1. This is an appeal by defendant 2 from a decision of the Additional District Judge of Tipperah confirming a decision of the Munsif, Third Court of Comilla, and arises out of a suit brought by the plaintiff, now respondent for a declaration of his raiyati right to a tank with its banks.
2. The plaintiff's case was that the tank in question belonged to one Ramkanai Dutt, the father (now deceased) of defendant 1, who executed a lease on 7th July 1913 for a period of ten years covering the years 1320-29 B. S. in favour of Abhoy Charan Nath. Abhoy Charan died in 1922 leaving as his heirs his widow, the present plaintiff '1, and two brothers, plaintiffs 2 and 3. On the expiry of the said lease defendant 1 granted an ejara patta to the present appellant (defendant 2) for a period of 16 years, 1322 to 1347 B. S. Thereafter the tank became the subject matter of proceedings between the parties under Section 145, Criminal P. C with the result that on 8th March 1926 the possession of defendant 2 was confirmed by the criminal Court. The plaintiff thereupon instituted this suit on 10th September 1926. They alleged inter alia that defendant 1 who used to live in Rangoon, returned home after the death of his father Ram Kanai in order to perform the Sradh ceremony, and that he then entered into an agreement with the plaintiffs whereby he undertook to execute a patta in plaintiff's favour on receipt of Rs. 100 as najar, the rental of the holding being increased to Rs. 12 per year. No patta or kabuliyat was however executed as defendant 1 had to return to Burma. Plaintiffs claimed that they had occupancy rights in the tank, and that by virtue of the fresh agreement they were entitled to renewal of the lease and to get a patta from defendant 1. They further stated that defendant 1 returned again from Burma at a later date but that in spite of repeated demands he put off execution of the patta with the result that proceedings arose under Section 145, Criminal P.C. In the course of those proceedings it transpired that defendant 1 had executed an ijara lease in favour of defendant 2 and defendant 2 as already stated, was declared to be in possession. The plaintiffs were therefore compelled to bring this suit. They contended that they were entitled to a declaration of their raiyati right and in the alternative to obtain execution of the lease.
3. The suit was contested by defendant 2 who claimed that he had been given an ijara of the land in suit by defendant 1 after the expiry of the plaintiff's lease and to have purchased the same for consideration without knowledge of the contract set up by the plaintiffs. He further pleaded that the plaintiffs' lease was not an agricultural lease, that the plaintiffs could not acquire any occupancy right in the tank and its banks, and that no fresh lease had been executed as alleged.
4. The trial Court found that the plaintiffs had acquired occupancy rights in the tank and its banks and gave a decree for khas possession on declaration of title but found that there was no evidence that the alleged contract had been entered into by defendant 1 for the execution of a fresh lease on expiry of the old one.
5. From that decision there was an appeal by the defendant to the District Court against the first finding, while the plaintiffs filed a cross-appeal in respect of the second finding. The Court of appeal below confirmed the decision of the Munsif upon both points, the appeal and cross appeal being both dismissed. Defendant 2 has now preferred this second appeal.
6. The main question involved in the appeal is whether the plaintiffs' lease of 1913 was and is a lease for agricultural purposes and as such is governed by the provisions of the Bengal Tenancy Act, or is on the other hand an ordinary lease under the Transfer of Property Act intended to be merely temporary in its operation, and conferring no permanent right of any kind. The answer depends upon the construction to be put upon the terms of the lease, which are not as explicit as they might be. The material portions may be briefly referred to. The lessee is described as a seller of cloth and grihasth, and the patta as creating the right of a tenant (proja svatva). The purpose of the lease is described as 'rearing fish in the tank and stacking* grass for cattle on the banks.' There are provisions for payment of cesses by the lessee, and for additional rent for additional area on measurement. At the end it is stated that the patta is executed for rearing fish and grazing cattle.' Whether the cattle are for purposes of cultivation or not is not however mentioned. The learned advocate for the appellant laid stress on the fact that there is within the four corners of this document no reference whatever to cultivation, and argued that it must be deemed therefore to be merely a lease of the tank with its banks and as such governed by the Transfer of Property Act. It appears to be settled that, where land has been let out for the purpose of grazing cattle on it, the lessee may be a raiyat provided the grazing is ancillary to cultivation: Hedayet Ali v. Kalavand Singh  20 I.C. 332. That however does not help very much because, as I have said, there is no actual reference in the patta to cultivation. But, as was pointed out in the case just referred . to above, it is necessary to bear in mind that the term ' agriculture ' is of wider import than the term 'cultivation.,' The mere fact that cultivation is not expressly referred to does not therefore conclude the matter. Speaking for myself I should have thought that when a lease speaks of the objects in view as stacking grass for cattle ' and ' and 'stacking grass cattle ' it ought fairly to be deemed to be a lease for agricultural purposes, though no doubt it is conceivable that cattle may be kept for purposes having nothing to do with agriculture. The use of the word ' grihasth' to describe the lessee does not give any help because, although it is sometimes used to mean cultivator, it is also frequently used in its mere literal sense of ' householder.'
