HARI BEHERA Vs. HARIKRISHNA KANTHA

JUDGEMENT

(1.) The defendant is the appellant in this appeal. The plaintiff purchased occupancy holding No. 83 in which is included sikmi plot No. 868 measuring 39 decimals in extent, from the recorded raiyat by a sale-deed dated 9th April 1945. The defendant was recorded as a Sikimidar of the plot and the plaintiff's suit was for ejectment of the Sikimidar under Section 57 (b), Orissa Tenancy Act, after service of the usual notice to quit.

(2.) The main defence taken by the defendant was that he was not liable to eviction because the disputed plot (868) was his homestead and that under the provisions of Section 236, Orissa 'Tenancy Act as recently amended by Orissa Act, X [10] of 1946 occupancy right had accrued to him in his homestead. The trial Court accepted this plea but the lower appellate Court held that the homestead of the appellant was limited to that portion of the disputed plot in Page 1 of 3 Hari Behera vs. Harikrishna Kantha (04.08.1949 - ORIHC) which his dwelling house stood and that as regards the remaining portion of the plot the appellant had acquired no immunity from eviction by virtue of the amendment made to Rule 236, Orisaa Tenancy Act.

(3.) It appears to me that neither the Courts nor the parties fully understood the implications of the amendment made to Section 236 by Orissa Act x [10] of 1946. That section (as amended) saya that in respect of the homestead is which a tenant ordinarily reside his incidents of tenancy shall be the same as those of an occupancy raiyat. Therefore if a tenant claims the benefit of this section he must first establish that the plot is his homestead and secondly that be ordinarily resides therein. The expression 'homestead' has not been defined either in the amending Act or in the parent Act and the ordinary dictionary meaning of that expression would prevail. There are also some judicial decisions interpreting the same expression occurring in Section 182, Bengal Tenancy Act, and they afford a useful guide. I may refer to Bamnath Banerjee v. Girish Chandra, I. L. R. (1941) 1 Gal. 278 : (A. I. R. (28) 1941 Cal. 616) where Mitter J, observed : "The word 'homestead' occurring in Section 182 means the place where the raiyat actually resides." To a similar effect are the observations in Dina Nath v. Sashi Mohan, 20 C. W. N. 560 ; (A. I. R. (3) 1916 cal. 730) :