1. In this case the plaintiff brought a suit in ejectment and for an cars of rent and damages in respect of a piece of land, said to measure 1 bigha, 17 cotlas, which was leased to the defendants by a pottah dated the 27th November 1889. The plaintiff's case was that he served on the defendants a notice to quit and determined the lease. The first Court found that the defendants' tenancy was a tenancy under the Bengal Tenancy Act, that notice was not duly served under that Act and that the defendants could not be ejected except tinder the provisions of Section 25, Bengal Tenancy Act. The learned Subordinate Judge on appeal confirmed this order and against his order the present appeal is brought.
2. Now the main point in this appeal is whether on the construction of the pottah this tenure is one which comes under the Bengal Tenancy Act at all or is a tenancy which comes under the provisions of the Transfer of Property Act. It appears that on the land in suit at the time of the lease there were only a certain number of fruit-trees and by the lease the delendants were to enjoy the land by erecting houses on it and planting, if they so liked, other fruit-trees. The provision was that the lease should continue to the defendants' heirs; but there is a further provision that if at any time the lessor should require the land he would give notice to the lessees who would, therefore, give up the land on receipt of the value of the fruit-trees. etc. It is argued on behalf of the appellant that by the nature of the premises and terms of the lease the parties are governed by the Transfer of Property Act and not by the Bengal Tenancy Act and the lease can, therefore, be terminated on the terns let cut in the pottah. For the respondent it is argued that the lease is one governed by the Bengal Tenancy Act and that the defendants have acquired a right of occupancy and cannot be ejected. It is clear that the land is not let out for purposes of cultivation. It was let out for residential purposes with the right to take fruit from the trees on the land and to plant other fruit-trees and take their fruits. The pottah is described as a basatbati pottah, i.e., a pottah for residential purposes. Now the mere fact that there is a right to plant Lets or pluck the fruits of trees would not by itself convert a pottah granted for residential purposes into a horticultural lease carrying the same rights as an agricultural lease and so bring it under the Bengal Tenancy Act. In this connection I would refer to the case of Hedayet Ali v. Kalanand Singh 20 Ind. Cas. 332 : 17 C.L.J. 411 where it was observed that if a lease is for the purpose of gathering fruits from the trees on the land, the lease is not for horticultural purposes. Again in the unreported case of Raj Kumar Nali v. Mohesh Chandra Guha (1915) Unreported S.A. No. 2371 of 1915, decided on the 19th July where it was found that after the creation of a lease the defendants possessed the land by enjoying fruits of the trees and that none of the land was under any sort of cultivation and it was held that it could not be said that such land was really let out as subject to the provisions of the Bengal Tenancy Act. I would also refer to the case of Sashi Bala Debi v. Amola Debi 66 Ind. Oas. 61 : 25 C.W.N. 378 where it was observed that the whole area of a residential holding cannot, ordinarily, be covered with buildings and the fact that the surplus land is planted with fruit bearing trees does not alter the character of holding; and the case was governed by the Transfer of Property Act. On the other hand it is argued on behalf of the defendants that the growing of fruit trees is a horticultural purpose and so the Bengal Tenancy Act applies. Following the rulings set out above we cannot agree to the respondent's proposition of law on the facts of this case. Lastly it is urged that the lease anyhow is a permanent one owing to the covenant in it that the land will be enjoyed down to sons and grandsons in succession and that the covenant as to the right of re-entry on compensation is a purely personal covenant between the original lessor and the original lessee; and it is argued that as the original lessor is dead and the present plaintiff is only an assignee from him that covenant being a personal one is no longer enforceable. We see no force in this contention. It appears to us that the purpose of the lease was clearly one for residential purposes. Incidentally there was the right to plant trees and take fruits but there was nothing agricultural about the land at all. As to the terms, it is clear to us that it was given to be enjoyed from generation to generation so long as the landlord did not require it for his own purposes. He had then according to the terms of the document, the right to re-enter on giving certain compensation. In this view we must hold that the Bengal Tenancy Act does not apply but that the Transfer of Property Act applies. It was also urged that by their conduct the parties have' treated the lease as a permanent one. In a matter of this character, rights as between the parties must be determined on a construction of the lease and we have nothing to do with the conduct of the parties after the lease has once been entered into. In view of these findings it has next to be determined whether the lease has been duly determined by notice. The notice appears to be one served by registered post and is not a notice under the Bengal Tenancy Act. The lower Courts have not considered whether such notice is sufficient under the Transfer of Property Act or is one given in accordance with the terms of the lease. It is necessary, therefore, to remand the case to the lower Appellate Court to come to a finding as to whether in the present suit notice has been duly served or not in accordance with the terms of the lease.
3. The result is that this appeal is allowed with costs of this Court, the decree of the lower Appellate Court set aside and the case remanded to that Court to be dealt with in the manner indicated above. Other costs will abide the result.
4. I agree.