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Aswap Alibepari Vs. Dula Mia - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal580,92Ind.Cas.843
AppellantAswap Alibepari
RespondentDula Mia
Excerpt:
bengal tenancy act (viii of 1885), section - ejectment--culturable lands forming part of homestead of raiyat--liability to ejectment. - .....protection to the defendant. the defendant, on the other hand, contends that on the finding of the munsif the lands must be taken really to form part of his homestead and to be appurtenant thereto and, consequently, he contends that he is not liable to be evicted by the notice which the plaintiff has given him.5. i think that the contention of the defendant is correct and that he is not liable to be evicted from the land. it seems to me that on the findings of the learned munsif the lands extending 2 kanis which he describes a', culturable lands are really part of the homestead itself. as i have already stated, the munsif says that these lands lie about the homestead and are appurtenant thereto and i think, therefore, that on this finding we should hold that these lands are included in.....
Judgment:

Ewart Greaves, J.

1. When this appeal was before us previously we sent back the matter to the lower. Appellate Court for certain findings to be recorded.

2. Firstly, whether the defendant was or was not a permanent raiyat with rights of transfer in the land. Secondly, whether the defendant was or was not a settled raiyat of the village in respect of other lands and whether in addition to the homestead there was any other land other than a strip of garden land. Thirdly, as to whether or not any improvements had been effected by the defendant on the land and whether such improvements had been effected with the landlord's assent and the value thereof.

3. The learned Munsif to whom the case was remitted has now returned it with the following findings. He holds that the plaintiff is an occupancy raiyat without the right of transfer and permanency, in his holding. Secondly, that the defendant is a settled raiyat of the village-in respect of lands other than the land in question and that he had acquired rights of occupancy therein. He further finds that the defendant's tenancy which is in dispute includes other culturable (rial) lands besides the homestead and a strip of garden. He finds that the area of the culturable land is not less than 2 kanis and that the whole of the land of the defendant's tenancy lies about his homestead and is appurtenant thereto. Lie also finds that no improvements have been effected by the defendant with the assent of the landlord, express or implied, and he assessed the value of the improvements carried out by the defendant at Rs. 300.

4. Now, both sides have argued before us that they are entitled to succeed on the findings of the Munsif. The real point which arises on these findings is whether or not the defendant is protected by the provisions of Section 182 of the Bengal Tenancy Act which provides that '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, by the provisions of this Act applicable to land held by a raiyat.' The plaintiff contends that the defendant is not protected by the provisions of Section 182 and that he is an under-raiyat and that as proper notice has been given under the provisions of Section 49 of the Bengal Tenancy Act the defendant is liable to be ejected from his homestead and so far as the findings are concerned, the plaintiff contends that the finding being that there are in addition to the actual homestead culturable lands Section 132 has no application and affords no protection to the defendant. The defendant, on the other hand, contends that on the finding of the Munsif the lands must be taken really to form part of his homestead and to be appurtenant thereto and, consequently, he contends that he is not liable to be evicted by the notice which the plaintiff has given him.

5. I think that the contention of the defendant is correct and that he is not liable to be evicted from the land. It seems to me that on the findings of the learned Munsif the lands extending 2 kanis which he describes a', culturable lands are really part of the homestead itself. As I have already stated, the Munsif says that these lands lie about the homestead and are appurtenant thereto and I think, therefore, that on this finding we should hold that these lands are included in the homestead and are part thereof and that, consequently the defendant is protected from eviction by the provisions of Section 182 of the Bengal Tenancy Act.

6. In the result, the appeal fails and we have arrived at the same conclusion as the learned Judge who tried the case arrived but upon different grounds.

7. In the result, the appeal is dismissed; and the defendant will be entitled to Ma costs in all Courts including the costs 'of the remand to the Munsif.

Cuming, J.

8. I agree.


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