The Judgment of the Court was as follows:—

Graham, J.:— This is an appeal by the Defendant No. 2 from a decision of the Additional District Judge of Tipperah confirming a decision of the Munsif, 3rd Court of Comilla, and arises out of a suit brought by the Plaintiff, now Respondent, for a declaration of his raiyati right to a tank with its banks.

The Plaintiff's case was that the tank in question belonged to one Ramkanai Dutt, the father (now deceased) of the Defendant No. 1, who executed a lease on the 7th July 1913, for a period of ten years covering the years 1320-29 B.S, in favour of Abhoy Gharan Nath. Abhoy Charan died in 1922 leaving as his heirs his widow the present Plaintiff No. 1, and two brothers the Plaintiffs Nos. 2 and 3. On the expiry of the said lease the Defendant No. 1 granted an ijara patta to the present Appellant (Defendant. No. 2) for a period of 16 years, 1322 to 1347 B.S Thereafter the tank became the subject matter of proceedings between the parties under sec. 145 of the Code of Criminal Procedure, with the result that on the 8th March 1926, the possession of the Defendant No. 2 was confirmed by the Criminal Court. The Plaintiff thereupon instituted this suit on the 10th September 1926. They alleged inter alia that the Defendant No. 1, who used to live in Rangoon returned home after the death of his father, Ram Kanai, in order to perform the sradh ceremony, and that he then entered into an agreement with the Plaintiffs whereby he undertook to execute a patta in Plaintiff's favour on receipt of Rs. 100 as najar, the rental of the holding being increased to Rs. 12 per year. No patta or kabuliyat was however executed as the Defendant No. 1 had to return to Burma. Plaintiffs claimed that they had occupancy right in the tank, and that by virtue of the fresh agreement they were entitled to renewal of the lease and to get a patta from the Defendant No. 1., They further stated that the Defendant No. 1 returned again from Burma at a later date but that in spite of repeated demands he put off execution of the patta with the result that proceedings arose under sec. 145 of the Criminal Procedure Code. In the course of those proceedings it transpired that the Defendant No. 1 had executed an ijara lease in favour of Defendant No. 2, and the Defendant No. 2, as already stated, was declared to be in possession. The Plaintiffs were therefore compelled to (bring this suit. They contended that) they were entitled to a declaration of their rayati right and in the alternative to obtain execution of the lease.

The suit was contested by the Defendant No. 2, who claimed that he had been given an ijara of the land in suit by the Defendant No. 1 after the expiry of the Plaintiff's lease and to have purchased the same for consideration without knowledge of the contract set up by the Plaintiffs. He further pleaded that the Plaintiffs' lease was not an agricultural lease, that the Plaintiffs could not acquire any occupancy right in the tank and its banks, and that no fresh lease had been executed as alleged.

The trial Court found that the Plaintiffs had acquired occupancy right in the tank and its banks and gave a decree for khas possession on declaration of title but found that there was no evidence that the alleged contract had been entered into by Defendant No. 1 for the execution of a fresh lease on expiry of the old one.

From that decision there was an appeal by the Defendant to the District Court against the first finding, while the Plaintiffs filed a cross-appeal in respect of the second finding. The Court of appeal below confirmed the decision of the Munsif upon both points, the appeal and cross-appeal being both dismissed. The Defendant No. 2 has now preferred this second appeal.

The main question involved in the appeal is whether the Plaintiffs' lease of 1913 was and is a lease for agricultural purposes and as such is governed by the provisions of the Bengal Tenancy Act, or is on the other hand an ordinary lease under the Transfer of Property Act intended to be merely temporary in its operation, and conferring no permanent right of any kind. The answer depends upon the construction to be put upon the terms of the lease, which are not as explicit as they might be. The material portions may be briefly referred to. The lessee is described as a seller of cloth and grihastha, and the patia as creating the right of a tenant (praja svatva). The purpose of the lease is described as “rearing fish in the tank and stacking grass for cattle on the banks.” There are provisions for payment of ceases by the lessee, and for additional rent for additional area on measurement. At the end it is stated that the patta is executed “for rearing fish and grazing cattle.” Whether the cattle are for purposes of cultivation or not is not however mentioned. The learned Advocate for the Appellant laid stress; on the fact that there is within the four corners of this document no reference whatever to cultivation, and argued that it must be deemed therefore to be merely a lease of the tank with its banks and as such governed by the Transfer of Property Act. It appears to be settled that, where land has been let out for the purpose of grazing cattle on it, the lessee may be a raiyat, provided the grazing is ancillary to cultivation. Hedayet Ali v. Kemalanand Singh (1). That however does not help very much because, as I have said, there is no actual reference in the patta to cultivation. But, as was pointed out in the case just referred to above, it is necessary to bear in mind that the term “agriculture” is of wider import than the term cultivation. The mere fact that cultivation is not expressly referred to does not therefore conclude the matter. Speaking for myself, I should have thought that when a lease speaks of the objects in view as “stacking grass for cattle” and “grazing cattle” it ought fairly to be deemed to be a lease for agricultural purposes, though no doubt it is conceivable that cattle may be kept for purposes having nothing to do with agriculture. The use of the word grihastha to describe the lessee does not give any help because although it is sometimes used to mean cultivator, it is also frequently used in its more literal sense of “house-holder.”

