Jwala Prasad, J.:— This Full Bench has been constituted on account of a reference made by a Division Bench of this Court and the point of law referred to us for decision has been formulated as follows:—

“Is there a presumption that belagan homestead lands are not part of a raiyati holding?”

The point arose in connection with second appeal no. 712 of 1927. Therefore, under the rules of this Court the whole appeal has been referred to this Bench for decision.

The plaintiff owns 16 annas istamrari mukarrari interest in mauza Mohanpur, district Purnea, and is thus the sole landlord of the village. One Musammat Ratni was a tenant in that Village. During the Survey and Settlement operations her name was entered against khata no. 240 which comprised several plots. She died in 1316. F. (1909), and was succeeded by her nephew Kutai Hajjam who came to be in possession of the aforesaid khata no. 240. In that khata plot no. 563 measuring 11 acre was recorded as belagan homestead in the name of the said Musammat Ratni, and the remaining plots measuring 5.87 acres were recorded as agricultural lands. Kutai Hajjam sold to defendants 1 to 3 the belagan homestead plot no. 563 by a kebala, dated the 19th June, 1913, and the agricultural plots in that khata except plot no. 158 by kebalas, dated the 19th June, 1913, and 15th July, 1919. With respect to plot no. 158 he executed an usufructuary mortgage in favour of Bhola Singh and Nema Singh. Thus, Kutai Hajjam transferred all the lands in khata no. 240 and ceased to be in possession. He also left the village.

The plaintiff then in 1925 instituted two separate suits to eject the transferees: (1) Suit no. 81 in respect of the belagan homestead plot no. 563 against the appellants and (2) Suit no. 82 against the appellants and the mortgagees of plot no. 158 as well as the tenant Kutai Hajjam. Both these suits were dismissed by the Munsif, but on appeal were decreed by the Subordinate Judge of Purnea by his judgment, dated the 27th of April, 1927.

In suit no. 82 the learned Subordinate Judge held that Kutai Hajjam transferred all the khesra plots of khata no. 240 and is not in possession of any portion of the holding and he left the village without making any arrangement for payment of the rent, and hence it is a clear case of abandonment. He accordingly gave a decree for ejectment of the defendants from all the jote lands in khata no. 240. Against that decree no appeal has been filed in this Court and it has become final.

As regards suit no. 81 the learned Subordinate Judge held that the belagan homestead plot no. 563 in question, though entered in one khata in the survey record-of-rights, was not part of the tenant's holding and the transfer of it without the landlord's consent was invalid and hence the plaintiff was entitled to eject the defendants. Against this decision the defendants have come up to this Court in second appeal.

The defendants, who are appellants, contend that the land purchased by them, plot no. 563, was only a part of one holding entered in survey record-of-rights in khata no. 240 and hence the plaintiff is not entitled to eject them, the entire lands of that holding not having been transferred to them. This contention is based upon the plea taken in paragraph (4) of the written statement where it is stated:

“As these defendants are purchasers of a portion of the jote, a suit for eviction cannot proceed.”

Both the Courts below held that the homestead plot no. 563 in dispute is not a part of the holding but that it is a separate holding by itself and, therefore, the transfer of it by Kutai Hajjam in favour of the defendants constituted a transfer of the whole holding. This finding is not based on the evidence on the record but upon an observation made in a decision of this Court in Ramji Prasad v. Mohammad Anwar Ali Khan to the effect that a holding is “a parcel of lands for which a definite contract for rent has been made” and, therefore, a belagan homestead land which is rent-free and for which there is no contract for payment of rent cannot be a part of a holding. Both the Courts below felt themselves bound by the definition of “holding” given in the aforesaid decision and were constrained to hold that the belagan plot no. 563 in suit no. 81 was not part of the holding of Kutai Hajjam bearing khata no. 240, and the Munsif expressly stated that but for the definition of “holding” given in the aforesaid decision of this Court in would have held that a holding may be comprised of rent-paying land as well as land for which no rent has been charged.

Mr. Nirsu Narain Sinha on behalf of the appellants says that the aforesaid view taken by the Munsif is correct and the definition of “holding” given in the decision of this Court referred to above is not correct. Reliance was placed upon a decision of this Court in the case of Dip Narain Singh v. Bhhn Mandal where it was held that the fact that a khata number consists of nakdi, bhaoli and belagan plots and that the total area of these plots is separately mentioned and the total cash rental of the nakdi plot is shown does not create a separate holding as to each of these kinds of plots, and that it has been the practice and custom of the Settlement Officer to show a separate tenancy for a holding under a single khata number and that a khata number will never consist of more than one holding.

