JUDGMENT 1. This is an appeal by one of the Defendants, and it arises out of a suit instituted by a purchaser at a sale for arrears of Government revenue to recover possession for certain lands in two villages Alipore and Darbarhpore. The Plaintiff's case seems to have been that the Defendants held the lands as a taluk created after the Permanent Settlement, and, as such, they have no right as against the auction-purchaser. The Defendants pleaded that the lands were their raiyati created before the Permanent Settlement, and hence they could not be ejected. They also stated that they had built valuable dwelling-houses, planted gardens, excavated tanks on portion of the lands and hence the Plaintiffs were not entitled to get khas possession thereof. The Munsif found that the tenancy of the Defendants was raiyati, and that they were holding the lands as resident occupancy raiyats and as such could not be ejected. He accordingly dismissed the Plaintiff's suit. The District Judge on appeal by the Plain tiff found that the Defendants were in possession as talukdars, and not as raiyats and that they had not proved that their taluk existed from before the Permanent Settlement, and were nor, therefore, protected form ejectment under sec. 37 of the Revenue Sale Law; and he was of opinion that the Plaintiff was entitled to recover the property in suit save and except such portions of the lands as were covered by dwelling-house, gardens, etc. In making this reservation in favour of the Defendants, the District Judge proceeded upon exception (I) of sec. 37 of Act XI of 1859; and there being no precise evidence as to the exact position of those lands, he directed that it should be left; for determination in the execution proceedings. Against this judgment, the main appeal is by one of the Defendants, and a petition of cross-objection has been presented on behalf of the Plaintiff. On behalf of the Defendant-Appellant it has been, in the first place, contended that the proceedings in certain suit, upon which the Court below mainly proceeded in holding that the interest held by the Defendants was that for a taluk and not raiyati, are no evidence against the appealing Defendant, he being no party therein. In the next place, it has been contended that having regard to the true meaning of the 4th exception of sec. In the next place, it has been contended that having regard to the true meaning of the 4th exception of sec. 37 of the Revenue Sale Law, the whole of the lands comprised in the Defendant's lease are protected; and in support of this contention, the learned vakil for the Appellant has relied upon the case of Kiron Chunder Roy v. Naimuddi Talukdar ILR 30 Cal. 498 (1903). 2. So far as the first-mentioned contention is concerned, we observe that no objection was raised in the Court of first instance as to the exception of the proceedings in the suits to which reference has been made as evidence in the cause. But however that may be, we find that those suits were instituted against the then Defendants, who were some of the members of the Defendant's family, in their representative capacity and as such, they are evidence against the appealing Defendant. Besides, there is other evidence, as noticed in the judgment of the lower Appellate Court showing that the Defendant's interest was always treated and regarded as taluk, and not raiyati; in the opinion of that Court, they (the Defendants) have not proved that their tenancy was raiyati. That being so the first contention raised by the Defendant-Appellant fails. 3. Then, as to the other contention that has been urged before us, the finding of the Court of Appeal below really amounts to a finding that the interest of the Defendants is a taluk falling within the description mentioned in exception (3) of sec. 37 of the Revenue Sale Law, but without any registration thereof, and, as such, it is not protected from the auction-purchaser's claim. It has, however, been held in several cases, some of which we shall presently refer to, that though a person may fail to prove a defence under exception (3) of sec. 37 of the Revenue Sale Law, it is still open to him to plead that he is protected under the 4th exception. And the question that is raised here is whether the decree of the Court below, so far as it exempts only the lands on which the dwelling-house, gardens and tanks stand, is correct. 37 of the Revenue Sale Law, it is still open to him to plead that he is protected under the 4th exception. And the question that is raised here is whether the decree of the Court below, so far as it exempts only the lands on which the dwelling-house, gardens and tanks stand, is correct. We observe that no lease or leases have been produced by the Defendants in the case, so as to enable the Court to see whether such lease or leases cover the whole of the lands in suit; and this fact, to our minds, distinguishes this case from the case reported in Kiron Chunder Roy v. Naimuddi Talukdar ILR 30 Cal, 408 (1903). In that case, there was a lease produced by the Defendant covering the whole of the lands in suit, and the learned Chief Justice held that, it being found that there were gardens and tanks on the land, and that there was only one lease covering the whole of the lands in suit, the lessees had brought themselves within the 4th exception. We then find that the question how far, and to what extent, a Defendant claiming exemption under exception (4) of sec. 37 of the Revenue Sale Law can be protected from ejectment was considered by this Court in several other cases. The first case we desire to mention is the ease of Bhago Bibee v. Ramkanto Roy ILR 8 Cal. 293 (1877). In that case, White, J., who delivered the judgment of the Court, after expressing a doubt whether a Defendant failing to show that his tenure conies within the first, second or third exception of sec. 37 of the Revenue Sale Law was entitled to claim benefit under the 4th exception in respect of a dwelling-house or other permanent structure that may be upon the land, held that, having regard to the previous cases upon the point (which were referred in his judgment) he was nor prepared to disagree with the view that had already been adopted. He expressed himself as follows:--"But as there appears to be no conflicting decisions on the point and the rulings of this Court have unquestionably a tendency to encourage improvement on the lands and to mitigate the severity of the Revenue Sale Law, I am willing to acquiesce in their application to the present case." And he accordingly held that the Plaintiff's claim should be limited to such lands as were applied to agricultural purposes but as regards the remaining lands on which structures had been erected or improvements made of the character mentioned in the 4th exception of sec. 37, the Defendants were entitled to them, they paying rent for the same. The same view was adopted in the case of Ajgur Ali v. Asmut Ali ILR 8 Cal. 110 (1881), where a similar doubt as was expressed by White, J., in the case of Bhago Bibee v. Ramkanto Roy ILR 3 Cal. 293 (1877), was also expressed; but notwithstanding this doubt, this Court agreed with the earlier decision upon the matter. And they observed as follows:--"We think it clear, however, that the benefit of the 4th exception must be limited to improvements effected bona 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." These cases, we find, were followed in the case of Gobind Chundra v. Joy Chundra ILR 12 Cal. 327 (1885). There being, therefore, a current of decisions in favour of the view that has been adopted in this case by the Court below, we think that we should follow them and hold that the District Judge is right in exempting from the Plaintiff's claim only such portions of the land as are covered by buildings, tank, etc., etc. We may here mention that the propriety of the judgment of the Court below was not questioned on behalf of the Respondent, his contention being only to the effect that there being no evidence in the case as to the true position of the lands occupied by dwelling-houses and gardens, the matter should not have been left for determination in the execution proceedings, but rather the suit should have been decreed in toto, the Defendant having failed to adduce such evidence as they ought to have adduced in this case. We think that, in the circumstances of the case, the direction given by the Court below is just and proper. And we find that the same direction was given by the late Sudder Dewani Adalat in a case reported in Brij Sunday v. Goury Persaud S.D.A. for 1862, p.645 which, we may here mention, is the earliest case upon the matter. For these reasons, we think there is no just reason to interfere with the decree of the Court below in this case. The result is that both the appeal and the cross appeal are dismissed. Each party will bear his own costs. Appeal and cross appeal dismissed.