1. This is a defendant's appeal. The Jwala Bank Limited through its local Manager filed a suit for recovery of Rs. 21,223 on the foot of a mortgage dated 4th January 1936, executed by the defendants. Among the other pleas that were taken in defence was the plea that the defendants were agriculturists and wore entitled to the benefit of the U.P. Agriculturists' Relief Act, XXXVII  of 1934, and the U.P. Debt Redemption Act, XIII  of 1940. The lower Court held that the defendants were not entitled to the benefit of the Agriculturists' Relief Act or the Debt Redemption Act, and decreed the plaintiff's suit for Rs. 11,782-8-4, and dismissed the rest of the plaintiff's claim. The plaintiff has submitted to the decree but the defendants have filed this appeal. It is urged on their behalf that they were agriculturists and were entitled to the benefit of the U.P. Agriculturists' Relief Act.
2. The mortgage deed in suit dated 4th January 1936, was executed in favour of Mr. Jwala Prasad. In the plaint it was alleged that since the Jwala Bank Limited was registered under the Companies Act all the assets and liabilities of the Jwala Bank which had belonged to Mr. Jwala Prasad, had been transferred to the Jwala Bank Limited. The Bank applied that Mr. Jwala Prasad should also be impleaded as a co-plaintiff as the defendants had raised certain objections to the frame of the suit. It is no longer urged by the learned Counsel for the appellants that the U.P. Debt Redemption Act applies or that his clients are entitled to the benefit of that Act. In Section 2, Sub-section (9), U.P. Debt Redemption Act, the word 'loan' is defined and according to the definition an advance by a scheduled bank is not a loan. The definition of loan also provides that the amount should be recoverable from agriculturists. The learned Counsel for the appellants has drawn our attention to Section 2, Sub-section (8), U.P. Debt Redemption Act, Which is to the effect that
'land' means land in a mahal in the United Provinces but does not include land occupied by buildings or appurtenant thereto or land within the limits of any municipality, cantonment or notified area.
The appellants claim to be agriculturists on the ground that they are co-sharers in Mauza Bagh Malti and have an interest in Mauza Bhelupur. The land by virtue of which they claim to be agriculturists is situate within the limits of the Benares Municipality. The appellants cannot, therefore, be agriculturists within the meaning of the U.P. Debt Redemption Act. Both the counsel being agreed that the U.P. Debt Redemption Act does not apply it is no longer necessary for us to consider the provisions of that Act.
3. It is urged by the learned Counsel for the appellants that the appellants are entitled to the benefit of Section 28, U.P. Agriculturists' Relief Act. Sections 28 to 31, U.P. Agriculturists' Relief Act of 1934 are applicable to advances made before 1st June 1940, if they are not loans as defined in the U.P. Debt Redemption Act. The transaction dated 4th January 1936, not being a loan as defined in the U.P. Debt Redemption Act, Sections 28 to 31, U.P. Agriculturists' Relief Act,. would be applicable to this case, provided the appellants are agriculturists as defined by the U.P. Agriculturists' Relief Act.
4. The question for decision, therefore, is whether the appellants are agriculturists as defined by the U.P. Agriculturists' Relief Act. One of the defendants came into the witness-box and he. claimed that the defendants were agriculturists because they owned Plot No. 291 in Mauza Bhelupur which was their maufi land. He claimed that the defendants were agriculturists also because the defendants owned a share in village Bagh Malti for which they pay Rs. 10-5-8 per annum as land revenue, out of which Rs. 0-5-8 was local rate. Bagh Malti is a small mauza, the whole of sixteen annas of which belongs to the three defendants. It was on the outskirts of the city of Benares and by the expansion of the city has now been surrounded on all sides by houses. The area of the village is said to be about three bighas more or less. Culturable area has gradually been reduced by the proprietors leasing out the plots for building purposes. According to Mr. Ganga Narain Chatterji, a major part of the plot has been let out and only four biswas still remain as culturable area. Ganga Narain Chatterji is the only witness on the point. The plaintiff has given no evidence. According to the witness this land was under cultivation upto the year 1346 Fasli and gradually, as plots were leased out, the area under cultivation was reduced but the four biswas that were ultimately left were being cultivated till the end of 1345, The lower Court accepted the evidence of Mr. Ganga Narain Chatterji but held that the land was under cultivation for about one year after the mortgage. In support of the evidence given by this witness various village papers have been produced. There are Khasras of different years. In 1339 Fasli the land was lying fallow. In 1340, Fasli there was juar, onions and karaila crop on the land. It was entered both in 1339 and 1340 Fasli as also in subsequent years that the land was khudkasht of the proprietors. In 1341 Fasli bhindi, brinjal, juar, wheat and potato crop was sown. There are similar entries in 1342 and 1344 Fasli but the crops sown were not always the same. Prom 1345 Fasli there is no mention made of any cultivation. It is, therefore, clear that the land in Mauza Bagh Malti was under cultivation upto the year 1345 Fasli and the defendants were paying local rate for the same.
