Mitter, J.:— The plaintiff, hereafter called the company, purchased a number of plots of sali (arable) land from the tenants in actual occupation and reduced them into its khas possession. Thereafter it took mukurari mourasi settlements of those lands from the zemindars, the Kundu Chowdhuries of Mahiari and the Khans of Mankundu, by several pottas. The evident object of the company in acquiring those plots was to set up a factory for the manufacture of paint, colour and varnish. In fact on a portion a factory has been erected. Most of the remaining area which was not immediately required for the factory was utilised by allowing portions to be enjoyed by others in consideration of payment of money. The subject-matter of the suit is seven plots of land described in schedule A and thirteen plots of land described in schedule B of the plaint. The company prays for recovery of possession and for mesne profits.

2. The case made in the plaint is that the defendant was given permission to enjoy the plots described in Schedule A from 1st April 1988, to 31st December 1938, with the distinct understanding that he would give up possession on the expiry of that period and for the said enjoyment lie was to pay to the company the total sum of Rs. 71-8-0, that is at the rate of Rs. 5 per bigha; that thereafter the company gave a similar permission to one Bijoy Krishna Naskar to enjoy the said lands for a consideration of Rs. 71-8-0 for the period 1st April 1939, to 31st March 1940, and that Bejoy actually went into possession. Thereafter proceedings under Section 145 of the Cr PC, were started between the company and the defendant. The Magistrate, however, passed an order on 22nd July 1940, in favour of the defendant in respect of those plots of land described in schedule A and directed possession to remain with the defendant until he was evicted in course of law. After the said order the defendant wrongfully took possession about August 1940, of the plots of land described in schedule B. The plaint thus proceeds on the footing that in the plots of Schedule A the defendant had rights but those rights had been extinguished on the expiry of the month of December 1938, according to contract between the parties and so the plaintiff was entitled to possession and mesne profits and that in the plots of schedule B the defendant had no right at any time.

