PULIN CHANDRA DAW Vs. ABU BAKKAR NASKAR

JUDGEMENT

(1.) This appeal arises out of a suit for ejectment. Plaintiff's case is that the defendant held the disputed land as a tenant under them on the basis of a registered kabuliyat executed by him in favour of their predecessor on 27 July 1915, that a notice to quit was served on him in accordance with the term of the kabulyat calling upon him to vacate the land on the 1 of Baisakh 1336, B.S. but he has failed to comply with the notice. The defence of the defendant is that he is a settled raiyat.of the village in which the disputed land lies and that he has acquired an occupancy right in the disputed land under the provision of Section 182, Bengal Tenancy Act, as it is his homestead. The Courts below have held that the defendant has acquired occupancy right in the disputed land. They have accordingly dismissed the suit. Hence the second appeal by the plaintiffs.

(2.) Now it appears that the defendant took settlement of the disputed homestead from the plaintiff's predecessor for residential purposes by a kabuliyat in 1915. By this kabuliyat a tenancy at will liable to be determined by a notice to quit was created. It appears that the defendant was a cultivator at the time of the kabuliyat. It is not clear, however, whether he was a raiyat at that time. It has been found by the lower appellate Court that he acquired a raiyati in 1326 B.S. and became occupancy raiyat in respect of some agricultural lands of the village before the service of notice. Dr. Basak appearing on behalf of the plaintiffs contends that subsequent acquisition of the status of an occupancy raiyat by the tenant cannot take away the contractual right of the landlord to eject the tenant. Now, by Sub-section (3) (a) of Section 178, Bengal Tenancy Act, nothing in any contract made between a landlord and a tenant after the passing of the Act shall prevent a raiyat from acquiring, in accordance with this Act, an occupancy right in land. The right of the plaintiffs to eject the defendant from his homestead arising out of the kabuliyat of 1915 cannot therefore prevent the defendant from acquiring occupancy right in the homestead if he is entitled to acquire occupancy right in it in accordance with the provisions of the Bengal Tenancy Act of 1885. Section 182 of the Act is in these terms:

(3.) When a raiyat holds his homestead otherwise than as part of his holding as a raiyat the incidents of the tenancy of his 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.