1. The Naihatti Jute Mills Company, Limited (hereaftercalled the company), the appellant before us, had about the year 1906constructed a jute mill in two adjoining villages, Hazinagore and Prosadnagoresituate within Police Station, Naihatti in the District of Twenty-fourPergunahs. For the purpose of extending the jute mill it took in the years 1919and 1920 three permanent leases of lands in village Prosadnagore by threepottas, Exs. 5 to 5 (b), granted by Raja Kishorilal Goswami, the Mitters ofHooghly and by Madan Mohan Dey, the proprietors of the said village. Thoseleases were for manufacturing purposes and so the status of the company inrespect of the lands covered by those leases is that of a tenant governed bythe provisions of the Transfer of Property Act.

2. Kaliprosad Shaha and his co-sharer Jiban Kristo Shaha,Bhagjogini Bibi and Nobi Rasul held between them six tenancies in MouzaProsadnagore under the company. The lands comprised in those tenancies are someof the lands included in the permanent leases, Exs. 5 to 5(b), which the companytook from the aforesaid proprietors of that village in the years 1919 and 1920.In the record of rights prepared under Ch. X of the Bengal Tenancy Act andfinally published in the year 1933 those six tenancies were recorded as basattenancies, that is to say, tenancies created for residential purposes. Thosesix tenancies are the subject-matter of the six appeals before us.

3. All the said persons, Kaliprosad Shaha and his co-sharer,Bhagjogini Bibi and Nobi Rasul held and still hold arable lands in villagesadjoining Prosadnagore. In respect of those arable lands they have beenrecorded in the said record of rights as "settled rayats."

4. The company treated the aforesaid six tenancies recordedas basat tenancies in the record of rights as tenancies at will and servednotices to quit on the said tenants requiring them to vacate on the expiry ofthe month of December 1938. On the expiry of the period of the notices itinstituted six suits for ejectment and mesne profits against them on 21st April1939. Suits Nos. 98 and 99 of 1939, Second Appeals Nos. 834 and 835 of 1941,Letters Patent Appeals Nos. 2 and 3 of 1946, were filed against KaliprosadShaha and his co-sharer and related to the lands of their two basat tenancies;Suits Nos. 96 and 97 of 1939, second Appeals Nos. 836 and 837 of 1941, Letterspatent Appeals Nos. 4 and 5 of 1946 were filed against Bhagjogini Bibi andrelated to the lands of the two basat tenancies held by her; and Suite Nos. 100and 101 of 1939, Second Appeals Nos. 838 and 839 of 1941, Letters patentAppeals Nos. 6 and 7 of 1946 were filed against Nobi Basul and related to thelands of the two basat tenancies held by him. All these six suits were heardtogether and decreed in part by the Court of first instance and also by thelower appellate Court. The prayers for ejectment were allowed but the claimsfor mesne profits were disallowed for want of evidence. The six second appealspreferred by the tenants defendants were heard by our learned brotherChakravartti J. and were allowed. He dismissed the companys suits againstKaliprosad Shaha and his co-sharer and against Bhagjogini Bibi in theirentirety, but remanded the cases against Nobi Rasul for further hearing on aquestion of fact which we will indicate hereafter. The company has preferredthese six appeals under cl. 15, Letters Patent, with leave of our learnedbrother.

5. The common defences taken in all the six suits were: (1)that the notices to quit were not sufficient in law to terminate the tenancies,and moreover they had not been served: (2) that even if the lands had beentaken for residence, they were protected from eviction by reason of theprovisions of S. 182, Bengal Tenancy Act.

6. The defendants in Suits Nos. 96, 97, 100 and 101(Bhagjogini and Nobi Rasul) took the further defence that their tenancies weregoverned by the Bengal Tenancy Act as the lands had been taken for cultivation.The defendants Kaliprosad Shaha and his co-sharer also took a further defencewhich was that their tenancies were permanent ones.

