Doss, J.:— This appeal arises out of an action for ejectment of the Defendants from two holdings, one measuring 575 bighas held at a rental of Rs. 51-12 as and the other 120 bighas held at a rental of Rs. 8.

The holdings are situated in a tract known as chariramna or pasture lands in Mouzah Basantpur, one of the mouzahs comprised in the Plaintiff's zemindari. The Plaintiff based his suit on the ground that the Defendants are tenants from year to year, that their tenancy is determinable by a six months' notice to quit and that their tenancy has been determined by service of such notice.

The Defendants, on the other hand, deny service of notice. They plead that they have occupancy rights in the holdings, or at all events, such rights in them by local usage that they cannot be evicted.

The learned District Judge has held that service of the notices upon the Defendants has been proved; that they are not raiyats as defined in sec. 5 of the Bengal Tenancy Act and consequently cannot claim occupancy rights in the holdings; but that they have some sort of permanent right in the land and that the landlord cannot eject them except on payment of compensation or for sufficient cause. He has, however, held that the Defendants by attempting to cultivate the land and asserting a claim to it as a raiyati holding have made use of the land in a manner not contemplated in the original settlement with them and that they have therefore forfeited their right to the holding. On these grounds, he has decreed the Plaintiff's suit.

The Defendants have appealed and they have challenged the findings of the Court below as to service of notice, as to non-acquisition of the right of occupancy and the forfeiture of the holding by reason of conversion of the land.

The Plaintiff-Respondent has impugned the finding of the Court below that by local usage the Defendants have acquired some sort of permanent right so as to protect them from ejectment.

The first point for consideration in this case is whether the notices have been served on the Defendants.

The notices do not show under what Act they were issued. The Plaintiff alleged in para. 3 of his plaint that the notices were under sec. 106 of the Transfer of Property Act and that he caused them to be served on the Defendants through the Civil Court. If the notices were under the Bengal Tenancy Act they would doubtless have to be served through the Civil Court in the manner provided for service of summons on the Defendant. But if those notices were under sec. 106 of the Transfer of Property Act, it would be necessary to serve them in the manner prescribed in that section. The Civil Court peon who went to serve the notices, being unable to serve them on the Defendants personally as three of them only were adults and the rest were either infants or females and the adult members were not to be found in the house, he tendered the notices to their servants who were there present and they having refused to accept the notices, the affixed them on the outer thatch of the house in which the Defendants were residing at the time.

It has been contended on behalf of the Appellant that the notices were not served at all and that there are such discrepancies in the evidence of the witnesses examined by the Plaintiff to prove service of the notices that their evidence cannot be relied upon.

I think the evidence on this point is quite reliable and I entirely agree in the finding of the learned District Judge that the notices have been served on the Defendants in the manner I have indicated. For the purposes of this question, it is unnecessary to decide whether the notices ought to have been issued under the Bengal Tenancy Act or under the Transfer of. Property Act; for, I am of opinion that the mode in which service has been effected, satisfies the requirements of either of the enactments. If the notices were under sec. 106, of the Transfer of Property. Act, they have been served according to law, because they, were tendered to the servants in the house of the Defendants. If they were under the Bengal Tenancy Act, service of them was also in accordance with law, because the serving officer being unable to find the Defendants or any agent empowered to accept service of the notices, affixed the notices on the outer thatch of the house in which the Defendants were residing.

