Judgment : PARTHA SAKHA DATTA, J. (1.) This second appeal is directed at the instance of the plaintiff being aggrieved with the judgment and decree dated 2nd August, 1997 passed by the learned Additional District Judge, 11th Court, at Alipore in Title Appeal No. 380 of 1994 whereby the judgment and decree dated 26th September, 1994 passed by the learned Munsif, 1st Court, at Alipore in Title Suit No. 452 of 1984 dismissing the suit for eviction was affirmed. (2.) The facts are these: The plaintiff, Indian City Properties Limited, an existing company under the Companies Act, 1956 was the owner of a portion of the premises Nos. 36A and 36B, Ballygunge Circular Road, Kolkata which comprised of a parcel of land measuring 10 cottahs, 5 chittaks and 18 square ft. with a brick-built building consisting of two privies and a pucca boundary wall with a gate surrounding the land. The suit property as described above in the plaint was demised unto Burmah Shell, the predecessor-in-interest of the defendant/respondent, namely, Bharat Petroleum Corporation Limited, a company incorporated under the Companies Act, 1956 by an indenture of lease duly registered on 28th January, 1958 for a period of fifteen years with effect from 1st of August, 1957 at a monthly rental of Rs.750/- with option of renewals for two further periods of five years each. The purpose of the demise was to enable the respondent/defendant to carry on its business of sale of petroleum products, motor accessories etc. The Burmah Shell exercised its first option of renewal of lease commencing from 1st August, 1972 at an increased monthly rent of Rs.862/- which expired on 31st July, 1977. In terms of Burmah Shell (Acquisition of Undertakings in India) Act, 1976 the interest of the said company vested in the Government of India and thereafter it stood transferred to Burmah Shell Refinery Limited which was changed to Bharat Refinery Limited on and from 1st August, 1977. Subsequently, the name of Bharat Refinery Limited was changed to Bharat Petroleum Corporation Limited and a fresh certificate of incorporation was issued under section 23 of the Companies Act. The change of the name however, did not affect the rights and obligations of the defendant in respect of the said lease and the leasehold premises. Subsequently, the name of Bharat Refinery Limited was changed to Bharat Petroleum Corporation Limited and a fresh certificate of incorporation was issued under section 23 of the Companies Act. The change of the name however, did not affect the rights and obligations of the defendant in respect of the said lease and the leasehold premises. The renewal of the lease for a second and final term of five years commencing from 1st August, 1977 at a monthly rent of Rs. 900/- was further recorded in a registered indenture dated 9th February, 1979 executed by and between the parties. The said indenture dated 9th February, 1979 records the commitments of the defendant to deliver up possession of the said premises to the plaintiff/appellant upon the expiration of the said terms and to remove the building structures from the premises at the cost of the defendant. The defendant allegedly became a defaulter for the period from May, 1982 to July. 1982 to the tune of Rs. 2700/-. The said deed of lease provides further that the plaintiff would be entitled to re-enter the demised premises in the event of the rent remaining unpaid for a period of two calendar months. The second and final agreement incorporated in the renewed lease for a term of five years from 1st August, 1977 expired on 1st August, 1982. The defendant having failed to deliver up vacant possession of the property the plaintiff commenced the action for ejectment and consequential reliefs. (3.) The defendant/respondent, Bharat Petroleum Corporation Limited in its written statement contended, inter alia, that the defendant was given authority to erect structure on the land in question and, as a matter of fact, the predecessor-in-interest of the defendant erected structures on the vacant land so demised at its own cost for carrying on its business. The plea of the plaintiff that the defendant was defaulter was not correct. The defendant was not in wrongful occupation as alleged therein and the question of vacating the suit property with the alleged expiration of the lease is uncalled for in view of the provision of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 and although the plaintiff was not entitled to receive any rent since the promulgation of the said Act of 1981, the rent for few months was wrongly realized by the plaintiff. The entire construction on the suit land having been made by the defendant the latter can claim to be regarded as thika tenant in consequence of which ejectment suit would fail. (4.) The learned Trial Court upon examination of the two witnesses for the plaintiff and one for the defendant and of consideration of the documentary evidence dismissed the suit holding the defendant to be a thika tenant. (5.) The judgment and decree of the learned Trial Court was assailed in appeal and as stated above, the decree of the Trial Court was affirmed in appeal. (5.) The judgment and decree of the learned Trial Court was assailed in appeal and as stated above, the decree of the Trial Court was affirmed in appeal. The second appeal has been taken out by the plaintiff to assail the judgment and decree since confirmed by the Trial Court on the ground that both the Courts below erred in law in overlooking the Full Bench decision of this Court in Laxmi Moni Das vs. State of West Bengal and Ors., reported in AIR 1987 Cal 326 , that in accordance with the said Full Bench decision only the lands comprised in thika tenancy within the meaning of Calcutta Thika Tenancy Act, 1949 and khatal land vested in the State; the suit premises not being a land comprised in thika tenancy within the meaning of the said 1949 Act cannot be said to be vested in the State, that the two Courts below failed to appreciate that the definition of thika tenant appearing in Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 has not been changed in any manner by the Amendment Act of 1993 and the interpretation of the concept of thika tenancy given by the Full Bench of this Court in the case of Laxmi Moni Das (supra) was not affected in any way by the 1993 Amendment, and the Amendment Act of 1993 did not improve the case of the respondent, that the learned Court of Appeal below failed to appreciate that the respondent cannot derive any benefit from the 1993 Act amending the 1981 Act because definition of thika tenant as was there in 1981 Act remained unchanged in the Amendment Act of 1993, that most importantly the Court of Appeal below failed to appreciate that the word structure appearing in section 3(8) of 1981 Act means a kutcha structure, not a pucca structure; consequently the respondent claiming to have constructed a building on the suit premises which is a pucca structure could not be a thika tenant in respect of the said premises, that the learned Court of Appeal below failed to consider that the lease in question provides for construction of a pucca structure for non-residential purpose and the respondent having done so cannot claim to be a thika tenant, that the learned Court of Appeal below did not consider that the tenancy in question is governed by the Transfer of Property Act, 1882 and the respondent was liable to be ejected from the suit premises upon the expiry of the lease of fifteen years and of two successive renewals thereof of five years each aggregating twenty five years, and that it has overlooked that the respondent was never in possession of merely a vacant land but on the contrary, was in possession of two privies surrounded by a boundary wall wherein the defendant made brick-built pucca construction. (6.) A Division Bench of this Court while admitting the appeal observed that it shall be heard on the grounds (a) to (f) as were stated in the memo of appeal. The grounds as were pleaded are :- a) whether the suit premises or any part of it are affected in any way by the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 as amended by the 1993 Amendment Act? b) Does the Calcutta Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 1993 (West Bengal Act 21 of 1993) in any way affect the law enunciated by the Full Bench of this Honble Court in Laxmi Moni Das vs. State of West Bengal and Ors., reported in AIR 1987, Cal 326? c) Whether the respondent who was admittedly not a thika tenant within the meaning of the Calcutta Thika Tenancy Act, 1949 can claim to be a thika tenant under the 1981 Act, notwithstanding the Full Bench judgment of this Honble Court in the case of Laxmi Moni Das vs. State of West Bengal and Ors.? d) Whether section 5 of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 as amended by the 1993 Amendment Act Constitutionally valid? e) Whether the respondent is entitled to contend that it is a thika tenant of the suit premises in which certain pucca structures and boundary wall had been constructed by the appellant merely on the allegation that it has also constructed certain pucca structures on the suit premises, f) Whether the respondent, who never claimed to be a thika tenant during the validity of the registered lease, can claim to be a thika tenant after expiry of the lease. (7.) Of the six grounds as aforesaid as was pleaded by the appellant ground No.(d), namely, whether section 5 of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 as amended by the 1993 Amendment Act Constitutionally valid has not been pressed, nor is it necessary at all for the disposal of the appeal. (8.) Before adverting to the findings of the two Courts below certain admitted facts must engage my attention. The ownership of the appellant with respect to the property being premises Nos. 36A and 36B, Ballygunge Circular Road, Kolkata is not in dispute. (8.) Before adverting to the findings of the two Courts below certain admitted facts must engage my attention. The ownership of the appellant with respect to the property being premises Nos. 36A and 36B, Ballygunge Circular Road, Kolkata is not in dispute. On 8th January, 1958, the appellant demised the suit property unto the Burmah Shell Refinery Limited for a period of fifteen years commencing from 1st of August, 1957 at a monthly rent of Rs. 750/- with option of renewal for two further terms of five years each. The period of fifteen years having expired, lease was renewed by an indenture dated 1st of August, 1972 at a monthly rent which stood increased to Rs. 862/-. Second renewal of the lease took place from 1st of August, 1977 at a monthly rent which further stood increased to Rs. 900/-. In terms of the lease deed it expired on 1st August. 1982. In the year 1982 itself the suit for eviction was filed being Title Suit No. 452 of 1982. The parent lease deed dated 28th January, 1958 contains certain terms and conditions which include "a) to use the demised premises for any lawful purpose which the lessee desires and especially as a depot for storage and sale of petroleum products, motor accessories and for all such purposes the lessee shall have full liberty to make the excavations therein for tanks and construct, erect thereon any building, pumping plant and accessories as may be required (emphasis mine), b) to deliver up possession of the premises to the lessor upon the expiration of or sooner determination of the said term and to remove with all such reasonable despatch therefrom at their own cost, all building structures and plant (emphasis mine) and all other property therein and thereon and restore the land in the same state as it is now, c) the lessee will be at liberty at their cost to remove all structures/plant and, outfit notwithstanding that they comprised fixtures in or attached to the earth and the lessor shall have no claim thereto in any manner whatsoever, the entirety of such tanks, structures and outfit (emphasis mine)." (9.) The subject-matter of the demise as is found from the lease deed is a parcel of land measuring 10 cottahs, 5 chittaks and 18 square ft. with boundary walls, two privies and a gate surrounding the land being a portion of the premises Nos. 36A and 36B, Ballygung Circular Road, Kolkata. The deed of second renewal that was executed on 9th February, 1979 came to be effective on 1st August, 1977 for a period of five years destined to visit its termination on 1st August, 1982. A relevant sentence as has been used in the deed of second renewal is " And whereas the said Burmah Shell shall