JUDGMENT
Raj Kishore Prasad, J.
1. This appeal raises an interesting point of law and a question of first impression.
2. The question is, whether a lease of a tank is an agricultural lease?; or, in other words whether it is a lease for “agricultural purposes” within the meaning of Section 117 of the Transfer of Property Act.
3. The plaintiffs-respondents brought a suit for declaration of title and confirmation of ‘ possession in respect of plots 513 and 514, under khata 128, in village Atidhartora. Their case was that their ancestors took raiyati settlement of the disputed plots from the original mokarridars by an unregistered amalnama (Ext. 4) in 1332 B.S. Thereafter, in execution of a decree for arrears of mokarri rent, the mokarri tenure was sold in Execution Case 1609 of 1936-37, and, purchased by defendants 2 to 15.
In 1353 Fasli, defendant 1, who is the appellant before this Court, took settlement of the disputed plots, under a kabuliyat (Ext. A) executed by him, in favour of defendants 2 to 15, and, on the basis of this settlement, tried to dispossess the plaintiffs.
4. The suit was contested by the defendants, who challenged the plaintiffs’ title and Possession. Their case was that the defendant 1 was the raiyat of the lands in suit by virtue of the settlement (Ext. A).
5. The learned Munsif, who heard the suit in the first instance, dismissed the plaintiffs suit on the ground that their right, acquired by the amalnama (Ext. 4), was extinguished by the sale of the mokarri tenure, and, that they had failed to prove their possession within twelve years of the suit, and, therefore, the suit was barred by limitation.
(6) On an appeal by the plaintiffs, the learned Additional District Judge, who heard the appeal, held that the amalnama (Ext. 4) was a lease for “agricultural purposes”, and, therefore, it was admissible in evidence for explaining the nature of possession, and, as such, the plaintiffs had acquired good title to the disputed land by virtue of the lease, and, their raiyati interest was not extinguished by the sale of the mokarari tenure. He further held that the suit was not barred by limitation, because it had been brought within twelve years of the sale, on these findings, he reversed the judgment and
decree of the first Court, and, decreed the plaintiffs’ suit.
7. Defendant 1, therefore, has come up in second appeal to this Court.
8. This appeal has been referred to a Division Bench by Mr. Justice B.N. Rai for consideration of three Bench decisions of this Court in Mohammad Hanif v. Khairat Ali, AIR 1941 Pat 577 : (ILR 20 Pat 346) (A); Bishambhar Narain Singh v. Ajodhya Ram, AIR 1946 pat 407 (B) and Jaipal Singh v. Bharat Narain, AIR 1952 Pat 384 (C), by a larger Bench. We have, therefore, considered the above decisions carefully, and, we find that each one of them has been correctly decided on the facts of each individual case, and, there is no conflict –apparent or latent–whatsoever between them, and, as such, we do not consider it necessary to refer them, to a larger Bench.
9. AIR 1941 Pat 577 : I L R 20 Pat 346 (A), Fazl Ali, J., who heard the appeal, on difference between Agarwala and Meredith, JJ., agreed with Agarwala, J., and, stated his conclusions as follows:
“(1) The plaintiff having specifically pleaded that there was a written unregistered lease in his favour, cannot be allowed to set up the case of an oral lease though he could have, even apart from the unregistered lease, relied on his tenancy right, if he had been let into possession. (2) On the facts stated, the transaction relied on by the plaintiff may be regarded either as an agreement to lease or a lease which is not completed by delivery of possession, (3) The plaintiff in such circumstances cannot alone maintain a suit though different consideration might have arisen if his lessor was a party to the suit.”
10. In this case, the lessee was not let into possession, and therefore, it was held that, although no document is necessary to create an agricultural lease, yet if the lease is reduced to writing, it must be registered, and, in the case of a written unregistered lease of agricultural land the lessee, to whom possession has not been delivered by the lessor, cannot maintain an action in ejectment against a person in possession.
11. In support of the above view that lease is not complete Without possession, his Lordship quoted with approval what Bayley, J., in Doe v. Walker, (1826; 108 ER 41 (D), said in explaining the doctrine of interesse termini:
“The right upon a lease to commence in praesenti is (except under the Statute of Uses) until entry an interesse termini only and so is the right upon a lease to Commence in futuro: each is a right only, not an estate. The whole estate, notwithstanding such right is in the lessor.”
