1. The suit out of which this appeal arises was instituted by the plaintiff for ejectment of the defendant from cadastral survey plot No. 633 of Khatian 587 Mouza Garulia on termination of the defendant's tenancy by a notice to quit under Section 106, T. P. Act. The Court of appeal below dismissed the suit and hence this appeal is by the plaintiff.
2. The plaintiff's case is that he took a lease of 9 cottas of land under a patta dated 19th POUS 1308 (3rd January 1902) from his two uncles Sk. Osman and Sk. Meajan and out of this area of 9 cottas the plaintiff granted a sublease to the defendant for three cottas for residential purposes; in the record of rights finally published in 1931 the defendant was recorded as an under-raiyat with a right of occupancy. This entry was challenged by the plaintiff as wrong. The plaintiff further alleged that he served a notice to quit under Section 106, T. P. Act, on 21st Jaistha 1342, by registered post and the defendant accepted the same with the result that the tenancy was determined with effect from 1st Sravan 1342.
3. The defendant denied the validity and sufficiency of the notice and alleged that the tenancy was governed by the Bengal Tenancy Act and that he took the lease for agricultural purposes. The Court of first instance decreed the suit and then after passing through various stages the suit was finally dismissed by the Additional District Judge, 24-Parganas, by a judgment dated 6th March 1940, upon the finding that on the death of the plaintiff's lessors who were his uncles the plaintiff inherited their interest and as that interest was that of a raiyat the plaintiff became a raiyat and the leasehold interest held by him was merged in the higher right with the result that the defendant became an under-raiyat under the plaintiff. As the plaintiff himself became a raiyat the sub-lease granted by him to the defendant made the defendant an under-raiyat, no matter whether the sub-lease was for agricultural or non-agri-cultural purposes. For this proposition of law the Additional District Judge relied upon the case of Babu Bam Roy v. Mahendra Nath Samanta, decided by Mitra J., and affirmed on Letters Patent Appeal by Maclean C. J. and Pargiter J.: vide 8 C. W. N. 454.
4. Against this decision the plaintiff has filed this second appeal, the hearing of which under Order 41, Rule 11, Civil P. C., was stayed by an ex parte order dated 7th April 1940, under Section 3, Bengal Non-agricultural Tenancy (Temporary Provisions) Act. On 2nd December 1947, that ex parte order of stay was vacated and the appeal was admitted under Order 41, Rule 11. On 20th July 1948, the appeal was taken up for final hearing by B. K. Mukherjee J. before whom it was argued by the appellant that if the tenancy created by the potta dated 19th POUS 1308 was a non-agricultural tenancy at its inception, the subsequent event by which the rights acquired under the potta merged in the superior rights of the lessor, could not affect the status of the subordinate tenant. Though this was an important question in the case it was not raised in the Court below and Mukerjea J. accordingly acting under Order 41, Rule 25, Civil P. C., remitted the following issue to the lower appellate Court : 'What was the status of Osman at the time when the potta of 1308 was granted.' The lower appellate Court was directed to take fresh evidence and record a finding on the point.
5. In pursuance of the direction given by Mukherjea J. the lower appellate Court has recorded the following findings :
(a) 'On a comparative estimate of the evidence adduced by the two parties, I am of opinion that the appellant's contention that the holding of Osman and Meajan measured only 9 cottas and that the entire holding was a non-agricultural bastu holding is true.
(b) I hold from the evidence on record that Osman and Meajan had the interest of a non-agricultural bastu tenant in their holding of 9 cottas to which the disputed land appertains and their interest was not that of a raiyat.'
6. The lower appellate Court has further found that this non-agricultural holding of 9 cottas belonging to Osman and Meajan was inherited by the appellant Abdul Samad and amalgamated with certain other agricultural holdings inherited by him from his father and all the holdings were converted into one holding bearing a consolidated rent of Rs. 6 and recorded as raiyati mokurari in the record of rights.
7. Mr. Sen appearing for the appellant has argued that in view of the finding arrived at by the Court of Appeal below after the order of remand made by Mukherjea J., it must be held that the tenancy of the defendant is governed by the Transfer of Property Act. The effect of the judgment of Mukherjea J. is that the principle of the decision of Balu Ram Roy's case, 8 C. W. N. 454, will apply only if the tenancy of Osman and Meajan be found to be an agricultural tenancy on the date of the potta dated 19th Pous 1308. The finding, however, is that the tenancy of Osman and Meajah was not agricultural tenancy on the date of the potta, but that it became an agricultural tenancy on a subsequent date. Upon this finding it seems to us that Babu Ram Roy's case, 8 C. W. N. 454, has no application. The sub-lease in favour of the defendant was non-agricultural at its inception and it retained that character throughout. 8. Mr. Mukherjee appearing for the respondent has strenuously challenged the findings arrived at after remand on the ground that they were beyond the scope of the order of remand. The argument is that it had been found by the lower appellate Court before the remand that the amalgamation took place not with the paternal jama of the plaintiff but with other jamas inherited from the plaintiff's uncles Meajan and Osman, and it was not, therefore, open to the plaintiff after the remand to show that a part of the jama recorded in C. S. plot No. 583 belonged to the plaintiff's father and another part belonged to his uncles. We are not impressed by this argument because we think that the scope of the order of remand was wide enough to cover an enquiry into the question as to who were the persons from whom the plaintiff inherited the different jamas. The finding as to the mode of amalgamation is only incidental to the main issue that was remitted for investigation, viz,, what was the status of Osman and Meajan on the date of the potta, and after having arrived at the necessary finding on that issue, the learned Subordinate Judge went into the question of amalgamation only for the purpose of explaining the entry in the record of rights. The dakhila, EX. 8 (c) shows that the amalgamation did not take place even on 20th Chaitra 1319. If that be so, the defendant must be held to have taken a sub-lease from a non-agricultural lessor for non-agricultural purposes and his rights will accordingly be governed by the Transfer of Property Act.
