JUDGMENT
Sahai. J.
1. The substantial question which arises for decision in this case is whether the question of applicability of the Bihar Tenancy Act or the Transfer of Property Act to a sub-lease can be determined on the basis of the purpose for which the sub-lease is created or on the basis of the nature of the original tenancy. A Division Bench of this Court has referred the case to this Bench because it doubted the correctness of the decisions of Jado Singh v. Bishunath Lal, AIR 1942 Pat 71 and Shrikishun Lal v. Harihar Sah, AIR 1949 Pat 444.
2. I may briefly state the facts. This appeal by the plaintiffs arises out of a suit for declaration of title to, and eviction of the defendant first-party, who are respondents Nos. 1 and 2 (respondent-first-party) in this court, from, 1 katha of land with some tatti structures standing on it, on the north-western corner of plot No. 27, appertaining to khata No. 53 in Ward No. 1 of Supaul town, which has a total area of 5 kathas. Defendant-respondent No. 1 is a Dhobin, and defendant-respondent No. 2 is her son. I shall henceforth refer to them in the course of this judgment as the defendants because they have mainly contested the case.
3. Admittedly, one Chakrapani Singh held plot No. 27, which consisted of a residential house and compound, as a raiyat. After his death, his sons, Tribeni Prasad Singh and Baldeo Prasad Singh, succeeded him, Shrimati Jageshwari Kumari (defendant No. 4) and Shri Kameshwar Prasad Sinha (defendant No. 5), both being defendants-second party, are the successors of Tribeni and Baldeo, and they held the plot in equal shares. Under three registered sale deeds, dated the 19th August, 1950, the 28th December, 1951, and the 6th December, 1952, the plaintiff acquired the plot in its entirety from defendants Nos. 4 and 5.
They gave notice to quit to the defendants, and thereafter applied to the House Controller under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for their eviction. The defendants objected that there was no relationship of landlord & tenant between the plaintiffs and themselves. The objection succeeded, and the application for eviction was dismissed. The plaintiffs, therefore, instituted the present suit in 1954.
4. The plaintiffs’ case is that the heirs of Tribeni and Baldeo allowed the defendants to live in the tatti structures standing on the disputed land as licensees and servants because they (defendants)
washed their clothes. When the plaintiffs purchased the plot, they allowed the defendants to continue to live in the structures on payment of a rent of Rs. 8/- per month. They, subsequently, served upon the defendants a notice to quit; but the defendants did not vacate the premises, and they also denied the relationship of landlord and tenant in the house control case.
5. On the other hand, the defendants’ case, inter alia, is that they took oral settlement of the disputed land about sixteen years earlier from Tribeni and Baldeo and built their own houses over it. They have been living in those houses since then. Amlas of defendant No. 4 threatened to demolish the defendants’ structures, and, in order to safeguard their interests, they took an unregistered parwangi (exhibit D-1) from defendant No. 4 in Phagun 1354 Fasli on payment of a sum of Rs. 300/-, whereby defendant No. 4 settled the land permanently with defendant No. 1. Having been in occupation for more than twelve years, the defendants have acquired an occupancy right in the land.
6. The Munsif, who tried the suit, decreed it; but, on appeal the Additional Subordinate Judge of Madhipura has reversed that decision, and has dismissed the suit. His findings are (1) that the defendants are not licensees but statutory tenants, (2) that Section 18 of the Bihar Buildings (Lease, Rent and Eviction) Control Act operates as a complete bar to the suit, (3) that the land, and not the houses, was settled with the defendants, (4) that the defendants themselves constructed the tatti houses, and (5) that, though the disputed land was settled with the defendants for residential purpose, they were under-raiyats and their sub-lease was governed by the Bihar Tenancy Act because the original tenancy was an agricultural tenancy governed by that Act.
It became necessary for him to decide the question of applicability of the Transfer of Property Act or the Bihar Tenancy Act because, under Section 107 of the Transfer of Property Act, a lease for more than a year can only be made by a registered instrument. A valid permanent lease could not, therefore, be created by means of an oral settlement or even by means of an unregistered document (exhibit D-1) if the Transfer of Property Act applied. That this is the correct legal position has not been challenged before us.
