MUHAMMAD SULAIMAN Vs. UMA CHARAN SIL

JUDGEMENT

(1.) The suit out of which this appeal arises was one for ejectment of the defendant on the expiry of a lease, dated the 22nd Falgun 1321 B.S., the terms of which expired on the 30th Chait 1325. The plaintiff was unsuccessful in both the Courts below and he has preferred this appeal to this Court.

(2.) Two contentions have been put forward in this appeal on behalf of the appellant. The first is that the tenancy is governed not by the provisions of the Bengal Tenancy Act but by those of the Transfer of Property Act; and the second is that assuming for the sake of argument, that the tenancy is governed by the Bengal Tenancy Act, the Courts below have erred in law in holding that the provisions of Section 47 of that Act stand in the way of the plaintiff's recovering a decree.

(3.) In support of the first contention, the learned Vakil for the appellant has drawn my attention to the conditions of leases Exs. A and B executed respectively in 1908 and 1915. He has referred to the. description of the subject-matter of the lease Ex. B, and has urged that, inasmuch as the three plots which are covered by that lease are (1) 17 gundas and odd which is said to be the bank of a tank, (2) 14 gundas and odd which is described as the watery portion and (3) 2 gundas and odd which is said to be Muddat or waste land. A large portion of the tenancy is in respect of a tank and his contention is that it should be held that the tenancy is not for agricultural or horticultural purposes. He has also referred to the terms of the two leases aforesaid and has contended that, inasmuch as there is no specific mention in those leases that they were being executed for the purpose of agriculture or horticulture the tenancy created thereby is to be regulated by the provisions of the Transfer of Property Act, and not by those of the Bengal Tenancy Act. On behalf of the respondent it is urged, so far as this contention is concerned, that the documents in question on the face of them appear to be in respect of a tenancy in favour of a non-occupancy raiyat and, therefore, the plaintiff is precluded from questioning the status of the raiyat and the character of the tenancy, the latter having derived his interest from the Court of Wards who executed those documents.