1. The defendants were raiyats holding certain jamas under the father of the plaintiff at Nalbati. When the Bokhara station on the Nalhati-Azimganj Railway (broad gauge) was opened, the father- of the plaintiff wanted to establish a bazar. To do so he wanted shopkeepers to settle on his lands near the station. The defendant Bhikhari was asked to come and open a shop, and he did come and was given some lands to build his shop which would necessarily be his dwelling house also. He built a katcha thatched house and held his shop there for a time. Then after a short time he built a pakka room and subseqaently other pakka rooms and resided with his family there and held his shop as well. He acquired several raiyati jamas in this place also under the plaintiff, so that be is a raiyat under the plaintiff at Nalhati as well as this place called Sanko or Raipur Telkul. Being a raiyat at Nalhati he acquired the lands for building the shop where he resided, and then he became a raiyat at Raipur Telkul or Sanko and resided fin the shophuilding and carried on his agricultural operations from there.
2. The plaintiff, at first, sued to evict him as a trespasser but failed, the Court holding that the defendants were tenants and could not be ejected without a proper notice.
3. This suit was then brought after the service of a notice. The question whether the tenancy is governed by the Transfer of Property Act or by the Bengal Tenancy Act was raised in the previous case, but in view of the finding on the question of notice the Court did not think it necessary to go into the question. In this case the Trial Judge held that, as the land was originally taken for building a shop, it was governed by the Transfer of Property Act and made a decree for ejectment on the payment of Rs. 1,200 as compensation. On appeal by the plaintiff and cross-appeal by the defendants, the learned District Judge decreed the entire suit, allowing the defendants time to remove the materials of their pakka house.
4. In second appeal, it has been contended that both the Courts below are wrong in not applying the provisions of the Bengal Tenancy Act. We think this contention is supported by a number of decisions of this Court dating back from 1893. In the case of Golam Mowla v. Abdool Sowar Mondul 9 Ind. Cas. 922 : 13 C.L.J. 255 Mr. Justice Rampini held that if a raiyat holding jotes with occupancy rights in a village holds bastu land in the same village, not as a raiyat but separately from his raiyati holding, he would, in the absence of a local custom to the contrary, have a right of occupancy in the homestead also. It is not clear from the report whether the homestead and the jote were held under the same landlord. Then in the case of Protap Chandra Das v. Biseswar Pramanick 9 C.W.N. 416 the homestead was under one landlord and the jote under another in the same village. Mr. Justice Geidt held that Section 182 of the Bengal Tenancy Act applied. Mr. Justice Ghose did not think it necessary to go into the question. This was in 1904. Then in 1906 came the case of Kripa Nath Chakrabutty v. Sheikh Ann 10 C.W.N. 944 : 4 C.L.J. 332, in which Rampini and Mookerjee, JJ., held that the homestead and the raiyati need not be in the same village or under the same landlord and Section 182, Bengal Tenancy Act, applied when both were different. The above cases were followed by Mookerjee and Teunon, JJ., in the case of Harihar Chattopadhyaya v. Dinu Bera 10 Ind. Cas. 139 : 14 C.L.J. 170 : 16 C.W.N. 536, and it was held that for the application of Section 182 of the Bengal Tenancy Act it was not necessary that the homestead and the raiyati should be either in the same village or under the same landlord. Under these rulings, the defendants would be holding the homestead lands at Sanko subject to the provisions of the Bengal Tenancy Act from the beginning.
5. But supposing that during the first two or three years during which the defendants merely held their shop and resided on the disputed land and held jotes at Nalhati, they could not invoke the aid of Section 182 of the Bengal Tenancy Act, there can be no manner of objection under a long course of rulings of this Court to their claiming the protection of that section after they became agriculturists at Sanko and carried on agriculture from their residence at Sanko, which was also used as a shop. The incidents of their tenure of the homestead are, therefore, governed by the Bengal Tenancy Act, as no local custom to the contrary is alleged or proved. The suit for ejectment, therefore, fails. As the parties have not been able to agree as to the rent payable for the homestead, that must form the subject of a separate suit.
6. The appeal is allowed and the suit of the plaintiff dismissed with costs in all Courts.