S.C. Ghose, J.

1. This appeal arises out of a suit for rent for six years,that is to say, from Jeyt 1290 to Bysack 1296, alleged to be due to theplaintiff under a lease dated the 25th September 1875. The defendants are theRaniganj Coal Company, Limited, and the kabuliyat which is produced by theplaintiff in support of his claim for rent was executed by Messrs. Schcene,Kilburn and Company, as the managing agents on behalf of the Raniganj CoalCompany.

2. In their written statement the Raniganj Coal Companypleaded that no relationship of landlord and tenant existed between theparties; that the defendants had relinquished the leasehold by notice servedupon the plaintiff; and that since then the plaintiff had possession of thelands comprised in the lease. They also pleaded that the plaintiffs claim wasbarred by limitation.

3. The Subordinate Judge gave a decree to the plaintiff,being of opinion that he was entitled to maintain the action as framed; thatthere was no acceptance by him of the so-called relinquishment; that it was notproved that the plaintiff had any possession of the lands since the lease tothe defendants; that the lands demised to the defendants were not agriculturallands, so as to come within the purview of the Bengal Tenancy Act; and that,therefore, the three years limitation, provided by Article 2 of the 3rdschedule annexed to that Act, did not apply, and that under Article 116 of theIndian Limitation Act the plaintiff was entitled to claim rent for six years.

4. It will be observed upon the judgment of the SubordinateJudge that apparently there was no issue between the parties whether therelationship of landlord and tenant existed between them. No doubt one of theissues that were originally framed by the Subordinate Judge was to that effect,but this was not one of those issues upon which that officer recorded hisjudgment. The issues which were discussed by him would seem to us to be theright issues which arose between the parties upon the pleadings. The defendantsin their written statement did no doubt allege in the sixth paragraph that therelationship of landlord and tenant did not exist between the parties, but thatwas an allegation which, we think, was clearly based upon the ground that thedefendants had relinquished the leasehold and the plaintiff had takenpossession since the relinquishment. And that was the way in which theSubordinate Judge dealt with the case, apparently, with the consent of both theparties.

5. On appeal, however, to the District Judge, the questionwas raised by the learned Counsel, who then appeared for the defendants, thatthe relationship of landlord and tenant did not exist between the parties,because under Section 42 of Act X of 1866 (an Act for the incorporation,regulation, and winding up of Trading Companies and other Associations), thelease, before it could be a binding transaction, should have been under thecommon seal of the company. This contention was not raised in the Court ofFirst Instance at the time of argument, and we do not think it was open to thedefendants to raise it in appeal. We think further that the Judge has rightlyheld that the contention could not be supported. In order to make it good it mustbe shown, as observed by the Judge, that under the law in this country thelease was required to be in writing, and that under the English law such adocument must be under seal. The lease was, as has already been mentioned,granted in the year 1875, long before the Transfer of Property Act came intooperation; and whatever might be the true construction that should be put uponSection 107 of that Act, we think that, before that Act came into operation, alease, or at any rate, the acceptance of a lease by the tenant was not requiredto be in writing: it might have been made without any writing, and we do notthink that the English law, which requires a lease for a term exceeding threeyears to be in writing and under seal, applies to a transaction like this inthis country.

6. But, as already observed, the true contention that wasraised by the defendants was that they had relinquished the leasehold and theplaintiff had taken possession, and therefore they were not liable for rent. Sofar as the question of relinquishment is concerned, we think that both theCourts are right in holding that the lease with which we are concerned couldnot in law have been relinquished in the manner alleged by the defendant. Itwas a permanent lease, and it was not open to the defendants to give it up attheir pleasure; and there is nothing to show, as the Lower Appellate Court hasfound, that the plaintiff accepted the relinquishment or took possession of theproperty after the alleged relinquishment. That being so, it seems to beobvious that the plaintiff is entitled to recover rent from the defendantunder the lease in question.

7. The only other question raised in this case is one oflimitation. It was contended before us by the learned Counsel for thedefendant-appellant that the land demised to the Raniganj Coal Company was landwhich came within the purview of the Bengal Tenancy Act, and therefore underArticle 3 of the second schedule, read with Section 184 of that Act, theplaintiff could not recover rent for a longer period than three years.

