NIRSHI DHOBIN Vs. SUDHIR KUMAR MUKHERJEE

JUDGEMENT

(1.) In this case a Full Bench of the Patna High Court differing from the view taken in a series of earlier decisions of that High Court as well as the High Court of Calcutta held that the provisions of Bihar Tenancy Act (to be briefly referred to hereinafter as the Act) do not apply to a lease of a homestead though that homestead was a part of an earlier lease which was admittedly an agricultural lease and to which the provisions of the Act applied. The appellant challenges the correctness of that decision.

(2.) The relevant facts as found by the fact finding courts are:- One Chakrapani Singh was the lessee of a plot which consisted of agricultural lands as well as a homestead. The homestead was later separately leased to defendants 1 and 2 (appellants). Thereafter the plaintiffs purchased the rights of the main lessee and sued the appellants for possession of the homestead. The appellants resisted the suit mainly on the ground that it had not been brought in accordance with the provisions or the Act and hence not maintainable. The contention of the plaintiffs is that the lease is invalid as it did not conform to the provisions of Section 117 of the Transfer of Property Act and therefore their are entitled to evict the appellants. The trial Court decreed the plaintiffs suit but the first Appellate Court reversed the decree of the trial Court and dismissed it. It followed the earlier rulings of the Patna High Court to the effect that if the main lease is a lease for agricultural purposes all sub-leases of portions of that leasehold should also be considered as agricultural leases despite the fact that a particular sub-lease may be that of a homestead only. The plaintiffs took the matter in second appeal to the High Court which was decided by a Full Bench which allowed the appeal as mentioned earlier.

(3.) Two questions that arise for decisions are (1) was the High Court right in holding that the lease in favour of the appellants is governed by Section 117 of the Transfer of Property Act and (2) whether in view of the uniform view taken in the earlier decisions during a period of nearly 55 years the High Court was justified in reopening the question.