7. Issues framed by the Court of first instance were asfollows: (1) Are the tenancies governed by the Bengal Tenancy Act (2) Are thedefendants permanent tenants or tenants-at-will (3) Are the suits barred underS. 182, Bengal Tenancy Act

8. The other issues related to the other defences and neednot be set out. The Courts below found that the lands in suit had not beensettled for agricultural purposes, that the tenancies of Kaliprosad and hisco-sharer were not permanent ones, that the notices to quit had been dulyserved, and, if the tenancies were governed by the Transfer of Property Act,they were sufficient in law to terminate the tenancies as from the 1st January1939. Issues Nos. 1 and 2 being concluded by findings of fact were not furthercanvassed before our learned brother or before us by the defendants.

9. Issue No. 3 was argued by both parties in the Courtsbelow on the basis of S. 182, Bengal Tenancy Act, as it stood after itsamendment by Bengal Act IV [4] of 1928. The defendants did not contend in theCourts below that the incidents of their tenancies had to be determined on thebasis of S. 182, Bengal Tenancy Act, as it stood before its amendment, with theresult that while discussing issue No. 3, the Courts below did not consider theevidence (1) as to when the defendants or their ancestors, as the case may be,had acquired the tenancies in suit and (2) what is of greater importance, as towhen they or their ancestors acquired the agricultural holdings in theadjoining villages in respect of which they have been recorded as settledrayats. Only if they had acquired the tenancies in suit as also the rayatiholdings before 1st January 1929, old S. 182 could, if at all, be invoked bythem to their aid. No specific findings on those two points were recorded bythe Courts below in that part of the judgments where issue No. 3 was dealtwith. While reviewing the evidence for deciding issue No. 1 the Courts below,however, for the sole purpose of considering whether the evidence led by thedefendants to the effect that the suit lands had been used in the past to raisecrops observed that the lands of the four tenancies which were thesubject-matter of the four suits Nos. 96, 97, 100 and 101 (namely those againstBhagjogini and Nobi Rasul) formed in the past the tenancy of one Amir Mean, andwhile discussing issue No. 2, the issue raised on the special defence in suitsNos. 98 and 99 (namely, those against Kaliprosad Shaha and his co-sharer),found that the defendants of those suits had inherited the tenancies in suit atleast from their grand-fathers, Gopi and Gobinda. Our learned brother suppliedthe findings on these points. As the record of rights finally published in 1933had recorded the defendants as "sthitiban rayats" in respect of theiragricultural holdings in the adjoining villages he made the inference of factthat they had acquired rayati holdings in those villages before 1st January1929, when the amended S. 182 came into force. No exception can be taken tothis inference of fact.

10. On the other point he came to the conclusion that thelands of the four basat tenancies that were the subject-matter of suits Nos.96, 97, 100 and 101 appertained in the past to a tenancy held by Amir Mean andthat Amir Means tenancy had originated before 1929. That case was set forth bythe defendants of those suits for the purpose of issue No. 1. Their evidence onthis point was not contradicted by the company. The case of the defendants ofthose suits was further that some of the heirs of Amir Mean sold a portion ofthe lands comprised in Amir Means tenancy to Nobi Rasul, the defendant insuits Nos. 100 and 101, and the rest was retained by his heirs and thatBhagjogini, the defendant in suits Nos. 96 and 97, was the widow and heiress ofone of the sons of Amir Mean. As the evidence led by the defendants on thispart of the case was one-sided our learned brother accepted the same. Oralevidence was given by the defendants to the effect that Nobi Rasula purchasewas about 16 or 18 years before suit which would place the origin of histenancies before 1929, but our learned brother either overlooked that evidenceor may not have consider, ed it safe to rely upon it, as the witnesses who hadsaid so had been disbelieved by the Courts below on other points material tothe cases. His judgment, however, gives no indication either way. Heaccordingly remanded the cases against Nobi Rasul for further investigation asto whether he had acquired the tenants interest in the lands of suits Nos. 100and 101 before S. 182 was amended by Act IV [4] of 1928. Our learned brotheralso noticed the admissions made by the defendants in suits Nos. 98 and 99 thatthe lands held by them, though at one time had been used for residence, had nostructures from some time past, that the house fell down a long time ago andsoon after its construction, and the lands became covered with jungle, that oneof the defendants, Kaliprosad Shaha, has been living at Bhowanipur and theother defendant, Jiban Krishna Saha, at Hooghly, and concurred with thefindings of the Courts below based on those admissions, that the lands held bythem were not being used for habitation and had long ago ceased to have thecharacter of a rayats homestead. He expressed the opinion that in thosecircumstances they could not invoke the provisions of S. 182, Ben. Ten. Act, toprevent eviction claimed on the basis of the notices to quit, but stilldismissed those two suits on the ground that the point of law on which he hadexpressed the aforesaid opinion had not been argued by the plaintiff companyslawyers in the Courts below. We do not consider this to be a satisfactory wayof disposing of these two cases, seeing that when he decreed all the six secondappeals filed by the defendants, including those filed by these two defendants,on a point of law not only not raised by them in lower Courts but also notraised by them before our learned brother but which our learned brother himselfraised for them. We propose to set out some portions of his judgment which is reportedin Kali Prosad v. Naihati Jute Mills Co., Ltd., : 50 C.W.N.50 : (A.I.R. 1946 Cal. 73) [LQ/CalHC/1945/118] . Dealing with the appeals arising out of suits Nos.98 and 99 he made the following observations at p. 52 of the report:

