JUDGMENT

1. This is an appeal in an action in ejectment by the plaintiff, who holds a putni from a purchaser at a sale, for arrears of revenue of the residuary share of an estate under the Assam Land and Revenue Regulation, 1886, and seeks to evict the defendants as trespassers. The defendants resist the claim on a two fold ground, namely, first, that the lands are included within, not the residuary estate purchased by the grantor of the plaintiff, but a separate account which lias not been sold, and secondly, that they are, in any event, occupancy raiyats as they have been in possession as cultivators for more than twelve years. The Courts below have concurrently found that the disputed lands lie within the residuary estate, but while the trial Court held that the plaintiff was entitled to a decree for ejectment, the Subordinate Judge has taken a contrary view. On the present appeal, the decree of the lower Appellate Court has been assailed substantially on two grounds, first, that as the land has been used for grazing purposes, the defendants are not occupancy raiyats and secondly, that as the defendants claimed to hold the land under the proprietor of the separate account, they cannot set up a right of occupancy within the residuary estate. In our opinion, there is no foundation for either of these contentions.

2. As regards the first ground, we observe that Section 71 of the Assam Land and Revenue Regulation provides that property sold u/s 70 for arrears of revenue shall be soldfreeof all incumbrances previously created therein by any other person than the purchaser. But this rule is not to apply to entitle a purchaser to eject any tenant having a right of occupancy under the rent law for the time being in force or to enhance the rent of any such tenant, otherwise than in the manner prescribed by that law. The rent law in , force in the district where the land is situated is contained in Act VIII of 1869 (B.C.). Section 6 provides that every raiyat who shall have cultivated or held land for a period of twelve years shall have a right of occupancyinthe land so cultivated or held by him, whether it be held under pattah or not, so long as he pays the rent payable on account of the same. In the present case, it has been found that the defendants are cultivators; they are consequently raiyats within the meaning of Section 6. It has also been found that they have held the entire tract for a period of more than twelve years, a portion has been used for grazing purposes while the remainder is still covered by jungle. The question thus arises, whether the use of the land for grazing purposes entitles the defendant to claim a right of occupancy u/s 6. The answer must be in favour of the defendants, on the principle explained in Hedayet Ali v. Kalanand Singh 20 Ind. Cas. 332 : 17 C.L.J. 411 where reference is made to the earlier decisions in Fitzpatrick v. Wallace 11 W.R. 231 : 2 B.L.R.A.C. 317 and Latifar rahaman v. Forbes 5 Ind. Cas. 783 : 14 C.W.N.372. The true test is to determine whether the user of the land has 'been for an agricultural purpose. The land may have been used for the grazing of cattle required for an agricultural pursuits, or it may have been used for the grazing of cattle required for avocations totally unconnected with agriculture. In the former contingency, but not in the latter, the holding has been used for an agricultural purpose and a right of occupancy has been acquired therein. The mere fact that a part of the land is still covered by jungle and has not been actually brought under tillage does not take the case out of the operation of Section 6, which applies to land "cultivated or held." The first ground assigned to support the contention that a right of occupancy has not been acquired in the land cannot consequently prevail.

3. As regard the second ground, we find that the defendants have been in occupation of the land from at least 1876. Since 1900, when the separate account was opened the defendants have