Jwala Prasad, J.This is a Letters Patent appeal and arises out of a suit for ejectment. The Munsif decreed the suit, but the learned Additional District Judge disagreeing with the Munsif dismissed the suit. Mr. Justice Ross sitting singly set aside the decision of the Additional District Judge and restored that of the Munsif and decreed the suit. The defendant has come to this Court under Letters Patent Appeal

2. The defendant held land in the village in question and in execution of a decree for rent the holding was sold by auction on the 6th of August, 1912. On the 9th of September, 1913, the plaintiff settled the land with the defendant for a term of nine years which haying expired the plaintiff now seeks to eject the defendant. The defendant was, no doubt, settled raiyat of the holding in question before it was sold up in 1912 and ceased to be so when a year after in 1913 the land was settled with him,

3. Both the Courts below concurrently held that the defendant has no other land in the village. It is, however, contended that he has homestead land in the village in respect of which he has acquired a right of occupancy; and, cousequently, at the time when the land was settled with him by the plaintiff by means of a registered kabuliyat he became a settled raiyat of the village with incident of a right of occupancy. Now in support of this contention reliance is placed upon the joint effect of Sections 21 and 182 of the Bengal Tenancy Act. The homestead land of the defendant did not form part of any raiyati holding nor was it held under any contract with the landlord for the payment of rent either of the land upon which the house stood or of the house itself. It is not said that any rent is paid by the defendant in respect of this homestead land which, therefore, was not an independent land or holding to which the Bengal Tenancy Act would apply. The contention, however, is that the defendant had an agricultural holding in the village which was sold up for arrears of rent and that he was a raiyat having occupancy right in respect thereof; that the incident of his homestead land also was to be regulated by the provisions of the Bengal Tenancy Act applicable to an occupancy land held by the defendant. That would be so; but when the raiyati holding of the defendant was sold up for arrears of rent he ceased to have a right of occupancy in respect thereof. u/s 20 (5) of the Bengal Tenancy Act he also ceased to be a settled raiyat of the village inasmuch as he could continue to be a settled raiyat only so long as he held the land as a raiyat in that village, and for one year thereafter. Therefore, in September, 191$, when he executed the kabuliyat in question he had no raiyati land in the village and the provisions of the Bengal Tenancy Act applicable to land held by a raiyat ceased to apply to the homestead land. After the execution of the kabuliyat in question he acquired the right of cultivating the land upon the terms and conditions set forth therein. One of the terms was that the defendant would give up possession of the land upon the expiry of the term of the lease; he was liable to be ejected from the land in question u/s 44 (c) of the Bengal Tenancy Act on the expiry of the term of the lease, he having been admitted into occupation of the land under a registered lease. This is the incident of the land now held by him and this is the incident which probably would apply to his homestead land by virtue of Section 182 of the Bengal Tenancy Act. Section 182 of the Bengal Tenancy Act 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 local custom or usage, and, subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat.