construct and erect thereon buildings, pumping plant and accessories at their own cost for the purpose of a service station". (10.) A little amount of survey of the Oral evidence of the parties will not be out of context. P.W.1, the Estate Manager of the plaintiff company said, "at the time of renting out this property it measured 10 cottahs, 5 chittaks and 18 square ft. and it had a brick-built building, two privies, pucca wall on four sides and an iron gate". Cross-examination of P.W.1 by the defendant was without any major significance because it appeared from cross-examination of P.W.1 that he joined the company of plaintiff in 1992 and beyond what he says through records, he has no personal knowledge. However, it was suggested to P.W.1 that there were no rooms in the disputed property at the time of grant of lease or that the lease of the property was only in respect of the land and that the tenancy was comprised in thika tenancy. On behalf of the defendant, one Dipak Bhattacharyay was tendered as D.W.1, who said that it was the defendant company who erected structure at their own cost. According to him the defendant was a thika tenant. It was suggested to D.W.1 that the demised property was surrounded by a boundary wall with a tube-well and two privies therein, which the witness denied to be true. (11.) Now P.W.1 was not correct when he said that beside the two privies and pucca boundary wall there was a brick-built building because the lease deed does not refer to any brick-built building besides the two privies inside the boundary. Again, DW 1 was not correct when he denies the suggestion that the demised property was surrounded by a boundary wall and two privies as the lease deed has reference to these landmarks. Again, DW 1 was not correct when he denies the suggestion that the demised property was surrounded by a boundary wall and two privies as the lease deed has reference to these landmarks. (12.) Learned Trial Court by its judgment and decree observed in the main that the existence of boundary wall, a gate surrounding the land and two privies inside are of no importance; the important thing being whether the tenant/defendant erected structure for the purpose of carrying on its business of petroleum product inside or on the land. The learned Trial Court reasoned that since in the lease deed itself the defendant/tenant was permitted to erect structure for installation of machines it could be reasonably held that the raising of such structure on the land in terms of the indenture would bring the defendant the status of thika tenant within the meaning of Thika Tenancy Act, 1949. Learned Trial Court referred to a decision in Sri Sri Iswar Sidhar Jew, a Hindu Deity vs. Mohan Lai Kar, reported in 1977(1) CLJ 492 and observed that the use of boundary wall by a tenant would make him a thika tenant. Learned Trial Court further referred to two decisions reported in 1960 CWN 642 and AIR 1977 Cal 281 . (13.) Learned Court of Appeal below referred to the decisions made by the learned Trial Court and then proceeded to consider extensively the provisions Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 and held that the suit was not maintainable in view of the present definition of thika tenancy in the Act 1981 as amended in 1993 with retrospective effect from 18th January, 1982. The learned Court of Appeal reproduced the Act 1981 pages after pages but without any reference to the facts and oral and documentary evidence. (14.) I have heard Mr. Sudhis Dasgupta, learned Senior Counsel appearing for the appellant with Mr. Harish Tandon and Ms. Alpana Chawdhury. I have also heard Mr. S.N. Mitra, learned Advocate appearing with Ms. S. Mukherjee and Ms. M. Bhadra for the respondent. (15.) When the demise was made for a period of fifteen years by a registered indenture on 8th January 1958 it was the of Calcutta Thika Tenancy Act, 1949 that was in force. Harish Tandon and Ms. Alpana Chawdhury. I have also heard Mr. S.N. Mitra, learned Advocate appearing with Ms. S. Mukherjee and Ms. M. Bhadra for the respondent. (15.) When the demise was made for a period of fifteen years by a registered indenture on 8th January 1958 it was the of Calcutta Thika Tenancy Act, 1949 that was in force. In section 2(5) of the said Act 1949 the word thika tenant was defined as such; "means any person who holds whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person: (a) who holds such land under that another person in perpetuity; or (b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or (c) who holds such land under that another person and uses or occupies such land as a khatal." In view of the 1949 Act the demised land would not come within the purview of the Thika Tenancy Act, 1949. The expression pucca structure was defined in section 2(4a) of the 1949 Act as "any structure constructed mainly of brick, stone, or concrete or any combination of these materials". (16.) The expression pucca structure was not without any objective in the said Act of 1949. In sub-section (4) of section 3 which dealt with grounds on which a thika tenant may be rejected it has been stated that where a thika tenant has erected, or acquired a pucca structure for a residential purpose on the land comprised in his holding, no order for ejectment shall be made against him except in respect of such part, if any, of such land as does not appertain to the pucca structure. This sub-section implies unambiguously that a thika tenant is not entitled to raise any pucca structure on the land of the landlord. This sub-section implies unambiguously that a thika tenant is not entitled to raise any pucca structure on the land of the landlord. In the law of thika tenancy there are three concepts, namely, a landlord, a thika tenant and a bharatia. The bare land belongs to the landlord who can demise the land to a person, who can be called to be thika tenant when he in turn raises a structure of temporary duration, a kutcha structure and would be entitled to let out that kutcha structure to a bharatia. The preamble of the Act as is found in the said Act, 1949 is: "to make better provision relating to the law of the landlord and tenant in respect of thika tenancy in Calcutta". (17.) Now this Act came into force with effect from 28th February, 1949. Then