1. This is an appeal on be-half of the plaintiff in a suit commenced by him for ejectment of the defendant under Section 49 of the Bengal Tenancy Act on the ground that he held under a lease the term whereof had expired. It appears that three persons, by name, Zahiruddin, Abdur Rahim and Samiruddin were tenants of a ryati holding. Samiruddin transferred his one-third interest in the holding to the plaintiff on the 9th May 1899, and took from him a sub-lease of the homestead for a term of 9 years. The case for the plaintiff is, that although the term has expired the defendant has not vacated the land. The defendant resists the claim on the ground that under the terms of the lease he is entitled to continue in occupation even after the expiry of the term thereof.
2. The Court of first instance held that the incidents of the tenancy were regulated by the provisions of the Bengal Tenancy Act and that under Section 49 Clause (a) the defendant was liable to be evicted. Upon appeal the Subordinate Judge has held that the incidents of the tenancy are regulated by the provisions of the Transfer of Property Act and the defendant is consequently not liable to be ejected.
3. In the present appeal it has been contended on behalf of the plaintiff that the view taken by the Subordinate Judge as to the applicability of the provisions of the Transfer of Property Act is erroneous and that the defendant is liable to be ejected under Section 49(a) of the Bengal Tenancy Act. In our opinion the view taken by the Subordinate Judge as to the applicability of the provisions of the Transfer of Property Act cannot be supported, but the decree he has made is correct and ought to be affirmed.
4. The Subordinate Judge has held that the holding which belonged to the three parsons named was an agricultural holding and that as the defendant has taken a sub-lease only of the homestead portion of the holding, the incidents of the sub-tenancy are governed by the provisions of the Transfer of Property Act. This position is clearly untenable. Section 182 of the Bengal Tenancy Act provides that when a raiyat holds his homestead otherwise than as part of hid holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage: and, subject to local custom or usage, by the provisions of the Bengal Tenancy Act applicable to land held by a raiyat. No suggestion was made by either of the parties to the present suit that there was any local custom or usage applicable to this matter. Consequently, the homestead portion of the holding is governed by the provisions of the Bengal Tenancy Act precisely in the same manner as the portion under actual cultivation. The view we take is supported by the decision in Baburam Roy v. Mohendra Nath Samanta 8 C.W.N. 454. It was ruled in that case that where the land included in the holding of an agricultural raiyat consists partly of agricultural and partly of home stead lands and the portion which is used as homestead, is let out for use as homestead, the under tenant is an under raiyat within the Bengal Tenancy Act and the provisions of the Transfer of Property Act have no application. Mr. Justice Mitra pointed out that the Bengal Tenancy Act was passed for the protection of raiyats as well as under-raiyats and if a raiyat holds lands partly agricultural and partly homestead the incidents of the holding will regulate the incidents of the sublease created by the raiyat. The Transfer of Property Act is not applicable to lands used for agricultural purposes and in considering whether the one Act or the other would apply, we have to look to the nature of the original tenancy and not the nature of the sub-tenancy with reference to a particular piece of land within the holding. If the contrary view were maintained, considerable anomaly might result. It follows, therefore, that the incidents of the tenancy of the defendant must be determined with reference to the provisions of the Bengal Tenancy Act. Now, it has been argued on behalf of the plaintiff that as the sub-lease of the 19th May 1908 was for a period of 9 years he is entitled to eject the defendants upon the expiry of the term. This contention, however, is not supported by the terms of the written instrument. The lease provides in one portion that the sub-tenant could not, at any time, be ejected from the raiyati holding of the landlord. In another portion, it provides that upon the expiry of the term of the qabuliat a fresh settlement would be made and till a fresh settlement was made the condition of the qabuliat would continue in force. These two Clauses taken together plainly indicate that the intention of the parties was not to have the tenancy terminable upon the expiry of the period of 9 years. The lease in fact was permanent: the true intention of the parties was that upon the expiration of the first nine years of the tenancy a new settlement of rent would be made and till such settlement was made, rent would continue to be paid at the rate mentioned in the contract. That a contract of tenancy of this description between a raiyat and an under raiyat is valid in law so far as the contracting parties are concerned, cannot be disputed in view of the decision of this Court in the cases of Tamijuddi v. Ajgar 36 C. 256 : 13 C.W.N. 183 : 1 Ind. Cas. 942; Bipin Bihari Hati v. Amrita Lal 9 C.L.J. 76 : 3 Ind. Cas. 685 and Manik Borai v. Bani Charan Mandal 13 C.L.J. 649 : 10 Ind. Cas. 469. The contrary view taken in Basaratulla v. Kasirunnessa 11 C.W.N. 190 cannot be supported, upon a true interpretation of the terms of Section 85 of the Bengal Tenancy Act. That decision is inconsistent with at least two previous decisions of this Court and, so far as we have been able to discover, it has not been followed in any subsequent decision. We may further point out that the effect of the Clause for the grant of a new lease upon the expiry of the term was to prevent the landlord from seeking to eject the defendant upon the expiry of nine years. This is conclusively shown by the decision of this Court in the case of Ali Mahomed Bepar v. Nyan Raja Bhuyan S.A. No. 906 of 1900 (decided by Rampini and Handley, JJ.). We are consequently of opinion that, although the incidents of the tenancy of the defendants are regulated by the provisions of the Bengal Tenancy Act under the terms of the contract between the parties, the plaintiff is not entitled to a decree for ejectment.
5. The result is that the decree made by the Subordinate Judge is affirmed, but not on the ground stated by him and the appeal is dismissed with costs.