1. This is an appeal on behalf of the defendant in an actionin ejectment The case for the plaintiffs is that the tenancy in favour of thedefendant was created on the 8th January 1890 for a term of 15 years, that uponthe expiry of the term he has not vacated the land and that he is consequentlyliable to be ejected as a trespasser. On the 27th May 1904, the plaintiffattempted to serve a notice to quit upon the defendant under Section 45 of theBengal Tenancy Act; the service of that notice, however, has not been proved,and as the suit has not been commenced within six months after the expiry ofthe term as provided in Section 45, no further reference need be made to theprovisions of that section. The only question in controversy is, whether thedefendant is liable to be ejected as a trespasser. The case for the defence isthat he has acquired a right of occupancy in the land and is not liable to beejected. The case for the plaintiffs, on the other hand, is that the incidentsof the tenancy are governed by the Transfer of Property Act and that thedefendant is consequently, liable to be ejected upon the expiry of the term.Hence the question reduces to this, what is the status of the defendant underthe lease of the 8th January 1890. The lease recites that there was a disputebetween the plaintiffs and the defendant in respect of two parcels of land,that with regard to one of these, the Settlement authorities had decided infavour of the defendant, whereas with regard to the other there had been adecision in favour of the landlords. The tenant, therefore, agreed to take alease of these two parcels of land for a term of 15 years. In respect of thefirst parcel situated in Mauza Chauka he agreed to pay at the rate of Rs. 11 ayear and it was described as Chari Raman land, that is, open land used foragricultural purposes. In respect of the other parcel situated in Mauza SanghiaBhagtu, the defendant agreed to pay rent at the rate of Rs. 31 a year and theland was described as Chari Raman land, tali garden land and garden. Thecontention on behalf of the defendant is that the first parcel was taken forthe purpose of grazing cattle and the second parcel was taken partly for thepurpose of grazing cattle and partly for a garden, and, that, consequently,under the provisions of the Bengal Tenancy Act, he has acquired a right ofoccupancy in both the parcels. In so far as the grazing land is concerned,reliance has been placed upon the cases of Fitzpatrick v. Wallace 11 W.R. 231and Latifar Rahaman v. Forbes : 5 Ind. Cas. 783 [LQ/CalHC/1909/176] : 14 C.W.N.372. In so far as the garden is concerned, reliance has been placed upon thecases of Hurry Ram v. Narsingh Lal 21 C. 129. On behalf of theplaintiffs-respondents, it has been argued, in answer to this contention, thatthere was no lease for any horticultural purpose, that the tenancy was createdfor the purpose of enabling the lessee to gather fruits from the trees on the land,and that in respect of the pasture, the tenant was entitled merely to take awaythe grass and that, consequently, he was not in the position of a raiyat withinthe meaning of the Bengal Tenancy Act

