Rowland, J.@mdashThe only point for determination in this appeal is whether a portion of the claim is barred by time. The suit was for arrears of thika rent for the years 1339-44 Fs. at the rate of Rs. 245 per year, the claim being based on a registered kabuliat by which the defendant agreed to take the property for the years 1339-41 followed by a holding over of the property by the defendant for three succeeding years. The plaintiff contended that limitation was governed by Article 116 of the schedule to the Limitation act as being a claim for damages for breach of a contract in writing and registered, whereas the defendant pleaded that under the Bengal Tenancy Act, Section 184 and Schedule 3, Article 2 the period of limitation was three years. The Munsif accepted the plaintiff''s contention and decreed the claim in full; but on appeal the Subordinate Judge has modified this decision holding that the lease was a lease of agricultural land and also a lease for agricultural purposes, that Under it the defendant was a tenure-holder, that the period of limitation was accordingly that laid down in the Bengal Tenancy act and that the claim for the years 1339-41 Fs. was barred by limitation.
2. In second appeal it is contended that the decision of the Munsif was correct and that of the Subordinate Judge erroneous. In support of this reliance is placed on the Calcutta decision in
The mere fact that the land is agricultural or that there are cultivating tenants on it would not make the lease one for an agricultural purpose.
3. Reliance was placed in that case on the decision of the Privy Council in Satya Niranjan Chakravarty v. Sarajubala Debi AIR 1930 P.C. 13, in which their Lordships affirmed in a few lines the decision of the Calcutta High Court the substance of which was that a lease, the purpose of which was not agricultural was not by Section 117, T.P. Act, taken out of the operation of Section 108 (j) of the same Act. This and no more was the substance of the finding of the High Court affirmed by the Privy Council. Nothing was said in this decision as to limitation or as to the applicability of any provisions of the Bengal Tenancy Act. To treat this decision as authority for the proposition that a lease which is not for an agricultural purpose can in no case be a lease which is subject to the provisions of the Bengal Tenancy Act is to read into the decision a good deal which is not there. Biswas, J. also relied on another Privy Council decision in Tricomdas Cooverji Bhoja v. Gopi Nath Jiu Thakur AIR 1916 P.C. 182. In this litigation there was no question at all raised as to the applicability of the special limitation prescribed by the Bengal Tenancy Act. The lease was neither a lease of agricultural land, nor was it a lease for agricultural purposes. The property in suit was coal lands and the claim was for royalty. It was the case of both sides that the limitation applicable was the limitation prescribed in the Limitation Act, and the sole question was whether Article 110 or Article 116 was applicable. The Privy Council decided that the suit was of the nature of a suit for compensation for breach of a registered contract and that the Article applicable was Article 116. Biswas J. continued by raising the question whether Article 2 of Schedule 3, Ben. Ten. Act, could at all affect Article 116, Limitation Act, even where a lease is a lease admittedly coming within the purview of the Bengal Tenancy Act. He thought that "if the lease is in writing and registered, the limitation applicable to a suit for rent on the basis of such lease will be that under Article 116, Limitation Act, and not Article 2 of Schedule 3, Ben. Ten. Act."
4. Then he expressed himself as dissatisfied with the Pull Bench decision of the Calcutta High Court in Mackenzie v. Haji Syed Mahomed 1992 19 Cal. 1 (F.B.). As to the last point, Henderson, J. while agreeing with the remainder of the judgment reserved his opinion.
5. In this Court doubt has never been expressed as to the correctness of the decision in Mackenzie v. Haji Syed Mahomed (''92) 19 Cal. 1 (F.B.) in any case in which it has been referred to. The question referred to the Full Bench was whether suits for rents founded on registered contracts in respect of lands subject to the provisions of the Tenancy act are governed by the limitation provided in that Act. The question was answered in the affirmative, the Court observing:
By Section 184, Bent Act, all suits for arrears of rent must be instituted within the time prescribed in Schedule 3 of that Act and that in a suit for rent is declared to be three years. We think that this suit is governed by that Act, and the limitation is three years.
6. That was a pronouncement regarding suits "in respect of lands subject to the provisions of the Tenancy Act" and it seems to me that it authorises the Courts to treat the question as turning on the nature of the lands and not the purpose of the tenancy. Indeed, it would be strange if the applicability of the provisions of the Bihar Tenancy act including its special period of limitation were to depend on the purpose of the particular lease being agricultural when the definition of "tenure holder" in Section 5(1) of the Act contemplates a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents.
7. The cases in which Article 116, Limitation Act, has been held to be applicable since the decision of the Full Bench in Mackenzie v. Haji Syed Mahomed 1992. 19 Cal. 1 (F.B.) do not seem to me to establish the proposition that in order to come under Schedule 3, Article 2, Ben. Ten. Act, a Tenancy must be for the purpose of agricultural operations to be done by the tenant. Raniganj Coal Association Ltd. v. Jadoonath Ghose 1992. 19 Cal. 489 was a case of a registered lease granted for building purposes and for establishing a coal depot. Umrao Bibi v. Mahomed Rojabi 1900. 27 Cal. 205 was an ijara of land within Dacca Municipality not shown to be let out as holding for agricultural or horticultural purposes. Banerjee, J. said the question "depends for determination upon the question whether the land, the subject of this lease, was used for agricultural and horticultural purposes, or for purposes other than those."