Reference has also been made to rule no. 128 of Volume I, page 48 of the Technical Rules of the Settlement Department which requires that when lands covered by houses form part and parcel of a raiyat's holding together with agricultural lands, all should be included in one khatian slip for the holding and when lands covered by houses are not included in an agricultural holding, they may be entered separately in a continuous khatian slip for the whole village site, if this be convenient; but details of occupancy must always be entered against each plot number. In accordance with this direction the lands held by Musammat Ratni which were after her death inherited by Kutai Hajjam were entered in the survey record-of-rights undergone khata no. 240 and plot no. 563 in question was shewn as belagan homestead and the presumption of the entry in the record-of-rights is that the homestead plot no. 563 is a part of the holding of the tenant and this land along with the agricultural lands detailed and described in the said khata constituted one holding. A “holding” has been defined in clause (9) of section 3 of the Bengal Tenancy Act to mean

“a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy.”

Therefore, both the agricultural and the belagan homestead lands entered in khata no. 240 formed the subject of one separate tenancy and the belagan homestead plot no. 563 and the remaining agricultural lands were not two separate tenancies.

The word ‘raiyat’ mentioned in this definition has been defined in section 5, clause (2), as meaning

“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 successor in interest of persons who have acquired such a right.”

Therefore, the homestead land recorded as included in the holding of the raiyat must be deemed to have been held by the raiyat for the purpose of cultivating the lands in that holding, such as, for the purpose of storing the produce of the land, keeping cattle and implements of cultivation and residence. A ‘raiyat’ is a particular class of tenant as mentioned in section 4 of the Act, and a ‘tenant’ has been defined in section 3, clause (3), to mean

“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.”

Therefore, by a special contract a tenant holding land may not have to pay any rent for the land held by him and thus a homestead land may be held belagan or without rent as a part of a holding consisting of rent-paying lands. This was overlooked in the case of Ramji Prasad v. Muhammad, Anwar Ali Khan where it was stated that a holding is a parcel of lands for which a definite contract for rent has been made and, therefore, a belagan homestead land cannot be a part of a holding. All that is required for a holding is that it should consist of a parcel or parcels of land whether rent-paying or rent-free, held by a raiyat and forming the subject of a separate tenancy; and a belagan homestead land included in the holding is held by the tenant for the purpose of cultivating the rest of the lands in that holding and such a land is not only a part of the holding but is inseparable from the rest of the lands in that holding.

There is, therefore, no presumption that belagan homestead lands are not part of a raiyati holding, and the question referred to this Court by the Division Bench must be answered in the negative. It is a question of fact, and not of law, as to whether a particular belagan homestead land is or is not part of the raiyat's holding, and this is to be determined upon the facts and evidence in each case. In the case with which we are dealing the Munsif held that there is no evidence as to the inception of the original tenancy and there is nothing to show whether the said belagan homestead plot no. 563 and the rest of the lands formed the subject of one or two tenancies at their inception. The record-of-rights is the only evidence in the case and that raises a presumption along with the directions given in rule 128 of the Technical Rules of the Settlement Department, that the said plot was a part of the tenant's holding in khata no. 240 and that it is inseparable from the cultivated lands.

Therefore, Mr. Nirsu Narain Sinha argues that the defendants in purchasing the homestead land by the kebala, dated the 19th of June, 1913, purchased, only a portion of the holding of Kutai Hajjam and not the entire holding and as such they cannot be ejected by the plaintiffs, for, in order to enable a landlord to eject the purchaser of a non-transferable holding, the transfer must be in respect of the entire holding and not of a portion thereof.

Mr. Manuk appearing on behalf of the plaintiff respondent says that this may be so, but as a matter of fact the tenant of the holding Kutai Hajjam has transferred all the lands in the holding, inasmuch as the agricultural lands in that holding were transferred by kebalas, dated the 19th June, 1913, and 15th July, 1919, to these very defendants and a small plot no. 158 by means of a sudbharna, dated the 20th December, 1922, to Bhola Singh and Naina Singh and that the original tenant abandoned the holding taking up his residence in another village. He refers to the decision of the Subordinate Judge in suit no. 82 brought by the plaintiffs against these defendants, the aforesaid mortgagees, and the tenant Kutai Hajjam, disposed of by the same judgment by which Suit no. 81 was disposed of. He says that in that case it has been held that the tenant Kutai Hajjam abandoned his holding. Thus, Mr. Manuk contends that all the lands held by Kutai Hajjam including the homestead land in question have been transferred by him and he is not in possession in respect of any portion of the holding. He has also left the village. Therefore, the defendants cannot resist the claim of the plaintiff to eject them.