7. The point which Mr. Lalnarayan Sinha has canvassed on behalf of the appellants is that the Subordinate Judge is wrong in holding that the nature of the tenancy, held by Chakrapani Singh and his successors will govern the sub-lease alleged to be held by the defendants. He has contended that the purpose for which a lease, or even a sub-lease, is created must determine the applicability of the Transfer of Property Act or the Bihar Tenancy Act, and that the cases in which it has been laid down that the applicability of One Act or the other to a sub-lease will depend upon the nature of the head lease have been wrongly decided.
Mr. Thakur Prasad, who has appeared on behalf of the defendants, has argued that the decisions which lay down that the character of the original tenancy will determine the applicability of one of the two Acts to a sub-lease, for what-
ever purpose it may have been created, are correct, and that, in any case, that is the principle which has been accepted and followed in a series of decisions for about fifty to sixty years from about the year 1903, and hence we should not take a contrary view and depart from that principle.
8. It will be useful first to consider some of the provisions of the two Acts. The word “tenant” has been defined in Section 3(3) of the Bihar Tenancy Act as under:
” “Tenant” means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person”.
Section 4 of the same Act gives the classes of tenants. Those classes are :
“(1) tenure-holders, including under-tenure-holders
(2) raiyats, and
(3) under-raiyats, that is to say, tenants holding, whether immediately or mediately, under raiyats;”
It is important to remember that this section does not define any class of tenant. Definitions of the words ‘tenure-holder’ and ‘raiyat’ are to be found in Section 5. Sub-section (2) of that section, which, defines ‘raiyat’, reads:
“(2) ‘Raiyat’ means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right.”
9. The word ‘under-raiyat’ has not at all been defined, and the reason appears obviously to be that, the word raiyat having been defined, it was not considered necessary to define ‘under-raiyat’ because the purpose of his tenancy must also be the same as that of the raiyat. Chapter VII of the Bihar Tenancy Act, which deals with under-raiyats, also indicates that the purpose for which an under-raiyat holds his land must be the same. This is shown by the limits prescribed as to the rent recoverable by a raiyat from his under-raiyat, from the nature of the under-raiyat’s rights, and also from the nature of the grounds on which he may be ejected.
10. The same result follows from a consideration of Section 117 of the Transfer of Property Act which provides that Chapter V of that Act, which deals with leases, does not, in the absence of a notification issued by the State Government, “apply to leases for agricultural purposes”. This provision makes it manifest that, it a lease, which certainly includes a sub-lease, is for a purpose other than agricultural purpose, the Act will apply. It would be a violation of the provisions of this section to hold that a sub-lease granted for an agricultural purpose will be governed by the Transfer of Property Act simply because the person who has granted the sub-lease held the land as a lessee under that Act.
Conversely, it would, in my judgment, be against the plain meaning of this section to hold that a sub-lease created for a purpose other than
agricultural purpose would not be governed by
the Transfer of Property Act but by the Bihar
Tenancy Act simply because the original
Tenancy was governed by the latter Act. There
is nothing in any provision in either of the two
Acts to suggest that rights and obligations of a
sub-lessee would be the same as those of the
tenant under the original or head lease.
11. I may give some illustrations. Suppose a proprietor gives a thika lease of his proprietary right in a village to a lessee. The lease is undoubtedly governed by the Transfer of property Act. If the lessee has been given the right to settle any land in the village for the purpose of cultivation and he settles a piece of land with a tenant for the purpose mentioned in Section 5 (2) of the Bihar Tenancy Act, the person with whom he makes the settlement comes within the definition of ‘raiyat’. Hence, in view of Section 117 of the Transfer of Property Act, that Act cannot apply.
Can it then be said that the lease to the tenant by the thikadar is not governed by the Bihar Tenancy Act simply because the Original lease was governed by the Transfer of Property Act? The obvious answer is ‘No’. There cannot be the slightest doubt as to the applicability of the Bihar Tenancy Act to the sub-lease for cultivation. A converse case may also be taken for example. Suppose a large tract of land close to a township is settled with a person for the purpose of cultivation by himself.