8. He thought that "a tenure-holder within the contemplation of the Act must be a person who holds land which is used for agricultural or horticultural purposes."
9. He did not say that the land must be used by the tenure-holder for those purposes or must have had those purposes in his mind at the time of acquiring the tenure. Indeed, he says later on: "the distinction between cases coming under the T.P. Act, and those coming under the ordinary Bent law, is constituted by the fact of the land being non-agricultural or agricultural."
10. These observations are entirely in accordance with the Full Bench decision. In this Court Mackanzie v. Rameshwar Singh Bahadur AIR 1916 Pat. 304 was a case of a grant of the privilege of carrying on a trade in hides in a certain area. That again was clearly not a lease of agricultural land and the fact that in that case Article 116, Limitation Act, was found applicable is no reason to question the correctness of the Full Bench decision. In Ram Chandra Naik v. Ajodhia Singh AIR 1935 Pat. 508, Umrao Bibi v. Mahomed Rojabi 1900. 27 Cal. 205 was referred and approved. It was said:
It is thus clear that the right to hold land for the purpose of collecting agricultural rents, whether or not it constitutes a Tenancy for agricultural purposes within the meaning of Section 117, T.P. Act, does constitute a tenure within the Ben. Ten. Act.
11. Reference is made there to the decision of the Privy Council in Satya Niranjan Chakravarty v. Sarajubala DebiA.I.R. 1930 P.C. 13, and it is pointed out that the question for consideration there was the applicability or otherwise of Section 108(j), T.P. Act. It is also noticed that in Broucke v. Sri Panch Rani Chhatar Kumari Devi AIR 1925 Pat. 421, as well as in the Privy Council appeal which arose therefrom, Chattra Kumari Devi v. W.W. Brouoke AIR 1927 P.C. 250, the plaintiff never contested the view which had been taken throughout in India that the lease was governed not by the T.P. Act but by the Ben. Ten. Act.
12. There is one more decision of a single Judge of this Court, Lachhandeo Singh v. Yadbindra Prosad Sahi Second Appeal No. 635 of 1940, which was a suit for rent due under a registered mukarrari lease. Agarwala, J. said that there was no doubt that Article 2 of the Schedule to the Bihar Tenancy Act applied to "suits for rent of the classes of tenants of agricultural land with which the Act deals, i.e., tenure holders, raiyats and under-raiyats. The lease in the present case conferred on the lessee aright to collect rent from the tenantry and also a right to cultivate bakasht and zirat lands, and both these rights are with respect to agricultural land."
13. The learned Judge followed Ram Chandra Naik v. Ajodhia Singh AIR 1935 Pat. 508 and referring to Umrao Bibi v. Mahomed Rojabi 1900. 27 Cal. 205, he pointed out that on the reasoning in that case had the land been agricultural the result would have been different. As regards the observations in certain cases that a patni lease is not a lease for agricultural purposes and that an ijara for realising rents from cultivating tenants is not a lease for agricultural purposes, he referred to the Patna case above cited as pointing out that the mere fact that the lease is not one for agricultural purposes within the meaning of Section 117, T.P. Act, does not mean that it is not a tenure to which the provisions of the Tenancy Act apply.
14. The only difficulty in the way of our following this line of authority is that it is suggested that a contrary view has been taken in Jangdhari Singh v. Badri Narayan Singh 1939 P.W.N. 220 This was a case in which following Mackanzie v. Rameshwar Singh Bahadur AIR 1916 Pat.304 it was held that the suit being one for a breach of contract in writing registered the period of limitation was six years and not four years; but the judgment has not discussed at all the nature of the property and the purpose of the lease and perhaps the parties allowed the case to go before the learned Judges on the footing that it was a lease of non-agricultural land for a non-agricultural purpose. The portion of the judgment dealing with the question of limitation extends over a few lines only and I think this case must be considered as an authority only on the facts that were before the learned Judges who decided it.
15. In the case before us it is common ground that the lands of which the lease gives the lessee the right to collect rents are in the main agricultural lands. It further appears on a reading of the kabuliat that lessee is authorized to cultivate bakasht lands and appropriate the produce to himself. That being so, I consider that the lease is a lease of agricultural lands and the lessee during the currency of the lease is a tenure-holder within the meaning of the Act. In case we had any difficulty in deciding this point in favour of the defendant on this ground Mr. Syed Ali Khan has pointed out that in part the lease is a lease contemplating agricultural operations by the defendant himself. This is so, but to me it seems that the predominant object of the lease is the collection of rents and that it is a tenure and the defendant a tenure-holder in the ordinary and commonly understood meaning of those words. Following the Full Bench decision of the Calcutta High Court and the decision of this Court in Ram Chandra Naik v. Ajodhia Singh AIR 1935 Pat. 508, I would hold that the period of limitation is that laid down in Article 2 of Schedule 3, Bihar Tenancy Act, that is to say, three years counted from the last day of the agricultural year within which the arrear of rent accrued. On that view this suit instituted on 6th April 1938 is beyond time in so far as the claim refers to the rent of the years 1339, 1340 and 1341 and is within time for the rent of the years 1342 to 1344. The appeal is dismissed with costs.