Mr. Nirsu Narain Sinha on behalf of the appellants resists this contention of Mr. Manuk and says that upon the form of the pleadings the plaintiff is not entitled to succeed in this suit and ask for ejecting the defendants upon the ground urged by Mr. Manuk. To that Mr. Manuk replies that the scope of the plaintiff's suit is vide enough to cover his contention. In the plaint it is simply said that the defendants by their purchase of the homestead land did not acquire any right in it and the plaintiff is entitled to eject them. It is not stated whether the homestead land is a separate holding or part of khata no. 240. In the written statement the defendants stated that the said land was a portion of their entire jote and consequently the suit for eviction cannot proceed and the plaintiff in evidence showed that all the lands held by Kutai Hajjam were transferred and that he had left the village abandoning his holding, which has been found as a fact by the Court below in this very judgment which has dealt with both the suits of the plaintiff nos. 81 and 82. Undoubtedly, upon the facts found the plaintiff is entitled to succeed. Not only that, but upon the evidence given in this case which shows that all the lands in khata no. 240 have been transferred and that the defendant has left the village and abandoned the holding, the plaintiff is entitled to evict the defendants. Mr. Manuk says that he was compelled to bring two suits separately in view of the definition of holding given by this Court in the year 1917 in Ramji Prasad Sahu v. Muhammad Anwar Ali Khan. He instituted two separate suits to eject the transferees of the lands held by Kutai Hajjam in 1925 and the Munsif disposed of them in 1926 and he preferred his appeal in the lower appellate Court in 1926. Till then the decision in the case of Dip Narayan v. Bhim Mandal was not delivered, being dated 9th February, 1927.

In these circumstances, the plaintiff was right in bringing two suits separately. They were tried analogously, and his present suit must now be considered as having been validly laid and it must be decided upon the facts actually found by the Court below, which have become conclusive. It will be anomalous that the plaintiff will now be in possession of all the culturable lands of the holding and the defendants in the present suit would be allowed to hold possession of the homestead land for which no rent is payable and which was inseparable from the agricultural lands in the holding and was held for facility to cultivate that land. The result will be that the defendants will be in possession of the homestead plot no. 563 not as raiyats, holding the land for the purpose of cultivating it within the definition of the word ‘raiyat’ in the Bengal Tenancy Act, they not being in possession of any portion of the culturable land of the holding in khata no. 240. The contention seems to be sound. The effect of the transfer of the belagan homestead plot no. 563 in the present suit and the finding of the Court below in the analogous suit no. 82 that there has been an abandonment of the holding by the original tenant comprising the agricultural portion thereof, constitutes an abandonment of the homestead plot no. 563 as well. Even if the belagan homestead plot no. 563 was a part of the original holding of the tenant, khata no. 240, it was according to the finding of the Court below a non-transferable holding and the defendants cannot derive any title by virtue of their transfer in respect of the said plot as against the landlord. Therefore, they cannot resist the suit of the plaintiff to eject them from the homestead plot, in as much as the tenant is not in possession of any portion of the holding and he has been held to have abandoned. The two suits were tried together by consent of parties and the same evidence was led in respect of both of them. The plaintiff in his evidence clearly proved that the defendant had transferred all his lands including the homestead plot and has left the village and is residing elsewhere.

The result is that the appeal should be dismissed. In this view of the matter it was not necessary to decide the question referred to the Full Bench, namely, “Is there a presumption that belagan homestead lands are not part of a raiyati holding”, but for a decision of this Court in Ramji Prasad Sahu v. Muhammad Anwar Ali Khan according to which the belagan homestead plot, although entered as a part of the holding in the survey record-of-rights, is not really a part of it because no rent is payable for it. This definition of ‘holding’, as already shown, is contrary to the definition of it given in, the Bengal Tenancy Act and is misleading and in fact, as submitted by Mr. Manuk, his client was misled and instituted two separate suits for ejecting the defendants from the homestead land and the agricultural plots included in the same khata. In order to clear up the position created by the aforesaid decision of this Court in 1917 it was necessary to decide the question referred to us.

The result is that the appeal is dismissed with costs.

Ross, J.:— I agree.

Wort, J.:— I agree.

Appeal dismissed.