He is, therefore, a raiyat under the Bihar Tenancy Act. If the township extends to his land, and, finding it more profitable to give out parcels of his land in sub-lease to others for the purpose of building residential houses thereon, he grants such sub-leases, the purpose of the creation of those sub-leases is clearly non-agricultural. It is difficult to see why his tenants should be held to be under-raiyats governed by the Tenancy Act simply because that Act was applicable to his own lease.
12. I proceed now to consider the cases which have been brought to our notice. I shall first refer to the decision of the Calcutta High Court. The earliest case is that of Babu Bam Roy v. Mahendra Nath Samanta, 8 Cal WN 454 in which the judgment of Mitra, J. was affirmed on Letters Patent Appeal. The plaintiff’s land consisted partly of agricultural and partly of homestead land. That portion of the land which could be used as homestead was let out to the defendants for residential purpose. Mitra, J. held that the defendants were under-raiyats, and that the incidents of the original holding would regulate the incidents of the sub-lease in their favour.
His Lordship has given two grounds for this conclusion. The first ground is that the Transfer of Property Act is not applicable to lands used for agricultural purposes. With great respect, it seems to me that this statement of the legal position lacks precision. It is true that the Transfer of Property Act does not apply to leases for agricultural purposes; but it is not true to say that it would not apply to lands simply because they are agricultural lands. The second ground is that had the conclusion been otherwise, the result would be anomalous.
He has explained this by saying that the rights and obligations as between the landlord and the raiyat would be regulated by the Tenancy Act, and that it was difficult to suppose that the rights and obligations as between the raiyat and the under-tenant would be regulated by a different Act. With great respect, I am unable to see the anomaly. Each transaction must be regulated by the appropriate enactment.
In the illustration about the thika lease, which I have given, the original lease is governed by the Transfer of Property Act; but there is no difficulty in holding that the Bihar Tenancy Act is applicable to the sub-lease. There would be no anomaly. I may add that, as his Lordship has stated, the Tenancy Act has been passed for the protection of raiyats and under-raiyats. A raiyat is a tenant who holds land for cultivation by himself. There is no reason why the Act should provide for protection of his under-tenant as under-raiyat unless he also holds his land for the same purpose.
13. In Abdul Karim v. Abdul Rahman, 15 Cal LJ 672 the decision in 8 Cal WN 454 (supra) has been followed, and the same grounds have been reiterated. The only additional fact which has been mentioned is that, when a tenant holds his homestead otherwise than as a part of his holding; the incidents of his tenancy of the homestead land would be regulated under Section 182 of the Tenancy Act, in the absence of custom or usage by the provisions of the Act applicable to land held by him as a raiyat. On this basis, their Lordships have observed that the homestead portion of the holding would be governed by the Tenancy Act in the same manner as the cultivated portion.
The words used in Section 182 show that it does not apply to a case where the raiyat holds land which is partly agricultural and partly homestead. In such a case, there can be no doubt that he holds the entire holding as a raiyat, if the purpose of the tenancy is as given in Section 5 (2) of the Bihar Tenancy Act. The applicability of Section 182 to the sub-lessee, who takes land for use as homestead only, is a different matter; for that will depend upon whether he fulfils all the conditions required by that section.
14. The above two decisions have been followed in Krishna Kanta Ghose v. Jadu Kasya, 19 Cal WN 914 : (AIR 1916 Cal 32). The plaintiff, who was a raiyat, leased out the homestead portion of his holding to the defendants. As the defendants held land as raiyats in a different village contiguous to the homestead land in question, their Lordships further held that the incidents of their tenancy of the homestead land would be regulated under Section 182 by the provisions of the Act applicable to land held by a raiyat. Their decision was mainly rested on this point; but, as there is nothing in the present case to show that the defendants hold any land anywhere as a raiyat, Section 182 has no application.
15. The three decisions, referred to above, have been followed in Rampado Sarkar v. Atore Dome, AIR 1925 Cal 202 and 8 Cal WN 454 (supra) has been followed in Pankajini Debi v.
Satish Behara Buna, 40 Cal WN 86; but no additional ground has been given in these decisions.