The provisions in the lease in regard to ceases, and to increased rent for additional area seem however to support the case of the Plaintiffs-Respondents that the intention of the parties was to create a raiyati lease, both of these being stipulations which would hardly be expected in a lease other than a lease conveying a raiyati right. On the whole therefore upon a true construction of the terms of the lease itself, I am of opinion that the Courts below have rightly construed it as a lease for agricultural purposes. Even, however, if it be held that the terms of the lease are not free from ambiguity, it is permissible to take into consideration the conduct of the parties for the purpose of determining its true nature. In that connection certain considerations have been referred to by the learned Additional District Judge in his judgment at p. 10 of the paper-book, for example that the oral evidence supports the conclusion that the Plaintiffs' family were agriculturists, that Abhoy had cultivation with plough and bullocks, that they tilled with their own hands, and that agriculture was the principal source of their income. These facts seem to clear up any doubt, which may be suggested by the terms of the document itself, as they go to show that Abhoy Charan had cultivation and that the grazing of the cattle was for agricultural purposes.

It was next argued on behalf of the Appellant that, even if this argument be held to be good so far as the banks are concerned, it cannot apply to the tank itself which was leased solely for the purpose of catching fish. The answer to this contention seems to me to be two-fold. In the first place it is to be borne in mind that a supply of water both for drinking purposes and for washing is essential for the keeping of cattle for agricultural purposes, and secondly, that the tank and its banks must be treated as one holding, and that it cannot be split up and the water portion distinguished from the dry portion. The patta itself shows that it is one holding, and it is clear that the Defendant-Appellant himself recognised it as such. Furthermore, if a portion of the demised area is used for agricultural purposes, that will determine the character of the lease as a whole. In this connection it may be mentioned that out of a total area of 11 kanis and odd, the banks cover an area of 3 3/4 kanis, so that the land portion is by no means an insignificant portion of the whole.

The learned Advocate for the Appellant urged that none of the reported cases covers the present case because in this instance we are dealing with a tank for the rearing of fish. That however sounds rather like begging the question. If it were purely and simply a question of a tank, the argument would no doubt be sound, and the Bengal Tenancy Act would not apply. But, as I have shown, there are the banks of the tank to be considered, and the purpose for which they were intended to be, and have in fact been used. These as it seems to me determine the character of the holding.

Finally, it appears to have been clearly established that the Plaintiffs' are not only agriculturists but are also settled raiyats of the village, and, that being so, must be deemed to have acquired a right of occupancy in the land forming the banks of the tank. That portion cannot, however, as I have said, be separated from the tank or water portion—the entire area forming one holding.

For the reasons I have stated the appeal in my judgment fails and should be dismissed with costs. In view of the finding arrived at it is not necessary to go into the question of specific performance of the contract which was relied upon by the Plaintiffs in the alternative.

Mitter, J.:— I agree with my learned brother that this appeal should be dismissed.

The question in controversy turns on the construction of a lease which was given for a term. The lease purports to be of a tank for the purpose of rearing fish and of its banks for the purpose of stacking grass for cattle and for pasturing cattle. The Courts below have held this lease to be one for agricultural purposes and have found that the right of occupancy can be acquired in such tank and the question in this appeal is whether their conclusion is right.

An examination of the authorities on the subject under the old Rent Law Act X of 1859 (B.C) shows that where the lease is merely of a tank with, so much of its banks as is necessary for its use, it cannot be regarded as an agricultural lease and no right of occupancy can be acquired in the tank, see Nidhi Krishna Bose v. Ram Das . In the case of Siboo Jelya v. Gopal Chandra Chaudhury (3), Sir Richard Couch, C.J, said that the provisions of Act X of 1859 which confer a right of occupancy do not apply to a tank used only for the preservation and rearing fish and not forming a part of grant of land or appurtenance to any land, even though possession may have been held for more than twelve years.

The true test as to whether the lease is for agricultural purposes or not is to see whether the primary object was the lease of the tank or lease of the land surrounding it for purposes of agriculture with the tank within it. In this respect the area of the surrounding land is an important factor to be considered. Here the area of such land which is to be used as pasture ground is considerable and reading the lease as a whole it appears to me that the lease was of land for use of cattle and of the tank for rearing fish. Evidence shows in this case that the cattle was used for agricultural purposes and such evidence is admissible where the lease is silent as to whether the cattle was to be used for agricultural purposes or not. In these circumstances the lease of the land must be regarded as one of agricultural purposes. See Brojobasi Koer v. Ramsankar Das . It is argued however with great insistence, by Mr. Jogesk Chandra Roy who appeared for the Appellants that the facts of the case in Brojo Basi Koer v. Ramsankar Das are distinguishable as there the lease was only of land and not a lease like the present of a tank with the land. But that distinction really does not matter, for the question is whether the land was leased for agricultural purposes and if it was so, the lease of the tank must be governed by the incidents of the lease of the surrounding land, for it is clear from the lease that the lease was one and indivisible and there was one lump rental fixed for both. In the course of argument it seemed to me at the first blush that the tank portion might be detached from the land portion but on closely examining the lease I find it is not possible to so construe the lease which must be taken as one lease both for tank and banks. In the case of Nidhi Krishna Bose v. Ram Das cited before Sir Richard Couch, the Chief Justice observed that a right of occupancy in land includes the same right in respect of a tank appurtenant to the land. The learned Chief Justice said this: “Where land is let for cultivation and there is a tank upon it the tank would go with the land, and if there was right of occupancy in the land, there would be a right of occupancy in the tank as appurtenant to land.”

P.C