1. This is an appeal by the defendants in an action in ejectment. The plaintiff seeks to eject the defendants on the ground that they were tenants of the disputed land and that their tenancy has been terminated by service of notice to quit under the provisions of the Transfer of Property Act. The Courts below have decreed the suit. Upon appeal to this Court, the defendants have contended that they are raiyats and cannot be ejected except in conformity with the provisions of the Bengal Tenancy Act. This contention is based on a two fold ground, namely, first, that the disputed land is the homestead of the defendants, governed by the provisions of Section 182 of the Bengal Tenancy Act; and secondly, that if the land is not their homestead, it is held by them as raiyats and for agricultural purposes. It may be premised here that the defendants hold as raiyats parcels of land in the neighbourhood; those parcels, however, lie in a different village and are held by them under a landlord other than the plaintiffs. The previous history of the land in dispute has not been very successfully investigated. We are told that it was used as a homestead by one Ram Kani Seal; but no information is available as to whether he was a raiyat or not. In 1904, he transferred the land to the defendants. Since then, the land has been used by the defendants, not as their homestead, but only to gather and store the crops raised by them in the neighbouring fields. The plaintiff-respondent asserts that the holding of Ram Kanai Seal was non-transferable and that the defendants did not acquire a valid title by their purchase; this may be assumed to be correct for the purpose of the present argument. The position consequently is that the defendants are tenants in respect of the disputed land, as after their purchase rent was accepted from them by one of two joint landlords; and the land in suit represents only a half share of the entire holding. What, then, is the status of the defendants?
2. The first branch of their contention is that this is homestead land governed by the provisions of Section 182 of the Bengal Tenancy Act. That section is in these terms: When a raiyat holds his homestead otherwise than as part of his holding as a 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.' With regard to this section it has been ruled by this Court in the cases of Kripa Nath Chakrabutty v. Sheikh Anu 4 C.L.J. 332 : 10 C.W.N. 944, Protap Chandra Das v. Biseswar Pramanick 9 C.W.N. 416 Golam Mowla v. Abdool Sowar Mondul 9 Ind. Cas. 922 : 13 C.L.J. 255 and Harihar Chattopadhyaya v. Dinu Bera 10 Ind. Cas. 139 : 14 C.L.J. 170 : 16 C.W.N. 536 that in order to make Section 182 applicable, it is not essential that the homestead should be in the same village or be held under the same landlord as the holding of the raiyat. This position has not been controverted by the respondent and has been made the foundation of an argument by the appellants that evon though the land is not used as a homestead by the raiyat, Section 182 applies on proof that the land is capable of use as a homestead. The argument in substance, is that we should read 'any homestead' for the expression 'his homestead' and 'any holding' or 'his holding', to justify the conclusions adopted in the cases mentioned. In our opinion there is no foundation for this contention. To substitute for the expressions 'his homestead' and his holding' the phrases 'any homestead' and 'any holding' respectively would obviously be to undertake legislation beyond the competence of a Court of Justice. The cases on which reliance has been placed were decided in view of the fact that there is nothing in the language of Section 182 to justify its restriction to cases where the homestead and the holding are situated in one village and are held under one landlord. That this was the reasoning on which the principle in question was adopted is clear from the decision in Harihar Chattopadhyaya v. Dinu Bera 10 Ind. Cas. 139 : 14 C.L.J. 170 : 16 C.W.N. 536. We are further not prepared to accede to the contention of the appellants that the expression homestead' is used in Section 182 as a generic term descriptive of a particular kind of land; on the other hand, we think, it denotes land on which a raiyat has his homestead, that is, land used by him for residential purposes. In our opinion, it is plain that Section 182 is not applicable where it is established that the land is not used by the raiyat as his homestead; it is not sufficient to show that the character of the land is such as would justify its use as a homestead. The first branch of the contention of the appellants entirely fails.
3. The second branch of the contention of the appellants is that the land in suit is held by them as raiyats. It is plain that the provisions of the Bengal Tenancy Act are applicable to all lands used for agricultural purposes, and are not restricted to such lands alone as are actually under cultivation. This view is supported by a long series of decisions, amongst which may be mentioned the cases of Fitzpatrick v. Wallace 1 W.R. 231 : 2 B.L.R. 317, Latifar Rahaman v. A.H. Forbes 5 Ind. Cas. 783 : 4 C.W.N. 372 and Hedayet Ali v. Kalanand Singh 20 Ind. Cas. 332 : 17 C.L.J. 411. In the case last mentioned, the question arose, whether land leased for grazing purposes was governed by the provisions of the Bengal Tenancy Act. It was pointed out that the Bengal Tenancy Act would be applicable if it was found that the grazing was in relation to cultivation, which is the primary purpose for which a raiyat acquires the right to hold land. In the case before us, the defendants are raiyats in respect of lands in the vicinity of the land in suit, which they have taken with a view to gather and store thereon the crops raised on the adjacent lands actually cultivated by them. This gathering and storage of crops raised by them is clearly a purpose ancillary to cultivation. Where, as here, land has been let out for a purpose like this, it is impossible to hold that the provisions of the Bengal Tenancy Act do not apply; the inference is thus irresistible that the defendants are raiyats also in respect of the disputed land. On behalf of the respondents it has been strenuously contended, however, that there is nothing to indicate that the land was actually let out for this purpose. But we have the undeniable fact that ever since the defendants came into occupation of this land, they have used it for this purpose without protest by their landlord. The landlord is in fact in an inextricable difficulty. If it is his case that the land was let out as a homestead to raiyats, though no doubt they are raiyats in respect of other lands in a different village under other landlords, the provisions of Section 182 are applicable. If, on the other hand, the land was let our, as it apparently was, to raiyats for a purpose ancillary to cultivation, the grantees are raiyats in respect of the land. In either view, the defendants are raiyats and can be ejected only in accordance with the provisions of the Bengal Tenancy Act. The plaintiff has not shown that he is entitled to eject them under the Bengal Tenancy Act. His case, on the other hand, throughout has been that the tenancy of the defendants is governed by the provisions of the Transfer of Property Act, which, in the view we take, are inapplicable as is plain from Section 117.
4. The result is that this appeal is allowed and the suit dismissed with costs in all the Courts.