1. This is an appeal by the defendant in a suit for arrears of rent and for ejectment. The defendant was inducted into an agricultural holding on the 16th December 1898 by the plaintiffs who granted him a lease for five years. The holding is situated within the present Municipal limits of Calcutta, but is beyond the jurisdiction of the Town of Calcutta as determined by the Proclamation of the Governor-General in Council, dated the 10th September 1794, and issued under Section 159 of Stat. 33, Geo. III, c. 52 (Rules and Orders of the High Court, edited by J.H. Hechle, p. 555). On the 9th November 1910 the plaintiffs commenced this action, not only for the recovery of arrears of rent then due but also for ejectment of the defendant on the allegation that they had terminated his tenancy by service of a notice to quit. The suit has been decreed for both rent and ejectment. There is now no contest as to the liability of the defendant for the arrears decreed. The only question in controversy is, whether the plaintiffs are entitled to the decree for ejectment. The answer must depend on the status of the defendant.
2. The case for the plaintiffs is that the status of the defendant must be determined with reference to the provisions of the Transfer of Property Act and that he is consequently liable to be ejected after service of the prescribed notice to quit. The case for the defendant is that his tenancy, in its inception, was of an agricultural holding, that he acquired the status of a non-occupancy raiyat under the Bengal Tenancy Act, and that at the date of the commencement of this suit, he was a non-occupancy raiyat whose tenancy had not been terminated. The Courts below have held that the tenancy of the defendant was terminable and has been duly terminated by service of notice to quit under the Transfer of Property Act, as the provisions of the Bengal Tenancy Act had no application thereto. This view is challenged in this appeal as erroneous.
3. The Bengal Tenancy Act, as framed in 1885, provided in Section 1 that its provisions were not to extend to any land within the Town of Calcutta. At that time the Municipal limits of Calcutta were identical with the limits of the 'Town of Calcutta' as defined by the notification of the Governor-General in Council, dated the 10th September 17(sic)4. There was consequently no room for contention at that time that the operation of the Bengal Tenancy Act was not excluded in the case of land in the suburbs of the 'Town of Calcutta.' In 1888, the Calcutta Municipal Act was passed by the Bengal Legislative Council, and as a result thereof, lands which were originally comprised in the suburbs of the Town of Calcutta were brought within the jurisdiction of the Corporation of Calcutta for Municipal purposes. It was held by this Court in the case of Biraj Mohini Dassi v. Gopeswar Mullick 27 C. 202 that this circumstance did not in any way affect the operation of the Bengal Tenancy Act, that the 'Town of Calcutta' mentioned in Section 1 was not equivalent to 'Calcutta' as defined for the purposes of the Calcutta Municipal Act, 1838, and that, notwithstanding the extension of the limits of Calcutta for municipal purposes, the Bengal Tenancy Act was applicable o lands situated outside the limits of the 'Town of Calcutta,' though included, for municipal purposes, within the limits of 'Calcutta.' Consequently, when on the 16th December 1898 the defendant obtained his lease of the disputed land from the plaintiffs, he forthwith acquired the status of a non-occupancy raiyat of an agricultural holding governed by the provisions of the Bengal Tenancy Act. Subsequently, on the 22nd May 1907, the Bengal Legislative Council passed the Bengal Tenancy Amendment Act, 1907 (Act I of 1907), and what we are called upon to consider in this appeal is the effect, if any, of this legislation on the status of the defendant. Section 3 of the Bengal Tenancy Amendment Act, 1907, is in these terms: 'To Sub-section (3) of Section 1 of the Bengal Tenancy Act the following explanation shall be added, namely, the words 'The Town of Calcutta' mean, subject to the exclusion or inclusion of any local area by notification under Section 637 of the Calcutta Municipal Act, 1899, the area described in Schedule 1 to that Act.' The effect of this explanation is to give a new definition of the expression Town of Calcutta' for the purposes of the Bengal Tenancy Act, namely, to make it equivalent to Calcutta' as determined from time to time, for municipal purposes, under the Calcutta Municipal Act, 1899. The disputed land, as already stated, was beyond the limits of the 'Town of Calcutta' but within the limits of 'Calcutta' as defined in Schedule 1 of the Calcutta Municipal Act, 1899. Consequently, when the Bengal Tenancy Amendment Act, 1907, came into force, the land ceased to be subject to the operation of the Bengal Tenancy Act. To take one illustration, if at any time after the Bengal Tenancy Act had ceased to be applicable, the land became vacant and the landlords settled a new tenant thereon his tenancy would not be governed by the provisions of the Bengal Tenancy Act. But the question arises, whether the Bengal Tenancy Amendment Act, 1907, retrospectively affects the status of persons, who, before its commencement, had acquired rights in respect of the land; does it destroy such rights and transform a tenant, who had at that time the status of an occupancy or a non-occupancy raiyat, into a tenant from year to year or month to month? The Courts below have adopted the view that as the addition to Sub-section (3) of Section 1 of the Bengal Tenancy Act is called an Explanation,' there was no alteration of the law, in other words, that the legislation of 1907 was merely declaratory of the law and might legitimately be given retrospective operation. This reasoning is, in our opinion, clearly fallacious. It need not be disputed that Statutes, which are properly of a merely declaratory character, have a retrospective effect, because, if the Statute is in its nature declaratory, the argument that it must not be construed so as to take away pre-existing rights ceases to be applicable Attorney-General v. Theobald (1890) 24 Q.B.D. 557 : 62 L.T. 768 : 38 W.R. 527. But, as was pointed out by Halsbury, L.C., in the case of Harding v. Commissioners of Stamps for Queensland (1898) App. Cas. 789 at p. 775 : 67 L.J.P.C. 144 : 79 L.T. 42, 14 T.L.R. 488, the nature of the Statute must be determined from its provisions, and the mere fact, that the expression 'it is declared' has been used, is by no means conclusive as to the true character of the legislation. Tested in the light of this principle, what is the position in the case before us? The addition to Sub-section (3) of Section 1 of the Bengal Tenancy Act is, no doubt, called an 'explanation;' but in reality it effects a vital alteration in the law. It is worthy of note that the Bengal Tenancy Amendment Act, 1 907, is described as an Act to amend the Bengal Tenancy Act, 1885; it is not even in terms a declaratory Act. It is further plain that another addition which has been made to the same sub-section of Section 1 and refers to areas comprised within a Municipality constituted under the Bengal Municipal Act, 1884, also effects a fundamental alteration in the law. In our opinion, there is no room for serious controversy that the law was materially altered by the legislation of 1907 and that the provisions of Section 3 cannot be given a retrospective operation. This view is supported to some extent by the provisions of Section 9, Sub-section (3) [see Section 19(2) of the Bengal Tenancy Act], We hold accordingly that the status of the defendant was not affected by the legislation of 1907, which gave a new definition of the expression Town of Calcutta,' as used in Section 1 of the Bengal Tenancy Act.
