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Alli Babi and ors. Vs. Krishna Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberA.F.O.D. No. 16 of 1944
Judge
Reported inAIR1950Ori250b; 16(1950)CLT147
ActsTenancy Law; Madras Estates Land Act, 1908 - Sections 3(15) and 6; Limitation Act, 1908 - Schedule - Articles 142 and 144
AppellantAlli Babi and ors.
RespondentKrishna Sahu and ors.
Appellant AdvocateD.V. Rao, Adv.
Respondent AdvocateB. Das, ;S.K. Ray and ;B.K. Pal, Advs.
DispositionAppeal dismissed
Cases Referred and Doraiswami Naidu v. Hussain Saheb
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....panigrahi, j.1. the unsuccessful plaintiffs in the lower court are the appellants in this appeal. they claimed the suit-lands measuring about 139 bharanams in aainipur, an inam village in attagada estate, by virtue of their long possession and, in the alternative, claimed to have acquired occupancy right in them under the provisions of the madras estates land act. it will be enough to state in broad outline the salient facts giving rise to this claim. one mir ashraff was admittedly the jahagirdar of this village of asinipur, within the limits of which the suit lands are situate. fateh mohammad was his sister's son, to whom he gave his daughter, ali bibi in marriage. plaintiff 1 is the widow of fateh mohammad, plaintiff 2 is his daughter and plaintiffs 3, 4 and 5 are his sons. plaintiffs.....
Judgment:

Panigrahi, J.

1. The unsuccessful plaintiffs in the lower Court are the appellants in this appeal. They claimed the suit-lands measuring about 139 bharanams in Aainipur, an inam village in Attagada Estate, by virtue of their long possession and, in the alternative, claimed to have acquired occupancy right in them under the provisions of the Madras Estates Land Act. It will be enough to state in broad outline the salient facts giving rise to this claim. One Mir Ashraff was admittedly the Jahagirdar of this village of Asinipur, within the limits of which the suit lands are situate. Fateh Mohammad was his sister's son, to whom he gave his daughter, Ali Bibi in marriage. Plaintiff 1 is the widow of Fateh Mohammad, plaintiff 2 is his daughter and plaintiffs 3, 4 and 5 are his sons. Plaintiffs 6, 7 and 8 are the legal representatives of plaintiff 3 who died during the pendency of the suit. The plaintiffs alleged that the lands described in Schedule B of the plaint had been given by the late Jahagirdar, over fifty years ago to his sister, and that they remained in possession of the same for this period. They also alleged that they occupied the suit-lands, described in Schedule C of the plaint, about thirty years prior to the date of the plaint and were in possession thereof till 1936 when they were evicted by an order of the Sub-divisional Magistrate, Chatrapur, in a proceeding under Section 146, Criminal P. C. The plaintiffs further alleged to have been admitted to possession of the suit lands under a registered muchalika dated 22nd November 1923 (Ex. J.) executed by plaintiffs 4 and 5 in favour of defendant l and thereby to have acquired a right of occupancy under the provisions of the Madras Estates Land Act. The contention of defendant 1 was that he purchased the suit-lands, described in Schedule C from the late Jagirdar Mir Ashraff by a registered sale deed dated 8th July 1911 (Ex. D) and that he had been in possession of these lands through his tenants. He also alleged that ha never admitted the plaintiffs into possession of the suit-lands as raiyats. Defendant l filed a suit in the Court of the Subordinate Judge, Berhampur, in O. S. No. 41 of 1925 against Fateh Mohammad and his sons, viz., the present plaintiffs 3 to 5, for ejectment and obtained a compromise decree on 3rd August 1927 (Ex. E/4) whereby the plaintiffs agreed to surrender possession of the suit lauds within 16 days after Magh Purnima day of Fasli 1337. This decree was not executed, but defendant 1 alleges that the plaintiffs surrendered possession in pursuance of the terms of the compromise. On 22nd November 1928 the plaintiffs 4 and 5 executed Ex. J in favour of defendant 1 agreeing to occupy the suit lands, besides some other lands in the village, for a term of two years, But it is said that the plaintiffs neither paid the stipulated rent nor did they vacate the lands after the expiry of the lease. It is further alleged that when defendant 1 sent registered notices to plaintiffs 3 to 5 demanding rent for the preceding years (Exs. 3, 3/a and 3/b) plaintiff 3 disclaimed all knowledge of the muchalika and plaintiffs 4 and 5 replied that the lease deed was a nominal document and that they had not been put in possession of the lands in accordance with the terms of the lease. It is said that the lands were left fallow in 1935 and that in May 1936 defendant l leased them oat to four different persons under four registered kabuliyats (Exs. X, X/1, X/2 and X/3). During the harvest season of that year the plaintiffs out and carried away the crop pertaining to these lands, which led to the institution of a criminal case of theft by Lakhano Goudo, one of the tenants of defendant 1 (under Ex. X/3) and to the initiation of proceedings under Section 145, Criminal P. C. by the Sub-divisional Magistrate, Chatrapur, as there was likelihood of a breach of the peace, who directed the eviction of the plaintiffs from the lands as already stated above.

