1. (S.A. No. 729 of 1931).-This is an appeal in a suit for ejectment after service of notice to quit. The father of defendant 1 held the land in suit under a registered lease for nine years, and, on the expiry of the term of the lease, was holding over till his death. The defendant, after the demise of his father, has been in possession as a lessee, on payment of rent. The ground on which defendant 1 was sought to be ejected was that he had, in contravention of the term of the lease, cut down trees standing on the land. The claim for eviction as made by the plaintiff was resisted by defendant 1 whose defence, so far as we are concerned with the same in this appeal, was that his father had acquired the right of occupancy in the land in suit, and that the claim for eviction was not maintainable. The Courts below have decided all the questions arising for consideration in the case, as indicated by the various issues raised in the trial Court against defendant 1 and the defendant has appealed to this Court.
2. The main questions on which the decision of this appeal turns are, whether the Bengal Tenancy Act governs the tenancy created by the kabuliat executed by the father of defendant 1 in respect of the land in suit; was the purpose of the lease agricultural, as has been contended for by the defendant? Had defendant 1 acquired the right to cultivate the land by virtue of the lease executed by him? The decisions of these points depend upon the construction of the kabuliat executed by the father of defendant 1 in favour of Sm. Basanta Kumari Debi, in the year 1319, B.S., Ex. 2 in the case. The document has been placed before us; and almost every word contained in the same has been commented upon by the learned advocates appearing for the parties in this appeal. On a careful consideration of the terms of the kabuliat, it appears to us to be clear that the land in suit was leased out to the defendant's father, in order to enable him to live on a part of the same, which was garden land, with trees standing thereon, a list of trees standing on the land leased out, was specifically given in a schedule appended to the kabuliat. The lessee was required to take care not to injure the trees in plucking the fruits therefrom. There was a definite stipulation to the effect that if the tenant in any way injured the orchard, the tenant was liable to eviction, even within the period mentioned in the lease. There was a provision for raising crops, contained in the kabuliat-whatever that might mean-but the purpose of the lease was appropriation of fruits of the trees standing on the land, which was garden land. The clause relating to eviction on the trees being injured, and the special provision against cutting down trees, completely negatives the idea of the land leased out being agricultural, and the term of the lease made the use of the land for agricultural purposes impossible.
3. The Court of appeal below has held on a construction of the kabuliat, that the father of the defendant acquired the tenancy for residential purposes coupled with the right to gather the fruits and fish reared in the tank, standing on the land; and we are in agreement with that Court in coming to the conclusion, that the tenancy created by the kabuliat executed by the father of defendant 1 was not a tenancy for agricultural or horticultural purposes.
4. In the above view of the case, we are clearly of opinion that the contention of defendant 1, that the kabuliat gave the lessee the right to cultivate the land and grow crops on the same, cannot be allowed to prevail. In our judgment, in the case before us, where the kabuliat shows that the lease was in respect of garden land, on a part of which the tenant was allowed to have his dwelling place, and where the lease contained no indication that the lessee was to be treated as a raiyat under the Bengal Tenancy Act, or that the purpose of the lease was agricultural or horticultural, the lease cannot be held to be governed by the Bengal Tenancy Act. If the lease was not governed by the Bengal Tenancy Act, as we hold it was not, Section 182 of the said Act, on which reliance was placed on behalf of defendant 1, could not have any application whatsoever to a portion of the garden land on which the lessee dwelt. The conclusion therefore follows that defendant 1, appellant in this Court, had not, and could not have acquired a right of occupancy in the land in suit regard being had to the tenancy created in respect of the same, and regard being also had to the position that Section 182, Ben. Ten. Act, could not be held to have any application in the case before us. Defendant 1 was not therefore in a position to resist the claim for ejectment as made by the plaintiff in the suit out of which this appeal has arisen.
5. A question of subsidiary nature raised in support of the appeal, has to be considered next. It was argued in support of this appeal, that on the facts and in the circumstances of the case, the plaintiff was not entitled to maintain the suit without payment of ad valorem court-fees. According to the defendant, it was necessary for the plaintiff to institute a regular suit to establish his title on payment of court-fees. It was pointed out in this connexion, that defendant 1 was a minor, and that his holding over after the expiry of the term of the lease, did not make him a tenant who could be ejected after service of notice to quit; or in other words, the suit as instituted against the defendant was not a suit for ejectment as contemplated by Section 7(11)(cc), Court-fees Act. It is only necessary to mention in this connexion that defendant 1 claiming to be on the land on payment of rent after the demise of his father who was before his death holding over, for a number of years, after the expiration of the terms of his lease, could not be held to be in the position of a trespasser on the land, against whom the plaintiff had to proceed by way of getting his title established in a properly constituted suit. The objection raised by the defendant to the non-maintainability of the suit for ejectment as instituted by the plaintiff, appears to us to be without substance, and must be overruled. In view of the conclusions we have arrived at, on the questions arising for consideration in this appeal the appeal fails and it is dismissed with costs. The application made by the appellant for the reception of additional evidence in this Court is rejected.
6. S.A. No. 730 of 1931.-In accordance with, and as a necessary consequence of our judgment in Second Appeal No. 729 of 1931, this appeal, arising out of a suit for rent brought by the plaintiff-respondent against defendant 1, appellant in that appeal, must be dismissed. The appeal is dismissed. There is no order as to costs in this appeal.