The court established that the incidents of the tenancy with regard to the homestead land were governed by Section 182 of the Bengal Tenancy Act, despite any potential injurious effects on the landlords.

JUDGMENT

B.B. Ghose, J. - This is an appeal against a judgment of my learned brother Mr. Justice Chakravarti by which he modified the decision of the Subordinate Judge. The facts relevant to the present appeal may be shortly stated thus: The plaintiffs allege that the defendant's predecessor was granted a lease of a piece of land as a homestead in about 1850, that the predecessors of the defendant and after them the defendant have been in possession since then and the plaintiffs served upon the defendant a proper notice to quit and on that the tenancy has terminated. The plaintiffs therefore brought the suit for the purpose of ejecting the defendant from the land.

2. The defendant raised several objections, but the plea which it is now necessary to state was that the defendant had taken in the year 1916 a certain piece of agricultural land in the same village from some other landlord which he had been holding as a raiyat. He therefore claimed that his tenancy with regard to this homestead should be governed by the provisions of Section 182 of the Bengal Tenancy Act.

3. The Munsiff passed a decree in ejectment in favour of the plaintiffs. On appeal the Subordinate Judge has reversed that judgment and dismissed the suit. In the course of his decision the Subordinate Judge held, rejecting the defendant's plea of a permanent tenancy with regard to the homestead, that the defendant was not a cultivating raiyat in respect of the land in suit and that he could not establish any right under which he was not liable to be ejected. But in another part of his judgment the Subordinate Judge held, that the defendant having the status of a raiyat under the Bengal Tenancy Act the incidents of the homestead land in suit were governed by the provisions of Section 182 of the Bengal Tenancy Act and the notice--alleged to have been served by the plaintiff did not therefore terminate the tenancy.

4. On appeal by the plaintiffs Mr. Justice Chakravarti has varied the judgment of the Subordinate Judge to this extent, namely,

5. that the plaintiffs were held entitled to a declaration that they were the owners of the land in suit in Miras howla right as alleged in the plaint and that the defendant was not a cultivating raiyat in respect of the disputed land and that the defendant had not established any non-ejectable right as a tenant and also that the tenancy was for habitation and was liable to be terminated by a proper notice to quit.

6. The defendant appeals against that judgment and his contention mainly is that the declaration that the defendant has not established any non-ejectable right as a tenant and also that his tenancy is liable to be terminated by a proper notice to quit should be expunged. He has no objection to the declaration of the plaintiffs' right to the land as owners in Miras howla right. In fact he has urged that the defendant never disputed the plaintiffs right.

7. Mr. Justice Chakravarti has held that Section 182 of the Bengal Tenancy Act has no application to this case. His reasoning is that the defendant's interest in the homestead as between himself and the plaintiffs was created long before the Bengal Tenancy Act came into operation and the defendant having taken under some other landlord a piece of land as a raiyat more than 70 years after the homestead land had been taken, the origin of the tenancy of the defendant with regard to the homestead could not be affected. The difficulty in accepting this view of the law arises on account of the general terms of the provisions of Section 182 of the Bengal Tenancy Act which provides that:

when a raiyat holds his homestead otherwise than as a 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 local custom or usage, by the provisions of this Act applicable to land held by a raiyat.

8. In order to decide the question whether the section applies to a particular set of facts we have first to see whether the t