this Act came to be repealed with the enactment of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 which came into effect from 2nd of November, 1981. The preamble of the Act is a bit different from what was stated in 1949 Act and it has been stated: "To provide for acquisition of interest of landlords in respect of lands comprised in thika tenancy and certain other lands in Calcutta and Howrah for development and equitable utilisation of such lands with a view to sub-serving common good". (18.) By this Act the interest of the landlord in the land has been taken away and certain words like bustee, hut, khatal have been introduced in the definition clause. In this 1981 Act the definition of pucca structure as was there in the 1949 Act has been retained with addition of the words "or any other material of a durable nature". In this Act of 1981 definition of thika tenant has been thus in section 3(8):-"Thika tenant means any person who occupies, whether under a written lease or otherwise land under another person and is or but for special contract would be liable to pay rent at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person". (19.) It is noticeable that this definition of thika tenant in 1981 Act is the same as in the 1949 Act only with the deletion of clauses (a), (b) and .(c) as is found in section 2(5) of the 1949 Act. That is to say, the exceptions in the 1949 Act, namely, the person who holds land under another person in perpetuity or who holds land under a registered lease in which the duration of the lease is expressly stated to be for a period of not less than twelve years or who holds land as a khatal have been excluded in the 1981 Act. (20.) Now section 5 of the 1981 Act runs as follows: "with effect from the date of commencement of this Act (2nd November, 1981) lands comprised in thika tenancies and other lands held under any other person in perpetuity or under registered lease for a period of not less than twelve years or held in monthly and periodical tenancies for being used or occupied as khatals along with easements, customary rights, common facilities and such other things in such thika tenancies and khatals attached to or used in connection with such thika tenancies, and khatals and the right, title and interest of landlords in such lands shall vest in the State free from all encumbrances: Provided that the easements, rights, common facilities or benefits enjoyed by a thika tenant or an occupier of any land under any person in perpetuity or any land under any person under registered lease for a period of not less than twelve years or a khatal in khas lands of the landlords shall not be affected by such vesting". (21.) This section 5 in 1981 Act came to be amended in the Amending Act of 1993 which runs in the remodeled section as follows:-"With effect from the date of commencement of this Act, the following lands along with the interest of landlords therein shall vest in the State, free from all incumbrances, namely: (a) lands comprised in and appurtenant to tenancies of thika tenants including open areas, roads, passages, tanks, pools and drains ; (b) lands comprised in and appurtenant to bustees on khas lands of landlords and lands in slum areas including open areas, roads, passages, tanks, pools and drains; (c) other lands not covered by clauses (a) and (b) held under a written lease or otherwise, including open areas, roads, passages, tanks, pools and drains; (d) lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal: Provided that such vesting shall not affect in any way the easements, customary rights or other facilities enjoyed by thika tenants, bharatias and occupiers of land coming within the purview of clauses (c) and (d)" (22.) There is no change of the definition of the word thika tenant in the 1993 Amendment Act and the definition remains the same as it is there in section 3(8) of the 1981 Act. In this scenario it requires for consideration whether the respondent was a thika tenant within the meaning of Act 1981, as amended in the Amendment Act of 1993 with effect from 18th January, 1982. (23.) The sum total of the argument of Mr. Dasgupta, learned Senior Counsel for the appellant is that both the Courts overlooked and ignored a very vital fact which is unassailable although that the structure said to have been raised by the defendant was not a kutcha structure but a pucca structure and most unjustifiably the provisions of the thika tenancies laws have been borrowed in the judgments of the two Courts below ignoring the spirit of the law. An attempt was made to demolish the theory of thika tenancy of the respondent by Mr. Dasgupta in this way that existence of a boundary wall and a gate surrounding the land and two privies inside would mean that the property was demised with these structures and where the demise is made with these structures, the law of thika tenancy cannot be invoked. Dasgupta in this way that existence of a boundary wall and a gate surrounding the land and two privies inside would mean that the property was demised with these structures and where the demise is made with these structures, the law of thika tenancy cannot be invoked. (24.) Though I am unable to accept this submission the central theme of Mr. Dasguptas speech merits consideration. It is not in dispute, as the lease deed itself shows, that the demised land was surrounded by a pucca boundary wall with a gate and two privies inside. Neither any oral nor any documentary evidence has been forthcoming in search of a query as to for what purpose the privies were constructed inside the land when evidently there was no other structure visible, pucca or kutcha except the two privies on the land. It was also submitted that the structures might have been there for use of which privies were found existing. To my mind bare existence of a boundary wall with two privies inside is not by itself the determining factor to consider whether a certain tenancy is thika tenancy or not. In all reasonableness, the boundary wall was erected to protect the land from being encroached upon as was the situation in Sri Sri Iswar Sidhar Jews case (supra) and the tenant had the opportunity to utilise the boundary wall. The moot point is whether a person can be said to be a thika tenant even when he