With respect to the tenancies to which these appeals relateit has been found by the trial Court that although the land was used at onetime for residential purposes, the house constructed thereon fell down shortlyafter its construction and the land has since been lying jungly and fallow. Thelower appellate Court appears to accept this finding and further finds that thetenants of these tenancies are now living at Bhawanipore and Hooghlyrespectively. In the circumstances a question might well arise whether therewas any homestead at all to attract the provisions of S. 182, Ben. Ten. Act.That section by its terms applies only to the homestead of a rayat orunder-rayat which he may hold otherwise than as part of his rayati or underrayati holding and the language, to my mind, requires that the land shouldactually be used as a homestead or at least still be possessed of its homesteadcharacter when the section is sought to be used for its protection. Noobjection on this ground was however taken in the Courts below and none was takenbefore me. I must, therefore, proceed on the basis that the lands to which thisgroup of appeals relate are homestead lands and they are not excluded from theoperation of S. 182, Ben. Ten. Act, by any special fact.

Then he went on to observe at p. 53 of the report that theargument addressed to him "was, in the case of both parties, solely byreference to S. 182, Ben. Ten. Act, as amended in 1928." He dealt with thearguments so addressed to him and came to the conclusion that under the amendedsection the position of the tenant

must be judged by reference to the landlord (of thehomestead) for the time being, except perhaps in cases where there has been achange in the landlord since the section became applicable and some suchconsideration as that a status once acquired by a tenant cannot be lost,intervenes.

Then he expressed agreement with the views of the Courtsbelow on the section as amended in 1928 that if the landlord of the homesteadhad no status under the Bengal Tenancy Act that section does not attract theBengal Tenancy Act at all. In spite of the reservation which he made in thepassage just quoted he made the further observation that

if the superior interest in the homestead changes hands thetenants status varying therewith may prove to be a fluctuating one, comingonce to be governed by the Bengal Tenancy Act and again by the Transfer ofProperty Act and once again by the former. There may he means of avoiding thisresult or there may not be. But on the words in which the section is expressedthe interpretation adopted above, seems inescapable (p. 57 of the report).

We are not concerned with the strong criticisms of thesepassages made by the advocates that the aforesaid two passages are somewhatcontradictory or that cardinal rules of construction of statutes which requireabsurdities to be avoided, if possible, were not kept in view by our learnedbrother. What we feel is that in a matter of this nature the best effort shouldbe made to construe the section and the law should be laid down in a definitemanner, and it is for that purpose we propose to deal with the matter in acomprehensive manner, though in so dealing with the matter some of ourobservations would be obiter dicta.

11. After giving his interpretation of S. 182 as amended in1928, our learned brother observed as follows at p. 57 of the report:

It is true that it was the defendants who pleaded thesection in bar and the only question put in issue by them and tried by theCourts below was a question under the amended section. Nevertheless, allnecessary facts have been found and if it appears from these facts that therights of the parties must he governed not by the new section but by the old, Iam not debarred from saying so in second appeal.

