1. This is an appeal by the defendant in a suit for ejectment utter six months' notice to quit. The plot of land in question measures some 4 cattahs. The defendant's case was that his tenancy did not consist of only this plot of 4 cattahs but that it was one of 7 1/2 cattahs and that it was his ancestral tenancy. The plaintiffs' case was that a portion of the whole holding, namely, 3 1/2 cattahs, being the northern portion, was the ancestral bari of the defendant and that the defendant's father took a settlement of the 4 cattahs on the south some 20 or 22 years before the suit. The first Court found that there was no evidence as to this settlement and it dismissed the suit. On appeal the learned Subordinate Judge, after stating that there was no evidence as to certain matters which might affect this question of separate settlement, came to the conclusion that originally the whole of the 7 1/2 cattahs formed one holding, that after many years there had been a division of the holding and that now two separate holdings have been formed out of the original holding of 7 1/2 cattahs. His finding is in the following terms: 'The only reasonable probability is that the defendant's portion of the bari formed a separate jama by mutual consent. Whatever might have been the nature of the bari over 20 years ago, 'it was not one and was not treated as one from sometime before 13C9 and the southern portion of the bari, that is, the 4 katta bari in suit, formed a separate jama of the defendant, under the plaintiffs,'
2. The first point taken in appeal is that whatever arrangement the tenants of the original 71/2 cattuhs might have come to between themselves, there can be no formation of two separate holdings without the consent of the landlord; and of that consent there is no evidence, and the learned Vakil points to the passage in which the learned Subordinate Judge says that there is no evidence of realisation of rent from the defendant. It seems to me that the passage, which I have quoted above, amounts to a finding not merely of an arrangement between the owners but of an arrangement with the consent of the landlord.
3. There is evidence which might indicate, consent on the part of the landlord in the fact that sometime previously he sued the defendant for rent in respect of the smaller plot, although the final result of that suit was that it was decreed on the defendant's admission as to the rate of rent, the defendant declaring that the holding was one of 7 1/2 cattahs'. The first point taken in my opinion fails.
4. Then another point is taken that the incidents of the holding are governed by the Bengal Tenancy Act, and not by the Transfer of Property Act. The learned Subordinate Judge remarked that if the Tenancy Act be applicable, the defendant could not acquire a right of occupancy within the meaning of Section 182 of the Bengal Tenancy Act, as he has not proved that he was an occupancy raiyat of the village. There has been a series of cases to which it is unnecessary to refer in detail. They are summarised in the case of Bhikariram Bhagat v. Maharaj Bahadur Singh 34 Ind. Cas. 152 : 43 C. 195 : 25 C.L.J. 327, in which it was pointed out that to obtain the protection of Section 182 of the Bengal Tenancy Act it is not necessary that the raiyat should hold his land as a raiyat in the same village. In view of this decision the argument of the learned Subordinate Judge would not seem to be sound. But in order to obtain the protection of Section 182 of the Bengal Tenancy Act the defendant must establish that he is a raiyat. Therefore, the point remains to be seen whether he has done so. The only land in respect of which he claimed to be a raiyat is this plot of land of 7 1/2 cattdhs in regard to which it has already been found that he is now a tenant only of one portion, namely, the southern portion of 4 cattahs, I am told that the defendant does not claim to be a raiyat in respect of any other land. But unless it is shown that the defendant is a raiyat of other land, he cannot seek protection under Section 182 of the Bengal Tenancy Act.
5. In regard to the question which Act applied, the learned Subordinate Judge negatived the view of the first Court which remarked that it was difficult to see that the suit was governed by the Transfer of Property Act, because he found-that this piece of land had been used for three generations as homestead land. Of course the mere fact that the defendant was a trader would not debar him from being treated as a raiyat but the finding of fact, as I have pointed out is, that this land is homestead land. That being so, in the- absence of any evidence that the defendant is a raiyat in respect of other land, Section 182 would not apply and (he case would be governed by the Transfer of Property Act.
6. That being so, the defendant can he ejected after this months' notice to quit. As regards notice there is no question.
7. This appeal is, therefore, dismissed with coats.