2. The learned Subordinate Judge who tried the suit found that the plaintiffs had failed to prove their title either by way of a grant or through long possession. He also found that plaintiffs 3 to 5 entered upon the lands as tenants in 1921 (relying upon EX. 0, dated 19th July 1921 executed by plaintiff 5 in favour of defendant 1) and that they were evicted in the year 1928 in pursuance of the terms of the compromise decree dated 3rd September 1937 in O. S. No. 41 of 1925 (Ex. E/4). The learned Subordinate Judge has further found that at the end of the period stipulated in the compromise the plaintiffs did surrender possession of the lauds and again entered upon the lands under a fresh registered muchalika in the year 1928, viz., Ex. J. He accordingly dismissed the plaintiffs' suit.

3. Two points have been pressed by Mr. D. V. Rao, learned counsel appearing for the plaintiff-appellants:

(1) firstly that as the plaintiffs have been found to have been in possession since 1992 upto 1935, they are entitled to claim the suit lands byreason of adverse possession and (a) secondly that since plaintiffs 4 and 6 are alleged to have been admitted into possession and have in fact been in possession for over 12 years all the plaintiffs have acquired a right of occupancy in the lands under the provisions of the Madras Estates Land Act as they all belong to one joint family.

4. It is but fair to state at the outset that Mr. Rao very soon realized in the course of his arguments that his first contention, based on adverse possession could not be substantiated. Whatever might be the nature of the possession prior to the compromise decree, it cannot be said that possession of the plaintiffs remained adverse after the passing of the compromise decree. In the compromise the plaintiffs distinctly admitted defendant's title and agreed to give up possession of the suit lands, but they were allowed to retain the lands as defendant's tenants till Magh Purnima day of Fasli 1337 ; and it is admitted by the defendant himself that the plaintiffs did surrender possession. Even if it is assumed that the plaintiffs did not actually surrender possession, there is still a clear break in the nature of the plaintiffs' possession by reason of their admission of the defendant's title and the agreement to deliver up possession. Adverse possession, in order to confer a title, must be continuous for the fall period of 12 years. This contention must therefore fail and has been rightly abandoned by the learned counsel appearing for the plaintiffs.

5. The second point debated by Mr. Rao is more subtle and attractive. The plaintiffs' argument is that the mustajari lease, Ex. J dated 22nd November 1928, executed by plaintiffs 4 and 5 expressly declared that they were pat in possession of the suit lands; and if it be found that prior to that date the plaintiffs did not, as a fact, relinquish possession, they would be entitled to rely upon their possession from the year 1921--under Ex. C the lease deed executed by plaintiff 5 on 19th July 1921--right up to the year 1936 when they were dispossessed by the Receiver appointed by the Sub-divisional Magistrate. Even if we were to accept the contention of the plaintiffs that defendant 1 never, in fact, took possession of the suit-lands at any time prior to the order passed by the Sub-divisional Magistrate in the proceeding under Section 145, Criminal P. C., the plaintiffs have still to establish actual occupation of the lands as a physical fact in order to support their claim to occupancy right under the Madras Estates Land Act. What Section 3 (15) of the Act contemplates is occupation and not mere possession. Occupation should be actual and cannot be constructive or derivative. Having regard to the pleadings and the evidence in the case, it is difficult to hold that the plaintiffs ever purported to act or claim on behalf of a body of shareholders or on behalf of a joint family. The registered muchalika of the year 1928 was executed by plaintiffs 4 and 5 but defendant 1 regarded plaintiff 3, Abdul Ahad, as one of his tenants and demanded rent in his registered letter dated 15th November 1935 (Ex. 3/b) addressed to plaintiff 3. Plaintiff 3 in his reply (Ex. 4) dated 6th December 1935, expressly repudiated the alleged tenancy and said: ''No land of yours was ever under my cultivation' and further added that he has been in possession of the lands 'only since the death of my father', which admittedly was in 1927. Plaintiff 3, therefore, cannot claim any title under the provisions of the Madras Estates Land Act, nor was such a title set up in the plaint itself. In para. 7 of the plaint it is expressly alleged that :

