had denied tenancy he could not get any benefit of the law. This second point is not material for us. The decree was on the basis that he was a tenant and so the second point is not of much importance. In the suit it was not stated whether the plaintiff was a Thika tenant. All that was stated is that he was a tenant in respect of the land. But the defendant also did not say how he was a thika tenant, whether because he had erected the structures or because he had purchased the structures. In the petition even, there was nothing stated that he had erected the structures or he had purchased the structures. Nothing was also stated in the petition of objection in this matter. The parties thereafter went into trial and the petitioner defendant deposed that he had purchased the structures. He further deposed that the structures were re-constructed during the communal riot and he had repaired or remodeled it anew. No cross examination was made as to whether he had purchased this structure at a time when the plaintiff landlord had no title to the land or had title to the land. A document by which the petitioner purchased the property was produced on behalf of the plaintiff and marked as Ext. 1. It is interesting to note that the plaintiff opposite party sailed upon the Advocate of the defendant petitioner to produce his lease and his deed of purchase. But the matter ended there. Only the deed of sale was produced (Ext. 1) on behalf of the applicant. The First Court considered that the Kabala is one that referred only to certain structures. Therefore, the First Court held that the defendant had purchased the structures without the land; but was subsequently recognised as a tenant by the plaintiff. But the matter ended there. Only the deed of sale was produced (Ext. 1) on behalf of the applicant. The First Court considered that the Kabala is one that referred only to certain structures. Therefore, the First Court held that the defendant had purchased the structures without the land; but was subsequently recognised as a tenant by the plaintiff. But he thought that the defendant was a Thika tenant within the meaning of section 2 (5) of the Ordinance as a successor in interest of a Thika tenant and, therefore, directed the decree to be re-opened. 5. AGAINST that an appeal was filed. The Appeal Court proceeded with two facts, which, according to the Appeal Court, were not disputed before him:- (i) There was no dispute about the fact that the applicant purchased the structure on the disputed land from Abu Bakkar and Nana, and (ii) Abu Bakkar was not a tenant regarding the disputed land under the plaintiff. 6. THE Appeal Court, therefore, found that the factual position was that Abu Bakkar raised structures on the disputed land to which he had no title and then sold the land together with the structures to the defendant, but the defendant really purchased the structures as Abu Bakkar had no title to the land. Therefore, the legal question that was considered was whether a person, who had at first purchase a certain structures and thereafter was recognised as a tenant of the land, would be considered to be a Thika tenant for the purpose of the Ordinance. The Appeal Court considered the question and held that such person is not to be considered Thika Tenant and the orders were set aside. Against that, as is stated above, is the second appeal. Mr. Mukherjee stated that the Courts below proceeded on a wrong interpretation of the Kabala. He has referred me to the Kabala (Ex. 1). According to Mr. Mukherjee Ex. 1 shows that not merely the structure': but the land also was purported to have been purchased. 7. WE have no material before us to see whether the disputed plot of land was included within the lease by Bhukailash to Abu Bakkar. But according to Mr. Mukherjee, from the boundaries of the disputed plot and the boundaries of the plot in Kabala, this plot is apparently included and, therefore, according to Mr. 7. WE have no material before us to see whether the disputed plot of land was included within the lease by Bhukailash to Abu Bakkar. But according to Mr. Mukherjee, from the boundaries of the disputed plot and the boundaries of the plot in Kabala, this plot is apparently included and, therefore, according to Mr. Mukherjee, the defendant purchased the leasehold together with the structure from Abu Bakkar. But, I must point out that the defendant might have purchased the right of a tenant from Abu Bakkar, but that was only with respect to a tenancy under Bhukailash Debuttar Estate and not under the plaintiff. If he had purchased the tenancy from Abu Bakkar, he might have got it and he might still get it as against Bhukailash Estate, but that tenancy was not a tenancy under the plaintiff. Therefore, he cannot be considered to be a tenant of the land under the plaintiff. In the present case what we have to consider is whether, when the defendant purchased, did he purchase any tenancy under the plaintiff? The Kabala clearly shows that he did not purchase any tenancy under the plaintiff. Therefore, when the Appeal Court held that it was nut disputed that Abu Bakkar was not a tenant regarding the disputed land under the plaintiff, I find no reason to depart from it. That was the correct position, which was accepted by the Court of Appeal. Therefore, the net effect of the purchase would be vis-a-vis the plaintiff, the defendant merely purchased the structures because by that purchase the defendant would not become a tenant under the plaintiff. 