Then he recalled the facts and himself found for the firsttime that the rayati holdings had been held by the defendants from before theamendment of S. 182. There was no finding to that effect by any of the Courtsbelow, but as we have already said, no exception can be taken to thecorrectness of his finding. The other fact which was necessary in order thatthe old section may apply was whether the lands claimed as homestead had beenacquired by the defendants before the amendment of S. 182 in 1928. He foundthat in four of the Suits Nos. 96, 97, 93 and 99 they had been, but remandedthe other two Suits Nos. 100 and 101: "as it was not clear whether thedefendant acquired the homestead during the currency of the old section orthere after" as he considered it right that the matter should be furtherinvestigated (p. 59 of the report). It is thus clear that in his opinion inthose two cases the necessary facts had not been found. The Learned Counselappearing for company says, and we agree with him, that it is difficult toreconcile this with what he said before in support of his observation that hewas at liberty to consider the point as to the applicability of the oldsection, a point raised for the first time in second appeal by himself. Hecontends that in these two cases at least this new point ought not to have beenraised or considered for the first time in second appeal as necessary facts hadnot been found by the Courts below. His further contention is that his clientsreceived discriminatory treatment in the second appeals. We see great force inmost of his criticisms. He contends that two courses were open to our learnedbrother and are open to us and no third course, namely, (1) either to pin downthe parties to the case they had put forward in the lower Courts and to disposeof all the second appeals on that footing, or (2) to proceed to decide all thesis second appeals on such questions of law as would arise on the facts. Hesays that it the first course had been adopted by our learned brother and beadopted by us all, the second appeals are to be dismissed on the constructionof the amended S. 182 as adopted by our learned brother and, if the secondcourse had been adopted or be adopted, second appeals Nos. 834 and 835 whichrelate to suits Nos. 98 and 99 are to be dismissed on the conclusions of lawarrived at by our learned brother that S. 182 gave no protection to the tenantsas the lands had ceased to be their homesteads, (and in this respect there isno difference between the wording of the old and the new section); that at mostAppeals Nos. 836 and 837 (Bkagjoginis appeals) which relate to Suits Nos. 96and 97 can be allowed and the point relating to the applicability of old S. 182ought not to have been allowed by our learned brother to be raised for thefirst time in Second Appeals Nos. 838 and 839 (Nobi Rasuls appeals) whichrelate to Suits Nos. 100 and 101, as it would have involved an investigationinto facts, and so these two appeals ought to have been dismissed by him.

12. In view of the special circumstances of these cases, wethink we ought not to shut the parties out, either the plaintiff company or thedefendants, from raising points of law which arise on the facts of the cases,either on the facts as found by the lower appellate Court or on facts on whichwe ourselves can record findings by going through the evidence, for, in asecond appeal, this Court has the power under S. 103, Civil P.C., to determinean issue of fact, if the evidence on the record is sufficient, which has notbeen determined by the lower appellate Court, and to avoid a remand, should doso, where the evidence is not complicated or voluminous. The facts found by thelower appellate Court or by our learned brother are: (1) that the lands insuits Nos. 98 and 99 were at one time used as residence, but the house felldown within a short time of its construction, that the lands became jungly andfallow and that the defendants of these suits are living far away-one inCalcutta (Bhowanipore) and the other at Hooghly. These findings which have beenrecorded by the lower appellate Court are binding on us in second appeals; (2)that the defendants in all the six suits had acquired rayati holdings inadjoining villages before the amendment of S. 182 in 1928. There was no findingby Courts below, but this is the finding of our learned brother and we agreewith him. The entries in the record of rights support this finding. They raisea presumption of correctness and the plaintiff company has not challenged theircorrectness; (3) that the defendants in Suits Nos. 96 and 97 (Bhagjogini Bibi)had obtained the homestead in suit immediately by inheritance from Amir Meanwho was the tenant thereof from before 1928. This is our learned brothersfinding and we agree with him as the evidence is one-sided; (4) that thetenancies in the lands in suit in Suits Nos. 98 and 99 had been held by thedefendants or their forefather from before 1928. This is the finding of theCourt of appeal below and so binding on us; and (5) that the defendant of SuitsNos. 100 and 101 (Nobi Rasul) had purchased a portion of the lands which AmirMean held from one of the latters heirs. The lower Courts apparently believedthe story that his purchase was 16 to 18 years before suit as deposed to bythat defendant and his witnesses. This evidence was not challenged by theplaintiff company in cross-examination. On the evidence, we hold that NobiRasul came to hold the homestead as a tenant under the company during thecurrency of old S. 182, Bengal Tenancy Act.

