1. This is an appeal on behalf of the plaintiff in a suitfor ejectment and recovery of rent and damages. The case for the plaintiff wasthat the land in dispute was let out to the defendant on the 20th July 1896 fora term of three years; that after the expiration of the term of the tenancy,the defendant was allowed to hold over; that on the 12th October 1905, theplaintiff served upon the defendant a notice to quit the land on the 14th April1906; that in spite of the service of such notice the defendant has continuedin occupation, and that consequently on the 4th December 1906 the plaintiffcommenced this action to eject the defendant as a trespasser. He furtherclaimed rent for the year 1312, that is, up to the date on which the defendantwas asked to vacate the premises, and damages for use and occupationthereafter. The defendant resisted the claim, substantially on the ground thathis tenancy was not terminable, and that as a matter of law it bad not beenvalidly terminated by the steps taken by the plaintiff.

2. The Court of first instance found that the defendant wasnot shown to be a ryot in respect of other lands in the same village; that hehad not acquired a right of occupancy in the land in dispute which had beentaken by him for purposes of homestead and had been used by him as such, andthat consequently his tenancy in respect of this land was terminable and hadbeen terminated by the notice to quit served upon him. In this view the Courtof first instance decreed the suit, both as regards the prayer for ejectmentand the claim for rent and damages.

3. Upon appeal, the learned Subordinate Judge has reversedthis decree. He has held that the combined effect of sections 21 and 182 of theBengal Tenancy Act is to confer upon the defendant the status of an occupancyryot in respect of the land in suit, and that consequently he is not liable tobe ejected. In this view the Subordinate Judge has dismissed the suit.

4. The plaintiff has now appealed to this Court and on hisbehalf it has been contended that the defendant has not acquired a right ofoccupancy in the land in suit, that the Subordinate Judge has overlookedmaterial evidence on the question of the occupation of other lands in thevillage as a ryot, and finally, that in any event the plaintiff is entitled toa decree for rent up to the date of the institution of the suit.

5. In our opinion, in so far as the claim for ejectment isconcerned, the plaintiff cannot possibly succeed. But before we deal with thequestion of the status of the defendant, it is necessary to advert for a momentto the finding of the Subordinate Judge that the defendant is a ryot in respectof other lands in the village. That finding has been attacked on behalf of theappellant on the ground that the Subordinate Judge has erroneously stated thatthe plaintiff has not adduced any evidence to rebut that on the side of thedefendant, to prove that he holds other lands in the village under differentproprietors and that he has acquired a right of occupancy in these lands. Nodoubt, the expression used by the learned Subordinate Judge is open tocriticism, but we are unable to hold that he has overlooked the evidencementioned in the judgment of the Court of first instance We must, therefore,proceed on the assumption that the defendant has been rightly found by theSubordinate Judge to be ryot in respect of other lands in the same village. Infact, the Subordinate Judge has found that the defendant has been a cultivatingryot of other lands in the village for more than 25 or 30 years before thesuit. In other words, he was a settled ryot in respect of those lands at thetime when the lease of the land now in dispute was granted to him. Thequestion, therefore, arises whether section 21 of the Bengal Tenancy Act readwith section 182 is sufficient to confer upon the defendant the status of anoccupancy ryot in respect of the homestead land now in dispute.