12., In AIR 1946 Pat 407 (B), the tenant entered into possession of the lands after taking settlement of them under unregistered hukumnamas. In such circumstances, Meredith J., with whom B.K. Ray, J., agreed held that it is open to a landlord to create a tenancy by giving possession and accepting rent, and clearly, therefore, such a tenancy can be proved by evidence other than the production of the unregistered hukumnama by which the tenant takes settlement of an agricultural land from the landlord,
13. In A I R 1952 Pat 384 (C), as will appear from the judgment of Reuben, J., with whom Lakshmikanta Jha, C.J., agreed, that the defendants, who were the appellants there, wanted the unregistered hukumnamas to be taken as evidence of the settlements. In such circumstances, it was observed that there is nothing in Section 49 of the Indian Registration Act, to suggest the contention that an unregistered document, which is compulsorily registrable, may be used as a shield when the party is impleaded as a defendant, in that, there is no distinction drawn between the use of the document by way of a sword, and its use as a shield, but, under the proviso to Section 49, however, it is admissible for a collateral purpose, and, compulsorily registerable documents which have not been registered can be so used is clear from the section itself.
Under the law, an unregistered written lease cannot vest a legal title in the settlees. Where the settlees have entered on the property under such document, they did it as trespassers. Therefore, even if the fact of these settlements by unregistered lease is established, the settlor would still be entitled to a decree for Possession, when the evidence of the defendants that they have been recognised by the plaintiff as tenants, and that rent was received from them, is disbelieved. The unregistered deed cannot be used as a shield by them. Such a deed cannot be taken as evidence of possession.
14. On an analysis of the above three decisions, therefore, we find, first, that the facts of
each case were different, and, secondly, that each
Individual case was decided on the facts of its
own, and, the law was applied to such facts as
Were disclosed by the evidence in each particu
lar case. There is, therefore, no conflict whatso
ever between them.
15. Whatever cleavage of opinion, or conflict, or uncertainty, if any, there might have been before in the past on the question whether an unregistered Hukumnama, creating raiyati settlement, could be used as evidence of the transaction itself, it is, however, now firmly established by the recent decision of the Supreme Court in Sri Sita Maharani v. Chhedi Mahto,, (S) AIR 1955 S C 328 (E), that settlement of raiyati interest under Hukumnama, when reduced to writing, required registration, and, if it is not registered, it is inadmissible, and no evidence could be given as to its terms, and, its contents could not be used for that purpose.
16. Now, the main contention put forward by Mr. Jyotirmoy Ghosh on the part of the appellant, on the merits of the appeal itself, was that the lease evidenced by the amalnama (Ext. 4) was not a lease for any agricultural purpose, and, as such, it was governed by the Transfer of Property Act, and, not by the Bihar Tenancy Act, and, therefore, the amalnama, being unregistered, was inadmissible in evidence, and, the decision of the Court of appeal below, being based on it, was vitiated.
17. He further contended that even if it be assumed that the lease was an agricultural lease, even then it required compulsory registration under Section 17 (1) (d) of the Indian Registration Act, and as such under Section 49 of the Indian, Registration Act also, it was inadmissible as evidence of the settlement with the plaintiffs.
18. He also challenged the finding of possession of the plaintiffs on the ground that it was based on mere inference, and, as such, it was vitiated, and, not binding on this Court in second appeal.
19. Mr. R.S. Chatterji, for the respondents, however, refuted the contentions raised by Mr. Ghosh, and submitted in reply, that the lease on the finding of the Court of appeal below was a lease for “agricultural purposes”, and as such, under Section 117 of the Transfer of Property Act, the provisions of the Act did not apply to such a lease, and, therefore, it did not require any registration. He further contended that the finding of possession being a finding of fact based on evidence, however, slight it may be, was a legal finding, and, it could not be disturbed by this Court in second appeal.
20. In my judgment, the crux of the whole thing is whether the lease in question is a lease for “agricultural purposes” within the meaning of Section 117 of the Transfer of Property Act so as to exclude its operation.
