JUDGMENT Maclean, C.J. - This case comes before me by reason of a difference of opinion between Mr. Justice Rampini and Mr. Justice Mitra. Both Judges have great experience in the subject matter under discussion, but upon the best consideration I can give to the case, I think the view taken by Mr. Justice Mitra is the Bounder one. I propose to add very little as I agree in his reasoning and in his conclusion. It is suggested that it has not been found by the lower Court what the nature of the land was, that it has not been found that it was used for agricultural or horticultural purposes. 2. The first Court found distinctly that it was used for horticultural purposes, and though that phrase is not repeated in so many words by the Appellate Court which has confirmed the decision of the first Court, that Court describes the land and its riser and speaks of it as having been cultivated. He treats it as either agricultural or horticultural land. I have no doubt that the lower Appellate Court meant to agree with the finding of the first Court on this point. Then it is said that there is nothing to show whether the land was situated within a village so as to bring the case within sec. 21 of the Bengal Tenancy Act and the definition of "village" in that Act. The short answer is that neither party raised that question, and no evidence was gone into on that point, and that it is too late now to raise it. But apart from the provisions of that particular section, I agree with Mr. Justice Mitra when he says, at the end of his judgment, that the Defendants' father had acquired a right of occupancy. He says : " Even if the Bengal Tenancy Act has no operation in urban areas, the Defendants' father did acquire, upon the facts found, a right of occupancy before the Bengal Tenancy Act came into force." The result then is that this appeal must be dismissed with costs including the costs of this hearing.