Judgment This is an appeal against the Judgment and decree passed by Sri T.K. Mutsuddi, Subordinate Judge, 3rd Court, Midnapore, in Title Appeal No. 247 of 1960 dated 19th May, 1961 affirming those dated 28th June, 1960 passed by Sri H. Chakraborty, Munsif, 3rd Court, Midnapore, in Title Suit No. 72 of 1950. The facts of the case may briefly be stated as follows:- 2. The plaintiff filed a suit for ejectment and realization of rent. The plots belonged to one Fakir Mallick. Plaintiff No. 2, the wife of Plaintiff No. 1 bought the same from his heirs on 28.2.28 by kobala, Ext. 2. The superior interest belonged to the Government of India. The Khas Mahal Department settled the plots to one Abdul and Amena by pattas on 15.3.34. The plaintiff No. 1 obtained the interest under the pattas by a kobala executed by them on 22.12.37. Then on receipt of a notice from the Khas Mahal Department the plaintiff No. 1 executed a kabuliyat in respect of the land in Khas Mahal plots 206 and 207 in favour of the Khas Mahal Department on 28.3.38. The house on the suit land was then raised. In January, 1984, the plaintiff let out the house to defendant Nos. 1 and 2 at a rental of Rs.40/- per month. Since December, 1953 the defendants did not pay any rent. The plaintiffs, therefore, brought a suit for ejectment. That suit was withdrawn for formal defect with liberty to sue afresh. After that the present suit has been filed for ejectment on the ground that the defendants did not pay any rent from December 1953 and for arrears of rent from November 1954 to October 1957. The defendants No.1 alone contested the suit. His case is that he took a portion C.S. Plot No. 507 in settlement from the recoded tenant Fakir and also C.S. plot No. 447 from Nasir Khan and others. It is alleged that he is in possession of those plots and also portions of khas mahal plots 205 and 208. The house in question was built by him more than 30 years bake and the defendant No. 1 is possession it in his own right. There is no relationship of landlord and tenant between the parties. 3. The learned Munsif negatived the contention of the defendant No.1 and found that there was relationship of landlord and tenant between the parties. The house in question was built by him more than 30 years bake and the defendant No. 1 is possession it in his own right. There is no relationship of landlord and tenant between the parties. 3. The learned Munsif negatived the contention of the defendant No.1 and found that there was relationship of landlord and tenant between the parties. He also found that the defendant No.1 was in arrears of rent. In such circumstances, the learned Munsif decreed the suit for ejectment and also for arrears of rent. Being aggrieved, the defendant No.1 preferred an appeal. The learned court of appeal below affirmed the findings of the learned Munsif. Being aggrieved, the defendant No.1 has come up to this Court. 4. Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the appellant, submits that in the written statement the defendant No. 1 very clearly raised the plea that there was no relationship of landlord and tenant and Issue No.2 was framed to the effect; "Is those any relationship of landlord and tenant between the parties."? In such circumstances, Mr. Mukherjee submits that no appropriate order was palled by the learned courts below under Section 17(2) of the Act. When the learned court, found that there was relationship of landlord and tenant it was the duty of the learned court to determine the arrears of rent and to make necessary directions for payment of the same. Mr. Mukherjee submits that it is true that subsection (2) of section 17 was amended in 1959 by the Amendment Act XXVII of 1959 and that the said amendment had no retrospective operation. But even then, according to the provisions of unamended section 17(2), the learned court was required to pass appropriate orders after determining the question of relationship of landlord and tenant. Mr. Mukherjee in this connection further submits that if an order was passed directing the defendant to deposit arrears of rent as determined by the court and if that amount was deposited by the defendant then the defendant would have got the protection of sub-section (4) of Section 17 which was amended by the Amendment Act of 1969 and which had retrospective effect. In support of his contention that a dispute raised regarding the existence of relationship of landlord and tenant, an appropriate order must be passed by the court. Mr. In support of his contention that a dispute raised regarding the existence of relationship of landlord and tenant, an appropriate order must be passed by the court. Mr. Mukherjee refers to a decision reported in (1) 65 C.W.N. 149 (Biswanath Roy v. Annapurna Roy). It has been held that "Any kind of dispute which affects the amount of rent payable by the tenant, including a dispute as to the existence of relationship of landlord and tenant between the parties, will be a dispute under or within the contemplation of section 17(2) of the West Bengal Premises Tenancy Act, 1956. A dispute as to the existence of relationship of landlord and tenant between the parties does affect the question of rent payable