Dhavle, J.This is an appeal by the judgment-debtors from a decision disallowing their application objecting to the execution sale of a plot of land No. 658 on the ground that it was exempt from sale u/s 47, Chota Nagpur Tenancy Act.

2. It appears that plot No. 658, together with plot Nos. 656 and 657 and other plots, formed the homestead lands of the judgment-debtors a id was recorded in khata No. 40 of the Record-of-Rights which showed the status of the judgment debtors as settled raiyats. In 1925, a suit was brought against them for recovery of possession of plots Nos. 656 and 657 on the basis of a kabala. This was decreed in spite of the objection that the land could not be sold, and the execution case out of which the present appeal arises was started for recovery of the costs awarded to the decree-holder in the suit and appeal. The objection of the appellants that the land is exempt from sale has been disallowed by both the lower Courts.

3. One of the grounds on which the lower Courts disallowed the appellants objection is that the appellants were concluded by the principle of res judicata since the question of the liability of the homestead to sale was decided against them in the original suit and appeal. It has been contended on behalf of the appellants that the doctrine of res judicata has no application in view of the special provisions of Section 47, Chota Nagpur Tenancy Act. This section provides not only that no decree or order shall be passed by any Court for the sale of the right of a raiyat in his holding, but also that no such right shall be sold in execution of any decree or order. The learned advocate for the appellants has cited Rup Nath Mandal Vs. Jagannath Mandal, a decision in which it was held that the bar imposed by the section upon sales in execution applied even to mortgage decrees. Macpherson there observed:

It is altogether illegal to sell a raiyat right in land even in execution of a decree or order directing such a sale. Not only may an objection be taken in execution that the land sought to be sold is not saleable.

and Kulwant Sahay, J., held :

Whether the judgment-debtor took the objection or not, the sale of a holding which found to be raiyati cannot take place in the face of the clear provisions of Section 47, Chota Nagpur Tenancy Act.

4. The view of the lower Courts that the appellants are concluded by the doctrine of res judicata from raising the point in execution proceedings must therefore be overruled.

5. The next point urged on behalf of the appellants is that, they have an occupancy right in the homestead plot u/s 78 of the Act by reason of the fact that they are recorded as settled raijats of Kanglatanr, a Mouza which adjoins Chandil, the mouza in which the plot in question is situated. As I have already said, the appellants are recorded as settled raiyats of Chandil as well, but in the original sail; and appeal it was held that entry-in the Record-of-Eights was incorrect, and appellants do not now take their stand on that entry. Now, Section 47 saves the right of a raiyat in his holding", and thus the question really is whether Section 78, Chota Nagpur Tenancy Act operates to make the appellants interest in the homestead plot No. 658, " the right of a raiyat in his holding". The section, which is in exactly the same terms as Section 182, Ben. Ten. Act, reads

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.

6. No question of local custom or usage is raised in the case, and we have thus to consider the effect of the application of "the provisions of this Act applicable to land held by a raiyat" to the "incidents" of the appellants tenancy of the homestead plot. The learned District Judge considers that the section has no application for this reason among others, that.

it must be shown that the homestead land is held as a raiyat. If such land came to be in the occupation of the judgment-debtors before their acquisition of the raiyati holding, the section would obviously be of no assistance to them. It has not been proved that this was not the case or that it formed a necessary adjunct to the user of the raiyati lands.

