MIAN AHIR Vs. PARAMHANS PATHAK

JUDGEMENT

(1.) This second appeal by the defendants arises out of a suit in ejectment. The plaintiff is the holder of an occupancy holding consisting of 17.94 acres of agricultural land and some homestead land. The suit was to eject the defendants- appellants from two plots of homestead land Nos. 50 and 51. With regard to the latter plot, it has been found as a fact by the Court below that the plaintiff was wrongfully evicted from this plot by the defendants in 1340. The decree in plaintiff's favour with regard to this plot therefore is not open to challenge in second appeal. With regard to plot No. 50 the case of the plaintiff was that it was settled with the defendants on condition that they provided milk, curds and ghee to the plaintiff at certain prices on ceremonial occasions and assisted him in his cultivation. The question is whether the defendants are under-raiyats or not. If they are under-raiyats, the plaintiff's claim to eject them from plot No. 50 must fail by reason of the fact that the plaintiff has not caused a notice to be served on them in the manner required by Section 49, Tenancy Act. If on the other hand, defendants are not under-raiyats, it is not disputed that the notice that was served on them by the plaintiff is sufficient to terminate the tenancy.

(2.) The learned advocate for the defendants, appellants relies on a decision of the Calcutta High Court in Babu Ram Roy V/s. Mahendra Nah 8 C.W.N. 454 in which it was held that where the lands included in the holding of an agricultural raiyat consist partly of agricultural and partly of homestead lands and the homestead portion is let out for use as homestead the person to whom it is so let is an under, raiyat within the meaning of the Tenancy Act, and accordingly that such person is not liable to ejectment, unless a notice has been served in accordance with the provisions of Section 49. The contention in that case as in this, was that it was sufficient to serve a notice under the Transfer of Property Act. In the course of the judgment their Lordships said: The Transfer of Property Act is not applicable to lands used for agricultural purposes, and in considering whether the one Act or the other would apply, we have to look to the nature of the original tenancy, and not the nature of the tenancy with reference to a particular piece of land within the landlord's holding.

(3.) That case was referred to in a later case in the same High Court, Rampado Sankar V/s. Atore Dome which first came before Newbould J. and then before a Bench in Letters Patent Appeal which confirmed the decision of that learned Judge. There the holder of 10 kathas of land which was used for horticultural purposes sublet a portion of it to the defendant who occupied it as homestead. The plaintiff sued to eject the tenant alleging that the tenanoy had been terminated by notice to quit under the Transfer of Property Act. The suit was dismissed on the ground that the Tenancy Act, and not the Transfer of Property Act, applied. In the course of the judgment of the learned Judges who heard the appeal it was said: The position consequently is that when the subtenancy in favour of the defendant was created, although the grant included only the homestead portion of the land comprised in the tenancy, still the tenancy taken as a whole included agricultural and horticultural lands. These facts make applicable the principle enunciated in Babu Ram Roy V/s. Mahendra Nah 8 C.W.N. 454. That principle is that, in the absence of a local custom or usage, the homestead portion of an agricultural holding is governed by the provisions of the Bengal Tenancy Act, precisely in the same manner as the portion under actual cultivation, From this it follows that the answer to the question, whether a case of this description is governed by the Bengal Tenancy Act or by the Transfer of Property Act, depends upon the nature of the original tenancy and not on the character of the parcels included in the sub-tenancy.