The next and indeed the most important point for consideration in this case is the nature of the right possessed by the Defendants in the holdings in suit. They have, as already indicated, set up two-fold rights, first, a right of occupancy and, secondly, a permanent right by local usage. It will be more convenient to consider these two rights separately and also to deal with the question of the permanent right by local usage before dealing with the other right. The parties have adduced a large mass of oral and documentary evidence in proof of this right and they have all been placed before us. The result of the evidence adduced on the side of the Defendants has, in my opinion, been correctly summed up in the following passage in the judgment of the learned District Judge. “The residuum of the evidence seems to me to be that sales both by private treaty, and by auction at the Courts are frequent, that cases of ejection have teen uncommon, that chariramna have not infrequently passed to the heirs of a deceased person after his death, and that mutation of names has been allowed in the zemindar's sherista, sometimes on payment of nazarana, and sometimes without such payment.” The fact that chariramna holdings have been bought and sold is not disputed by the Plaintiff. He himself has, on more than one occasion, put up such holdings for sale in execution of decrees (see Ex. U, F, and F2, J, J1, J2, Q and Q1, L, L1 to L5). He admits in his own deposition that lessees of such holdings have saleable interests, that he has recognised transfers of such holdings on receipt of nazarana and that he is unable to give any instance in which he refused to recognise the transferee of such a holding. I entirely concur in the conclusion arrived at by the learned District Judge that the owners of chariramna holdings have a permanent right, but I am unable to agree with him that the landlord is competent to eject them — “either on payment of compensation or on sufficient cause,” nor can I agree with his view that the landlord can eject them if they attempt to cultivate the holding or assert a claim to it as a raiyati holding. It is true that the soil of the holdings in suit in consequence of admixture of sand in it is apparently unfitted for profitable cultivation; it is also true, as pointed out by the learned District Judge, that the cultivation of the holdings in suit has been intermittent, indeed a small plot of 20 or 25 bighas on the north of the first holding has been under cultivation, during the last 5 or 6 years, and possibly a like area had been under cultivation 15 or 16 years ago and that they have been used mainly for depasturing of cattle therein; nevertheless it does not seem to me at all reasonable to hold that at the creation of these and similar holdings which indeed are very numerous—and some of them very large (according to the Plaintiff there are 500 chariramna holdings, if not more, in Pergunna Sultanpur, some held under him directly and the rest under his putnidars, dar-putnidars, istemrardars and so forth; and indeed one of them, as appears from the evidence in this case, comprises over 1400 bighas), the parties intended that if perchance through the operation of physical causes the soil of these holdings should ever become cultivable that the tenant should not at any time have the power to cultivate the whole or any portion of them, or in other words, that such holdings should be condemned to perpetual sterility nor does it seem to me reasonable either to hold that the parties intended that if the tenants ever attempted to cultivate these holdings they should be held guilty of waste and incur the penalty of forfeiture of their holdings, the more particularly so, if it is recollected that these holdings for the reasons I have already indicated must be held to be permanent in their character.

The learned Vakil for the Respondent perceiving the weakness of his position strenuously urged that the issue as to the acquisition of a permanent right., by local usage, ought not to have been allowed to be raised for the reason that the written statement contained no averment to that effect, I am unable to accede to this argument.

The plea is substantially raised in para. 6 of the Defendants' written statement. Though the—expression right of occupancy—has been used therein, fit evidently does not refer to the statutory right of occupancy, for such a right cannot arise by local usage as alleged therein. Moreover, the Defendants applied as far back as the 4th August 1905, that is, four months before the commencement of the trial, asking the Court to frame that issue; they renewed their application again on the 1st of December 1905 when the Court ordered that in case the issues already framed be adjudged against the Defendants it would consider the propriety of raising the issue as to local usage, and if it be raised, of allowing opportunity to both sides to adduce evidence. This issue was framed on the 19th January 1906, evidence was led on both sides and the decision was pronounced on the 30th July 1906. I do not think that the Plaintiff has any just ground for complaint.

As to the right of occupancy set up by the Defendants in the holdings in suit, it is to be observed that the holding of 120 bighas has been in the possession of the Defendants from the time of their grandfather and that of 575 bighas has been in their possession since 1867, when their father purchased the same from Joti Biswas and Uma Nath Biswas who were the previous owners thereof. This last holding too has all along been in their possession.

It is clear, therefore, that the rights of the Defendants must be ascertained with reference to the law as it stood before the Bengal Tenancy Act came into operation. Sec. 6 of Act X of 1859 ran thus: “Every raiyat who has cultivated or held land for a period of 12 years has a right of occupancy in the land so cultivated or held by him, whether it be held under a pattah or not, as long as he pays the rent payable on account of the same.” Under that law, it was held in the case of Fitz Patrick v. Wallace that a right of occupancy could be gained in land used for breeding and grazing cattle and also in land used for grazing horses. No authority has been brought to our notice in which a contrary view has been taken. I must take it, therefore, that the Defendants had acquired a right of occupancy in the holdings before the Bengal Tenancy Act came into force. That being so, they cannot lose such status if the law is subsequently changed. I do not think however that in this respect the law has undergone any change. Sec. 5, sub-sec. 2, omitting the immaterial words, runs thus: “A raiyat means primarily a person who has acquired a right to hold land for the purpose of cultivating it,” etc., and the explanation attached to the sub-section is that “where a tenant of land has the right to bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purposes of cultivation notwithstanding that he uses it for the purpose of gathering the produce of it or of grazing cattle on it.” Therefore, according to this sub-section, read with the explanation, the vital test whether a tenant of land is a raiyat or not is whether he has the right to bring it under cultivation, though he might use it for the purpose of grazing cattle on it.

The fact that similar chariramna holdings descend to heirs and are freely transferred without any opposition or protest on the part of the landlord and are regarded as possessing a substantial value in the market, points to the inference that at the creation of these tenancies the lessees acquired the right to bring the land under cultivation as an incident of the tenancy, though if and when the land is brought under cultivation, the tenants are, as conceded by the learned Vakil for the Appellants, liable to be called upon to pay such fair and equitable rent for these holdings as may be assessable for cultivated lands. The existence of such a liability is clearly suggested by the kharija deed Ex. D., dated the 25th January 1889, which the father of the present Plaintiff executed in favour of one Nanilal Nundy.