16. Another decision which Mr. Thakur Prasad has referred to is that of Raj Kumari v. Mirja Samsuddin, AIR 1942 Cal 330. That decision appears to me, however, to be distinguishable. The tenancy was originally created for agricultural purposes; but, subsequently, the defendant, who was the raiyat, used a major portion of her holding for residential purposes. It was held that the tenancy being one entity and one portion of land out of the holding being still used for agricultural purposes, the tenancy could not cease to be governed by the Tenancy Act. The facts of that case are thus quite different and it has no application to the present case.
17. There are, at least, three decisions of the Calcutta High Court in which the views expressed in 8 Cal WN 454 (supra) and cases in which that case has been followed have been adversely commenced upon. In Arun Kumar Sinha v. Durga Charan Basu, AIR 1941 Cal 606, B.K. Mukherjea and Roxburgh, JJ. followed 8 Cal WN 454 (supra) on the ground that the principle laid down therein had been accepted for a long time and had not been dissented from; but they observed that, had the matter been res integra, they would have hesitated in accepting the views expressed in that decision and in other decisions which followed it. Their Lordships have observed :
“In the Bengal Tenancy Act, the raiyat is defined to be a person who acquires land primarily for purposes of cultivation; unless the letting was for purposes of agriculture the tenancy would not be governed by the Bengal Tenancy Act even if the superior interest was vested in the holding of the tenure to which the Bengal Tenancy Act was applicable. We do not think also that any real anomaly would arise if as between a raiyat and his sub-lessee the rights were governed by the Transfer of Property Act.”
Their Lordships have, however, stated that difficulty has been created by the way in which the expression ‘under-raiyat’ has been defined in Section 4, Bengal Tenancy Act, as a tenant who holds immediately or mediately under a raiyat. As I have already said, Section 4 does not define anything but merely gives the classes of tenants. Their Lordships’ attention does not appear to have been drawn to Section 117 of the Transfer of Property Act; but they referred to Chapter VII of the Bengal Tenancy Act and said that it could be argued that the provisions of that chapter implied that an under-raiyat must also hold his land for purposes of cultivation. They did not refer the matter to a larger Bench because they thought that the wording of Section 4 (3) was very wide and also because they did not think that an interpretation which had been followed for about forty years without dissent and legislative interference should be upset.
18. In Abdul Hossain v. Salimar Paint, Colour and Varnish Co., Ltd., AIR 1947 Cal 36, the plaintiff company, which took some land in mo-karari Mourashi lease, was held to be a tenure-holder governed by the Tenancy Act. It gave certain parcels of its lands to the defendant for
cultivation. It was urged that the lease was governed by the Transfer of Property Act and, on the basis of 8 Cal WN 454 (supra) and the series of cases in which that decision has been followed, it was further urged that the Transfer of Property Act would apply to the sub-tenancy because the nature of the original tenancy would regulate the character of the sub-lease, for whatever purposes it may have been created. The argument was repelled, and it was held that the defendant was a raiyat under the Tenancy Act. Referring to a general observation made by Sarada Charan Mitra, J. in 8 Cal WN 454 (supra), Mitter, J., with whom Blank, J. has agreed, has stated :
“However strong our dissent may be from that proposition taken as a general proposition of law, it is too late in the day to question the actual decree made in that case, seeing that that case has been followed so long, and to decide cases exactly of the type in 8 Cal WN 454, in a different way. But as the case before us is of the converse type we are free to hold otherwise. In passing, we may however say that it is not quite apparent to us what anomalies would result if by reason of the purpose of the tenancy the head lease were to be governed by the Transfer of Property Act and the sub-lease by the Bengal Tenancy Act”.
19. Mitter, J. has observed that, if, as stated by their Lordships in AIR 1941 Cal 606 (supra), a tenant under a raiyat has to be held to be an under-raiyat, whatever the purpose of his tenancy may be, the actual decision in 8 Cal WN 454 (supra) may be supported. He has not agreed with this proposition, and I may say with respect that, as Section 4 (3) does not define but merely gives as one of the attributes of an under-raiyati that he must hold his land under a raiyat, it cannot be accepted as correct. His Lordship has further observed with reference to 8 Cal WN 454 (supra).
