RAJ KUMAR NALI Vs. MOHESH CHANDRA GUHA

JUDGEMENT

(1.) THIS is an appeal by the defendant against a judgment of the learned Subordinate Judge of Barisal, dated the 19th July 1915, reversing the decision of the Munsif of the same place. The suit was brought by the plaintiff to recover rent at the rate of Rs. 20 per annum. The defendant alleged that he was only liable to pay a smaller rent because the tenancy was govern-ed by the provisions of the Bengal Tenancy Act. Therefore, the question in debate has been limited to as to whether this holding is or is not governed by the provisions of the Bengal Tenancy Act. It is not an agricultural holding: that is quite clear. Nobody, has argued that it is so. The question is whether it is a horticultural holding. That is a question of fact to be determined in each particular case from, the facts found by the learned Judge. In the lease in this case the word, althaugh it may mean a garden, may also mean an orchard. That seems to be common ground and the learned Judge of the lower Appellate Court has found that the evidence on the record shows that since the granting of the sub-lease, that is, the sub-lease under which the defendant holds, the defendant has been possessing the land by enjoying the fruits of the trees standing thereon and also by growing new trees. There is nothing relating to a garden on this piece of land at all. THIS is what is called in the English language an Orchard, namely, a piece of land let out containing fruit trees of which the defendant enjoys the fruits and on which may be planted fresh and additional trees. There is no suggestion that any portion of the land is under cultivation at all and that any such cultivation is being made for horticultural purposes. The view of the, learned Judge on those facts is clearly right that this is not a garden in any sense of the word, but is really let out as an orchard to which the provisions of the Bengal Tenancy Act do not apply. In that view, the learned Judge has come to the conclusion, and rightly so, that the present case is governed by the provisions of the Transfer of Property Act. The appeal, therefore, fails and must be dismissed with costs.