P L D 1950 Dacca 18 (PLP)

AMIN AHMAD, J.‑‑

This appeal by the defendants Nos. 1 and 2 arises out of a suit for declaration of title and recovery of possession and mesne profits. The plaintiff's case is that the disputed lands appertain to Taraf Ahmadulla Nasrulla, (Toozi No. 388) which was purchased by the proforma defendant No. 10, Ahmad Kabir Choudhury, at a revenue sale. The plaintiff took patni lease of the disputed lands from the proforma defendant No: 10 and is therefore entitled to khas possession‑of the lands. The principal defendants Nos. 1 and 2, who are in possession of the lands, resisted the claim of the plaintiff. .Hence the present suit. The defence of the defen dants 1 and 2 inter alia is that the plaintiff has, no. title to the disputed land ; that the profomia defendant No. 10 was a benamidear for the defaulting proprietor and as, .such had no right to annul incumbrances or undertenures ; that. the taluk is protected by certain exceptions of Section 37 of the Bengal band Revenue Sales ,Act (XI of 1859), having been in existence from before the creation of the estate Ahmedulla Nasrulla and also because of the fact that there are permanent tanks and graveyards on the lands. Their further defence is that the plaintiff is not entitled to khas possession as the defendants were recognised by the proforma defendant No. 10 as his tenants after his purchase of the superior estate at the revenue sale. Various issues were raised at the trial, including the one, whether the defend had any protected interest in suit lands. The trial Court declared the title of the plaintiff to the disputed land and also declared at the plaintiff was entitled to possession of the same except to hater surface of the tank comprised in R. S. Plot No. 573 and he western\ bank of the tank where there is a graveyard and the prayer for possession of the water surface of the tank and the graveyard was dismissed. Against this decision defendant Nos. 1 and 2 preferred an appeal to the District Judge of Chtagong and the plaintiff filed a cross‑objection against the order o the dismissal of the claim in respect of the water surface of the tank and its western bank. The learned District judge dismissed he appeal with costs, but he allowed the cross‑objection of the plaintiff with costs and decreed the suit in full. Hence the present second appeal. Mr. Khandakar appearing for defendant‑appellants has argued that the learned Court below ought to have held that the tank in question was in existence at the me of the Permanent Settlement and therefore is covered by exception 2 of section 37 of Act XI of 1859. He also argues that even if a portion of the taluk existing from before the time of Permanent Settlement, is transferred and that portion is subsequently held under different names but the subsequent transfer and (descent ?) can be traced from the original taluk even then he was entitled to get the benefit of the second exception of section 37 of the aforesaid Act in respect of the portion so transferred. In support of/his argument Mr. Khandakar has relied oft the case of Ananda Mohan Poddar and another v. Durga Charan Dutta and others reported in 46 C W .N, page 668 ; and he has also relied on the case of Dayamoyee Choudhurani and others v. Narendra Kishors Roy and others, reported in 19 C W N 'page

79. He strenuously urges that as the defendants have succeeded in proving that the tenure which the defendants claimed to have been in existence from before the Permanent Settle ment was in existence for a very long time the Court below should have presumed that it was in existence from before the Permanent Settlement. The learned Court below has carefully considered the evidence and has come to a finding that even if the taluk was in existence in 1838. it was not in existence in 1889, and a new taluk was created in 1915 in favour of Abdul Hashem from whom the defendants purchased it by Exhibit

3. When the defendants claim this protection under the second exception it 'was for the defendants to discharge this onus, and according to the Court below the defendants failed to discharge that onus ; and the plaintiff adduced stronger evidence in support of his case. As we agree with the learned judge, his second argument also has no legs to stated upon for the question of protection of a portion of the taluk that is transferred would arise only if the taluk of which it is a‑part was in existence at the time of the Permanent Settlement, and there fore. The case of Dayamoyee Chaudhurani and others, Narendra Kishore Roy and others reported in 19 Cal. Weekly Notes page 79 has no application to the facts and circumstances of this case. The next point urged by Mr. Khandakar is that even if the tenure is not protected by second exception to section 37, it is covered by the 4th exception to section