21. it is necessary at this stage to set out the terms of the lease. The amalnama patra is dated the 25th Chait, 1332 B.S., corresponding to the 8th Apra, 1926 (Ext. 4). This amalnama was executed by Anand Mahto and Babuial Mahto, the original mokarridars, the predecessors-in-interest of the auction purchasers, defendants 2 to 15, in favour of Pritam Mahto, father of plaintiffs 6 to 8, and, Baburam Mahto, who are admittedly the ancestors of the plaintiffs. This amalnama is to the following effect:
“That your -/10/- (ten annas) share in Mauza Andhratariya, pergana Khasppl, Sub Registry office and Thana Chas, District Manbhum, was recorded during survey and settlement operations under separate khewats Nos. 14/1, 14/2 and 14/3 and khewat No. 14/3 was recorded as joint. We have been in possession of the abad and garabad lands under the said khewat including the lands settled etc., with tenants by realising rents from them.
Now, we having stood in great need of money announced to sell one tank specified in schedule below and you prayed for making (settlement of) the said tank (with you). Whereupon, we granted your prayer and we settled the said tank with you on fixation of Rs. 41 (Rupees forty one) as consideration thereof and on an annual jama of Re. 1-5-0 (One rupee five annas) subject to enhancement and reduction. You shall from this day remain in enjoyment and possession thereof peacefully with your sons, grandsons etc., in succession as you like, by removing the mud of the said tank on payment of the amount of rent to us as well as to our heirs on taking receipts for the payment,
Whatever new imposts or road cess or public cess according to settlement rate will in future be imposed by Government, you shall be bound to pay the same separately over and above this jama. You shall not, on any ground, get any remission out of the said amount of rent, Should you default in payment, of the rent, you shall pay interest permissible under law. There is one old (peepal) tree on the al of the tank. It shall remain in our possession. You shall have no claim or demands thereto. To this effect, we having received the entire amount of consideration in respect of the said tank in one lump, execute this amalnama patra.”
22. In the schedule attached to the amalnama patra (Ext. 4), the lease-hold is described thus:
“We settled garabad banshigaria Plot No. 513, measuring 47 decimals and Plot No. 514. measuring 6 decimals, in all two items, measuring in, all 53 decimals only……..”
23. From the terms set out above, it is clear that by this amalnama only a tank was settled. This tank was plot 513, and its embankment was plot 514. The purpose for which the tank was settled is not specifically mentioned in the document. The lease does not, therefore,
show whether it was granted for agricultural purposes, or not. It only mentions that the settlees, would be entitled to remove the mud of the said tank, and, thus remain in possession of it on. payment of the rent fixed in the lease. It further provides that if in future any road cess, or the like, is imposed by Government, the lessee-shall be liable to pay the same.
24. On the document, therefore, it is clear that the purpose of the lease cannot be ascertained. The Court of appeal below, however, come to the conclusion that the ancestors of the plaintiffs took an agricultural raiyatj lease of the disputed bandh by virtue of the amalnama mainly for the purpose of irrigating their lands, and, as such, it was a lease for ”agricultural purposes”, and, therefore, it was admissible in evidence for explaining the nature of possession.
25. In my opinion, on the document itself, it is plain that only the tank, which consisted of its embankment, and the ditch or the underground wherein the water was stored, was settled with the plaintiffs’ ancestors by the original mokarridars.
26. The question for determination, therefore, is, whether the lease of the tank in question was an agricultural lease for ‘ “agricultural purposes” within the meaning of Section 117 of the Transfer of Property Act.
37. For the application of the provisions of the Bihar Tenancy Act to the lease in question, it is essential that the lease should be in respect of agricultural land, and the lessee should be a “raiyat” in respect of the lease-hold, within the meaning of Section 5(2) of the Bihar Tenancy Act. Before the plaintiffs, therefore, can be termed “raiyats”, they must satisfy the requirements of Section 5 (2) of the Bihar Tenancy Act.
28. The expression “raiyat” has been defined in Section 5 (2) of the Tenancy Act, in the following terms;
5. X X X
(2) ‘Raiyat’ means primarily a Person who has acquired a right to hold land for the purpose of cultivating it himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors in interests of persons who have acquired such a right.