3. The defence is that he, the defendant, is a tenant of the company in respect of the lands of both the schedules, and that, he cannot be evicted as he is at least a non-occupancy rayat. The learned Sub-ordinate Judge has found that the defendant was a tenant, not a licensee, of the plaintiff in respect of the lands of schedule A only, that tenancy is not governed by the Bengal Tenancy Act, and so the plaintiff is entitled to possession as from 1st January 1939, and that in respect of the lands of schedule B he was never a tenant and was all along a trespasser. From the decree of the learned Sub-ordinate Judge, the defendant has filed the appeal. He contends that the learned Sub-ordinate Judge ought to have held the lands of schedule B were also included in his tenancy, and that, in any event, he cannot be ejected from the lands of Schedule A as he is a non-occupancy rayat and no grounds which are necessary for the ejectment of such a rayat have either been alleged in the plaint or established in the evidence. We do not find any reason to differ from the learned Sub-ordinate Judge on the first point. The defendant has not been able to file even a single rent receipt in respect of the lands of Sch. B. His plaint (Ex. 10) filed before the Settlement Officer under Section 106 of the Bengal Tenancy Act, belies his case that he was a tenant of the plots of sch. B. We cannot therefore rely upon his oral testimony. We accordingly maintain the decree made by the learned Sub-ordinate Judge in respect of the plots described in sch. B of the plaint. The finding of the learned Sub-ordinate Judge that during the period April to December 1938, the relationship between the plaintiff and the defendant was that of landlord and tenant has not been challenged before us by the company. It is moreover a sound finding. In the plaint itself it is admitted that the defendant had to pay for his use and occupation. The payments were made by the defendant and accepted by the plaintiff as rent, and during that period the defendant had the exclusive right of occupation. The most important question is the question of the defendant's status. The counterfoil rent receipts produced by the plaintiff show that the defendant had been holding some of the plots of Sch. A, from April 1934, and all the seven plots of the sechedule from April, 1937, as tenant of the plaintiff. The evidence is also one-sided that he took those plots for the purpose of cultivating paddy and that he actually raised paddy. The lease to him was therefore for the purpose of cultivation by himself. Prima facie, he would be a rayat and so would have all the protection given to a rayat by the provisions of the Bengal Tenancy Act. As he is not a settled rayat of the village, and as his tenancy in respect of the lands has been for a period of leas than twelve years he would Prima facie be a non-occupancy rayat and would be liable to be ejected only on grounds mentioned in Section 44 of the Bengal Tenancy Act, notwithstanding his agreement with the company to give up possession after December, 1938, (S. 178, Sub-S. (1) cl. (c), Bengal Tenancy Act). As he was not admitted to occupation under a registered lease, the expiry of the term of the settlement would not be of any avail to his landlord, the company, and as the suit for possession has not been based on the other grounds mentioned in S. 44, the company's suit will have to be dismissed in respect of the plots of sch. A if he is found to be a rayat. The sole question, therefore, is whether the defendant is a rayat in respect of those plots of land. The learned Sub-ordinate Judge held that he is not a rayat, as the tenancy created in his favour for the period April to December, 1938, was governed not by the Bengal Tenancy Act but by the Transfer of Property Act. He gave three reasons for coming to that conclusion. His first reason is that as the tenancy of the company under the Kundu Chowdhuries and the Khans is governed by the Transfer of Property Act, the sub-lease given by the Company to the defendant must also be governed by that Act, notwithstanding that its purpose was agricultural. For this conclusion he has relied upon the decisions in [Abdul Karim v. Abdul Rahaman] 15 C.L.J 672,1 [Satya Niranjan v. Saraju Bala Debi] 33 C.W.N 865,2 [Rajani Sutradhar v. Baikuntha Chandra] 39 C.W.N 10413 and [Alauddin Ahammed v. Tomizuddin Ahammed] 41 C.W.N 1001.4 his second reason is that as the company's tenancy is governed by the Transfer of Property Act and as its purpose is for erecting factories, the Company is not a tenure-holder within the meaning of the Bengal Tenancy Act and as by Section 5 sub-section (3) of the Bengal Tenancy Act a tenant can be a rayat only if he holds immediately under a proprietor or immediately under a tenure-holder, the defendant cannot be a rayat. His third reason is that assuming the company's tenancy under the Kundu Choudhuries and the Khans is governed by the Bengal Tenancy Act its status would be that of a rayat, so the defendant would be an under-rayat, and therefore he would be liable to be ejected on the expiry of the term of his tenancy. The third reason is obviously wrong, for there being no written lease for the defendant's tenancy clause (c) Section 48-C of the Bengal Tenancy Act is inapplicable. The respondent's Advocate for that reason has made no attempt to support this ground given by the learned Sub-ordinate Judge. He, however, supports the other two reasons.

4. The case in 33 C.W.N 865, is an authority for the proposition that an ijara for the purpose of collecting rent from agricultural tenants does not fall within Section 117 of the Transfer of Property Act and so Part V of that Act applies to it. The case in 15 C.L.J 672, following the case in [Babu Ram Roy v. Mahendra Nath] 8 C.W.N 454,5 is one of a series of cases which have held that if a rayat whose holding consists in part of arable land and in part of homestead land sublets the homestead portion for non-agricultural purposes, the sublease would be governed by the provisions of the Bengal Tenancy Act and not by the Transfer of Property Act. In our opinion, it would not be right to hold as a matter of course that a sub-tenant to whom land has been let out for the purpose of cultivation would not be governed by the Bengal Tenancy Act if his landlord's tenancy was for non-agricultural purposes on the authority in 8 C.W.N 454, and the cases following it. No doubt Sarada Charan Mitter, J. whose decision was upheld in Letters Patent Appeal, made a general observation that

“The Transfer of Property Act is not applicable to lands used for agricultural purposes, and in considering whether the one Act (the Bengal Tenancy Act) or the other (the Transfer of Property Act) would apply we have to look to the nature of the original tenancy; and not the nature of the tenancy with reference to a particular piece of land within the landlord's holding. Otherwise the result would be anomalous.”

