Francis Maclean, C.J.

1. A preliminary objection has been taken on behalf of therespondent in this case to the effect that a reference to a Full Bench cannotbe made by a Judge of this Court sitting alone to hear cases in which the valueof the subject-matter in dispute does not exceed Rs. 50. The point is one ofconsiderable importance. Under Rule 1 of Chapter V of the Rules of the HighCourt, Appellate side, a reference to a Full Bench can only be made when oneDivision Court differs from another Division Court upon a point of law or usagehaving the force of law. The question, therefore, to my mind resolves itselfinto this, whether a Judge sitting alone, as was the case here, is a"Division Court" within the meaning of the rule which I have justread. When we look at the rules carefully it will be found that in themdistinctions are drawn between a Division Court and a Judge sitting alone. Thatis apparent from Rule 6, Chapter VI, in which, speaking of appeals under clause15 of the Letters Patent, the rule says: "In every appeal under clause 15of the Letters Patent against the judgment of a Division Bench or of a Judgesitting singly on the Appellate side of the High Court." That shows thedistinction which is drawn between a Judge sitting alone and a Division Court.In referring to that rule I am not unmindful of the argument which wasaddressed to us to the inference properly deducible from Rule 1 of thatChapter, which speaks of every appeal to the High Court under clause 15 of theLetters Patent from a judgment of a Division Court on the Appellate side of theHigh Court. It was contended that, in as much as there was an appeal under thatclause from the decision of a Judge sitting alone, and as the rule only refersto a Division Court, the inference was that a Judge sitting alone was to betreated and regarded as a Division Court within the meaning of the rule, andthat an indication was thus afforded that the distinction which I havesuggested between a Division Court and a Judge sitting alone was not wellfounded. But giving all weight to that contention, and it was upon this rulethat Dr. Ashutosh Mukerjee mainly relied, we must necessarily look at all therules, and I think we obtain a fairly clear indication of what was intended bythe term "Division Court" from Section 13 of 24 and 25 Vic, cap. 109,the Act establishing High Courts of Judicature in India. That section showsthat a "Division Court " must be constituted of two or more Judges ofthe High Court, which is incompatible with such a Court being composed of asingle Judge sitting alone. It can hardly be supposed that the framers of therules made under the Act intended to use the term "Division Court" ina sense different from that in which it was used in the Act itself. Moreoverthe term "Division Court" is scarcely the term one would ordinarilyapply to a Judge sitting alone.

2. The view that one Judge cannot refer a case to a FullBench is further strengthened by Rule 2 of Chapter V, which indicates that atleast two Judges must differ from the decision of the former Division Court. Onthese short grounds, I am of opinion that it is not competent for a Judgesitting alone to make a reference to a Full Bench, and consequently that thepreliminary objection must prevail. The result, therefore, is that thereference to a Full Bench is irregular, and the case must go back to thelearned Judge who made the reference, to be dealt with by him as he thinksright.

3. Under the circumstances we do not think there ought to beany costs of this hearing.

Case remanded.

4. After the case was remanded to Mr. Justice Rampini, he,having heard the Vakils on both sides, delivered the following judgment:

5. This case was heard by me, sitting alone on the 28th May1897. On that occasion no one appeared for the respondents. I reservedjudgment, and on the 7th June 1897 I referred the case to a Full Bench. It hasnow been held that I had no power under the rules of Court to refer the case toa Full Bench and the case has been returned to me for disposal.

6. The respondents now appear by pleader, who argues that hehas a right to be heard on behalf of the respondents as the order of the FullBench reopens the case. I am of opinion that looking at the provisions ofSections 556 and 571 of the Civil Procedure Code, the pleader for therespondent has no right at this stage of the case to be heard, but I haveallowed him to appear as amicus curia and argue the case for the respondents inthat capacity.

7. His contentions are: (1) That whether the defendant No. 2has a permanent interest in the homestead land, which is the subject of disputein this case, or not, he has an assignable interest in it, and, therefore, thatthe defendant No, 1 is a tenant of the land and cannot be ejected without anotice to quit; (2) that the cases cited by me in my order of reference laydown no hard and fast rule as to when a Court may infer that a tenancy ofhomestead land is of a permanent character; and (3) that the lower Courts inthis case have come to a finding of fact as to the tenancy of defendant No. 1having been of a permanent nature, and that I cannot interfere with thisfinding in second appeal.

