1. In this case the plaintiff sues to recover possession of a small plot of homestead land. He alleges that this plot of land formerly formed part of a jote, which belonged to an old resident cultivator named Haril Kahar. It devolved on his heir, Khuban, who sold the jote to defendant No. 5, who sold it to defendant No. 6, who sold the homestead land only to the plaintiff. The plaintiff then took possession but was dispossessed by the defendant No. 1 who is one of the landlords of the land--the others being defendants Nos. 1 to 3. Both the lower Courts have found that the plaintiff was dispossessed more than two years before suit, and that the suit, therefore, is barred by the two years' rule of limitation laid down in Article 3, Schedule III of the Tenancy Act. The plaintiff now impugns this finding. The question then is 'does the plaintiff sue as an occupancy raiyat'
2. I do not think that he does. He does not do so expressly. He is a cultivator, it is true. But the land which he has purchased, and which he seeks to recover, possession of, is homestead land. Now, under Section 182 when a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of it shall be regulated by local custom or usage by the provisions of the Act applicable to land, held by a raiyat. But the plaintiff does not profess to hold the homestead land in dispute as part of his own jote, if he has any, and it is no longer part of the old jote of Haril Kahar, for the defendant No. 6 retained the agricultural land of' that jote in his own possession or at all events, he did not sell it to the plaintiff when he sold him the homestead land. The old jote of Haril Kahar was, it seems, I bigha 10 cottahs in extent. That being so, the plaintiff holds his land otherwise than as part of his holding as a raiyat and the incidents of his tenancy of it must be regulated by local custom or usage and, subject to local custom or usage, by the provisions of the Act. In this case no local custom or usage has been set up in the plaint. Therefore the provisions of the Act are applicable to the land. But under the Act the plaintiff can only have an occupancy right in the land if (1) he is a settled raiyat of the village or (2) has occupied the land in suit for 12 years, or (3) the land in question is the subject of an occupancy right transferable by local custom against the will of the landlord. Now (1) the plaintiff in his paint does not call himself either a settled raiyat or an occupancy raiyat; (2) ex-hypothesi he has not occupied the disputed plot of homestead land for 12 years; and (3) it is not alleged that the land is the subject of an occupancy right transferable by custom. It may be that Haril Kahar had an occupancy right in the jote but it is not alleged, far less proved, that it was one transferable by custom against the will of the landlord. Therefore, the plaintiff can have no occupancy right in the land in suit. He cannot bring this suit as an occupancy raiyat and the two years' rule of limitation laid down in Article 3, Schedule III, of the Act is not applicable.
3. I accordingly set aside the finding of the lower Appellate Court, and remand the case for a decision on the other issues arising in it. Costs to abide the result.