'Plaintiff 3 was no party to the muchalika and the Sub-divisional Magistrate was wrong in the view that plaintiff 3 was a tenant.'

Plaintiff 3 claimed title by reason of adverse possession and he never set up in the plaint any title under the Estates Land Act. He cannot therefore now turn round and claim title through plaintiffs 4 and 6 particularly in view of his express statement in his registered reply to defendant 1 (Ex. K dated 6th December 1935) that he has no joint family business with plaintiffs 1 and 5 and that their act was not binding upon him. Plaintiffs 1 and 5 also stated in their reply to defendant 1 (Ex. K-1 dated 6th December 1936) that they were not looking after their joint family properties nor did they have any joint family business. They further stated that they did not take possession of the lands under the muchalika and that they were not liable to pay any rent. In their evidence before the Court they repeated these statements. Plaintiff 5 who was examined as P. W. 1, deposed that he had been driven out of the family by his father and that he had no possession of any laud belonging to his father. Plaintiff 4 was examined as P. W. 2 and he deposed that the muchalika which he had executed in 1928 was not carried into effect as he and his brother plaintiff 5, could not take possession 'because our brother Ahad did not give up those lands and the tenants did not give up their lands'. P. Ws. 6 to 9 were examined to prove the possession of the plaintiffs but, as has been observed by the learned Subordinate Judge, their evidence is absolutely worthless and can be of no help to the plaintiffs.

6. The position thus is that plaintiffs 4 and 5 who executed the muchalika in 1938 and may be deemed to have been admitted to possession expressly repudiated their tenancy under defendant 1 and deposed that they were never in possession of the suit lands. Section 3 (15), Madras Estates Land Act defines a ryot as meaning 'a person who holds ryoti land on condition of paying rent due upon it'. The explanation which was added to this definition section in 1934 reads as follows:

'A person who was occupying ryoti land for a continuous period of 12 years shall be deemed to be a ryot for all the purposes of this Act.'

On their own showing plaintiffs 4 and 5 never occupied these lands at any time and it would therefore be an extraordinary interpretation of the section to hold--notwithstanding their express denial--that they were in occupation,

7. Reference was also made to Section 6 of the Act which prescribes that a ryot admitted by a landholder to possession of ryoti land shall have a right of occupancy in his holding. In view of the attitude taken by plaintiffs 4 and 5, it is difficult to hold that they were admitted into possession of the lands in this case. 'Admitted to possession' can only mean an induction by consent or contract between the parties. A person cannot be forcibly inducted upon land by a landholder, nor can such an act be characterized as 'admission'. We have, therefore, no difficulty in rejecting this contention as untenable. The recitals made is the muchlika, cannot avail the plaintiffs.

8. In view of our finding that plaintiff 3 has failed to prove occupation in his own tight and plaintiffs 4 and 5 have expressly disclaimed title through occupation, we have no option but to accept the finding of the learned Subordinate Judge and hold that the plaintiffs' suit hag been rightly dismissed. Plaintiffs 1 and 2 neither alleged, nor proved any independent title. In the result none of the plaintiffs has made out any claim to the suit-lands.

9. This appeal fails and is dismissed with costs.

Jagannadhadas, J.

