Authored By : Francis Maclean, Banerjee

Francis Maclean, K.C.I.E., C.J

1. I am doubtful whether the Lower Appellate Court ought tohave allowed the point now argued before us to have been raised. It was neverraised in the pleadings, and never raised in the Court of First Instance. Thecase raised in the Court of First Instance was that the defendants neverexecuted the ijara in question: they fought that out and they were beaten. Itis not very easy to say whether this particular lease is or is not within theprovisions of the Bengal Tenancy Act. It is found by the Court below that thelands lie within the municipal area of Dacca, but there is nothing to show thatthe land was let out as a holding for agricultural or horticultural purposes,though there appears to have been some evidence as to some of the plots beingused for growing vegetables and sone sonda. I think we must take it, upon thefindings, that this land was not used for agricultural or horticultural purposes,and, that being so, I see no reason to dissent from the view taken by the lowerCourt. The appeal must be dismissed with costs.

Banerjee, J.

2. I am of the same opinion. The two questions raised beforeus are, first, whether this suit, which was one for arrears of rent due underan ijara lease, which is a registered document, is governed by the three yearsrule of limitation prescribed in the Bengal Tenancy Act, or the six years ruleof limitation under Article 116 of the second schedule of the Limitation Act;and, second, whether interest is recoverable at any rate exceeding 12 per centper annum, the rate prescribed by Section 57 of the Bengal Tenancy Act. Thesequestions, as has been pointed out in the judgment of the learned ChiefJustice, were not raised in the first Court; and it is very doubtful whetherthe Lower Appellate Court ought to have allowed them to be raised at all,because these questions are not pure questions of law, but are mixed questionsof law and fact, their determination depending upon the questions whether theBengal Tenancy Act applies to this case--a question which again depends fordetermination upon the question whether the land the subject of the lease, wasused for agricultural or horticultural purposes, or for purposes other thanthose.

3. Upon the last-mentioned question the finding of the LowerAppellate Court is against the appellants. But the learned Vakil for thedefendants (appellants) contends that the question is a pure question of law,and that, having regard to the terms of the lease, the plaintiff was atenure-holder within the meaning of Section 5 of the Bengal Tenancy Act, quiteirrespective of the question whether the land was held for agricultural orhorticultural purposes, or for any other purpose; and he bases his argumentupon that part of the definition of the term "tenure-holder" inSection 5, Sub-section 1, of the Tenancy Act, which runs in these terms:Tenure-holder means primarily a person who has acquired from a proprietor orfrom another tenure-holder a right to hold land for the purpose of collectingrents." It is argued that the lease shows that the plaintiff acquired fromthe proprietor or another tenure-holder a right to hold the land in questionfor the purpose of collecting rents from the occupants of the land, whetherthey are agricultural and horticultural tenants, or shop-keepers, or any otherdescription of tenants.

4. I am of opinion that this contention is not sound. For,although the part of the definition of the term tenure-holder, quoted above,may be comprehensive enough to lend some colour to the appellants contention,yet we must take the provisions of the Act relating to tenure-holders as awhole, and see whether the term "tenure-holder," as contemplated bythe Bengal Tenancy Act, would include a person such as the plaintiff has beenfound to be in this case. One of these provisions applicable to tenure-holdersis that contained in Section 7 of the Act, and that section, especially Clause(a) of Sub-section 3 of it, to my mind, clearly indicates that a tenure-holderwithin the contemplation of the Act must be a person who holds land which isused for agricultural or horticultural purposes. For Sub-section 3 enacts that,"in determining what is fair and equitable, the Court shall not leave tothe tenure-holder as profit less than ten per cent, of the balance whichremains after deducting from the gross rents payable to him the expenses ofcollecting them, and shall have regard to (a) the circumstances under which thetenure was created--for instance, whether the land comprised in the tenure, ora great portion of it, was first brought under cultivation by the agency or atthe expense of the tenure-holder or his predecessors in interest, whether anyfine or premium was paid on the creation of the tenure, and whether the tenurewas originally created at a specially low rent for the purpose ofreclamation."

5. The view I take is in accordance with that taken in thecase of Durga Sundari Dassi v. Umdatanissa (1872)9 B.L.R.10 : 18 W.R. 234,decided under the former Bent Law, Act X of 1859. I may also add that this viewreceives considerable support from the provisions of Section 117 of theTransfer of Property Act. For we find in Chapter V of the Transfer of PropertyAct, in which Section 117 occurs, certain provisions of the law relating toleases of Immovable property, which obtain simultaneously with the provisionsof the Bengal Tenancy Act, and the two enactments being different in manyrespects, it could not have been the intention of the Legislature that a casemight, at the option of any party, be brought indifferently under theprovisions of the one enactment or the other. The two enactments must have beenintended to have separate application; and the line of demarcation between thetwo is, to a certain extent, indicated by Section 117 of the Transfer ofProperty Act, which enacts that none of the provisions of the Chapter in whichthat section occurs applies to leases of Immovable property for agriculturalpurposes, except in certain cases. This indicates that the distinction betweencases coming under the Transfer of Property Act, and those coming under theordinary Rent Law, is constituted by the fact of the land beingnon-agricultural or agricultural.

6. For these reasons, and having regard to the finding thatthe land in dispute is not shown to be used for agricultural or horticulturalpurposes, I think that the Lower Appellate Court was quite right in holdingthat the Bengal Tenancy Act has no application to the present case.

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Mahomed Rojabi vs. Umrao Bibi and Ors. (01.08.1899 - CALHC)