7. The learned advocate for the appellants has assailed this view of the strength of the rulings in Bhikariram Bhagat v. Maharaj Bahadur Singh [1917] 43 Cal. 195 and Sukh Lal Shah Vs. Prosanna Kumar Shaha and Another, . In the later of these cases it was held that a tenant of homestead land which was settled with his predecessor "in about 1850" was not liable to be ejected from it under the Bengal Tenancy Act as he had taken a raiyati settlement of agricultural land in 1916, their being nothing in the Bengal Tenancy Act to save even pre-existing contracts from the operation of Section 182. Section 78(1)(c), Chota Nagpur Tenancy Act, like Section 178(1)(c), Ben Ten. Act saves a tenant from ejectment notwithstanding any contract with the landlord made even before the commencement of the Act. It thus follows from the decision in Sukh Lal Shah Vs. Prosanna Kumar Shaha and Another, that Section 78, Chota Nagpur Tenancy Act will apply even if a tenant took a settlement of a homestead before taking a raiyati or agricultural settlement. But there is a concurrent finding of the lower Courts that the appellants holding in Kanglatanr has ceased to exist, and it seems to me that Section 78 will only apply so long as the tenant of the homestead continues to be a raiyat in respect of other land, but no longer. This was clearly brought out in a recent decision to which I was a party Bishnath Singh Vs. Musammat Bibi Ayesha, . The holding of a settled raiyat was in that case purchased by the landlord in execution of a rent decree and was again settled with him more than a year afterwards under a kabuliyat for nine years. The question was whether by the combined operation of Section 21 (corresponding to Section 19, Chota Nagpur Tenancy Act) and Section 182, Ben. Ten. Act the tenant acquired occupancy rights in the holding, under the fresh settlement, by reason of the fact that he had continued to hold some homestead land in the interval. It was held that the incidents of his tenancy of the homestead were u/s 182 regulated by the provisions of the Act applicable not to land which might at any time have been held, but to land actually hold by him for the time being as a raiyat. The finding of the lower Courts that the appellants have no longer any raiyati lands in Kanglatanr will thus disentitle them to the benefit of Section 78, Chota Nagpur Tenancy Act.

8. It will further appear from the decision in Bishnath Singh Vs. Musammat Bibi Ayesha, that the section merely provides how the "incidents" of the tenancy of the homestead shall be regulated and that it does not create a raiyati interest in the homestead land. The distinction comes out clearly in such cases as Krishna Kanta Ghose v. Jadu Kasya [1915] 21 C.L.J. 475. That was a case in which a raiyat had taken a sublease of a homestead forming part of another raiyats holding, and the question was whether as an under raiyat ho was not liable to be ejected from the homestead on a notice to quit, or whether Section 182, Ben. Ten. Act operated to save him from ejectment u/s 49(b), Ben. Ten. Act. Their Lordships observed:

Section 182, however, provides not merely that the provisions of the Bengal Tenancy Act would apply, hut that the provisions of the Act applicable to land held by a raiyat shall regulate the incidents of the tenancy of the homestead. If Section 182 applies, and 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.

9. It follows from this that the appellants status as raiyats in Kanglatanr, even if it had continued to the date of the execution proceedings, will not operate to make their interest in the Chandil homestead "the right of a raiyat in his holding". Nor will the fact that they were recorded as settled raiyats of Kanglatanr give them a right of occupancy u/s 19, Chota Nagpur Tenancy Act in the Chandil homestead, as the section is confined to "land for the time being held by him as a raiyat" and in the village of which he is a settled raiyat. In this view it becomes unnecessary to consider the question referred to in Gaya Singh v. Dist Board Patna [1919] P.H.C.C. 235, namely, how far it was correctly held in Kirpa Nath v. Anu 10 C.W.N. 944 and Harihar Chattopadhya v. Dinu Bora [1911] 14 C.L.J. 170 that for Section 182 Ben. Ten. Act to apply it is not necessary that the homestead and the raiyati lands should be in the same village. As their Lordships observed on that occasion.

This decision is very far-reaching, and may under suitable conditions require further judicial consideration in this province,

10. The result is that Section 78, Chota Nagpur Tenancy Act is not available to the appellants for saving their homestead plot from the execution sale. It has not seemed to me worth while to deal with the question hinted at in the judgment of the learned Munsif whether the Record-of-Rights correctly shows the appellants as settled raiyats of Kanglatanr, having regard to the fact that the holding there consisted only of homestead plots some of which have been made into paddy fields. There is no pronouncement at all on the point in the judgment of the lower appellate Court, nor are there full findings of fact arrived at by the lower Courts on the point.

11. The only other question raised by the learned advocate for the appellants was that the homestead plot was exempt from the sale u/s 60, Civil P.C. This contention was not raised below and cannot be now entertained as it depends on matters which required to be proved but were not put in evidence below.

12. In my opinion the appeal fails and must be dismissed with costs.

Kulwant Sahay, J.

I agree.