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1. This is an appeal by the defendant against a decree passed by the City Civil Court, Calcutta. The plaintiff instituted the suit on the following allegations. The plaintiff obtained a settlement from the pro forma defendant Kashinath Auddy, the managing trustee to the Trust Estate of Gurudas Auddy deceased, of a piece and parcel of vacant land of premises No. 94, Dharamtalla Street, Calcutta, measuring more or less 120 sq. ft. as delineated in the plan attached to the plaint, on 15-4-65 at a monthly rent of Rs. 25/- according to English calendar month. She also obtained delivery of possession of the demised area on the said date. The defendant who is also a tenant under the pro forma defendant in respect of other portions' of the said premises, squatted on the suit land on the morning of 16th April, 1965 and failed to remove his materials stacked at the site in spite of requests both , of the plaintiff and the pro forma landlord. Accordingly, the suit was instituted on 2-9-65 claiming (a) a decree for declaration that the plaintiff is a tenant in respect of the suit land and has right to use and occupy the same and (b) a decree for ejectment of the defendant from the suit land and (c) mesne profits.

2. The defendant contested the suit by filing a written statement contending, inter alia, that the plaintiff was not entitled to institute the suit. It was alleged that the pro forma defendant was not the sole managing trustee in respect of 94, Dharamtalla Street belonging to the Trust Estate of Gurudas Auddy which had four trustees, each working for one year by rotation in terms of order dated 4-6-56 in Suit No. 2289 of 1953, commencing from 15th June, 1956. The managing trustee was to work under the supervision and control of the trustees under the Deed of Trust. The pro forma defendant had made this collusive settlement without knowledge, consent or approval of other trustees and this settlement was not accepted by other trustees. The defendant denied that the plaintiff ever was a tenant in the suit land and the plan showing the suit land was imaginary and had no reference to locale and no delivery of possession was ever made to the plaintiff. The defendant was in exclusive occupation of 793 sq. ft. of vacant land on the east, apart from 222 sq. ft. of vacant land on the west, and the remaining 123 sq. ft. was the common passage for the tenants of the premises. The suit land, shown in plan, was in exclusive possession of the defendant as part of his tenancy under the Trust Estate since last 20 years where he had been carrying on his business as Bright Spray Painting at the said premises. The defendant had three garages on the east and two rooms on the west of the premises in two separate tenancies under the Trust Estate at a rental of Rs. 100/- (old rate Rs. 90/-) and Rs. 32/- (old rate Rs. 20/-) respectively. Except the' common passage the entire vacant land in the compound was included under the defendant's tenancies whereof as already stated, 793 sq. ft. appertained to the tenancy on the east and 222 sq. ft. appertained to the tenancy on the west. The vehicles of the customers of the defendant were received, cleaned and painted and other operations were done at the vacant land on the east as aforesaid till work was completed. The pro forma defendant with the motive of destroying defendant's business had taken recourse to the purported settlement in favour of the plaintiff. The suit accordingly should be dismissed. A written statement was filed by the pro forma defendant who supported the plaintiff's case of tenancy under him and it was stated that the defendant wrongfully prevented the plaintiff's possession in the suit land under her tenancy.

"Has the plaintiff any right to sue or cause of action for the suit? Has the plaintiff valid tenancy right in the suit land?"

The defendant has also filed the certified copy of the relevant order of this Court. It was not necessary for him to put any question on the plaintiff's or pro forma defendant's witnesses as it was for the plaintiff and the pro forma defendant to establish that the pro forma defendant had the right to grant the settlement. Unfortunately the trial Court did not at all advert to this aspect in his judgment and he decided the issues Nos. 2, 3 and 5 together in a summary way. As has been rightly contended by Mr. Mitter the trial Court should have first found the title of the plaintiff to the suit land and her right to sue before giving a decree.

Clause 11. In each the Managing Trustee shall act under the supervision and control of the Trustees under the Deed of Trust."

It may he mentioned that the Court's order provides that each of the trustees will work as managing trustee by rotation for one year each from 1-7-56. It was the case of the plaintiff and pro forma defendant that the settlement was made on behalf of the Trust estate and there is no evidence or even suggestion that the other trustee has concurred or ratified the settlement. Creation of the tenancy in the context of the West Bangal Premises Tenancy Act or the Calcutta Thika Tenancy Act whichever is applicable to the tenancy, practically amounts to an alienation of the property as the tenant acquires valuable rights under the said statutes and shall not be ejectable except under very stringent conditions. It is inconceivable that a managing trustee should have such power of lease as an element of administration which even, according to the High Court's order, is subject to the supervision of the trustees. It is to be noted that the trust deed had not been produced.