1. This appeal arises out of a suit for ejectment of the defendants, who are the respondents in this appeal, from a, piece of homestead land, under Section 49, Clause (b), of the Bengal Tenancy Act. The plaintiff-appellant is a raiyat and his holding consists partly of agricultural and partly of homestead land. He let out the homestead portion to the defendants. Although that portion is not agricultural, the incidents of the sub-lease held by the defendants would be governed by the provisions of the Bengal Tenancy Act having regard to the nature of the original tenancy of the plaintiff, and not by the Transfer of Property Act see Balm Ram Roy v. Mohendra Nath Samanla 8 C.W.N. 451 and Abdul Karim v. Abdul Rahman 13 Ind. Cas. 364 : 16 C.W.N. 618 : 15 C.L.J. 672. The defendants are, therefore, under-raiyats and are prima facie liable to be ejected under Section 49, Clause (b) of the Bengal Tenancy Act. The defendants, however, hold lands as a raiyat, not under the same landlord, but under a different landlord and in a different village contiguous to his homestead land. The Courts below have held that as the defendants are settled raiyats of the adjoining village, they have acquired a right of occupancy in the homestead under the provisions of Sections 20 and 182 of the Bengal Tenancy Act. The plaintiff has appealed to this Court.
2. Now Section 182 of the Bengal Tenancy Act lays down that 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 such local custom or usage, by the provisions of this Act applicable to land held by a raiyat.'
3. The meaning of the section is not clear. It is not easy to see why tile rights of persons who have nothing to do with the holding held by the raiyat should be affected in the mamier mentioned in the section when a raiyat takes from such a person a settlement of his homestead, the incidents of which would, but for the section, be governed by the provisions of the Transfer of Property Act, subject to custom or local usage. The Bengal Tenancy Act regulates the incidents of the holding of a raiyat, and does not appear to concern itself with relations which the raiyat may enter into with regard to properties other than the holding with other persons who have nothing to do with the holding. The words used in the section, however, are 'a raiyat' without any qualification, and it has been held in several cases that the provisions of the section are applicable to the homestead of a person who is a raiyat, although he does not hold his homestead under the same landlord under whom he holds his holding, and although his holding may be in a village different from that in which his homestead is situate, see Kripa Nath Chakrabutty v. Sheikh Anu 10 C.W.N. 944 : 4 C.L.J. 332 and Marihar Chattopadhyaya v. Dinu Bera 10 Ind. Cas. 139 : 14 C.L.J. 170 : 16 C.W.N. 536 and we are bound by these decisions. See also Protab Chandra Das v. Biseswar Pramanick 9 C.W.N. 416 (judgment of Geidt, J.) and Golam Mowla v. Abdool Sowar Mondul 9 Ind. Cas. 922 : 13 C.L.J. 255.
4. The learned Vakil for the respondent sought to distinguish the above cases on the ground that in those cases the incidents of the tenancy of the homestead would, but for Section 182, have been regulated by the provisions of the Transfer of Property Act, and as the intention of the Legislature is that the incidents of the homestead as well as that of the holding should be regulated by the Bengal Tenancy Act, Section 182 is applicable to those cases, but that in the present case, as the defendant holds his homestead as an under-raiyat, the provisions of the Bengal Tenancy Act are applicable to the homestead, apart from Section 182. And as the Bengal Tenancy Act provides for ejectment of an under-raiyat; those provisions should be made applicable, and that great anomalies would arise if the under-raiyati of the homestead were to be governed by the provisions of the Act applicable to land held by a raiyat.
5. Section 182, however, provides not merely that the provisions of the Bengal Tenancy Act would apply, but that the provisions of the Act applicable to land held by a raiyat shall regulate the incidents of the tenancy of the homestead. If Section 182 applies, as we must hold that it does, having regard to the decisions cited above, the provisions of the Bengal Tenancy Act applicable to a raiyat would regulate the incidents of the tenancy of the homestead, though the defendant has only the interest of an under buy with respect to it. It may lead to some anomalous results, but so would the application of Section 182 to the cases cited above, and the present case cannot be distinguished on principle from the said cases.
6. It is unnecessary to consider in the present case whether the defendants have acquired a right of occupancy in the homestead, because if the incidents of the homestead are to be regulated by the provisions of the Act applicable to land held even by a non-occupancy raiyat, the defendants cannot be ejected under the provisions of Section 49.
7. The appeal is dismissed, but we make no order as to costs.