37. The 4th exception runs thus:‑-"Leases of lands whereon dwelling‑houses, manufactories, or other permanent buildings have been erected, or where on gardens, plantations, tanks, wells, canals, places of worship, of burning or burying grounds have been made,, or wherein mines have been sunk. It is contended by the learned Advocate in view of the finding that the tank ova there for a very long time, whether the tank was made by the present, holder of the ease or his predecessor‑in interest or by and one else, the tank is, protected by the aforesaid exception. He points out that nowhere in this exception it is provided that the improvements must be made by the lessee or his predecessor‑in‑interest. All that the section says is that these improvements must have been made by someone. In support of his argument he has relied on the case of Bhago Bibee v. Ram Kanta‑Roy Choudhury land others, reported in 3 Cal. page 293 and also on the case of Fateh Ali v. Gunganath Roy and others, reported in 8 Cal. page

113. In the Case of Bhago Mee it was held that "notwithstanding a party may fail to show that his tenure was created prior to Permanent Settlement, yet he is entitled to the benefit of the 4th exception in respect of any permanent structures that may bale upon his, holding." The other case of Asgur Ali and others v, Asmut Ali and another, reported in 8 Cal., page 110, where the case in 3 Cal:, page 293 was followed it was held that "the benefit of the .4th exception to Section 37, Act XI of 1859 must be limited to improvements effected bonafide and to permanent buildings erected before, the revenue sales and. should not be conceded to anything subsequently constructed or which appears to have been constructed. merely for the purpose of defeat ing the rights of an auction purchaser Subject to this reservation, it does not matter whether the improvements have been effected by the present bolder or by some. Previous occupier". Mr. Khandakar argues that this case will show that it is not necessary that the tank in question should be excavated by the lessee or by his predecessor‑in‑interest. It will do if it was shown that it was excavated by any of the previous occupier. Mr. Imam Hussain Choudhury appearing for the plaintifl re4pondent has first of all relied on the wording itself of the fourth exception to section

37. He points out that this exception begins thus : "Lease of lands whereon dwelling, etc.", and, therefore, it must be interpreted that these improvements refer, only to lands under the lease, and, therefore, the improvements mentioned in the exception must be. improvements made by the lessee of the lands in which the improvements are effected or by the predecessor‑in. interest of the lessee of such lands. Further in reply to the two cases cited by Mr. Khandakar, he urges that even in those cases it has not been clearly stated that the improvements effected by the previous occupier. are the improvements made by one who was not lessee or predecessor‑ in‑interest of the lessees. Besides Mr. Imam Hussain Choudhury has relied on the case of Sreemati Akiyannessa and others v. Abdul Gani Sadagar reported in 41 Indian cases, page

1. In that case Their Lordship Mr.4ustice Fletcher and Mr. Justice Richardson have dealt 'with the ease of a tank existing, prior to the lease and. their Lordships observed as follows :‑ "it has been found that dug No. 746 is a tank. It is a tank no doubt and it is a tank, existing from before the defendants lease and, on 'the authorities, of this Court, such a tank is not a protected interest within the fourth exception to 'section 37 of Act XI of 1859". Mr. Imam Hussain Choudhury on the basis of this authority argues that as on the showing of the defendants appellants them selves the tank in question was in existence 100 years ago and there is nothing to show that this tank was excavated by the defendants or their 'predecessor‑in‑interest, the appellants cannot claim the protection made the 4th exception. This learned lower appellate Court also observes: "In the present case the Maghi Chitta of 1838 show that R. S. Plot 573 was .a tank 103 years ago The taluk, as I have shown, did not come into existence until 1915. Therefore the existence of the tank is no protection. The finding, being that the tank was in existence long before the taluk in question was created, in our opinion, the defendants‑appellants are not entitled to the benefit of the 4th. exception to the Section 37 of Act XI of 1859. However, there is some difficulty as to the Western bank of the tank which is a graveyard and the learned judge says that it is not a private graveyard of the defendants. So, although the plaintiff's title to the entire tank, is declared for as already observed, it is not covered by the fourth exception to section 37, the plaintiff' will not be entitled to get khas possession of the grave‑yard which is situated on the western bank of the tank in R. S. Plot No:

513. In the result, this appeal is dismissed with costs with the modification that the plaintiff will not get khas possession of the graveyard, which is, on the western bank of the tank in question in R. S. Plot No.

573. AKRAM C. J.‑

L agree: K.M.A. Appeal dismissed.