S.K. Ghose, J.
1. The petitioner in this rule is the landlord of a holding which is alleged by him to be an occupancy raiyati holding. The case made by him is that the opposite party 2 and his co-sharers hold an occupancy raiyati holding at a rent of Rs. 5 per annum. The opposite party 2 sold his share of the holding to the opposite party 1 by a registered Kobala dated 18th Baisakh 1340 B.S. In this Kobala the tenancy was described as a 'Raiyati Kaimi Mukarari Jama' and according to the petitioner the term Mukarari' was wrongly used. He filed an application under Section 26-J, Ben. Ten. Act, for recovery of the proper landlord's fee, the fee having been already paid under Section 18 of the Act. The learned Munsif held that the tenancy of Rs. 5, of which a portion was sold by opposite party 2 was governed by the Transfer of Property Act and not by the Bengal Tenancy Act.
2. In this rule it is contended that the learned Munsif overlooked the provisions of Section 182, Ben. Ten. Act, and that he did not determine the main question, namely, whether the tenancy was 'Mukarari' as alleged by the opposite party or 'occupancy' as alleged by the petitioner. In the Settlement record the holding in question is described as 'Dakhalkar Basat' although the petitioner's interest is described as 'Ganti.' The learned Munsif took this to mean that the holding was not a holding under the Bengal Tenancy Act. On the other hand, certain Khatians, vide Ex. 4 series, have been filed to show that the tenant in question was possessing other lands in the village as settled raiyat. It is therefore contended that the learned Munsif should have held under Section 182, Ben. Ten. Act, that the tenant is a raiyat under the provisions of the Act with regard to the holding in question.
3. On behalf of the opposite party, stress is laid on the finding of the Munsif that the origin of the tenancy is known. It is pointed out that the petitioner deposed that the tenancy was created some fifty years ago which would be about 1883 at which time the Transfer of Property Act, and not the Bengal Tenancy Act, was in operation. But this is quite besides the mark in view of the plain terms of Section 182. According to that section, when a raiyat holds his homestead otherwise than as part of his holding, two things follow: (1) His status in respect of his homestead shall be that of a raiyat or an under-raiyat according to the status of the landlord, and (2) the incidents of his tenancy shall be governed by the Bengal Tenancy Act. In Raj Kumar Mandal v. Shib Chandra Mandal 1932 Cal 857, the second point was not in issue because no question was raised whether the tenancy was governed by the Bengal Tenancy Act or by the Transfer of Property Act. In the present case there is no doubt that the tenant is a raiyat holding his homestead otherwise than as part of his holding and that his landlord is a tenure-holder. That being so, with regard to the homestead the tenant becomes a raiyat under the Bengal Tenancy Act, The only question remains whether he is a mokarari raiyat. On this point there has been no investigation. I must therefore reverse the order of the learned Munsif and remand the case to the lower Court for determination of the question as to whether the tenant has the status of a mokarari raiyat. On determining this question the learned Munsif will proceed to decide the case finally. The rule is made absolute. There will be no order as to costs.