5. But those observations must be taken in relation to the facts of that case. However strong our dissent may be from that proposition taken as a general proposition of law, it is too late in the day to question the actual decree made ire that case, seeing that case has been followed so long, and to decide cases exactly of the type in 8 C.W.N 454, in a different way. But as the case before us is of the converse type we are free to hold otherwise. In passing, we may however say that it is not quite apparent to us what anomalies would result if by reason of the purpose of the tenancy the head lease were to be governed by the Transfer of Property Act and the sub-lease by the Bengal Tenancy Act. Section 65 of the Bengal Tenancy Act to which reference was made in 8 C.W.N 454 (55 is obviously a misprint for S. 65) has no application to an under-rayati and the intention attributed to the legislature is not apparent either from the Bengal Tenancy Act or the Transfer of Property Act. If however, as has been observed by Mukberjea and Boxburgh, JJ. in [Arun Kumar v. Durga Charan] 45 C.W.N 805,6 a tenant under a rayat be held to be an under-rayat whatever the purpose of his tenancy may be, merely by reason of the language used in sub-S. 3 of Section 4 of the Bengal Tenancy Act, the actual decision in 8 C.W.N 454, can be supported. In the case last referred to 45 C.W.N 805, the learned Judges were inclined to take a different view if the matter had been res integra but were con-strained to follow it, as the case before them was exactly of the same type, on the ground that decision had been followed for a period of more than 40 years. We do not feel the same compunction, as the case before us is not of the same type as 8 C.W.N 454, and we are not prepared to extend the scope of that precedent to cases of other types, as we are not convinced of the soundness of the observations made therein, which we have quoted above. The observation, namely that the same Act, either the Bengal Tenancy Act or the Transfer of Property Act which governs the head lease must also govern the sub-lease, cannot, in our judgment, be taken to be a sound general proposition. Section 117 of the Transfer of Property Act would directly go against the proposition stated in that general form, for if the lessee of a parcel of land let out to him for building purposes sub-lets not for a fixed period of time a portion to another for the express purpose that the latter would himself cultivate it, the sub-lessee could be ejected on a six months' notice on the view that the Bengal Tenancy Act was not applicable to the sub-lease as that Act would not be applicable to the head lease, but Section 117 of the Transfer of Property Act would exclude such a sub-lease from the operation of S. 106 which is in Chapter V, Transfer of Property Act, because the purpose of the sublease would be taken to be an agricultural purpose within the meaning of that section, as the sub-lease was taken in order that the sub-lessee may himself cultivate it and not by the agency of his tenants. The extension in 8 C.W.N 454, to a converse case would thus directly infringe Section 117 of the Transfer of Property Act.

