1. One Umacharan Rai and one Sobhan Biswas owned a raiyati jama to which the lands of the present suit appertains of which they granted a lease to one Baburam Karal in 1290. Baburam left two sons Judhisthir and Gayanath. The plaintiff purchased the lands by a kobala from Judhisthir in 1326 and from Gayanath's widow in 1333. In 1304 Gayanath had granted a permanent lease in respect of the lands to one Tarachand Dhupi, and some persons, alleging themselves to be the heirs of the said Tarachand Dhupi, granted a permanent lease of the lands to defendants 4 and 9 in 1332. The plaintiff instituted the present suit for recovery of khas possession of the lands on which stands a homestead. The defence taken was that the case was governed by the Transfer of Property Act, that the suit was not maintainable without service of notice, that Tarachand Dhupi had transferable and heritable rights and the defendants' permanent lease from Tarachand's heirs would protect them from eviction.
2. In the last cadastral survey and settlement the superior landlords Umacharan Roy and Sobhan Biswas were recorded as settled raiyats; and the plaintiff's vendors as well as one Saroda Sundari, who is said to have been a mistress of Tarachand, were recorded as korfa raiyats with customary rights of occupancy. The plaintiffs' case rests on the state of things as shown in the record of the said settlement, that is to say, that Tarachand was himself an under-raiyat and so any permanent lease granted by his heirs is not of any avail as against the plaintiff. The Munsif held that the Transfer of Property Act would govern the tenancy of Tarachand Dhupi. On this view and upon other findings that he arrived at, the Munsif dismissed the suit. The Subordinate Judge was of opinion that the Bengal Tenancy Act was applicable to the tenancy and accepting the plaintiffs' ease he reversed the Munsif's decision and decreed the suit. Defendants 4 and 9 have appealed. The question to be considered is whether it is the Transfer of Property Act or the Bengal Tenancy Act that is applicable.
3. I have read the relevant documents relating to this tenancy, viz., Ex. 2, the lease of 1290, by Uma Charan Rai and Sobhan Biswas to Baburam Karal; Ex. 3 the kobala of 1326 by Judhisthir to the plaintiff; Ex. 4 the kobala of 1333 by Gayanath's widow to the plaintiffs; Ex. A, the lease of 1304, in favour of Tarachand Dhupi, and Ex. B, the sub-lease of 1332 by Tarachand Dhupi's alleged heirs in favour of the defendants. Leaving aside the more recent of these documents which, it may be said, are of no assistance in determining the question we have to consider, the documents Ex. 2 and Ex. A are of importance. The Munsif has dealt with these two documents very fully in his judgment and has stated in detail the inferences to be drawn from them. He has also referred to the other circumstances connected with these demises with commendable care. It would be sufficient for me to say, instead of repeating what he has said, that I entirely endorse the view that he has taken. The Subordinate Judge was in error in supposing that as the superior holding of Umacharan Roy and Sobhan Biswas was an agricultural holding the subordinate holding created out of it must be governed by the incidents which belonged to it. That may be so in a case in which the subordinate holding has been created since the Bengal Tenancy Act came into being. In the present case whatever the character of the parent holding may have been, the tenancy that was created in 1290 (prior to the passing of the Bengal Tenancy Act and at a time when the Transfer of Property Act had come into existence) was created expressly for residential purposes, and in favour of a person who was not an agriculturist by occupation but a fisherman and who has not been shown to have had any lands for purposes of cultivation, and there is no indication anywhere that these lands were put to agricultural use at any time. It is true that the settlement records are in plaintiff's favour; but whatever presumption may arise upon them it has, in my judgment, been amply rebutted.
4. The appeal is allowed. The decision of the Subordinate Judge being set aside, the case is sent back to his Court so that the other questions arising in the case may be dealt with and the whole appeal in that Court be disposed of on the footing of the case being governed by the Transfer of Property Act. Costs of this appeal will abide the result of the remand.