JUDGMENT 1. This appeal arises out of a suit for ejectment and mesne profits. The: facts of the case may be stated as follows : monohar Lal Kakar (plaintiff) purchased premises No. 52b, Kali Temple Road from the previous owner Nishikanta Ghosh by a registered kobala on 7-2-59. Omprokash Asija, (defendant) occupied a portion of the said premises as a tenant under Nishikanta holding the same at a rental of Rs. 60/- per month. The rent was admittedly payable according to English calendar month. Monohar Lal conducts a hotel business in a rented house in premises No. 16, Russa Road. After his such purchase he served a notice to quit on the defendant requiring the latter to vacate the suit premises on the expiry of the month of June, 1959. The present suit was instituted on 11-7-59 as the defendant failed to vacate the premises as required by the plaintiff. The ground for eviction was stated to be that the plaintiff reasonably required the suit premises for purposes of building and rebuilding. 2. The suit was governed by the provisions of the West Bengal Premises Tenancy Act, 1956 and the relevant section applicable to this case was section 13 (1) clause (f) of the said Act. Both the courts below found that the defendant had been duly served with the notice and it was legal, valid and sufficient. The courts also held that the plaintiff reasonably required the suit premises for building and rebuilding for his personal use and occupation. The contention of the defendant to the effect that the suit had been prematurely instituted by the plaintiff, inasmuch as the former had erected some structures on the land on the basis of an alleged agreement between him and Nishikanta at the time of the commencement of the tenancy in October, 1955, and by virtue of which defendant was not liable to be evicted from the suit premises within six years from the date of the tenancy, was repelled by the lower courts. In rejecting the defendant's contention in this respect, the court of appeal below observed that "the defendant had no acceptable evidence in support of such alleged constructions. "These findings were not challenged, and indeed could not be challenged, at the time of the hearing of the appeal before this Court. In rejecting the defendant's contention in this respect, the court of appeal below observed that "the defendant had no acceptable evidence in support of such alleged constructions. "These findings were not challenged, and indeed could not be challenged, at the time of the hearing of the appeal before this Court. The sole contention pressed before me on behalf of the defendant-appellant was that the courts below had failed to consider that plaintiff's reasonable requirements would be substantially satisfied by evicting the defendant from a part only of the suit premises. It has been argued by Mr. Bhose, learned Advocate for the appellant, that in view of the provisions of sub-section (4) of section 13 of the West Bengal Premises Tenancy Act, 1956, it was the duty of the Court to apply its mind to this question, irrespective of the fact that the question was not actually raised by the appellant either in the court of first instance or before the first appellate court. It has, on the other hand, been contended by Mr. S. C. Janah, learned Advocate for the plaintiff-respondent, that the defendant not having raised the plea in the written statement or in the courts below, he would be precluded from raising this plea for the first time in this Court. 3. Mr. Janah, has, in this connection, relied on a Bench decision of this Court in (1) Govinda Bhusan Ray v. Jnan Chandra Mukherjee, (1958) C. L. J. 265. That case was instituted when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in operation. It was contended on behalf of the defendant in that case that the courts below had not taken into consideration the provision in the explanation to clause (h) of sub-section (1) of section 12 of the said Act. The said proviso contained provisions corresponding to the provisions in sub-section (4) of section 13 of the present Act (The West Bengal Premises Tenancy Act, 1956. The said proviso contained provisions corresponding to the provisions in sub-section (4) of section 13 of the present Act (The West Bengal Premises Tenancy Act, 1956. This Court declined to allow the defendant to raise the said plea for the first time here and the following observations were in this connection, made by Das Gupta, J., as he then was, who delivered the judgment in that case: "where, as in the present case, the defendant did not raise the plea that the reasonable requirement of the landlord may be satisfied by evicting from a part only of the premises, in the written statement or in the court of appeal below, it will not be proper for us to allow him to raise the question here. " 4. The Court was of the further opinion that the evidence that is already on the record, did not justify the conclusion that the reasonable requirement of the landlord might be substantially satisfied by evicting the tenant from a part of the premises. Mr. Bhose has, however, cited before us a contrary decision in this respect by another Bench of this Court, which has been reported in (2) 63 C. W. N. 29 {krishna Das Nandy v. Bidhan Chandra Roy. That was also a case under the Rent Control Act, 1950. The judgment of the Bench was delivered by P. N. Mookerjee, J., and the relevant observations of his Lordship appear at page 54 as follows: "I do not, therefore, agree with the learned Advocate-General that, as the defendant did not take any plea under this proviso in the written statement or before the trial court, he should not be allowed to urge it in this Court. The proviso appears to have been overlooked in the trial Court and the question of partial eviction was not raised or considered there. The plaintiff was seeking total eviction of the defendant from the suit premises and the defendant was fighting out that case. The plaint alleged the plaintiff's reasonable requirement of the suit premises but it did not contain any particulars of such requirement, nor mentioned any fact from which the extent of such requirement could be gathered or inferred In such circumstances, it would be unreasonable to expect the defendant to contend in the written statement that partial eviction would be sufficient to meet the plaintiff's reasonable requirement. The defendant's failure to do so however, does not relieve the court of its duty under the statute and, having regard to the object and scheme of the disputed proviso and, particularly its wording, it seems to us that it is open to the Court-and that, indeed, seems to be its duty to consider this question 0f partial eviction, if it thinks, on the materials before it, that that ought to satisfy substantially the plaintiff's reasonable requirement of occupation and, if the defendant agrees to occupy the portion of the premises that will be left after satisfying the plaintiff's reasonable requirement-to