KRISHNA KANTA GHOSH Vs. JADU KASYA

JUDGEMENT

(1.) This appeal arises out of a suit for ejectment of the defendants, who are the respondents in this appeal, from a, piece of homestead land, under Section 49, Clause (b), of the Bengal Tenancy Act. The plaintiff-appellant is a raiyat and his holding consists partly of agricultural and partly of homestead land. He let out the homestead portion to the defendants. Although that portion is not agricultural, the incidents of the sub-lease held by the defendants would be governed by the provisions of the Bengal Tenancy Act having regard to the nature of the original tenancy of the plaintiff, and not by the Transfer of Property Act see Balm Ram Roy v. Mohendra Nath Samanla 8 C.W.N. 451 and Abdul Karim v. Abdul Rahman 13 Ind. Cas. 364 : 16 C.W.N. 618 : 15 C.L.J. 672. The defendants are, therefore, under-raiyats and are prima facie liable to be ejected under Section 49, Clause (b) of the Bengal Tenancy Act. The defendants, however, hold lands as a raiyat, not under the same landlord, but under a different landlord and in a different village contiguous to his homestead land. The Courts below have held that as the defendants are settled raiyats of the adjoining village, they have acquired a right of occupancy in the homestead under the provisions of Sections 20 and 182 of the Bengal Tenancy Act. The plaintiff has appealed to this Court.

(2.) Now Section 182 of the Bengal Tenancy Act lays down that when a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage and subject to such local custom or usage, by the provisions of this Act applicable to land held by a raiyat."

(3.) The meaning of the section is not clear. It is not easy to see why tile rights of persons who have nothing to do with the holding held by the raiyat should be affected in the mamier mentioned in the section when a raiyat takes from such a person a settlement of his homestead, the incidents of which would, but for the section, be governed by the provisions of the Transfer of Property Act, subject to custom or local usage. The Bengal Tenancy Act regulates the incidents of the holding of a raiyat, and does not appear to concern itself with relations which the raiyat may enter into with regard to properties other than the holding with other persons who have nothing to do with the holding. The words used in the section, however, are "a raiyat" without any qualification, and it has been held in several cases that the provisions of the section are applicable to the homestead of a person who is a raiyat, although he does not hold his homestead under the same landlord under whom he holds his holding, and although his holding may be in a village different from that in which his homestead is situate, see Kripa Nath Chakrabutty v. Sheikh Anu 10 C.W.N. 944 : 4 C.L.J. 332 and Marihar Chattopadhyaya v. Dinu Bera 10 Ind. Cas. 139 : 14 C.L.J. 170 : 16 C.W.N. 536 and we are bound by these decisions. See also Protab Chandra Das v. Biseswar Pramanick 9 C.W.N. 416 (judgment of Geidt, J.) and Golam Mowla v. Abdool Sowar Mondul 9 Ind. Cas. 922 : 13 C.L.J. 255.