JUDGMENT K. N. Goyal, J. - This is a defendants' second appeal arising out of a suit for rent and ejectment. 2. The relevant facts are as follows: One Ram Lal Nigam was the original owner of a plot of land situated in the City of Lucknow. He let out the same to one Abdul Rashid. Abdul Rashid put up a tin shed and planted a Neem tree on that plot. Abdul Rashid vacated the plot but did not remove the structure covered by tin shed, or the Neem tree. Thereafter Ram Lal Nigam let out the premises to Chet Ram,, the original Defendant in the suit, who has died during the course of litigation and |has been substituted by the present appellants. The expression premises, which is a neutral expression, is being deliberately used here, because the controversy between the parties is whether what was let out only the plot of land but also the structure with tin shed thereon which had been left in the plot by Abdul Rashid while vacating the plot. The monthly rent agreed was Rs. 5. The sarkhat which was executed by the defendant Chet Ram describe the leased premises as follows: Ek kita arazi waqze jiski chauhaddi niche di hui hai, jis par Ki purab ki ore ek lakari ka darwoza laga hua hai tatha paschim ki ore tinon se chhaya hua hai, Abdul Rashid Kir aye Par liye hue the, usi kul ko. 3. One of the conditions, namely, condition no. 4 of letting |was that the tenant would be responsible for all sorts of repairs (har prakar ki toot photo wa marammat). This Sarkhat is dated 10158. 4. It further appears that immediately before this rent note was executed Chet Ram defendant had been living in a house which also belonged to Ram Lal Nigam. Nigam sold that house with vacant possession to Abdul Rashid. Chet Ram had agreed to vacate that house as he was getting the new premises which are in suit. 5. A few years later, in 1965, Ram Lal Nigam executed a saledeed in favour of the present plaintiffrespondents. These plaintiffrespondents are related to Abdul Rashid. Nigam sold that house with vacant possession to Abdul Rashid. Chet Ram had agreed to vacate that house as he was getting the new premises which are in suit. 5. A few years later, in 1965, Ram Lal Nigam executed a saledeed in favour of the present plaintiffrespondents. These plaintiffrespondents are related to Abdul Rashid. In this saledeed the property sold was described as a plot of land and it was also recited that the tin shed along with the timber and the Neem tree belonged to Abdul Rashid and that they especially excepted from the sale. 6. Thereafter the plaintiffs served a notice to quit and filed after determination of tenancy of Chet Ram. 7. The suit was contested with various allegations. The writtenstatement filed in the case was to the effect that Ram Lal Nigam was admittedly owner of plot of land. The defendant had been made to vacate the house which was under his tenancy when Nigam wanted to sell it with vacant possession to Abdul Rashid. In lieu of this vacancy by the defendant, Nigam offered his own land to the defendant with the explicit consent and permission to him to make construction for his own residential purposes. It was agreed that Nigam would not get it vacated by the defendant. It was further pleaded that Abdul Rashid had no concern with the constructions and that he had removed all his belongings and fixtures and that the standing structure solely belonged to the defendant. It was also said that the said piece of land had become an accommodation within the meaning of U.P. (Temporary) Control of Rent and Eviction Act, 1947 and as no permission to file the suit had been taken under Section 3 of the Act from the District Magistrate, the suit for eviction was not maintainable. 8. The suit was decreed by the trial court on 20369. On defendants' appeal the Civil Judge passed an order of remand directing that the pleadings be clarified and, if necessary, the issue be reframed. Against that order of remand the plaintiffs came in appeal to this Court. When the F.A.F.O. Came up for hearing in this Court, arguments were addressed only on behalf of the plaintiffsappellants while the Counsel for defendantsrespondents was not present. Against that order of remand the plaintiffs came in appeal to this Court. When the F.A.F.O. Came up for hearing in this Court, arguments were addressed only on behalf of the plaintiffsappellants while the Counsel for defendantsrespondents was not present. The learned Judge who heard the F.A.F.O. took the view that the remand order was unnecessary inasmuch as the pleadings clearly established that the defendant was tenant of land only and not of accommodation within the meaning of the 1947 Act. Accordingly, the lower appellate court was directed to hear the appeal afresh in the light of the observations made by this Court. The judgment of this Court is dated 1873. 