6. A tenancy the purpose of which is to collect rent from agricultural tenants or which enables or requires the lessee thereof to sublet for the purpose of bringing the lands under cultivation would not be excluded from the operation of Chapter V, Transfer of Property Act, for the phrase “agricultural purpose” occurring in Section 117 of the Transfer of Property Act has been given a narrow and strict interpretation 33 C.W.N 865 [Mahomed Ayejuddin v. Prodyot Kumar] 48 Cal. 359.7 Such a tenancy would not necessarly be not a tenure within the purview of the Bengal Tenancy Act. Chapter V, Transfer of Property Act and many of the provisions of the Bengal Tenancy Act relating to tenures may stand side by side without any conflict and so there would be no difficulty in the application of both the provisions of Chap. V of the Transfer of Property Act and those provisions of the Bengal Tenancy Act to tenures. It is well settled that where the lessee has the power to let out land for the purpose of bringing it under cultivation, his leasehold interest would be a ‘tenure’ and would be governed by the Bengal Tenancy Act. [Debendra Nath Dass v. Bibhudendra Man Singh] 45 Cal. 805.8 There is, however, some difference of opinion as to whether a mere ijara for collection of rent from agricultural tenants would be regarded as a tenure within the meaning of the Bengal Tenancy Act. If the purpose of the ijara was to collect rent from non-agricultural tenants, as for instance, house rent or rent from shop-keepers or stall holders of a market, the ijaradar would not be regarded as a tenure-holder. There can be no doubt on that. But when the purpose is collection of rent from agricultural tenants, that is to say, where the proximate source of the money to be collected by the ijaradar is agricultural income, we do not see as at present advised why he, the ijaradar, should not be regarded as a tenure-holder as defined in the Bengal Tenancy Act. He would come within the definition of a tenure-holder and there would be nothing against the applicability of the Bengal Tenancy Act as the land was agricultural. This is in one judgment the effect which follows from the definition of a tenure-holder taken with the principles laid down in [Umrao Bibi v. Mahomed Roja Bi] 27 Cal. 205.9 The proposition that where the purpose of a tenancy is conclusively established, as for instance, from a written lease, neither the character or nature of the land of the tenancy nor its actual user would make the tenancy different from the one which its purpose makes it, is a sound one 39 C.W.N 1041 but that proposition has in our judgment no bearing when the question is what must be deemed to be an agricultural purpose in the case of a middleman's tenancy. It is also a sound proposition that where the origin of a tenancy is not known actual user of the land is an important criterion for determining its purpose. For deciding the case before us, it is not necessary to pursue the matter further. We only indicate that some of the observations made in 41 C.W.N 1001 would require qualification. All we say at present is that for the purpose of determining whether a person is a tenure-holder falling within the Bengal Tenancy Act the purpose of the sub-tenancies under him, and from the tenants of which he has to collect rent, would be the most material factor. For the purpose of determining the nature of those sub-tenancies, the nature and character of the land and its user would be important factors in some cases and perhaps in many.

7. The company acquired by purchase occupancy rights in small parcels of land from rayats. Then it took mukrari mourashi leases from the superior landlords. The several instruments granting moharari mourashi leases are all of the same type. One of them is Ex. 1(e). No doubt the object of the company in making the acquisitions was to have a factory site. But by the terms of those leases, it could use the lands in whatever way it liked. It could, if it wished, settle the lands with tenants for the purpose of bringing them under cultivation. We do not see any valid reason for holding that the company is not a tenure-holder. Moreover, the purpose of the lease given by it to a sub-tenant must Prima facie regulate the incidents of the sub-tenancy and if that purpose makes the subtenant a rayat we do not see why he should not enjoy all the safeguards given to a rayat in the matter of ejectment, and some of the important safeguards are what have been provided for in Sections 44 and 178(1)(c) of the Bengal Tenancy Act. We are further of opinion that the provisions of Section 5(3) of the Bengal Tenancy Act have been enacted for the purpose of placing a tenant, who is required to cultivate the land by himself or by hired labour, in his proper place in the hierarchy of tenants enunciated in S. 4—to distinguish a rayat from an under-rayat.

8. We accordingly hold that the appellant is a non-occupancy rayat and in spite of the contract that he was to give up his land at the end of the year 1938 he cannot be ejected on the grounds mentioned in the plaint. The company did not base its claim to recover possession on the ground of surrender or abandonment by the defendant and so the fact that Bejoy Krishna Naskar managed to get possession just after 1938 is not material. In any case the fact that proceedings bad to be taken under Section 145 of the Cr PC, would have militated against the case of surrender or abandonment. The result is that we allow the appeal in part and dismiss the plaintiff's suit in respect of the lands of Sch. A. The decree for mesne profits is reduced to Rupees Four hundred and forty. The point which we have decided is one of general importance and may have serious effect upon the company. Our entire sympathy is with the latter. It paid a good sum for making the lands hhas. It was considerate to its employees, for to them it let out portions of land which it did not require at the time for its business of paint manufacture, so that they might supplement their income. But we have to administer justice according to law. These considerations as well as the fact that success has been divided lead us to direct that each of the parties is to bear their respective costs throughout. No order is necessary on the application of 21-12-1944 as the appeal has been disposed of.

Blank, J.:— I agree.

V.R/D.H

9. Appeal partly allowed.