9. Mr. Mukherjee has argued in the second place that according to the definition of an under-raiyat as given in Section 4 (3), Ben. Ten. Act, the defendant is an under-raiyat inasmuch as he held immediately under the plaintiff who is at present a raiyat though the plaintiff was not a raiyat at the time when he (plaintiff) took lease from Osman and Meajau in 1338, or at the time when he granted the sub-lease to the -defendant. This argument is open to a two-fold objection: in the first place it makes the order of remand made by B. K. Mukherjea J. altogether nugatory as that order was made on the footing that the present status of the plaintiff was immaterial and the defendant's status would be determined by the status of the plaintiff on the date of the potta of 1308. After having submitted to that order and having unsuccessfully adduced evidence on that point, it is hardly open to the defendant to say now that the rights of the defendant should be determined by the present status of the plaintiff. But there is a more serious objection to this argument and that is this: In the case of Arun Kumar Sinha v. Durga Charan Basu, 45 C. W. N. 805 : (A. I. R. (28) 1941 Cal. 606), Mukherjea and Roxburgh JJ. pointed out that the rule of law laid down in the case of Balu Ram Roy v. Mahendra Nath Samanta, 8 C. W. N. 454, that a person holding under a raiyat will be an under-raiyat even if he holds it for non-agricultural purposes is open to serious exceptions. But their Lordships did not refer the matter to a Pull Bench simply because it had remained unchallenged for a considerable time. This criticism of Babu Ram Roy's case, (8 C. W. N. 464) inclines us to put a narrow construction upon the words of Section 4 (3), Ben. Ten. Act, and to hold that a person will be an under-raiyat only if he holds under a raiyat at the inception of his lease. The interpretation sought to be put upon Section 4 (3), Ben. Ten. Act, by Mr. Mukherjee would have the effect of extending the principles of the decision in Babu Ram Roy's case, (8 C. W,. N. 454) which we are not prepared to do in view of the criticism by Mukherjea J. in the case of Arun Kumar Singha v. Durga Charan Basu : AIR1941Cal606 .
10. It remains for us to consider the question whether the present appeal is liable to be stayed under the provisions of Section 3, Bengal Non-agricultural Tenancy Act of 1940. It is conceded that the defendant is a non-agricultural tenant within the meaning of the Act. But Mr. Sen has argued that the appeal by the landlord is neither a suit nor a proceeding within the meaning of Section 3 and is not liable to be stayed. Mr. Mukherjee on the other hand has contended that the appeal is a continuation of the suit and in any case it is a proceeding. The decisions on the point are not uniform. In the case of Jahur Mia v. Abdul Gaffur : AIR1941Cal452 , Biswas J. held that the words 'suit or proceeding' in Section 3 did not include an appeal, but Mukherjea J. who agreed with the order made by Biswas J. on a different ground, was not prepared to go so far as to say that the word 'proceeding' did not include an appeal. In the case of Prankrishna Mukherjee v. Jnanada Roy : AIR1942Cal47 , Edgley and Biswas JJ. approved of the view taken by Biswas J. in Jahur Mia's case : AIR1941Cal452 . Prankrishna Mukherjee's case : AIR1942Cal47 was followed by Edgley and Biswas JJ. in the case of Howrah Jute Mills v. Bakshi Sk. Napit, civil Rules 1529 to 1629 of 1940 (unreported) decided on 6th January 1942. In Ram Charit Bhakat v. Tetari Kumari Kuor : AIR1942Cal136 , Henderson J. sitting singly agreed with the view of Biswas J. that the expression 'suit or proceeding' in Section 3 does not include an appeal. Lastly, in Rukmini Mahesri v. Prahlad Chandra Agarwalla : AIR1945Cal50 , Biswas J. sitting singly reviewed all the authorities and reaffirmed his view that the expression 'suit or proceeding' does not include an appeal. In this state of the authorities, particularly in view of the two decisions of Division Bench in the cases of Prankrishna Mukherjee v. Jnanada Roy : AIR1942Cal47 , and Howrah Jute Mills v. Bakshi Sk. Napit, (civil Rules 1529 to 1629 of 1940) we are constrained to hold that the present appeal is not liable to be stayed under Section 3, Bengal Non-agricultural Tenancy Act of 1940.
11. We have already stated that the hearing of the appeal under Order 41, Rule 11 was stayed. under that Act by an ex parte order dated 7th April 1941 which was vacated by another ex parte order dated 2nd December 1947. It is remarkable that when eventually the appeal was taken up for final hearing by B. K. Mnkherjea J. on 20th July 1948, the respondent did not take any objection to the hearing under Section 3, Bengal Non-agricultural Tenancy Act, and submitted to the order of remand. But in view of the fact that the question now raised before us by Mr. Mukherjee is a question affecting the jurisdiction of the Court, we have allowed him to argue it and decided to give our decision on the merits of his argument.
12. The result of our decision is that this appeal must be allowed, the judgment and decree of the Court of appeal below are set aside and that of the Munsif restored and affirmed.
13. In the circumstances of the case we direct that the parties should bear their own costs throughout.
G.N. Das, J.