Chintamani Parida and Others vs Brajasundar Das

Ray, J.—This second appeal is directed against a decree passed by the District Judge confirming that of the trial Court and giving the plaintiff a decree of ejectment from the disputed lands. They consist of several plots of which plot No. 3360 with an area of 409 of an acre and No. 1361 with an area of 068 of an acre are admittedly homestead. The rest of the disputed lands except with regard to one which contains a tank (a very small tank) are admitted to be arable lands. There is nothing on record to enable me to hold that the tank is a part of the homestead. In this judgment I will consider it as a part of the arable lands too. As the defendants were recorded as under-raiyats in respect of all the disputed lands forming one holding, the plaintiff landlord wanted to eject them after due notice to quit under the provisions of the Orissa Tenancy Act, Section 57. There is no controversy as to the sufficiency or the validity of the notice to quit.

The only point that is contested is that the defendants must have an occupancy right in the homestead portion of the holding in view of the provision of Section 236, Orissa Tenancy Act. It is Sub-Section (1) of the section which calls for an interpretation in this appeal. The Sub-section runs as follows:

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 the 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 learned District Judge has taken the view that this section, as it stands, will operate against a homestead which constitutes a holding by itself. The moment it is found that the homestead is a holding along with certain other lands as an under-raiyati holding or as any other holding governable by the provisions of the Orissa Tenancy Act, Section 236 will have no operation. It is quite obvious that he has, in coming to this conclusion, been influenced by the history of the enactment of Section 236, and of its predecessor Section 182, Bengal Tenancy Act. No doubt if you allow the language of a statute to be either extended or narrowed down with reference to the history of the legislation, such a contention can be maintained, but otherwise not. Section 236, Sub-section (1) opens with the following words "when a raiyat holds his homestead otherwise than as part of his holding as a raiyat. These words fare clear and explicit enough to say that the section will operate the moment it is found that the homestead is the raiyat''s homestead and is not a part of his raiyati holding even though the homestead might be held as part of any other holding except that of his raiyati holding. It will come within the words "held otherwise than as part of his holding as a raiyat." In the absence of any words in the section or in its context limiting the operation of these words, I am unwilling to hold that Section 236 will be inapplicable in the present case.

The object of the legislation will be completely defeated if ouch a limited view is taken of the very wide words employed by the legislature. Mr. Das Gupta for the respondent has in support of his (lower appellate Court''s) view relied upon two decisions of the Calcutta High Court, one of which is Pulin Chandra Daw and Others Vs. Abu Bakkar Naskar, . So far as 1936 Calcutta is concerned, it does not at all support his contention. This case rather strengthens my view, inasmuch as, it says that the requirements of Section 182, Bengal Tenancy Act are (1) that the tenant of the homestead is a raiyat, (2) that he holds the homestead otherwise than as a part of his holding:

Both the elements are present in this case. Dr. Basak, however, contends that in order to determine the incidents of the defendant''s tenancy of the homestead the Court has to look to the contract which created the tenancy and it is not permissible to take into consideration any subsequent events which the landlords did not contemplate at the time when the tenancy was created and over which they had no control. Is it difficult to accept this contention in view of the general terms of the provisions of Section 182. The word "holds" in the section seems to point to the time when the dispute about the incidents of the tenancy of the homestead arises.

In my judgment these observations of the learned Judges of the Calcutta High Court support the view that I propose to take. The other decisions of the same Court to which my attention has been invited by the learned Counsel for the appellants are Chandra Mohan Banikya and Others Vs. Srimati Meherjan Banu and Others, and Rahhimuddin Miaji v. Amina Bibi AIR 1926 Cal. 662. These two decisions proceed on the basis that Section 182, Bengal Tenancy Act applies to those cases of homestead to whom (?) the Transfer of Property Act once applied and not to those which are already governed by the provisions of the Bengal Tenancy Act. Their Lordships of the Calcutta High Court who delivered the judgment in Pulin Chandra Daw and Others Vs. Abu Bakkar Naskar, observed that you have to look to the time when the dispute arose but not to the history of the tenancy as to how it originated "and under what law it was created.

So far as Chandra Mohan Banikya and Others Vs. Srimati Meherjan Banu and Others, is concerned, it distinguishes the case in Krishna Kanta Ghose v. Jadu Kasya AIR 1916 Cal. 32 wrongly, in observing that in the latter, the holder of the homestead lands was not a raiyat. The case in Rahimuddin Miaji v. Amina Bibi AIR 1926 Cal. 662 proceeds upon the basis that the homestead land and the other lands of the under-raiyati holding were leased out by one registered lease. That at any rate distinguishes that case from the present. But I am not inclined to accept. any view which is to the effect that when the homestead lands of a raiyat are held as a part and parcel of other arable lands, also held by him as under-raiyat they do not come within the category of "homesteads held otherwise than as part of his holding as a raiyat." I do not think it will be a fair interpretation of the section to hold that it applies to those cases only where tenancy of the homestead was previously governed by the Transfer of Property Act. Strictly speaking, when a raiyat lets out some homestead land, the lease is governed by the Transfer of Property Act. If the parties call the lessee''s interest to be under-raiyati interest that does not detract from the real character of the lease-hold interest, nor can the record of rights recording such lands along with other lands as part of one under-raiyati holding alter the character thereof. The Transfer of Property Act applies or not according as the lands dealt with are either agricultural lands or not. So as all leases of homestead lands ought to be governed by Transfer of Property Act, there is no point in treating some cases differently because they have been wrongly considered as governed by Tenancy Act in preparing Record of Eights wherein they have been amalgamated into one holding with other lands.

In the result, I am of opinion that the defendants are protected from ejectment, in respect of the aforesaid two plots which constitute their homestead, though being raiyat''s homestead within the meaning of Section 236 and the incidents of their tenancy in respect thereof are that of a raiyat which means that they have acquired a right of occupancy in those lands. The decree of the learned Courts below should therefore stand with regard to other lands dispute but should be set aside with regard to aforesaid two plot numbers constituting defendant homestead. In view of the partial success of both the parties in this Court, I make no order in to costs.