1. (His Lordship having stated the facts above set out, continued): Regard being had to the findings of fact arrived at by the Subordinate Judge upon the evidence, the appellants' pleader has confessed himself unable to press this appeal upon any but one ground,--viz., that the fourth exception to Section 37 q. v. supra 8 Cal. 110. Act XI of 1859 protects from the operation of the section such portion of the defendants' land as may be occupied by holdings, tank, or garden; and that the lower Court was wrong in supposing that a ryot cannot have the benefit of the exceptions, or that the defendants are bound to prove that they have themselves effected the improvements in question. And for this contention he has referred to the authority of this Court and of the late Sadar Court.
2. In the case of Bhagho Bibee v. Ramkant Roy Chowdry I.L.R. 3 Cal. 293 the previous decisions bearing upon this point are cited, and the Court was content to follow those decisions as having unquestionably a tendency to encourage improvements on the land, and to mitigate the severity of the Revenue-sale Law. The effect of these decisions seems to be, that a person holding land which is not protected from the operation of Section 37 by any of the first three exceptions, is yet entitled to the benefit of the fourth exception in respect of any of the items specified therein which may have been established on the land, and that there seems to be nothing in the words of the exception conferring the benefit of it on tenure or under-tenure holders, and excluding the ryot from it.
3. We are not prepared to dissent from the rulings thus laid down, though we are not free from the doubt indicated by White, J., in his judgment in Bhago Bibee v. Ramkant Roy Chowdhry I.L.R. 3 Cal. 296. We think it clear, however, that the benefit of the fourth exception must be limited to improvements effected bon fide, and to permanent buildings erected, before the revenue-sale, and should not be conceded to anything subsequently constructed, or which appears to have been constructed merely for the purpose of defeating the rights of an auction-purchaser.
4. Subject to this reservation, we think that it does not matter whether the improvements have been effected by the present holder or by some previous occupier; and therefore the Subordinate Judge's observation that 'there is no evidence that the defendants have sunk ponds and planted a garden' seems to us irrelevant.
5. In order that these principles may be applied to the present case, it is necessary to send it back to the lower Court. The existence of a khamar-bari, a tank, and a garden being established on the judgment of the first Court, and the fact not having been displaced by the Appellate Court, it will be necessary for that Court to determine whether the khamar-bari is a permanent building; whether it, the tank, and the garden were made before or after the revenue-sale; and if before, what areas they respectively cover. The decision will be in accordance with the findings upon these points.
6. The present decree of the lower Appellate Court is set aside, and the case will go back for a fresh decision on the points indicated. The costs of this appeal will abide the result.
7. I concur, but not without hesitation, as to the protection claimed by the defendants for the khamar-bari, tank, and garden.