The incidents of the defendant's homestead tenancy were governed by the provisions of the new Act applicable to raiyats and under-raiyats, and the defendant was entitled to the benefit of Section 182, Ben. Ten. Act.

JUDGMENT

Edgley, J. - In the suit out of which this appeal arises the plaintiff sued the defendant for ejectment from his homestead. The defendant contended that he should not be ejected, inasmuch as he had acquired occupancy rights in certain other lands in the village and this being the case he was entitled to the benefit of Section 182, Ben. Ten. Act. He also contended that the ejectment notice, which had been served upon him, was defective. It has not been urged before me that the provisions of the Transfer of Property Act apply in this case. The Courts below have both held that Section 182, Ben. Ten. Act, has no application in a case of this sort, because the agricultural land, in respect of which the defendant claims to have occupancy right in the village, was acquired after the acquisition of the homestead by the defendant. It has however been decided by this Court in Pulin Chandra Daw v. Abu Bakhar Naskar, (1936) 163 I C 406 that, when a raiyat holds his homestead otherwise than a part of his holding, he is entitled to the benefit of Section 182, Ben. Ten. Act, although he may have become a raiyat subsequently to the taking of his residential tenancy. With regard to this point it is however contended by the learned Advocate for the respondent that, in the particular circumstances of the case out of which this appeal arises, the defendant cannot in any event obtain the benefit of Section 182 of the Act, because the other land in the village in respect of which he has occupancy rights was acquired by him before the passing of the amending Act of 1928 and, in these circumstances, it is contended that the provisions of the old Act should apply.

2. There is evidence on the record to show that the defendant holds a certain plot of land in the village as an underraiyat with occupancy rights (Ex. C). Admittedly this land was acquired by him before the year 1928. If the provisions of the old Act applied, it is clear that he would not get the benefit of Section 182 of the Act as it now stands. It would appear however that, when the amending Act of 1928 was passed, the new Section 182 became applicable to tenancies which were in existence at the time of the passing of the Act. This being the case both raiyats and under-raiyats would get the benefit of the new section and they would therefore be entitled to hold their homestead subject to the provisions of the Act as amended and the incidents of their homestead tenancies will be governed by the provisions of the new Act applicable to raiyats and under-raiyats as the case may be. In this view of the case I think that the decision of the lower appellate Court is wrong. The judgments and decrees of the lower Court, are therefore set aside and the plaintiff's suit is dismissed. The defendant will get his costs throughout.