Frederick William Gentle, C.J.
1. These two letters Patent Appeals have been referred to a Full Bench; each arises out of a land suit instituted, under the provisions of Section 77 of the Madras Estates Land Act, 1908, in the Court of the sub-Collector of Narasapatam division, district of Vizagapatam, by the receiver of an estate known as Kota Uratla. The defendants are the tenants; the suits relate to the same land, but in respect of different faslis ; the claims made were for rent and, in one case, for sale of, and in the other, for creation of a charge upon, the holding, to recover the rent. It is common ground that, formerly, the lands were ryoti lands, but, according to the plaintiff, they have been converted into private, or home farm lands, which is denied by the defendants. The suits and proceedings leading to the present appeals have been heard together and there was one judgment in each point. The reference of the appeals to a Full Bench was made by reason of the conflict between two Division Bench decisions of this Court, Sreemanthu Raja rarlagadda Mallikarjun v. Subbiah (1999) 39 M.L.J. 277 and Veerabadrayya v. Zamindar of Vallur (1926) 52 M..L.J. 38 : I.L.R. Mad. 201 upon the question of the conversion of ryoti into private lands.
2. A suit to recover rent of ryoti land can be instituted only in a Revenue Court. Such Court has no jurisdiction to entertain a suit for recovery of rent of private land ; a Civil Court, alone, has such jurisdiction. Nevertheless, in the plaints, it is alleged that the lands in suit are private lands. In a suit for recovery of rent of private land, sale of the holding or a charge over it, in case of non-payment, does not arise ; it arises only in a suit for rent of ryoti land in which the tenant has occupancy rights.
3. In his judgment, the Sub-Collector first held that the lands were formerly private lands, ; he went on to observe that there was no evidence that they ceased to be private lands, yet it must be presumed they ceased to be such lands as the suits were instituted in a Revenue Court, and therefore, they became ryoti lands and the defendants became occupancy ryots when the suits were filed. He proceeded to fix a fair and equitable rent on the basis that they were ryoti lands. Having fixed the rent, he found that the amount due had been entirely discharged by the defendants. It followed from his judgment that, as the rent had been discharged, sale of the holding or creation of a charge upon it for recovery of rent would and could not be ordered.
4. The plaintiff appealed to the District Judge's Court at Vizagapatam. The learned District Judge agreed with the Sub-Collector's finding that the lands formerly were private lands but he differed from him regarding their conversion into ryoti lands ; he held that they remained private lands and that, as a consequence, the Sub-Collector had no jurisdiction to entertain and try the suits; he directed that the plaints be returned to the plaintiff for presentation in the appropriate Civil Court
5. The defendants preferred appeals to this High Court. On August 23, 1946, Chandrasekara Aiyar, J., agreeing with the learned District Judge that the lands were private lands and they had not become ryoti lands, dismissed the appeals. These Letters Patent Appeals were instituted on September 27, 1946, by defendants Nos. 2 to 4 against the learned Judge's dismissal of their two appeals.
6. Prior to these Letters Patent Appeals coming for hearing, the plaintiff presented the plaints, which had been returned to him by the order of the learned District Judge to the appropriate Civil Court, where two suits have now been instituted. In those suits, claims are made for rent and in one case for sale of, and in the other case for creation of a charge upon the holding, although the claim in each suit is for rent of private land.
7. At the outset of the hearing, Mr. P. Satyanarayana Rao, for the appellants, applied for stay of these appeals until October 4, 1948 ; he based his application upon the provisions of the Madras Tenants and Ryots Protection Act, 1946, which came into force on October 4, 1946, about one week after these Letters Patent Appeals were instituted. The relevant provisions of that Act are:
Section 1(2) : The Act applies to:
(b) Ryots in estates in the Province of Madras governed by the Madras Estates Land Act, 1908, and
(c) Tenants of private lands in such estates ;
(3) It shall come into force at once (4th October, 1946) ;
(4) It shall remain in force for a period of two years ;...
Section 3. During the continuance of the Act, and, subject to the provisions of Sections 4 and 5. (A) No holding of a tenant or ryot shall be liable to be sold or brought to sale in pursuance of a decree, order or other proceedings for recovery of rent.