8. In this connection the question we have first to applyourselves to is, what is the character of the lease that was granted by theplaintiff to the defendants This lease came before a Division Bench of thisCourt for consideration in the case of Judoonath Ghose v. Schcene Kilburn andCompany I.L.R. 9 Cal. 671 and this Court held that this was not a lease ofagricultural land; and Mr. Justice FIELD, who was one of the learned Judges whodecided that case, held that as the lease was not a lease of agricultural land,the provisions of the Rent Act [VIII. B.C. of 1869] had no application. Thelease in question was a dur-maurasi dur-mocuran lease at an annual rent of Rs.625; and it recites that the lessor had obtained from his landlord amaurasi-mocurari settlement; it states that a dur-maurasi-mocurari lease isgranted to the lessee; and it then provides as follows: "being vested withyour (lessors) right, we shall continue to hold and enjoy the said land forever down to our heirs or representatives from generation to generation onpayment of rent payable for the said land either directly or through tenants byraising buildings, digging tanks, planting gardens, establishing coal depots,or by using it in any other way we choose, to which you or any of your heirsshall not be competent to raise any objection; and even if you make any, itshall be inadmissible. And the rent of the said land shall never to subject toenhancement. Should you or your heirs claim any enhancement it shall berejected as null and void." Later on there is a covenant to the effectthat no plea as to non-payment of rent should be allowed to be raised by thelessee on account of drought or inundation, or upon the ground of the landlying waste or being deserted, or from any other cause. And at the end of thelease the following passage occurs: "you have granted us adur-maurasi-mocurari pottah in respect of the said land on receiving duesatisfaction--Rs. 800 as bonus and Rs. 350 as the price of the tanks, trees,etc., and other fixtures on the land as shown in the schedule below. As regardsthe tenants residing on the said land, we shall turn them out by paying theprice of their houses, buildings, trees, etc., appurtenances from our ownpockets." The Judge of the Court below, we observe, refused to considerthe terms of the lease on the ground that the defendants had not produced theirpottah; but upon a consideration of the oral evidence adduced, and upon theadmission of the defendants, he held, as a matter of fact, that the land wastaken with the object of establishing a coal depot upon it. Section 5 of theBengal Tenancy Act, supposing it is applicable to this case, lays down in thefourth paragraph that, "in determining whether a tenant is a tenure-holderor a raiyat, the Court shall have regard to {a) local custom, and (b) thepurpose for which the right of tenancy was originally acquired;" and thisis what the law was before the Bengal Tenancy Act came into operation; for itwas always held, whenever the question arose whether the tenant was a middlemanor a raiyat, that it must be enquired into and determined what was thecharacter of the tenure in its very inception, i.e., at the time when the grantwas made.

9. We might here say that the plaintiff having produced thekabuliyat executed by the defendants in support of his claim of rent, thedefendants are entitled to ask us to determine what, upon the terms of thelease itself, is the true character of the transaction; and looking at theterms of the lease, it seems to us that it could not have been granted foragricultural or horticultural purposes, but that it was a lease granted forbuilding purposes and for the establishment of a coal depot. No doubt there areterms in the instrument which are often found in permanent leases ofagricultural properties, viz., as to the lessee being entitled to hold the landeither directly, or through tenants, by raising buildings, digging tanks,planting gardens, establishing coal depots, or by using it in any other way hechose; and as to the lessee not being entitled to plead drought, or inundation,and so forth. This is the common form which is generally used in all permanentleases, but we do not think that we should be justified in concluding from thisthat it was the intention of the parties that the lease should be for anypurpose other than that for which it really purports to be, i.e., a lease ofthe land for use as a coal depot. The concluding portion of the lease makes thematter, we think, abundantly clear; for it provides that the lessees shall turnout the tenants who were then residing upon the land by paying the price of thehouses and buildings. The land no doubt appertained to a revenue-paying estate;but it was not land that was being used for agricultural purposes--it was beingused for habitation by certain tenants. That being so, and regard being had tothe finding that has been come to by the learned District Judge, it seems to usthat the land was not leased to the defendants for agricultural orhorticultural purposes, but for building purposes and for the establishment ofa coal depot.

10. That being the character of the lease with which we areconcerned, the next question which we have to consider is, whether the landcomprised in the lease is land which comes within the purview of the BengalTenancy Act. If the question had arisen either under Act X of 1859 or under ActVIII (B.C.) of 1869, there could be no doubt, regard being had to the wholecurrent of rulings upon the subject, that the lands covered by this lease couldnot come within the Rent Act. In the case of Khalat Chunder Ghose v. WilliamMinto 1 Ind. Jur. N.S. 426 it was held by Phear, J., that the word"land" occurring in Act X of 1859 was "merely that which the ordinaryraiyats or occupiers of the soil possess and hold under the zemindar, viz., thesurface of the earth in a condition such that, by the aid of natural agencies,it may be made use of for the purposes of vegetable or animalreproduction," and then the learned Judge observed as follows: "Ibelieve it has been held constantly that land covered entirely with houses andbuildings not devoted to agricultural objects does not come within theapplication of the Act."

