P L D 1967 Dacca 276 (PLP)

Mr. Debesh Chandra Bhattacherjee, learned Advocate on behalf, of the appellant has contended that the lower appellate Court erred in law in holding that defendant No. 2 had protected interest in the disputed plot No. 796, notwithstanding the finding of the learned Subordinate Judge that it is a narrow and long passage to the buildings within the boundary wall of the land commonly known as Ispahani Colony. The learned Munsif held that some portion of the case land was covered by buildings. But the learned Subordinate Judge did not hold that there was any building on any portion of the case land. The learned Subordinate Judge held that the suit land was the only passage to the Ispahani Colony covered by a number of buildings and that, as such, it is to be treated as a part and parcel of the pucca buildings. The learned Subordinate Judge made the following remarks:‑ .. . . . . the suit land is the only passage to the Ispahani Colony covered by a number of pucca buildings. Therefore, the suit lard should be treated as a part and parcel of the pucca buildings. In that view of the matter I agree with the learned Munsif that the contesting defendant is liable to be protected from evicting in respect of the suit land." Where a person claims exemption from the provisions of the Revenue Sale Law which entitle a purchaser to annual incumbrances in respect of land in his possession, the benefit of the 4th exception to section 37 of the AN must be limited only to such‑ portions of land as are covered by buildings, tank, etc., and cannot be extended to cover those lands included in the lease on which buildings and tanks, etc. have not been constructed. This view finds support in the case of Wahid Ali and others v. Rahat Ali (12 C W N 1029) Jogendra Narain Roy Chowdhury v. Rai Kiran Chandra Rai Bahadur and others (23 G W N 315) and Hem Prova Debi v. Sarat Chandra Basu and others (51 C W N 134). In the present case, as there is a passage only over the case land, it cannot be regarded as protected interest. Mr. Syed Amjad Hossain, learned Advocate on behalf of the respondent has contended that the case land is to be treated as a part of the buildings as it lies within the Ispahani Colony and is surrounded by a boundary wall and that, as such defendant No. 2 had got protected interest in it. In support of this contention, the learned Advocate has relied on the definition of building as given in serial No. 25 at page 350 in Stroud's Judicial Dictionary, 3rd Ed. The meaning of building as given in it is as follows:‑ " building' and `house', respectively, include the cartilage of a building or house, and include a building or house wholly or partly erected under statutory authority." For the meaning of the term curtilage, the learned Advocate has referred to The Oxford English Dictionary, Vol. 11, 1933 Ed. at p. 1278. The meaning of cartilage as given there is "A small court yard, garth, or piece of ground attached to a dwelling‑house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling‑house and its out buildings". But the above meaning of "building" as given in Stroud's Judicial Dictionary, 3rd Ed. at p. 350 is quoted from Public Health (London) Act, 1891 (54.and 55 Vict., c. 76). The definition of building as given in the above Act would not include buildings in general. ' "Building" as explained in Law Dictionary with Pronuncia tions by James A. Ballentine, 1948 Ed. at p. 176 is "A fabric built or constructed, a structure; an edifice." 'In the Oxford y English Dictionary, Vol. 1, 1933 Ed. at p. 1162, "building" has been meant as "a structure, edifice: now a structure of the nature of a house built where it is to stand." The learned Advocate on behalf of the respondent could not produce any decision in support of his contention that a narrow passage leading to buildings standing on a space surrounded by the same boundary wall is to be treated as a part of those buildings. In the case of Kiron Chunder Roy v. Naimuddin Talukdar (I L R 30 Cal. 498) it has been held that the entire leased land on any part of which a house is situated, is protected. This case of the year 1903 has not been followed in any other case. I cannot agree with the view expressed in it. The decision of the Courts below holding that the land corresponding to plot No. 796 is protected and dismissing the plaintiff's claim regarding it cannot be upheld. Plaintiff is entitled to get a decree with regard to this land. The appeal is allowed, the decision of dismissal relating to plot No. 796 of the Courts below is set aside. The suit is decreed against defendant No. 2 and the plaintiff's right and title to plot No. 796 is declared. Plaintiff do get khas possession of this plot on ejectment of defendant No. With this modification, the judgment and decree passed by the lower appellate Court are armed. In circumstances of the case, I pass no order as to costs in this appeal. The learned Advocate on behalf of the respondent prays for leave to appeal under clause 15 of the Letters Patent. The prayer is granted. S. Q. Appeal allowed.