pass a decree for partial eviction in terms of the proviso if the same be otherwise applicable. " 5. Then again, at page 55 his Lordship observed as follows: "there is thus enough justification under the statute to allow this plea of partial eviction to be taken by the defendant for the first time before the appellate court if it had not been considered or considered properly by the trial court (Vide in this connection Sardar Singh v. Bimal Krishna Basu and ors. 59 C. W. N. 430) and, if, on the materials before it, the appellate court be of the opinion that a partial eviction or occupation of a portion of the premises would meet the plaintiff's reasonable requirement, it would pass a decree accordingly allowing the defendant, if he so agrees, to continue in occupation of the rest, provided, of course, the proviso otherwise applies. " 6. Mr. Janah sought to draw distinction between the two cases in that the decision in the last case was given by this Court in first appeal, whereas the previous decision was given by this Court in second appeal. I do not see how that will affect the merits of this contention. There, however, appears to be real conflict in this respect between the two decisions quoted above, which were given in cases governed by the Rent Control Act, 1950. The instant case is, how ever, under the provisions of the present Act, that is, the West Bengal Premises Tenancy Act, 1956, and my hands, therefore, need not be tied by either of the above decisions, although they deserve my most respectful considerations. The instant case is, how ever, under the provisions of the present Act, that is, the West Bengal Premises Tenancy Act, 1956, and my hands, therefore, need not be tied by either of the above decisions, although they deserve my most respectful considerations. The two corresponding provisions in the successive Acts, mentioned above, are almost similarly worded and I propose to follow the views expressed by this Court in Krishna Das Nandy's case (2) as quoted above, for reasons stated below. Under sub-section (4) of section 13 of the West Bengal Premises Tenancy Act, 1956, when the court forms an opinion that the requirement of the landlord may be substantially satisfied by partial eviction of the tenant from a portion of the premises in question, and the tenant also agrees to such occupation, it has to pass a decree accordingly. It, therefore, follows that the stage at which the tenant will be required to express his such agreement will be reached only when the court has formed such opinion. As has been ob-served by P. N. Mookerjee, J., this is a duty imposed on the Court by the statute, and the failure of the tenant to take any plea under the sub-section (4) of section 13, does not relieve the Court of such statutory duty. Of course, in each individual case the Court is to form its opinion in this respect having full regard to the facts and circumstances of that particular case and such stage will be reached only when evidence has been closed and necessary materials for forming such opinion are available from the record. Then the tenant will be asked it he agrees to continue in occupation of the rest of the premises and on the tenant agreeing to such occupation, the court shall pass a decree accordingly, and fix proportionate rent for the portion remaining in occupation of the tenant. Mr. Janah's contentions in this respect are, therefore, repelled 7. It is, therefore, to be seen if there are materials on the record from which it may be said that there is prima facie a case for the application of the provisions of sub-section (4) of section 13 of the West Bengal Premises Tenancy Act, 1956 in this case. Mr. Janah's contentions in this respect are, therefore, repelled 7. It is, therefore, to be seen if there are materials on the record from which it may be said that there is prima facie a case for the application of the provisions of sub-section (4) of section 13 of the West Bengal Premises Tenancy Act, 1956 in this case. The appellant is in occupation of the western portion of the premises No. 52b, Kali Temple Road and the area of the portion has been stated to be 2926 sq. fit. in the plaint. Mr. Bhose has submitted that there is a considerable quantity of vacant land within the suit premises, besides the portion actually covered by the structures in the occupation of the tenant. It is also urged that the requirement of the plaintiff will be substantially satisfied if the defendant be evicted from the vacant portion only. The contention of Mr. Bhose in this respect gets considerable support from the evidence of P. W. 2, the Building Inspector of the Corporation of Calcutta, who has spoken about the building plan relating to the premises no 52b, Kali Temple Road submitted by the plaintiff to the Corporation of Calcutta, and has stated with reference to the same that the proposed building will cover only 1200 to 1250 sq. ft. of land. Of course, this evidence by itself can hardly be considered sufficient to come to a decision on this point in favor of the defendant. There are so many other matters to be considered in this connection, such as the shape of the land, road frontage, place where the proposed building may be conveniently located from the point of view of the actual requirement of the plaintiff and how far this may be done without disturbing the structures in the occupation of the defendant and such further matters as may be considered necessary by the court below, to which I propose to remit back the case, in making up its mind on this point. For this purpose further materials may be necessary and liberty should be given too either of the parties to adduce additional evidence to enable the court to come to a just and proper decision in this respect. It may also be necessary to hold a local inspection and the Court should favorably consider if any application be made before it for the said purpose. Both Mr. It may also be necessary to hold a local inspection and the Court should favorably consider if any application be made before it for the said purpose. Both Mr. Bhose as well Mr. Janah agree that in the event of the case being remitted back for rehearing, it should be sent back to the court of appeal below, instead of to the court of first instance. 8. The appeal thus succeeds in part: it is allowed and the decree of the lower appellate court is set aside and the case is remanded to that court for hearing only on the point mentioned' above and for disposal of the appeal in accordance with law, in the light of the observations and directions given in the body of the judgment. It should be understood that the findings of the courts below on other points are affirmed by this court and should not, therefore, be further considered by the court of appeal below. Costs of this appeal will abide the final result of this case. The Court of appeal below will try to dispose of the appeal within six months of the date of arrival of the records in the said court.