Prinsep and Pigot, JJ.
1. The first point for our consideration is, whether lands on which gardens have been made are protected by Act XI of 1859, Section 37, from the effect of a sale for arrears of revenue, unless they may have been expressly leased for that purpose.
2. No doubt three successive Revenue Sale Laws, Regulation X of 1822, Act XII of 1841 and Act I of 1845, were to this effect, but the language of Act XI of 1859 is different, and is capable of the more liberal interpretation in favour of the tenant. This construction has been adopted by Birch and Mitter, JJ., in unreported special appeal 1796 of 1876 Sheikh Joofail Ali v. Ram Kanto Rai Chowdhuri and three appeals decided simultaneously, and also by White and Mitter, JJ., in the case of Brago Bibee v. Ram Kant Roy Chowdhry I.L.R. 3 Cal. 293.
3. We were at one time inclined to doubt the correctness of this opinion, but after examination of proceedings in the Legislative Council, we have come to the conclusion that the alteration in the terms of the law was deliberate, so as to protect all tenants coming within the terms specified.
4. The Subordinate Judge has, however, found that the lands occupied by the defendant cannot be regarded as garden, although there are many trees planted thereon, and he has come to this conclusion because the lands were described as bhitti and chara bhitti in some old documents, and he consequently finds that the principal object of the tenure being that it should be occupied by the dwelling houses of ryots, the planting of trees would not alter its character, so as to make it come within the protective clause of the Act. The Subordinate Judge does not set aside the finding of the Munsif on the evidence from which (from the number of trees planted), it is clear that if the opinion of the Subordinate Judge be erroneous in other respects they should be regarded as garden lands. Having regard to his opinion already expressed regarding the interpretation of the law as contained in Act XI of 1859, Section 37, we think that the original character of the tenure does not affect its position in this respect. The number of betel, mango, jack and tamarind trees standing on those lands seems fully to justify the finding of the Munsif, and as the Subordinate Judge has not questioned the correctness of the Munsif's finding on the evidence, we think that we may safely restore the Munsif's finding, instead of prolonging the litigation by a remand.
5. The order of the Subordinate Judge must therefore be set aside, and that of the Munsif restored. The defendant will receive his costs in this and the lower Appellate Court.