Jagannadha Das, C.J.
1. This appeal arises out of a suit filed by the plaintiff for ejectment of the defendant and for mesne profits. The suit-land admittedly belonged to one Gora Misra. The plaintiff claims title thereto by virtue of a sale-deed dated 19-1-44, executed in his favour by the widow of the said Gora Misra. The defendant is the cultivating tenant of the land. According to the plaintiff, he was let into possession by the vendor of the plaintiff under an unregistered lease-deed, Ex. 2 dated 10-3-41, about four years prior to the date of the suit. Since the defendant has denied the title of the plaintiff and his vendor, the plaintiff has filed the present suit for ejectment.
The defendant's case is that he had been in cultivating possession of the suit-land for long time even under Gora Misra and that after Gora Misra's death, one Magata Misra, the adopted son of Gora Misra succeeded to the property and that though for sometime after Gora Misra's death he was paying rent to the vendor of the plaintiff he was so paying only in her capacity as the guardian of the minor Magata Misra, that he has recently attorned to the said Magata Misra himself, who is looking after his affairs and that the plaintiff has no title to sue. He denies the genuineness of Ex. 2 and also claims that in any case, he has got occupancy rights in the suit-land under his cultivation, and cannot be ejected.
2. The Court below accepted the plaintiff's case and gave a decree for ejectment of the defendant and also for payment of mesne profits for 1944 and subsequent years until delivery at the rate of 27 Putties of paddy and Rs. 30-8-0 cash per year. The defendant has accordingly brought up this appeal to this Court.
3. This plea of want of title in the plaintiff and his vendor raised by the defendant on the ground that the property of Gora Misra devolved on his adopted son, one Magata Misra, can no longer be sustained on the merits and the evidence, in view of the decision which we have just pronounced in the connected First Appeal No. 13/47, arising out of a suit between the said Magata on one side and the plaintiff's vendor and the plaintiff on the other. The defendant hereinwas a witness in support of the adoption in that suit. In that appeal we have held agreeing with the judgment of the Court below that the adoption has not been proved. That plea has, therefore, no substance and is not tenable on the evidence. The only question which has been, therefore, argued in this appeal, is whether the defendant has occupancy rights or is liable to be evicted.
4. At this stage, it is necessary to mention that it has been brought to our notice that after the filing of this appeal in 1947, the Orissa Tenants Protection Act of 1948 came into force in 1948. By Section 4 of the said Act, all proceedings for eviction of tenants from their lands were statutorily stayed and the stay continues in operation inasmuch as the duration of the Act has been extended by later legislation. It would appear, therefore, prima facie that we cannot finally dispose of this appeal at this stage. It has been contended, however, on behalf of the respondent that the appellant is not a tenant under the Act and is not therefore entitled to protection by way of stay. That question has therefore to be decided.
5. To appreciate this contention, it is necessary to notice the findings of the Court below and the respective contentions that arise thereupon. As has been stated above, the plaintiff's case is that the defendant has been let into possession as a temporary tenant under a terminable tenancy evidenced by the lease-deed, Ex. 2, dated 10-3-41 and that he had forfeited the tenancy since he denied the title of the plaintiff's vendor. According to the defendant, Ex. 2 is not genuine, and, he has been in cultivating possession for an unbroken period of over 20 years and is a raiyat with occupancy rights in the land. The learned subordinate Judge has held Ex. 2 was genuine, but that the defendant has not been let into possession under Ex. 2. He held that the defendant had been in continuous cultivating possession of the land even prior to the execution of Ex. 2 and for over 20 years as claimed by him. He has, however, found that the defendant has no occupancy rights inasmuch as in his view the defendant was put in possession of the land by Gora Misra and the land is a private land but not a raiyati land to which Section 6 Madras Estates Land Act may apply. On the merits of the appeal, the appellant contends that the view of the learned subordinate Judge that the suit land is a private land, is totally erroneous, and based on a misconception as to what is a private land. He contends that the suit-land is ryoti land and that he is a raiyat entitled to the benefit of Section 6, Madras Estates Land Act and that therefore he cannot be evicted. The respondent, apart from contesting these arguments raised on behalf of the appellant, contends that the appellant cannot be said to be a tenant falling within the definition of the said word in the Orissa Tenants Protection Act, unless it is found that the plaintiff owns more than 33 acres of land. He relies for this contention on Section 2(g) of the Act taken with Exception (3) thereto. Before, therefore deciding whether or not the statutory stay applies to this case, the question raised by learned counsel for the respondent that the defendant is not a tenant under the Act has to be decided. The definition of the word 'tenant' on which the respondent relies taken with the exception may be read as follows: 'Tenant' means
'a person who, under the system generally known as Bhag, Sanja, Kata or such similar expression, cultivates the land of another person on condition of delivering to that person (1) either a share of the Produce of such land, or, etc.'