Section 4(1). All suits, proceedings in execution of decrees or orders and other proceedings
(a) for the eviction of tenants from their holdings or land, as the case may be, or in which a claim for such eviction is involved, whether in addition to a claim for rent or not, or
(b) in, which the sale of the holding of a tenant or ryot for recovery of rent is claimed, and which are pending at the commencement of the Act or may be instituted thereafter in any Civil or Revenue Court, shall be stayed....
(9) The provisions of Sub-sections (1) to (8) shall apply mutatis mutandis to all proceedings pending at the commencement of the Act or instituted thereafter, in any Court of Appeal or Revision.
Section 6. All suits and proceedings stayed under the Act shall, after the expiration of the Act, be proceeded with, subject to the provisions of any law which may then be in force, from the' stage which had been reached when the suit or proceeding was stayed.
8. Mr. Satyanarayana Rao contended that the appeals were pending at the time the Act came into force, by Sub-section (9) of Section 4, the provisions of Sub-section (t) of the same section apply to the appeals ; each appeal is a proceeding in which the sale of the holding of a tenant or ryot for recovery of rent is claimed ; and, by Clause (b) of Sub-section (1) of Section 4, the proceedings must be stayed during the time the Act is in force which, by Sub-section (4) of Section 1, is for a period of two years, namely, from October 4, 1946, when the Act came into force until October 4, 1948.
9. The application of the provisions of Clause (b) of Sub-section (1) of Section 4 to an appeal, pursuant to Sub-section (9) is dependent upon whether, in the appeal, the sale of a holding for recovery of rent is claimed.
10. The object and intention of the present appeals are solely to challenge the finding that the lands are private lands; the sole relief sought is to obtain a finding that they are ryoti lands and to have it established that the appellants are oocupiers of such lands.
11. A proceeding must be stayed when either Clause (a) or Clause (b) of Sub-section (1) of Section 4 is applicable. Clause (a) does not apply, in the present instance, but comparison of its provisions with those of Clause (b) is enlightening. Under Clause (a) a proceeding for eviction or a proceeding in which a claim for eviction is involved must be stayed. Whereas, by Clause (6) the sale of a holding must be claimed before a proceeding can be stayed ; this clause does not provide that a proceeding must be stayed if a claim for sale is involved in the proceeding. Even assuming that an appeal which arises out of a suit in which a claim for sale is made, is a proceeding in which such a claim is involved, nevertheless an appeal is not a proceeding which Clause (b) requires to be stayed, unless there is a claim for sale made in the proceeding.
12. The pending suits in the Civil Court are not connected with these appeals but they are separate and distinct from them. The appeals are preferred by tenants and, in the event of the failure of the appeals, those suits will continue ; but the defendants will be at liberty to apply for a stay, at any rate in one suit, on the ground that a claim is made for the sale of the holding for recovery of rent. Clause (b) requires, merely, that if a claim for sale is made in a proceeding, it shall be stayed ; the soundness or genuineness of such claim is immaterial for the purpose of an application for stay. In these appeals no order or direction can be given with regard to those suits ; but if applications are made for stay of the suits in the Civil Court it will be for the learned Judge before whom the applications come, to decide whether to grant or to refuse them. I must not be deemed to have expressed an opinion upon the course which he should adopt.
13. As above mentioned, the appeals are preferred solely to challenge the finding that the lands are private and not ryoti lands. If they are dismissed, the position will remain as it is now, namely, that the Revenue Court had not jurisdiction to entertain the suits and the question of the sale of the holding will not then, as it does not now, arise. If the appeals succeed, the Sub-Collector's findings will be restored, he held that all rent had been fully discharged ; thus, again, no claim for sale of the holding will arise. The so e claim made in the appeals is for a finding that the lands are ryoti lands, and there is no claim made for sale of lands for recovery of rent. The appeals are the pending proceedings sought to be stayed by virtue of Clause (b) and, since no claim for sale is made, the clause has no application. Incidentally, in the suits out of which these appeals arise, a claim for sale was made in one suit alone, there was no claim for sale, but for a charge, in the other suit.
14. In my opinion these two appeals do not come within the provisions of Section 4(1) and (9) of the Madras Tenants and Ryots Protection Act. 1946, and a stay should not be ordered.
15. Now as to the merits. The question for decision is whether the lands are ryoti or, as held by both the appellate Courts, private lands; this will involve consideration of the provisions of the Madras Estates Land Act, 1908 (hereinafter called ' the Act'). For convenience reference to one appeal alone is required as the relevant facts and circumstances are identical in both appeals.
