S. K. DUTTA, J. ( 1 ) THIS is an appeal by the plaintiffs against the judgment and decree of reversal remainding their suit for khas possession and mesne profits for fresh decision. The plaintiffs, the Commissioners of Naihati Municipality instituted the suit for khas possession of the suit land by removing the structure therefrom and for mesne profits. According to the plaint, the Commissioners of the Municipality let out the land to the defendant lastly by a settlement for a period from 17. 9. 54 to 16. 9. 57 at an annual rent of Rs. 45/ -. The defendant agreed to give khas possession of the land on the expiry of the lease without any notice. The plaintiffs retained the suit land under section 6 (h) of the West Bengal Estates Acquisition Act, 1953, as the said land was required for municipal purpose. The plaintiffs asked the defendants to quit and vacate the possession of the suit land by a notice dated 25. 2. 58, though no such notice was necessary. But the defendant refused to accept the same and failed to comply with the said requisition. With the expiry of the month on 16. 9. 58, the tenancy of the suit land was determined and accordingly the possession of the defendant on the suit land from 17. 9. 58 had been that of a trespasser. In the circumstances the plaintiffs instituted the suit on 13. 1. 59 claiming the aforesaid reliefs. ( 2 ) THE suit was contested by the defendant who contended, inter alia, that the plaintiffs were not entitled to a decree under the terms of the lease and the land was long before taken for his residence and pucca construction had been made thereon. It was further stated that the plaintiffs were required to prove that the suit land had been retained. It was also stated that no notice to quit was served. Other allegations made in the plaint were generally denied. It was further stated that the plaintiffs were required to prove that the suit land had been retained. It was also stated that no notice to quit was served. Other allegations made in the plaint were generally denied. ( 3 ) THE suit was tried on evidence before the learned Munsif who, by his judgment and decree, held that the suit land did vest in the State that in terms of the agreement of lease the defendant was bound to deliver vacant possession to the plaintiffs and the defendant's contention that no case was made by the plaintiffs about the requirement of the suit land for the purpose of the municipality written statement not necessary in view of the express provision of the settlement which provided that the defendant would vacate after expiry of the lease. Further the notice to quit was unnecessary and it was duly served. In the view that was taken the suit was decreed. ( 4 ) AN appeal was taken against the said decision and the Appellate Court held that in view of the provision of section 6 (1) (h) of the said Act the plaintiffs could only be entitled to khas possession of the suit land if it was established that the same was required for the purpose of the municipality. There was no averment in the plaint that the suit land was required for such purpose and no evidence was adduced in that behalf. Accordingly the Appellate Court felt that the case should go back on remand enabling the plaintiffs to amend their plaint suitably and also to adduce evidence in support of their case. Accordingly the appeal was allowed and the judgment and decree of the lower Court was set aside and the case was sent back on remand to the lower Court for a fresh decision according to law after giving opportunity to the plaintiffs to amend the plaint with liberty to the party to adduce evidence on this point only. The present appeal is against this decision. ( 5 ) MR. Ram Mohan Bhattacharjee, the learned Advocate appearing for the defendant-respondent, has contended that the appeal against an order remand, not being under Order 41, Rule 23 of the Code of Civil Procedure is not appealable and accordingly the present appeal is incompetent. Mr. The present appeal is against this decision. ( 5 ) MR. Ram Mohan Bhattacharjee, the learned Advocate appearing for the defendant-respondent, has contended that the appeal against an order remand, not being under Order 41, Rule 23 of the Code of Civil Procedure is not appealable and accordingly the present appeal is incompetent. Mr. A. P. Chatterjee, the learned Advocate appearing for the Commissioners appellants, has contended that the appeal is maintainable in as much as it was against a decree and section 100 of the Code of Civil Procedure allows an appeal like the present one against a decree passed on appeal. ( 6 ) A decree has been defined in the Code of Civil Procedure under section 2 (2) as ?the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. . . but shall not include (a) any adjudication from which an appeal lies as an appeal from an order or (b) any order of dismissal for default. . . . . . ?. It will appear therefrom tha the decree as contemplated in the Code is a formal expression of an adjudication conclusively determining