R.C. Mitter, J.
1. This appeal is by the plaintiff in a suit for ejectment of the defendants. The plaintiffs' case is that the defendants were tenants in respect of a tank and its banks in suit the tenancy being governed by the provisions of the Transfer of Property Act, and that the said tenancy has been duly terminated. The defendants say that they have acquired occupancy right in the subject matter of the suit. It is admitted that the defendants were in occupation under a registered agreement executed by them in favour of the then Maharaja Bahadur of Tipperah, the predecessor in title of the present Maharaja the plaintiff on 4th July 1917. Mr. Jogesh Chandra Roy who appears for the plaintiff-appellant whose suit was dismissed by both the Courts below, raises two points before me. First of all he says that the aforesaid document which allowed the defendants to remain in possession for five years, created a license and not a lease; and secondly, he contends that even if it is conceded to be a lease, it is a lease for non-agricultural purposes, and the defendants became tenants from month to month after the expiry of the term of the said lease.
2. On the first point I cannot agree with Mr. Jogesh Chandra Roy; although the document is headed an agreement' and although in the body of the said agreement no vernacular word is used which corresponds to the word rent, it is quite clear that the Maharaja who was in khas possession from before, gave the exclusive right of khas possession to the defendants. On a fair reading of the document, I do hold that this document is a lease, and the subject matter of this suit was demised to the defendants for a period of five years from 1326 to 1330 Tipperah year. On the second point I agree with the contention of the appellant, and I do hold that the main purpose of this letting was non-agricultural. The subject matter of the demise are a tank of an area of about 13 kanis and its banks, the area of which is about five kanis. The document begins by saying that the defendants applied for holding possession for the purpose of rearing fish in the tank and grazing cattle on the bank. In the demise it is said that the defendants shall keep the boundaries intact, and shall be entitled to possess the tank by preserving or rearing fish and grazing cattle on the tanks. The occupation of the tenants are described as Grihasthas, a term of an ambiguous import which may either mean cultivator or house-holder. So far as the principles applicable to such cases are concerned there cannot be any doubt. That principle has been formulated in the judgment of Sir Richard Couch, C.J., and Glover, J., in Nidhi Krishna Bose v. Ram Dass Sen (1873) 20 WR 341, and has been re-affirmed by Dwarkanath Mitter, J., in Surendra Kumar Sen v. Sm. Chandratara Nath, 1931 Cal 135. At p. 1067 of the Report Mitter, J., says:
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.
3. No doubt on considering the lease in that particular case both the Hon'ble Judges came to the conclusion that the primary object was the lease of the banks surrounding the tank and that lease was taken for the purpose of grazing agricultural cattle. On the particular facts of that case and on the particular terms of the document in that case, they came to the conclusion that the defendants acquired occupancy right in the subject matter of that suit, although the lease comprised a tank and its banks, and the purpose of letting out the tank was for rearing fish and the purpose of letting out the banks was for grazing cattle. The true test is, as has been formulated in that case, to find out what was the primary object. Proceeding on that basis, it is necessary to consider the terms of the registered agreement dated 4th July 1917, which admittedly governs the rights of the parties. In this document there is no reference to cultivation. There is no stipulation for the payment of cesses. The true purpose for which the lease was given was for rearing and preserving fish in the waters of the tank and for grazing cattle on the banks which was only subsidiary. When the other terms are examined, it is quite clear that the principal or the primary object was for rearing fish. In the document itself it is stated that the tank being used by the neighbours and the public in general the right of these persons must be reserved. On the tenants is imposed an obligation to take
particular care to see that the water of the tank may not become unfit for human use and by being covered by pana and various kinds of acquatic plants and weeds, it may not cause injury to the health of the public.
4. If the water of the tank becomes polluted on account of negligence of or any act of the tenants, and, if for that reason any order be issued or any sentence be passed by the Municipality or any other office of the Government, then the tenants are to remain wholly responsible for that:
There will be no concern of the landlord. If the tenants exceed any of the aforesaid rights or if it be necessary for the landlord to take the said tank into khas possession, within the term of this, agreement, then the tenants will have without objection to give up possession thereof before the expiry of the term, and shall neither be able to claim nor be entitled to claim a refund of the Nazar money.
5. Then there are clauses restricting the sale or mortgage by the tenants, and there a reference is made only to the tank. There is a further clause that on the expiry of the term they shall give up the said tank to the khas possession of the plaintiff. In all the covenants in the lease the tank and not the bank is mentioned. It is clear in my judgment that the principal parcel of the demise was intended to be the tank and not the bank, which is to be used subject to the restrictions indicated above, and the purpose for which the tank was to be held clearly a non-agricultural purpose, namely preservation of fish.
6. In this view of the matter I am clearly of opinion that on a construction of this document, the primary object of the letting was a non-agricultural purpose, and following the principle laid down by Sir Richard Couch in Nidhi Krishna Bose v. Ram Dass Sen (1873) 20 WR 341 and by Mitter, J., in Surendra Kumar Sen v. Sm. Chandratara Nath, 1931 Cal 135, I do hold that the lease in the present case is governed by the provisions of the Transfer of Property Act, and not by the provisions of the Bengal Tenancy Act. On the expiry of the terms of the lease, the defendants became tenants from month to month and there is no dispute that their tenancy, if precarious, was determined according to law. I accordingly set aside the judgments and decrees of the Courts below and pass a decree in favour of the plaintiff in terms of his prayer. The appeal is accordingly allowed with costs, both of this Court and of the Courts below. Prayer for leave to appeal under Section 15, Letters Patent is refused.