R.P. Mookerjee, J.
1. This appeal is on behalf of the plaintiff a against the decision by the Courts below dismissing the plaintiffs' suit against the defend-ants for ejectment.
2. The principal question in issue in this appeal depends on an interpretation of Section 182, Bengal Tenancy Act and is one of first impression.
3. The plaintiffs are admittedly the owners of premises No. 47/1 now re-numbered 46/1 Barrackpore Trunk Road, covering an area of about 1 1/2 bighas, which had been included upto March 1924, within the municipal limits of Cossipore Chitpore; but from after the passing of the Calcutta Municipal Act, 1923, which came into force an 1st April 1924, it is within the ambit of the Calcutta Corporation. As after service of notice under Section 106, T. P. Act, the defendants had not given up possession, the plaintiff filed the present suit for ejectment There is a further claim for arrears of rent for a certain period upto the date of notice and for damages for use and occupation thereafter. The defence is that the alleged notice had not been served or at any rate it was not sufficient in law. The tenancy is claimed to be governed by the provisions of the Bengal Tenancy Act and in any view the defendants being settled rayats of the adjoining village Nainan they have acquired an occupancy right in the suit land and cannot be ejected.
4. The learned Munsif held that the notice to quit had been duly served and the holding having been leased out for residential use it was not a holding held for agricultural purposes but the defendants being settled rayats of the adjoining village the provisions under Section 182, Bengal Tenancy Act would be attracted. Plaintiffs' prayer for ejectment was accordingly dismissed.
5. On appeal by the plaintiffs the learned Subordinate Judge agreed with the trial Court that the suit land had been leased out for residential purposes and the notice had been duly served He, however, remitted the suit to the trial Court for further investigation as to the applicability of Section 182, Bengal Tenancy Act. The High Court was moved against this order of remand. The direction given by this Court is in the following terms:
'The learned Subordinate Judge will himself take such evidence as the parties think fit to adduce on the question whether the village Nainan is contiguous to the village where the suit land is situate. He will also take such evidence as the plaintiffs seem fit to adduce in rebuttal of the Dakhilas Ex. F series. He will then dispose of the appeal in accordance with law.'
6. Upto this stage the parties were proceeding on the footing that Section 182, Bengal Tenancy Act as amended in 1928, was the one applicable in the present case. When, however, the matter was heard by the learned Subordinate Judge after remand from this Court, it was argued that Section 182, as it stood before the amending Act of 1928, was attracted. This contention was upheld. The defendant tenant was found to have acquired an occupancy right in the suit land as their homestead from before the amended section had come into force. It was also held in the alternative that even if the amended section was applicable the defendants were equally protected. Hence this appeal on behalf of the plaintiffs.
7. The first point urged on behalf of the appellants is that even if the line of reasoning adopted by the learned Subordinate Judge be accepted he was wrong in stating that the defendants had acquired an occupancy right before the amended section had come into effect on 2lst February 1929. The dakhilas marked as Ex. F series show that the defendants were tenants in respect of the holding from 1324 B S. 1st of Baisakh 1324 B. S. corresponds to 14th April 1917. Twelve years from this date would not be completed when the amended section took effect on 2lst February 1929. The reasoning adopted by the Subordinate Judge for attracting the old section cannot be supported.
8. Before I deal with the question whether the new point about the applicability of the old section can be urged, I shall first consider whether on the facts found Section 182 as it now stands can be attracted.
9. There can be no question that the land in suit, although now under the jurisdiction of Calcutta Corporation is within the added area and under clause (ii) of Sub-section (3) of Section 1, Bengal Tenancy Act, the provisions of the Bengal Tenancy Act would be attracted unless a notification, withdrawing the operation of the Act is issued. As there has been no such notification, the Bengal Tenancy Act is attracted over the area in question.
10. Section 182, Bengal Tenancy Act, as after amendment in 1928 is in the following terms:
'When a raiyat or an under-raiyat holds his homestead otherwise than as part of his holding within the same village or any village contiguous to that village, his status in respect of his homestead shall be that of a raiyat or an under-raiyat according to the status of the landlord of the homestead, and the incidents of his tenancy of such homestead shall be governed by the provisions of this Act applicable to raiyats or under-raiyats, as the case may be.'
11. If the raiyat has his homestead in the same village in which he has his agricultural holding or in
'any village contiguous to that village the tenant will thereby acquire a status dependant on the status of the landlord of the homestead.'
