GIRIS CHANDRA BHATTACHARYYA Vs. BHABATARAN SHAKARI

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for ejectment. The plaintiffs served a notice upon, the defendant to quit at the end of the then current Bengali year. Notwithstanding this, the defendant remained, in occupation. The case for the defend ant is that the incidents of the disputed land are governed by the provisions of the Bengal Tenancy Act, and that consequently he is not liable to be ejected. The primary Court held that the land was not agricultural in character and was governed by the provisions of the Transfer of Property Act. In this view the Court of first instance decreed the suit, as the tenancy was capable of termination and had been terminated by a legal notice to quit. On appeal the District Judge has dismissed the suit as, in his opinion, the tenancy was governed by the Bengal Tenancy Act and could not be terminated. We are of opinion that the view taken by the District Judge is manifestly right.

(2.) The plaintiffs are on the horns of a dilemma. The defendant has been found to be a settled raiyat of the village where the disputed land is situated. He has also been found to have lands under cultivation; he gets these lands cultivated by hired labourers, whom he supplies with his own cattle and ploughs. He has also his granary and khamar within his, own homestead. In these circumstances, it is plain that as the defendant is a raiyat, the disputed land is governed either by Section 182 or by the other provisions of the Bengal Tenancy Act. Whichever view is adopted, the plaintiffs are out of Court.

(3.) No doubt, as the appellant has contended it cannot be maintained that, because a settled raiyat takes settlement of a piece of land adjacent to his homestead though for purposes not agricultural, the tenancy of the new plot of land is governed by Section 182 of the Bengal Tenancy Act. Here, however, the land is used either as a homestead by a raiyat or for agricultural purposes. As the District Judge has correctly pointed out a raiyat often keeps his cattle on a part of his homestead, and this makes Section 182 applicable. On the other hand, if we hold that this land does not form a part of the homestead of the raiyat, it is manifestly used for agricultural purposes, because the raiyat keeps here cattle used for the purpose of agriculture. This view is in accord with that adopted in the case of Dina Nath Nag V/s. Sashi Mohan Dey Tarafdar 31 Ind. Cas. 16 : 22 C.L.J. 219 : 20 C.W.N. 550 We hold, accordingly, that the tenancy of the defendant in respect of the disputed land was not terminable and had not been terminated by the notice to quit.