11. To the same effect were the cases of Kalee Kishen Biswasv. Sreemutty Jankee 8 W.L.R. 250 and Ramdhun Khan v. Haradun Puramanick 12 W.L.R. 404; 9 B.L. R. 107 , and the case decided by the full Bench of thisCourt--Rani Durga Sundari Dasi v. Bibi Umdatannisa 9 B.L.R. 101 where it washeld that a suit for enhancement of rent of land covered with buildings wouldnot lie in the Revenue Court under Act X of 1859. Act VIII (B.C.) of 1869 wasbut a re-enactment of the provisions of Act X of 1859 with this difference thatthe jurisdiction which under Act X of 1859 had been vested in the Collector wastransferred to the ordinary Civil Courts. And we observe that in the case ofJudoonath Ghose v. Schcene Kilburn and Company I.L.R. 9 Cal. 671 which hasalready been referred to, it was held that, in respect of a dur-maurasi-mocurarilease of land which was not let for agricultural purposes, the provisions ofthe Rent Act [VIII (B.C.) of 1869] had no application, and that the lesseecould not, under Section 20 of that Act, relinquish his leasehold. But it hasbeen contended before us that whatever the word "land" meant in theRent Acts of 1859 and 1869, the Bengal Tenancy Act has a much wider scope, andthat it includes lands other than those let out for agricultural orhorticultural purposes. We do not think we are called upon in the present caseto discuss this very large question. It will be sufficient for the purposes ofthe present case if we determine whether the tenancy which was created infavour of the defendants comes within the purview of the Bengal Tenancy Act. Nowthe word "tenant" has been defined in Clause 3, Section 3 of this Actto mean "a person who holds land under another person, and is, or but forspecial contract would be, liable to pay rent for that land to thatperson." It will be observed, upon a consideration of the different partsof the Act, that the word "tenant" has been used as a generic term:it applies equally to tenure-holders and to raiyats. In the same Section 3, theword "rent" is defined, and it means "whatever is lawfully"payable or deliverable in money or kind by a tenant to his landlord on accountof the use or occupation of the land held by the tenant." The word"tenure" means "the interest of tenure-holder or anunder-tenure-holder," and the word "holding" has been defined tobe "a parcel or parcels of land held by a raiyat and forming the subject;of a separate tenancy." Then in Chapter II we have the classes of tenants.Section 4 says: "There shall be, for the purposes of this Act, thefollowing classes of tenants, viz., (1) tenure-holders, includingunder-tenure-holders, (2) raiyats, and (3) under-raiyats, that is to say,tenants holding whether immediately or mediately under raiyats." Section 5defines who is a "tenure-holder," and it says it "meansprimarily a person who has acquired from a proprietor or from anothertenure-holder a right to hold land for the purpose of collecting rents orbringing it under cultivation by establishing tenants on it," and soforth; and the word "raiyat" has been thus defined: it means"primarily a person who has acquired a right to hold land for the purposeof cultivating it by himself or by members of his family, or by hired servants,or with the aid of partners," and so forth. Reading Chapter II, as awhole, and other portions of the Act itself, it seems to us that theLegislature contemplated that only three classes of tenants should be regardedas holding lands within the meaning of the Bengal Tenancy Act, viz.,tenure-holders, raiyats, and under-raiyats; and we have to find out, in thecase now before us, whether the defendants are tenure-holders, raiyats orunder-raiyats. That they could not be raiyats or under-raiyats is perfectlyclear, for, as already pointed out, a raiyat is a person who has acquired aright to hold land for the purposes of cultivation. It is obvious that thedefendants did not acquire this land for the purpose of cultivation. It was notland used for agricultural purposes, nor was it acquired for the purposes ofcultivation, but it was acquired for the purpose of building and forestablishing a coal depot. It was, however, contended before us that they couldbe regarded as tenure-holders within the meaning of Section 5. We think thatthey could not be so regarded, for they did not acquire from their landlord aright to hold the land for the purpose of collecting rent or bringing it undercultivation by establishing tenants on it. They acquired the land with theobject of holding it themselves and using it as a coal depot, and not for anyof the purposes mentioned in Section 5. Whether the words "collectingrent" as occurring in that section should be taken as confined tocollecting rents from raiyats, or should be taken to be applicable also tocases where rents are collected, not from raiyats but from under-tenants of thesame class as the lessees, it is not necessary for us in the present case todecide.

12. Under these circumstances we think that the provision asto limitation contained in Schedule II annexed to the Act has no application inthis case. It has been held by a Full Bench of this Court Mackenzie v. HajiSyed Mahomed Ali Khan I.L.R. 19 Cal. 1 [LQ/CalHC/1891/29] that in suits for rent governed by theBengal Tenancy Act the limitation is three years, as provided in Article 2 ofthe third Schedule, although the lease might be a registered lease; and inrespect of cases not governed by the Bengal Tenancy Act, where there is aregistered lease, it has been held, both in this Court and also in other HighCourts, that the limitation is six years as prescribed by Article 116 of theIndian Limitation Act, XV of 1877. In this case, the lease is a registeredlease, and therefore, in accordance with these rulings, the plaintiff isentitled to recover rent for six years as sued for. The result is that thisappeal will be dismissed with costs.

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Judoonath Ghose vs.Raniganj Coal Association Limited(08.04.1892 - CALHC)