2. Now in so far as the case of Fitzpatrick v. Wallace 11W.R. 231 is concerned, it seems to have been held therein by Mr. Justice Normanthat, as a right of occupancy can be gained in land used for breeding andgrazing cattle, a similar right may be acquired in land used for grazing hones.In the case of Latifar Rahaman v. Forbes : 5 Ind. Cas. 783 [LQ/CalHC/1909/176] :14 C.W.N. 372, Mr. Justice Dass broadly laid down that under Act X of 1859 aright of occupancy can be gained in land used for breeding and grazing cattleand also in land used for grazing horses and that the law has not in thisrespect been changed by the Bengal Tenancy Act. We are of opinion that thesepropositions are too broadly formulated. Sub-section 2 of Section 5 of theBengal Tenancy Act lays down that "raiyat" means primarily a personwho has acquired a right to hold land for the purpose of cultivating it byhimself or by members of his family or by hired servants or with the aid ofpartners and includes also the successors-in-interest of persons who haveacquired such a right. This is followed by an explanation to the effect thatwhere a tenant of land has the right to bring it under cultivation, he shall bedeemed to have acquired a right to hold it for the purpose of cultivation, notwithstandingthat he uses it for the purpose of gathering the produce of it or of grazingcattle on it. This explanation plainly indicates that the user of land for thepurpose of gathering produce on it is not equivalent to bringing it undercultivation within the meaning of Sub-section 2. In our opinion where land hasbeen let out for the purpose of grazing cattle on it, the lessee may be araiyat, if the grazing is ancillary to cultivation. It is conceivable thatcattle may have to be grazed for the purpose entirely independent ofcultivation. It cannot be affirmed that a lessee who takes land for grazingcattle on it, without any connection with cultivation, is a raiyat within themeaning of Sub-section 2 of Sections 5. The appellant has contended on theauthority of the decision in Umrao Bibi v. Mahomed Rojabi : 4C.W.N. 76 : 27 C. 205, that, broadly speaking, the provisions of the BengalTenancy Act are applicable to agricultural tenancies , whereas the provisionsof the, Transfer of Property Act are applicable to non-agricultural tenanciesand that the term cultivation as used in Section 5 of the Bengal Tenancy Act,is equivalent to agriculture. In this connection, our attention has beeninvited to the case of Emperor v. Alexander Allan 12 M.L.J. 393 : 25 M. 627. Weare of opinion, however, that the term agriculture is of wider import than theterm cultivation. As is pointed out in the Oxford Dictionary agriculturemeans the science or art of cultivating the soil including the allied pursuitsof gathering in the crops and rearing live stock; tillage, husbandry, farming(in the widest sense). "Cultivation," on the other hand, is definedin the Oxford Dictionary as meaning the tilling of land, tillage, husbandry. Itis obvious, therefore, that agriculture has a much wider import thancultivation. Consequently, a purpose may be connected with agriculture butnot necessarily ancillary to cultivation. In our opinion, in order to bring alease for the purpose of grazing within the meaning of Sub-section 2 of Section5 of the Bengal Tenancy Act, it is necessary to prove that the grazing was inrelation to cultivation which is the primary purpose for which a raiyatacquires the right to hold land. It follows that the mere circumstance that aconsiderable portion of the land comprised in the tenancy now underconsideration was let out for the purpose of grazing is not conclusive upon thequestion, whether the defendant has or has not acquired the status of a raiyat.If, as a matter of fact, the grazing was in relation to agriculture and if,immediately or shortly after the lease had been granted, the tenant grazedcattle on the land as subsidiary to agricultural pursuits, the inference wouldlegitimately follow that the lease was for agriculture cultural purposes andwas granted for a purpose subordinate to that of cultivation. If that isestablished, the tenant may very well claim to have acquired the status of anoccupancy raiyat. A similar distinction, it may be observed, has been drawn inthe determination of the question whether a right of occupancy may be acquiredin a tank; the test to be applied is, whether the grant is subsidiary toagricultural pursuits, or is merely for the purpose of rearing and catchingfish [Siboo Jelya v. Gopal Chunder 19 W.R. 200; Mahananda Chakravarti v.Mongala Keotani : 31 C. 937 : 8 C.W.N. 804 Nidhi Krishna v.Ramdoss 20 W.R. 341].

3. In so far as the garden land is concerned, which includesonly a small portion of the land comprised in the tenancy, it was laid down inthe cases of Chowdhry Khan v. Gour Jana 2 W.R. Act X Rulings, 40 and KaleeKishen Biswas v. Srimati Jaknee 8 W.R. 250 that where land has been let out forhorticultural purposes, the lessee may acquire an occupancy right therein. Thesame view has been subsequently taken in the case of Hurry Ram v. Narsingh Lal21 C. 129. Here, again, it must be pointed out that horticulture means thecultivation of a garden or the science of cultivating, or managing garden,including growing flowers, fruits and vegetables. If the lease was for thepurpose of gathering fruits from the trees on the land, it cannot be affirmedthat the lease was for horticultural purposes. This distinction is pointed outin the judgment of a Full Bench of the Agra High Court in the case of Goor Dialv. Ram Butt Agra H.C.R. (F.B.) 15 : Ed. 1874, 11. In so far, therefore, as thegarden is concerned, the position is that we have not sufficient materials todecide whether the defendant has or has not acquired a right of occupancytherein. The defendant appears to have adduced some evidence in the Court belowto prove that he has for many years actually cultivated a portion of the landcomprised in the tenancy. The Courts below have not come to any finding uponthis matter. If it is established that immediately or shortly after the leasewas granted the defendant, without any objection on the part of the landlord,took to cultivation and, as a matter of fact, brought a portion of the landunder tillage, the inference would legitimately follow that the land wasgranted for the purpose of cultivation. When the terms of a grant areambiguous, reference may properly be made to the conduct of the parties todetermine its true nature. [Ramdayal Giri v. Midnapore Zamindary Company Ltd.: 7 Ind. Cas. 785 [LQ/CalHC/1910/481] : 15 C.W.N. 263; Pramotha Nath v. Nilmoni10 Ind. Cas. 431 [LQ/CalHC/1911/89] : 15 C.W.N. 902 : 14 C.L.J. 38]. Under these circumstances, weare of opinion that the findings contained in the judgment of the DistrictJudge are not sufficient for the disposal of the case.

4. The result is that this appeal is allowed, the decree ofthe District Judge set aside and the care remanded to the Court of firstinstance in order that the question of the status of the defendant may bedetermined with reference to the points indicated in this judgment. The Courtwill take such additional evidence as may be adduced by the parties. The costsof this appeal will abide the result.

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Sheikh Hedayet Alivs. Kumar Kalanand Singh(23.05.1912 - CALHC)