” ….. we are not prepared to extend the
scope of that precedent to cases of other types, as we are not convinced of the soundness of the observations made therein, which we have quoted above. The observation, namely that the same Act, either the Bengal Tenancy Act or the Transfer of Property Act which governs the head lease must also govern the sub-lease, cannot, in our judgment, be taken to be a sound general proposition. Section 117, Transfer of Property Act would directly go against the proposition stated in that general form ….. ”
20. The facts in Abdul Samad v. Jitoo Chaudhuri, ILR (1950) 2 Cal 268 : (AIR 1950 Cal 20) were different. The plaintiff was not a raiyat at the time when he granted sub-lease of a portion of his land to the defendant for residential purposes; but he later became a raiyat. Their Lordships repelled the argument that, as the defendant held under a raiyat, he was an under-raiyat under Section 4 (3) of the Bengal Tenancy Act. They decided to put a narrow construction upon the wording to that section on account of the criticism levelled against 8 Cal WN 454 (supra) in AIR 1941 Cal 606 (supra), and held that
“a person will be an under-raiyat only if he holds under a raiyat at the inception of his lease”.
21. I may now refer to the decisions of this Court on the point under consideration. The earliest case is a decision of Agarwala, J. in Mian Ahir v. Paramhans Pathak, AIR 1939 Pat 409. Following the decisions in 8 Cal WN 454 (supra) and AIR 1925 Cal 202 (supra) his Lordship held that, where an agricultural holding consists partly of agricultural and partly of homestead lands and the homestead portion is let out for use as homestead, the person to whom it is let out is an under-raiyat and is governed by the Tenancy Act. There is no discussion in the judgment as to the grounds on which this principle can be based.
22. In AIR 1942 pat 71, Manohar Lall, J., with whom Chatterji, J. agreed, has laid down as a proposition authoritatively settled that the provisions of the Tenancy Act apply if a lease is created for agricultural purposes and not because the land is agricultural. This supports a view which I have already expressed. But I am respectfully unable to agree with the conclusion which has been reached in that case that, though, the sub-lease in favour of the defendants was not created for agricultural purposes, the Bihar Tenancy Act applied to it simply because the original holding, out of which the sub-tenancy was carved out, was an agricultural holding, and that defendant No. 2 was consequently an under-raiyat. No ground has been given in support of this conclusion, nor has reference been made to any case in which this has been laid down.
23. In AIR 1949 Pat 444, the original tenancy was governed by the Tenancy Act. One plot out of that holding was given in sub-lease for building purposes. Following the decision in AIR 1942 Pat 71 (supra), it was held that, if the head lease was governed by the Tenancy Act, the sub-lease must also be governed by the same Act, irrespective of the purpose for which it was created. Reliance has also been placed in that decision upon the cases of 8 Cal WN 454 (supra) and AIR 1941 Cal 606 (supra). The only ground which Meredith, J., with whom Agarwala, C. J. agreed, has given is that the definition of ‘raiyat’ in Section 5 shows the purpose for which he must acquire a right to hold the land; but no such purpose has been mentioned in the definition of ‘under-raiyat’ in Section 4 (3). Referring to an ‘under-raiyat’, his Lordship has stated:
“There is nothing to show he must be a person also holding for agricultural purposes. By definition, every one holding under a raiyat for whatever purpose, will be an under-raiyat, and so governed by the Act”.
24. I respectfully disagree from this reasoning. As I have already said, Section 4 (3) does not define an ‘under-raiyat’ but merely states that an under-raiyat is one who holds under a raiyat. The fact that no definition of ‘under-raiyat has been given in the Act implies that an under-riayat must hold his land also for the purpose for which a person must acquire the right to hold his land in order to come within the definition of ‘raiyat’. I have also given other reasons which induce me to hold that a person can only
be an under-raiyat if he holds land under a raiyat for agricultural purposes.
