R.C. Mitter, J.
1. The subject-matter of this suit is an area of two cottas of land in the town of Rampurhat. The said plot was originally held by one Krishna Dhone Dutt as a tenant. In 1895 Krishna Dhone sold the same to Rasik who in his turn sold the same in 1306 to one Kunja Ghose. Kunja Ghose thereafter sold the same to one Purna Ghose, the sister's husband of the plaintiff and defendant 2 who are brothers. It is the common Case of the parties that Purna Ghose was not the beneficial owner but was the benamidar, the case of the plaintiff being that he was his benamidar as well as the benamidar of his brother defendant 2. The case of defendant 1, however, is that he was the benamidar of defendant 2 alone. Both the Courts below however have found that Purna Ghose was the benamidar of the plaintiff and his brother, defendant 2, with the result that the beneficial interest in the property vested both in the plaintiff and defendant 2 in equal shares. In the year 1323 B.S. defendant 2's name only was mutated in the landlord's sherista. In the finally published record of rights both the plaintiff and defendant 2 were, however, recorded as in possession. On 15th April 1929, the landlord instituted a rent suit being rent suit No. 809 of 1929 against defendant 2 alone who was the only tenant recorded in his sherista. The claim in that suit was for arrears of rent from 1332 to 1335 B.S. He recovered a decree and in execution of that decree the property was put up to sale and was purchased by defendant l. The plaintiff thereupon brought this suit for a declaration that his 8 annas share in the property has not been affected by the alleged rent sale of the landlord at which defendant 1 had purchased, as he was not made a party to that rent suit. This question would depend upon two considerations: (1) whether the tenancy is governed by the Bengal Tenancy Act and (2) if it was so governed, whether defendant 2, who was the sole defendant in the rent suit, could be said to have represented in that suit his brother, namely the plaintiff.
2. On the first point the learned Subordinate Judge has come to the conclusion that the tenancy in respect of which the rent suit had been brought was a non-agricultural tenancy, that is to say a tenancy not governed by the provisions of the Bengal Tenancy Act. On this finding the question as to whether defendant 2 represented his brother in the rent suit was not material. But the learned Subordinate Judge went into that question also and recorded a finding that defendant 2 could not be said to have represented his brother, the plaintiff, in the rent suit inasmuch as the landlord was bound to make the plaintiff a party defendant also, he having paid rent to the landlord along with his brother, defendant 2, on 30th of Pous 1331, that is to say within the period of three years of the claim for rent made in the said rent suit. He accordingly came to the conclusion that even assuming that the tenancy in question was governed by the Bengal Tenancy Act, the decree passed in the rent suit had not the effect of a rent decree and the sale held in execution thereof was not. a sale held under Ch. 14, Ben. Ten. Act, as the plaintiff had not been impleaded as a defendant in the rent suit. I now proceed to examine whether these two conclusions of the learned Judge are sound.
3. The learned Subordinate Judge has recorded the finding that the origin of the tenancy cannot be traced, that is to say, there is no evidence to show the express purpose for which the lands were taken settlement of by Krishna Dhone Dutt. He further recorded the finding that it is bastu land but neither defendant 2 nor the plaintiff ever lived on the land. They have their homesteads in other lands. The evidence of user, therefore, assumes importance. On that point the learned Subordinate Judge has recorded the finding that the plaintiff and defendant 2 have other raiyati lands near about, that they gather the crops from their raiyati lands and store the produce on the land in suit. Notwithstanding the aforesaid findings he came to the conclusion that the tenancy was a non-agricultural tenancy governed by the provisions of the Transfer of Property Act. I cannot agree with his conclusion. A tenancy in respect of lands held for agricultural purpose would come within the purview of the Bengal Tenancy Act. It is not necessary that the land of the tenancy should be arable land. If the land is held for a purpose incidental to agriculture, it would still be governed by the Bengal Tenancy Act. A land which has been taken by a raiyat for the purposes of storing produce from the other lands cultivated by him would be within the purview of the Bengal Tenancy Act. This view has been taken in Dinonath Nag v. Sashi Mohan De ('16) 3 AIR 1916 Cal 730. I accept the view adopted in that case.
4. I accordingly hold that the tenancy in question is governed by the Bengal Tenancy Act. In this view of the matter, it is not necessary to consider the further argument advanced by Mr. Banerji appearing for the appellant that Section 182, Ben. Ten. Act, applies. But I may say in passing that if I had held that the tenancy was not for agricultural purposes, I would not have applied to this case the provisions of Section 182, Ben. Ten. Act. The word 'homestead' used in Section 182 means the place where the raiyat actually resides. If there is a piece of bastu land which is not held as a part of an agricultural tenancy and on which the raiyat does not actually reside, Section 182 would not be attracted. .
5. The question, therefore, that now remains for consideration is whether defendant 2 could be said to have represented the other cosharer tenant in the rent suit of 1929 which the landlord instituted against him. In this case that question would depend upon the interpretation of Section 146A, Sub-section (3). For it is not the case of the parties that other circumstances are present here from which a conclusion of fact could be drawn to the effect that defendant 2 had, in fact, represented in the rent suit his brother, the plaintiff. In Maharaja Sashi Kanta v. Lechoo Sheik ('36) 23 AIR 1936 Cal 30 and Ayesha Khatun v. Mohammad Hossain Mollah ('36) 41 CWN 85 held that the sub-clauses of Sub-section (3) of Section 146A must be read in a disjunctive way. That view was accepted by M. G. Ghose J. sitting singly in Nagendra Nath Sinha v. Niranjan Patra : AIR1937Cal665 . The matter was considered further by a Division Bench of this Court (M. C. Ghose and Bartley JJ.) in Amulya Charan Misra v. Pran Krishna Adhikary : AIR1938Cal531 . That Division Bench pointed out that in my judgments I had used some loose expressions. As this is the first opportunity which I have in explaining my previous judgments, I think it proper to admit that the said criticism was right. After giving the matter full consideration and in view of the later decisions of this Court bearing upon Section 146A, Sub-section (3), I think that the proper interpretation of that sub-section is that the four sub-clauses must be read in a disjunctive way. But I should like to add a proviso. If the rent suit has been insti-tuted by the landlord against a person falling within any one of the descriptions in any one of the said four sub-clauses and gets a decree that decree would be regarded as a rent decree and the sale in execution thereof as a sale under chapter 14, Ben. Ten. Act, provided that the parties who had interest in the tenancy and who had been left out of the suit did not fall within any one of the categories described in the other three sub-clauses of Sub-section (3). That is the qualification -and I think that that is a necessary qualification-which I make to the view which I had expressed in the two cases, namely Maharaja Sashi Kanta v. Lechoo Sheik : AIR1936Cal30 and Ayesha Khatun v. Mohammad Hossain Mollah ('36) 41 CWN 85.
6. In this case defendant 2 was the recorded tenant. Therefore, he fell within Clause (iv) of Sub-section (3) of Section 146A. But the plaintiff fell within clause (ii) of Sub-section (3) of Section 146A, because he had paid in respect of the tenancy rent during three years previous to that for which rent suit No. 809 of 1929 had been instituted by the landlord. Such being the case, I hold that the decree passed in that rent suit had not the effect of a rent decree within the meaning of the Bengal Tenancy Act and the sale in execution of that decree had not the effect of a sale under chap. 14, Ben. Ten. Act. The plaintiff's title, therefore, has not been affected by the sale at which defendant 1 purchased the holding. In this view of the matter I affirm the decree of the learned Subordinate Judge. The appeal is accordingly dismissed but there will be no order as to costs.