Explanation. — Where a tenant of land hasthe right to bring it under cultivation, he shall
be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he uses it for the purpose of gathering the produce of it or of grazing cattle on it.
x x x x”
29. Prom the above definition, it is clear that in order that a person should be a “raiyat”, he must have acquired a right to hold ‘land’ for the purpose of cultivating it. Under the explanation appended to Sub-section (2) of Section 5 of the Bihar Tenancy Act, where a tenant has a right to bring “land” under cultivation, he shall be deemed to have acquired “a right to hold it” for the purposes of cultivation, notwithstanding that he user, it for the purpose of gathering the produce of it or for grazing purposes.
Section 20 of the Bihar Tenancy Act, which defines “settled-raiyat” enacts that in order to be a settled raiyat of a village, every person, who. has continuously held as a raiyat “land” situated: in a village whether under a lease or otherwise, shall be deemed to have become, on the expiration of that period, a settled raiyat of the Village. It is necessary, therefore, that before a person is called a “raiyat”, he must have a right to hold “land” for the purpose of cultivating It.
30. The controversy, in the present case, therefore, resolves itself into a harrow compass as to whether a “tank” can be called “land” so as to make the holder of it a “raiyat” within the meaning of section 5 (2) of the Eihar Tenancy Act. The question, which, therefore, arises is: is tank ‘land’ or in other words, Are the settlees, namely, “the plaintiffs” ‘raiyats’ within the meaning of Section 5 (2) and Section 20 of the Bihar Tenancy Act so as to attract its provisions ?
31. The question whether a “tank” comes under the word “land” came up for consideration for the first time before the Calcutta High Court in Siboo Jelya v. Gopal Chunder Chowdhry 19 Suth WR 200 (F) in which Couch, C. J., in considering whether a right of occupancy can be acquired in a tank, held:
“No doubt, it may be said that a tank comes under the word land, as land covered with water. But it is to be land cultivated or held;”
His Lordship further observed:
“This tank appears to be used only for the preservation and rearing of fish. It does not appear to have formed part of any grant of land, or that it can in any way be considered as appurtenant to any land held by the defendant. The only thing occupied appears, to be the tank itself; and the question is, whether the provisions of Act X of 1859 which would confer a right of occupancy apply to such a tank as this.”
32. it was, therefore, held by the learned Chief Justice, with whom Glover, J., agreed, that the provisions of Act X of 1859, which conferred a right of occupancy, do not apply to a tank used only for the preservation and rearing of fish, and not forming a part of land or appurtenant to any land, even though possession may have been held for more than twelve years,
33. This point again came up for consideration before the same Bench in Nidhi Krishna Bose v. Ram Doss Sen 20 Suth WR 341 (G) in which also it was again held that right of occupancy is not acquired in a tank except under certain circumstances. In this case, unlike the previous one, and, like the present one, the lease was of the tank only, and not of any land appertaining to it. The learned Chief Justice, Couch, C. J., observed: .
“Where land is let for cultivation, and there is a tank upon it, the tank would go with the land; and if there was a right of occupancy in the land, there would be a right of occupancy in the tank AS appurtenant to the land. But here the tank is the principal subject of the lease, and only so much land passed with the tank as is necessary for it, namely, for the banks. This, in reality, is the tank, and according to the decisions there cannot be a right of occupancy, acquired in it.”
34. The above two cases were affirmed by the same High Court subsequently in Surendra Kumar Sen Chaudhury v. Chandratara Nath A.I.R. 1931 Cal 136 (H) by Graham and Mitter, JJ. In this case, it was held that where the lease was of one indivisible holding as regards the tank and land on the bank, and it was a lease for agricultural purposes, such a lease was governed by the Bengal Tenancy Act. Graham J., further observed, in course of the judgment, that if it were purely and simply a question of tank the Bengal Tenancy Act would not apply.