has raised a pucca structure on the demised land. It is fair enough to say that neither in the written statement nor in evidence has it been claimed that the Bharat Petroleum Corporation Limited or its predecessor constructed a kutcha structure on the demised land. On the other hand, evidence is galore to hold that permission was given to erect structure, pumps, machineries, fittings, fixtures, etc., for the purpose of carrying on business of petroleum products which cannot be called to a kutcha structure and in the second lease deed as has been found earlier it has been recited that the Barmah Shell constructed and erected thereon buildings, pumping plant and accessories for the purpose of a service station. Therefore, the raising of these structures cannot be said to be a kutcha structure. Unquestionably, the defendant raised structures of permanent duration and it is not the pleading or proof that there were kutcha structures. Therefore, the raising of these structures cannot be said to be a kutcha structure. Unquestionably, the defendant raised structures of permanent duration and it is not the pleading or proof that there were kutcha structures. Mr. Mitra learned Counsel for the respondent reminded me of the decision in Veerayeeammal vs. Seeniammal, reported in 2002(1) SCC 134 , where it has been held that the High Court cannot assume jurisdiction to interfere in second appeal just because another view is possible in second appeal on appreciation of evidence. I am quite conscious of the position that the two Courts below came to a concurrent finding of fact and dismissed the suit holding the defendant to be a thika tenant on the ground that they raised structure but without saying what kind of structures they were; and Calcutta Thika Tenancy and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 as amended in 1993 with retrospective effect from 18th January, 1982 is applicable. I have also been taken to a decision in Yadarao Dajiba Shrawane vs. Nanilal Harakchand Shah and Ors., reported in 2002(4) SCC 404 and Hero Vinoth (minor) vs. Seshammal, reported in 2006(5) SCC 545 . In Hero Vinoth, the Supreme Court held that a substantial question of law can be said to have been arisen not because the law is still debatable but because the decision rendered on a material question violates the settled position of law. In fact, this decision is a thesis on what is called a substantial question of law. This decision followed Yadarao Dajiba (supra) wherein it has been held that if a decision is based on misinterpretation of documentary evidence or consideration of inadmissible evidence or ignoring material evidence High Court can be justified in interfering in second appeal. Now, Mr. Mitra, learned Counsel appearing for the respondent argues that so far as the definition of term thika tenant as occurred in 1981 Act is concerned, it is immaterial whether the structure is pucca or kutcha. He relied on the decision in Janaranjan Sengupta and Ors. vs. Arun Kumar Bose, reported in 1975(2) SCC 526 . This decision was rendered on 24th July, 1975 and is therefore based on Calcutta Thika Tenancy Act, 1949. Mr. He relied on the decision in Janaranjan Sengupta and Ors. vs. Arun Kumar Bose, reported in 1975(2) SCC 526 . This decision was rendered on 24th July, 1975 and is therefore based on Calcutta Thika Tenancy Act, 1949. Mr. Mitra refers to this decision to argue that the Honble Supreme Court in this decision has used the word structure synonymously with building and as auch in view of this decision the question whether the respondent raised kutcha structure or pucca structure becomes an academic one leading to no destination. I am unable to accept the submission. The main question involved in this decision was whether the respondent was a thika tenant under Calcutta Thika Tenancy Act, 1949 or not. The facts were that the land was demised to the "tenant" for keeping lorries as garage. Their Lordship held that keeping of lorries as garage would connote the concept of construction of some structures and in terms of the Chambers Dictionary the meaning of garage is a building where motor vehicles are housed or tended. This observation is no authority for the proposition that a thika tenant would be a thika tenant either for the purpose of 1949 Act or for the purpose of 1981 Act even if he has raised a pucca structure. On the other hand, at paragraph 10 of the judgment Their Lordships were very categorical to say that the question whether structures were permanent or not were not agitated in the Courts below. In fact, this decision does not deal with the question whether a tenant raising pucca structure on land demised in terms of lease or otherwise would be thika tenant or not. This is a decision purely fact-oriented. Now, Mr. Dasgupta for the appellant referred to the decision in Sri Sri Satyanarayan and Ors. vs. S.C. Chander, reported in 2001(3) CHN 641 . This is a Division Bench judgment by this Court rendered on 20th June, 2001 when the 1981 Act had already come into operation and the said Act has been dealt with in details in this case. Their Lordships observed at para 16 of the judgment as follows: The root of the Thika Controllers jurisdiction is the State Act passed in West Bengal which is called Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981. Its precursor was the Thika Tenancy Act, 1949. Their Lordships observed at para 16 of the judgment as follows: The root of the Thika Controllers jurisdiction is the State Act passed in West Bengal which is called Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981. Its precursor was the Thika Tenancy Act, 1949. The purpose of those Acts was to grant some protection to poor persons who happened to be living within city limits but who had means to afford only kutcha structures above their head" (Emphasis mine) In this decision it has been held as follows: "The question which automatically comes to ones mind is that if construction of any structure makes one a thika tenant then there would be a duplication of the rent laws. A tenant would be protected, if he constructs or obtains a permanent structure on land, both by the Thika Tenancy Laws and by the Rent Control Legislation. However, this unwholesome anomaly has been avoided from the very beginning