I am of opinion, therefore, that the Defendants have succeeded in establishing that they have occupancy rights in the holdings, as also a permanent right in them and that consequently they cannot be ejected.

For these reasons the appeal is decreed and the suit dismissed with costs Rs. 100.

Richardson, J.— The Appellants in this case were the Defendants in the Court below. The Plaintiff and the Respondent before us is Mr. A.H Forbes, Executor of the estate of the late Mr. A.J Forbes, who was the zemindar of Pergunna Sultanpur in the District of Purnea. The suit relates to two plots of land held by the Defendants as the Plaintiffs tenants, one plot measuring 575 bighas, of which the rent is Rs. 51-12-0 per annum, and the other measuring 120 bighas, the rent being Rs. 8 per annum.

The Plaintiff seeks to eject the Defendants from these holdings because he is not agreeable to allow the aforesaid lands to continue in the possession of the Defendants. That is the only reason for ejecting the Defendants to be found in the plaint, beyond a statement of the fact that though a notice to quit had been served on the Defendants on the 26th September 1903, they had paid no attention to it and were not disposed to make over possession to the Plaintiff. The notice to quit, as appears from the plaint, was a notice under sec. 106 of the Transfer of Property Act, which runs as follows: “In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy, and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.”

“Every notice under this section must be in writing signed by or on behalf of the person giving it, and tendered or delivered either personally to the party who is intended to be bound by it, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.”

The notice to quit was a six months' notice expiring on the nth April 1904. The plaint was filed in the 5th December 1904.

The defence made in the written statement was in effect that the notice to quit had not been duly served, that the Transfer of Property Act had no application to the holdings, which were governed by the rent law, that the lands were held not only for the purpose of grazing cattle as alleged by the Plaintiff in his plaint but also for the purpose of cultivation, that the holdings were of a raiyati character and that the Defendants had acquired occupancy rights in them and were not liable to ejectment at the pleasure of the Plaintiff.

The first issue discussed by the learned District Judge relates to the notice to quit. The notice was served through the Civil Court by a Court peon and the District Judge finds that the peon went to the house of the Defendants with a number of copies of the notice for the various Defendants and called out to them. The Defendants were members of a large family of some importance in the village but though the District Judge believes that there were at least two of them in the house no notice was taken of the peon by any of the Defendant or their servants. The peon accordingly affixed copies of the notice to the door of the house in the presence of witnesses. I fully accept these findings of fact and I agree with the District Judge that there was a good tender of the notice under sec. 106 of the Transfer of Property Act.

The next two issues discussed by the District: Judge are the following:—(3) “Was the land settled with the Defendants for pasturage?” (4) “Are the Defendants raiyats within the meaning of the Bengal Tenancy Act of the land in suit? and if so, have they occupancy rights?”

In reference to these two issues, I agree generally with the conclusions of pure fact at which the District Judge has arrived. He finds that “grazing and not cultivation has all along been the primary object of the Defendants' occupation of the land,” that is to say, he finds in effect that the lands are as they are described in the plaint what are known in the district or pergunna as chariramna lands. It is clear to my mind on the evidence that the Defendants do not and have never held these lands for the purpose of cultivation and that any recent attempts made by them to cultivate any part of the lands have been merely colourable. The evidence includes the report of a Commissioner who made a local enquiry and I rely upon that report so far as it relates to the present state and condition of the lands. In this connection I may mention that the words in the judgment, “the cultivation was admittedly intermittent” were misunderstood at the bar. What they mean in the context in which they are to be found is that the Defendants had to admit at least that their cultivation of the lands had been intermittent. They do not mean that the Plaintiff admitted intermittent cultivation of the land. The only point on which I differ from the District Judge is in regard to the inference which he appears to draw from the small amount of compensation, paid to the Defendants in connection with certain land acquisition proceedings. The total amount as stated was not large and if the Defendants accepted the compensation awarded to them, I do not think that fact should go against them. I agree then that these lands which are more or less sandy and sterile were held as grazing lands or pasturage. I postpone consideration of the District Judge's further finding that the Defendants are not raiyats within the definition in sec. 5 of the Bengal Tenancy Act and cannot as raiyats claim occupancy rights.

The next issue dealt with in the judgment of the Court below runs as follows:—

5. Is the Plaintiff entitled to obtain khas possession of the land in suit and if so to what relief is he entitled?

This issue the District Judge, relying on sec. 106 of the Transfer of Property Act, decided in favour of the Plaintiff subject to his determination of a further issue which he framed and in respect of which he took further evidence. The additional issue is the following;— “Whether by custom or local usage the Defendant has got any permanent right to hold the land in suit?”