'shall not include except in Sections 6, 7, 8, and 10 a person cultivating the land of a raiyat when the total extent of the land in the possession of such raiyat on 30th November 1947, did not exceed thirty-three acres.'
The contention of the learned counsel for the respondent is that the case comes within the exception above-mentioned and that the preliminary question of fact, viz., as to whether the respondent owns more than thirtythree acres has now to be decided. He' urges that since that question has now become material subsequent to the filing of the appeal, a finding should be called for in respect of that issue by allowing opportunities to both sides to adduce evidence thereon. It appears, however, that on the facts as decided in the present case, such a course is not called for. Before the respondent can claim that the appellant is not a tenant under the Act, by virtue of Excepn. (3) to Section 2 (g) of the Act, the respondent must have been shown to be a raiyat. The word 'raiyat' has been defined in Section 2(f) of the Act and includes a 'ryot' in relation to any land situated in Ganjam and Koraput Districts. The suit-land being in Koraput District, it would follow that the plaintiff must make out that he is the 'ryot' of the (land?), so that there may be a reasonable basis for his claiming the benefit of the above-mentioned exception. The word 'ryot' in the Koraput District, where the Madras Estates Land Act is in force, has to be understood with reference to the definition therein. It would follow that if the plaintiff cannot be said to be a 'ryot', according to the Madras Estates Land Act, the 'exception' cannot be availed of by him irrespective of whether he is the owner of less than thirty-three acres or more, For this limited purpose, therefore, we have to see whether the respondent-plaintiff holds the land from the Jeypore Estate as a 'ryot'.
6. The learned Subordinate Judge has, as already stated, found, that the suit-land is a private land. If he meant to find that the plaintiff was a 'landholder' within the meaning of that term, in the Madras Estates Land Act, but that the suit-land was his private-land, this finding would not bring his case within the above exception, because the defendant' would then be a tenant under a 'landholder' and not under a 'raiyat'. But apart from this the finding of the learned subordinate Judge that the suit-land is private-land is based on misconception and is erroneous. His finding is based on the view that the evidence shows that Gora Misra and his ancestors were cultivating this land in Khas with their own plough and servants and he thinks that this is enough to bring it within the category of 'private-land' as defined in Section 3(10), Madras Estates Land Act. He has failed to notice that as per that definition, the evidence that the land has been cultivated by the land-holder personally with his own plough and personal servants is not enough to make a land 'private land'. It must be shown that such cultivation extended for a continuous period of 12 years immediately before the commencement of the Act. The Madras Estates Land Act having come into operation on 1st, July 1908, this means that the relevant period of personal cultivation must be proved to have been from 1st July 1896, to 1st July 1908, before it can be found that land is 'private'. On this, no evidence has at all been given in the case. It is clear, therefore, that the finding of the learned Subordinate Judge that the suit-land is private-land is erroneous. It follows also that in view of the presumption under the said Act that every landin an estate is ryoti-land, until the contrary is. made out, the suit-land must be taken to be ryoti-land.
7. As regards the relationship under which plaintiff's predecessors-in-title held the land under the Zamindar of Jeypore, i.e. whether as a ryot or as sub-land-holder, the following facts require to be noticed. The suit-land has been described as Dana Inam in the plaint schedule which according to the specific averment in para 3 of the plaint, is to be read as part thereof. The plaintiff himself in his evidence as P. W. 2 stated as follows:
'The disputed land is a Dana Mokhasa, granted to Gora Misra's ancestors by the grand-father of the late Maharaja of Jeypore. My father was a tenant in this land when this Dana Mokhasa was granted. I hear that this grant was made about 80 or 90 years back and I hear that the grantee was one Narayana Misra. I have not seen the grant.'
