M. M. DUTT, J. ( 1 ) THIS appeal is at the instance of the defendant and it arises out of a suit for eviction. ( 2 ) THE defendant had been a monthly tenant under the plaintiffs in respect of a shop room in the ground floor of premises No. 84, Cornwallis Street, Calcutta which is a three storied building having nine rooms in each floor. The plaintiffs purchased the building on August 4, 1946. On the date of the plaintiffs' purchase of the building, the premises included a vacant plot of land o the south of the building. After the purchase, the plaintiffs erected a cinema house known as ?darpana' cinema on the said vacant plot of land. It is not disputed that there is a passage for ingress and egress to and from the building. It is alleged by the plaintiffs that this passage is also used by the lower class cinema goers as an exit. It is the plaintiffs' case that they require a respective entrance to the building which is a palatial one and for that purpose they require the disputed room to be used as a passage from the main road by simply opening a back-door thereto. It is also alleged by the plaintiffs that the defendant was a defaulter in payment of rent. On the above allegations, the plaintiffs asked for the eviction of the defendant from the disputed room on the grounds of reasonable requirement of the disputed room for the plaintiff's own occupation and for building and re-building and also on the ground of default in payment of rent. Subsequently, however, during the trial, the plaintiff's abandoned their case of building and re-building and default in payment of rent. The only ground that was pressed by the plaintiffs is reasonable requirement of the disputed room for the plaintiff's own occupation. It may be stated here, that the suit which was instituted on July 3, 1954 was governed by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. ( 3 ) THE defendant contested the suit. The plaintiff's case of reasonable requirement of the disputed room for their own occupation was denied by the defendant. ( 4 ) THE trial court came to the finding that the plaintiffs failed to prove that they reasonably required the disputed room. ( 3 ) THE defendant contested the suit. The plaintiff's case of reasonable requirement of the disputed room for their own occupation was denied by the defendant. ( 4 ) THE trial court came to the finding that the plaintiffs failed to prove that they reasonably required the disputed room. The plaintiffs preferred an appeal and the lower appellate court reversed the finding of the trial court and decreed the suit for recovery of possession. There was a second appeal by the defendant to this Court which was heard by Laik J. It appears that at the hearing of the second appeal, the defendant through his learned Advocate expressed his willingness and agreement to a decree for partial eviction from the disputed room if the defendant would fail on all other grounds. Laik J. set aside the judgment and decree of the lower appellate court and sent the matter back on remand for the purpose of deciding the following three points: (1) Whether on the abandonment of the plaintiffs' case of building and rebuilding, the case of reasonable requirement of the plaintiffs for their own use and occupation should fail. (2) Whether the requirement of the present tenants or of the tenants to be settled in future by the plaintiffs in the house would mean a requirement of the plaintiffs for their own use and occupation within the meaning of section 12 (1) (h) of the Act. (3) Whether the plaintiffs' reasonable requirement, if any, may be substantially satisfied by evicting the defendant from a part only of the suit premises and allowing him to continue to occupy the rest. ( 5 ) AFTER remand, the lower appellate court decided points Nos. 1 and 2 against the defendant. The lower appellate court held that on the abandonment of the plaintiffs' case of building and rebuilding, the case of reasonable requirement of the plaintiffs of the disputed room for their own occupation would not fail and that the requirement of the present tenants or of the tenants to be settled in future by the plaintiffs in the building would be the requirement of the plaintiffs for their own occupation within the meaning of section 12 (1) (h ). On the third point, it has been found by the lower appellate court that the disputed premises consists of an inside room with a varandah on the Cornwallis Street, having measurements as follows: ? inside room 13'-9' (North to South) X 10'-9' (East to West) with two doors on the front and two doors at the back. Varandah 15'-8' (North to South) x 5'-0? (East to West) having two doors on the road side?. The lower appellate court held that the plaintiffs' satisfied if they were allowed possession of the southern half portion of the disputed room leaving the northern half portion thereof in the occupation of the defendant by partitioning the disputed room into two equal halves from east to west. It was further held that the cost of constructing a partition wall should be borne by the defendant alone. The lower appellate court assessed the standard rent which would be payable by the defendant for such occupation after his partial eviction from the disputed room and fixed the same as Rs. 22. 