13. We will proceed to discuss the law which arises on thesefindings, and will also consider the effect of S. 182 as amended by Act IV [4]of 1928.

14. The old section-S. 182 as it stood before the amendmentof 1928-dealt with the rights of a rayat in respect of his homestead when itwas held by him otherwise than as part of his agricultural holding. The sectionprovided that the incidents of his homestead, so held, were to be governed bylocal custom and, in the absence of local custom, by the provisions of theBengal Tenancy Act applicable to rayats. We would not refer to the case ofcustom any further, because that part of the section has been omitted in theamended section. When the old section was in force it was held uniformly thatin order to attract the section: (1) the agricultural holding may beanywhere-need not be in the same village where the homestead was situated or inan adjoining or even in a nearby village; (2) that the agricultural holding andthe homestead need not be under the same landlord; (3) that the word "homestead"occurring in that section is not "a generic term descriptive of aparticular kind of land but it denotes land on which a rayat has a house wherehe lives," Dina Nath Nag v. Sashi Mohan De Tarafdar, 22 C.L.J. 219 at 222: (A.I.R. 1916 Cal. 730); (4) that it is not necessary that the agriculturalholding should have been acquired either before or simultaneously with thehomestead land. It would attract the section to the homestead even if theagricultural holding had been acquired after he had acquired the homestead inwhich he is living: Sukh Lal Shaha v. Prosanna Kumar Shaha, :44 C.L.J. 302 : (A.I.R. 1926 Cal. 1199) [LQ/CalHC/1925/432] ; Pulin Chandra Daw v. Abu Bakar Naskar,: 40 C.W.N. 599 : (A.I.R. 1936 Cal. 565) [LQ/CalHC/1936/12] . In both these reportedcases and in other cases falling within this type the tenant was holding theagricultural holding and was living in his house standing on the homestead landat the time when the landlord filed the suit to eject him from the homestead;and (5) that when a person who had an agricultural holding in respect of whichhe was a rayat and has a homestead in which he is living sells the agriculturalholding to another but retains the homestead he can still say that by reason ofthe provisions of S. 182 his homestead still retained the incidents of a rayatiholding after he had parted with his agricultural holding: Haru Charan Manna v.Sourendra Nath Ghosh, : 40 C.W.N. 182. The decision, however,is of a single Judge and though no reasons have been given in the judgment, itcan be supported on the principle that a status once acquired cannot be lost inthat manner. The correctness of this decision has to be determined for thepurpose of deciding the two suits Nos. 98 and 99, instituted by the companyagainst Kaliprosad Shaha and his co-sharer.

15. The decisions noted by us under the headings, (2) to (5)proceed upon the language of that part of the old section which has been leftunaltered in the amended section. The alteration in the new section overrulesthe view expressed in the decisions falling within heading No. (1) by reason ofthe addition of the words "within the same village or any villagecontiguous to that village". The addition, however, gives some indicationthat a rayat should be allowed a greater amount of security of occupation thanother persons occupying a house as a tenant, so that he may cultivate his landswithout let or hindrance. It seems that it is one of the purposes for insistingon identity of the village or its contiguity.

16. The old section applied only to rayats. But by reason ofthe language employed in last pact of that section it was possible to have arayat under another rayat or even under an under-rayat, for the status of thetenant in respect of his homestead did not depend upon the status of hisimmediately superior landlord of the homestead. That militates against thefundamental scheme of the Bengal Tenancy Act dealing with gradation of tenants.In fact some of the learned Judges who had given their decisions in that wayobserved the anomaly of having a rayat under a rayat or under an under-rayat inrespect of the land used by a rayat as his homestead but stated that could notbe helped in view of the unambiguous language of the section. It was with theintention of avoiding this anomaly that the status of tenant in respect of hishomestead holding agricultural land as a rayat under a separate engagement hasbeen made to depend in the amended section upon the status of the landlord ofhis homestead. Under the amended section, he would be a rayat in respect of thehomestead, when the landlord of his homestead is either a proprietor of anestate or a tenure-holder and would be an under-rayat if his landlord is eithera rayat or an under-rayat. There can be no doubt that the intention of thelegislature was to give him the rights of a rayat or under-rayat because ofthis contingency, for the section concludes with the words "as the casemay be," but in trying to avoid an anomaly which resulted by reason of thewords used in the concluding part of the old section the legislature hasemployed language which has resulted in some cases in depriving a rayat of thesecurity of occupation that be would have enjoyed in respect of his dwellinghouse under the old section. We will deal with this aspect hereafter.