In the absence of the deed of grant, there is no reason why this admission in the plaint that the land is a Dana Inam and the reiteration thereof by the plaintiff in his evidence, should not be accepted and acted upon. If the suit-land is a Dana Inam, the only relevant question that arises for consideration, in such cases, under the Madras Estates Land Act, is whether it is an Inam which continues to be a part of the assets of Zamindary so as to make the Inam a part of the estate of the main land-holder, or whether it is outside the assets of the Zamindary, the superior right therein belonging to the Government.
This distinction is somewhat loosely referred to in practice as raising the question whether the disputed Inam is a Darmilla Inam or an enfranchised Inam. The learned subordinate Judge having been misled by the word 'Darmilla Inam' was inclined to think that there was no proof that this land was granted prior to the permanent settlement, and that the vague evidence of the plaintiff as P. W. 2 without any personal knowledge that the Inam was granted 80 or 90 years ago, cannot be acted upon. He did not realise that it is immaterial for this purpose when an Inam was granted, that is. whether before or after the permanent settlement, but that what is necessary, is irrespective of the date of the grant of the Inam, information on the question as to whether the Inam was included in the assets of the Zamindary or excluded therefrom.
This question is not difficult for determination in an individual case arising in the Madras or ex-Madras area, because, almost invariably all Inams that were excluded from the assets of the Zamindary and in which the Government had kept to themselves the ultimate right of reversion, were in fact systematically dealt with by the Inam. Commissioner by way of enfranchisement or confirmation. An Inam of this kind, which appears to be a personal Inam, would as a matter of course, have been enfranchised, if this was not included in the assets of the Zamindary. If therefore the suit-lnam is a minor Inam excluded from the assets and to which therefore the Estates Land Act does not apply, the plaintiff would clearly have been able to produce an extract from the fair-Inam-Register of this village to show that it is an enfranchised Inam, which he has done. It cannot also be said that the non-production of any such fair-Inam extract is due to this question not being of any importance at the stage of trial, because it is well known that if the inam is an enfranchised minor Inam, no plaintiff coming to Court and meeting a plea of occupancy right of the defendant, would have failed to produce the fair-Inam extract of theland, if any, since it is well established that a tenant of enfranchised minor Inam has no occupancy rights. There can be, therefore, no room for doubt that the suit land is an Inam which must be taken to have been and to be continuing as part of the Jeypore Estate and not outside it. It follows that since the land is a ryoti land already above shown, the Inamdar would come within the purview of the word 'landholder' as defined in the Madras Estates Land Act, unless the original grant made by the Zamindar to the original grants shows clearly that the grant was nothing more than a grant to a person to cultivate it on a perpetual favourable rent and as an Inam. See --'Narayanaraju v. Suryanarayadu', AIR 1939 PC 244. In view of the admission of the plaintiff that he has not seen the grant, it may be taken that the grant is not available to him. Accordingly this essential fact which may have made it possible for him to prove that he or his predecessor-in-title held merely as a ryot of the Zamindar & not as an Inamdar or sub-landholder cannot be substantiated. Indeed, the admission that the suit-land is characterised as an Inam would prima facie go against it. In this view of the matter, therefore, Excpn. (3) of Section 2 (g), Orissa Tenants Protection Act of 1948, sought to be relied upon by learned counsel for the respondent cannot apply to this case. It follows that the defendant-appellant would clearly be a tenant under the Orissa Tenants Protection Act and consequently the provisions of the Act would apply to him.
8. Having regard to the view that we have taken above of the facts and/or the law relevant to this matter, for the limited purpose of deciding as to the applicability of the Orissa Tenants Protection Act, in this appeal, it would follow as a matter of law that the defendant is a raiyat entitled to the benefits of Section 6, Madras Estates Land Act having occupancy rights and that he cannot accordingly be ejected.
9. In view, however, of the statutory stay we cannot dispose of this appeal and give effect to the above finding at this stage by allowing the appellant's appeal. That order must accordingly be deferred until the statutory stay gets terminated.
10. Further orders in this appeal must be held up and this appeal must be adjourned sine die. The appellant tenant, however, will be subject to liability under Sub-sections (4) and (6) of Section 4, Orissa Tenants Protection Act, 1948, during the operation of the stay.
11. I agree.