16. It is conceded, on behalf of the plaintiff-respondent, that: (1) prior to 1902 the land was ryoti; (2) conversion from ryoti to private land cannot take place after the commencement of the Act; and (3) unless the land in suit had been converted from ryoti to private land by the date the Act came into force in 1908, it still remains ryoti land.
17. The land was described as waste land but reference to it is found as grasing land. It was not cultivated before 1902 ; in that year the landholder commenced to bring portions of it, from time to time, into cultivation. Six years later, in 1908, the Act came into force, by that time the whole was under cultivation. The evidence is not clear but, either during the above six years or shortly thereafter, the landholder let to tenants the land as private land. It fell into the landholder's possession in 1914, he cultivated it from that year until 1926, when he let it out to tenants, and it has ever since remained let.
18. It is now convenient to discuss the relevant provisions of the Act. In the Act ' ryoti land ' means cultivable (not cultivated) land in an estate, other than private land [Section 3(16). 'Private land ' means the domain or home farm land of the landholder and includes all land which is proved to have been cultivated as private land by the landholder himself by his own servants, or by hired labour with his own or hired stock for a continuous period of twelve years immediately before the commencement of the Act [Section 3(10)]. A proviso to Section 185 enacts that land shall be presumed not to be private land until the contrary is proved. Whilst Section 181 provides that a landholder shall be at liberty to convert his private land into ryoti land, there is no converse provision by which a landholder can convert his ryoti land into private land. Sub-section (1) of Section 8 enacts that whenever, before or after the commencement of the Act, the occupancy right in any ryoti land vests in the landholder he shall have no right to hold the land as a ryot but shall hold it as a landholder and, by Sub-section (3) of the same section, the merger, if any, of the occupancy right under Sub-section (1) shall not have the effect of converting ryoti land into private land ; by Sub-section (4) of the same section, where the interest of the ryot in a holding passes to the landholder by inheritance the landholder shall, notwithstanding anything contained in the Act, have the right for a period of twelve years from the date of succession, of admitting any person to the possession of such land on such terms as may be agreed between them. Again, under Sub-section (4) of Section 6, when a landholder has reclaimed waste land, he may, by contract in writing, prevent any person from acquiring a permanent right of occupancy in respect of that land during a period of thirty years from the date of the first cultivation after reclamation. The circumstances and events, legislated for in Section 8(1) and (4) and Section 6(4) do not permit of, or amount to, conversion to private land ; but, after expiration of the above periods of 12 and 30 years respectively, the incidents of letting ryoti land apply to such lands and they are subject to the provisions of Section 6(1) by which every ryot in possession of ryoti land at the date of the Act or who shall thereafter be admitted by a landholder to possession shall have a permanent right of occupancy in his holding. The Act manifests a clear intention that ryoti land shall retain its nature, even when a landholder obtains possession by inheritance or otherwise or has reclaimed ryoti waste land: none of those incidents effects a conversion into private land.
19. Further reference is necessary to Section 185 ; it provides so far as relevant and in addition to what has already been stated, that:
When in any suit or proceeding it becomes necessary to determine whether any land is the landholder's private land, regard shall be had
(1) to local custom,
(2) whether the land was, before the 1st day of July, 1898, specifically let as private land, and
(3) to any other evidence that may be produced.
