1. The plaintiffs sue in this case for arrears of rent of 2 1/2 bighas of bastu land and for ejectment of the defendant.
2. It appears that the defendant formerly sold this land to the plaintiffs, and that having no place to live on at the time, he was allowed to remain at first for a period of one year, and then subsequently for a period of two years. In Chait 1295, he executed a kabuliat in favour of the plaintiffs for the period of two years, and by this kabuliat he bound himself down, at the expiry of the two years, to give up the land. He has however, not given up the land in accordance with this kabuliat; and the plaintiffs now sue him for arrears of rent and for ejectment.
3. The lower Courts have dismissed the suit of the plaintiffs on the ground that the defendant is a settled raiyat of the village. It appears that he has a right of occupancy in some agricultural land in the village other than the subject of dispute in this case which, as I have said, is bastu land. It has, therefore, been held that under the provisions of the Bengal Tenancy Act, the plaintiffs cannot eject the defendant.
4. The plaintiffs appeal to this Court, and urge that the lower Courts are wrong in not giving them a decree in ejectment. I however, think that the lower Courts are perfectly right. Under Section 21 of the Tenancy Act, Clause (1), every person who is a settled raiyat of a village has a right of occupancy in all land for the time being held by him as a raiyat in that village. The learned Pleader for the appellants points out that the subject of dispute in this suit is not held by the defendant as a raiyat; but that appears to me to be immaterial because we must read Section 21 in this case in conjunction with Section 182, in which is to be found the law under the Tenancy Act with regard to homestead land. Now, Section 182 says 'when a raiyat holds his homestead otherwise than as part of his holding as 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.' Now, it is quite clear that the defendant is a raiyat not in respect of the land in dispute, but in respect of the agricultural land which he holds in the village; then it is clear that the land in dispute is homestead land held otherwise than as part of the defendant's holding as a raiyat; no allegation of local custom or usage is made by either of the parties; and, therefore, it follows that the land in this suit must be regarded as held by the defendant in accordance with the provisions of the Tenancy Act applicable to land held by a raiyat. Therefore, even though the defendant is not a raiyat in respect of this piece of bastu land in dispute between the parties, still under Section 182, the provisions of this Act applicable to land held by a raiyat are applicable to this particular piece of land; in other words, he has, under Section 21, a right of occupancy in this piece of bastu land as well as in the agricultural land in the village of which he is a settled raiyat. Furthermore, under Section 178 of the Tenancy Act, Clauses (a) and (6) the defendant cannot contract himself out of his rights as an occupancy raiyat. This case must accordingly be decided by the general provisions of the Tenancy Act, and not by the terms of the special contract made by the plaintiffs with the defendant.
5. There is another ground of appeal, viz., that the lower Courts were not right in refusing to allow the plaintiffs to withdraw their suit for ejectment; but that ground of appeal has not been pressed before me, and, therefore, I need say nothing with regard to it.
6. Under these circumstances, the findings of the lower Court appear to be perfectly correct, and I dismiss this appeal, but without costs, as nobody appears for the respondent.