The central legal point established in the judgment is the interpretation and application of Section 182, Ben. Ten. Act, in determining the nature of the tenancy and the rights of the parties involved.

JUDGMENT

S.K. Ghose, J. - In this second appeal the question that is raised for decision is whether Section 182, Ben. Ten. Act, applies to the case of a homestead which itself is not an agricultural tenancy. The suit out of which this appeal arises was one for ejecting the defendants from a piece of bastu land situated within Serampore Municipality. In 1907 the defendants' father executed a kabuliyat for 3 cottas out of the present 4 cottas in dispute for a period of 9 years. Before the expiry of that period in 1909, a fresh lease was taken for 10 years in respect of 4 cottas. In 1918 the defendants executed a fresh lease which is described as Ticca bemeadi lease agreeing to quit on receipt of notice for one month. The plaintiff's case is that the tenancy is governed by the Transfer of Property Act. The contention of the defendants was that the kabuliyat of 1918 had not been acted upon, that they had acquired occupancy rights and so were not liable to eviction. Both Courts agreed in negativing the first contention. As regards the second contention, the first Court held that the tenancy is governed by the Transfer of Property Act. In that view it decreed the suit. On appeal the lower Appellate Court held that the tenancy is governed by the provisions of Section 182, Ben. Ten. Act, and therefore the plaintiff is not entitled to eviction. The point was urged in this way. The defendants are raiyats on lands in contiguous villages. Therefore, although the homestead in question was acquired by a new lease in 1915, the defendants are not liable to ejectment. That is the question which is raised in this appeal by the plaintiff. It is contended first for the appellant that Section 182, Ben. Ten. Act, has no application to a municipal area and reliance is placed on 8. 117, T.P. Act. That section exempts lands for agricultural purposes from the provisions of Ch. 5, T.P. Act. But in the present case the mere fact that the tenancy in question does not comprise land for agricultural purposes does not bring it within the provisions of the Transfer of Property Act for the reasons which are pointed out by the learned Subordinate Judge, that the Bengal Tenancy Act would apply to the whole of Bengal with certain exceptions: vide Section 1(3)(iii) which is applicable to the present case. It has been found that there has been no notification with respect to the present area as required by that clause.

2. It is next contended for the appellant that in order to make Section 182, Ben. Ten. Act, applicable, the plaintiff's landlord must himself have a status under the Ben. gal Tenancy Act and that the raiyati must hold his homestead as a raiyat under that Act. With regard to this contention it may be pointed out in the first place that the only status which the plaintiff seems to have is that of landlord, which is defined in the Bengal Tenancy Act as meaning a person immediately under whom a tenant holds. The only thing is that the plaintiff has described himself in the plaint as holding his property in niskar right, which may mean that he is the holder of a revenue free estate or a rent-free tenure. My attention has been drawn to my decision in Tarak Nath Chakravarti Vs. Gangadhar De and Another, AIR 1935 Cal 121 in which it was held that where a person who was a settled raiyat of the village held under a tenure-holder a homestead which was not a part of any occupancy holding, the incidents of the tenancy regarding the homestead would be governed by the Bengal Tenancy Act and not by the Transfer of Property Act. This view would appear to be in consonance with that taken by B.B. Ghose, J. in Sukh Lal Shah Vs. Prosanna Kumar Shaha and Another, AIR 1926 Cal 1199 . In that case it was pointed out that the necessary conditions for the application of Section 182 are first, that the tenant should be a raiyat and secondly, that he should hold his homestead other, wise than as part of his holding as a raiyat. B.B. Ghose, J. referred to the fact that the section