JAGADISH CHANDRA SANYAL Vs. LAL MOHAN PODDAR

JUDGEMENT

(1.) The subject-matter of the two litigations, which have given rise to the appeals now before us, is a five-sixth share of a tract of 850 bighas of land in the Sunderbans. The plaintiffs in one of three suits claim title to a one-half share of this tract as settlement-holders under Government. The plaintiffs in the other suits claim a similar title to a third share. The holders of the remaining one-sixth share are party defendants, but they are not really interested in any way in the controversy between the plaintiffs and the contesting defendants. The case for the plaintiffs-respondents in these appeals is that in September 1898, that is, nearly seven years before the commencement of these suits on the 11 May 1905, they and their sub- lessees were unlawfully ejected from the disputed lands by some of the defendants who claim title as tenants under the second defendant. The answer of the contesting defendants to the claim is that in 1888 the plaintiffs or their predecessors granted a reclamation lease to the father of the second defendant, that this lease is still in operation and that the defendants were in lawful possession of the disputed lands under title subordinate to that of the grantee. The original Court found in favour of the defendants and dismissed the claim as unfounded. Upon appeal, the District Judge has reversed the decision. Upon the question of fact, namely, whether a tenancy was created in favour of the father of the second defendant, the District Judge has found, in concurrence with the Subordinate Judge, in favour of the defendants, though no mention of the tenancy was made by the plaintiffs in their plaint which was appropriate to a suit for ejectment of trespassers. The District Judge, however, has found that the defendants had no subsisting title because no registered instrument had been executed in favour of the grantee. In this view, he has concluded that no permanent and. heritable interest was created in favour of the original tenant, and that, consequently, upon his death his interest lapsed. The defendants have now appealed to this Court, and on their behalf, the decision of the District Judge has been assailed substantially on the ground that the lease in question was a lease for agricultural purposes within the meaning of Section 117 of the Transfer of Property Act, and that a permanent lease of this character could be created without a registered instrument, notwithstanding the provisions of Section 107 which are rendered inapplicable to the present case by Section 117. To determine whether this contention is well-founded, it is necessary to consider for a moment the purposes of the tenancy.

(2.) It is the common case of the plaintiff as well as the defendants that in 1888, the disputed tract was wholly waste covered with jungle and wild trees. The plaintiffs and their co-sharers were unable to settle any tenants upon the land so long as the land continued in that condition. Guru Das Sanyal, the father of the second defendant and husband of the third defendant, was at the time employed as a Forest Ranger in the locality. About the year 1891, the plaintiff settled the disputed lands at that time assumed to cover 500 bighas but now found on measurement to occupy 850 bighas with Guru Das. No formal lease was executed, but an amalnamah was granted which authorized Guru Das to take possession, to re-claim the lands and to bring them under cultivation. This amalnamah has not been produced: the defendants assert that it was made over to an officer of the plaintiffs and was never returned; the plaintiffs, to ever, do not admit the allegation. But although the amalnamah is not forthcoming, there can, in our opinion, be no room for reasonable doubt as to the purpose of the tenancy; it was an ordinary reclamation lease; the object of the grantors was that the grantee should take steps to re-claim the lands covered by jungles, so that they might be brought under cultivation. This reclamation might be made by the grantee himself or by his servants and hired laborers or possibly also by his under-tenants. It has been found by both the Courts below that Guru Das did enter into the occupation of the lands and that he also settled tenants who cut the jungle and brought a position of the lands under cultivation. But the Original Court and the Court of appeal below are not agreed as to the precise area re- claimed and cultivated, nor are they agreed as to the exact time when the possession of the grantee terminated. We shall, however, adopt for our present purposes the findings of the District Judge that Guru Das got a portion of the lands re-claimed and cultivated, that his possession continued undoubtedly up to the time of his death in February 1892, and that subsequently the landlords re-entered and continued in possession through their own tenants till September 1898, when they were dispossessed by the original tenant and by persons claiming under him. The question consequently arises, whether the grant to Guru Das constituted a lease for agricultural purposes within the meaning of Section 117 of the Transfer of Property Act. The defendants-appellants have invited us to answer this question in the affirmative, while the plaintiffs-respondents have strenuously supported the contrary view. On behalf of the respondents reliance has been placed upon the cases of Promotha Nath Milter v. Kali Pramnna Chowdhry 28 C. 744 and Jung Bahadur V/s. Ishanally 5 O.C. 222. These cases, however, are clearly distinguishable and are really of no assistance to the respondents as they are authorities merely for the proposition that a putni lease or any other lease, under which the grantee assumes the position of a middle man and acquires the right to collect the rents of an estate, is not a lease for an agricultural purpose,, so as to be exempt from the operation of Section 107 of the Transfer of Property Act. Nov is the decision in Murugesa V/s. Chinnathambi 24 M. 421 of any help to the respondents where the learned Judges of the Madras High Court investigated the distinction between an agricultural and a horticultural purpose. The case before us must, consequently, be decided upon principle and as one of first impression. The sole question is, whether a reclamation lease granted expressly for the purpose that the jungle and wild trees might be removed and the land brought under cultivation, is a lease for agricultural purposes. Agriculture as defined by Webster is the art or science of cultivating the ground, including the preparation of the soil, the planting of seeds, the raising and harvesting of crops and the rearing, feeding and management of live stock. This definition was adopted as accurate in the cases of Binzel V/s. Grogan 67 Wise 147 : 29 N.W. 895 ; Dillard V/s. Webb 55 Ala. 468. The respondents have, however, pressed us to hold that agriculture is restricted to cultivation. This is a narrow interpretation of the term agriculture, and, in our opinion, we ought to construe the expression "agricultural purposes" liberally in Section 117 of the Transfer of Property Act. Where land is granted, as here, for the purpose of reclamation and cultivation the lease is obviously for agricultural purposes. It is immaterial whether the grantee does the work himself, by his servants and hired laborers, or by under-tenants whom he settled on the land. The intention of the grant is obviously not to create the interest of a middleman but to bring the land under cultivation after the soil has been rendered fit for the purpose on removal of wild trees and jungles. Admittedly, there were no tenants in occupation in. any part of the property at the time of the grant from whom rent might have been collected and the mere fact that the grantee subsequently settled a portion of the lands with sub-tenants to facilitate the reclamation and cultivation is obviously immaterial. In our opinion, the lease in favour of the father of the second defendant was a lease for agricultural purposes within the meaning of Section 117 of the Transfer of Property Act and consequently the tenancy could be created without a registered instrument notwithstanding the provisions of Section 107. The position of the grantee was clearly that of a tenure-holder as defined in Section 5, Sub-section (1), of the Bengal Tenancy Act. It is worthy of note that according to this definition, the term tenure-holder includes not only a person who has acquired a right to hold land for the purpose of collecting rents, but also one who has acquired a right to hold land for the purpose of bringing it under cultivation by establishing tenants on it. This indicates plainly that a grant in favour of a tenure-holder may be a grant for agricultural purposes. As the original grantee here was a tenure-holder for agricultural purposes, there can be no question that the interest was heritable and did not lapse upon his death. The second defendant and the persons who have derived title from him are consequently entitled to remain in possession of the land, and the plaintiffs, though holders of the superior interest cannot successfully claim to eject them.

(3.) The result, therefore, is that these appeals must be allowed, the decrees made by the District Judge discharged and those of the Subordinate Judge restored with costs payable by the plaintiffs-respondents to the defendants-appellants both in this Court and in the Court of appeal below.