8. THEREFORE, I hold that what the defendant purchased from Abu Bakkar was really the structures vis-a-vis the plaintiff. Thereafter, the plaintiff recognised him as a tenant. Hence the plaintiff recognised him as a tenant, who had already a structure on the land, claiming at most to be a tenant under somebody else. Hence we cannot avoid the question whether a person, who already has a structure, is thereafter recognised as a tenant of the land become a Thika tenant. This legal position of Thika tenant became controversial by the Thika Tenancy Act of 1949. Therefore, I would first consider the position of such tenants before the Thika Tenancy came into force. Thika tenants were not something unknown to us before the Thika Tenancy Act. It was already in existence. This legal position of Thika tenant became controversial by the Thika Tenancy Act of 1949. Therefore, I would first consider the position of such tenants before the Thika Tenancy came into force. Thika tenants were not something unknown to us before the Thika Tenancy Act. It was already in existence. The position was that a person, who had a piece of vacant land, could grant a lease of the land to somebody and that person would be the tenant of the land. Such tenancy was generally for a term and there were covenants regarding raising of structures not pucca and other matters as is usual in a lease of land. Section 108 (P) of the Transfer of Property act does not allow any person to erect permanent structures without the consent of the landlord. These tenants were generally known as Thika tenants. This is essentially a lease of land together with a right to construct structures other than pucca-both under the general law of the country i. e., the Transfer of Property Act as also under the document in lease. The tenant could erect such structures as he would be entitled under the law and the lease. Then in 1949 the Thika Tenancy was defined as a system. It was ordinarily a grant of land. The decisions of the High Court held that the system had to be proved and nobody could prove it. Therefore, none could get any benefit of the Act till the Ordinance was enacted. When the Ordinance XV came in 1952, a better definition of the word 'thika Tenant' was given. The definition, as was given in the Ordinance 15 of 1952, meant 'any person, who holds land under a lease and has erected any structures on such land for such purpose'. Therefore, Sub-section 5 referred to a person, who had a lease of land and also erected any structures thereon. Therefore, if these two conditions were satisfied, the decree would be liable to be re-opened. From the position that I have already considered, it is clear that he held a plot of land under the plaintiff; but we have to consider whether he "had erected any structures on it". Clearly he purchased but did not erect. The defendant says he would be a Thika Tenant under the later Act. 9. MR. From the position that I have already considered, it is clear that he held a plot of land under the plaintiff; but we have to consider whether he "had erected any structures on it". Clearly he purchased but did not erect. The defendant says he would be a Thika Tenant under the later Act. 9. MR. Das Gupta on behalf of the plaintiff urges that the definition of the word 'thika Tenant' has subsequently been amended by the Amending Act to include cases of purchase of structures as well; but that definition cannot apply to this Ordinance. Mr. Das Gupta refers to the amending Act of 1953. That is the Act VII of 1953. He refers further to section 1, Sub-section 2, wherein it has beer, provided ''act VI of 1953 shall come into force immediately after the Calcutta Thika Tenancy (Amending Ordinance 1952) (West Bengal Ordinance 15 of 1952) cases to operate provided that the provisions of the Calcutta Thika Tenancy Act 1949, as amended by that Act, shall, subject to the provisions of section 9,,also apply and deemed to have always applied to all such appeals and proceedings pending before any Court, etc. " Then, he refers to section 9:- "any proceeding commenced under sub-section 2 of section 5 of the Calcutta Thika Tenancy (Amendment) Ordinance 1952 shall on the said Ordinance ceasing to operate, be continued as if sub-sections 2, 3 and 4 of that