JUDGMENT 1. The present appeal arises out of a reference made by the Land Acquisition Deputy Collector to the District Judge of Noakhali, under sec. 49 of Act I of 1894. Out of a holding of 7 bighas, 2 cottahs, 3 chittaks, of which Sarala Sundari Bose, wife of Babu Sarat Chandra Bose, claimed to be hawladar and her husband to be raiyat, and of which the sons of one Chandramoni Singh were in possession as osat raiyats, 2 bighas, 2 chittaks of land were acquired for the purposes of the Lachana Noakhali Branch Railway Line. Sarat Chandra Bose put in an objection to the acquisition of a part only of the land alleging that the whole of the land was homestead land and that if a portion only were acquired the remaining portion could not be used for dwelling purposes. He, therefore, contended that under the law the whole of the land should be acquired for the purpose of the Railway. The question referred to the Civil Court therefore was whether the whole of the 7 bighas, 2 cottahs, 3 chittaks formed a house, manufactory or building as described in sec. 49 of the Act, I of 1894, and whether the Railway was bound, if it acquired a part, to acquire the whole of the land. The learned District Judge, after hearing the evidence adduced by both parties, came to the conclusion that the objection raised by Sarat Chandra Bose could not be supported, and dismissed the case. The District Judge held that the land acquired formed part of a holding which was of a permanent nature, and that the under-raiyats had relinquished any rights which they might have been supposed to have had in favour of Sarat Chandra Bose. He further found that the holding was used as a dwelling-house with the land round it which was necessary for its convenient use and occupation, and that the land acquired was reasonably acquired for the full and unimpaired use of the house, and that, after the acquired portion was cut off it was hardly possible to make a suitable or desirable house there. Apparently he held that the whole of the land fell within the description of a house in sec. 49 of Act I of 1894. Apparently he held that the whole of the land fell within the description of a house in sec. 49 of Act I of 1894. But inasmuch as the homestead standing on the land appeared to have been in whole or in part constructed by the osat raiyats, Chandramoni Singh and others, and as they had been allowed to remove the materials and had been paid compensation for the cost of such removal, the Judge held that Sarat Chandra Bose was not the owner of the house within the meaning of sec. 49 and therefore that his objection to the acquisition of part of the land and homestead and his contention that the whole should have been acquired could not be entertained. 2. Against this judgment and decree Sarat Chandra Bose had appealed to this Court. The main contention advanced in support of the appeal is that the District Judge on the reference before him had not to consider the question whether Sarat Chandra Boss was the owner of the property or not. No body in fact disputed his ownership to the property, and no evidence was adduced to rebut that given on behalf of Sarat Chandra Bose to prove his purchase of the whole property, and that it had all along been used as a whole for residential purposes. The deeds of sale showed that there was a dwelling-house standing on the ground at the time of Sarat Chandra Bose's purchase and that he bought the house with the land. The mere fact that Chandramoni Singh and Basunta Kumar Singh had during their tenancy built additional huts and had repaired the old dwelling-house would not have the effect of converting them into owners of the property for the purposes of sec. 49 of Act I of 1894. 3. After hearing the learned pleaders on both sides and reading the evidence we are of opinion that so far as the land is concerned it is under the circumstances of very little importance whether the whole 7 bighas, odd cottahs be held to form a house within the meaning of sec. 49 of Act I of 1894. 3. After hearing the learned pleaders on both sides and reading the evidence we are of opinion that so far as the land is concerned it is under the circumstances of very little importance whether the whole 7 bighas, odd cottahs be held to form a house within the meaning of sec. 49 of the Act so as to render it obligatory on the Government to acquire the whole of it, for even if it be not held to form a house with its appurtenances there is no doubt on the evidence that after the part acquired has been cut off from the rest of the land the balance is useless for residential purposes, and therefore that the compensation on account of severance and on account of the property being prejudicially affected by the acquisition of a part of it would with the compensation for the portion acquired not be less than the value of the whole of the land. The learned pleader who appears on behalf of Government has felt himself bound to admit that this is the case. It would appear therefore to be more to the interest of Government to acquire the whole of the land than a part. The contest being then practically withdrawn as to the finding of the District Judge that the whole of the 7 bighas, odd cottahs of land forms a house with its grounds and appurtenances and so falls within the provisions of sec. 49 of the Act, we see no reason to disturb the conclusion at which the Judge has arrived. 4. It only remains to consider whether the view of the Judge is right that Sarat Chandra Bose is not the owner of the property. In our opinion it is not. The grounds on which the Judge has arrived at the conclusion are not sufficient. The mere facts that the tenants had added to the dwelling-house and repaired it, and had been allowed compensation for removing the materials of that part of the dwelling-house which was acquired, would not themselves be sufficient to support the conclusion that they had a good title to the property. The deed of sale in favour of Sarat Chandra Bose, dated 5th Aughran 1306, shows that the land was sold to him containing a dwelling-house, garden, tank, etc. The deed of sale in favour of Sarat Chandra Bose, dated 5th Aughran 1306, shows that the land was sold to him containing a dwelling-house, garden, tank, etc. The dowl kabuliyat executed by Basunta Kumar Singh tenant in favour of Goluk Chandra Sen Mojumdar, on the 9th Aughran 1297, also mentions the dwelling-house, garden, etc., and the kabuliyat executed by Chandramoni Singh in favour of Goluk Chandra Sen Mojumdar, on the 20th Kartik 1290, for the same land mentions a dwelling-house as standing on the land. In the face of these documents it is impossible to hold that at the time of the purchase of Sarat Chandra Bose there was not a dwelling-house standing on the land and that he did not purchase the dwelling-house. He must therefore be regarded as the owner or proprietor of the house within the meaning of sec. 49 of the Act. No body in fact disputes his title. 5. The finding of the District Judge on this point cannot be supported and we therefore set it aside and direct that the case be sent back to him in order that he may send the case back to the Land Acquisition Deputy Collector with directions to acquire the whole of the land and to assess the compensation due thereon, and to apportion it among the different parties interested therein. The Appellant is entitled to the costs of this appeal and to his costs in the lower Court. We assess the hearing fee in this Court at 5 gold mohurs.