1. A preliminary objection has been taken on behalf of the respondent in this case to the effect that a reference to a Full Bench cannot be made by a Judge of this Court sitting alone to hear cases in which the value of the subject-matter in dispute does not exceed Rs. 50. The point is one of considerable importance. Under Rule 1 of Chapter V of the Rules of the High Court, Appellate side, a reference to a Full Bench can only be made when one Division Court differs from another Division Court upon a point of law or usage having the force of law. The question, therefore, to my mind resolves itself into this, whether a Judge sitting alone, as was the case here, is a 'Division Court' within the meaning of the rule which I have just read. When we look at the rules carefully it will be found that in them distinctions are drawn between a Division Court and a Judge sitting alone. That is apparent from Rule 6, Chapter VI, in which, speaking of appeals under clause 15 of the Letters Patent, the rule says: 'In every appeal under clause 15 of the Letters Patent against the judgment of a Division Bench or of a Judge sitting singly on the Appellate side of the High Court.' That shows the distinction which is drawn between a Judge sitting alone and a Division Court. In referring to that rule I am not unmindful of the argument which was addressed to us to the inference properly deducible from Rule 1 of that Chapter, which speaks of every appeal to the High Court under clause 15 of the Letters Patent from a judgment of a Division Court on the Appellate side of the High Court. It was contended that, in as much as there was an appeal under that clause from the decision of a Judge sitting alone, and as the rule only refers to a Division Court, the inference was that a Judge sitting alone was to be treated and regarded as a Division Court within the meaning of the rule, and that an indication was thus afforded that the distinction which I have suggested between a Division Court and a Judge sitting alone was not well founded. But giving all weight to that contention, and it was upon this rule that Dr. Ashutosh Mukerjee mainly relied, we must necessarily look at all the rules, and I think we obtain a fairly clear indication of what was intended by the term 'Division Court' from Section 13 of 24 and 25 Vic, cap. 109, the Act establishing High Courts of Judicature in India. That section shows that a 'Division Court ' must be constituted of two or more Judges of the High Court, which is incompatible with such a Court being composed of a single Judge sitting alone. It can hardly be supposed that the framers of the rules made under the Act intended to use the term 'Division Court' in a sense different from that in which it was used in the Act itself. Moreover the term 'Division Court' is scarcely the term one would ordinarily apply to a Judge sitting alone.
2. The view that one Judge cannot refer a case to a Full Bench is further strengthened by Rule 2 of Chapter V, which indicates that at least two Judges must differ from the decision of the former Division Court. On these short grounds, I am of opinion that it is not competent for a Judge sitting alone to make a reference to a Full Bench, and consequently that the preliminary objection must prevail. The result, therefore, is that the reference to a Full Bench is irregular, and the case must go back to the learned Judge who made the reference, to be dealt with by him as he thinks right.
3. Under the circumstances we do not think there ought to be any costs of this hearing.
4. After the case was remanded to Mr. Justice Rampini, he, having heard the Vakils on both sides, delivered the following judgment:
5. This case was heard by me, sitting alone on the 28th May 1897. On that occasion no one appeared for the respondents. I reserved judgment, and on the 7th June 1897 I referred the case to a Full Bench. It has now been held that I had no power under the rules of Court to refer the case to a Full Bench and the case has been returned to me for disposal.
6. The respondents now appear by pleader, who argues that he has a right to be heard on behalf of the respondents as the order of the Full Bench reopens the case. I am of opinion that looking at the provisions of Sections 556 and 571 of the Civil Procedure Code, the pleader for the respondent has no right at this stage of the case to be heard, but I have allowed him to appear as amicus curia and argue the case for the respondents in that capacity.
7. His contentions are: (1) That whether the defendant No. 2 has a permanent interest in the homestead land, which is the subject of dispute in this case, or not, he has an assignable interest in it, and, therefore, that the defendant No, 1 is a tenant of the land and cannot be ejected without a notice to quit; (2) that the cases cited by me in my order of reference lay down no hard and fast rule as to when a Court may infer that a tenancy of homestead land is of a permanent character; and (3) that the lower Courts in this case have come to a finding of fact as to the tenancy of defendant No. 1 having been of a permanent nature, and that I cannot interfere with this finding in second appeal.