4. If, then, the status of the defendant was not affected by the legislation of 1907, what are his rights? Under Section 44(c) of the Bengal Tenancy Act, he was, as a non-occupancy raiyat, liable to ejectment on the ground that the term of the lease had expired. It is plain that in Clause (c) the expression 'the lease' refers to the registered lease under which the non-occupancy raiyat had been admitted to occupation of the land. The defendant was admitted to occupation of the land under a registered lease on the 16th December 1898. The term of the lease expired on the 16th December 1903, when the Bengal Tenancy Act was still in force in the locality. He could consequently have been ejected under the provisions of the Clause (c) of Section 44, which was then controlled by Section 45, since repealed. Section 45 was in these terms: 'A suit for ejectment on the ground of the expiration of (he term of a lease shall not be instituted against a non-occupancy raiyat unless notice to quit has been served on the raiyat not less than six months before the expiration of the term and shall not be instituted after six months from the expiration of the term.' The landlords had thus to satisfy two conditions, if they intended to avail themselves of the provisions of Sub-section (c) of Section 44. They were bound to serve a notice upon the defendant, not later than the 16th June 1903 and if he did not vacate the land, they were bound to commence a suit for ejectment against him not later than the 16th June 1904. This they did not do. The defendant continued in occupation of the holding, and rent was thereafter admittedly received from him. The defendant was thus a non-occupancy raiyat on the 22nd May 1907, when the Bengal Tenancy Amendment Act came into force; as that legislation did not affect his status, he continued to be a non-occupancy raiyat and was such at the date of the suit. Meanwhile Section 45 has been repealed by the Bengal Tenancy Amendment Act,' 1907. It is accordingly argued that the plaintiffs are no longer fettered by the restriction previously imposed by the section and are now entitled to proceed to eject the defendant under Clause (3) of Section 44. There is, however, an insuperable obstacle in their way. The Bengal Tenancy Amendment Act, 1907, no doubt, repealed Section 45, but it introduced, at the same time, a new Clause (1)(a) in Schedule III to the effect that a suit to eject a non-occupancy raiyat on the ground of the expiration of the term of his lease must be instituted within six months from the expiration of the term; consequently, if the defendant be still deemed to hold under the lease of the 16th December 1898, the term of the lease expired on the 16th December 1903, and at the date of the commencement of this suit, a period much longer than six months had expired. On the other hand, if it be contended that the defendant no longer holds under the lease of the 16th December 1898, he cannot be ejected on the ground that the term of his lease has expired. It has finally been argued that after the expiry of the lease of the 16th December 1898, the defendant became a tenant from year to year, and that consequently at the end of any year, he may be deemed a non-occupancy raiyat the term of whose lease has expired. This is entirely fallacious. Under the Bengal Tenancy Act, there is no raiyat who holds from year to year, and if the tenant is a non-occupancy raiyat who does not hold under a lease for a term, he cannot be ejected under the provisions of Clause (c) of Section 44. From every possible point of view, it is plain that the tenancy of the defendant has not been legally terminated by service of notice to quit, and the claim for ejectment must fail.
5. It has been ingeniously argued, as a last resort, that the plaintiffs are entitled to eject the defendant under Clause (d) of Section 44, which provides that a non-occupancy raiyat shall be liable to ejectment on the ground that he has failed to pay an arrear of rent. The obvious answer is, that this was not the foundation of his claim in the plaint. If such a claim had been put forward, it could have been made only in accordance with the provisions of Sub-section (1) of Section 66, and to the decree made in a suit so framed, the provisions of Sub-section (2) of Section 66 would have applied. We need not, however, deal with this aspect of the case in detail because the claim was based only on Clause (c) of Section 44.
6. The result is that this appeal is allowed, and the decree of the District Judge set aside in so far as it entitles the plaintiffs to eject the defendant. The appellant will have his costs both in this Court and in the Court of the District Judge, and each party will pay his own costs in the Court of first instance.