ANUKUL CHANDRA CHAKRABERTI Vs. TUFANI SHEIKH

JUDGEMENT

(1.) The only question for de-termination in this appeal is whether the holding, which is within the municipal limits of Rajshahyeltown, is an agricultural holding governed by the Bengal Tenancy Act, or whether it is governed by the Transfer of Property Act.

(2.) The following facts have been found, namely, that the defendants have been in possession for three generations of this holding and that for about 50 years they have got their homestead in a portion of the land. The trial Court found that it was an agricultural holding On the basis of an entry in a Cesse Return filed by the landlord and on the evidence that some of the land used to be cultivated. That Court also held that even if the holding was non- agricultural, the defendants had acquired a permanent right inasmuch as the holding had apparently been inherited from grandfather to grandson and the rent had been the same Upon both the grounds he din-missed the plaintiffs suit

(3.) In the Appeal Court the learned Judge held that so far as the second point was concerned, the case in Moharam Sheikh Chuprasi v. Telamuddin Khan 13 Ind. Cas. 606; 16 C. W. N. 567; 15 C. L. J. 220. was distinguishable, inasmuch as in the case before him it had not been shown that the tenancy had been treated by the landlord as heritable and also because it had been found in the case in Moharam Sheikh Chaprasi v. Telamuddin Khan 13 Ind. Cas. 606; C. W. N. 567; 15 C. L. J. 220. that the land had been let out for residential purposes. Except as above he affirmed the decision of the trial Court. He held that the case had been rightly decided on the basis of the Cess Return in which the holding was shown as an agricultural one. He is quite right in saying that if the holding was non-agricultural, it should have been entered in part 3 of the Cess Return, which refers to tenure-holders according to the definition of that term under the Cess Act.