1. I am of opinion that this application for review ought not to succeed. It raises a point which was never put forward by the petitioners either in this Court at the hearing of the appeal before me or in any of the Courts below. The point which they now seek to put forward arises in this way. The suit was one for ejecting the petitioners from a plot of homestead land. The question which was canvassed as being of prime importance in all the Courts up to the decision which is now sought to be reviewed was whether the defendants tenancy was governed by the Transfer of Property Act or by the Bengal Tenancy Act. Various contentions were put forward in support of the position that it was the Bengal Tenancy Act, that applies to the tenancy and this position was sought to be reputed upon various grounds: res judicata and things of that sort. It has been found by this Court in the judgment which is sought to be reviewed that there is nothing which would justify a decision to the effect that the Bengal Tenancy Act applies to the tenancy, nor that, is there anything to show that if the tenancy is governed by the Transfer of Property Act, it can be regarded as a tenancy for agricultural purposes. It has now been contended on this application for review that upon the facts stated in the plaint itself it is clear that the original tenancy, out of which this sub-tenancy has been carved out, was a tenancy governed by the Bengal Tenancy Act and that therefore the sub-tenancy also should be governed by that Act. Two decisions of this Court have been relied upon for this purpose. One is the case of Babu Bam Boy v. Mahendra Nath (1904) SCWN 454 in which it was held that where the lands included in the holding of an agricultural raiyat consisted partly of agricultural and partly of homestead lands, and the portion which could be used as homestead was let out to a sub-tenant for use as homestead, then the under-tenant was an under-raiyat within the Bengal Tenancy Act and that the Transfer of Property Act has no application to the case.
2. The other decision is the case of Ram Pado v. Atore Dome : AIR1925Cal202 , in which it was held following the case of Babu Ram Roy v. Mahendra Nath (1904) SCWN 454 to which reference has just now been made, that in the absence of a local custom or usage, the homestead portion of an agricultural holding is governed by the provisions of the Bengal Tenancy Act precisely in the same manner as the portion under actual cultivation; that the question whether a case is governed by the Bengal Tenancy Act or the Transfer of Property Act depends upon the nature of the original Tenancy and not on the character of the parcels included in the subtenancy; and that for this it is enough to look into the incidents of the original tenancy when the sub-tenancy is created. Now in the plaint it was stated that the original tenancy consisted of several plots some of which were agricultural and some homestead. And from this it has been argued that it must be taken therefore that the original tenancy was one governed by the Bengal Tenancy Act. This position I am not prepared to assume. It is quite true that agricultural holdings are governed by the Bengal Tenancy Act, but then nothing else is known of the parent tenancy except that it has been found that a portion of the land was used for homestead purpose and another portion for agricultural purpose.
3. In such circumstances, the question as to whether the tenancy was originally agricultural or not is a question which would depend on an investigation into facts. If this point had been taken in the pleadings and proper issues had been raised, it might have been open to the plaintiff to show that the tenancy was not one which was created for agricultural purposes. The point not having been taken, such an opportunity was not given to the plaintiff; and I am not of opinion that it can be assumed from the statement in the plaint referred to above that the original tenancy must necessarily be regarded as having been created for agricultural purposes. If it could be so regarded, then undoubtedly, in the absence of anything else, if a sub-tenancy was created in respect of either an undivided share or specific parcel, the subtenancy would have partaken of the character of the original tenancy. An investigation into various questions of fact, namely, the incidents of the parent tenancy, the purpose for which it was created, and custom, etc., would be necessary. While there can be no dispute as regards the proposition of law laid down in the two cases on which the petitioners rely, I do not think I should be justified in giving effect to the contention which has been thus raised on behalf of the petitioners. Besides, I am very doubtful whether on a ground like this, which was not taken at any previous stage of the suit or of the appeal in the Court below or in this Court, the application for review can be regarded as being maintainable.
4. It may be stated here that the 15 days notice on the basis of which the suit in ejectment was instituted was served on the petitioner so far back as on 7th March 1928, roughly corresponding to 23rd Falgoon 1334. The decision of this Court was passed on 28th July 1932 and we are now in February 1933. I do not see that the petitioners can complain of any hardship on the ground of insufficiency of notice, even if it be held that the notice was not sufficient. The result is that this application for review, in my opinion, ought to fail. It is accordingly dismissed. There will be no order for costs.