B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiff and it arises out of a suit for establishment of the plaintiff's title to the extent of 7i annas share of the land in suit and for recovery of possession of the same jointly with defendants 2 to 7. The facts of the case lie within a narrow compass, and are for the most part undisputed. The land in suit which is described as a garden land is situated within Mouza Dakhineswar and appertains to three touzis, viz. touzi Nos. 63, 163 and 166 of the 24. Parganas collectorate. It is admitted that the lands of these three touzis are not demarcated and that the proprietors of touzi No. 166 have a proprietary right to an undivided 7i annas share of the land in suit. This touzi No. 166 was put up to sale for non-payment of arrears of revenue and it was purchased by one Kazi Rashid Zaman on 27th March 1922 and he took possession on 9th June 1923. The legal representatives of Kazi Rashid sold the touzi to the present plaintiffs by a registered kobala on 26th January 1925. The plaintiff asserts that after her purchase she annulled encumbrances and under-tenures under the touzi by issuing proclamation in the locality and giving notices to the horders of the various interests, and as defendant 1 did not give up possession of the land in dispute, she was obliged to bring the present suit.
2. Defendant 1 resisted the plaintiff's claim for eviction substantially on two grounds. In the first place he invoked the provisions of Clause (4) of Section 37 of Act 11 of 1859, and contended that he could not be evicted as there are permanent structures, gardens and tanks on the land in suit. In the second place his argument was that his interest was also protected under the Proviso to Section 37 of the Revenue Sale Law, he being an occupancy raiyat and recorded as such in the Settlement Record. The trial Court came to the conclusion that defendant 1 was protected under Clause (4) of Section 37, if not under the Proviso to Section 37. The lower Appellate Court has held that defendant 1 is entitled to protection both under Clause (4) of Section 37 and also the Proviso to that Section. It is against this concurrent decree of dismissal that the Present second appeal has been preferred.
3. Mr. Chakraburty in support of the appeal has challenged the propriety of the decision of the lower Appellate Court on two grounds. He has contended in the first place that defendant 1, who is not an agriculturist, cannot claim protection from ejectment under the Proviso to Section 37 of the Revenue Sale Law. In the second place he has argued that although there are buildings, gardens and tanks on the land in dispute the provisions of Clause (4) of Section 37 are not applicable to the facts of the present case, inasmuch as defendant 1 did never hold the land under any lease with the proprietors of touzi No. 166. So far as the first point is concerned, the Proviso to Section 37 of Act 11 of 1859 lays down that nothing would entitle a purchaser of an entire estate to eject any raiyat having a right of occupancy at a fixed rate of rent or at a rent assessable according to fixed rules under the law in force.
4. The Privy Council in Turner Morrison & Co. Ltd. v. Monmohan Chowdhury agreed with the High Court in holding that there being no definition of a raiyat in Act 11 of 1859, it must be read in its ordinary sense of a cultivator and the appellants in that case who were a limited company were held not to come within the definition, even though the holdings were raiyati; holdings which they acquired by purchase. In the present case defendant 1 is a wealthy inhabitant of the town who carries on business and his ancestors were obviously not people who cultivated the land, or could; be said to have taken the land for purposes of cultivation. Defendant 1 in my opinion is not therefore competent to invoke the Proviso to Section 37 in his favour. The fact that fruits and flowers are grown on a portion of the land which is used as a garden house could not make the defendant a bona fide agriculturist as the learned Judge seems to have thought. The first contention of the appellant, in my opinion, succeeds.
5. The next question for determination is whether defendant 1 can claim protection under Clause (4), Section 37. It is not disputed that there are a dwelling house, garden and tanks on the plot of land in suit. Mr. Chakraburty contends that these are not enough to give defendant 1 any protection in law, as he did not hold the land as a lessee under the proprietors of the touzi. His argument is that a lease presupposes a. contract between the landlord and the tenant, under which the tenant is let into exclusive possession of the land on certain terms regarding payment of rent, &c;, and there can be no lease unless there is a definite agreement to pay a certain amount of rent. There is no lease here according to him, inasmuch as there is no evidence of any payment of rent or of a contract to pay. I do not think that this contention is sound. The word 'lease' has been used, in my opinion, in the ordinary sense of a tenancy and though a tenancy must be based upon a contract either express or implied, I do not think that mere non-payment of rent is conclusive to show that there is no tenancy. It is well known that agricultural tenancies do frequently come into existence in this part of the country without a definite stipulation as to the amount of rent payable, it being understood that the tenant would pay the amount of rent which is customary or which is fair and equitable. If a man holds land under another person with his consent either express or implied and is legally liable to pay rent to the latter for the land he holds, a tenancy, in my opinion, will be constituted, even if the amount of rent is not determined, and no, rent is actually paid.
6. In this case the lands of the three touzis were not differentiated and each one of the proprietors has an undivided fractional share in the land which is the subject, matter of this litigation. Defendant 1 is recorded as a raiyat under the three sets of proprietors in the Settlement Record and this means certainly one undivided tenancy under all the proprietors in respect of the land. There is no evidence undoubtedly that defendant 1 paid any rent to the pro. prietors of touzi No. 166, but his liability is not disputed, and has been definitely recognized in the Eecord of Eights. It is proved by the kobala Ex. A that the predecessor of defendant 1 purchased this land as early as in the year 1862 and the recitals in the kobala are that the vendor had acquired the land under two mokarari pattas, and also by auction purchase. There are buildings, garden and tanks on the land which have been in existence for more than 70 years, and they could not but have been there without the consent of the landlords. Having regard to the circumstances I am unable to hold that there was no tenancy held by defendant 1 under the proprietors of touzi No. 166. In these circumstances, I hold that defendant 1 was holding the land as a lessee under the proprietors of touzi No. 166; even there was no evidence of payment of rent and as there is no dispute that the other conditions of Clause (4) of Section 37 of the Revenue Sale law are complied with he is protected from eviction. The result is that the appeal fails and is dismissed but without costs.
Latifur Rahman, J.
7. I agree.