1. This is an appeal by the defendant No. 1, and it arises out of a suit, instituted by the purchasers at a sale for arrears of Government revenue, to recover khas possession of some lands lying within the ambit of the estate purchased by the plaintiffs. The defendant No. 1 contested the suit: and her defence was that the disputed land was a portion of her homestead, on which there are a tank and some fruit trees and also that she had an occupancy right over the land. She, therefore, claimed protection, under exception 4 to Section 37 of Act XI of 1859 and the proviso to that section.
2. The first Court found that the defendant No. 1 had no occupancy right, but that she held a protected interest, under exception 4 to Section 37 of Act XI of 1859, and it, therefore, decreed the plaintiffs' title to receive rent from the defendant No. 1, but rejected the prayer for ejectment.
3. The plaintiffs appealed to the Subordinate Judge, who decreed the appeal and allowed Khas possession to the plaintiffs.
4. The defendant No. 1 has now appealed to this Court, and the points urged on her behalf are the following:--In the first place, it is contended that the Court of appeal below has erred in holding that with a view to claiming the protection of Section 37, it was necessary for the defendant to prove that the lease should have been one for building dwelling houses, planting fruit trees and constructing a tank. In the next place, it is urged that it having been proved and found by the first Court that the defendant occupied the house as a tenant, and finding to the contrary having been arrived at by the lower appellate Court, and in fact the status of the defendant as a tenant not having been at all challenged by the plaintiffs, the lower appellate Court ought to have held that the defendant came within the meaning of Section 37 of Act XI of 1859.
5. The decision of the present appeal depends on the construction of exception 4 of Section 37 of the above Act, which relates to encumbrances which cannot be avoided by the purchaser. The exception in question relates to leases of land whereupon dwelling houses of permanent character have been erected, or whereon gardens, plantations, tanks &c.;, have been made. The defendant No. 1, as above stated, alleges that there are on the lands in question dwelling houses, a tank and an orchard of some fruit trees. The lower appellate Court has held 'that unless it is proved that there is a lease relating to the land on which the dwelling houses, fruit trees and tank stand, the protection provided under Section 37 of the Revenue Sale Law cannot be claimed. The defendant does not prove that she held under a lease, on the strength of which she or her predecessors have built the dwelling houses, planted the fruit-trees or constructed the tank.' There can be no doubt that the existence of a lease is an essential ingredient before any protection can be claimed under the above exception: and the defendant has failed to prove that she was occupying the land under such a lease.
6. It has been contended on behalf of the appellant that when it has been found by the first Court that the dwelling-houses had been in occupation of the defendant and before her, by her husband, and before him by his ancestors, the presumption should be that the occupation must have had its origin in a lease although it may have been nothing but an oral arrangement. And in support of this contention the case of Juggodeshury Dossia v. Uma Churn Roy 7 W.R. 237 has been cited in order to show that for the purposes of the protection claimed, a written lease was not essentially necessary. The above case was decided under Act I of 1845, which was the sale law of that time. What was held in that case was this: 'That it was not actually necessary that the lease or grant should be in writing to bring the case within the exceptions referred to. Evidence showing that the house and other buildings were erected and that the garden and tank were constructed and that the auction-purchaser or those claiming under him continued to receive the old rent without objection or claim to enhance, would be evidence from which it might be inferred that the grant of the land was for the purpose for which it was used'.
7. The conditions mentioned in the above quoted passage are not present in the case now before us. The next case relied upon was the case of Gobind Chundra Sen v. Joy Chundra Dass 12 C. 327. From the facts of this case, as mentioned in the report, it is clear that there were a large number of trees of various descriptions. The present case, however, is different. It appears from the finding of the first Court that there is a tank round which there are many fruit trees, and during the course of the argument it was pointed out that the whole area in occupation of the appellant is about 1 bigha, 7 cottahs, on which were dwelling houses, fruit trees and a tank. It, however, does not appear from the evidence nor is there any finding as to whether these dwelling houses consist only of huts or of buildings. It was, no doubt, the duty of the defendant to prove that the structures as alleged by her on the land were structures within the meaning of exception 4 of Section 37 of Act XI of 1859.
8. The facts of the case of Makar Ali v. Shyama Charan Das 3 C.W.N. 212 are, however, very similar to those of the present case. In that case the plaintiff was the purchaser and as such brought a suit to eject the defendant, alleging that the defendant had no protected interest in the land. The tenant set up a right of occupancy and also stated that he had his dwelling house, tank and trees on the land, and it was held in that case that as there was no finding that there was any lease, and also because the dwelling house consisted of only huts and trees were not in the shape of a plantation or garden, no protection could be given to the defendant under the sale law. I may here observe in passing that the whole land in this reported case also consisted of over a bigha as in the present case. Again in the case of Najemoddeen Moonshi v. Syed Hassan Hyder Chowdry 9 C.W.N. 852, it was held that as on a portion of the lands in question in that case permanent dwelling houses, tanks and gardens had been made, the plaintiff was entitled to get Khas possession of the land held by the defendant except such portions of them as were occupied by the dwelling houses, garden and tank. From the last two authorities quoted above, it is quite clear that it is necessary that there should be a lease and that the dwelling houses, gardens and tanks should be of a character such as is mentioned in exception 4 of Section 37 of Act XI of 1859.