by means of judicial decisions whereby the words any structure (emphasis mine) in the Thika Tenancy Act have been consistently held to mean kutcha or temporary structure. There is the case of Kshirodamoyee Sen, reported at 63 CWN 565, the case of Monmatha Nath Mukherji, reported at 63 CWN 824 and the case of Jatadhari Daw, reported at 1986(1) CHN page 21". (25.) In another unreported decision of the Division Bench of this Court of equal importance this point was earlier considered. This is in Hindusthan Petroleum Corporation Limited vs. Sashibhusn Mondal, APD 280/81 decided on 24th July, 1998. This unreported decision has been referred to in Sri Sri Satyanarayans case (supra) and the concept of the thika as was elucidated in the unreported decision has been reiterated in Sri Sri Satyanarayans case (supra). The word thika is a Bengali phrase which means temporary or partial. It was held that a thika cook would be a cook who is engaged for only part of the day unlike a cook who works for full time. (26.) The decision in Bimal Chandra Mitra vs. Nemai Palit, 2003(2) CLJ 570 , is a fact oriented one but is based on the Division Bench decision of this Court in Sri Sri Satyanarayans case (supra). (26.) The decision in Bimal Chandra Mitra vs. Nemai Palit, 2003(2) CLJ 570 , is a fact oriented one but is based on the Division Bench decision of this Court in Sri Sri Satyanarayans case (supra). This decision which was rendered on 9th July, 2003 contains the finding that the defendant No.1 cannot claim himself to be a thika tenant under the Act of 1949 for the admitted fact that the lease was registered one for more than twelve years on the strength of which defendant No. 1 claims to be a thika tenant. Now, the definition of words thika tenant as it appears in the 1981 Act remained unaltered in the 1993 amendment both the 1981 Act the 1993 Amending Act excluded clauses (a), (b) and (c) to section 2(5) defining thika tenant in the 1949 Act. Learned Trial Court referred to the decisions in 1960 CWN 642 and the decision in Sri Sri Iswar Sidhar Jews case (supra). The decision in 60 CWN 642 is Shantilata Dey vs. Sarajubala Devi. It was held that the word land in sub-sections (3) and (5) of section 2 of the Calcutta Thika Tenancy Act, 1949 means the bare land exclusive of structures situated therein. None of the parties disputes this proposition. The learned Trial Court referred to Sri Sri Iswar Sidhar Jews case (supra) and Mr. Mitra also relied on it. In this decision it was found that there was a boundary wall. The question was whether the boundary wall formed a part of the demised land. The ratio of the decision is that even if it is assumed that the boundary walls were part of the demised land it could not be a demise of the structure as a whole so as to bring it outside the operation of the Calcutta Thika Tenancy Act, 1949; accordingly, notwithstanding the existence of the boundary walls, the demise to the tenant was continued to be demise of a vacant piece of land on which the tenant built a structure and as such Thika Tenancy Act, 1949 was applicable. This decision does not help the respondent. In this decision the law provided in the statute was only explained. This decision does not help the respondent. In this decision the law provided in the statute was only explained. The question whether structure as has been expressed in the definition either in the 1949 Act or in the 1981 Act means or includes kutcha structure or not was not the subject-matter for consideration in this decision. A Division Bench decision of this Court in Annapurna Seal vs. Tincowrie Dutt and Anr., reported in 1966 CWN 338, is also relevant, though factually the case is on a different footing. It was a case under the Calcutta Thika Tenancy Act, 1949 wherein thika tenant could not be a person who holds land in perpetuity or under a registered lease for a period of not less than twelve years. In Annapurnas case (supra) what was let out was land with structures and it could never be given under the operation of the Calcutta Thika Tenancy Act 1949, as the property in suit had a history of twenty-four years by a registered deed of lease before 1949 Act came into operation but the decision is important in this that it elucidates the law laid down in section 2 (5) of the Calcutta Thika Tenancy Act, 1949. But it is interesting to note that in this case there was evidence of the defendant that the demised land was an open plot of vacant land with only boundary wall on the western side. It was submitted on behalf of the appellant before the Division Bench in this case that the nature of structure within the meaning of Calcutta Thika Tenancy Act, is kutcha or temporary structure and not pucca or permanent structure. Here also exercise was made by the Division Bench in search of the meaning of the word structure. Relying on the Annapurna and also other decisions, a learned Single Judge of this Court in Prafulla Kumar Roychawdhury and Anr. vs. Bharat Petroleum Corporation Limited, reported in 2004 CWN 459, held that the words "any structure" as is used in section 3(8) of the Act, 1981 means kutcha or temporary structure and not pucca structure and the thika tenancy relates to kutcha or temporary structure and not permanent structure. vs. Bharat Petroleum Corporation Limited, reported in 2004 CWN 459, held that the words "any structure" as is used in section 3(8) of the Act, 1981 means kutcha or temporary structure and not pucca structure and the thika tenancy relates to kutcha or temporary structure and not permanent structure. It is also most important to note in this connection that in an earlier decision of this Court in M.N. Mnkherjee vs. Banavasi and Ors., reported in 1963 CWN 824, it has been held that the words "any structure" as used in section 2(5) of 1949 Act are not to be construed in any way so as to include a pucca structure, although, the words by themselves may include a pucca structure. In Khirodamoyee Sen and Ors. vs. Ausotosh Roy, reported in 1963 CWN 565, it has been pointed out that there is nothing in Calcutta Thika Tenancy Act, 1949 to show that a thika tenant is entitled to put up pucca structure on the demised land. Sri Sri Satyanarayans case (supra) was relied on in Prafullas case (supra) (27.) Mr. Mitra referred to