8. In support of his first contention the learned pleaderfor the respondent has cited the Transfer of Property Act, Sections 106, 108(j) and 111 (h), and the cases of Beni Madhab Banerjee v. Jai Krishna Mookerjee(1869) 7 B.L.R. 152; Durga Prasad Misser v. Brindaban Sookul (1871) 7 B.L.R.159; Doya Chand Shaha v. Anund Chunder Sen Mozumdar (1887) I.L.R. 14 Cal. 382;Appa Rau v. Subbanna (1889) I.L.R. 13 Mad 60. and Venkatasamy Naick v.Muthuvijia Ragunada (1870) 5 Mad HC 227.

9. Regarding the learned pleaders reference to theprovisions of the Transfer of Property Act, I would only say that I havealready in my judgment of reference expressed my opinion that the provisions ofthe Transfer of Property Act do not apply to this case as the defendant No. 2slease is of date anterior to the passing of that Act. The case of Sari NathKarmoker v. Rajendra Karmoker (1897) 2 Cal. W.N. 122 which I then cited, hasnow been fully reported in : 2 C. W. N. 122. In the judgmentin this case, I have referred to the case of Beni Madhab Banerjee v. JaiKrishna Mookerjee (1869) 7 B.L.R. 152 and stated that, in my opinion, it showsthat previous to the passing of the Transfer of Property Act non-agriculturalholdings might or might not be assignable. In the present case the lower Courtshave both held that the land in dispute is not transferable by custom, and I donot see that it was ever contended on behalf of the respondents in the Courtsbelow that it was transferable or assignable on any other ground. From thejudgment of the Munsif it no doubt appears that the defendants in theirpleadings did plead that the "jama was transferable according to law andcustom." But the contention raised at the trial was only that it wastransferable by custom and this plea was negatived by both Courts. Anyhow,there was no law before the passing of the Transfer of Property Act which madea lease of homestead land transferable otherwise than by custom.

10. I have nothing further to add to the remarks I havealready made in my judgment of reference on this case of Beni Madhab Banerjeev. Jai Krishna Mookerjee (1869) 7 B.L.R. 152. The case of Durga Prasad Misserv. Brindaban Sookul (1869) 7 B.L.R. 159 seems to me to lay down no generalrule. On the contrary, Jackson J., observed that "everything must dependon the circumstances of the case," and in that case the defendant had beenallowed to erect buildings on the land, and it was said that his holding wasnot a temporary one.

11. Then the case of Doya chand Shaha v. Anund Chunder SenMozumdar (1887) I.L.R. 14 Cal. 382 evidently refers to a raiyati holding, andnot to a plot of homestead land. This is apparent from the terms of thejudgment and is demonstrated by the fact that it was referred to and notfollowed in the case of Kripamoyi Dabia v. Durga Gobind Sirkar (1887) I.L.R. 15Cal. 89 which relates to a raiyati holding, and in which the learned Judges iwho decided it, said: "It seems to us that unless the defendant can provethe tenure set up by him, viz., a permanent and transferable tenure, theplaintiff, the admitted landlord, is entitled to enter into possession, andthis view has been uniformly taken by this Court, as would appear from anexamination of the case quoted above."

12. The cases of Appa Rau, v. Subbanna (1889) I.L.R. 13 Mad.60 and Venkaiasamy Natch v. Muthavijia Ragunada (1870) 5 Mad. H. C. 227 werealso not cases concerning homestead land, and are, therefore, I thinkirrelevant.

13. In respect to the learned pleaders contention thatthere is a conclusive finding of fact by the lower Courts, I would only referto the Privy Council case of Ramgopal v. Shamskhaton (1892) I. L. R 20 Cal. 93: L.R. 19 I. A. 228 which in my opinion effectually disposes of it.

14. The cases, I have cited in my judgment of reference maylay down no hard and fast rule on the subject, but the rule which I thinkshould be deduced from, them is, as I have already pointed out, that mere longpossession of homestead, land is not sufficient to justify the presumption of apermanent grant, and that, before such a presumption can be made there must besomething more, viz., either (l) the land having been let for the erection ofpucka buildings or (2) a standing by on the part of the landlord, while thetenant without objection, erects permanent buildings or effects substantialimprovements on the land. In addition to the cases already cited, I would quoteone more, viz., Lalla Gopee Chand v. Liakut Hossein (1876) 25 W.R. 211 which Iconsider supports the view I take of this subject.

15. Taking this view of the matter, I must hold that theCourt below were not justified in presuming that the defendant No. 2 had apermanent and transferable interest in the land, and therefore that the suitshould have been decreed. I accordingly decree this appeal and the suit withall costs in all Courts.

16. My judgment of reference dated 7th June 1837 should beread along with, this judgment, as the first part of it.

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Nabu Mondul vs.Cholim Mullik and Ors. (03.02.1898 -CALHC)