section and me explanations to that section were in force. " 10. ACCORDING to Mr. Das Gupta, the Legislature by amending the Act, 1953 did not intend to give relief to everybody, who would be a Thika tenant under the Amending Act; but the Legislature intended to give relief only to those persons, who would be Thika Tenant within the meaning of the Ordinance. According to him, the defendant, though a Thika tenant within the amending Act 1953, is not a Thika tenant within the Ordinance of 1952 and the Legislature never intended to give him the benefit of the Act of 1953. He says further that in Act VI of 1953 nothing was stated in section 9 with reference to sub-section 1 of section 5 of the Ordinance; but section 9 refers to sub-sections 2, 3 and 4 of section 5 of the Ordinance. Mr. He says further that in Act VI of 1953 nothing was stated in section 9 with reference to sub-section 1 of section 5 of the Ordinance; but section 9 refers to sub-sections 2, 3 and 4 of section 5 of the Ordinance. Mr. Das Gupta, therefore, says that the Legislature intended to grant the benefit of the amending Act to those, who are governed by sub-section 1 of section 5 of the Ordinance; but never intended to grant that benefit to persons, who come under sub-section 2 of section 5 of the Ordinance. He, therefore, says that the defendant having purchased the structures and not having constructed one, cannot be a Thika tenant within the meaning of the Ordinance and the application must, therefore, be dismissed and was rightly dismissed by the Appeal Court. We have to examine this aspect of the matter. Section 5, sub-section 1 of the Ordinance clearly says that the meaning of the word 'thika Tenancy' would apply with regard to matters pending in the Court. In sub-section 2 another right was given to re-open decrees. The main classification of sub-section 1 refers to pending cases. Sub-section 2 refers to cases already disposed of, but possession of which had not been rendered. Now, we are to refer to the amending Act. In order to understand the amending Act, it has been held by the Supreme Court in Ranganathan v. Govt, of Madras (1) 1955 (2) S. C. R. 874 that the Court is entitled to look into the object of the Act. It has been stated in the Calcutta Gazette that "the Thika tenant, as defined in the Calcutta Thika Tenancy Act, 1949, has been interpreted by the Courts in a manner, as virtually to deny the protection of the Act to the persons for whom it was intended. As the decisions adversely affected a large number of persons, it was considered urgently necessary in the public interest to amend the Act by an Ordinance with a view to giving relief to such persons. The present Bill was to enact the provisions of the ordinance with certain modifications and to make certain further amendments to the Act with a view to giving more effective protections to the Thika tenant." With this object in view section 1 relates to short title and commencement of the amending Act. Sub-section 1 gives that short title. The present Bill was to enact the provisions of the ordinance with certain modifications and to make certain further amendments to the Act with a view to giving more effective protections to the Thika tenant." With this object in view section 1 relates to short title and commencement of the amending Act. Sub-section 1 gives that short title. Sub-section 2 says the time when it would commence and the proviso provides that the provisions of the Calcutta Thika Tenancy Act, as amended, would apply, subject to the provisions of section 0 to all pending proceedings. Section 9 then refers to continuance and it says that the proceedings would continue, as if section 5, sub-sections 2 and 4 of the Ordinance continued. 11. I do not agree with Mr. Das Gupta when he says that section. 5 (1) of the Ordinance has not been included in section 9, because it was intended that so far as the cases under section 5 (1) of the Ordinance are concerned, would be governed by the definition of the Act and the cases covered under sub-section 2, would be governed by the definition of the Ordinance. There was no necessity for making any provision with regard, to section 5, sub-section 1 of the Ordinance because the proceedings then pending in Court would continue because of the provisions of the Code of Civil Procedure and they would not continue because of the Ordinance or. in other words, those proceedings would continue by their own force; but with regard to matters referred to in sub-section 2 of section 5 of the Ordinance the proceedings before the Court had been terminated and nothing was pending in the Court and, proceedings were allowed to be instituted because of the provisions in the Ordinance and the Ordinance being a temporary provision, such provisions would terminate on the expiry of the Ordinance because this is a temporary statute and proceedings under