5. Having held on this point in defendants' favour, the lower Court went on to hold that it was not enough that the defendants should pay local rate but they should be in possession of 'land' as defined in the Agra Tenancy Act. The lower Court has referred to a single Judge decision of this Court in Boda Ram v. Mukand Lal : AIR1938All212 . It is not necessary for us to consider whether that case was rightly decided though Mr. Gopal Behari on behalf of the appellants has urged that we should not follow that decision as that decision does not lay down correct law. All that was held in that case was that if the land revenue payable by a plaintiff was on account of house sites and not on account of 'land' then the mere fact that he was paying land revenue would not make him an agriculturist within the meaning of the U.P. Agriculturists' Belief Act. The finding of the fact recorded by the lower Court is that on the date of the mortgage the mortgagors were not only paying local rate but they held a portion of the plot, at any rate, for growing crops. It was, therefore, 'land' within the meaning of Section 3, Sub-section (2), Agra Tenancy Act, III  of 1926.
6. The learned Counsel for the plaintiff has urged that it is not necessary that the defendants should be agriculturists on the date of the mortgage but they should be agriculturists on the date of the suit also. He has relied on Section 8, U.P. Agriculturists' Belief Act. Section 8, however, provides that for the purposes of chap. II, Agriculturists' Relief Act no person shall be deemed to be an agriculturist unless he was agriculturist both at the time of the advance of the loan as well as at the date of the suit, i.e., a person, who is not an agriculturist on both dates, will not be entitled to the benefits under Sections 3, 4, 5, 6, 7 and 8. The appellants do not claim any benefit under, those sections. They want reduction of interest under Chap. IV, U.P. Agriculturists' Relief Act and we do not find any condition in chap. IV, that there should be reduction of interest only if on the date of the suit the defendant is an agriculturist. The defendants were, therefore, entitled to the benefits of the U.P. Agriculturists' Relief Act except such provisions as require that the defendants should be agriculturists both on the date of the loan as well as on the date of the suit.
7. As regards Bhelupur, the position is not very clear. The only witness on the point, Mr. Ganga Narain Chatterji, states that plot mo. 291, in Mauza Bhelupur is the muafi of the defendants for which they have not to pay any rent and the Maharaja of Banaras is the zamindar. Prom an old Jamabandi of the year 1291 Fasli it appears that this plot No. 291 belonged to one Babu Kali Charan and it was at that time in the possession of one Jokhe, a non-occupancy tenant, who was paying Rs. 34 as rent. We are informed that the defendants' grand-father got this property from Babu Kali Charan and the documents of transfer are on the record. After the transfer in favour of the defendants' ancestor in the Khewats that have been produced we find the name of the defendants grand-mother recorded in the column of proprietors. The defendants are not entered in the village papers as maufidars but as proprietors. According to this wit. ness this plot, except such portion of it as has been leased to others for building purposes, is still under their cultivation. In cross-examination the defendants admitted that a compound wall was built in 1938 or 1989 round this plot though he went on to state that this plot is separate from two other plots Nos. 286 and 288 for which there is a separate compound wall and on which their residential houses stand. The learned Counsel has urged that though there is no evidence that any land revenue or local rate is paid for this land the defendants are entitled to the benefits of the U.P. Agriculturists' Relief Act under Section 2, Sub-section (2) (g) as they are persons holding land free of rent, the area of which does not exceed 80 acres. Under Sub-section (9) to Section 2, 'land' and 'landlord' have the same meaning as in the Agra Tenancy Act of 1926. 'Land' in Section 3, Sub-section (2), Agra Tenancy Act, 1926, means land which is let or held for agricultural purposes. The learned Counsel has urged that though this land may not have been let for agricultural purposes it is held for agricultural purposes. 'Letting' means let' ting by the landlord to the tenant, and holding for agricultural purposes means land which the proprietor holds for agricultural purposes. It would appear that the defendants are entitled to get the benefit of this sub-section and claim that they are agriculturists as they are proprietors of this land and are cultivating the same; but it is not necessary to decide this question inasmuch as we have held that by reason of the fact that the defendants were paying local rate for the land in Bagh Malti, a portion of which was under cultivation on the date of the mortgage, the defendants were agriculturists on that date as defined by the U.P. Agriculturists' Relief Act and they were entitled to get the benefits of the Agriculturists' Relief Act. In view of this decision the decree of the lower Court will have to be set aside and a fresh decree prepared after giving the defendants the benefits that they may be entitled to under the U.P. Agriculturists' Relief Act.
8. We, therefore, allow this appeal, set aside the decree of the lower Court and send the case back to that Court for recalculation of the amount due to the plaintiff in accordance with the observations made above. Costs in this Court will abide the result of the decision of the lower Court.
9. The learned Counsel states that there was a stay order pending the appeal. The stay order is discharged.