50 per month. The appeal was accordingly allowed in part by the lower appellate court. Hence, this second appeal. ( 6 ) MR. Sakti Nath Mukherjee, learned Advocate appearing on behalf of the defendant has not challenged before me the finding of the lower appellate court on the first point, namely, that on the abandonment of the plaintiffs' case of building and rebuilding, the plaintiffs' case of reasonable requirement for their own occupation would not fail. ( 7 ) MR. Mukherjee has, however, seriously challenged the finding of the lower appellate court on the second point. It is submitted that the requirement of the disputed shop room for the benefit of the existing tenants of the plaintiffs in the building or for the benefit of the future tenants who may be inducted into the building cannot be said to be for the own occupation of the plaintiffs within the meaning of section 12 (1) (h) of the West Bengal Premises Rent Control (Temporary and Provisions) Act, 1959. A similar contention was made before the lower appellate court, but the lower appellate court rejected the said contention relying on a decision in V. M. Desmukh v. K. M. Kothari A. I. R. 1951 Nag. 51. In my opinion, the defendant is not entitled to challenge this finding of the lower appellate Court for the reasons stated hereafter. A similar contention was made before the lower appellate court, but the lower appellate court rejected the said contention relying on a decision in V. M. Desmukh v. K. M. Kothari A. I. R. 1951 Nag. 51. In my opinion, the defendant is not entitled to challenge this finding of the lower appellate Court for the reasons stated hereafter. ( 8 ) IN the appeal before remand, the defendant expressed his willingness and for partial eviction in case his other defence would fail. On behalf of the defendant it was contended before this Court that the trial court should considered the question of partial eviction and as aforesaid, the defendant expressed his agreement to partial eviction. It appears that on the insistence of the defendant and on his having expressed the case back on remand to the lower appellate court for the purpose of considering point No. 3 on the question of partial eviction. The lower appellate court has now found that the requirement of the plaintiffs will be satisfied by the partial eviction of the defendant from the southern half portion. ( 9 ) THE question is whether in this appeal it is open for the defendant to challenge the decree for partial eviction on the ground that the plaintiffs do not at all require the suit premises. Under the proviso to section 12 (1) (h), where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part of the premises and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the court shall pass a decree accordingly, and fix a proportionate fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the premises within clause (8) of section 2, and the rent fixed shall be deemed to be the standard rent fixed under section 9. Under this proviso the Court has to come to a decision that the landlord requires the premises and that such requirement of the landlord will be satisfied by the partial eviction of the tenant from the premises; even the Court cannot pass a decree for partial eviction unless the tenant agrees to the same. Under this proviso the Court has to come to a decision that the landlord requires the premises and that such requirement of the landlord will be satisfied by the partial eviction of the tenant from the premises; even the Court cannot pass a decree for partial eviction unless the tenant agrees to the same. In coming to the said decision the Court rejects the contentions of the tenant against the landlord's case of requirement of the premises, and the tenant by agreeing to the said decision of the Court, consequently abandons all other pleas against the landlord's requirement. If the tenant does not want to abandon his defence against the landlord's case of requirement, he should not agree to the Court's decision of partial eviction. In such a case, the Court has to pass a decree for eviction in respect of the entire premises in spite of its decision that the landlord's requirement will be satisfied by partial eviction of the tenant from the premises. The tenant may challenge the decision in appeal and press his defence against eviction. But where the tenant accepts the decisions of the Court by agreeing to his partial eviction from the premises, the tenant, in my opinion, is precluded from challenging the decree for partial eviction in an appeal from such a decree, for, otherwise, the proviso to section 12 (1) (h) referred to above will be meaningless and nugatory. It is on the tenant's agreeing to a decree for partial eviction that the Court has to fix the proportionate fair rent for the portion that will be in occupation of the tenant after his eviction from the remaining portion of the premises. ( 10 ) MR. Mukherjee, however, submits that in the instant case, the agreement of the defendant was not unqualified but it was subject to his failure in substantiating his grounds of defence against the plaintiff's case of requirement of