Chatterji, J.
16. I agree. Manohar Lal, J. before whom the appeal at first came up for hearing referred it to a Division Benoh, because he apparently thought that there is a conflict between the two decisions of this Court in Ram Chandra Naik v. Ajodhia Singh AIR 1935 Pat. 508 and Jangdhari Singh v. Badri Narayan Singh 1939 P.W.N. 220. But in this case the learned Subordinate Judge in appeal has found that the lease in question was an agricultural lease. If this finding be correct, the present case would obviously be distinguishable from the case in Jangdhari Singh v. Badri Narayan Singh 1939 P.W.N. 220. In that case Manohar Lall J; who delivered the judgment (Harries C.J., concurring) disposed of the question of limitation in these words:
Regarding the cross-objection, it is enough to say that Article 116 of the Indian Limitation Act applies in such a case. There was a breach of contract in writing registered and the period of limitation is six years, and not four years: see Mackanzie v. Rameshwar Singh Bahadur AIR 1916 Pat. 304 That being so, the claim of the plaintiff has been validly decreed for all the six years.
17. I have looked into the record of that case and I And that there was an issue raised as to whether the lease was governed by the Bihar Tenancy Act. On that issue the finding of the trial Judge was that the lease not being an agricultural lease cannot be governed by the provisions of the Bihar Tenancy Act. This finding does not appear to have been disputed before the learned Judges of this Court, in other words, their Lordships proceeded on the footing that the lease in that case was not an agricultural lease. On the other hand, in Ram Chandra Naik v. Ajodhia Singh AIR 1935 Pat. 508 Courtney-Terrell C.J. and Dhavle, J. had to deal with a case where the lease under consideration covered an entire mouza and the lessees were charged with the care of the boundary limits of the mouza, and the patta required them "by their good treatment and by making settlement" to cultivate the parti and dih lands and further gave them the right to plant trees or lay out gardens or sink wells, etc. Dhavle J. with whom Courtney-Terrell C.J. agreed held that the provisions were sufficient to bring the lease within the Bengal Tenancy Act and, therefore, to exclude them from Chap. 5, T.P. Act. Though the exact point for decision in that case was not that of limitation but whether the provisions of Section 155, Ben. Ten. Act or the provisions of Section 111(g), T.P. Act, would apply, the principle of that decision may well be applied to the present case in deciding whether the lease before us falls within the Bihar Tenancy Act.
18. It is, however, contended by Mr. Naimul Haq on behalf of the appellants that the finding of the learned Subordinate Judge that the lease was for agricultural purposes is wrong; but, as pointed out by the learned Judge, "the kabuliat (Ex. 1) was executed in respect of milkiat share in two villages, bakasht lands and some raiyati lands. The relevant portion of the lease has also been read out to us and it contains a clear provision that the lessee would be entitled to cultivate the lands. That being so, it is very difficult to hold that the finding of the Subordinate Judge is wrong.
19. If the lease was for agricultural purposes it is not disputed that the suit would come under the Bihar Tenancy Act. And if it comes under that Act, it necessarily follows that the special provisions in that act regarding limitation would apply. Section 184 (1) of the Act provides:
The suits, appeals and applications specified in Sell. 3 annexed to this Act shall be instituted and made within the time prescribed in that schedule for them respectively and every such suit or appeal instituted, and application made, after the period of limitation so prescribed shall be dismissed, although limitation has not been pleaded.
Section 185(2) of the Act says:
Subject to the provisions of this chapter, the provisions of the Limitation Act, 1877, shall apply to all suits, appeals and applications mentioned in the last foregoing section.
Section 29 (2), Limitation Act, runs as follows:
Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by Schedule 1, the provisions of Section 3 shall apply, as if such period were prescribed therefore in that schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law --
(a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.
20. The combined effect of these sections is that a suit which comes under the provisions of the Bihar Tenancy Act will be governed by the rules of limitation prescribed in Schedule 3 of that Act. In this case, as I have already shown, the lease was for agricultural purposes and, therefore, the suit comes within the provisions of the Bihar Tenancy Act. There is, therefore, no escape from the conclusion that the suit would be governed by the-three years rule of limitation provided in Schedule 3 of that Act. In this view it is unnecessary to consider whether there is any conflict between the two decisions referred to by Manohar Lall, J. or between the other cases which were cited before us.