9. When the matter was sent to the lower appellate court it held that the question could not be reopened in view of the finding given by this Court and that the leased premises must be held to be land and not accommodation. As there was nothing wrong with the notice to quit, the tenancy stood terminated and there was no legal bar to the maintenance of suit. The suit was accordingly decreed. 10. Aggrieved thereby this second appeal has been filed by the defendants. 11. On behalf of the defendantsappellants it has been strenuously contended that in view of the clear recitals of the sarkhat (rent note) quoted above, the only view that could possibly be taken was that the defendant Chet Ram was tenant of an accommodation. It was immaterial whether the tin roofed structure which had at least one door also was set up by Ram Lai Nigam or by Abdul Rashid. The fact was that Abdul Rashid had left it on the premises and thereafter Nigam had left out the same along with the land to the defendant. The expression usi kul ko occurring in the sarkhat which follows the description of the tinroofed structure including the door, and the further recital about responsibility for repairs, clearly go to show that the defendant was tenant of that tinroofed accommodation from Nigam, Jt is immaterial, so far as the defendant is concerned, whether Nigam subsequently in his saledeed in favour of the plaintiffs sold the land alone or the structure as well. The character of the leased premises could not be altered by recitals in the transaction of saledeed between Nigam and the plaintiff, to which the defendant was not a party. The character of the leased premises could not be altered by recitals in the transaction of saledeed between Nigam and the plaintiff, to which the defendant was not a party. If the defendant was, visavis Nigam, protected by the rent control law, that protection could not be taken away by the ingenuity of the recitals in the deed between the vendor and the vendee behind the back of the tenant. 12. I would have found much force in this contention but for two circumstances. Firstly, the defendant's own pleadings in the writtenstatement were not satisfactory. As transpired in oral evidence, the allegation in the writtenstatement that Abdul Rashid had taken away the structure and that a new structure had been set up by the defendant himself Was not factually correct. Indeed, it was the structure left by Abdul Rashid which had subsequently passed on to the defendant from Nigam. It does appear highly probable that the defendant was persuaded to vacate the house: which was under his tenancy from Nigam in lieu of this other accommodation which is the subjectmatter of the suit. This was no doubt pleaded by the defendant but the defendant was illadvised to plead that he had taken only the land and not the structure on rent and that the land had only subsequently become accommodation. 13. Another difficulty in accepting the contentions advanced on behalf of the defendantsappellants is the earlier judgment of this Court dated 1873 referred to above. Unfortunately, the defendant did not put in appearance at the time of hearing of that appeal and the appeal was actually allowed ex parte against him. The defendant does not appear to have made any attempt to have the ex parte order set aside or the appeal to be reheard. He acquiesced in that decision. 14. As held in Jasrej v. Hamraj, AIR 1977 SC 1011 , not only the lower appellate court was bound by the judgment of this Court dated 1873, but this court is also bound, while deciding the present second appeal, by that judgment. Of course, if the matter is taken to the Hon'ble Supreme Court, the judgment dated 1873 may also be reopened, but so far as this Court is concerned it cannot be reopened. 15. Of course, if the matter is taken to the Hon'ble Supreme Court, the judgment dated 1873 may also be reopened, but so far as this Court is concerned it cannot be reopened. 15. Learned counsel for the appellants has, however, tried to persuade me to hold that the judgment dated 1873 did not contain a finding on the question but merely an observation. The lower appellate court at the first occasion had merely remanded the case for retrial and all that this Court was concerned with is whether to maintain that earlier order or to hold the remand to be unjustified. Of course, this court was concerned with examining the propriety of the remand, but if while adjudicating on the legality or propriety of the remand order it came to a finding that the defendant was tenant of land and not of accommodation, that finding cannot be treated as a mere observation. Indeed, there was a specific issue on the question, namely, issue no. 2, and if a clear and categorical view is expressed by the court on an issue, it cannot be said to be a mere observation. It has been laid down in IncomeTax Officer v. Murtidhar Bhagwan Das, 52 ITR 335 at 344, by the Hon'ble Supreme Court, agreeing with the view expressed by a Division Bench of this Court; The word 'finding' will only cover material question which arise in a particular case for decision by the authority hearing the case or the appeal which being necessary for passing the final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing. It was also observed that a finding is a decision on an issue framed in a suit and that such a finding shall be one which by its own force or in combination with findings on other issues should lead to decision of the suit itself. 