Mitter, J.,” who agreed with Graham, J., in
course of separate, but concurrent, Judgment, observed that the true test as to whether a lease is for agricultural purposes or not is to see whether the primary object was the lease of the tank, or lease of the land surrounding it for purposes of
agriculture with tank within It. In this respect the area of the surrounding land is an important factor to be considered, and if lease is of land for agricultural purposes, the lease of the land is governed by the incidents of the surrounding land.
There, the area of the land which was to be used as pasture ground was considerable, and therefore, it was held that the lease was of land for use of cattle, and, of the tank for rearing fish, because there was evidence to show that the cattle was used for agricultural purposes, and, in those circumstances, the lease of the land was regarded as one for agricultural purposes.
35. In construing section 5 (2) of the Bengal Tenancy Act, it was held that the term “agriculture” is of wider import than the term “cultivation”, and the mere fact that cultivation is not’ referred to does not make the lease a non-agricultural one. Similarly, if the lease speaks of the objects in view as “stacking grass for cattle”, and “grazing cattle” it ought fairly to be deemed to be a lease for agricultural purposes though no doubt it is conceivable that cattle may be kept for purposes having nothing to do with agriculture.
36. A lease of a share in a tank, including the land underneath, came up for consideration before Chatterji, J., of the same High Court, in Gour Mohan Ghose v. Chandi Charan Ghose, 11 Cal LJ 63n (I). His Lordship held that such a lease was not a lease for agricultural or horticultural purposes.
37. In the Full Bench decision of the Calcutta High Court in Ranee Doorga Soonduree Dossee v. Bibee Omdutoonissa 18 Suth W.R. 234 (J). the learned Chief Justice, Couch, C.J., with whom his learned colleagues, Bayley and Ainslie, JJ., concurred, had to construe the meaning of “land” and “holding land” occurring in Act X of 1859. The words “land” and “to hold land” occur in Section 5 (2) of Section 20 of the Bihar Tenancy Act as well. The learned Chief Justice observed:
But I think that, in determining what is the meaning of land and holding land in Act X, we must look at all the provisions of the Act. It may be 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 Deputy Collector says with truth that it is extremely difficult to apply to bazar lands occupied merely as building ground, the provisions of Section 17 which are manifestly intended to be applied to the rent of lands used for agricultural purposes.’
“And these are not the only provisions in the Act of which that may be said. Section 112 and the following Sections can only apply to land used for cultivation. 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 be preferred.
I think this is the ground of the decision in this Court that lands used for building purposes are not liable to enhancement under Act X.”
38. In another Bench decision of the Calcutta High Court, in Mahananada Chakravarti v. Mongala Keotani ILR 31 Cal 937 (K) it was held by Geidt and Mookerjee, JJ., 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. In this case, the earlier decisions of the Court in 18 Suth WR 234 (J), 19 Suth WR 200 (F), 20 Suth WR 341 (G) and others were affirmed, and, it was held that a suit
for rent of a tank, which was not a Part of an agricultural holding, was not a suit for rent of land within the meaning of Section 23 (4) of Act X of 1859.
39. In Rajkumari Baishnabi v. Samsuddin, AIR 1942 Cal 330 (L) also, another Bench, Mohamad Akram and Pal. JJ., held that the word “raiyat”, as used in Act X of 1859, refers to the
actual cultivators.
40. I respectfully assent to the principles of law laid down in the above mentioned cases of the Calcutta High Court, which, in my opinion, have laid down the correct interpretation and meaning of the words “land” and “holding land” as used in the Bengal Tenancy Act of 1859.
41. In my judgment, therefore, the meaning and construction given to the words “land” and “holding land” occurring in the Bengal Tenancy Act in the above decision should apply a fortiori in the present case, also to the words “land” and “a right to hold land” occurring in Section 5 (2) and Section 20 of the Bihar Tenancy Act. On a true construction of Section 5 (2) and Section 20 of the Bihar Tenancy Act, therefore, the expression “land” in Section 5 (2) of the Act proprio vigore means cultivated land, and it does not include a “tank”, although no doubt, it may be said that a tank comes under the word “land” as land covered with water, but it is to be land cultivated, or held.