Purushottam Das Murarka vs. Harendra Krishna Mukherjee, reported in 1979 CWN 852. In this decision an observation has been made that if during the pendency of a lease a thika tenant constructs or attempts to construct pucca structure on the demised land he does not cease to be a thika tenant. In all fairness, it has to be stated that this decision has not been correctly placed by Mr. Mitra. Read as a whole of the decision, it would appear that the tenant was a thika tenant at the inception and during the continuance of thika tenancy he attempted to construct a pucca structure and in that perspective the observation has been made. In Sri Sri Satyanarayans case supra), the P.D. Murarka (supra) referred to above has been very nicely distinguished. It was held that the Murarka decides that subject to the right of the landlord to have the pucca structure demolished the building of pucca structures themselves would not rob a thika tenant of his status by raising of the building of such pucca structures alone. It was held that the case is not at all an authority for the proposition that a person can become a thika tenant if he builds a pucca structure as opposed to a kutcha one. It was held that the case is not at all an authority for the proposition that a person can become a thika tenant if he builds a pucca structure as opposed to a kutcha one. Further Their Lordships in Sri Sri Satyanarayans case (supra) has given an example that if in a prime area of the city a demised land is obtained along with buildings thereon and if thereafter the lessee deliberately erects a kutcha structure then it would be absurd to suggest that because of the construction of the kutcha structure within the demised land he becomes a thika tenant. The learned Court of Appeal below held that in view of the definition of thika tenant in 1981 Act, as amended in 1993, the lease in question for a period of not less than twelve years, namely, fifteen years initially and ten years subsequently by two successive period of renewal for five years each totaling twenty-five years would automatically come under the operative section 5 of the said Act and which has vested in the State is not correct. In 1949 Act, during the currency of which the demise took place initially for fifteen years, the, holding of land under registered lease for a period of not less than twelve years was excluded. In the 1981 Act, section 3(8) there is no inclusion or exclusion, no mention of the duration of lease. In fact, duration of lease is of no prime significance in 1981 Act, as amended. It is not understood why the learned Court of Appeal below came to such observation. The moot point is whether the structure was pucca or kutcha and the law is well-settled that a pucca structure raised by a tenant under a lease does not bring him within the ambit of a thika tenant. Lastly, the case of Laxmi Moni Das vs. State of West Bengal and Ors. which is a Full Bench decision on the subject as reported in AIR 1987 Cal 326 has to be mentioned. This is a very lengthy decision but for the purpose of our appeal reference to paragraphs 42 and 43 of the Act would be relevant. This decision was rendered on 8th of July, 1987 and it refers to both the 1949 and 1981 Act. This is a very lengthy decision but for the purpose of our appeal reference to paragraphs 42 and 43 of the Act would be relevant. This decision was rendered on 8th of July, 1987 and it refers to both the 1949 and 1981 Act. It has been held with, reference to section 5 of the 1981 Act that within the scope and ambit of section 5 of the 1981 Act only the lands comprised in thika tenancy within the meaning of the Calcutta Thika Tenancy Act, 1949 comprising a kutcha structure or a pucca structure constructed for residential purpose with the permission of the Controller under the Calcutta Thika Tenancy Act, 1949 and khatal lands held under a lease vests into the State. This decision approved a Division Bench decision of this Court in Jatadharis case reported in 1986(1) CHN 21 . Mr. Mitra, learned Counsel for the respondent argued that this Special Bench decision which was rendered prior to 1993 Amendment would be of no avail. I am unable to hold so because there so tar as the concept of thika tenancy is concerned it remains the same essentially in 1949 Act, and 1981 Act, and the definition of the words thika tenant has not undergone any change in 1993 Amendment Act and further what is to vest has remained although the same including the 1993 Amendment. In 1949 Act there is section 10A which was introduced by West Bengal Act 29 of 1969 whereby with the previous permission of the Controller a thika tenant could raise a pucca structure for residential purpose in the demised land. This provision is not applicable to the present case because it is not the case of the respondent that they raised pucca structure with the permission of the Controller, nor is it the case that they raised pucca structure for residential purpose. The thika tenancy law was intended to bring solace to the poor persons for their accommodation by raising temporary or kutcha structure on a land belonging to the landlord. Thika tenant basically is a person who being a poor person can hardly afford to raise a pucca structure and primarily these structures are located in the bus tee areas or slum areas in the city of Calcutta and Howrah. Thika tenant basically is a person who being a poor person can hardly afford to raise a pucca structure and primarily these structures are located in the bus tee areas or slum areas in the city of Calcutta and Howrah. Bharat Petroleum Corporation Limited did not require this land situated in the prime ana, elegant area of the city of Kolkata for the purpose of residence, they did not raise any kutcha structures in terms of the lease deed. It is not their case in the written statement nor is it their evidence that they raised kutcha structure they raised pucca structures, installed machineries for the running of business of distribution of petroleum products and a service station. Such a respondent must not plead to be a thika tenant. This material fact was ignored and overlooked by the learned two Courts below. (28.) Thus, what is to vest in the State under the 1981 Act since amended in 1993 ? It is the land