7. The provisions in the lease in regard to cesses and to increased rent for additional area, seem however to support the case of the plaintiffs-respondents that the intention of the parties was to create a raiyati lease, both of these being stipulations which would hardly be expected in a lease other than a lease conveying a raiyati right. On the whole therefore, upon a true construction of the terms itself, I am of opinion that the Courts below have rightly construed it as a lease for agricultural purposes. Even however if it be held that the terms of the lease are not free from ambiguity, it is permissible to take into consideration the conduct of the parties for the purpose of determining its true nature. In that connexion certain considerations have been referred to, by the learned Additional District Judge in his judgment at p. 10 of the paper book, for example that the oral evidence supports the conclusion that the plaintiffs' family were agriculturists, that Abhoy had cultivation with plough and bullocks, that they tilled with their own hands, and that agriculture was the principal source of their income. These facts seam to clear up any doubt, which may be suggested by the terms of the document itself, as they go to show that Abhoy Charan had cultivation and that the grazing of the cattle was for agricultural purposes.
8. It was next argued on behalf of the appellant that, even if this argument be held to be good so far as the banks are concerned, it cannot apply to the tank itself which was leased solely for the purpose of catching fish. The answer to this contention seems to me to be twofold. In the first place it is to be borne in mind that a supply of water both for drinking purposes and for washing is essential for the keeping of cattle for agricultural purposes, and secondly, that the tank and its banks must be treated as one holding, and that it cannot be split up and the water portion distinguished from the dry portion. The patta itself shows that it is one holding, and it is clear that the defendant appellant himself recognized it as such. Furthermore if a portion of the demised area is used for agricultural purposes, that will determine the character of the lease as a whole. In this connexion it may be mentioned that out of a total area of 11 kanis odd the banks cover an area of three and three-fourths kanis, so that the land portion is by no means an insignificant portion of the whole.
9. The learned advocate for the appellant urged that none of the reported cases covers the present case because in this instance we are dealing with a tank for the rearing of fish. That however sounds rather like begging the question. If it were purely and simply a question of a tank, the argument would no doubt be sound, and the Bengal Tenancy Act would not apply. But, as I have shown, there are the banks of the tank to be considered and the purpose for which they were intended to be and have in fact been used. These, as it seems to me determine the character of the holding.
10. Finally, it appears to have been clearly established that the plaintiffs are not only agriculturists, but are also settled raiyats of the village, and that being so must be deemed to have acquired a right of occupancy in the land forming the banks of the tank. That portion cannot however as I have said, be separated from the tank or water portion, the entire area forming one holding.
11. For the reasons I have stated the appeal in my judgment fails and should be dismissed with costs. In view of the finding arrived at, it is not necessary to go into the question of specific performance of the contract which was relied upon by the plaintiffs in the alternative.
12. I agree with my learned brother that this appeal should be dismissed.
13. The question in controversy turns on the construction of a lease which was given for a term. The lease purports to be of a tank for the purpose of rearing fish and of its banks for the purpose of stacking grass for cattle and for pasturing cattle. The Courts below have held this lease to be one for agricultural purposes and have found that the right of occupancy can be acquired in such tank, and the question in this appeal is whether their conclusion is right.
14. As examination of the authorities on the subject under the old Rent Law Act 10 of 1859 (B. C.) shows that where the lease is merely of a tank with so much of its banks as is necessary for its use it cannot be regarded as an agricultural lease and no right of occupancy can be acquired in the tank : see Nidhi Krishna Bose v. Ram Das  20 W.R. 341. In the case of Sibu Jelya v. Gopal Chandra Chaudhury  19 W.R. 200 Sir Richard Couch, C. J., said that the provisions of Act 10 of 1859, which confer a right of occupancy do not apply to a tank used only for the preservation and rearing of fish and not forming a part of grant of land or appurtenance to any land even though possession may have been held for more than 12 years.
15. The true test as to whether the lease is for agricultural purposes or not is to see whether the primary object was the lease of the tank or lease of the land surrounding it for purposes of agriculture with tank within it. In this respect the area of the surrounding land is an important factor to be considered. Here the area of such land which is to be used as pasture ground is considerable, and reading the lease as a whole it appears to me that the lease was of land for use of cattle and of the tank for rearing fish. Evidence shows in this case that the cattle was used for agricultural purposes and such evidence is admissible where the lease is silent as to whether the cattle was to be used for agricultural purposes or not. In these circumstances the lease of the land must be regarded as one of agricultural purposes : see Broja Basi Koer v. Ram Sankar Das  29 I.C. 834. It is argued however with great insistence by Mr. Jogesh Chandra Roy, who appeared for the appellants, that the facts of the case in Broja Basi Koer v. Ram Sankar Das  29 I.C. 834 are distinguishable as there the lease was only of land and not a lease like the present of tank with the land. .But that distinction really does not matter, for the question is whether the land was leased for agricultural purposes, and if it was so the lease of the tank must be governed by the incidents of the lease of the surrounding land; for it is clear from the lease that the lease was one used indivisible and there was one lump rental fixed for both. In the course of argument it seemed to be at the first blush that the tank portion might be detached from the land portion; but on closely examining the lease I find it is not possible to so construe the lease which must be taken as one lease both for tank and banks. In the case of Nidhi Krishna Bose v. Ram Das  20 W.R. 341 cited before, Sir Richard Couch, C. J., observed that a right of occupancy in land includes the same right in respect of a tank appurtenant to the land. The learned Chief Justice said this:
Where land is let for cultivation and there is a tank upon it the tank would go with the land, and if there was no right of occupancy in the land, there would be a right of occupancy in the tank as appurtenant to land.