12. The first question for consideration in this connection is whether the village Chasadhopapara, wherein the land in suit is situate and is used as the homestead, is contiguous to the village which is now known as Nainan Purba. The admitted-fact is that to the east of the village Chasadhopapara was situate a village known as Nainan which extended further to the east beyond the limits of the northern boundary of Chasadhopapara. It is common case of both the parties that there was one village Nainan until 24th June 1931, when the old village Nainan was divided into three villages -- the western portion which is just to the north of village Chasadhopapara remains as Nainan and is noted as Sub-division (1) of Division l of Delhi Panchannagram. To the east of this sub-division is Sub-division (13) which is known as Nainan Nij. To the further east of Sub-division (13) is Nainan Purba, bearing the sub-division No. (12). From Billon's map marked Ex. J. it would appear that Nainan Purba had no separate existence as an independent village before 1931.
13. On these facts it is contended on behalf of the landlord plaintiffs that Nainan Purba having now been declared as a separate village under Section 3 (19), Bengal Tenancy Act which has no common boundary with Chasadhopapara, the agricultural holding which is in Nainan Purba cannot be considered to be in a contiguous village and accordingly the provision of Section 182 will not be attracted.
14. On behalf of the tenant defendants it is argued on the other hand that contiguity under Section 182 is not to be strictly interpreted but when two villages are near about, that should be taken as sufficient compliance of the requirements of that section. As admittedly the tenant in respect of the agricultural land had acquired occupancy right before Nainan-Purba was declared to be a separate village, the right of occupancy which the defendants had so acquired in the homestead in Chasadhopapara could not be destroyed or affected by a subsequent declaration, creating Nainan-Purba as a separate village.
15. It is now settled that the tenant need not take settlement of the agricultural holding and of the homestead at the same time. A person owning a homestead may become a raiyat subsequent to his taking the residential tenancy and he is entitled to the protection provided in s. 182. Pulin Chandra v. Abu Bakhar Naskar : AIR1936Cal565 . Similarly, a raiyat becoming a settled raiyat by lapse of time is entitled to invoke the provisions of this section in respect of the residential holding which he had been occupying from before.
16. The word 'holds' in this section indicates the point of time when the necessary ingredients are to be satisfied and that is when the dispute about the incidence of the tenancy of the home-stead arises. Naihati Jute Mills v. Kali Prasad Saha, 53 C. W. N. 82 at pages 90 and 91: (A. I. R. (36) 1949 Cal. 259), see also Pulin Chandra v. Abu Bakhar Naskar (40 C. W. N. 599 : 67 C. L. J. 59 : A. I. R. (23) 1933 Cal. 565): supra.
17. It is also to be noticed that the rights which are declared is favour of the tenant over a homestead under Section 182 are dependent on his holding another agricultural tenancy in respect of which he has a right of occupancy. If such a tenant disposes of his agricultural holding and ceases to be a settled raiyat or an occupancy raiyat he will not continue to have the rights over his homestead which he previously had. Naihati Jute Mills v. Kali Prosad Saha (53 C. W. N. 82 : A. I. R. (36) 1949 Cal. 259) supra dissenting from the single Judge decision Haru Charan Manna v. Sourendranath, 40 C. W. N. 182.
18. If, on the other hand, such a tenant transfers his residential holding to another person who holds no agricultural holding either in the same village or in any contiguous village, the transferee will not be entitled to rely or fall back upon the rights which could have been claimed by his transferor because of his being the holder of another agricultural raiyati holding.
19. It is further not correct to state that the raiyat or an under raiyat acquires a right of occupancy in the homestead on his proving that he is a settled raiyat or the holder of a raiyat in the same village or in a contiguous one. It is not that the homestead itself becomes a raiyati holding. The effect of the provisions is not to create a transferable occupancy right in that homestead. The right is a personal one dependent on the proof of the existence of certain facts. Such personal rights continue to be available only so long as the conditions are satisfied.