the suit premises. It has been stated already that in this Court before remand, the defendant expressed his willingness and agreement to a decree for partial eviction in case his other grounds would fail. It is contended that in view of the terms in which the defendant expressed his agreement and willingness, he is entitled to agitate his other grounds of defence against the plaintiff's case and assail the decree for partial eviction in this appeal. It is contended that in view of the terms in which the defendant expressed his agreement and willingness, he is entitled to agitate his other grounds of defence against the plaintiff's case and assail the decree for partial eviction in this appeal. It is argued by him that if this Court does not accept the contentions of the defendant against the decree, in that case, the decree for partial eviction will be binding upon the defendant. It is not the case of the defendant that he did not agree to a decree for partial eviction, but his case is that the agreement will not be operative till his other grounds are heard and decided against him by this Court. Further, it is contended by Mr. Mukherjee that if the defendant is not allowed to press his other defences against eviction, it will tantamount to laying down that an appeal does not lie against a decree for partial eviction which will be contrary to the provisions of section 96 of the Code of Civil Procedure udder which no appeal lies only in a case where the decree has been passed on consent of parties. It is argued that as in the instant case, the decree was not passed on consent of parties section 96 is no bar to the filing of an appeal against the decree for partial eviction. ( 11 ) I may now consider he said contentions. It is true that the defendant agreed to a decree for partial eviction in case his other grounds of defence would fail. The lower appellate court did not accept the defence of the defendant against the plaintiff's case of reasonable requirement. Thereafter, the lower appellate court considered the question of partial eviction as directed by this Court before remand on the prayer of the defendant and came to the finding that the plaintiff's requirement would be satisfied by the partial eviction of the defendant from the disputed room. In my opinion, it cannot be said that the lower appellate court did not act in accordance with the direction of this Court before remand or the said agreement of the defendant. The grounds of defence of the defendant having failed before the lower appellate court, the defendant was bound by his agreement. In my opinion, it cannot be said that the lower appellate court did not act in accordance with the direction of this Court before remand or the said agreement of the defendant. The grounds of defence of the defendant having failed before the lower appellate court, the defendant was bound by his agreement. The defendant cannot be permitted to challenge the findings of the lower appellate court rejecting his defence against eviction by a further appeal from the decree, that is to say, in this second appeal. The same thing happens when a defendant agrees to a decree for partial eviction before the trial court after his defence against the plaintiffs' case fails. The defendant cannot be allowed to blow hot and cold. It does not mean that the defendant is precluded from preferring an appeal from the partial decree for partial eviction. There can be no doubt that an appeal lies from such a decree under section 96 of the Code of Civil Procedure, for when a defendant agrees to a decree for partial eviction, it cannot be said that it is a decree passed on consent of parties, but the Court will not allow the defendant to challenge the propriety or correctness of the decree for partial eviction passed on the agreement of the defendant. In such an appeal, the defendant will be entitled to challenge the rent fixed by the Court for the reduced accommodation of the defendant, for the rent is not fixed on the agreement of the defendant; what the defendant is precluded from challenging is the decree for partial eviction to the passing of which, the defendant agreed. Mr. Mukherjee has placed reliance on some decisions, but in my opinion, it is not necessary to refer to or consider the same, because those deal with cases under section 96 of the Code of Civil Procedure. It has been stated already that an appeal lies against a decree for partial eviction and that such an appeal is not barred by section 96. In these circumstances, I am unable to accept the aforesaid contentions made on behalf of the defendant. It has been stated already that an appeal lies against a decree for partial eviction and that such an appeal is not barred by section 96. In these circumstances, I am unable to accept the aforesaid contentions made on behalf of the defendant. ( 12 ) FOR the reason aforesaid, the judgment and decree of the lower appellate court are affirmed and this appeal is dismissed, but in view of the facts and circumstances of the case, I direct each party to bear his own costs both in this Court and in the courts below. The cross-objection has not been pressed and it is also dismissed without costs. Appeal dismissed.