1. This appeal arises out of a suit brought by the plaintiffs-appellants for the ejectment of the defendant-respondent from two parcels of land in Mouzah Sonatakari in the District of Hooghly. It is admitted here--as it apparently was also in the lower Appellate Court--that the action was bound to fail, if the case was governed by the provisions of the Bengal Tenancy Act, 1885, but that it ought to have succeeded, if it was not. The only question for my decision, therefore, is as to whether both the Courts below were right in holding that Act applicable.
2. The facts, in so far as they are material and have been found, are these. The respondent is himself a raiyat of the village, in which he had, and has, both a homestead and an agricultural holding. The two parcels in suit are situated near his old homestead, and he acquired them separately by purchase from the respective raiyat to whose homesteads they originally belonged. He has since been cultivating them and paying rent to the appellants who are the landlords: and there is no local custom or usage, such as is referred to in Section 182 of the Tenancy Act, to be considered in connection with the matter.
3. In these circumstances, I should have thought it hardly possible seriously to suggest that the law applicable is not the Tenancy Act. But the learned Vakil for the appellants contends that it is not that. Act, but the Transfer of Property Act, 1882, that ought to have been applied; and the following I understand to be his argument.
4. The disputed parcels were homestead lands, and, as the learned Subordinate Judge has himself observed,--their cultivation by the respondent could not change their character. They are still homestead lands.
5. Prima facie, the Transfer of Property Act applies in the case of such lands, and it is only by virtue of Section 182 of the Tenancy Act that the provisions of the latter can have any application to them.
6. But Section 182 is of no avail to the respondent because the parcels are not 'his homestead,' and that is all that the Section touches. ' Homestead' means the steads or place of a dwelling house; and these parcels which once formed the homesteads of others, are not the respondent's homestead, though they are close to it. They are his homestead lands; but not 'his homestead.'
7. Therefore, the Tenancy Act did not govern the case, and ex concesso, the suit ought to have been decreed.
8. This argument may be ingenious, but it is certainly unsound.
9. In the first place, it begins with the gratuitous introduction of novel and extraordinary class of land; land, which is 'homestead land,' but nevertheless appertains to no-body's 'homestead.' The idea is somewhat elusive, and I confess it is beyond me to grasp it.
10. In the second place, I can find no authority either for the assumption of 'once homestead, always homestead', or for the postulate that homestead lands come within the scope of the Tenancy Act only through the operation of Section 185. I see no reason why even the site of a dwelling house should not, on the disappearance of the building, become an ordinary holding; and I can find nothing in the Tenancy Act to remove homestead lands generally from its operation. On the contrary, it seems to me that the test is not homestead or non-homestead, but agricultural or non-agricultural, and that the Act applies to all lands in a village which are, as a matter of fact, for the time being held as agricultural (or horticultural) land. On the facts before me, these parcels undoubtedly are of this latter description.
11. Thirdly, the first and third of the learned Vakil's premises, taken together, point to a conclusion the opposite of that deduced by him. For, if the disputed parcels have remained homestead, they must be the respondent's: they are no longer his vendor's, but have become 'his homestead,' and consequently Section 162 and the other provisions of the Tenancy Act apply.
12. Finally, the appellant's argument leads them in another quandary. Admittedly, the respondent is the tenant in occupation of these parcels, which, it has been found, he is cultivating: and he has an old homestead in the village. Now, either the parcels are so close to that homestead as to have become a portion of it, or they stand apart and are held separately. In other words, they must be either homestead or not homestead. If they are homestead, cadit qusaetio. If they are not, what are they, and how are they held? I cannot accept the new classification suggested and above alluded to, and the only rational reply seems to me to be that these parcels, whatever they have been once, are now agricultural or horticultural lands held by the respondent under the ordinary tenancy law.
13. I have been referred to the case of Abdull v. Kutban S.A. No. 1376 of 1895 of which a brief note is to be found in 1 C.W.N. at p. clxxi. There the plaintiff had sued to recover possession of the basti land and house (in other words, the homestead) of another villager, which he had purchased alone and held apart from his own jote (if he had a jote, as to which there was no finding). The learned Judge (Rampini, J.) held expressly that Section 182 and the other provisions of the Tenancy Act applied; but the crucial question before him was one of limitation1 and he ruled that the suit was not, as had been suggested, barred by Article 3 of Schedule III (which then referred to occupancy-ryots only), because the plaintiff was not, and had not professed to be, an occupaucy-ryots. In so far then as that case can be said to be in point at all, it appears to tell against the appellants.
14. On the other hand, the view I favour seems to be supported by the ruling in another unreported case Munshi Golam. Mowla v. Abdul Sowar Mondol S.A. No. 1078 of 1892 decided on the 16th. May 1893. That was the case of a settled ryot of a village who had taken a plot of homestead land in it distinct from his agricultural land, and it was held by Rampini, J., applying Section 182 of the Tenancy Act, that the ryot had a right of occupancy in the land under Section 21 of the same.
15. I think, then, that this appeal should be dismissed with costs.