1. The appellant in this case is defendant 2 Rameswar Nathany, and the appeal arises with reference to a suit brought by the plaintiff for the recovery of khas possession and a declaration of his title in respect of certain land. His case was to the effect that he had purchased some property appertaining to touzis Nos. 6 and 6/1 at a revenue sale which was held in 1936. After his purchase he sought to annul all encumbrances under these touzis under the provisions of Section 37 of the Revenue Sale Law and the only dispute which arises in connexion with the present appeal is whether the plaintiff is entitled to annul as an encumbrance the tenure of the contesting defendant (defendant 2) in respect of three plots of land numbered 76/211, 76/212 and 77/214.
2. The first point argued by the learned advocate for the appellant is that the lower appellate Court was wrong in holding that certain entries contained in the record of rights as published in 1931 should be preferred to some other entries relating to this land in the petty settlement record of 1910. The latter record shows that the plots now in dispute were held under three estates namely touzis Nos. 6, 6/l and 14. Admittedly, touzis Nos. 6 and 6/l have now been amalgamated but the appellant contends that it should have been held that the land in dispute appertains at present to two estates in touzi No, 14 the amalgamated estate formerly consisting of touzis Nos. 6 and 6/1. On this basis Dr. Basak contends that after the revenue purchase by the plaintiff, there could not be any partial annulment in respect of a tenure held in this way. The lower appellate Court has preferred to accept the entry contained in the record of rights of 1931 wherein this property is shown as appertaining to the amalgamated touzi Nos. 6 and 6/1. On this finding, no question of the partial annulment of an encumbrance arises and the learned Judge has held that the encumbrance in question is liable to be annulled. The learned advocate for the appellant argues that no preference should have been I given by the learned Judge to the later record and he contends that evidence should have been taken with regard to the correctness of the entries contained in the records of 1910 and 1931. In this connexion it was pointed out by M. C. Ghose J. in Bhupendra Krishna Glaose v. Abdur Rahaman : AIR1935Cal710 that
when there is a conflict between an old record of rights and a recent record of rights the recent record is to be presumed to be correct unless it is proved by evidence to be incorrect.
3. I am entirely in agreement with this view. A finally published record of rights must be regarded as presumptive evidence with regard to the conditions which existed at the time when the record was prepared. Between 1910 and 1931, it is only reasonable to suppose that many changes may have taken place with regard to the lands now in suit and it is probable that, because such changes had occurred with regard to many holdings situated in the area in which the settlement was made, the new settlement of 1931 was considered necessary. In any case, if any party is aggrieved by an incorrect entry in the later record he is afforded an opportunity of getting it corrected under the provisions of the Bengal Tenancy Act. As regards the three plots now in dispute no recourse was taken to this machinery. It must be taken therefore that the entries contained in the later record of rights are correct until the contrary has been proved. The appellant has not succeeded in showing the incorrectness of the entry in the record of rights which shows the property now in dispute as having been held under the amalgamated touzia 6 and 6/1. So this argument fails.
4. It ,is, however, contended by Dr. Basak that, in any event, his client is entitled to the protection afforded by Section 37(4) of the Revenue Sale Law under which land whereon gardens have been made may not be treated as an encumbrance liable to be annulled. With regard to this point the learned Judge has held that these three plots did not constitute a garden on the ground that 'it is clear that there must be a garden or plantation in which some capital has been sunk.' Mr. Gupta on behalf of the respondent argues that the learned Judge has adopted a correct view on this point and he further contends that the land cannot be said to constitute a garden unless it is in effect a plantation of a permanent nature containing trees or plants which do not require to be replanted from year to year. The entry in the record of rights of 1931 describes these three plots as garden lands and the learned Judge has referred to the evidence which indicates, that vegetables are grown thereon. It seems to be clear from the entry contained in the record of rights and the evidence to which the learned Judge has referred in his judgment that the three plots of land round which this dispute centres in fact constitute vegetable gardens. In this connexion, it is significant that in his report the Commissioner draws attention to the fact that these plots are enclosed within pucca walls. In the Oxford English Dictionary, a garden is defined as an enclosed piece of ground devoted to the cultivation of flowers, fruit or vegetables. I think this definition is of very considerable assistance in connexion with the construction of Section 37(4) of the Revenue Sale Law. In order to ascertain whether a plot of land is a garden or not, one of the principal elements to be taken into consideration is whether the land has been enclosed for the purpose of growing vegetables, fruit or flowers, as opposed to a field which has been left open for the ordinary purposes of cultivation as carried on in a village. Provided the land contained within the enclosure is ordinarily used for this purpose it seems to me that it is immaterial whether the plants grown on the land have to be planted every year or are of a permanent nature. In this view of the case, I must hold that the three plots of land with which this appeal is concerned must be regarded as gardens and they are, therefore, protected under the provisions of Section 37 (4) of the Revenue Sale Law. It follows, therefore, that the judgment of the lower appellate Court must be set aside. The plaintiff's title as purchaser in the revenue sale of 1936 will be declared but he will not be allowed to obtain khas possession of the three plots mentioned above. The appellant will be entitled to his costs in this Court. The parties will bear their own costs in the Courts below. Leave to appeal under Clause 15, Letters Patent, is refused.