JUDGMENT 1. The Plaintiff is a raiyat with a right of occupancy, the lands included in the holding being partly agricultural and partly homestead. The portion which could be used as homestead was let out to the Defendants as under-raiyats. The purpose of the tenancy created by the Plaintiff in favour of the Defendants was not agricultural, but for use as homestead. The Plaintiff gave the Defendants notice to quit on the 18th Assin 1305, corresponding to some day in October 1898, and required them to quit the land on the 30th Cheyt of that year. The Plaintiff instituted the present suit for the ejectment of the Defendants on the 20th June 1899. The only question which requires my attention is whether the Defendants could be ejected under the notice served on the 18th Assin 1305 ? 2. The Munsif who tried the case held that the Defendants' holding under the Plaintiff was not agricultural, or horticultural, and therefore, under sec. 106 of the Transfer of Property Act, the notice was good. 3. In appeal the Subordinate Judge has held that notwithstanding that the purpose of the tenancy created in favour of the Defendants was not agricultural or horticultural, the Defendants were still under raiyats, within Chap. VII of the Bengal Tenancy Act, and, therefore, the proper notice to be served on them is that prescribed by sec. 49, cl. (6) of that Act; and the service of notice is to be effected in the manner prescribed by Rule 3 of the rules of the Government of Bengal framed under sec. 189 of that Act. 4. I think the Subordinate Judge is right in the view he has taken. The holding of the Plaintiff is agricultural ; therefore, he is a raiyat as defined, in sec. 4 of the Bengal Tenancy Act. The Defendants are under-raiyats, that is to say, tenants holding immediately under a raiyat. Sec, 49 lays down special rules as to the ejectment of under-raiyats by raiyat landlords. Act VIII of 1885 was passed for the protection of raiyats as well as under-raiyats ; and if a raiyat holds land partly agricultural and partly homestead, the incidents of the holding would regulate the incidents of the sub-lease created by the raiyat. Sec, 49 lays down special rules as to the ejectment of under-raiyats by raiyat landlords. Act VIII of 1885 was passed for the protection of raiyats as well as under-raiyats ; and if a raiyat holds land partly agricultural and partly homestead, the incidents of the holding would regulate the incidents of the sub-lease created by the raiyat. The Transfer of Property Act is not applicable to lands used for agricultural purposes, and in considering whether the one Act, or the other would apply, we have to look to the nature of the original tenancy, and not the nature of the tenancy with reference to a particular piece of land within the landlord's holding. Otherwise the result would be anomalous. As between the landlord, and raiyat and under-raiyat the rights and obligations will be regulated by sec. 55 of the Bengal Tenancy Act and it is difficult to suppose that the intention of the law is that as between the raiyat himself and the under-raiyat the relationship would be regulated by a different Act altogether. Sec. 49 provides for the benefit of under-raiyats that the period of notice should be once a year and that benefit they are entitled to have when the tenancy held by the raiyat himself is of a raiyati character. 5. The decision of the Subordinate Judge is based on an assumption that the facts stated in the plaint are correct, and that the Defendants are under-raiyats. The Defendants deny that they are under-raiyats, and they set up a permanent right. The question of the Defendants' status has, therefore, been left open. I do not think, however, that the Subordinate Judge is right in applying sec. 183 of the Bengal Tenancy Act to the case. 6. The appeal is dismissed with costs. 7. Against the decision of Mitra, J., an appeal was preferred under sec. 15 of the Letters Patent. This appeal was heard by Maclean, C.J., and Pargiter, J. Maclean, J. and Pargiter, J I think Mr. Justice Mitra's decision is quite right, and the appeal must be dismissed with costs.