10. I agree with my learned brother as to the result of this appeal.

11. The two questions that have been raised before us are (1) that the plaintiffs have acquired title to the suit-lands by adverse possession, (2) that in any view they have acquired occupancy rights under the Madras Estates Land Act. In order to decide about the validity of either of these contentions, it is necessary to determine in the first instance the facts relating to the possession of the suit lauds. It is not in dispute that the suit lands originally belonged to one Mir Ashroff and that defendant 1 purchased the same under Ex. D dated 9th July 1911. The earliest reliable material showing the connection of any member of the plaintiffs' family with the suit-lands is a registered muchalika, Ex. C, dated 19th July 1921, executed by plaintiff 5 in favour of defendant 1 for one year. On 24th July 1925 defendant 1 filed a suit O. S. No. 41/25 for ejectment of plaintiffs 3, 4 and 5 and their father, Fate Mohammad, from the suit-lands on the allegation that they unlawfully and unauthorisedly trespassed upon the same in July 1922, that is, presumably on the expiry of the term in Ex. C. On 3rd August 1927 this suit was compromised under Ex. 2 by plaintiffs 3, 4 and 5 who agreed to give up possession to defendant 1 within 15 days of magh fullmoon day of Fasli 1337, which may be taken to correspond to about the end of February 1928. We find next that plaintiffs 4 and 5 executed a muchilika Ex. J in favour of defendant 1 relating to the suit-lands and quite a number of other lands in the village. We have then in November and December 1935, exchange of letters between defendant 1 and plaintiffs, where it is asserted by defendant 1 that plaintiffs 3, 4 and 5 are in possession of the suit-lands and a demand for payment of bhag rent is made on that footing, but plaintiffs 4 and 5 repudiate that they had possession of the suit-lands at any time, while plaintiff 3 asserts that he was under no liability to pay any rent since he was not a party to the muchilika, Ex. J. This is followed by a period of serious dispute about the possession culminating in proceedings under Section 145 in which a preliminary order was made on 1st December 1936 and the property was attached and taken over by the receiver. The facts above narrated show that one or other of the members of the plaintiffs' family has had occupation or possession of the lands from July 1921 to till about the end of 1935, with a possible break between March 1923 and November 1928. The plaintiffs maintain that there was no such break while defendant 1 maintains that in pursuance of the compromise decree, Ex. 2, he obtained delivery of possession and then leased it out under Ex. J to plaintiffs 4 and 5. The learned Subordinate Judge has accepted defendant 1's case that there wag such a delivery. In accepting the case of defendant l in this behalf, the learned Subordinate Judge was considerably influenced by the fact that as a part of the compromise of the suit, O. S. No. 41/25, by Ex. 2, there was the compromise of another litigation then pending between the parties. That related to the dispute of another 61 Bharanams of inam lands in the suit-village which were then in possession of plaintiffs 3, 4 and 5 and their father and which was the subject-matter of O. S. No. 523/1923. That suit was decreed in favour of the present defendant and was pending in appeal in A. S. No. 66/27 at the time of the compromise, Ex. 2. It was also stipulated by the said compromise that defendant 1 was to give up his rights under the decree in O. S. 523/1923. It is not admitted that there has been any execution in pursuance of the compromise decree in O. S. 41/25, nor any restitution in the decree obtained in O. S. 523/ 23. 'The learned Subordinate Judge thinks that this was so, because both the parties observed the terms of the reciprocal compromise and that therefore no steps through Court on either side became necessary, that is to say, that defendant 1 obtained possession under O. S. 41/25 without having to apply for possession through Court. But the learned Subordinate Judge has overlooked that in respect of O. S. 523/23, though defendant 1 had obtained a decree for possession in his favour there is nothing to show that plaintiffs 3 to 6 did not continue in possession pending the appeal and by the date of the compromise. They, therefore, may not have required the assistance of the Court to maintain the possession which they probably had while defendant 1 would have to obtain possession from plaintiffs 3, 4 and 5 whether amicably or through Court. By the compromise plaintiffs 3, 4 and 5 no doubt agreed to deliver possession, but within eight months of the time stipulated for delivery, that is, by the time of the harvesting season, defendant 1 obtained the muchilika, Ex. J, for the suit-lands amongst others from plaintiffs 4 and 5. There is no positive evidence on the side of defendant 1 to show that in between during that period of eight months, he had actual possession of the suit-lands. No doubt there are usual recitals in Ex. J that by its date, the lands covered thereby were in the prior possession of the defendant, but these are the usual kind of recitals in such a document and are not by themselves proof of the truth of the same. Defendant l has not examined himself to show that he did obtain actual delivery of possession and that he carried on cultivation operations during the cultivation season of 1928 in respect of the suit-lands. I am, therefore, unable to agree with the finding of the learned Subordinate Judge that defendant 1 obtained delivery of possession in 1928 in pursuance of the compromise, Ex. 2.