20. The Bench decision in Naihati Jute Mills v. Kali Prasad Saha, 53 C. W. N. 82 at p. 88 : (A. I. R. (36) 1949 Cal. 259) is a clear authority to the effect that the same person must, when the dispute arises about the ejectibility of the tenant from the homestead land be still holding there as agricultural plot. Contiguity of the villages must be proved as at that relevant time. The word 'village' as used in the Bengal Tenancy Act has got a special meaning in this Act as clearly denned in Section 3 (19) of the Act. On the declaration made in June 1931, Nainan-Purba has become a separate village. It is admitted that not only there is no common boundary between the village Chasadhopapara and the village Nainan-Purba, there is even no point of contact between the two. The word 'contiguous' in Murray's Oxford Dictionary is explained as 'touching, in actual contact, next in space, meeting at a common boundary, bordering, adjoining-' Reliance, however, is placed by the defendant respondent on what is stated by Murray as being the loose use of the word contiguous: 'Neighbouring, situate in close proximity'. In the first place such loose use is not in use in modern times. Further, such a loose use will introduce uncertainties and various complexities into the working of the provisions of Section 182. Anomalies will arise if it has to be decided in each particular case as to what is to be conceded to be close proximity. It will introduce an uncertainty which is wholly undesirable.
21. Even if the test of close proximity were to be applied, the existence of another village Nainan Nij intervening between the two will not justify describing Chasadhopapara and Nainan-Purba as contiguous villages.
22. I would, therefore, hold that the two villages were not contiguous ones at the relevant time and the defendant is not entitled to rely upon Section 182, Bengal Tenancy Act as it now stands after amendment in 1828.
23. As indicated already the defendant made a new ease after remand that the old Section 182 was attracted though the grounds mentioned by the Subordinate Judge for attracting the old section cannot be supported. Dr. Sen Gupta contends that it may be possible for the defendants to prove that they bad acquired occupancy rights in respect of the agricultural plot long before 1929, and that such right cannot be affected by the subsequent notifications declaring Purba Nainan as a separate village which cannot affect the defendants' right of occupancy which had so been already acquired.
24. Reliance is placed on certain observations appearing in the Naihati Jute Mills Co. Ltd. v. Kali Prasad Saha, 53 C. W. N. 82 : (A. I. R. (36) 1949 Cal. 259) as to the effect of the amended section on rights already acquired by the operation of the old Section 182 before 1st January 1929. As the facts necessary for giving a final decision on this point have not been ascertained I would not express any opinion on this question.
25. The question of attracting the provisions of Section 182 as it stood before the amendment had not been raised up to the High Court on the previous occasion and if such a point is allowed to be taken the parties will have to be given an opportunity of adducing evidence on question of facts which must be enquired into. Ordinarily, such an enquiry ought not to be allowed at a late stage. In view, however, a further enquiry has to be directed to determine the applicability or otherwise of the provisions contained in the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, which came into force during the pendency of appeal in this Court, I think the parties may have a further opportunity of agitating the applicability or otherwise of Section 182, Bengal Tenancy Act, as it stood before 1929.
26. It may be noted that even if it had been held that the residential and occupancy holdings were in two contagions villages the defendants would not have been able to rely upon Section 182 as it now stands as there is a further lacuna. On the authority of the Naihati Jute Mills Co. Ltd. v. Kali Prasad Saha, 53 C. W. N. 82:(A. I. R. (36) 1949 Cal. 259) the status of the tenant in respect of the homestead is to be determined, 'according to the status of the landlord of the homestead.' It is for the tenant to prove what the status of the landlord is. This aspect of the case was neither raised by the parties nor considered by the Courts until the hearing of this appeal now. Had I not been of the view that the amended Section 182 was not attracted I would have been bound to send the case back for enquiry and decision as to the status of the landlord of the homestead i. e. the plaintiff. This point, however, now becomes immaterial on the decision arrived at as above.
27. Even if it be found that the defendants are not entitled to rely upon or invoke the pro-visions contained in the old Section 182, Bengal Tenancy Act, a further question will arise for consideration. During the pendency of the appeal in this Court, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1918, came into force on 1st December, 1948. Whether the defendants are 'tenants' as defined in Section 2 (11) of this Act will have to be examined. Whether the defendants can in that case fall back upon Ss. 11, 12 or any other provisions of that Act will also require consideration.
28. This suit cannot be finally disposed of until these questions are ascertained and considered.
29. The judgment and decree passed by the Subordinate Judge are set aside and the case is remitted to the lower appellate Court for re-hearing according to the directions indicated above. The learned Subordinate Judge will frame proper issues for determining whether old Section 182, Bengal Tenancy Act and or the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, are attracted in the present case. Such issues will be sent down to the Court of the Munsif for trial after allowing the parties to adduce evidence on those issues. The findings of the trial Court so arrived at will be considered along with evidence already on the record and the learned Subordinate Judge will proceed to hear the appeal on those issues only according to law. The appeal is accordingly allowed. Each party will bear his own costs in this Court. Future costs will be in the discretion of the Court below.