6. Now section 182 provides that when a ryot holds hishomestead otherwise than as part of his holding as a ryot, the incidents of histenancy of the homestead shall be regulated by local custom or usage, and,subject to local custom or usage, by the provisions of the Act applicable toland held by a ryot. In the case before us, no evidence has been adduced onbehalf of either party to show that there is any local custom or usageapplicable to the incidents of the tenancy in question. Consequently, theincidents of the tenancy must be governed by the provisions of the Actapplicable to land held by a ryot. The learned Vakil for the appellant has,however, contended that as the land now in dispute is not held under the samelandlord as the land cultivated by the defendant, section 182 has noapplication. This contention is opposed to the judgment of Mr. Justice Geidt inthe case of Protap Chandra v. Bisesiwar Pramanick : 9 C.W.N.416 and to the decision of this Court in the case of Kripa Nath Chakravarti v.Sheikh Anu : 4 C.L.J. 332 : 10 C.W.N. 944. The case lastmentioned lays down that the provisions of the Bengal Tenancy Act; applicableto the homestead of a person who is a ryot, although he is not a ryot of thevillage in which the homestead land is situated and is not a ryot of the samelandlord as the landlord of the homestead land. It may be observed that thisview is justified by the language used in section 182 and we see no reason torestrict the operation of that section by importing into it words not to befound therein. Consequently, we must hold that, although the land in dispute ishomestead land, as it is held by the defendant, who is a ryot otherwise than aspart of his holdings as a ryot, the incidents of his tenancy are, in theabsence of any local custom or usage, regulated by the provisions of the BengalTenancy Act applicable to land held by a ryot. Prima facie, therefore, theprovisions of section 21 are applicable. But the learned Vakil for theappellant has contended that before section 21 can be applied, it must be shownthat the land in suit has been held by the defendant as a ryot, becausesub-section (1) of section 21 provides that every person who is a settled ryotof a village within the meaning of section 20 shall have a right of occupancyin all land for the time being "held by him as a ryot in that village." The learned Vakil for the appellant has conceded that his contention isopposed to the decision of Mr. Justice Rampini in the case of Munshi GolamMollah v. Abdul Sowar : 13 C.L.J. 255 : 9 Ind Cas 922 [LQ/CalHC/1893/41] , but hehas argued that in that decision sufficient weight was not attached to thequalifying words held by him as a ryot in that village. Upon the argumentswhich have been addressed to us, we need not decide this question for thepurposes of the case before us and when it arises in a case where it reallycalls for decision, the matter may require further consideration. But we are ofopinion that the plaintiff must fail on another ground. The suit is clearlybarred under sections 44 and 45 of the Bengal Tenancy Act. Section 45, as itstood at the time of the institution of the suit, provides that a suit forejectment on the ground of expiration of the term of a lease shall not beinstituted against a non-occupancy-ryot unless notice to quit has been servedon the ryot not less than six months before the expiration of the term andshall not be instituted after six months from the expiration of the term. Now,the defendant has been found to be a, ryot. Even if it is assumed that he isnot an occupancy-ryot in respect of the disputed land because, as the learnedVakil for the appellant contends, section 21 has no application to the land insuit, be is at least a non-occupancy-ryot, Hence, before the defendant isejected, the requirements of section 45 must be fulfilled. But it cannot bedisputed that no notice to quit was served on the defendant within six monthsbefore the expiration of the term, that is, within six months before the 20thJuly 1899. Nor has the present suit been instituted within six months after theexpiration of the term. It is obvious, therefore, that section 45 is a bar tothe claim for eviction of the defendant and the refusal of the Court below tomake a decree for ejectment was correct.

7. In so far as the claim for rent is concerned the learnedVakil for the respondent has conceded that the matter has been overlooked bythe Subordinate Judge. We observe, however, that interest was claimed by theplaintiff at the rate of 75 per cent per annum under the terms of the lease.Under section 178, sub-section (3), clause (g) of the Bengal Tenancy Act,nothing in any contract made between a landlord and a tenant after the passingof the Act, can affect the provisions of section 67 relating to interestpayable on arrears of rent. Consequently, the plaintiff is not entitled toclaim interest at a rate higher than 12 per cent, per annum. A decree,therefore, will be made in favour of the plaintiff for the rent of the year1312 and the first two installments of 1313 with interest at 12 per cent perannum.

8. The result, therefore, is that the decree of the Courtbelow, in so far as it dismisses the claim for ejectment, must be affirmed butin so far as it dismisses the claim for rent and damages it must be reversed,and in lieu thereof a decree will be made in favour of the plaintiff as stated.The plaintiff must pay the defendant his costs in the Court of first instanceand in the Court of appeal below; but there will be no order for costs in thisCourt.

.

Harihar Chattopadhyayavs. Dinu Bera (29.01.1911 -CALHC)