12. I have therefore no doubt that defendant 1 was not in actual cultivating possession of the suit lands at any time between 19-7-21, the date of EX. 0 and 1-12-36, the date when the suit-lands were attached by the Sub-divisional Magistrate in proceedings under Section 145 in M. C. 23/36, EX. H.

13. This, however, does not amount to saying that all the plaintiffs as a group were is possession of the suit lands right through. So far as plaintiffs 1 and 2 are concerned, they have not been shown to have had any kind of connection with the possession of the suit-lands at any time. Plaintiff l is the wife of Fate Mohammad and plaintiff 2 is the daughter. They were not parties to the suit O. S. 41/25, Ex. E, which proceeds on the assertion that it was only plaintiffs 3, 4 and 5 and their father that trespassed on the suit-lands in 1922. Fate Mohammad died pending that suit and the compromise, Ex. 2, was subsequent to his death. They were not on the record at the stags of the compromise decree as legal representatives of deceaasd Fate Mohammad and there is nothing to show that they ever obtained any possession as such legal representatives after Fate Mohammad's death. Plaintiffs l and 2 had therefore no sustainable claim arising out of the possession of the suit lands at any time.

14. As regards plaintiffs 3, 4 and 5, the earlier muchilika of 1921, Ex. C, shows possession in plaintiff 5 alone. The plaint, Ex. B in O. S. 41/25, shows that plaintiffs 3, 4 and 6 were in possession of the suit-lands along with their father and that may be taken to have continued until their father's death. It may be assumed that by the date of the compromise, Ex. 2-A, all the three of them were is joint possession, but it is with reference to the possession subsequent to the compromise, Ex. 2, dated 3-8-27, that the difficulty as to who out of plaintiffs 3, 4 and 5 remained in possession, arises. As to this the plaintiffs have no clear and consistent case. It must be remembered that plaintiffs 3, 4 and 5 belonged to a Mahomedan family and it cannot be assumed either as a matter of law or as a matter of fact that possession of one is the possession of all. With reference to this period, that is, from March 1928, to December 1936, there is no specific case in the plaint, but only the general allegation that all the plaintiffs have been in possession of the suit-lands continuously for about thirty years. Plaintiffs 4 and 5 alone executed the muchilika, Ex. J, in November 1928, and if at all, it may be said that they were in possession of the suit-lands by virtue of that muchilika. When however defendant l gave notice under Ex. 3 to the three brothers on the footing that all of them were in possession, plaintiffs 4 and 5 by their reply, Ex. 4-A, repudiated that they were in possession of the suit-lands or obtained possession by virtue of Ex. J and maintained that their brother, plaintiff S, was in possession from prior to Ex. J. Plaintiff 3 by his reply, Ex. 4, accepted that position. Even in evidence given in the suit that; is also the position taken up by them. Plaintiff 3 having died pending the suit, has not been examined, but plaintiff 4 has examined himself as P. W. 2. He says that the muchilika, Ex. J, was not tarried into effect and that he and his brother plaintiff 6 could not get possession because the other brother, plaintiff 3, did not give up the lands. Therefore he maintains even in the evidence in the suit that by the date of the muchilika, Ex. J, and thereafter, it was plaintiff 3 and not either of plaintiffs 4 and 5, who was in possession of the suit-lands. He no doubt says that plaintiff 3 was joint with them, that plaintiff 3 was cultivating the lands and that he and his brother plaintiff 5 used to get their share of the land from plaintiff 3. But as already stated these parties are not members of a Hindu joint family and in absence of any specific case put forward in the plaint that this family had adopted the Hindu usages in respect of their holding of properties, it cannot be assumed that the possession of plaintiff 3, if any, was the possession of the three brothers. The learned Subordinate Judge was inclined to hold that plaintiffs 4 and 5 when they executed the muchilika, Ex. J, did so on behalf of the entire family of plaintiffs and that such possession as they had under Ex. J was on behalf of the family as a group. I see, however, no justification for any such assumption. When the plaintiffs themselves in the notices exchanged with defendant 1 and also at the trial maintain that plaintiff 3 alone had (possession since 1923, and when there is no allegation that Ex. J was executed by plaintiffs 4 and 5 on behalf of the family, I do not think it is justifiable to find a case that the three brothers formed one legal entity as a group and that the possession of one must be deemed to foe possession of all. On the evidence therefore the only finding relating to possession one can arrive at is that from 1922 to 1928 all the three brothers and their father were in possession of the suit-land, but since 1928 to 1936 it was plaintiff 3 alone that was in possession, But there is nothing to show how the possession of plaintiff 3 for the latter period was in any way derived from the possession of the father and three brothers during the earlier period so as to enable the possession of the two periods to be tacked on.

