R.C. Mitter, J.
1. This appeal is on behalf of the plaintiff whose suit for ejectment has been dismissed. It is admitted that the land in suit which is a piece of homestead land together with other arable lands formed the raiyati holding of one Rati Kanta Buna. The raiyati holding of Rati Kanta Buna comprised an area of 3 bighas 12 cottas of land bearing a rental of Rs. 1-8-0 per year. It comprised of two plots of land, one homestead plot and the other consisting of agricultural lands. When this raiyati holding was created, there is no evidence. It may be that it was created long before the passing of the Bengal Tenancy Act. Rati Kanta had let out the lands to one Narendra Nath Bishnu. Narendra Nath Bishnu's tenancy comprised both agricultural lands and the homestead. It was an agricultural lease. There is no evidence when this under raiyati in favour of Narendra Nath Bishnu was created. It may be before the passing of the Bengal Tenancy Act. The plaintiff has purchased the interest of Narendra Nath Bishnu. After his purchase the plaintiff found the defendants to be in occupation of the homestead portion as tenants under Narendra Nath. He instituted a suit against the defendants for possession and on April 30, 1923, a consent decree was passed. The defendants recognised the title of the plaintiff and agreed to vacate the land which was the subject-matter of the suit. In pursuance of that decree the plaintiff took possession through Court. On January 8, 1926, however, the defendants took a fresh lease of 6 cottas out of the aforesaid 12 cottas of land which is the homestead. This lease is Ex. 2. In the lease it was provided that the tenants will quit the land when required by the landlord. In a subsequent rent suit between the parties this lease was established and held, to be binding on the plaintiff and the defendants. The plaintiff instituted the present suit in ejectment after giving the defendants a notice to quit under the provisions of Section 106 of the Transfer of Property Act. One of the defences taken was that the notice is invalid inasmuch as the incidents of the tenancy created by the lease Ex. 2 is governed by the provisions of the bengal Tenancy Act and the notice which has been given is accordingly not a valid notice. The lower Appellate Court has held that the incident of the tenancy are governed by the provisions of the Bengal Tenancy Act and in that view of the matter has held the notice to be insufficient and has dismissed the plaintiff's suit. It is admitted that if the incidents, of the tenancy are to be governed by the provisions of the Bengal Tenancy Act, then on this ground alone the judgment passed by the learned Subordinate Judge would be a correct judgment.
2. Exhibit 2 does not define the purposes of the lease. But it is admitted that the subject-matter of the demise is a piece of homestead land. From the fact that the demised premises is a piece of homestead land used for the purpose of residence the plaintiff has argued that the provisions of the Transfer of Property Act is applicable. Two other points have been taken before me. They are first that the question as to the nature of the tenancy created by Ex. 2 is concluded by constructive res judicata by reason of the consent decree passed on April 30, 1923, and by reason of the decree passed in the rent suit brought on the basis of Ex. 2. The second additional ground taken before me is the ground of estoppel. Now, the question of res judicita was not raised in any of the Courts below. How the compromise decree passed on April 30, 1933, would be res judicata on the nature of the tenancy created by Ex. 2 it is difficult to say. The lease evidenced by Ex. 2 had been created about 3 years after the date of the said consent decree. With regard to the question of res judicata raised on the basis of the decree passed in the rent suit there is this difficulty that the point was never taken in the Courts below. The pleadings of that suit are not on the record. It would be, therefore, wrong on my part to allow the said question of res judicata to be mooted for the first time in second appeal. I accordingly overrule the said point.
3. With regard to the ground of estoppel it seems that an issue was framed by the Court of first instance, being issue No. 3. But the learned Munsif remarks that that issue was not pressed before him. Moreover, there is nothing on the record to show how the principle of estoppel could be invoked in the case before me. I accordingly hold that there is no substance in this ground also.
4. With regard in the first ground, namely, as to whether the incidents of the tenancy created by the lease Ex. 2 are governed by the provisions of the Bengal Tenancy Act or the Transfer of Property Act the facts found are that Rati Kanta's holding was a raiyati holding. Narendra's holding was the holding of an under-raiyati, the homestead portion from that under-raiyati holding was carved out and let out to the defendants on January 8, 1926. In these circumstances I hold on the authority of a series of cases beginning with the case of Babu Ram Roy v. Mahendra Nath Samanta 8 C.W.N. 454, that the incidents of the tenancy in suit will be governed by the provisions of the Bengal Tenancy Act and the view taken by the learned Subordinate Judge is the correct view.
5. Mr. Ghose appearing on behalf of the plaintiff-appellant has placed before me the case of Banwari Lal Saha v. Kalidas Saha : AIR1933Cal643 . There two persons Uma Charan Roy and Sobhan Biswas held a raiyati jama before the passing of the Bengal Tenancy Act. They let out the homestead portion of the raiyati jama to Judisthir and Gaya Nath in the year 1290. Gaya Nath let out the homestead portion in permanent lease to one Tara Chand Dhupi in the year 1301. The plaintiff purchased the interests of Judisthir and Gaya Nath in the years 13. 6 and 1333, respectively. Hs wanted to get possession from the heirs of Tara Chand Dhupi and his case was that inasmuch as the homestead portion was carved out of the agricultural holding belonging to Uma Charan and Sobhan Biswas, the incident of the tenancy was governed by the Bengal Tenancy Act and the lease to Tara Chand Dhupi being by an under raiyat namely by Gaya Nath in contravention of the provisions of Section 85 of the Bengal Tenancy Act was void. Mr. Justice Mukerji pointed out that the provisions of the Transfer of Property Act would apply to the tenancy created in favour of Tara Chand Dhupi. This case is distinguishable because in the year 1290 the homestead portion only was let out to Judhisthir and Gaya Nath that is to say; the homestead portion out of the raiyati holding was let out to a person before the passing of the Bengal Tenancy Act and Mr. Justice Mukerji held that inasmuch as the said lease to Judhisthir and Gaya Nath had been created before the passing of the Bengal Tenancy Act, the incidents of the tenancy of Judhisthir and Gaya Nath would be governed by the Transfer of Property Act, that is to say, Judhisthir and Gaya Nath would not be under-raiyats within the meaning of the Bengal Tenancy Act but tenants whose rights would be governed by the provisions of the Transfer of Property Act and Tara Chand Dhupi accordingly would not be an under-raiyat of the second degree because Judhisthir and Gaya Nath were not under-raiyats of the first degree. I accordingly hold that the case of Banwari Lal Saha v. Kalidas Saha : AIR1933Cal643 , is distinguishable from the facts of the present case. In this case admittedly Narendra Nath Bishnu was an under-raiyat and the homestead portion from, the aadei-raiyati holding of Narendra Nath was carved out and settled with the defendants after the passing of the Bengal Tenancy Act. Therefore, the incidents of the tenancy of the defendants under the plaintiff would be governed by the provisions of the Bengal Tenancy Act and the defendants would be under-raiyats of the second degree. In this view of the matter it is not necessary to decide whether the provisions of Section 182 of the Bengal Tenancy Act could be invoked by the defendants, and whether they have occupancy rights in the land or not is a matter which need not be gone into, that question is left open to be decided between the parties if and when occasion arises.
6. The result is that this appeal must be dismissed with costs.