The Act was amended in 1934 ; prior to the amendment Section 185 contained a proviso that all land proved to have been cultivated as private land by the landholder continuously for 12 years immediately before the commencement of the Act should be deemed to be the landholder's private land. When the Act was amended, the proviso was deleted from Section 185 and its provisions in substance, were added to Section 3(10) so that the definition of ' private land ' now includes land cultivated, as therein specified, by the landholder. Section 185 before and after the amendment, except in respect of the proviso, which has now been deleted from it, does not enact substantive law but provides rules of evidence for the determination whether land is private land. It does not enact that when, for instance, land was let as private land before 1st July, 1898, that circumstance establishes it is private land ; the section provides only that regard shall be had to that circumstance when it becomes necessary to determine whether land is private land. It does not follow that, when there has been such a letting, the land thereby becomes private land. In Zamindar of Chellapalli v. Somayya : (1914)27MLJ718 land had been leased as private land for a period of about 35 years, from 1875 to 1910 ; it was ryoti land until the first letting and it was held, such letting did not establish conversion into private land although the land had been so let for 23 years before 1st July, 1898. That decision was upheld on appeal to the Judicial Committee reported as Tarlagadda Mallikarjun Prasad Naidu v. Somayya (1918) 36 M.L.J. 257 : L.R. 46 LA. 44 : I.L.R. 42 Mad. 400 (P.C.). In Zamindar of Chellapalli's case : (1914)27MLJ718 , Wallis, C.J., expressed the opinion that Section 8 of the Act does not impose retrospectively an absolute prohibition on the conversion of ryoti land into private land but, he added, it is very necessary that an actual conversion should be proved by very clear evidence. Seshagiri Aiyar, J., on the other hand, observed that ryoti land cannot become private land except in the instance mentioned in the proviso to Section 185 now part of Section 3(10).
20. Mr. Sitarama Rao for the plaintiff-respondent contended that the land in suit had become private land by 1908, when the Act came into force. At that period there had been at the most, only six years of cultivation by the landholder immediately before the commencement of the Act. Reliance was placed by Mr. Sitarama Rao upon, what was called, 'Reclamation of the land,' from waste to cultivated land in 1902. It was argued that, by reason of the reclamation and six years cultivation thereafter, it became private land. It has already been pointed out that, under Section 6(4) of the Act, the sole benefit which is conferred upon a landholder who has reclaimed waste land is that, by contract in writing, he can prevent a person from acquiring a permanent right of occupancy in the land for 30 years from the date of the first cultivation. Reclamation does not change the character from ryoti to private land ; after the 30 years have expired a tenant has full occupancy rights. The land in suit was ryoti ; it was reclaimed in 1902. Consequently, the statutory 30 years period expired by 1932.
21. Mr. Sitarama Rao relied upon the cultivation of the land by the landholder from 1914 to 1926 as indicative of previous conversion of it into private land. In Zamindar of Chellapalli''s case : (1914)27MLJ718 reference was made to the test laid down in Budley v. Bucktoo (1871) N.W.P.H.G.R. 203 that private land is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even when from time to time he demises it for a season. This test was approved by the Board in Tarlagadda's case (1918) 36 M.L.J. 257 : 1918 L.R. 46 LA. 44 : I.L.R. 42 Mad. 400 (P.O.). At page 31 in Jagadeesam Pillai v. Kuppamma : AIR1946Mad214 , it was observed by a Division Bench that:
The ordinary test for ' private land ' is the test of retention by the landholder for his personal use and cultivation by him under his personal supervision.
The treatment of the land by the landholder in the present instance does not reflect that he intended to retain the land for cultivation by himself. Ever since 1926 it has beeen let on lease. His letting of it as private land up to 1908 cannot be considered when determining whether it is private land--vide Chintamreddi Sanyasi v. Sri Rajasagi Appala Narasimha Raja (1914) M.W.N. 766 .
22. Now I come to consider the two conflicting Division Bench decisions, regarding the conversion of ryoti into private land, which occasioned the reference of the present appeals to a Full Bench. They are Sreemanthuraja Yarlagadda Mallikarjun v. Subbiah (1919) 39 M.L.J. 277 and Veerabadrayya v. Zamindar of North Vallur (1926) 52 M.L.J. 38 : I.L.R. Mad. 201. Those decisions were given prior to the Act being amended in 1934, when the proviso to Section 185 as to a landholder's cultivation for twelve years immediately before the Act, was extant and before the addition to Section 3(10). Before 1934, by cultivation as private land by the landholder, as laid down in Section 185, land was deemed to be private land ; since the amendment the definition of private land includes land so cultivated. The alteration in the Act does not detract from the effect of such cultivation, but, on the contrary, it is now clearly manifested that the land so cultivated is private land.
23. In Sreemanthu's case (1919) 39 M.L.J. 277 Abdur Rahim, J., observed at page 282 of the report, that:
The Legislature intended to lay down that ryoti land cannot be turned into home farm land by the zamindar by any act of his either before or after the passing of the Act, unless it came within the special provisions laid down in this connection ;
Later, at page 283, the learned Judge said:
Apparently, however, the Legislature wanted to make some provision in order to enable the zamindar who has been in enjoyment of ryoti land by direct cultivation before the passing of the Act for a period of 12 years, to give the zamindar with respect to such land the right of treating it as his private land. That is what is enacted by the proviso to Section 185.