17. The language of old S. 182, and in this respect there isno material change in the amended section, is that "when a rayat holds hishomestead otherwise than as part of his holding." The use of the presenttense "holds" cannot in our opinion be overlooked. That indicatesthat both the elements must he present at the time when the protection of thesection is sought to be invoked by the tenant. He must be a rayat at that time,that is to say, have the arable lands and must be using the other land for hisresidence. It is the co-existence of these two elements that would bring inthat section. This is what had Been held in Suklal Shahas case,: 44 C.L.J. 302 : (A.I.R. 1926 Cal. 1199) [LQ/CalHC/1925/432] and Pulin ChandraDaws case, : 40 C.W.N. 599 : (A.I.R. 1936 Cal. 565) [LQ/CalHC/1936/12] . Thetenant may have Required the homestead before, but the moment he acquires lateron a rayati holding he comes within S. 182. The incidents of tenancy of thehomestead which had hitherto been governed either by contract or by theprovisions of the Transfer of Property Act, would be changed and would beregulated by the provisions of the Bengal Tenancy Act dealing with rayats,where the old section applied and by the provisions of the Bengal Tenancy Actdealing with rayats or under-rayats, as the case may be, according to thestatus of the landlord of the homestead if the new section be applicable,subject to the condition (hereafter discussed) that such landlord has a statusunder the Bengal Tenancy Act. It would follow that if the afore-side twoelements became dissociated later on, S. 182 would cease to be applicable fromthe moment when either of these two elements disappeared in relation to thetenant concerned. This logical result accords with the theory, which is to someextent indicated, as we have already noticed, by the addition of the words"in the game village where the homestead is situate or in a villagecontiguous thereto" occurring in the amended section, that the legislaturein enacting S. 182 intended to give greater security of occupation in hisdwelling house to a cultivator than to other people, so that he canconveniently carry on his avocation as tiller of the land, and so long as hefollowed that avocation, as the use of the present tense "holds"indicates. The question is, is there a compelling necessity to modify thislogical result We do not think that there is any. We therefore dissent fromthe decision of the single Judge given in Haru Chandra Mannas case, : 40 C.W.N. 182, a decision which we sitting in Division Bench are not bound tofollow. We hold that the moment when either the agricultural holding is soldaway or when he, the tenant, abandons his residence in the homestead land, hegoes out of the old and also of the amended S. 182 of the Act, for language ofboth the old and the amended sections in this respect is the same. On thefindings of fact arrived at by the lower appellate Court which our learnedbrother had noticed and which we have set forth above, a finding binding onthis Court in second appeal, we allow Letters patent Appeals Nos. 2 and 3 whicharise in Suits Nos. 98 and 99. The decrees of trial Court passed in these twosuits are restored. The defendants of these suits, Kaliprosad Shaha and JibanKristo Shaha, must pay the costs to the plaintiff company throughout.

18. Section 182 as amended by Act IV [4] of 1928 makes thestatus of the landlord of the homestead the determining factor. The sectionsays that the tenant of the homestead would be, to put it briefly, either arayat or an under rayat according to the status of the landlord of thehomestead. The provisions of S. 182 cannot, so to say, be taken to float in theair. The Bengal Tenancy Act is not attracted to the homestead tenancysimpliciter by the amended section. That section deals with a tenant who inrespect of his arable lands may either be a rayat or an under-rayat.

