S.K. Ghose, J.
1. In this second appeal the question that is raised for decision is whether Section 182, Ben. Ten. Act, applies to the case of a homestead which itself is not an agricultural tenancy. The suit out of which this appeal arises was one for ejecting the defendants from a piece of bastu land situated within Serampore Municipality. In 1907 the defendants' father executed a kabuliyat for 3 cottas out of the present 4 cottas in dispute for a period of 9 years. Before the expiry of that period in 1909, a fresh lease was taken for 10 years in respect of 4 cottas. In 1918 the defendants executed a fresh lease which is described as Ticca bemeadi lease agreeing to quit on receipt of notice for one month. The plaintiff's case is that the tenancy is governed by the Transfer of Property Act. The contention of the defendants was that the kabuliyat of 1918 had not been acted upon, that they had acquired occupancy rights and so were not liable to eviction. Both Courts agreed in negativing the first contention. As regards the second contention, the first Court held that the tenancy is governed by the Transfer of Property Act. In that view it decreed the suit. On appeal the lower Appellate Court held that the tenancy is governed by the provisions of Section 182, Ben. Ten. Act, and therefore the plaintiff is not entitled to eviction. The point was urged in this way. The defendants are raiyats on lands in contiguous villages. Therefore, although the homestead in question was acquired by a new lease in 1915, the defendants are not liable to ejectment. That is the question which is raised in this appeal by the plaintiff. It is contended first for the appellant that Section 182, Ben. Ten. Act, has no application to a municipal area and reliance is placed on 8. 117, T.P. Act. That section exempts lands for agricultural purposes from the provisions of Ch. 5, T.P. Act. But in the present case the mere fact that the tenancy in question does not comprise land for agricultural purposes does not bring it within the provisions of the Transfer of Property Act for the reasons which are pointed out by the learned Subordinate Judge, that the Bengal Tenancy Act would apply to the whole of Bengal with certain exceptions: vide Section 1(3)(iii) which is applicable to the present case. It has been found that there has been no notification with respect to the present area as required by that clause.
2. It is next contended for the appellant that in order to make Section 182, Ben. Ten. Act, applicable, the plaintiff's landlord must himself have a status under the Ben. gal Tenancy Act and that the raiyati must hold his homestead as a raiyat under that Act. With regard to this contention it may be pointed out in the first place that the only status which the plaintiff seems to have is that of landlord, which is defined in the Bengal Tenancy Act as meaning a person immediately under whom a tenant holds. The only thing is that the plaintiff has described himself in the plaint as holding his property in niskar right, which may mean that he is the holder of a revenue free estate or a rent-free tenure. My attention has been drawn to my decision in Tarak Nath v. Gangadhar Da : AIR1935Cal121 in which it was held that where a person who was a settled raiyat of the village held under a tenure-holder a homestead which was not a part of any occupancy holding, the incidents of the tenancy regarding the homestead would be governed by the Bengal Tenancy Act and not by the Transfer of Property Act. This view would appear to be in consonance with that taken by B.B. Ghose, J. in Sukh Lal Shaha v. Prosanna Kumar Shaha AIR 1926 Cal 1199. In that case it was pointed out that the necessary conditions for the application of Section 182 are first, that the tenant should be a raiyat and secondly, that he should hold his homestead other, wise than as part of his holding as a raiyat. B.B. Ghose, J. referred to the fact that the section is couched in general terms after referring to the fact that anomalies might arise, he pointed out that it could not be helped if the plain terms of the section would apply to a particular set of facts. This decision has been followed in the later case in Pulin Chandra Daw v. Abu Bakhar Naskar : AIR1936Cal565 . In these cases, the reference no doubt was to Section 182 of the old Act, but that makes no difference because the amendment is entirely in favour of the tenant.
