Geidt and Mookerjee, JJ.
1. On the 22nd July 1896, the plaintiff executed in favour of the defendant, a fisher woman by caste and profession, a lease of a tank. The terms of the lease, so far as they are material for the purposes of the present appeal, were as follows:
On paying rent in advance I have taken temporary settlement from the municipality for a period extending from 1303 to 1307 sal of Parka Bandh. I hereby give settlement to you, of the said tank for the years 1303 to 1307 sal at a jama of seventy Rupees, in cash, and ten seers of chuna (small) fishes or, their value two rupees, per annum. You shall hold possession (thereof) throughout the period on paying the amount of rent by kists and year by year. If you fail to pay the kists, you shall pay interest as damages at the rate of annas 4 per rupee. If you make any plea on the ground of inundation, drought, non-rearing (of fish), &c.;, you will not get remission in the amount of rent. You shall also act according to the terms and the rules under which I have become bound under the municipality. If you do not pay the whole amount of rent up to the end of each year, I shall be able to take khas possession or to make fresh settlement in the beginning of the year following.
2. The plaintiff alleged that the defendant had withheld payment of rent due under the lease and instituted this suit for toe recovery thereof in the Court of the Deputy Collector of Manbhoom under Clause (4) of Section 23, Act X of 1859. The defendant resisted the plaintiff's claim on the ground that the Court of the Deputy Collector had no jurisdiction to entertain, the suit, and on the merits pleaded non-liability by reason of eviction by title paramount. The Deputy Collector held that Act X of 1859 was not applicable to the case and that it was triable only by a Civil Court. He accordingly dismissed the suit. Upon appeal to the Judicial Commissioner, he affirmed the decision of the Court of first instance. The plaintiff has appealed to this Court, and on his behalf it has been contended that the view taken by the Courts below is erroneous, inasmuch as this is a suit for arrears of rent, due either on account of a right of fishery or on account of land within the meaning of Clause (4) of Section 23, Act X of 1859.
3. In support of the first branch of his contention the learned vakil for 'the appellant has relied upon the cases of Puran Sauntra v. Shaikh Tajooddeen (1866) 5 W.R. (Act X R.) 20, Allum Chunder Shaha v. Bhurut Baboo (1866) 5 W.R. (Act X R.) 92, Koylash Chunder Dey v. Joy Narain Jalooah (1867) 7 W.R. 93. These cases are no doubt authorities for the proposition that a suit for rent of a fishery or jalkar tenure is maintainable in a Revenue Court under Act X of 1859; but before they can be made applicable to the circumstances of the present litigation, it must first be held that the lease of the tank in suit was a lease of a fishery. The learned vakil for the respondent has argued that as the term right of fishery' is not defined in Act X of 1859, it must be assumed to have been used in its ordinary legal sense of a right of fishing in certain waters, that such a right is clearly an incorporeal hereditament, and that the lease in this case transferred to the lessee a right to the tank itself and not merely an incorporeal right. We are of opinion that this contention is well founded and is supported by the decision of Duke of Somerset v. Fogwell (1826) 5 B. & C. 875 : 29 R.R. 449. Again, as pointed out in the cases of Suroop Chunder Mozoomdar v. Jardine, Skinner & Co. (1863) 1 Marsh. 334, Bissen Lal Dass V. Ranee Khoyrunisssa Begum (1864) 1 W.R. 79, Munohur Chowdhary v. Nursingh Chowdhry (1869) 11 W.R. 272, Radha Mohun Mundul v. Neel Madhub Mundul (1875) 24 W.R. 200, and David v. Grish Chunder Guha (1882) I.L.R. 9 Calc. 183, where the grant is merely of fishery, the lessee acquires no interest in the sub-soil and is not entitled to retain possession when the water dries up. Looking, however, to the terms of the lease in this case, and especially to the condition that the lessee was to continue liable for the rent even in case of drought and non-rearing of fish, it is clear that the lease was intended to be of the entire interest of the lessor in the tank and was something more than a grant of a mere right of fishery. The first branch of the argument of the learned vakil for the appellant consequently fails and must be overruled.
4. The second branch of the contention of the learned vakil for the appellant is that the tank was nothing but land covered with water and that consequently the rent claimed in this suit is rent due on account of land, within the meaning of Clause (4) of Section 23, Act X of 1859. It must be conceded that there is considerable force in this contention, and, if the matter were res integra, we might perhaps hold that a suit like the present for arrears of rent due on account of a tank is maintainable in a Revenue Court. But it has been held in this Court in the cases of Siboo Jelya v. Gopal Chunder Chowdhry (1873) 19 W.R. 200, Nidhi Krishna Bose v. Ram Doss Sen (1873) 20 W.R. 341, and Nidhee Kristo Bose v. Nistarinee Dossee (1874) 21 W.R 386, that the provisions of Act X of 1859, which confer a right of occupancy, do not apply to a tank, which does not appertain to an agricultural holding, but is used only for the preservation and rearing of fish. These decisions are founded on the view that the term land in Section 6 of Act X of 1859 means cultivated land and does not include a tank regarded as land covered with water. The learned vakil for the appellant has sought to distinguish these cases on the ground that the question, which was directly raised in those cases, was whether or not a right of occupancy could be acquired in a tank not forming part of any grant of land, and that accordingly, although they interpret the term land in Section 6 of Act X of 1859, they are not binding authorities upon the question of construction of the term land in Clause (4), Section 23, of the Act. As was, pointed out, however, by Sir Richard Couch in the case of Rance Doorqa Soonduree Dossee v. Bibee Oomdutoonisa (1872) 18 W.R. 235, 238, 'In determining what is the meaning, of 'land' and 'holding land' in Act X, we must look to all the provisions of the Act. It may he assumed that it was not intended that one part of it should apply to one kind of land, and another part to another, and that land in Section 23 should have a different meaning from what it has in other sections. The intention of the legislature is to be deduced from the whole Act, and a construction, which makes the whole of it consistent, is to he preferred.' We are therefore unable to uphold the argument that a suit for rent of a tank like the present, which is not part of an agricultural holding, is a suit for rent of land within the meaning of Clause (4) Section 23, Act X of 1850. The second branch of the contention of the learned vakil for the appellant consequently fails and must also be overruled. As the correctness of the decision of the Court below is not questioned on any other ground, the appeal fails and must be dismissed with costs.