19. In order that the incidents of his homestead tenancy maybe governed by the provisions of the sections of the Bengal Tenancy Act dealingwith rayats or under-rayats, as the case may be, it must be determined, byreason of the language used in the amended section, in the first instancewhether he fills the character of a rayat or an under-rayat in respect of hishomestead, and he will not answer the description either of a rayat orunder-rayat, if the landlord of his holding is a person whose interest does notcome within the purview of the Bengal Tenancy Act at all. Our learned brotherhas fully dealt with this question and there is very little scope for adding tothe reasons given by him. We agree with his conclusion on this point. Only withregard to one observation which he made in dealing with this point we prefernot to agree. But that observation is not material for the decision of thepoint we are now considering. It is a cardinal rule of construction of statutesthat absurdities should, if possible, be avoided. The absurdity of the frequentchanges in the incidents of a tenancy of a tenant of a homestead, who holdsother arable lands under a separate tenancy either as a rayat or as anunder-rayat, would be avoided if it be held that the status of his landlord ofhis homestead at that moment of time when the two elements which we have mentionedabove come together for the first time would determine the incidents of hishomestead tenancy and those incidents would remain to be so as long as he holdsthe agricultural holding and uses the land of the other tenancy for hisresidence, that is to say, the said two elements co-exist in him. Such aconstruction of the section is possible and so should be adopted.

20. We have already recorded our findings in respect of thefour other suits Nos. 96, 97, 100 and 101. In all these four suits, thedefendants had acquired rayati holdings in contiguous villages before S. 182was amended and they are still in possession of those holdings. They hadacquired their tenancies in the lands in suit also before that time. They arestill using these lands for their residence. They are living in some of therooms, though they have let out many of them to mill hands. According to theprovisions of old S. 182 they had acquired the rights of a rayat-in fact therights of an occupancy rayat-in those lands before 1st January 1929 when theamended S. 182 came into force.

21. A statute which simply creates a new right, that is tosay, which does not at the same time take away or curtail the vested right ofanother, may have retrospective operation though it is not made so eitherexpressly or by necessary implication. Cases of this type may be rare, forgenerally the creation of a new right in one bakes away or impairs the vestedright of another. But the rule settled by a Special Bench of twelve Judges ofthis Court is that a statute which takes away or impairs a vested right, orwhich has the effect of so doing, cannot have retrospective operation unlessthe statute either expressly or by necessary implication gives it thatoperation (Jogadanand Singh v. Amritlal Sircar, 22 Cal. 767 [LQ/CalHC/1895/38] F.B.).

22. The Learned Counsel appearing for the appellant companyrelies upon an observation made in the case of Pulin Chandra Das v. Abu Bakhar,: 40 C.W.N. 599 : (A.I.R. 1936 Cal. 565) [LQ/CalHC/1936/12] for supporting hiscontention that S. 182 as amended in 1928 should be applied, as the ejectmentsuits had been instituted after the amendment, and as under the amended sectionthe defendants cannot have either the status of rayats or under-rayats inrespect of the lands in suit as his client, the company, has no status underthe Bengal Tenancy Act, the decrees passed by the lower appellate Court shouldbe maintained by us. The said observation which was made in reference to old S.182 is as follows:

The word "holds" in the section seems to point tothe time when the dispute about the incidents of the tenancy of the homesteadarises.

23. In our opinion, the observation must be read in thelight of the facts of that case which we have already noted in the earlier partof our judgment. It means that the tenant must be holding both the rayatiholding and the homestead at that point of time when the suit to eject him fromhis homestead is brought and the order of sequence of the acquisition of therayati holding and the homestead is immaterial, That observation in our opinioncannot be used in the manner contended for by the Learned Counsel appearing forthe company. The amended section as construed by our learned brother and by uswould have the effect of taking away the "occupancy right" of thedefendants of these four suits, which they had acquired by the operation of oldS. 182 before 1st January 1929, when the amended section came into force, onthe ground that the company has no status under the Bengal Tenancy Act. Soagreeing with our learned brother for the reason above stated we hold that the"occupancy right" which had been acquired by the defendants of thesefour suits by the year 1928 cannot be taken away by the application of S. 182as amended.

24. Suits Nos. 96, 97, 100 and 101 are accordingly dismissedwith costs throughout.

.

The Naihati Jute Mills Co. Ltd. vs. Kali Prosad Saha andOrs. (14.05.1948 - CALHC)