comprised in and appurtenant to the tenancies of thika tenants that would vest in the State and on such vesting a thika tenant would be a tenant under the State. A thika tenant is one who erects a structure not a pucca or of permanent duration on the land of the landlord. If it was the intention of the legislature to include pucca construction within the ambit of thika tenancy, then no separate definition of pucca structure would have been necessary either in the 1949 Act on the 1981 Act, as amended in 1993. Section 3(4) of the 1949 Act clearly entails that a thika tenant raising pucca structure on the thika land would be evicted. Again the definition of pucca structure in 1981 Act, section 2(7), is not without significance. This definition has to be read with section 6(4) of the 1981 Act with amendment in 1993. This section 6(4) of the 1981 Act, since Amended in 1993, clearly provides that after a thika tenancy vests in the State a thika tenant then only can erect a pucca structure in accordance with building plan of the Calcutta Municipal Corporation. This definition has to be read with section 6(4) of the 1981 Act with amendment in 1993. This section 6(4) of the 1981 Act, since Amended in 1993, clearly provides that after a thika tenancy vests in the State a thika tenant then only can erect a pucca structure in accordance with building plan of the Calcutta Municipal Corporation. At the cost of repetition it has to be mentioned that there is practically no distinguishing feature between the section 5 as it was there in 1981 Act and section 5 as it has been in that Act after its Amendment in 1993 with retrospective effect from 18.01.1982 so far as the lease in question is concerned. In other words, the Full Bench decision in Laxmi Moni is not materially affected by 1993 Amendment with particular reference to amended section 5. Clauses (a) (b) (d) in the amended section 5 do not at all apply to the lease in question. In clause (c) there is reference to "other lands" which are not covered by clauses (a) and (b) held under a written lease or otherwise including open area, roads, passages, tanks, pools and drains. Now there has been a definition of other lands in section 3(5A) in the amendment Act, but there was no definition of other lands in the original 1981 Act, although thee was reference to such other lands in the original section 5 in 1981 Act. I have reproduced both the original unamended section 5 and the amended section 5 at paragraphs 20 and 21 of this judgment. Now in terms of the definition of other lands in the amended section 3(5A) other lands includes any vacant land or tank. Evidently demised lands is not covered by other lands as is used in clause (c) of the amended section 5 because the demised land with a boundary wall and two privies inside was for storage and sale of petroleum products, motor accessories by construction of building, pumping plant and accessories which the respondent did on such land long long before the amended section 5 came into effect. The other distinguishing feature between the original section 5 and the amended section 5 is that in the former registered lease for a period of less than 12 years remained outside the scope and ambit of thika tenancy, while in the amended section 5 duration of lease has been done away with. So far as the duration of lease is concerned it has to be mentioned that such distinguishing feature is of no consequence. Therefore, so far as the lease of the case in appeal is concerned Laxmi Monis (supra) case has remained unaffected by the amended section 5 of the 1981 Act. (29.) It will not be out of place to say that the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 has been repealed with the enactment of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 with effect from 1st March, 2003. This appeal is not affected by the Act 2001; even then the definition of thika tenant has not been changed. In fact, it is aftermath and deals with consequential events of the 1981 Act, since amended in 1993. (30.) Thus, I hold as follows: a) The suit premises is not affected by the Calcutta Thika Tenancy and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 as amended by the 1993 Amendment. b) The Calcutta Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 1993 does not affect the law enunciated by the Full Bench in Laxmi Moni Das (supra). c) The respondent is not a thika tenant either within the meaning of Calcutta Thika Tenancy Act, 1949 or the Act, 1981 as amended in 1993. d) The respondent having raised a pucca structures on the demised land, it cannot come to the category of thika tenant within the meaning of the 1949 Act and/or 1981 Act. e) The lease deed of the year 1958, the first renewal of the year 1972 and the second renewal of 1977 do not at all show that grant of lease for determinate period of time was for confirment of thika tenancy to respondent. (31.) The appeal succeeds and is allowed with costs against the respondent. The judgment and the decree of the learned Court of Appeal below affirming that of the learned Trial Court is set aside. (32.) The plaintiff do get a decree for vacant possession of the premises Nos. (31.) The appeal succeeds and is allowed with costs against the respondent. The judgment and the decree of the learned Court of Appeal below affirming that of the learned Trial Court is set aside. (32.) The plaintiff do get a decree for vacant possession of the premises Nos. 36A and 36B, Ballygung Circular Road, Kolkata, as fully described in the plaint. (33.) The plaintiff also do get a decree for Rs. 2,700/- being arrears of rent for the months of May, June and July, 1982. The plaintiff do also get decree for mense profit from the Trial Court in a separate proceeding under Order 20 Rule 12 CPC. (34.) A decree shall be drawn up. (35.) A copy of this judgment along with the LCR shall be sent down to the learned Trial Court for information and taking necessary action. (36.) Xerox certified copy of this judgment, if applied for, be given to the learned Advocates for the parties subject to compliance with all the requisite formalities. Later: (37.) After pronouncement of the judgment, respondent prays for stay of operation of the judgment and decree. Prayer is considered but is refused. Appeal allowed.