42. The term “agriculture” has a wider import than the term cultivation”; and, consequently, purpose may be connected with agriculture, but not necessarily ancillary to cultivation. In the Instant case, only the tank was leased out, and not the land appertaining to it, and, as such, it cannot be said that the lease was for agricultural purposes, and was granted for a purpose subordinate to that of cultivation, and, that the plaintiffs were, as such, “raiyats” within the meaning of Section 5 (2) of the Bihar Tenancy Act.
43. In my opinion, therefore the lease of the tank, in the present case, was not an agricultural lease, so as to attract the provisions of the Bihar Tenancy Act; it was a non-agricultural lease, and, therefore, the provisions of the Transfer of Property Act governed it, and, as such, as it was an unregistered lease, it was inadmissible in evidence to prove the settlement of the tank, being in contravention of Section 107 of the Transfer of Property Act. In this view of the lease, in my opinion, the plaintiffs acquired no title to the disputed tank, and, as such, the plaintiffs must be non-suited.
44. The learned District Judge on appeal took the view that as the purpose of the lease was not mentioned in the lease (Ext. 4) itself, it was open to him to look to the surrounding circumstances, and to the actual use of the tank which was being made by the plaintiffs after taking the lease. He, therefore, determined the purpose of the plaintiffs’ lease by taking into consideration the following circumstances:
(1) that the plaintiffs have their lands on almost all sides of the disputed bandh, which is plot 513; the embankment of the bandh being plot 514, and situated on its eastern side;
(2) that according to the defendants, defendant 1 has taken the bandh in dispute for irrigating his lands and for catching small fishes, and, it is exactly for the same purposes that the plaintiffs allege that their ancestors took the bandh; and
(3) that the defendant No. 1, under Ext. A, took settlement of the disputed bandh and its embankments only, and not any other adjoining
lands, like the plaintiffs, and the defendant 1 claims to have taken raiyati settlement of the disputed bandh for agricultural purposes.
45. Prom the above, therefore, it will appear that the learned District Judge, in the first place took the view that the bandh was taken settlement of. He seems to have treated the bandh as separate and distinct from the tank itself, which Was the subject-matter of the lease. He is clearly wrong in his view. From Sir George Grierson’s Bihar, Peasant Life, 1926 Edition, pages 175, 202, and 203, it will appear that a tank is called’ pokhar, pokhra or talao: the embankment round a tank, and used as a boundary, is called bandh, somewhere pinr.
Just as Ahar, Ahra or Ahri means the plain itself including the embankment, and the embankment as distinguished from the plain is pinr, or alang likewise a tank or talao strictly speaking is a piece of land having embankments and used for storage of water. The embankment which keeps the water confined is called bandh or pind, the ditch from which earth is taken for repair of that embankment or bandh or pind is called Pet, or bed of the tank.
All these three together, namely, (1) the underground or the land underneath, on which water is stored, (ii) the embankment or the bandh which serves the purpose of keeping the water confined within its boundary, and (iii) the bed or pet of the tank, is known as tank. Similar construction was given to the word “Ahar” by Khwaja Mohamad Noor, J., in Maharaj Hajam, v. Jirjodhan Prasad Singh, 1937 Pat W N 158 (M).
46. Tank is smaller than, but similar to, an
Ahar, otherwise both tank or talao and “Ahar” possess the same physical features. The only, difference between the two is with regard to the use of the water. Water of Ahar is generally used for irrigational purposes, but water of tank or talao is generally used for drinking, washing and bathing purposes. The Dictionary meaning of “tank” according to Sr James Murray’s, New English Dictionary, Vol. IX page 76 of the letter “T” is an underground reservoir of water’,’ and, it means
“In India, a pool or lake, or an artificial reservoir or cistern used for purposes of irrigation and as a storage place for drinking water”.
47. The learned District Judge, therefore, is obviously wrong in thinking that as bandh is land, within the boundary of which the water is stored, therefore, the bandh, by which he means the tank itself was taken settlement of mainly for irrigation. What was. taken settlement of was the tank only, which, of course, included the bandh, the pet, and the underground, because all these three together constituted the tank.
48. The learned District Judge misdirected himself in another respect also. He relied on the defendant’s lease (Ext. A), which defendant 1 took from the auction purchasers, defendants 2 to 15, in 1946, to find out the purpose of the first lease with reference to it.
