1. The respondent is the manager of the Rameswaram Devasthanam. The appellant is the lessee of a village forming part of the endowment of the Devasthanam. The respondent proceeded under Section 39 of the Rent Recovery Act (Act VIII of 1865) in respect of arrears of rent due for fusly 1311 under the terms of the lease.
2. The legality of the distraint is impeached on behalf of the appellant and in support of his contention reliance is placed on the concluding portion of the opinion of the Pull Bench in Nallayappa Fillian v. Ambalavana Pandara Sannadhi I.L.R. 27 M. 470. No doubt the cases referred to therein have been overruled by the opinion so far as they proceed on the supposition that the word tenant as defined in Section 1 of the Act is applicable to an intermediate land-holder who has to pay rent to a superior land-holder. We do not, however, understand this passage to lay down that an intermediate land-holder bound to pay rent to a superior land-holder is not a tenant within any of the other provisions of the Act as in effect contended for on behalf of the appellant. If that were the meaning of the Full Bench there was no necessity for the guarded and qualified language used and quoted above. The opinion would have been directly to the effect that intermediate land-holders paying rent to superior land-holders were not tenants for any purposes whatsoever under the Act. This certainly would have been the case as the prior Pull Bench case in Lakshminarayana v. Venkatarayanam I.L.R. 21 M. 116 quoted in the opinion with approval explicitly proceeded on the footing that intermediate landholders bound to pay rent to superior land-holders were tenants within the meaning of the Act for some of the purposes though not tenants within the meaning of Section 3. We are unable, therefore, to accept the argument that the respondent was altogether disentitled to take proceedings for the recovery of the rent under the Act, nor do we see anything in the language of Sections 38 or 39 to confine the operation of those sections to oases where the tenant proceeded against is a cultivating tenant to whom Section 3 is applicable. Section 38, no doubt, refers to land-holders referred to in Section 3 but the respondent here is undoubtedly such a land-holder, The true effect of this reference is Section 38 to land-holders mentioned in Section 3 is to exclude land-holders falling under the second para of Section 1, namely, all holders of land under ryotwari settlement or in any way subject to the payment of land revenue direct to Government and all other registered holders of land in proprietary right from resorting to the remedy made available by those two Sections 38 and 39
3. We think the claim for damages set up by the appellant is not a matter to be considered in this litigation. The second appeal fails and is dismissed with costs.