Burn, J., expressed an opinion to the same effect. Both the learned Judges held that the Act prevented conversion from ryoti into private land but by the operation of the proviso to Section 185, land might be classified as private land which formerly had been ryoti, when the condition in the proviso was fulfilled. In Zamindar of Nuzvid v. Lakshminarayana (1921) 42 M.L.J. 161 : I.L.R. Mad. 39 Sadasiva Aiyar, J., expressed the opinion that ryoti land could not be converted into private land except in the circumstances specified in the proviso to Section 185. Napier, J., disagreed with that view. In that case land was let as private land from 1897 to 1905, and from 1905 to 1915 it was cultivated by the landholder. After referring to those facts, Napier, J., observed at page 61:
It is now too late to contend successfully that the lands are not private lands of the zamindar.
In Veerabadrayya's case (1926) 52 M.L.J. 38 : I.L.R. Mad . 201 land was originally ryoti and the decision was that it had been converted into private land. There ryoti land was cultivated by the landholder from 1878 to 1887 ; it was then let for one year; cultivation by the landholder was resumed in 1888 until 1892 when, again, the land was let for a year ; thereafter some portions were cultivated and other portions were let until 1895 ; in 1896 a receiver leased the whole of the lands and they remained let until the defendant became tenant in 1917. Venkatasubba Rao, J., with whose judgment Krishnan, J., agreed, held that Section 8 has not retrospective effect so as to prevent conversion from ryoti to private before the Act came into force and he referred to the provisions in Section 185 by which, when it becomes necessary to determine whether land is private land, regard shall be had to the question whether it was let as private land before 1st July, 1898. The learned Judge said that it seemed to follow from the section that evidence of subsequent dealings is, by implication, excluded and he placed that construction upon the section. But he expressed the opinion that subsequent leases could be put in evidence for the purpose of showing that, if the lands had been treated as private until 1898, they had not been treated differently after that date. Consequently, the finding that the land was private was arrived at by reference to the dealings and treatment of it between 1878 and 1898. During that period of 20 years the landholder cultivated the whole land for an aggregate of 13 years, with breaks of one year between the 9th and 10th years and between the 14th and 15th years ; he cultivated part for another three years ; after the 17th year the whole land was leased and never again fell into possession ; and the largest period of continuous cultivation by the landholder was nine years. The learned Judge appears to have placed considerable reliance upon the letting as private land for two periods, each of one year, the letting of part for 3 years and the subsequent letting of the whole for two years, prior to 1898. The opinion, expressed in Veerabadrayya's case (1926) 52 M.L.J. 38 : I.L.R. Mad. 201 that Section 8 has not retrospective effect appears to accord with the view of Wallis, C.J., in Zamindar of Chellapalli's case : (1914)27MLJ718 but, with which opinion, Seshagiri Aiyar, J., did not agree ; at page 350 of the report in that case, that learned Judge said he thought the first part of Section 185 deals with the determination of the question whether the particular field is ryoti or kambattam (private), where nothing is known of its origin, and the proviso to Section 185 was an exception to Section 8(3) ; he added, that the scheme of the Legislature was opposed to the augmentation of private land except in the special instance mentioned in the proviso to Section 185.
24. Sub-sections (1) and (3) of Section 8 must be read together; they are clear and unambiguous in their language ; the Words, in Sub-section (1), ' whenever before or after the commencement of this Act ' manifest that its provisions and those of Sub-section (3) are operative as regards events which occurred before, as well as to those which take place after, the Act came into force. I am unable to give any other meaning or effect to the above words and sub-sections. Where an occupancy right vests in a landholder, Sub-section (1) enacts that such circumstance does not confer a right upon him to hold the land as a ryot and Sub-section (3) enacts that the merger in Sub-section (1) shall not have the effect of converting ryoti land. Since the two sub-sections are applicable to the pre-Act and post-Act events, a pre-Act merger did not occasion a conversion to private land but the land remained ryoti until the Act came into force, unless its nature could have changed after the merger. How, if at all, could it be converted into private land ?