49. A subsequent deed not between the original lessor and his lessee, but between the successors-in-interest of the original lessor, and a stranger, which deed is challenged, should not be allowed to explain the first document, as these two documents cannot be considered to be contemporaneous documents, but they are two deeds evidencing separate transactions, of different times, although in respect of the same land, in my opinion, therefore, the terms and the language of the deed of 1946 could not be called in aid to construe the words and the original purpose of the lease of 1332 Fasli: 1925. It is not proper to construe one document in the view taken with regard to another document, differently worded.
50. it is a well established, canon or construction of a document that unless the language of the two documents is identical, an interpretation placed on one document is no authority for the proposition that a document differently drafted though using even partially similar language, should be similarly interpreted.
51. Still another error of law, which the learned Judge of the court of appeal below, has committed is that he has relied upon the subsequent admission of the plaintiffs on the meaning and purpose of the lease of their ancestors taken in 1925 in light of the admission of the defendants in their evidence regarding the purpose for which they took the lease after two decades in 1946, and the use to which they had put the disputed tank. These admissions could not be relied in aid of construction of the original lease of 1925.
52. When the facts, are fully set out in a document, and are admitted, a party’s opinion about the legal effect of those facts is of no consequence in construing it. Evidence of the acts and conducts of parties is inadmissible to show that the document is not what it purports to be, although subsequent conduct is admissible to prove that the deed was acted upon.
53. it is not the actual use of the land, but the original purpose of the tenancy, which determines the question of applicability or otherwise of the Transfer of Property Act: AIR 1942 Cal 330 (L).
54. it is true that extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its meaning. Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument: Abdulla Ahmed v. Animendra Kissen, AIR 1950 SC 15 (N).
55. But, in the present case, in my opinion, on the document itself, there was no ambiguity and, no doubt as to its true meaning. The lease was of the tank only, including, of course, the embankment or the bandh which together with the underground and the bed constituted the tank. The lease was drafted in an unequivocal language that the settlees were to remain in possession of the tank, on payment of rent, by removing mud of the said tank: it obviously meant that if the tank sifted up, it was open to the settlees to dig the tank.
The only purpose, therefore, for which the tank was let out, on the natural meaning of the document itself was for such natural use to which it could be put, from the nature of the lease-hold
which is generally in Bihar for drinking, washing and bathing purposes, or for rearing and catching fishes, or somethimes for growing water fruits-like singharas, or the like. No doubt, the water of a tank can be used also for irrigational purposes, but such use for irrigational purposes is unusual, and uncommon, and such an exceptional use can. not be presumed, or infered from the nature of the thing, in the absence of such Purpose being specially mentioned in the lease itself.
Therefore, the mere fact that the exact purpose to which the tank was to be put to, is not mentioned in the document, will not make it ambiguous, or its contents uncertain. In the absence of such a specific mention of the exact purpose for which the tank was being leased out, its natural, common, usual and general use to which in the nature of the thing it can be put, should b& presumed. There seems, therefore, to be no reason, why instead “of natural, general, common and usual use of the water of a tank, its uncommon, unusual, rare and exceptional use should be presumed. The fact that it was now being used for such uncommon purposes will not import such use or purpose into the lease itself in the absence of any indication of such an intention therein,
56. The governing Principles, which can be gathered from the decisions above mentioned, and, which are also my conclusions, may therefore, be stated thus:
57. A lease cannot be called a lease for agricultural purposes, unless the primary object of the lease is cultivation, or agriculture. A lease of a tank, which does not appertain to an agricultural holding, is not an agricultural lease. The fact that the surrounding lands round about, or near, the tank belong to the lessee, and, they are being irrigated from the tank, will not make the lease of the tank for the purposes of agriculture. The true test in such cases is the primary object of the lease namely, whether it is a lease of the tank, or a lease of the surrounding lands for the purposes of agriculture with the tank within it. Where therefore, the principal, and only parcel of the demise is a tank and it is not leased out together with some land appurtenant to it, or surrounding it, and, it is not a part of any agricultural holding, and, the lease does not mention that the tank was being leased out for irrigating the surrounding lands, or any lands of the lessee, the mere fact that it was open to the lessee to irrigate any particular land near about the tank if he so desired, with the water of the tank would not make the lease of only the tank an agricultural lease, because it would not be its primary object.