the temporary statute do not continue ordinarily after title temporary statute ceases to operate. lit has been held by Mukherjea J. in State of Punjab v. Mohar Singh (2) (1955) 1 S. C. R. 893 at 898 that the consequence laid down in section 6 of the General Clauses Act 'has no application when a statute which is of a temporary nature automatically expires by efflux of time. lit has been held by Mukherjea J. in State of Punjab v. Mohar Singh (2) (1955) 1 S. C. R. 893 at 898 that the consequence laid down in section 6 of the General Clauses Act 'has no application when a statute which is of a temporary nature automatically expires by efflux of time. ' Hence, in my opinion, the whole purpose of section 9 is to continue, the proceedings under subsections 2, 3 and 4 of section 5 of the Ordinance which would not, otherwise continue. That, in my opinion, is the only purpose of section 9 read with section 1 of the Act. 12. THEN referring to the object, we find that the present Bill seeks to enact (a) the provisions of the Ordinance with certain modifications and (b) to make further amendments to the Act with a view to giving more effective protection to the Thika tenants. Therefore, the whole purpose of the Act was to give more protection to the Thika tenants and not to reduce it nor to limit it to the extent of the Ordinance. This latter object refers to the amendments as in sections 3, 4, 5, 6, 7 and 8 of the Act. So far as section 2 of the amending Act is concerned, it is merely enacting the provisions of the Ordinance with certain modifications. Therefore, when section 2 was amended, it was never intended that the persons, who bad applied under the Ordinance, would not be entitled to the benefit of that. All that was intended in section 9 of the amending Act was that the proceedings would continue and would not lapse after the expiry of the Ordinance. Therefore, after the Ordinance ceased to operate, the amending Act came with its entire force, because of section 9, the proceedings would continue, because of section 2 the question as to who is the Thika tenant would be decided. There is nothing in section 2 and there is nothing in the Act, which would limit the matter to the definition of the word 'thika tenant' as in the Ordinance. There is nothing in section 2 and there is nothing in the Act, which would limit the matter to the definition of the word 'thika tenant' as in the Ordinance. After the Act came into force, the proceedings would continue not because of the Ordinance but because of the Act and the proceedings would proceed together with the definition of the section 2 as in that Act and it is not disputed that by this definition of section 2, the defendant is a Thika Tenant. It must be noted after the Ordinance ceased to operate, ordinarily the proceedings under section 5 of the Ordinance would abate (State of Punjab v. Mohar Singh (2) aforesaid) and it would abate together with the definition. When it continues because of section 9 of the amending Act the definition under section 2 (5) of the Ordinance is not kept alive as it has not been provided in section 9 that the proceedings would continue as if section 2 (5) of the Ordinance would still be there. That not being stated we cannot infer such 'casus omissus' in section 9 of the amending Act as the Court would not be entitled so to infer. Ordinarily it cannot. Hence the proceedings continue under section 9 of the amending Act and, therefore, with definition of Thika tenant as in that Act has to be referred to and that the definition of the Act would be deemed to have been continuing from the original Act itself. This also clearly shows that the life of the definition of the word 'thika tenant' under the Ordinance would be only during the period of the Ordinance but not later. The definition within the Act admittedly included defendant. 13. IN that view of the matter, the defendant is a Thika tenant and is entitled to protection. The decree is liable to be re-opened. I set aside the orders of the Appeal Court and I restore the orders of the Trial Court, but not the reasons of the Trial Court. The matter would, therefore, go to the Controller. The appeal is allowed and the matter remitted to the Controller. The alternative application under section 115 C. P. C. is dismissed. There will be no order as to costs in this Court. In view of the order passed by P. N. Mookerjee J. dated the 20th April. The matter would, therefore, go to the Controller. The appeal is allowed and the matter remitted to the Controller. The alternative application under section 115 C. P. C. is dismissed. There will be no order as to costs in this Court. In view of the order passed by P. N. Mookerjee J. dated the 20th April. 1955, no further order need be passed on the report of the Stamp Reporter. Leave to file appeal under Clause 15 of the Letters Patent is prayed for and is granted.