ISAP ALI Vs. SATIS CHANDRA ROY

JUDGEMENT

(1.) This appeal arises out of an action of ejectment under Section 49 of the Bengal Tenancy Act. The Court of first instance dismissed the plaintiff's claim for ejectment on the ground that the defendants are settled raiyats in respect of the homestead from which the plaintiff wanted to eject them and that as such they could not be ejected under Section 49 of the Bengal Tenancy Act. On appeal, the learned Additional District Judge held that the defendants had no occupancy right in the land in suit and were, therefore, liable to eviction under Section 49.

(2.) The defendants have appealed and attacked the judgment of the Court of Appeal below on the ground that the finding arrived at by it with regard to the character of the homestead is not sufficient for the disposal of the issue. The learned Judge says in his judgment that "only a hut has been erected in this land for temporary use. It may exist from a long time as shown by Exhibit B. Still, it cannot be said to be the indispensable homestead of the defendants." The learned Judge seems to be under the impression that a homestead must necessarily be the only residential place of the raiyat of the village. He does not seem to be positive with regard to the character of the hut standing on this homestead.

(3.) It appears that in the Court of first instance a Commissioner was appointed to hold a local investigation and his report speaks of the existence of a hut on this homestead which is used for residential purposes by one of the defendants. The learned Judge does not refer to this piece of evidence. We are not sure if he has taken that into consideration in coming to a finding on this point.