1. In this case the plaintiffs sued to recover possession of a certain piece of bhiti land. Their case was that they had purchased the nishkar right in the same and that one Behari and his father before him held the bhiti land in suit as a tenant-at-will under them. in 1918 Behari left the place and transferred his so called interest in the land to the other defendants. The defendants at first denied the plaintiffs' title but that denial was subsequently given up. But his main case was that Behari never abandoned the tenancy but had only given it to the present appellants in usufructuary mortgage and so plaintiffs cannot get khas possession. The Munsif found that the so called usufructuary mortgage was an out-and-out sale and that though, no doubt, Behari was not an agriculturist he held the land with no power of transfer and so decreed the suit. This judgment was confirmed by the learned Subordinate Judge.
2. Three points have been taken before us. Firstly, it is urged that as both the Courts have found that the land was not agricultural but homestead land the Bengal Tenancy Act cannot apply and no relief can be obtained on abandonment. Secondly, it is urged that if the Transfer of Property Act applies the plaintiff cannot challenge the transfer. Thirdly, it is urged that the deed is not a kobala or an out-and-out sale but only a usufructuary mortgage. As to the third point we may say at once that we have read the deed and considered the evidence of facts which have arisen and it is clear that Behari had abandoned the land and made it over to the present appellants. There is therefore, in our opinion, no point in this contention.
3. The other two questions may be taken together. It is admitted that the land is homestead land only. Behari was a mason and there is. nothing to show that his predecessors were agriculturists either. He was certainly not an agriculturist and he had gone to live elsewhere. The tenancy had been in existence, it would appear, long before the passing of the Transfer of Property Act or the Bengal Tenancy Act. There is no evidence to show that such holdings as these which were purely of the nature of village service tenures are transferable by custom. As to the application of the Bengal Tenancy Act it may be that it does not by itself apply. But as to the Transfer of Property Act it appears to us clear that it also does not apply. The proviso to Section 108(j) expressly excludes non-transferable homestead and further this tenancy with its incidents came into existence before the passing of that Act. Refer-once must, therefore, be made to the authorities and in this connexion, I will refer, first to the case of Hanuman Prasad Singh v. Deo Charan Singh  7 C.L.J. 309 where it was held that previous to the passing of the Transfer of Property Act tenancies of homestead land created for the purpose of habitation were not transferable except by custom or usage and that case further laid down that where there had been an implied surrender of the land and the former tenant had abandoned the land the landlord was entitled to take direct possession of it, The other case to which I am referred is the case of Ananda Mohan Salt v. Gobinda Chandra Ray  20 C.W.N. 322 which are not transferable either absolutely or by way of sub-lease (and so by a usufructuary mortgage).
4. In this view I must hold that the appellant has no title to remain on the land and that the appeal must stand dismissed with costs.
5. I agree.