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TMI Blog1912 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , the plaintiff attempted to serve a notice to quit upon the defendant under Section 45 of the Bengal Tenancy Act; the service of that notice, however, has not been proved, and as the suit has not been commenced within six months after the expiry of the term as provided in Section 45, no further reference need be made to the provisions of that section. The only question in controversy is, whether the defendant is liable to be ejected as a trespasser. The case for the defence is that he has acquired a right of occupancy in the land and is not liable to be ejected. The case for the plaintiffs, on the other hand, is that the incidents of the tenancy are governed by the Transfer of Property Act and that the defendant is consequently, liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the garden is concerned, reliance has been placed upon the cases of Hurry Ram v. Narsingh Lal 21 C. 129. On behalf of the plaintiffs-respondents, it has been argued, in answer to this contention, that there was no lease for any horticultural purpose, that the tenancy was created for the purpose of enabling the lessee to gather fruits from the trees on the land, and that in respect of the pasture, the tenant was entitled merely to take away the grass and that, consequently, he was not in the position of a raiyat within the meaning of the Bengal Tenancy Act 2. Now in so far as the case of Fitzpatrick v. Wallace 11 W.R. 231 is concerned, it seems to have been held therein by Mr. Justice Norman that, as a right of occupancy can be gained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancillary to cultivation. It is conceivable that cattle may have to be grazed for the purpose entirely independent of cultivation. It cannot be affirmed that a lessee who takes land for grazing cattle on it, without any connection with cultivation, is a raiyat within the meaning of Sub-section 2 of Sections 5. The appellant has contended on the authority of the decision in Umrao Bibi v. Mahomed Rojabi 4 C.W.N. 76 : 27 C. 205, that, broadly speaking, the provisions of the Bengal Tenancy Act are applicable to agricultural tenancies , whereas the provisions of the, Transfer of Property Act are applicable to non-agricultural tenancies and that the term 'cultivation' as used in Section 5 of the Bengal Tenancy Act, is equivalent to agric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been granted, the tenant grazed cattle on the land as subsidiary to agricultural pursuits, the inference would legitimately follow that the lease was for agriculture cultural purposes and was granted for a purpose subordinate to that of cultivation. If that is established, the tenant may very well claim to have acquired the status of an occupancy raiyat. A similar distinction, it may be observed, has been drawn in the determination of the question whether a right of occupancy may be acquired in a tank; the test to be applied is, whether the grant is subsidiary to agricultural pursuits, or is merely for the purpose of rearing and catching fish [Siboo Jelya v. Gopal Chunder 19 W.R. 200; Mahananda Chakravarti v. Mongala Keotani 31 C. 937 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the lease was granted the defendant, without any objection on the part of the landlord, took to cultivation and, as a matter of fact, brought a portion of the land under tillage, the inference would legitimately follow that the land was granted for the purpose of cultivation. When the terms of a grant are ambiguous, reference may properly be made to the conduct of the parties to determine its true nature. [Ramdayal Giri v. Midnapore Zamindary Company Ltd. 7 Ind. Cas. 785 : 15 C.W.N. 263; Pramotha Nath v. Nilmoni 10 Ind. Cas. 431 : 15 C.W.N. 902 : 14 C.L.J. 38]. Under these circumstances, we are of opinion that the findings contained in the judgment of the District Judge are not sufficient for the disposal of the case. 4. The result ..... X X X X Extracts X X X X X X X X Extracts X X X X
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