25. In Satya, Niranjan Chakravarty v. Surajubala Debi, AIR 1930 PC 13, their Lordships of the Judicial Committee affirmed a judgment of the Calcutta High Court in which there is an observation as follows:
“But it is hardly necessary to point out that this was not a lease for agricultural purposes as mentioned in Section 117, Transfer of Property Act, which only makes the provisions of the Act inapplicable under certain circumstances. This was the creation of a tenancy for the purpose of realization of rent from the cultivating tenants and, therefore, the provisions of the Transfer of Property Act apply to it”.
This observation makes it clear that, unless a lease is created for agricultural purposes, the Transfer of Property Act applies to it.
26. A question which arose for the decision of a Full Bench in Maheshwari Prasad v. Dulhin Manrajo, AIR 1944 Pat 87 was “whether a thica lease of a village, for the purpose of collecting rents, creates a tenancy within the purview of the Bihar Tenancy Act as being a lease of agricultural land or is excluded from the scope of the Act as being not a lease for agricultural purposes”. It was held by the Full Bench that what was leased to the thicadar was not the land but the proprietary right of the lessor to a limited extent and that he was a mere farmer of rent. On this basis, their Lordships held that the lease was governed by the Transfer of Property Act, and not by the Bihar Tenancy Act. Fazl Ali, C.J. has observed in the course of his judgment:
“A farming lease, therefore, is evidently not a lease for agricultural purpose and the lessee cannot be a tenure-holder under the Bengal Tenancy Act which was enacted only for agriculturists and those concerned in agricultural operations”.
He has also stated :
“Strictly speaking, it will not be correct to say that even though the lease be not an agricultural one, yet it may be governed by the Bengal Tenancy Act, if the lessee is a tenure-holder in the sense in which the term is defined in the Bengal Tenancy Act. A person is not a tenure-holder under the Bengal Tenancy Act unless he is a tenant as defined in the Act and he is not a tenant unless he holds land for agricultural purpose”.
Just as a person cannot be a tenure-holder unless he is a tenant, a person cannot be an under-raiyat unless he is a tenant because, under Section 4 of the Bihar Tenancy Act, tenure-holders, raiyats and under-raiyats are all different classes of tenants. If, as stated by Fazl Ali, C.J., a person cannot be a tenant unless he holds land for agricultural purpose, a person cannot be an under-raiyat unless he holds his land for that purpose.
27. Manohar Lall, J., who has written a separate though concurring judgment, has made observations to the effect (1) that the Transfer of Property Act must apply to a lease unless it comes under Section 117 of the Act and is for agricultural purposes; and (2) that the applicability of one of the two Acts will not depend upon the agricultural or non-agricultural character of the land but upon whether the purpose of the lease is agricultural or non-agricultural.
28. With great respect, I agree with the observations of Fazl Ali, C.J. and Manohar Lall, J. which I have referred to above. The attention of their Lordships who decided the case of AIR 1949 Pat 444 (supra) does not appear to have been drawn to that Full Bench decision.
29. As I have mentioned, Mr. Thakur Prasad has argued that we should not disturb the principle that the incidents of the original tenancy will regulate the incidents of the sublease because it has been consistently followed for a large number of years, and, though the Tenancy Act has been amended several times by the legislature, no amendment tending to go against that principle has ever been made. In support of this argument, he has relied upon several decisions. The earliest one is Pugh v. Golden Valley Railway Co., (1880) 15 Ch. D 330. In that case, their Lordships did not consider it pro-per to overrule a decision, the authority of which had continued unshaken by any judicial decision or criticism for twelve years and upwards.
30. In Murphy v. Deichler, 1909 AC 446, the House of Lords refused to disturb a fixed practice which had been long observed when no real point of principle had been violated.
31. In Tricumdas Cooverji Bhoja v. Gopinath Jiu Thakur, AIR 1916 PC 182, the Privy Council accepted a long course of decisions as to the applicability of Article 116 of the Limitation Act but said that the argument contrary to the course of decisions was never clearly right. Lord Sumner observed :
“Where the terms of a Statute or ordinance are clear, their Lordships have decided that even a long and uniform course of judicial interpretation of it may be overruled, if it is contrary to the meaning of the enactment: Pate v. Pate (1915 AC 1100)”.
