Jwala Prasad Ag., C.J.The plaintiff is the appellant. He is a settled raiyat having occupancy holding in village Chakulia and he has also homestead land entered in the survey Record-of-Rights as udbastu land about 1 bigha 9 kathas in plot No. 740.

2. The defendants father Fakir Rai was the Station Master at Chakulia. In 1318 Fakir Rai took settlement of about 13 bighas of land from the proprietor for cultivation. Later on (the exact date is not known) he took a verbal settlement of 15 kathas of land from the plaintiff out of the udbastu in plot No. 740. He erected buildings thereon and died 10 or 12 years ago. The defendants, his heirs, are now in possession of both the raiyati land 13 bighas of which their father took settlement from the landlord and the aforesaid udbastu land 15 kathas of which their father took a verbal settlement from the plaintiff. The plaintiff served the defendants with notice to quit, treating them as tenants-at-will or yearly tenants liable to be ejected by service of notice, and the notice not having been complied with, the plaintiff instituted the present suit in 1926 for ejectment. The defendants resisted the suit claiming that they have acquired occupancy right in the land in dispute and that the jurisdiction of the civil Court to try the suit is barred by the Chota Nagpur Tenancy Act (Act 6 of 1908). The Munsif, who tried the suit, upheld the contention of the defendants, holding that the defendants had occupancy right and were not liable to be ejected and that the Court had no jurisdiction to try the suit.

3. The plaintiff appealed and before the lower appellate Court it was conceded by the parties that the Court had jurisdiction to try the suit as the disputed land was the homestead land and not agricultural. But the Court below agreed with the Munsif that the defendants had acquired occupancy right and dismissed the appeal. The plaintiff came to this Court in second appeal, which was disposed of by a single Judge of this Court who by his decision, dated 5th February 1931, dismissed the plaintiffs appeal. The plaintiff has therefore filed this Letters Patent appeal. The learned Judge of this Court did not decide the question of whether the defendants had or had not acquired occupancy right in the land. He dismissed the appeal upon the ground that the civil Court had no jurisdiction to try the suit. The case has been argued at great length and numerous authorities have been cited. After a careful consideration of those authorities it seems to me that none of them exactly applies to the facts of the present case. The suit is said to have been barred by Section 139, read with Section 139-A, Chota Nagpur Tenancy Act. Section 139 gives a list of suits and applications which it says:

shall be cognizable by the Deputy Commissioner, and shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court, except as otherwise provided in this Act.

4. In the list of such suits and applications are those as mentioned in Clause (4), viz.:

all suits and applications (under this Act) to eject any tenant of agricultural land or to cancel any lease of agricultural land.

5. Another clause which is said to bear upon this point is Clause (8):

All suits and applications in respect of which jurisdiction is conferred by this Act on the Deputy Commissioner.

6. Clause (4) referred to above applies only to "agricultural land." Admittedly the land in question is not agricultural. It is udbastu or homestead land as described in the khatian. As the plaintiff is a raiyat of the village, the incidents of his homestead land, which is not part of his raiyati land, are the same as those of his agricultural holding. The defendants father took settlement of 15 kathas out of udbastu land subsequent to his having taken settlement of 13 bighas of land from the landlord for cultivation. The defendants father being a raiyat within the meaning of Section 6, Chota Nagpur Tenancy Act, having acquired 13 bighas of land from the proprietor for the purpose of cultivation became a settled raiyat after the expiry of twelve years in 1924 in respect of those lands, and in respect of 15 kathas in dispute, part of the udbastu land of the plaintiff, the defendants were under-tenants and could not acquire the status of raiyat, because they did not and do not hold the land either immediately under a proprietor or immediately under a tenure-holder, which is essential under Clause (2), Section 6 of the. Therefore they could not acquire occupancy right in respect of the 15 kathas of the udbastu land in question. Occupancy right is acquired by a raiyat, which the defendants were not, by the modes under Ch. 4, Sections 16 to 20. That chapter does not provide at all for acquisition of occupancy right by under-tenants, nor does it say that an under-tenant who holds other lands as occupancy raiyat would acquire the status of occupancy raiyat in respect of the former class of land.

7. No doubt the defendants are tenants of the land in question and as such they would come u/s 4; but as they are not tenants of agricultural land, Clause (4), Section 139, would not apply nor would it bar the suit to eject them. Reliance is placed upon Section 78 of the Act, and it is contended that, although they are under-tenants or under-raiyats in respect of the udbastu land in dispute, they acquired the status of "raiyat" inasmuch as they hold other lands in the village as raiyats upon settlement by the landlord. Section 78 reads 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.