16. We have seen that the question whether the leased premises consisted of a plot of land or of accommodation within the meaning of the 194; Act was clearly in issue and a finding on that issue was necessary for the decision of the suit. 16. We have seen that the question whether the leased premises consisted of a plot of land or of accommodation within the meaning of the 194; Act was clearly in issue and a finding on that issue was necessary for the decision of the suit. It was also considered necessary by this Court in 1973 for decision of the F. A. F. O. It cannot, therefore, be said to be mere observation. 17. Not only this, this court while sending back the case to the lower appellate court for fresh decision did not ask that court to decide the appeal on its own in its entirety. The clear direction of this Court in its order dated 181973 was to hearing the appeal afresh in the light of observations in the above. In other words, what the lower appellate court was directed was to decide the appeal by giving findings on the remaining issues., namely issues other than the one on which finding had been given by this Court in its order dated 181973. In this view of the matter, the decision in Cherein v. Kochuvareed, AIR 1975 Kerala 197, relied on by the learned counsel for the appellants is of no avail. In that case it was held as follows in paras 10 and 11 of the report : If a High Court remands a case to the lower court, the matters finally disposed of by the order of remand cannot, any of them, be re opened, when the case comes back from the lower court but, if at the time of remand, no final decision is given on a point, though some observations only are made in respect of it, it is open to another Bench, a court of coordinate jurisdiction, when finally determining the case, to come to its own conclusions on it ; and, (2) that even in a case, decided by the first court of appeal other than a case, decided by the High Court, if a Judge on appeal decides certain points and remands the case, his decision is binding on his successor, before whom the case comes up again from the judgment after remand, because such a court is a court of coordinate jurisdiction, and, therefore, he cannot go behind the earlier final decision of his predecessor before remand. The test, therefore, in such a case, to ascertain if a particular finding given by the Judge on appeal is a final decision, or not is to find out, if, by the order of remand, the Judge on appeal has remanded the suit for determination of all the points at issue, or, it has determined some points in controversy, and remanded the suit for determination of the remaining points, which may include the question of maintainability of the plaintiff's suit itself, in which case the decree of the first court has to be set aside,, and, the suit remitted to the court below for a fresh decision of the case according to Law. 18. We have seen above that the order dated 181973 did not require the lower appellate court to decide all the points at issue but required it to decide the remaining points. It required the lower appellate court to decide the appeal in the light of the observations made by this Court. Although the word observation was used in the order dated J81973, the same, as forming part of the directions contained in the operative order of this court, must be treated as a finding given by this Court. 19. In this view of the matter, the view expressed in 1973 by this Court that the defendants were tenants of land and not of accommodation for the purposes of 1947 Act or of a building for the purposes of the new Act No. XIII of 1972 cannot be reopened. There is no substantial difference between the definition of accommodation in the Act III of 1947 and of 'building' in Act XIII of 1972 which is now in force. 20. As no other point arises, the appeal must be dismissed. It is, however, an unfortunate case in which the defendant who was in enjoyment of a protected accommodation was made to part with that accommodation and was given different premises which he thought were equally protected by the rent control law. The poor man was obviously taken for a ride. Having regard to the circumstances, I would direct the parties to bear their own costs throughout and also to grant the defendantsappellants one year's time to vacate the premises. 21. The appeal is, accordingly, dismissed, but the parties shall bear their own costs, throughout. The appellants are granted one year's time to vacate the premises. [Appeal dismissed.]