the rights of the parties as to all or any matter in controversy. In the instant case, the judgment under appeal does not determine at all far less conclusively any rights of the parties even in respect of any matter in controversy. Accordingly the order under appeal cannot be termed as decree. Though a formal decree was drawn. It is also the position that the order in form or in substance is not one under Order 41, Rule 23 against which an appeal is provided by Order 43 (1) clause (u) of the Code. Accordingly the preliminary objection must prevail and it must be held that the appeal is not competent. ( 7 ) THE preliminary objection however was not taken at the proper stage with the result that the entire appeal has been argued before me on all points. Even if the appeal not maintainable, if there was any case on merits I would not hesitate to interfere in this case taking the memorandum of appeal as a petition in revision. Even if the appeal not maintainable, if there was any case on merits I would not hesitate to interfere in this case taking the memorandum of appeal as a petition in revision. Accordingly, I propose to enter on the merits of the appeal. Mr. Chatterjee has contended that under the provision of section 6 (1) (h) of the said Act the municipality as a local authority is entitled to retain lands which may have been let out at the time of vesting and any person holding such land shall not acquire any right of occupancy thereon and shall be bound to deliver possession thereof to such authority when required for its purpose. The relevant provision of section 6 of the law may be set out for convenience is as follows: ?section 6. Right of intermediary to retain certain lands. (1) Notwithstanding anything contained in sections 4 and 5, an intermediary shall except in the cases mentioned in the proviso to sub-section (2) but subject to the other provision of that sub-section, be entitled to retain with effect from the date of vesting - (a ). . . . . . . . . . . . . (b)where the intermediary is a local authority, land held by such authority, notwithstanding such land or any part thereof may have been let out by such authority; provided that where any land which has been let out by any local authority is retained by such authority; under this clause, no person holding such land shall have any right of occupancy therein, and every such person shall be bound to deliver possession of the land to the local authority when required by it for its purposes. . . . . . . ?. ( 8 ) IT will appear therefrom that the local authority will be entitled to retain all lands let out at the time of hearing and there is no dispute that the plaintiffs validly retained the suit land though in the plaint it is averred that the suit land was retained as it was required for municipal purpose. No requirement by local authority is necessary to support its retention of land let out in whole or in part. This is a benefit which has been granted by the Act to the local authority to retain the lands let out which in case of other intermediary vested in the State. No requirement by local authority is necessary to support its retention of land let out in whole or in part. This is a benefit which has been granted by the Act to the local authority to retain the lands let out which in case of other intermediary vested in the State. ( 9 ) MR. Chatterjee contended that the case of requirement of the suit land by the municipality has been made out and the tenant is bound to quit whenever he is asked by municipal to do so as its tenancy had expired with the expiry of the lease that is on 16. 9. 57 and the notice was expired with the expiry of the lease that is on 16. 9. 57 and the notice was given by way of abundant caution though it was not necessary. It may be pointed out here that in the notice it is stated that it has being served though it was not necessary and that the tenant was continuing as a tenant at will and that he would be treated as a trespasser from 17. 9. 58 if he failed to vacate. The same case was pleaded in the plaint which stated that from the expiry of the month 16. 9. 58 the tenancy on the suit land was determined and possession of the defendant on the suit land from 17. 9. 58 was that of a trespasser. In the said notice however the tenant was not told that the land was required for the purpose of the Municipality and in the plaint also we do not find any averment that the tenant was bound to vacate because the suit land was required by the Municipality for its purpose which was the only ground on which the plaintiffs would be entitled to recover possession in respect of lands let out at the time of vesting, to which cases alone, it appears, sub-section (h) of section 6 of the Estates Acquisition Act is applicable. ( 10 ) MR. Chatterjee however contended that in the plaint in paragraph 6 there was a positive averment that the land was retained as it was required for its purpose. ( 10 ) MR. Chatterjee however contended that in the plaint in paragraph 6 there was a positive averment that the land was retained as it was required for its purpose. He stated that was sufficient averment and law did not contemplate that the local authority should disclose it specific requirement not it was possible for a municipality to say so as such land could be required for any of the many purposes of the Municipality which may not the purposes laid down in the Bengal Municipal Act, 1932. ( 11 ) AS to the contention that the averment in the plaint as stated above that the land was retained as it was required for the purpose of the Municipality was sufficient, there is however no factual basis on record to support the said contention. It will appear that the lease, Exhibit 1 recorded the settlement from 17. 