Francis W. Maclean, K.C.I.E., C.J
1. I am doubtful whether the Lower Appellate Court ought to have allowed the point now argued before us to have been raised. It was never raised in the pleadings, and never raised in the Court of First Instance. The case raised in the Court of First Instance was that the defendants never executed the ijara in question: they fought that out and they were beaten. It is not very easy to say whether this particular lease is or is not within the provisions of the Bengal Tenancy Act. It is found by the Court below that the lands lie within the municipal area of Dacca, but there is nothing to show that the land was let out as a holding for agricultural or horticultural purposes, though there appears to have been some evidence as to some of the plots being used for growing vegetables and sone sonda. I think we must take it, upon the findings, that this land was not used for agricultural or horticultural purposes, and, that being so, I see no reason to dissent from the view taken by the lower Court. The appeal must be dismissed with costs.
2. I am of the same opinion. The two questions raised before us are, first, whether this suit, which was one for arrears of rent due under an ijara lease, which is a registered document, is governed by the three years rule of limitation prescribed in the Bengal Tenancy Act, or the six years rule of limitation under Article 116 of the second schedule of the Limitation Act; and, second, whether interest is recoverable at any rate exceeding 12 per cent per annum, the rate prescribed by Section 57 of the Bengal Tenancy Act. These questions, as has been pointed out in the judgment of the learned Chief Justice, were not raised in the first Court; and it is very doubtful whether the Lower Appellate Court ought to have allowed them to be raised at all, because these questions are not pure questions of law, but are mixed questions of law and fact, their determination depending upon the questions whether the Bengal Tenancy Act applies to this case--a question which again depends for determination upon the question whether the land the subject of the lease, was used for agricultural or horticultural purposes, or for purposes other than those.
3. Upon the last-mentioned question the finding of the Lower Appellate Court is against the appellants. But the learned Vakil for the defendants (appellants) contends that the question is a pure question of law, and that, having regard to the terms of the lease, the plaintiff was a tenure-holder within the meaning of Section 5 of the Bengal Tenancy Act, quite irrespective of the question whether the land was held for agricultural or horticultural purposes, or for any other purpose; and he bases his argument upon that part of the definition of the term 'tenure-holder' in Section 5, Sub-section 1, of the Tenancy Act, which runs in these terms: Tenure-holder' means primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents.' It is argued that the lease shows that the plaintiff acquired from the proprietor or another tenure-holder a right to hold the land in question for the purpose of collecting rents from the occupants of the land, whether they are agricultural and horticultural tenants, or shop-keepers, or any other description of tenants.
4. I am of opinion that this contention is not sound. For, although the part of the definition of the term tenure-holder,' quoted above, may be comprehensive enough to lend some colour to the appellants' contention, yet we must take the provisions of the Act relating to tenure-holders as a whole, and see whether the term 'tenure-holder,' as contemplated by the Bengal Tenancy Act, would include a person such as the plaintiff' has been found to be in this case. One of these provisions applicable to tenure-holders is that contained in Section 7 of the Act, and that section, especially Clause (a) of Sub-section 3 of it, to my mind, clearly indicates that a tenure-holder within the contemplation of the Act must be a person who holds land which is used for agricultural or horticultural purposes. For Sub-section 3 enacts that, 'in determining what is fair and equitable, the Court shall not leave to the tenure-holder as profit less than ten per cent, of the balance which remains after deducting from the gross rents payable to him the expenses of collecting them, and shall have regard to (a) the circumstances under which the tenure was created--for instance, whether the land comprised in the tenure, or a great portion of it, was first brought under cultivation by the agency or at the expense of the tenure-holder or his predecessors in interest, whether any fine or premium was paid on the creation of the tenure, and whether the tenure was originally created at a specially low rent for the purpose of reclamation.'
5. The view I take is in accordance with that taken in the case of Durga Sundari Dassi v. Umdatanissa (1872)9 B.L.R.,10l : 18 W.R. 234, decided under the former Bent Law, Act X of 1859. I may also add that this view receives considerable support from the provisions of Section 117 of the Transfer of Property Act. For we find in Chapter V of the Transfer of Property Act, in which Section 117 occurs, certain provisions of the law relating to leases of immoveable property, which obtain simultaneously with the provisions of the Bengal Tenancy Act, and the two enactments being different in many respects, it could not have been the intention of the Legislature that a case might, at the option of any party, be brought indifferently under the provisions of the one enactment or the other. The two enactments must have been intended to have separate application; and the line of demarcation between the two is, to a certain extent, indicated by Section 117 of the Transfer of Property Act, which enacts that none of the provisions of the Chapter in which that section occurs applies to leases of immoveable property for agricultural purposes, except in certain cases. This indicates that the distinction between cases coming under the Transfer of Property Act, and those coming under the ordinary Rent Law, is constituted by the fact of the land being non-agricultural or agricultural.
6. For these reasons, and having regard to the finding that the land in dispute is not shown to be used for agricultural or horticultural purposes, I think that the Lower Appellate Court was quite right in holding that the Bengal Tenancy Act has no application to the present case.