JUDGMENT
1. This is an appeal by Defendant No. 5 arising out of a suit for recovery of possession of certain zamindari property by ejectment of the defendant. On the 13th April 1909, a registered lease for 11 years was executed by the then proprietor Sheik Mahmudullah in favour of one Bhawani Charan. This lease was of a five-anna zamindari share in an undivided mahal. The contesting defendant is a sub-lessee from Bhawani Charan's representatives and the term of the lease has now admittedly expired. The plaintiffs, on the other hand, have acquired a one anna and odd pie share in the proprietary interest of the lessors and two anna seven pie and odd-share as lessees from the proprietors. The contesting defendant, on the other hand, is in possession of the entire five annas. The plaintiffs claim that the term of the lease having expired, the defendants were not entitled to hold on and they were liable to ejectment through the civil Court.
2. The main contention put forward on behalf of the defendants was that the civil Court had no jurisdiction to entertain the suit inasmuch as the original lessee and the sub-lessee are in the position of tenants within the meaning of the Agra Tenancy Act and cannot be ejected otherwise than in accordance with that Act. The learned Subordinate Judge has overruled this plea and has held that there is in fact no relation of landlord and tenant existing between the parties. The suit for ejectment has accordingly been decreed.
3. It is conceded before us that on the merits the defendant cannot contest the claim of the plaintiffs. Unless it be held that he cannot be ejected otherwise than in accordance with the Agra Tenancy Act and by the Revenue Court, he has no substantive defence to put forward against the plaintiffs. The learned vakil for the appellant contends before us that although the property leased cannot be called a holding within the meaning of the Act, nevertheless the position of Bhawani Charan and now that of the defendant-appellant is that of a tenant within the meaning of Section 4 of that Act and that the ejectment of such a tenant cannot be effected except in accordance with the provisions of the Tenancy Act. He relied strongly on the provisions of Sections 56 and 167 of the Agra Tenancy Act.
4. It cannot be doubted that a tenant under the Tenancy Act includes a 'thekadar' and that the definition of 'thekadar' is fairly wide and includes a farmer or other lessee of proprietary rights. The word 'holding' has a special technical meaning given to it by Section 4 and it is therefore possible to conceive of a thekadar under the Act who may not be a thekadar of a holding. But at the earns time it cannot be doubted that every leases of proprietary rights cannot be a thekadar within the meaning of the Tenancy Act. If such a wide scope were given to the definition there would be nothing to prevent a thekadar of lessee rights in house property from being one under the Act, which admittedly cannot be correct. Act 4 of 1882 is an Imperial Act and governs leases of immovable property. Prima facie all leases are governed by that Act unless exempted by it. Section 117 of that Act provides for the exemption of leases for 'agricultural purposes.' It would follow that unless it could be shown that the lease in question is a lease for agricultural purposes it would be impossible to take it out of the provisions of the Transfer of Property Act.
5. The main point to consider, therefore, is whether the lease in dispute is a lease for agricultural purposes. Now a lease cannot be a lease for agricultural purposes unless its primary object is agriculture or something allied to it. This view would keep the provisions of the Agra Tenancy Act in harmony with those of the Transfer of Property Act. The object of the Tenancy Act is to consolidate and amend the law relating to agricultural tenancies and certain other matters in these provinces. It is, therefore, obvious that the provisions of that Act are intended to be applicable to transactions for purposes agricultural or allied. This was the view expressed by a Bench of this Court, of which one of us was a member, in Ballabha Das v. Murat Narain Singh A.I.R. 1926 All. 432. We think that the test applied in that case is a proper one.
6. Every lease must depend on its particular language and terms. We have, therefore, to confine ourselves to the terms of the lease and the kabuliyat, which was a contemporaneous document, in order to determine whether this was a lease for agricultural purposes or not.
7. The lease is hot of any specific area over which the lessee can take physical possession and which he can utilize directly for agricultural purposes. This is a lease of an undivided five-anna zamindari share which would entitle the lessee to make collections to the extent of his share. The lessee is to pay Government revenue direct and is to pay the fixed amount of Rs. 200 for rent, which amount, by the way, is not called rent but profits. These profits have to be paid in accordance with the fixed Government instalments; There has been some controversy before us as to whether this expression means that payments are to be made in accordance with the instalments fixed for payment of Government revenue or for rent only. But the paragraph in which it occurs only refers to the date fixed for the payment of Government revenue and it seems more probable that the idea was to make these payments in accordance with the proportions and the dates fixed for the payment of Government revenue.
8. There is a further contract that no payment would be recognized unless it is supported by a written receipt. The lessee executed a contemporaneous hypothecation bond under which he undertook to make payments regularly and to create a charge on his immovable property. He was also liable to pay interest at the rate of Re. 1 per cent. per mensem on arrears and also to pay damages and penalties which may be found proved on account of any default on his part.
9. It is noteworthy that the liability to pay damages and penalty would be out of place in an agricultural lease and could hardly be enforced by a revenue Court. There was a further contract that the amount fixed as profits would have to be paid and no plea of any sort, such as arrears on the part of the tenants, scarcity in produce, drought, inundation and terrestrial and celestial calamities, would ever be available. The lessee was given the full power by the proprietor as regards attachment, summary suits, suits for enhancement, assessment of muafi grant and for ejectment. In case of non-payment of Government revenue or the profits to the lessor the latter had power to cancel the lease before the expiry of the period.
10. The learned vakil for the appellant relies on the provisions in the lease which gave the right to the lessee to grow at his own cost and effort any crop, in any tank or fallow land or to carry on some cultivation therein or to get it cultivated by tenants or to get it newly settled, or to keep the former sir land in his cultivation or to get it cultivated by tenants as well as all the rights to produce such as sir items. The lessee was further prohibited from building or allowing others to build any house on any cultivated and or to plant any tree or grove in any cultivated area. It is not clear whether any, and, if so, how many plots were held as sir land by the lessor; nor is it clear whether they were actually in the cultivation of the lessor or in that of sub-tenants. The provision as regards growing of crops in any tank or fallow land or, to cultivate sir land, seems to be ancillary to the main object of the lease which was to entitle the lessee to make collection of rents from the tenants who were in occupation of the agricultural land. So long as the share was an undivided share it was not easy for the lessee to obtain an exclusive possession of any specific plot of land and cultivate it himself. He might in rare cases have reclaimed some land and taken temporary possession of it, but the land would still remain joint.
11. The condition prohibiting the planting of any tree or grove on any cultivated area is not at all different from what may be found in other classes of lease. We have examined the lease carefully and particularly in the light of the kabuliyat hypothecating the immovable property executed on the same day, and we have come to the conclusion that the primary object of the lease cannot be said to have been agriculture. We do not mean to lay down any general proposition that all leases of zemindari share must of necessity be leases for non-agricultural purposes. Every lease must depend on its own term. We are, however, satisfied that having regard to the conditions laid down in this document there was no agricultural lease at all. That being so the case cannot be taken out of the provision of the Transfer of Property Act and it must be held that the lease is not governed by the Agra Tenancy Act. It is, therefore, unnecessary for us to consider the various points of law which were argued on the assumption that the lease was an agricultural lease governed by the Tenancy Act and in view of which the defendant could not be ejected. We dismiss this appeal with costs including in this Court fees on the higher scale.