25. The Act contains no express provision for converting ryoti land into private land. Now that the proviso regarding 12 years cultivation by the landholder has been deleted from Section 185, as pointed out previously that section does not enact substantive law but it prescribes only the rules of evidence for determining whether land is private land, when the nature of land is unknown ; it does not enact what land is private land nor does it legislate for conversion from private to ryoti. Its provisions relating to (1) custom and (3) other evidence can be ignored for the moment; the provision that regard shall be had to letting of land as private land before 1st July, 1898, does no more than to prescribe that that circumstance can be taken into consideration when determining whether it is land of that classification, such letting is no more than a piece of evidence which, like all other testimony, has to be considered ; the circumstance that ryoti land has been so let does not constitute it as, or effect a conversion of it into, private land. If ryoti land is let as private land, no matter for what period, its nature is not changed by that letting.
26. In Zamindar of Chellapalli' case : (1914)27MLJ718 , it was pointed out that formerly landholders endeavoured to get their ryots to contract themselves in one way or another out of their occupancy rights and, in that case, letting of ryoti land as private land for about 23 years before 1st July, 1898, and for 35 years in all, was held not to have established it was private land. The rules in Section 185 have equal application to land which has always been private land ; if its nature were challenged by alleging it to be ryoti land, proof of its cultivation in conformity with the statute would be sufficient to show that it was private land without any other evidence being required.
27. Similarly, as to any custom, to which Section 185 requires that regard be paid when determining whether land is private land, if established a custom would show the land was private land ; but proof of a custom would not convert ryoti land into private land. The same observations apply with respect to ' other evidence ' to which regard has also to be paid in the same connection.
28. There being no express provision in the Act for conversion of ryoti into private land, is there any other provision by which conversion can take place Whilst the repealed proviso in Section 185 was not an enactment which expressly legislated for conversion, its provision, that land should be deemed to be the landholder's private land upon proof of cultivation of it by the landholder for 12 years immediately before the commencement of the Act, had the effect of creating an irrebuttable presumption that it was private land, when the condition was fulfilled as to cultivation. In such instance, something like an estoppel arose which enabled the landholder to resist a claim that land was ryoti; this was irrespective of the nature of the land prior to the landholder's cultivation. When land, originally ryoti, had been cultivated in conformity with the proviso to Section 185, the application of the statutory presumption and estoppel, occasioned, indirectly, its conversion into private land.
29. In principle, and in the effect, there is no difference since the amendment to the Act in 1934, when the proviso to Section 185 was deleted and the addition to Section 3(10) was made ; the effect of the provisions in the addition is the same as the effect of the repealed proviso. The only alteration which has taken place is that, after cultivation by a landholder in conformity with the statute, land is now included in the meaning of private land instead of being deemed to be such land.
30. Apart from the provisions of the Act, which have just been discussed, there is no method or mode by which ryoti land can be changed into private land. No matter how ryoti land may have been treated or dealt with by a landholder, whether let as private land for varying periods between his own cultivation or without any such cultivation, it retains its character as ryoti unless the landholder's cultivation is in accordance with that prescribed in Section 3(10).
31. In Zamindar of Chellapalli's case : (1914)27MLJ718 and in Jagadeesam Pillai's case : AIR1946Mad214 , the meaning of ' domain or home farm land '--the expression used in Section 3(10)--and the nature of private land were discussed. It was pointed out that the above expressions would connote land appurtenant to the mansion, kept for personal use and cultivated under personal supervision as distinct from land let to tenants for farming. That is not a description of ryoti land which a landholder cultivates for less than 12 years after its reclamation from waste land and then lets to tenants as private land, at a considerable profit rental.