4. It applies to a homestead land which is not part of a raiyati holding and not to such homestead land as a part of a raiyati holding: the section applies to homestead land outside the raiyati holding which but for the section would not have in any way come within the purview of the Bengal Tenancy Act. As a protection to cultivating tenants the section is enacted, so that so long as the tenant holds his raiyati land he may not be turned out of his homestead and consequently the incident of such homestead is to be regulated by the provisions of the Bengal Tenancy Act, in the absence of any local usage or custom, by the incidents applicable to a land held by a raiyat. "Raiyat" has been defined in Section 5 (2) to mean primarily a person who has acquired a right to hold the land for the purpose of cultivating it himself or by members of his family etc., and there are three classes of raiyats enumerated in Section 4, viz., roiyats holding at fixed rates, occupancy holdings and non occupancy holdings. All these raiyati incidents are dealt with in the; and when a raiyat holds his homestead land the incident of the tenancy of his homestead will be regulated by the provisions of the applicable to the class of land of which he is a raiyat. Therefore in the present case the right acquired by the defendant: was that of a non-occupancy raiyat under the terms of the kabuliyat and his homestead land also was regulated by the incident of a non-occupancy raiyat The contention is that the homestead land had already before the sale of the defendants holding acquired the incident of occupancy and, therefore, the land which he held under the kabuliyat must also be governed by the same incident. The fallacy lies in the assumption that whatever homestead land the defendant had was held by him as a raiyat. There never was any contract between the landlord and the defendant constituting his homestead land as a raiyati holding governed by the Bengal Tenancy Act. This homestead was in no case governed by the provisions of the Bengal Tenancy Act contained in Chap. v. except that by reason of the defendant having atone time held some agricultural land as a raiyat the incident at that time might have attached to the homestead land. But when the appellant ceased to be a raiyat in respect of cultivable land Section 182 has no application. Similarly the incident of occupancy right, if any, that attached to the homestead land came to an end; it was never revived either in respect of the homestead land or in respect of the raiyati land which the defendant held under the kabuliyat in question.

5. In these circumstances the contention of the appellant must fail and the decision appealed from must be affirmed and the appeal dismissed with costs.

Dhavle, J.

6. I agree. The question in this appeal is whether the homestead land which the appellant continued to hold after the execution sale of his holding gave him the status of a settled raiyat so as to make Section 21 of the Bengal Tenancy Act available to him when he took settlement of the raiyati lands in 1913. Section 182 of the Bengal Tenancy Act itself makes a distinction between a homestead held by a raiyat otherwise than as part of his holding as a raiyat and "land held by a raiyat". Under Sub-section (5) of Section 20 it is necessary that a man should hold some land as a raiyat in a village if he is to be a settled raiyat; and the status of a settled raiyat, so acquired, will disappear one year after he ceases to hold any land as a raiyat in that village. Reading the two sections together it is difficult to see how homestead held otherwise than as part of a holding could be regarded for the purposes of Section 20 (5) as land held by the raiyat. Section 182 merely provides that the incidents of a raiyats tenancy of his homestead (held otherwise than as part of his holding as a raiyat) shall be regulated...by the provisions of the Bengal Tenancy Act applicable to land held by a raiyat. This does not define the status of the person holding the homestead but merely deals with the incidents of his tenancy of the homestead. It may be doubted if Sub-section (5) of Section 20 can be properly said to deal with any incident of a tenancy, for the section occurs in Chap. V where there is a series of sections beginning a little later (with Section 23) under the heading "incidents of occupancy right". The distinction between the status of the tenant and the incidents of the tenancy comes out in [such cases as Krishna Kanta Ghosh v. Jadu Kasya 28 Ind. Cas. 839 [LQ/CalHC/1915/43] : 21 C.L.J. 478 : 19 C.W.N. 914 where their Lordships observed:

Section 182, however, provides not merely that the provisions of the Bengal Tenancy Act would apply, but that the provisions of the applicable to land held by a raiyat shall regulate the incidents of the tenancy of the homestead. If Section 182 applies, as we must hold that it does, having regard to the decisions cited above, the provisions of the Bengal Tenancy Act applicable to a raiyat would regulate the incidents of the tenancy of the homestead, though the defendant has only the interest of an under-raiyat with respect to it. It may lead to some anomalous results, but so would the application of Section 182 to the cases cited above, and the present case cannot be distinguished on principle from the said cases.

7. In addition to this, there is the consideration referred in the judgment of my learned brother, vis., that u/s 142 the incidents of the appellants tenancy of his homestead seem to be regulated by the provisions of the Bengal Tenancy Act applicable not to land which might at any time have been held, but to land actually held by him for the time being as a raiyat. The appellants continued tenancy of his homestead could not in my opinion keep up his status as a settled raiyat on the expiry of a year from his loss of the raiyati holding; it did not, therefore, operate to give him occupancy rights in the land of which he took a settlement under the kabuliyat of 1913.