1. Two questions have been raised in this appeal. The first is whether a lease of land on which a boraj or betel leaf plantations have been made is a protected interest within the meaning of Section 160 Clause (c) of the Bengal Tenancy Act, and the second whether the words 'date of sale' in Section 167 of the Act mean the date on which the sale is held or the date on which the sale is confirmed.
2. With regard to the first question, it is urged that the word plantations' is governed by the word 'permanent' in Section 160 Clause (c) and that betel leaf cultivation cannot be called a plantation which implies permanency in the plant and that betel leaf does not stand on a different footing from other vegetables.
3. I do not think that the word 'permanent' governs the word 'plantations' in the section. If it applies to 'plantations,' it would equally apply to the words which follow viz.,'tanks, canals, places of worship or burning or burying grounds'. But it seems that the word 'permanent' is not used with reference to them because they in themselves imply some sort of permanency.
4. Nor do I think that the word 'plantations' necessarily mean permanency in the plant though I think it implies permanency in the nature of the work.
5. The nature of the betel-leaf cultivation in the present case has not been fully gone into by the Courts below, but ordinarily, in betel leaf cultivation, the ground has to be raised and bamboo and reed structures have to be made for protecting the plants, and all this cannot be done at a small cost. It does not stand on the same footing as other vegetable cultivation. The boraj in the present case has been found to have been erected, and existing for considerably over 12 years. The word 'plantations' is not defined in the Act.
6. I think that land on which a boraj is made is a protected interest within the meaning in Section 160 of the Bengal Tenancy Act.
7. The second contention turns upon the meaning to be attached to the words 'date of sale' in Section 167 of the Act and the question is whether the words mean the date on which the sale is held or the date on which the sale is confirmed. It has been urged on behalf of the appellant that the former construction would be unreasonable and may cause hardship in many cases. I think there is much force in this contention. An application may be made for setting aside a sale and the proceedings may not be disposed of before the expiry of one year from the date of sale. The purchaser, according to the former construction, must take steps under Section 167 within one year from the date of sale while the proceedings for setting aside the sale are pending and though the sale may eventually be set aside. Again, a sale may be set aside before the expiry of one year from the date of sale and on appeal may not be disposed of within one year. In such a case also the purchaser, according to the above construction, must apply under Section 167 before the order setting aside the sale is reversed and the sale is confirmed on appeal.
8. Besides, the mere filing of an application is not enough. He must pay process-fee and request the Collector to serve a notice on the incumbrancer declaring that the incumbrance is annulled. It is not clear how all these proceedings can be taken while the order setting aside the sale itself remains unreversed.
9. The words 'date of sale' also occurred in Section 169 of the Act, and, it was held in the case of Matangini Chaudhurani v. Sreenath Das 7 C.W.N. 552 that the said words mean the date of 'confirmation of sale'. That section lays down rules for disposal of sale-proceeds, and the question to be considered in that case was whether the landlord is entitled to the rent between the date of the suit and that of sate or up to the date of confirmation of sale. Under Act XIV of 1882 the title to the property did not vest in the purchaser until the sale was confirmed and the Court held that having regard to the object of the section, it would be a narrow construction to say that the date of sale means the actual date of sale as opposed to the date when it, becomes absolute.
10. Section 169 was amended by substituting the words 'date of confirmation of sale' in place of the words 'date of sale' but the same expression in Section 167 was not amended.
11. In Section 65 of the new Civil Procedure Code, Act V of 1903, it is laid down that where a sale has become absolute, the properties sold shall be deemed to have vested in the purchaser from the date when the property is sold and not from the date When the sale becomes absolute.
12. The present case must, however, be decided upon the law as it stood in April 1905 when the sale took place. Section 169 was amended subsequently by Act I, E.B.C., of 1908.
13. The words 'date of sale' occurred in both the Sections 167 and 169, and at the time of the sale in the present case the title of the property did not vest in the purchaser until the sale was confirmed, and the words 'date of sale' in Section 169 were judicially interpreted, at that time, to mean the date of confirmation of sale and, I think, that the same construction should be put upon the words 'date of sale' in Section 167. In the case of Chowdhry Kesa Sahay Singh v. Giani Rai 6 C.W.N. 776 : 29 C. 626 Maclean, C.J., agreeing with Ghose, J., held that the words 'date of sale' in Section 310A of the Civil Procedure Code mean the date on which the sale is actually held and not the date on which it is confirmed. But, as pointed out by Maclean, C.J., in his referring order in the case of Chundi Charan Mandal v. Banke Behary Lal Mandal 26 C.449 Section 310A affords a special indulgence to the judgment-debtor. It gives him, so to say, yet one more chance of saving his property. But he can only avail himself of that special indulgence if, as a condition precedent, he makes the deposit within 30 days.
14. It is urged that Section 167, Bengal Tenancy Act, also gives a special indulgence to the purchaser but I do not think that it is so. Before the Bengal Tenancy Act, VIII of 1885, the purchaser had not to give any notice for avoiding an incumbrance or do any act before bringing the suit for possession and there was no restriction as to the time within which the suit was to be brought except the period fixed by the Limitation Act See Unnoda Churn Das v. Mothura Nath Das 4 C.L.R. 6 : 4 C. 860 though incumbrances were not ipso facto void by the sale but were voidable at the option of the purchaser See Titu Bibi v. Mohesh Chunder Bagchi 9 C. 683. The Bengal Tenancy Act, for the first time, laid down that the purchaser must give notice for annulling the incumbrance and within a limited time. His rights were, therefore, restricted by the Act.
15. In view, however, of my finding upon the first question, the plaintiff cannot succeed in the present case and the appeal is accordingly dismissed with costs.