15. On this finding clearly no question as to any extinction of title of defendant 1 by adverse possession can arise. Apart from it, however, even if for argument's sake the possession of plaintiff 3 since 1928 is to be treated as possession on behalf of the family, it does not follow that the plaintiffs have acquired any title by adverse possession. The argument of the learned counsel for the appellant is that as a fact the possession was continuous from 1922 to 1936 and the mere existence of the compromise decree, Ex 2, does not interrupt that adverse possession. This might have been the correct position, if Ex. 2 were not a compromise decree. As stated by the Privy Council in Subbayya Pandaram v. Mahomed Mustafa, A.I.R. (10) 1923 P.C. 175 : (46 Mad 751), a mere declaration about the title of the plaintiff in a decree against the defendant who was in actual adverse possession by the date of the suit and who continued in possession in spite of the declaration, does not interrupt adverse possession, but on the other hand it emphasizes the fact that possession was adverse. This principle, however, can have no application where the defendant himself by the compromise in the decree admits the title of the plaintiff and undertakes to give up possession treating himself as a person holding per. missive possession. In the Privy Council case above cited, the declaration was on contest and therefore there was no change in the animus of the possessing party. But where, there has been a compromise and admission of title of the plaintiff and acceptance of the character of permissive possession of the defendant, it is obvious that adverseness of possession has been terminated and that the continuance of the possession after the decree is prima facie only permissive. The recitals in Ex. 2 make it clear that plaintiffs 3, 4 and 5 who were parties thereto, accepted the title of defendant 1 and of their continuing in possession on a permissive footing. The case of the acquisition of the plaintiffs' title by adverse possession is therefore unsustainable,

16. Learned counsel for the appellant, however, has therefore mainly concentrated his arguments on the case of acquisition of occupancy rights under the Madras Estates Land Act. There can be no doubt that defendant 1 who is the purchaser of Darmilla Inam lands from the Jagirdar, Mir Ashraf, is a land-bolder under the Madras Estates Land Act. Plaintiffs' counsel accordingly relies both on Section 6 as well as Section 3, Sub-section (15), Explanation. Under Section 6 a persen admitted by a landholder into possession of a ryoti land as a ryot acquires occupancy rights in respect of those lands. It is argued that there has been such an admission to possession as a ryot of one or other members of the family either under Ex. 2 or Ex. J, or by virtue of the demand for payment of rent under Ex. 3. This argument proceeds on the assumption that the possession of one or other members of the family is to be treated as possession of the group, an argument which I have held to be untenable, I am also inclined to think that none of the transactions indicated in Exs. 2-J and 3 can be treated as amounting to admission to possession as a ryot. Under Ex. 2 no doubt it is recited that the present plaintiffs 3, 4 and 5 will retain the suit lands as defendant 1's tenant until Magh full-moon day of Fasli 1337 and deliver 1/2 share of the produce of the suit-lands to defendant 1 and then deliver up possession to defendant 1 within 15 days thereafter. It is hardly right to construe this as amounting to an admission to possession as a ryot, merely from the lax use of the word 'tenant'. It has been held in the case in Venkatachala Naidu v. Ethirajammal, A. I. R. (8) 1921 Mad. 65 : (44 Mad. 220), that Section 6 does not apply to a mere trespasser in possession of the suit lands. The suit against the plaintiffs by defendant 1 which ended in compromise was filed on the footing that they were trespassers. The fact that they were permitted to continue in possession to realise the crops that they had already raised, cannot be construed as an admission to ryoti possession.