Such a lease of tank, therefore, is not a lease for agricultural purposes within the meaning of Section 117 of the Transfer of Property Act, and, as such, it will be governed, not by the Bihar Tenancy Act, but by the Transfer of Property Act. The Court has no power to make a contract for the parties in such cases. Whether a lease is governed by the Transfer of Property Act or the Bihar Tenancy Act depends upon the purpose for which the lease was created; and, as such, the user of the water of the tank for irrigational purposes, where the lease itself is not shewn to have been created for such purposes, does not bring the lease under the Bihar Tenancy Act.
The true test, even in the case of lease of land, is not to determine whether the land comprised in the lease, or surrounding it, is or is not agricultural land, but whether or not its letting was for agricultural purposes. .
58. For all these considerations therefore, in my Judgment, in any view of the matter, the lease of the tank, in the present case, cannot be considered to be for “agricultural purposes” within the meaning of Section 117 of the Transfer of Property Act.
59. In my opinion, therefore, it was not open to the court of appeal, below to look either to the subsequent admissions of the parties, or to the subsequent lease (Ext. A) to find out the original purpose of the lease. It is not open tp a Court to construe a lease with the aid of a subsequent lease which, in the particular case, was executed after two decades when there was no doubt or ambiguilty about the contents of the document itself.
60. In the present case, the finding of the court of appeal below that the lease was for agricultural purposes is not a finding of fact which can be binding in this Court, because it is based on the construction of the lease itself, which was the basis of the title of the plaintiffs and the basis of the suit. It is open in second appeal to the High, Court to construe a document, which is the basis of the suit and the foundation of the plaintiffs’ right in a way different from the construction put upon such a document by the courts below, because the construction of such a document of title is purely a question of law. In my opinion, therefore, the contention of Mr. Chatterji that it is a finding of fact must be overruled.
61. In the present case, although the learned District Judge says in his judgment that the amalnama (Ext. 4) was admissible for explaining the nature of possession, but I find he has based, his finding about plaintiffs’ title on the amalnama itself. He could not indirectly do that which the law prohibited him from doing. The plaintiffs, therefore, were not entitled to prove their title and their right to recover possession on the strength of the unregistered amalnama (Ext. 4). The use made of this document, which, the learned District Judge, describes as a collateral purpose, was not in reality so, because he used it as evidence of the transaction itself, which in law he could not do: Bamautar Singh v. Juthi Tatma 18 Pat LT 1012 (O). in which Wort and Manohar Lall, JJ., adopted the statement of law made by the distinguished Chief Justice of this Court, Dawson Miller, C.J. in Maharani Janki Kuer v. Brij Bhikhan Ojha, 5 Pat LT 541: (AIR 1924 pat 641) (P).
62. Mr. Chatterji attempted to challenge the finding of the court of appeal below on the question of limitation; but, in my opinion, he cannot succeed. The auction sale took place in Rent Execution No. 1609 of 1936-37, and, therefore, even it be assumed although it is most improbable, that the sale took place on the second day of January, 1936, as courts always remain closed for the New Year’s Day, even then the suit having been instituted on the 14th day of February, 1947, was within twelve years therefrom, and as such, the suit was not barred by limitation.
63. But, in view of my finding that the lease (Ext. 4). on which the plaintiffs based their title was inadmissible in evidence to prove it, and that therefore, the plaintiffs had failed to prove their title and in the absence of any finding of any of the two courts below, that they had acquired any right by adverse possession against the defendants in respect of the leasehold their suit must fail in that the foundation of their rights and the basis of their title and suit are in the eye of law nonexistent and, therefore, their rights cannot be declared in vacuo.
64. For these reasons, in my judgment, the appeal must succeed, the judgment and decree of the court of appeal below set aside, and those of the trial court restored, and the plaintiffs’ suit dismissed.
65. In the result, the appeal is, accordingly, allowed, but in the circumstances of the present case, there will be no order for costs either of this Court or of any of the two Courts below.
Ramaswami, C.J.
66. I agree.
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