P L D 1967 Dacca 816 (PLP)

M. R. KHAN, J.‑This second appeal arises out of Title Suit No. 296 of 1960 of the second court of Munsif, Moulvi Bazar and has been preferred by the plaintiffs of that suit. The suit was one for establishment of the plaintiffs' title to the lands described in the plaint and for recovery of khas possession thereof. The suit lands appertain to the plaintiffs' tea estate known as Ratna Tea Estate. The plaintiffs' case is that the defendant No. 1 Muslim Ali who is the father of the defendant No. 2 Matilib Ali was employed by the Ratna Tea Estate as a washerman. The suit lands were given to the defendant No. 1 for his cultivation and maintenance for so long as he remained in the service of that Tea Estate. The defendant No. 1 and his son the defendant No. 2 used to cultivate the suit lands. The defendant No. 1 was dismissed from service in the year 1958, and it is asserted that with the termination of his service the defendant No. 1 was no longer entitled to cultivate the lands and was bound to deliver up possession thereof to the plaintiffs, the owners of the lands, but the defendants did not vacate the lands in spite of demand. Both the defendants contested the suit by filing a joint written statement. They admitted that the suit lands appertain to the plaintiffs' Ratna Tea Estate, but contended that they have been holding the lands as tenants under the plaintiffs and that they are not liable to be evicted. The trial Court decreed the suit holding that the defendants are mere licensees and have not acquired tenancy right to those lands. The defendants preferred an appeal. The lower appellate Court reversed the judgment and decree of the trial Court and dismissed the suit on the finding that the defendants are not licensees, but acquired tenancy right to the lands in suit. The plaintiffs have preferred this appeal against the decision of the lower appellate Court. The point involved in this appeal is the same as it was before the courts below. The only point that arises for consideration is whether the defendants are licensees in respect of the suit lands or whether they acquired tenancy right to those lands. The evidence on record reveals the following facts which are either admitted or undisputed. The defendant No. 1 Muslim Ali entered the service of the plaintiffs' Tea Estate as a washerman. He was given a residential quarter free of rent. He was also used to be given free ration. The coolies working in the same tea estate got some lands for their cultivation and maintenance and they also got free residential quarters and free ration. The defendant No. 1 further used to get some wage in cash which, according to the plaintiffs, was Rs. 1‑2 annas per day, but was Rs. 50 per month according to the defence. The coolies working in the tea estate also get some wages in cash. Moreover, the defendant No. 1 as a washerman used to get two piece per piece of cloth as his remuneration. The further admission by the defendant No. 1 as D. W. 1 is that he got the suit lands for cultivation and his maintenance. Having regard to all these facts, Mr. Rafiqul Huq learned Advocate for the plaintiffs‑appellants submits that the grant of lands to the defendant No. 1 by the plaintiffs tea estate did not create any tenancy and that he was a mere licensee entitled to cultivate and enjoy the usufructs of those lands for his maintenance for so long as he worked as a washerman in the tea estate. The learned Advocate referred to clause (v) of subsection (3) of section 1 of the Sylhet Tenancy Act, 1936 and the Explanation to the said clause in support of his contention. Clause (v) subsection (3) of section 1 of the Sylhet Tenancy Act lays down that the said Act extends to the district of Sylhet except the lands mentioned in clauses (i) to (v) of that subsection. Clause (v) of that subsection and the explanation thereto run thus: "(v) Lands used for special cultivation or for purposes ancillary thereto, so long as such use continues. Explanation.‑The words "purposes ancillary thereto" shah include the letting out of portions of such land for the maintenance of the coolies working on such cultivation." The expression "special cultivation" as defined in section 3 (2) of the said Act means any cultivation prescribed as such, and includes the cultivation of tea. Of course, tea is not cultivated exactly in the suit lands being paddy lands according to the evidence on record. It is, therefore, to be seen whether the cul tivation of the suit lands for the maintenance of the defendant No. 1 is for "purposes ancillary" to the cultivation of tea within the meaning of the Explanation to clause (v) of subsection (3) of section