9. 54 to 16. 9. 57 but the document was executed by the parties on 23. 6. 56 long after the vesting. It could not therefore be said that the land was retained as it was required for the purpose of the Municipality. As obviously on the date of the execution there written statement no such requirement as otherwise it would not have been let out so. As seen earlier, it however not necessary under Act 1 of 1954 to state the requirement of a local authority for supporting retention as the right to retain is given by the Act itself to the local authority. It only provides for khas possession of such retained land when required by it for its purpose. ( 12 ) THERE is therefore a complete absence of any pleading about the plaintiffs' requirement of the suit land and there was no evidence also in support of such requirement. Mr. It only provides for khas possession of such retained land when required by it for its purpose. ( 12 ) THERE is therefore a complete absence of any pleading about the plaintiffs' requirement of the suit land and there was no evidence also in support of such requirement. Mr. Chatterjee, however contended elaborating his arguments that the Municipality was not required to state or to set out in the plaint its purpose for which the land was required and being a suit juris, the bare statement of the Municipality that the land written statement required for its purpose was sufficient and in any case it could not be said that the Municipality should state specific purpose for which it was required as it was not possible to do so because of the manifold activities of the Municipality and such purposes need not be those confined within the Bengal Municipal Act. The contentions have been disputed by Mr. Bhattacharjee appearing for the defendant-respondent. ( 13 ) IN my opinion, the contentions of Mr. Chatterjee are untenable. The law gives the right to a local authority to obtain khas possession of lands let out only in one specific case namely, if such land is required for the purpose of the local authority. If then the local authority files a suit for possession of such land, the case of requirement has to be made in the plaint and also to be established by evidence before it can be made entitled to decree for possession. There must be averment about the purpose for which such land is required so that the person affected thereby may challenge the requirement as not being a requirement of the Municipality or being a mala fide act on its part. It is will therefore be necessary for the parties to establish evidence in support of their respective contentions and the Court will consider on the materials on record whether the requirement allowed is really a requirement of the Municipality for its purpose. Only when the Court is satisfied that it is so the Municipality would be entitled to a decree for possession and not otherwise. Only when the Court is satisfied that it is so the Municipality would be entitled to a decree for possession and not otherwise. I therefore find nothing wrong in order of the Appellate Court in remanding the case for affording the case for affording an opportunity to the Municipality to say that it requires the suit land for its purpose and to establish by evidence in the case of such requirement. ( 14 ) THE functions which a Municipality has to discharge has been described in various Chapters of Bengal Municipal Act, 1932. A piece of land may be required for any of the purposes of the Municipality as described in the said Act and such a purpose cannot be one outside the Act. For if the purpose is one which is not warranted by the Act to which the Municipality owes its creation and existence it cannot be a purpose of the Municipality, as part from the Act, the Municipality can have no existence. There is therefore nothing improper the lower Appellate Court's circumscribing the purpose of the municipality's requirement within the four corners of the Act. I also do not find any reason behind the contention that it is not possible for the Municipality to state its purposes of requirement in respect of the piece of land when it asks for the recovery of possession. As all contentions on behalf of the appellants fail, the appeal is dismissed, there being no order for costs in this Court. Appeal fails and dismissed.