32. A Full Bench of the Allahabad High Court followed the Privy Council decision in Lallu Singh v. Gur Narain, AIR 1922 All 467. Mears C.J., who delivered the judgment of the Bench, said:
“Where the terms of a statute or ordinance are clear then even a long and uniform course of judicial interpretation of it may be overruled, if it is contrary to the clear meaning of the enactment; but where such is not the case, then it is our duty to accept the interpretation so often and so long put upon the statute by the Courts, and not to disturb those decisions …..”
33. The observations made in the cases referred to above lay down the true principle, and, keeping them in view, the position is that Section 117 of the Transfer of Property Act has been ignored in the decisions in which it has been held that the applicability of the Tenancy Act or the Transfer of Property Act to a sub-lease depends upon the nature of the original lease. Section 4 (3) of the Tenancy Act has been wrongly held to define the word ‘under-raiyat’. The whole purpose of the Tenancy Act is to regulate the rights
and obligations of agriculturists, and it is clear that a person cannot be an under-raiyat within the meaning of that Act unless he is a tenant and holds land for agricultural purposes. This also appears to have been lost sight of.
34. Although the case of 8 Cal WN 454 (supra) has been followed in a series of decisions of the Calcutta High Court, the views expressed therein have been dissented from in several
cases. Though their Lordships reluctantly followed that case in AIR 1941 Cal 608 (supra), the application of the principle laid down therein was not extended to a converse case in AIR 1947 Cal 36 (supra) and to a case on slightly different facts in ILR (1950) 2 Cal 268 : (AIR 1950 Cal 20) (supra).
35. So far as this Court is concerned, the principle laid down in the case 8 Cal WN 454 (supra) has been accepted or the same view has been adopted only in three cases, and the observations made in the Full Bench decision in AIR 1944 Pat 87 go against those decisions. I have, therefore, come to the conclusion that Mr. Thakur Prasad’s submission cannot be accepted. It is manifest that the applicability of the Bihar Tenancy Act or the Transfer of Property Act to a sub-lease must be decided on the basis of the purpose for which that sub-lease has been created and not upon the nature of the original tenancy or the head lease. The decisions to the contrary in AIR 1939 Pat 409, AIR 1942 Pat 71 and AIR 1949 Pat 444 are wrong, and they are
accordingly overruled.
36. Mr. Thakur Prasad has also urged that the suit instituted by the plaintiffs must fail because Section 18 of the Bihar Buildings (Lease, Bent and Eviction) Control Act operates as a complete bar. There is clearly no substance in this argument because the finding of fact of the Court of appeal below is that it was the land which was settled, and that the tatti houses in question were constructed by the defendants themselves. The Act does not apply to a case in which a building is not but a piece of land is let out. In any case, however, the defendants cannot be permitted to raise this inconsistent plea as they denied before the House Controller that he had jurisdiction to order their eviction. It is unnecessary to discuss this point at length because a Bench of this Court has already decided this point in Hakim Syed Shall Khurshed Ali v. Commissioner of Tirhut Division, AIR 1955 Pat 198 and I am in entire agreement with that decision.
37. The last point which Mr. Thakur Prasad has put forward is that the defendants, having been in possession of the land in suit for about fifteen or sixteen years, must be held to have
acquired the right of permanent tenants. The defendants have themselves pleaded that the rent payable by them to Tribeni Prasad Singh and Baldeo Prasad Singh or their heirs used to be adjusted towards their account for washing clothes. Thus, it is their admitted case that there was a relationship of landlord and tenant between them and the predecessors-in-interest of the plaintiffs. There is no valid lease in their favour and, therefore, the duration of the
tenancy must be determined by Section 106 of the Transfer of Property Act–vide the Full Bench decision in Bastacolla Colliery Co., Ltd. v. Bandhu Beldar, 1960 BLJR 245 : (AIR 1959 Pat 344). It cannot, therefore, be he-Id that the defendants have acquired any right as permanent tenants. They are, therefore, manifestly liable to be evicted.
38. In the result, the appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside, and the suit is decreed with costs throughout.
Ramaswami, C. J.
39. I agree.
Kanhaiya Singh, J.
40. I entirely agree.