1. This appeal is by the plaintiff and arises out of a suit brought by him for ejectment of an under-raiyat after service of a notice under Section 49 of the Bengal Tenancy Act and after the expiry of a lease executed by the under-raiyat. The under-raiyati consisted of a plot of homestead land and also of some nal land and a tank as has been found by the Subordinate Judge. The defence of the defendant was that he was a settled raiyati of the village of lands which he held under a different landlord. Therefore, he contended that under the provisions of Section 182 of the Bengal Tenancy Act he could not be ejected from the lands in suit so far as they form part of his homestead. The Court of first instance gave a decree to the plaintiff, but on appeal the learned Subordinate Judge has remanded this case to the Court of first instance for the determination of the question as to what are the precise limits of the homestead in the view that the defendant is protected from ejectment so far as the homestead lands are concerned, although he is not so protected as regards the nal lands and the tank which form part of the under-raiyati.
2. Now, in this second appeal it has been contended by the Vakil for the appellant that the learned Subordinate Judge was in error that the under-raiyati could be divided into homestead portion and agricultural portion; and then apply the provisions of Section 182 of the Bengal Tenancy Act. The learned Vakil further contended that the case, relied on by the lower Appellate Court as an authority in support of his decision, does not apply to the present case. The case referred to is the case of Krishna Kanta Ghosh v. Jadu Kasya 28 Ind. Cas. 839 : 21 C.L.J. 475 : 19 C.W.N. 914. I think the contention is well-founded. It has been found as I have already stated that the defendant's under-raiyati which he took from the plaintiff rightly consisted of homestead and also of nal land and a tank. Therefore, the question arises : Are the provisions of Section 182 applicable to the facts of this case. Now Section 162 of the Bengal Tenancy Act says this: 'When a raiyat holds his homestead otherwise than as part of his 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'. But the provisions of this Act are applicable to lands held by a raiyati. Now, in the case cited it appears that the home was held to which the provisions of the Transfer of Property Act apply and was not a part of an under-raiyati to which the provisions of the Bengal Tenancy Act were already applicable.
3. The learned Vakil for the respondents has not drawn our attention to any case where the provisions of Section 182 have been applied to the case of a homestead to which the provisions of the Bengal Tenancy Act did already apply. If the provisions of Section 182 did already apply to the homestead then the provisions of Section 182 of the Bengal Tenancy Act need not be invoked for the purpose of the application of the provisions of Section 182 of the Bengal Tenancy Act. We think, therefore, the present case is distinguishable from the case cited before us and we think, therefore, the plaintiff was entitled to eject the defendant under the provisions of the Bengal Tenancy Act because the defendant was holding an under-raiyati under a registered lease the term of which had expired and the suit was brought for recovery of possession of the lands covered by the under-raiyati lease after the expiration of the term of the lease.
4. The result, therefore, is that this appeal is allowed with costs for all the Courts and the order of remand set aside and the decree of the first Court restored.
5. I assess the hearing fee at two gold mohurs.
6. Second Appeal No. 232 is by the defendant against the final decree made by the lower Appellate Court after the Trial Court had decided the case according to the remand against which Appeal No. 317 was preferred which I have already dealt with. It appears that there was an appeal by the plaintiff against the decree made by the Trial Court. The learned Subordinate Judge disregarding the previous remand order, decreed the whole suit of the plaintiff and on appeal by the defendant the learned Subordinate Judge not only refused to give relief to the defendant-appellants but set aside the order in effect made by his predecessor and gave a decree to the plaintiff for possession of the entire land. The defendants have appealed against that decree.
7. The appeal by the defendants is technically allowable because the learned Subordinate Judge had no jurisdiction to set aside the order made by his predecessor-in-office and gave a decree to the plaintiff against the order of the remand. However, as I have held in the appeal against the order of remand that the plaintiff was entitled to a decree for the entire land the decree though erroneous, has given right relief to the plaintiff.
8. The result, therefore, is that we affirm the decree made by the Subordinate Judge; but we allow no costs of that appeal to the respondent. Each party will bear his own costs.
9. I agree.