Haru Charan Manna and Others vs Sourendra Nath Ghosh and Another

Nasim Ali, J.—This appeal arises out of a suit for ejectment of the Defendants on the ground that their tenancy under the Plaintiffs was terminated by a notice to quit under the provisions of the Transfer of Property Act. The defence of the Defendants is that the incidents of the tenancy are not governed by the Transfer of Property Act but by those of the Bengal Tenancy Act. The trial Court accepted the defence and dismissed the suit. On appeal, the learned Judge has come to the conclusion that though the Defendants had acquired occupancy right before in the disputed homestead by operation of sec. 182 of the Bengal Tenancy Act, that right came to an end when their occupancy holding was sold in 1313, B. S. The learned Judge accordingly reversed the decision of the trial Court and decreed the Plaintiffs'' suit. Hence the present appeal by the Defendants. It appears from the judgment of the learned Judge that the Defendants acquired occupancy right in the disputed homestead under the provisions of sec. 182 of the Bengal Tenancy Act. inasmuch as they were settled raiyats of the village in respect of certain agricultural lands. The mere fact that the Defendants subsequently sold away the agricultural lands in which they had occupancy right cannot, in my opinion, divest them of their occupancy right in their homestead. The learned Judge was, therefore, in error in holding that the incidents of the tenancy are not governed by the Bengal Tenancy Act.

The result, therefore, is that this appeal is allowed, the judgment and decree of the lower Appellate Court are set aside and those of the trial Court are restored with costs throughout. Leave to appeal under sec. 15 of the Letters Patent has been asked for in this case and is refused.