9. I have already observed above that the defendant also claimed protection under the proviso of Section 37 of the Act. But it has been found by both the Courts below that she has no occupancy right to the land in question. On a consideration of the facts found and the case law on the subject, I am of opinion that an occupier of the land which forms part of an estate sold for arrears of Government revenue cannot claim protection under exception 4 of Section 37 of the Act, unless he can prove that there was a lease for the purposes mentioned in the exception to the section and that the dwelling house was of a permanent character.
10. That being so, I am of opinion that this appeal should be dismissed with costs.
11. This appeal arises out of a suit by a purchaser at a sale for arrears of revenue to eject the defendant No. 1 from a plot of land comprised in the estate. The defendant No. 1 claimed protection under the proviso to Section 37 of Act XI of 1859, on the ground that she was an occupancy raiyat. Both the Courts below have negatived that defence. It is, therefore, unnecessary to take any further notice of it.
12. The defendant No. 1 also claimed protection under the 4th exception to Section 37 of the Act. The words 'leases of land whereon dwelling houses and factories or other permanent buildings have been erected, &c.;,' in that clause contemplate the presence of conditions; and it is necessary that a person who claims the benefit of that exception should fulfil the requirements of both those conditions. The first condition is that the land must be held under a lease. Whether it is held under a written lease or a verbal lease is immaterial. See the case of Juggodeshury Bossia v. Uma Churm Roy 7 W.R. 237, which was a case under the corresponding section of Act I of 1845, namely, Section 26, Clause (4). The words of that clause are slightly different; but the words upon which the present question turns are substantially identical. See also the case of Bisweshwar Ghatak v. Fatteh Hussain 10 C.W.N. XXIV. It is also immaterial whether the lease is held directly under the defaulting proprietor or any under-tenant of an inferior degree. See the case of Kiran Chunder Boy v. Naimuddi Talukdar 30 C. 498.
13. The second condition is that the dwelling house contemplated in that section must come within the category of permanent buildings; see the cases of Gobind Chundra Sen v. Joy Chundra Dass 12 C. 327, Makar Ali v. Shyama Charan Das 3 C.W.N. 212, Najemoddeen Munshi v. Syed Hassan Hyder Chowdry 9 C.W.N. 852 and Wahid Ali v. Rahat Ali 12 C.W.N. 1029.
14. It does not clearly appear from the evidence what the precise character of the homestead is in the case. The defendant who sought the benefit of the exception ought to have established, by clear and positive evidence, that the homestead came within the category of permanent buildings as defined in exception 4 to the section. I take it that there are one or two huts on the land and that there is also a tank with a few fruit trees around it. It is clear, therefore, that so far as the dwelling house is concerned, it does not come within the words 'permanent buildings' as contemplated in exception 4. It is then said that the husband of the defendant No. 1, and his ancestors, have been living on the land for some generations. The evidence, however, on this point is very scanty. There is a finding in the judgment of the first Court that the forefathers of the husband of the defendant No. 1 lived in the house for a long time; and it is urged that that circumstance entitled the defendant No. 1 claim to the benefit of the exception. If this contention were well-founded, to my mind the result would be most anomalous: for, while a person in the occupation of a plot of land, under a mourasi mokarrari lease, not from the time of the permanent settlement, but from a subsequent date, is not entitled to claim protection under any of the exception to Section 37, yet if he holds the land, not under a mourasi mokawari lease at all, but simply resides on the land for a long time, he is entitled to claim the benefit of that section. In my opinion the legislature never intended to confer any such privilege as is claimed on behalf of the defendant No. 1 in this case from the mere fact of long residence. If the contention were upheld, it would land us in another anomaly: for, it is almost settled law that, however, long the period might be during which a tenant has been residing on a plot of land, he is nevertheless liable to ejectment at the instance of the landlord on proper notice to quit if the homestead in which he resides does not consist of any structure of a permanent character. And yet, according to this contention, a purchaser at a sale for arrears of revenue, who, ex concessis, possesses much longer rights than the defaulting proprietor, is unable to evict the tenant.
15. Immunity from ejectment has also been claimed, under the 4th exception, on the ground that there are some trees on the land. There is, however, no finding in either of the judgments of the Courts below that these trees form a garden. And it is common experience that in lower Bengal in the mofussil a tank and a few trees are almost invariable adjuncts to a homestead. Similar immunity was claimed in the cases of Makar Ali v. Shyama Charan Das 3 C.W.N. 212 and Bisweshwar Ghatak v. Fatteh Hussain 10 C.W.N. XXIV But it was refused in those cases, on the ground that the existence of a few trees scattered over the land did not comply with the requirements of the conditions of the 4th exception to Section 37 of the Act.
16. Our attention has been called to the case of Kiran Chunder Roy v. Naimuddi Talukdar 30 C. 498 in which it was held that the garden and tank on the land in that case fell with in the exception above mentioned. What the exact character of the garden and tank was does not appear from the statement of the facts in that case.
17. I am of opinion, therefore, the defendant-No. 1 has failed to establish the existence of the conditions required by the protective exceptions to Section 37 of the Act. I agree in affirming the decree of the lower appellate Court and dismissing this appeal with costs.