1. This appeal is by the defendant in a suit for ejectment after service of notice to quit. The case of the plaintiff is as follows. The defendant Raj Kumari Baisnabi holds 4 bighas of land under the plaintiffs as a tenant-at-will at an annual rental of Rs. 4. The land appertains to a touzi belonging to the plaintiffs and is in the Shilliguri town. The plaintiffs served a written notice on the defendant on 11th Aswin, 1341 B.S., asking her to quit the same after removing the structures constructed by her thereon by the end of Kartick 1341 B.S. The plaintiffs' case is that in spite of this notice, she did not quit the land and consequently the present suit was instituted on 9th May 1935. The defence case is that the tenancy is a permanent one and that in any case the defendant has acquired an occupancy right in the tenancy under Act 10 of 1859, which Act is applicable to this particular tenancy. Her further case is that the notice served on her was inadequate for the purpose of determining the tenancy.
2. The Court of first instance upheld the contentions of the defendant and dismissed the suit. On appeal by the plaintiffs, the Court of appeal below found that the defendant did not acquire occupancy right in the land in suit, inasmuch as she, having purchased this land in 1914, possessed the same by cultivation upto 1918 but thereafter the major portion of the land was possessed by her not by cultivation but for residential purposes. On these findings, the learned lower appellate Court thought that Act 10 of 1859 did not apply and that the tenancy was governed by the Transfer of Property Act. In this view he accepted the notice served as adequate and decreed the plaintiffs' suit. Hence this appeal by the defendant. In support of this-appeal, it has been contended that in view of its own finding, that even now a portion of the tenancy land is still under cultivation, the Court of appeal below was wrong in holding that Act 10 of 1859 did not apply to it. It has been further contended that, in view of the finding by the Court of first instance, nowhere reversed by the Court of appeal below, that the original tenancy was for agricultural purposes, the latter Court was wrong in applying the provisions of the Transfer of Property Act to this case. It was further contended that in any case the notice served was inadequate in the facts and. circumstances of this case.
3. It appears that the tenancy in question dates at least from 1892. It was found by the Court of first instance that this tenancy was for agricultural purposes. There is evidence on record and that evidence has been accepted by both the Courts below that this land was used for agricultural purposes at least npto the year 1918. The tenant who held the land in 1892 was one Abdul Rahaman. He transferred it to one Durga Charan in 1908 and this transfer was recognised by the landlord. Durga Charan on his part transferred it to the present defendant in 1914 and this transfer was also recognised by the landlord. So there is no doubt that the tenancy is continuing at least from 1892 and according to the finding arrived at by the Court of first instance, the purpose of the tenancy was agricultural. So long as this finding stands, it is difficult to see how the provisions of the Transfer of Property Act can be applied to this tenancy. Section 117, T.P. Act, lays down that none of the provisions of the Chapter relating to lease shall apply to leases for agricultural purposes. It is not the actual use of the land but the original purpose of the tenancy which determines the question of applicability or otherwise of the Transfer of Property Act. In our opinion, the Court of appeal below has gone wrong in applying the provisions of the Transfer of Property Act without setting aside the finding arrived at by the Court of first instance, that the tenancy was for agricultural purposes. While coming to the question whether or not the defendant did acquire occupancy right in the land under Section 6 of Act 10 of 1859, the Court of appeal below held that the occupancy right acquired by the original tenant Abdul Bahaman, did not pass to the subsequent transferees, the occupancy right itself being non-transferable. He then next proceeded to examine whether the present defendant herself acquired occupancy right in the land. Coming to this question he found, that she held this land by cultivation from 1914 to 1918. Thereafter from 1918 to the date of the suit, (that is 1935), 3/4ths of the land have been converted into homestead lands, but 1/4th is still under cultivation. On these facts, he concluded that Section 6 of Act 10 of 1859 would not apply to this tenancy. It is difficult to see why the defendant would be deprived of the benefit of the section. Section 6 of the Act runs as follows:
Every raiyat who shall have cultivated or held land for a period of 12 years, shall have a right of occupancy in the land so cultivated or held by him....
4. The land in suit farmed one tenancy. The present defendant was a raiyat within the meaning of Act 10 of 1859, it having been found that she took to cultivation in those days. She did cultivate this land at least for the period from 1914 to 1918. She still holds by cultivation at least a portion of the land comprised in the tenancy. In this way, taking the lands of the tenancy as one entity, she is still holding that land by cultivation as a raiyat and in our opinion she has acquired occupancy right therein on the completion of the period of 12 years from 1914. Mr. Dass, appearing for the respondents, contended that as soon as the land ceased to be used for agricultural purposes, it went out of the operation of Act 10 of 1859 : the word 'land' in the Act means 'land used for agricultural purposes.' In support of his contention, he relied on the decision in Ranee Doorga Soonduree Dossee v. Bibee Oomdutoonissa ('72) 18 W.B. 234, affirming the decision of Glover J., reported in Ranee Doorga Soonduree Dossee v. Bibee Oomdutoonissa ('17) 17 W.R. 151 and in : AIR1938Cal866 .
5. In our opinion, these decisions shall not help the plaintiffs in the present case, inasmuch as it has been found here that at least a substantial portion of the land of the tenancy is still being used for agricultural purposes. The tenancy being one and a portion of the land falling within this tenancy still being land within the meaning of Act 10 of 1859, we do not see how the plaintiffs can split up this tenancy and say that because a portion of the. tenancy land is being used for another purpose' therefore the tenancy ceases to be governed by Act 10 of 1859. Section 6 of Act 10 of 1859 requires that the person claiming to acquire occupancy right must be a raiyat. The word 'raiyat' as used in Act 10 of 1859, refers to the actual cultivators. In this particular case according to the finding arrived at by the Courts below, the present defendant did satisfy this requirement and as we noticed above, taking the tenancy as one entity, the land also satisfies the condition of being still used for agricultural purpose. We are therefore of opinion that the provisions of Act 10 of 1859 shall apply to this case and the defendant succeeded in acquiring occupancy right in the tenancy in question. In this view it is not necessary for us to see whether the notice was otherwise adequate. It is not the case of the plaintiffs that even after the defendant acquired occupancy right, she was still liable to eviction on service of notice. In the result this appeal is allowed; the judgment and decree of the Court of appeal below are set aside and those of the Court of first instance are restored. The defendant-appellant will get her costs in this Court as also in the Court of appeal below. The cross-objection is not pressed and is dismissed without costs.
Mohamad Akram, J.
6. I agree.