8. The first condition for applying the section is that the homestead land should not be part of the holding of a raiyat. In this ease the defendants udbastu land is not part of their agricultural holding of 13 bighas. Therefore the first condition is satisfied. The section does not say that he will acquire occupancy right or he will become a raiyat or an occupancy raiyat in respect thereof, but that the incidents of his tenancy of the homestead land shall be regulated by the provisions of the applicable to agricultural holdings. We must now come back to Ch. 4. As already observed, Sections 16 to 20 refer to the circumstances under which a raiyat acquires right of occupancy. Sections 21 to 24 come under the heading "incidents of occupancy right" and they deal with the incidents of such right and therefore an under-raiyat having homestead land will not become a raiyat or occupancy raiyat by reason of his having other land but the incidents of his homestead land will be the same as those of the land of which he is a raiyat or occupancy raiyat. Those incidents, briefly speaking, are that he shall use the land in the manner authorized by local custom or usage, and not in a manner materially to impair the value of the land or render it unfit for the purpose of his tenancy and that he shall not be ejected by his landlord except in execution of a decree for ejectment passed upon the ground that he has used the land in a manner not authorized by the preceding Section 61 or that he has broken a condition on breach of which he is liable under the terms of the contract between himself and his landlord to be ejected. I need not refer to the other incidents, except that there are no incidents or right of transfer conferred upon an occupancy-raiyat by the. Therefore he cannot transfer it without the permission of the landlord, except where there is a custom recognizing such transfer. The plaintiff in this case gave a verbal lease to the defendants father without fixing any term. Section 46 says:

(1) No transfer by a raiyat of his right in his holding or any portion thereof, (a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years, shall be valid to any extent.

9. The plaintiff gave a lease to the defendants father without specifying any term. Such a lease is either a permanent lease or is to last during the lifetime of the lessee. In any case it is a lease which either exceeds or might possibly exceed five years and, as such, it is invalid. c1ause (4) of the section provides for an application by a raiyat to the Deputy Commissioner for being put into possession of his holding or a portion thereof within three years after the expiration of the period for which the raiyat has transferred his right in his holding or any portion thereof. This is the only clause which provides for a remedy to eject an under-raiyat. This clause has no application to the present case, because it contemplates a case where the settlement is for a definite period on the expiration of which the raiyat may obtain possession of the holding through the Deputy Commissioner if he makes his application within three years. Here there was no definite term fixed and therefore this clause has no application. There is no other provision in the for suits and applications to eject an under-raiyat who is in possession of the property under a lease exceeding five years or under a lease for any indefinite term, or under a permanent lease.

10. Therefore Section 139, Clause (8), would not bar the suit, because in order to bar la suit or an application there must have been provision made and jurisdiction conferred by the on the Deputy Commissioner to entertain such a suit or application. Even if the defendants have acquired occupancy right there is no provision for a suit to eject them from their homestead land which they hold separate from their agricultural holding. Therefore the jurisdiction of the civil Court is not barred.

11. The question then is can the defendants be ejected It has been shown above that the incidents of the homestead land in suit will be the same as those of the agricultural holding of 13 bighas in which the defendants have acquired the right of occupancy and the defendants can therefore be ejected only upon the grounds mentioned in Section 22 of thefor having used the land comprised in the holding in a manner which is not authorized by Section 21, or having broken a condition on breach of which they are liable to be ejected. These are not the grounds upon which the plaintiff seeks to eject them.

12. The ground upon which ejectment is sought is that the lease given by the plaintiff to the defendants was invalid from its inception as being for an indefinite period, that is, exceeding five years. The defendants have, according to the finding of the Court below, been holding the land for about 16 years and according to the admission of the plaintiff for over 10 years. No doubt, under Clause (2), Section 46, the lease is not binding upon the landlord; but although the lease is invalid, the plaintiff who brought the defendants upon the lands and took nazrana and allowed them to build the house and to remain in possession for such a long period, cannot be permitted to take advantage of his own wrong and to eject the defendants. Therefore the plaintiff is not entitled to eject the defendants and the suit has been rightly dismissed. The appeal is accordingly dismissed with costs.

James, J.

13. I agree.