1. The lower appellate court has taken the view that letting out of lands for the maintenance of coolies working in the tea garden may fall within the ambit of the said Explanation, but the defendant No. 1 being a washerman and not a coolie, the said explanation is not attracted to this case and as such the cultivation of the suit lands for the maintenance of the defendant No. 1 is not a "purpose ancillary" to the purpose of cultivation of tea. The lower appellate Court appeared to have laid great emphasis on the word 'coolie' occurring in the said Explanation. That Court thought that a washerman is not a coolie in any case. Before we come to consider the significance of the word 'coolie' occurring in the said Explanation, we would like to refer to a significant fact that even according to the admission of the defen dant No. 1 himself (D. W. 1) the suit lands were given to him for his cultivation and maintenance. The further significant fact is that similar lands have been given to other labourers working in the tea garden and, that too, for their cultivation and main tenance. The rate of rent realised in all cases including the present case is a fiat rate of 0‑12‑0 annas per year. From these facts, it appears to us that the lands appertaining to the tea estate which are not fit for cultivation of tea itself, are given to the labourers of the tea garden for their cultivation and maintenance as a privilege without conferring any right. The very fact that the lands are given for maintenance indicates that right of trans ferability be not an incident of the grant, the grant is unlikely to partake the nature of a tenancy. Coming now to the word `coolie' occurring in the Explanation to clause (v) of section 1 (3) what we find is that no definition of that word is there in the Act. In the absence of any statutory definition, the word 'coolie' should be given its plain dictionary meaning. According to the large Oxford English Dictionary the word 'coolie' means a native hired labourer and the name 'coolie' means a native hired labourer, and the name 'coolie' was given in this country by the Europeans. The dictionary meaning of the word 'coolie' hired labourer that word as used in the said Explanation includes all those who do manual work in connection with the cultivation of tea. A washerman does manual work as much as any other person doing actual cultivation of tea or doing some other manual work in connection with the plantation or cultivation of tea. A washerman appears to be as much necessary for washing purposes of persons employed in the tea estate as any other labourer required for the tea estate. We, therefore, think that the word 'coolie' occurring in the Explanation should not be rigidly construed. It should be given a liberal construction so as to include not only the persons who do actual cultivation of tea but also the persons who do manual work in the tea estate. Giving a liberal construction to the said word, we think that a washerman like the defendant No. 1 doing manual work also falls within the ambit of the Explanation to clause (v) of section 1 (3). The position of the defendant No. 1 though he was a washerman, was just like the position of any other coolie in respect of maintenance, ration and free quarter. Having regard to all these facts, we think that the lands in suit were given to the defendant No. 1 for purposes ancillary to the cultivation of tea in the plaintiffs' tea estate. As such the Sylhet Tenancy Act does not apply to the lands in suit, because of the exception made in section 1(3) (v) of that Act. The Sylhet Tenancy Act having been found to be not applicable to the lands in suit, the defendants cannot claim any tenancy right to those lands under the provisions of that Act. The suit lands being agricultural lands, the Transfer of Property Act does not apply to them either. Therefore, the only Act that will govern the rights of the parties in respect of the suit lands is the Contract Act. As the defendant No. 1 was given the suit lands for his cultivation and maintenance and as the grant did not create a tenancy, the defendant No. 1 trust be held to be a licensee. Accordingly, the sum purported to have been paid as rent is really the licence foe. As a licensee he was entitled to enjoy the lands in suit for so long as he was in service. With the termina tion of his services he lost the privilege given to him. The plaintiffs who are admittedly the owners of the lands are therefore entitled to recover possession of those lands. We, therefore, allow this appeal and set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. Having regard to the point of law involved in this case, we do not make any order as to cost. TALUKDAR, J.‑‑I agree. K.B.A. Appeal accepted.