Mian Ahir and Others vs Paramhans Pathak

Agarwala, J.—This second appeal by the defendants arises out of a suit in ejectment. The plaintiff is the holder of an occupancy holding consisting of 17.94 acres of agricultural land and some homestead land. The suit was to eject the defendants-appellants from two plots of homestead land Nos. 50 and 51. With regard to the latter plot, it has been found as a fact by the Court below that the plaintiff was wrongfully evicted from this plot by the defendants in 1340. The decree in plaintiff''s favour with regard to this plot therefore is not open to challenge in second appeal. With regard to plot No. 50 the case of the plaintiff was that it was settled with the defendants on condition that they provided milk, curds and ghee to the plaintiff at certain prices on ceremonial occasions and assisted him in his cultivation. The question is whether the defendants are'' under-raiyats or not. If they are under-raiyats, the plaintiff''s claim to eject them from plot No. 50 must fail by reason of the fact that the plaintiff has not caused a notice to be served on them in the manner required by Section 49, Tenancy Act. If on the other hand, defendants are not under-raiyats, it is not disputed that the notice that was served on them by the plaintiff is sufficient to terminate the tenancy.

The learned advocate for the defendants, appellants relies on a decision of the Calcutta High Court in Babu Ram Roy v. Mahendra Nah 8 C.W.N. 454 in which it was held that where the lands included in the holding of an agricultural raiyat consist partly of agricultural and partly of homestead lands and the homestead portion is let out for use as homestead the person to whom it is so let is an under, raiyat within the meaning of the Tenancy Act, and accordingly that such person is not liable to ejectment, unless a notice has been served in accordance with the provisions of Section 49. The contention in that case as in this, was that it was sufficient to serve a notice under the Transfer of Property Act. In the course of the judgment their Lordships said:

The Transfer of Property Act is not applicable to lands used for agricultural purposes, and in considering whether the one Act or the other would apply, we have to look to the nature of the original tenancy, and not the nature of the tenancy with reference to a particular piece of land within the landlord''s holding.

That case was referred to in a later case in the same High Court, Rampado Sarkar and Others Vs. Atore Dome, which first came before Newbould J. and then before a Bench in Letters Patent Appeal which confirmed the decision of that learned Judge. There the holder of 10 kathas of land which was used for horticultural purposes sublet a portion of it to the defendant who occupied it as homestead. The plaintiff sued to eject the tenant alleging that the tenanoy had been terminated by notice to quit under the Transfer of Property Act. The suit was dismissed on the ground that the Tenancy Act, and not the Transfer of Property Act, applied. In the course of the judgment of the learned Judges who heard the appeal it was said:

The position consequently is that when the subtenancy in favour of the defendant was created, although the grant included only the homestead portion of the land comprised in the tenancy, still the tenancy taken as a whole included agricultural and horticultural lands. These facts make applicable the principle enunciated in Babu Ram Roy v. Mahendra Nah 8 C.W.N. 454. That principle is that, in the absence of a local custom or usage, the homestead portion of an agricultural holding is governed by the provisions of the Bengal Tenancy Act, precisely in the same manner as the portion under actual cultivation, From this it follows that the answer to the question, whether a case of this description is governed by the Bengal Tenancy Act or by the Transfer of Property Act, depends upon the nature of the original tenancy and not on the character of the parcels included in the sub-tenancy.

On behalf of the respondents it is contended that these decisions have no application to the facts of the present case, and the learned advocate relied upon Section 181, Tenancy Act, which provides as follows:

Nothing in this Act shall affect any incident of a gatwali or either service-tenure, or, in particular, shall confer a right to transfer or bequeath a service-tenure which, before the passing of this Act, was not capable of being transferred or bequeathed.

The learned advocate contends that the term "service-tenure" in this Section includes a tenancy such as we have in the present case and that the meaning of the Section is that the incident of resumability which attaches to a service-tenure is not affected by anything in the Act. The learned advocate referred to a number of decisions which support his proposition, but they are all cases in which the proprietor of the land had made a grant for service purposes, and not oases in which the raiyat of an agricultural holding had parted with a part of his holding in return for services or rent in kind. In particular, the learned advocate referred to a passage in the judgment of their Lordships of the Privy Council in AIR 1934 5 (Privy Council) . In that case the High Court had held that the term "service-tenure" in Section 181, Tenancy Act, was not confined to tenures properly so-called and that a right of occupancy could not be acquired in a service grant of a police character, especially when they are in the nature of raiyati holdings. The passage in the judgment of the Privy Council which was relied upon was:

In their Lordships'' opinion there is a great distinction between the grant of lands on service-tenure, revenue or rent-free to a raiyat to cultivate himself in lieu of wages and a grant to a tenure-holder of rents from tenants holding under him as raiyats. In the former case the raiyat''s grant may well be said to be inconsistent with the acquisition of full occupancy rights because the lands are only granted to him so long as he holds the office.

This is said to be an authority for the proposition that a person to whom a portion of an agricultural holding has been let by the raiyat in return for a promise of service is exempted from the provisions of the Tenancy Act. That was not the question which was considered either in the High Court or in the Privy Council. There was no question there of the tenant being an under-raiyat although it appears that an attempt had been made by the plaintiff to establish that fact. The precise conditions on which plot No. 50 was let to the defendants-appellants in the present case are not very clear on the finding of the Appellate Court. The learned Additional District Judge who heard the appeal below observed:

I would accordingly believe the evidence adduced by him (that is, the plaintiff) and hold that defendant 1 and Jhojhari were inducted into plaintiff''s house on plot No. 60 as tenants-at-will or licensees on condition of rendering some sort of service.

Now in view of the pleadings of the parties, it is not at all clear what the learned Additional District Judge meant by "service" in this connexion. It is true the plaintiff had alleged that the defendants had undertaken to assist him in cultivation, but the principal obligation which the defendants undertook would appear to have been the supply of milk, curds and ghee on ceremonial occasions, and that this is the proper view to take of the agreement between the parties is evidenced by the claim in the plaintiff''s plaint. There he claims a certain sum in respect of milk, curds and ghee which he alleges the defendants had not supplied in violation of the agreement, and nothing for non-rendition of services. It therefore appears to me that plot No. 50 was let to the defendants on condition of their supplying milk, curds and ghee on stated occasions, that is to say, it was an agreement to let the land in return for certain articles of produce, in other words, a produce tenancy.

In any view of the matter, I can find no distinction between this case and the two Calcutta cases which have already been referred to, and applying those decisions to the facts of this case, I must hold that the defendants were under-raiyats under the plaintiff with respect to plot No. 50 and that the plaintiff''s suit to eject them from this plot must fail for non-compliance with the provisions of Section 49, Tenancy Act. The defendants'' appeal succeeds therefore with regard to plot No. 50 and it fails with regard to plot No. 51. In these circumstances the parties will bear their own costs throughout. Leave to appeal is refused.