by a tenant to a particular landlord and in that view of the matter, in a case where such a dispute has been raised unless and until the court has decided and determined that dispute and made an appropriate order under section 17(2), no question of striking out the defence against delivery of possession under Section 17(3) can arise." Mr. Mukherjee next refers to a decision reported in (2) 73 CWN 591 (M. Gulamali Abdul Hossain and Co. v. Binani Properties Private Ltd. and others). It was held in paragraph 51 "The Bench decisions do not support the contention of counsel for the plaintiff/respondents that the amendments will not apply to pending appeals, Section 5 of the Amendment Act, 1968 coach that the amendments shall have effect in respect of suit including appeals which are pending on the date of commencement of the Act. This appeal was pending on the date of commencement of the Act. Therefore, provisions of the amending Act apply to the present appeal. Further the Bench decisions are authorities for the proposition that the amendments will apply to pending suits or appeals". Mr. Mukherjee also relied on a decision reported in (3) 74 CWN 42 (Krity Basu v. Peary Mohan Sarkar and another. In this case Their Lordships relying on the decision reported in 65 CWN 149 held, "If the court does not consider the matter under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 and does not pass any order thereunder its order (striking out the defence) under section 17(3) of the Act is illegal and without jurisdiction". From what has been laid down in the decisions referred to above, Mr. From what has been laid down in the decisions referred to above, Mr. Mukherjee submits that it has been very clearly held that if a court decides that there is existence of relationship of landlord and tenant between the parties, the court is required to pass appropriate orders under section 17(2). 5. Mr. Guruprosad Ghosh, learned Advocate appearing on behalf of the respondents, submits that after the amendment of section 17(2) no application was filed by the appellants railing any dispute under Section 17(2). This amendment had no retrospective operation and moreover before the amendment there was no necessity for the tenant to file a separate application under section 17(2). It was enough if the denial with regard to the existence of relationship of landlord and tenant was taken in the written statement. Mr. Mukherjee submits that as the amendment of section 17(4) has retrospective operation, he will get the protection under section 17(4) if he complies with the order which may be paned by the court under section 17(2). In such circumstances, Mr. Mukherjee submits that this case should go back to the learned trial court for passing appropriate order under section 17(2). 6. Mr. Mukherjee in the next place submits that the plaintiff traces his right from the original owner who got the property from the Government by executing a kabuliyat. Mr. Mukherjee submits that the Government cannot confer rights simply on the basis of a kabuliyat and as such the predecessor-in-interest of the plaintiff did not acquire any right in respect of the disputed property. 7. Mr. Ghosh submits that the defendant No. 1 cannot now challenge that the kabuliyat which was accepted by the Khas Mahal Department and on the basis of which the predecessor in interest of the plaintiff acquired right in respect of the disputed property. Ext. 5 series clearly show payment of rent. The Khas Mahal Department setting the lands by granting pattas, Exts. 3 and 3A, on 14.3.43. The defendant No. 1 is a stranger. He is not a party to the contract between the Government and the predecessor-in-interest of the plaintiff and as such he cannot question that the contract was not proper and on the basis of the said contract the predecessor-in-interest of the plaintiff did not acquire right, title and interest. This contention raised by Mr. Mukherjee is nagatived. He is not a party to the contract between the Government and the predecessor-in-interest of the plaintiff and as such he cannot question that the contract was not proper and on the basis of the said contract the predecessor-in-interest of the plaintiff did not acquire right, title and interest. This contention raised by Mr. Mukherjee is nagatived. The findings of the courts below that those is existence of relationship of landlord and tenant are confirmed. As no appropriate order was passed by the trial court under section 17(2) of the West Bengal Premises Tenancy Act, the suit will have to be sent back to the learned Munsif. 8. In the result, the appeal is allowed on contest. The judgments and decrees passed by the courts below are set aside. The suit is sent back to the learned Munsif who is directed to determine the arrears of rent and pass appropriate orders allowing the defendant No. 1 to deposit the same in Court. After making such order, he will proceed according to law. It is hereby made clear that if the defendant No. 1 compiles with the order which will be passed under section 17(2) of the Act, the defendant No.1 will be entitled to get protection under section 17(4) of the Act. There will be no order as to costs in this appeal.