8. In support of his first contention the learned pleader for the respondent has cited the Transfer of Property Act, Sections 106, 108 (j) and 111 (h), and the cases of Beni Madhab Banerjee v. Jai Krishna Mookerjee (1869) 7 B. L. R. 152; Durga Prasad Misser v. Brindaban Sookul (1871) 7 B. L. R. 159; Doya Chand Shaha v. Anund Chunder Sen Mozumdar (1887) I.L.R. 14 Cal. 382; Appa Rau v. Subbanna (1889) I.L.R. 13 Mad. 60. and Venkatasamy Naick v. Muthuvijia Ragunada (1870) 5 Mad. H. C 227.
9. Regarding the learned pleader's reference to the provisions of the Transfer of Property Act, I would only say that I have already in my judgment of reference expressed my opinion that the provisions of the Transfer of Property Act do not apply to this case as the defendant No. 2's lease is of date anterior to the passing of that Act. The case of Sari Nath Karmoker v. Rajendra Karmoker (1897) 2 Cal. W. N. 122 which I then cited, has now been fully reported in 2 C. W. N., 122. In the judgment in this case, I have referred to the case of Beni Madhab Banerjee v. Jai Krishna Mookerjee (1869) 7 B. L. R. 152 and stated that, in my opinion, it shows that previous to the passing of the Transfer of Property Act non-agricultural holdings might or might not be assignable. In the present case the lower Courts have both held that the land in dispute is not transferable by custom, and I do not see that it was ever contended on behalf of the respondents in the Courts below that it was transferable or assignable on any other ground. From the judgment of the Munsif it no doubt appears that the defendants in their pleadings did plead that the 'jama was transferable according to law and custom.' But the contention raised at the trial was only that it was transferable by custom and this plea was negatived by both Courts. Anyhow, there was no law before the passing of the Transfer of Property Act which made a lease of homestead land transferable otherwise than by custom.
10. I have nothing further to add to the remarks I have already made in my judgment of reference on this case of Beni Madhab Banerjee v. Jai Krishna Mookerjee (1869) 7 B. L. R. 152. The case of Durga Prasad Misser v. Brindaban Sookul (1869) 7 B.L.R. 159 seems to me to lay down no general rule. On the contrary, Jackson J., observed that 'everything must depend on the circumstances of the case,' and in that case the defendant had been allowed to erect buildings on the land, and it was said that his holding was not a temporary one.
11. Then the case of Doya chand Shaha v. Anund Chunder Sen Mozumdar (1887) I.L.R. 14 Cal. 382 evidently refers to a raiyati holding, and not to a plot of homestead land. This is apparent from the terms of the judgment and is demonstrated by the fact that it was referred to and not followed in the case of Kripamoyi Dabia v. Durga Gobind Sirkar (1887) I.L.R. 15 Cal. 89 which relates to a raiyati holding, and in which the learned Judges i who decided it, said: 'It seems to us that unless the defendant can prove the tenure set up by him, viz., a permanent and transferable tenure, the plaintiff, the admitted landlord, is entitled to enter into possession, and this view has been uniformly taken by this Court, as would appear from an? examination of the case quoted above.'
12. The cases of Appa Rau, v. Subbanna (1889) I.L.R. 13 Mad. 60 and Venkaiasamy Natch v. Muthavijia Ragunada (1870) 5 Mad. H. C. 227 were also not cases concerning homestead land, and are, therefore, I think irrelevant.
13. In respect to the learned pleader's contention that there is a conclusive finding of fact by the lower Courts, I would only refer to the Privy Council case of Ramgopal v. Shamskhaton (1892) I. L. R 20 Cal. 93; L. R. 19 I. A. 228 which in my opinion effectually disposes of it.
14. The cases, I have cited in my judgment of reference may lay down no hard and fast rule on the subject, but the rule which I think should be deduced from, them is, as I have already pointed out, that mere long possession of homestead, land is not sufficient to justify the presumption of a permanent grant, and that, before such a presumption can be made there must be something more, viz., either (l) the land having been let for the erection of pucka buildings or (2) a standing by on the part of the landlord, while the tenant without objection, erects permanent buildings or effects substantial improvements on the land. In addition to the cases already cited, I would quote one more, viz., Lalla Gopee Chand v. Liakut Hossein (1876) 25 W. R. 211 which I consider supports the view I take of this subject.
15. Taking this view of the matter, I must hold that the Court below were not justified in presuming that the defendant No. 2 had a permanent and transferable interest in the land, and therefore that the suit should have been decreed. I accordingly decree this appeal and the suit with all costs in all Courts.
16. My judgment of reference dated 7th June 1837 should be read along with, this judgment, as the first part of it.