17. As regards Ex. J there are no doubt various recitals therein which entitle the lessee to cultivate the lands comprised therein, but the lease itself is in respect of a very large extent covering about 1400 Bharanams of land, while the suit lands are only 215 Bharanams. It would appear from the reply notices given by plaintiffs 4 and 5 themselves that most of the lands covered in Ex. J were in possession of the tenants. It is, therefore, somewhat debatable whether Ex. J was not in the nature of a Mustajari lease where the Mustajar had the right to bring unoccupied and waste lands into cultivation. Such a person is not one that can by virtue of that lease as such be treated as entitled to the benefits of Section 6 (see Suri Setti Butchayya v. Parthasarthy Appa Rao, A. I. R. (9) 1922 P. C. 243 : (44 Mad. 855) and Subba Rao v. Narayanaswami Naidu, A. I. R. (1) 1917 Mad. 399 : (36 I. C. 727)).

18. As regards the argument that the demand for rent under Ex. 3 would itself constitute an admission to possession as a ryot, that might have been so, if the persons so demanded accepted their liability under the demand. Such a demand can only be used as an element from which implied tenancy can be deduced, but it is not by itself enough to constitute tenancy. (See Deo Nundan Pershad v. Meghu Mahton, 34 Cal. 57: (5 C. L. J. 181)). In the present case out of the three persons from whom the rent was demanded, two, that is, plaintiffs 4 and 5 deny that they ever had any possession and plaintiff 3 repudiates that he was in any way bound by the lease, Ex. J, and claims to have been in independent possession hostilely to defendant 1. It is, therefore, impossible to treat this demand Ex. 3 as in any way helping the plaintiffs.

19. The next argument on which the claim for occupancy rights is pressed on behalf of the plaintiffs is that apart from any question of admission to possession as ryots, the plaintiffs have been in continuous occupation of the lands from 1922 to 1936. It is, therefore, urged that on account of the definition of the word 'ryot' under Section 3, Sub-section (15), Explanation, taken with Section 6, Madras Estates Land Act, the plaintiffs are entitled to occupancy right. Section 3, Sub-section (15) defines the word 'ryot' as follows:

''Ryot' means a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the land-holder the rent which is legally due upon it.

Explanation.--A person who has occupied ryoti land for a continuous period of twelve years shall be deemed to be a ryot for all the purposes of this Act.'

20. Plaintiffs' counsel strongly relies on this explanation. But the difficulty in the way of the plaintiffs is that on the facts, as found, there is no continuity of occupation by any one single person or a single unit. It is only on the assumption that the possession of one, out of plaintiffs 3, 4 and 5 is the possession of all, that there is room for this contention of the plaintiffs' counsel. This, however, I have found against as a fact. This contention therefore is equally unsustainable.

21. The real difficulty of the plaintiffs in this case on the question of occupancy rights is the shifting cases that they have put forward at various stages with reference to possession and the specific claims that they have made in their plaint of occupancy rights in plaintiffs 4 and 5 only. In para. 7 of their plaint they have stated that plaintiffs 4 and 5 are to be considered as occupancy ryots of the suit lands by virtue of the provisions of the Madras Estates Land Act, On the findings it is plaintiff 3 that was in possession by the date the suit-lands were attached in proceedings under Section 145. On their own showing their possession, if any, which may have; been joint with plaintiff 3 had ceased to exist long ago.

22. As the learned Subordinate Judge has pointed out, the question of occupancy right of the plaintiffs, though raised in the pleadings, does not appear to have bean, seriously fought out at the stage of the trial, apparently on account of the difficulties that have been pointed out with reference to their shifting cases as regards possession. There is also the difficulty that there is no clear proof whether the suit-lands are ryoti lands or private lands, but if that was the only difficulty, we might have considered on its merits the request of the plaintiffs' counsel for a further opportunity to be given to clarify the question as to whether these lands are private lands or ryoti lands. It is unnecessary to deal with that request in view of the conclusion that we have come to.

23. In the result, therefore, I agree that the appeal fails and must be dismissed with costs.

24. After conclusion of the hearing reference has been handed up to us on behalf of the appellants to two cases in Ramaswami Aiyar v. Ramayya, A. I. R. (28) 1941 Mad. 571: (200 I. C. 333) and Doraiswami Naidu v. Hussain Saheb, A. I. R. (13) 1926 Mad. 975 : (97 I.C. 767). They do not touch any of the questions discussed above.


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