32. The scheme of the Act, undoubtedly, is to afford the greatest protection to ryots, to guard their occupancy rights in ryoti land, to encourage conversion from private to ryoti land--vide Section 181--and, by the absence of any enactment regarding conversion from ryoti to private land, to prefer that the former state shall continue to remain unchanged. Even reclamation of ryoti waste land and inheritance of ryoti land by the landholder does not change its character, although Section 6(4) and Section 8(4) respectively, allow the landholder some freedom for a limited period in regard to letting after reclamation and inheritance. Again, merger of the occupancy right in ryoti land in the landholder does not convert it into private land. In my view the opening words in Section 8(1) ' Before or after the commencement of this Act,' give retrospective effect to the enactment. I am unable, with respect to agree with the opinion of Wallis, G.J., in Zamindar of Chellapalli's case : (1914)27MLJ718 and with the decision in Veerabadrayya's case (1926) 52 M.L.J. 38 : I.L.R. Mad. 201 that Section 8 has not retrospective effect. In my view, the decision in Veerabadrayya's case (1926) 52 M.L.J. 38 : I.L.R. Mad.201 that in the circumstances and facts of that case, there had been a conversion of ryoti into private land, was wrong; and I do not agree with the opinion of Napier, J., in Zamindar of Nuzvid's case (1921) 42 M.L.J. 161: I.L.R. Mad. 39 that, on the facts there, the land had become private land. The retrospective effect of section 8 prevents conversion; but, by virtue of the former proviso to Section 185, and, since 1934, Section 3(10), there is an irrebuttable presumption that ryoti land can be deemed to be, or is included in the definition of, private land, when and if it has been cultivated in conformity with those sections; in that respect alone there can be, in effect, a conversion from ryoti into private land.
33. In his judgment, Chandrasekhara Aiyar, J., appears to have thought that the provisions in section 185, that regard should be had to 'any other evidence' allows evidence of letting of land as private land after the commencement of the Act to be taken into account when determining whether land is private land; apparently he based his view upon the decision of the Judicial Committee in Bindeswari Prasad Singh v. Maharaja Kesho Prasad Singh in regard to the Bengal Tenancy Act, 1895, in which Sub-section (2) of Section 120, to some extent, corresponds to section 185 of the Madras Estates Land Act. At page 644 of the report, the Board observed that the above sub-section of the Bengal Act 'does not exclude as inadmissible evidence that subsequent to the 2nd March, 1883' (which, in that Act, is the date corresponding to 1st July, 1898, in Section 185 of the Madras Act), 'the tenant admitted that the lands let to him were zirait (private) lands of the landlord.' Such admission is quite different to ryoti land being described as private land in a lease granted by a landholder after the 1st July, 1898, and for that lease to be used as evidence against the occupant to support the landholder's claim that the land is private land.
34. Returning to the present appeals, the land in suit was ryoti land upto 1902; the reclamation from waste land and its subsequent cultivation by the landholder for no more than six years before the commencement of the Act did not convert it into private land; and his letting of the land, as private land, thereafter did not confer that character upon it. The land always has been, and it still remains, ryoti land.
35. In my opinion, the conclusion of the Sub-Collector that the land in suit is ryoti land was correct, but the reasons which he gave for his conclusion were incorrect; the decisions of the learned District Judge and Chandrasekhara Aiyar, J., that it is private land, were wrong; and these appeals should be allowed with costs here and of the hearing before Chandrasekhara Aiyar, J.
36. I agree with my Lord the Chief Justice.
37. I agree with my Lord that a stay of the appeal cannot be granted and that on the merits it would be against the spirit of the Act to admit the possibility of a conversion of ryoti land into private land at any time, whether before the passing of the Act or afterwards except as specially provided for in section 3 (10-a).
38. It might be argued upon a reading of section 8 alone that although it would prevent the merger of the two rights after the passing of the Act that had become vested in one person before the passing of the Act, the section does not declare that the rights could not be merged before the passing of the Act. The expression 'whenever before or after the commencement of the Act' relates only to the time when the two rights become vested in the same person and not to the time when a merger is attempted; and so it is not certain, reading this section by itself, that it has retrospective effect.
39. The definition of 'private land' in Section 3 (10-a) seems to me to show beyond doubt that no period of self-cultivation by a landlord for less than 12 years, and then only if the cultivation has been continuous and immediately before the passing of the Act, can convert ryoti land into private land. It would follow, therefore, that six years self-cultivation before the passing of the Act, whatever might have been the intention of the landlord, would not suffice to convert it into , private land.
40. By Court.--If in the District Court there are any grounds of appeal which were not disposed of there by reason of the finding expressed by the learned District Judge that the Sub-Collector had no jurisdiction to entertain the suits and consequently, no appeal could lie from him to the District Court, in that event, these appeals will be remanded to the District Court, Vizagapatam, for disposal of matters which were not dealt with at the previous stage of the appeals. The costs of the hearings in the District Court will abide the result of the appeals.