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.

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 Sec.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/s. Khairat Ali, AIR 1941 Pat 577 : (ILR 20 Pat 346) (A); Bishambhar Narain Singh V/s. Ajodhya Ram, AIR 1946 pat 407 (B) and Jaipal Singh V/s. 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 creat