3. Now as regards the contention that the tenant must be a raiyat with respect to the homestead, it has been held under the old Act that it is not necessary that a ten. ant in occupation of homestead lands should be a raiyat in the village in which the homestead land is situated, nor that he should be a tenant under the same landlord as the landlord of the homestead land: Kripa Nath Chakrabutty v. Sheikh Anu (1906) 10 C W N 944. Similarly, it has been held that a tenant who is not a raiyat in respect of a piece of bastu land, but is so in respect of the agricultural lands which he holds in the village and the homestead land is held otherwise than as part of the tenant's holding as a raiyat, must be regarded as holding the homestead in accordance with the provisions of the Bengal Tenancy Act: Golam Mowla v. Abdul Sowar Mondul (1911) 13 C L J 255. In all these cases, as has been pointed out by the learned advocate for the respondents, it was not contended that the landlord must have a status as under the Bengal Tenancy Act. For the appellant reliance has been placed on the possible contingency that various anomalies would arise if the tenant were to have privileges under the Bengal Tenancy Act. The trial Court also referred to such contingencies as under 8. 26-E and 26-J, Ben. Ten. Act. But the fact that such contingency might arise is not a reason for holding that Section 182 is inapplicable to a municipal area which has not been notified as provided for in Section 1(3), Ben. Ten. Act. It has been contended that it may happen that a temporary lease-holder may have a sublessee who is a raiyat, in which case the raiyat may not be liable to eviction although the rights of the temporary lease-holder might cease. The answer to that is that the sub-lessee's right would be subject to the continuance of the rights of his landlord and further that as regards agricultural rights there are certain exceptions allowed by the law, and the case in Binad Lal Pakrashi v. Kalu Pramanik (1893) 20 Cal 703 has been cited as an example. I have already pointed out that in the case in Sukh Lal Shaha v. Prosanna Kumar Shaha AIR 1926 Cal 1199 B.B. Ghose, J. did refer to the possible anomalies in spite of which the section must be construed as it stands. For the appellant reliance has been placed on Asutosh Pramanik v. Jiban Dhan Ganguly : AIR1933Cal822 . In that case the facts were peculiar. The tenant having a falkar lease of a garden in which he occupied one room for the purpose of guarding trees, it was held that his right to pluck fruits only did not constitute an agricultural tenancy and the fact that he was occupying a portion of the garden for the purpose of living there would not bring him under 8. 182, Ben. Ten. Act. The case in Abdul Karim v. Abdul Rahaman (1912) 15 C L J 672 which was put forward as a converse case has no relevancy, because the question of head lease does not arise.
4. For the appellant reliance has also been placed on Badal Chandra Sadhukhan v. Debendra Nath Dey : AIR1933Cal612 . That was a decision of a single Judge whose attention apparently was not drawn to other decided cases and it appears to me to be in conflict with the decision of the Division Benches in the cases reported in Sukh Lal Shaha v. Prosanna Kumar Shaha AIR 1926 Cal 1199 and Pulin Chandra Daw v. Abu Bakhar Naskar : AIR1936Cal565 to which I have already referred. On the question of law therefore, I must agree with the trial Court in holding that the defendants are entitled to the benefit of Section 182, Ben. Ten. Act, in spite of the fact that the homestead does not constitute an agricultural tenancy.
5. The next point raised is a question of fact. The learned Judge below has found that the defendants are holding lands for the cultivation of betel leaves in the neighbouring villages of Sheorafuli and Pyarapore and that these lands are agricultural lands. It is contended that there has not been a proper investigation of this question, that the Sheorafuli land comprised a bamboo garden and the Pyarapore lands were not mentioned in the written statement. I do not think however that the plaintiff was taken by surprise or that there is a case for remand for further investigation. One of the questions that arose upon the pleadings is comprised in issue 3 of the trial Court 'Is the holding governed by the provisions of the Bengal Tenancy Act or by those of the Transfer of Property Act?' The learned Munsif says that this is really the main and the only issue for consideration in the suit. In the lower Appellate Court also that was the main question which was discussed. It was not suggested in the lower Appellate Court that the plaintiff was taken by surprise with regard to either of the properties. I do not think therefore that there is any substance in this point. The result is that the appeal fails and it is dismissed with costs.