SURENDRA NATH SAHA Vs. NAKOOR CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for an injunction to restrain the construction of a permanent building on the land of the tenancy held by them under the plaintiffs- respondents. The Courts below have decreed the suit.

(2.) The defendants pleaded that they had a permanent right in the land, and, in the alternative, that under Section 76 of the Bengal Tenancy Act the building under construction was an improvement which did not entitle the plaintiffs to an injunction. The Subordinate Judge has held that the defendants had not established a permanent right in the land. We have consequently to deal with the other aspect of the case.

(3.) The defendants are in occupation of two parcels, one an agricultural holding, and the other a homestead; and it has been found that the arable land was taken in lease after the homestead. The position consequently is that here is a raiyat who holds his homestead otherwise than as part of his holding as a raiyat. That is exactly the contingency contemplated by Section 182 of the Bengal Tenancy Act. The Legislature has provided that in such an event the incidents of the tenancy of the homestead shall be regulated by local custom or usage, and subject to local custom or usage, by the provisions of the Bengal Tenancy Act applicable to land held by a raiyat. No local custom or usage has been established in the present case. Consequently, the incidents of the tenancy of the homestead on which the defendants have commenced the construction of the building are regulated by the provisions of the Bengal Tenancy Act applicable to land held by a raiyat. One of these provisions is to be found in Section 76, which is primarily applicable to agricultural holdings, but by virtue of Section 182, is applicable to the present homestead.