Francis W. Maclean, K.C.I.E., C.J.
1. This is an appeal from the judgment of the District Judge of the 24-Parganas in a suit in which the plaintiffs claim khas possession of some two or three bighas of land situated just outside the limits of the Town of Calcutta, but within its municipal boundaries as defined by Bengal Act II of 1888.
2. The defence set up in the written statement was a varied one; that the relation of landlord and tenant did not exist between the plaintiffs and the defendant; that the land was held in mokurrari and mourasi right; that the defendant had acquired a title by adverse possession; that the plaintiffs were barred by the statute of limitation, and that, if the defendant were a tenant under the plaintiffs, she was an occupancy raiyat. Of all these varied contentions, the last only has been argued before us. The first Court held that the defendant was an occupancy raiyat and was not liable to be ejected; the Lower Appellate Court reversed this decision; hence the present appeal. It is admitted that, before suit, proper notices to quit had been duly served on the defendant.
3. The first point argued before us on behalf of the appellant is that the Bengal Tenancy Act applies to the case, the land being outside the Town of Calcutta. The respondents contend that, having regard to Bengal Act II of 1888, the land in question is within the Town of Calcutta, and so exempted from the operation of the Bengal Tenancy Act. I am unable to take the latter view. The term 'Town of Calcutta' is one well recognised, and at the time of the passing of the Bengal Tenancy Act its boundaries were well known and well defined, and that expression, as used in the Tenancy Act, can, in my opinion, only relate to the Town as it existed at the time of the passing of the Act. No doubt, the area of the Town has, for municipal purposes, been extended by the Act I have mentioned, and this land is within the extended boundary; but the area was extended for those purposes only, and not for all purposes. It could scarcely be contended, for example, that the effect of the Municipal Act of 1888 was to extend the jurisdiction of the High Court on its Original Side over the new area, as being within the 'Town of Calcutta.' The Act itself draws a distinction between the 'Town of Calcutta,' 'Calcutta,' and the 'suburbs' of the Town, and it would be a strong thing to hold that this Act, which was one to extend the 'municipal limits of Calcutta,' and to consolidate and amend the law relating to the municipal affairs of the town and suburbs of Calcutta, was an extension of the 'Town of Calcutta,' so as to exclude the newly enclosed area from the operation of the Tenancy Act. It may be noticed that the new boundaries are spoken of as those of 'Calcutta,' not of the 'Town of Calcutta.'
4. The land in dispute then is subject to the operation of the Bengal Tenancy Act.
5. Then comes the question whether the defendant is an occupancy raiyat, and that may be disposed of in a somewhat summary way. It appears that the plaintiffs are lessees of the Government, and this fact carries the present case outside the dicta of the Judicial Committee of the Privy Council in the case of Gunga Gobind Mundul v. The Collector of the 24-Pergunnahs (1867) 11 Moore's I.A., 345 (361, 362).
6. But I fail to see how, on the facts of this case, the defendant can successfully urge that she is an occupancy raiyat. It is clear, on the findings of fact, both by the Subordinate Judge and the District Judge, and which are binding on us on second appeal, that the defendant was not occupying this land, but had let it out to sub-tenants. How then can she successfully say she is an occupancy raiyat within the meaning of the Tenancy Act
7. This appears to me to dispose of the case, and it becomes unnecessary to consider whether, if she were herself occupying the land, and were growing flowers and vegetables for the market, she could be said to be 'cultivating' the land within the meaning of that Act.
8. On these grounds I think that the judgment of the Court below was right and the appeal must be dismissed with costs.