JUDGMENT Harish Chandra, J.
1. This is a plaintiff's appeal from an order of the Court below holding that a permanent lease executed by him on 4th August 1949 in favour of respondents 1 and 2 is an agricultural lease which does not come within the mischief of Section 13, U. P. Regulation of Agricultural Credit Act, 1940 (Act XIV [14] of 1940). The only point for consideration before us is whether the lease in question is a proprietary lease or an agricultural lease to which the Tenancy Act applies. It appears from a perusal of the lease that the appellant, who belongs to Jaunpur District, possessed a two anna share in ft certain zamindari in district Azamgarh which consisted of sir plots and grove land. According to the recital in this document, the said property was situated at some distance from the place of residence of the appellant. He found it difficult to look after it and to cultivate it Accordingly, he made a settlement with respect to that property in favour of respondents 1 and 2 and executed a permanent lease in their favour on 4th August 1942. According to the terms of the lease, the lessees were to pay an annual rent of Rs. 19-14-0 and were to remain in possession of the leased property generation after generation. They could not be ejected except on account of arrears of rent. They were given the power to plant trees and groves and to dig tanks and to make wells or to construct houses. They were at liberty to cultivate the land themselves or to sub-let it. They were also allowed to transfer the property, if they considered it necessary. One of the terms of the lease provides that the lessees were to be regarded as the owners (malik) of the trees and the kachcha and the pucca wells standing on the land.
2. We have been referred to a case of this Court in which the question whether a certain permanent lease was a proprietary lease or not was considered: Ajodhia Kalwar v. Balkaran, 1935 A. L. J. 1 : (A. I. R. (22) 1935 ALL. 95). In this case, the lessor professed to grant a perpetual lease of certain plots to the lessee with the right to hold possession generation after generation and to sell and mortgage the same and it was held that the lease was a proprietary one. In another case, however, Lachmi Narain v. Batuk Singh, 1937 A. L. J. 656 : (A. I. R. (24) 1937 ALL 561), a bench of this Court held that a certain lease which provided that the lease would be heritable and gave permission to the lessees to plant a grove or construct buildings upon the land and to make all kinds of transfers was held to be an agricultural lease. In my opinion, it cannot be said that the decisions in these two oases are contradictory. For the question whether a particular lease is a proprietary lease or an agricultural lease is always one of fact. It will be noticed that in Lachmi Narain's case : (1937 A. L. J. 656 : A. I. R. (24) 1937 ALL. 56l) the lessees were already the tenants of the land in question and a permanent lease was given to them by the landlord for certain reasons. In the present case, all the proprietary rights in the land were, according to the terms of the lease, transferred to the lessees. The fact that the lease provides that the lessees shall be owners of the trees and the kachcha and pucca wells standing on the land is very significant and gives a clue to the real intention of the lessor. It is difficult to lay down any rule of law in regard to the way in which such permanent leases are to be interpreted and it is always a question of fact whether such a lease is a proprietary one or an agricultural one. In my view, having regard to its terms the present lease must be regarded as a proprietary lease.
3. I would accordingly allow the appeal with costs and, setting aside the judgment and decree of the lower appellate Court dated 23rd January 1946, restore the judgment and decree dated 29th November 1944 of the trial Court.
Sapru J.
I agree.