The Plaintiff has filed a series of cross-objections to the course which the District Judge took but it appears to me that the District Judge, did nothing which he was not competent to do and which in view of the pleadings set out in the written statement of the Defendants, he was not justified in doing. The Plaintiff's objections therefore are not in my opinion maintainable.

On the further evidence produced by the parties in reference to the additional issue, the District Judge found in effect that the Defendants had some kind of permanent heritable and transferable right in these chariramna lands and that the Plaintiff was not entitled to evict them at his will and pleasure. With this I agree and if the learned Judge had stopped there and dismissed the suit, there would have been little more to say. But he went on to make a case for the Plaintiff which the Plaintiff did not make for himself and which in effect he repudiates in the cross-objections which he has filed to the decree. What the Plaintiff claimed and still claims is a right to eject the Defendants at any time on giving due notice to quit. What the District Judge has done is to give the Plaintiff a decree for ejectment on the ground that the Defendants have made use of the holdings in a way which renders the land unfit for the purposes of the tenancy. The District Judge moreover, though he has dealt with the case throughout on the footing that it is governed by the Transfer of Property Act, has justified the ejectment of the Defendants on the ground stated by reference to a provision in the Bengal Tenancy Act, which I understand him to have applied by analogy. Apart from the Plaintiff's pleadings, I think that the view of the law adopted is mistaken.

As I have said the notice to quit was apparently served under the Transfer of Property Act and it was a six months' notice. The Plaintiff therefore apparently took action under the first part of the first paragraph of sec. 106, For and as the Defendants certainly do not hold these lands for manufacturing purposes, the Plaintiff must have considered the holdings to be holdings for some agricultural purpose. If they are held for an agricultural purpose, then under sec. 117 of the Transfer of Property Act, the provisions of Chap. V of that Act which contains sec. 106 do not apply to the case at all and the Plaintiff has misconceived his rights. But even supposing that the notice may be taken to be a notice under the second part of the first paragraph of sec. 106, the finding that the Defendants have a permanent right in the holdings removes them from the purview of that section altogether and the ground on which the District Judge has made his decree must be examined with reference to other provisions of the Act. The user of land for a purpose other than that for which it was based, or what is known as waste, is dealt with in cl. (o) of sec. 108. Then in order to discover whether anything done by the tenant in contravention of the provisions of that clause, entails forfeiture of the tenancy, reference must be made to the provisions of cl. (g) of sec. III. The Defendants here have not denied the Plaintiff's title. There is no written lease and it is not alleged that there is any express condition attached to the tenancy by virtue of which the Plaintiff is entitled to re-enter because the Defendants have committed waste. It appears therefore that under the Transfer of Property Act the remedy open to the Plaintiff would be a suit for compensation or damages or a suit for an injunction. The Plaintiff therefore in any view of this case is not entitled to a decree for ejectment under the Transfer of Property Act.

To turn to the Bengal Tenancy Act, the District Judge has referred to sec. 25, but apart from the fact that the Plaintiff does not himself claim the benefit of the provisions of that section, the District Judge has omitted to notice that those provisions are conditioned by the provisions of sec. 155 and possibly by other provisions such as those contained in secs. 76-83. It is sufficient for the purpose of this case to say that the Plaintiff has not qualified himself and does not claim to have qualified himself for any remedy open to him under the Bengal Tenancy Act.

A good deal of discussion has taken place on the questions whether these holdings are governed by the Bengal Tenancy Act and whether the Defendants have occupancy rights in them. I do not think that in the present case it is necessary to decide these questions, which depend on the definitions of tenure-holder and raiyat contained in sec. 5 of the Tenancy Act and also in some degree on the meaning of sec. 193 of that Act. The evidence is not in my opinion sufficient to support the custom or usage, which the Defendants set up in support of their case. In this connection they tried to prove too much. They attempted to make out that the custom or usage was exact in regard to the number of years of possession (12) required for the acquisition of occupancy rights in chariramna lands. In this Court it was argued that the custom included a right to cultivate chariramna lands subject the payment of higher rent to the landlord, and this on the strength of a single document, a formal lease, dated the 25th January 1889 (Ex. D), executed by the landlord and containing an express covenant embodying the effect of the alleged custom. Apart from this document there is no evidence that any tenant has ever claimed the right to cultivate chariramna land and offered at the same time to pay more rent for the land. In my opinion the Defendants' case in this respect cannot be put higher than this that there is a tendency, in the absence of a special contract or special circumstances, to treat chariramna lands as heritable and transferable in the hands of a tenant, a course of dealing which in individual cases, as in the present case, may lead to the inference that some kind of permanent right in the lands has been acquired. In my opinion on the materials before us it would be unsafe to generalize and each case must be dealt with on its own merits as it arises.

The result is that I concur in the conclusion at which my learned brother has arrived.

Appeal allowed.