1. This is a rule calling upon the opposite party to show cause why an order of the Subordinate Judge refusing to hear an appeal in view of Section 3, Bengal Non-Agricultural Tenancy Act, should not be set aside. The rule was argued on grounds Nos. 2 and 3 attached to the petition. The former raises the question whether the Act applies to appeals and the latter whether the ease comes within Section 3 at all. I will deal with the former point first. This question will only arise in the case of appeals which were pending at the time when the Act came into force or filed subsequently; that is to say, in all such cases the actual decree must have been made in the first Court before the Act came into force. It will therefore only affect a comparatively small number of cases. The point has already been considered by a Division Bench of this Court in Jahur Mia v. Abdul Gaffur : AIR1941Cal452 . Unfortunately, the learned Judges differed. Biswas J. discussed the point at length and came to the conclusion that the words 'suit' or a 'proceeding' in Section 3 do not include an appeal. Mukherjea J. said that he was not prepared to go so far as to say that the expression 'proceeding' is not sufficiently wide to include an appeal.
2. I would agree with the view expressed by Biswas J. With all due respect I cannot see how an appeal by a defendant could possibly be called a proceeding for ejectment. As Biswas J. pointed out, it is quite the opposite. In my judgment, if the section applies to appeals, it could only do so on the footing that an appeal is a continuation of and part of the suit. Various authorities bearing on the subject have been discussed by Biswas J. in his judgment and I do not desire to repeat what he has said. I do not think that the respondent could succeed on this point unless it could be said that the word 'suit' must automatically in every case include an appeal. That however is putting the case far too high. At present no attempt has been made by the petitioner to put the decree into execution. As soon as he does so, that proceeding will automatically be stayed. It was therefore not necessary to include an appeal in the section in order to give protection to a defendant. On the other hand, while the staying of an appeal by the plaintiff might help to carry out the purpose of the Act, the staying of an appeal by the defendant could not possibly have such an effect. On the contrary, the defendant would be debarred from getting rid of a hostile decree and from showing that he was perfectly entitled to remain on the land. It may be that the difference between an appeal by the plaintiff and an appeal by the defendant is the reason why appeals were not specifically brought within the scope of the section. Whatever the reason may be, I accept the reasoning of Biswas J., and respectfully agree with his conclusion.
3. In course of the argument there was some discussion on the point whether it was necessary for the defendant to apply for a stay of further proceedings. Biswas J. pointed out the absurdity of a defendant applying for the stay of his own appeal. The provisions of Section 3, however, in no way depend upon any application made by the parties and if it applies, the Court is bound to stay the appeal even though both sides are anxious that it should be heard. That may be an additional reason why appeals have been excluded from the scope of the section.
4. The other ground raises the question whether the Act applies to the ease at all. The petitioner settled a ferry with the defendant's husband. For the settlement Rupees 108-12-0 per annum was payable and the settlement-holder was entitled to land passengers at certain places on the bank. The main prayer was for a declaration that the defendant has no right to carry on the ferry. Mr. Chakravarty conceded that the plaint was clumsily drafted and that the appropriate consequential relief would be an injunction rather than a decree for ejectment. Be that as it may, there is no doubt as to the real nature of the suit and the question is whether it can be said that the defendant is a non-agricultural tenant within the meaning of Section 2. The learned Subordinate Judge concluded his decision on this point which was extremely short by saying : 'A tenancy of land inseparable from the ferry was therefore contemplated.' The plaintiff's case is that he settled the ferry with the defendant's husband. Of course a ferry is absolutely useless unless passengers are able to embark on and disembark from the boats. There must therefore be landing ghats. But these are merely ancillary to the use of the boats and the water of the river. No question of settling them with the ferry-man really arises. The plaintiff allows the public and the servants of the defendant to use the ghats for the purpose of getting on and off the boats. Now, in order to bring herself within the section, the defendant must show that she holds and is liable to pay rent to the plaintiff for non-agricultural land which she is entitled to use for the conduct thereon of any commercial or industrial enterprise. None of these conditions are present in the present case. It appears, as it must almost inevitably be the case, that the ghats shift from place to place in accordance with the season of the year and height of the water in the river. No rent is paid for any particular ghat. Even if it can be said that a ferry is a commercial or industrial enterprise, it is certainly not carried on on the landing ghats. The Act was certainly not intended to apply to a case of this kind.
5. Finally, even if the petitioner is a non-agricultural tenant and even if the appeal is a part of the suit, the suit cannot be stayed under the provisions of Section 3. The difficulty of interpreting that section was pointed out and its meaning explained by Mitter J. in Purnendu Nath v. Narendra Nath : AIR1941Cal302 . If the defendant is a non-agricultural tenant then she was in arrears with her rent at the time when the suit was brought. The rule is accordingly made absolute. The order of the lower appellate Court is set aside and he is directed to hear and dispose of the appeal in accordance with law. The opposite party will pay the petitioner's costs, hearing fee being assessed at three gold mohurs.