1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for ejectment.
2. The Trial Court decreed the claim. That judgment was reversed on appeal by the District Judge and the decision of the District Judge has been affirmed by Mr. Justice Newbould. The substantial question in controversy is, whether the status of the defendant is to be determined by reference to the provisions of the Transfer of Property Act or the Bengal Tenancy Act. Upon this matter, the Courts below were divided in opinion while the Court of first instance holds that the provisions of the Transfer of Property Act were applicable, the District Judge has held that the provisions of the Bengal Tenancy Act govern the case. The answer to the question depends upon the previous history of the land in suit.
3. It is not disputed that the tenancy of one Patal Sheik, who held an area of 10 cottahs under the superior landlords, was purchased by the father of the plaintiffs. Out of the 10 cottahs, 4 cottahs was let out by the purchaser to the defendant. The plaintiff now seeks to eject the defendant after service of notice to quit in accordance with the provisions of the Transfer of Property Act. The defendant contends that he is entitled to the benefit of the provisions of the Bengal. Tenancy Act. The District Judge has found that the origin of the tenancy of Patal Sheik is unknown and that the purpose for which it was created cannot be Ascertained at this distance of time Since the time of Patal, the 10 cottahs purchased by the predecessor of the plaintiffs has included homestead land besides agricultural and horticultural lands. This is a finding of fact which cannot be challenged in second appeal. The position consequently is that when the sub-tenancy in favour of the defendant was created, although the grant included only the homestead portion of the land comprised in the tenancy, still the tenancy taken as a whole included agricultural and horticultural lands. These facts make, applicable the principle enunciated in Babu Ram Roy v. Mahendra Nath Samanta 8 C.W.N. 454. That principle is that, in the absence of a local custom or usage, the homestead portion of an agricultural holding is governed by the provisions of the Bengal Tenancy Act, precisely in the same manner as the portion under actual cultivation. From this it follows that the answer to the question, whether a case of this description is governed by the Bengal Tenancy Act or by the Transfer of Property Act, depends upon the nature of the original tenancy and not on the character of the parcels included in the sub-tenancy. This view was followed in the cases of Abdul Karim v. Abdul Rahman 13 Ind. Cas. 364 : 15 C.L.J. 672 : 19 C.W.N. 611 and Krishna Kanta Ghosh v. Jadu Kasya 28 Ind. Cas. 839 : 21 C.L.J. 475 : 19 C.W.N. 948. We are further of opinion that it is not necessary to investigate the actual origin of the tenancy it is sufficient if it is established that at the time of the Sub-lease, the holding, out of which the Sub-tenancy was carved out, was an agricultural holding.
4. We hold accordingly that the decree made by Mr. Justice Newbould is correct, and that this appeal must be dismissed with costs.