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Sunkara Venkataratnam and ors. Vs. Sri Rajah Varadarajah Appa Rao Bahadur, Zemindar Garu - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in35Ind.Cas.213; (1916)31MLJ123
AppellantSunkara Venkataratnam and ors.
RespondentSri Rajah Varadarajah Appa Rao Bahadur, Zemindar Garu
Excerpt:
.....and even this would not be satisfactory as in some cases it is not necessary to show that the land was waste for ten years. 2. if then we assume that under the first part as well as in the second the prescribed condition must be immediately prior to letting, the next question is, what letting? we difficulty as to the correct construction of the definition which is by no means clearly drafted, but on the whole i think that this is the preferable construction and if the construction be doubtful we shall i think beat effectuate the intention of the legislature by leaning to the construction under which the land does not lose its character of ordinary ryoti land. but it is a well established principle of interpretation that of two possible constructions the one which gives a consistent..........and after the passing of the act and this is what is done by the first part, in which the ten years period may expire before or after the passing of the act. if the words ' at the time of letting ' mean whenever immediately after the prescribed period the lands have been let by the landholder, then the land must be held to have acquired the character of old waste as from that moment and to retain it until something happens to deprive it of that character such as the acquisition of occupancy right by the tenant under section 46 and the land now in question must be regarded as old waste. if that be the meaning the words ' had or shall have 'would have been more appropriate than ' has ' which on the other hand is quite correctly used if the letting referred to is the letting in.....
Judgment:

John Wallis, C.J.

1. The question in the case is whether land which had been uncultivated for 10 years immediately-preceding 1900 and was let in that year and was re-let to the present defendants after the expiry of the first lease and was in the occupation of the defendants at the time of the passing of the Madras Estates Land Act comes within the definition of old waste in that Act. The main principle of the Act, as declared in Section 6, is that every one in occupation of ryoti land at the passing of the Act or thereafter admitted to occupation acquires an occupancy right; but at a late stage of the Bill, as is well known, it was provided as a concession to land-holders that this should not apply to old waste as defined in the Act. The term 'old waste' is rather a misnomer. 'Tenyear old waste' would better describe what is meant and even this would not be satisfactory as in some cases it is not necessary to show that the land was waste for ten years. Old waste means ryoti land admission to which is not to confer a right of occupancy and was no doubt so called because the land-holders in whose favour the exception was, made specially objected to the creation of occupancy right in land which had long been waste which they claimed to be their private property. The definition consists of two parts and to satisfy the first part, the land must have been in the possession of the land-holder for a continuous period of not less than 10 years and have been out of cultivation during that period. Such continuous period may be before or after the passing of the Act Or partly before and partly after the passing of the Act, but must not have commenced before July 1888. Further the land must have been in this condition for a continuous period of ten years ' at the time of letting, ' the words we have to construe. There is no provision in the first part of the definition such as we find in the second part that the prescribed period of ten years must have been ' immediately prior to such letting 'and it has to be considered whether the omission of these words makes any difference. Supposing the lands to have been in possession of the land-holder and out of cultivation for ten years after 1888 and the land-holder to have then cultivated them himself for some years and subsequently let them, they might in one sense be said ' at the time of letting' to have been owned by him for a continuous period of ten years during which period they were continuously out of cultivation, even though such period was not immediately prior to the letting, but such a construction appears to deprive the words ' at the time of letting' in this part of the definition of all force and effect and may, I think, be rejected upon that ground.

2. If then we assume that under the first part as well as in the second the prescribed condition must be immediately prior to letting, the next question is, what letting? Is it any letting by the land-holder or letting to the particular tenant who is claiming occupancy right. In the first part of the definition the words are ' at the time of letting ' and in the second part ' at the time of any letting after the passing of the Act, ' but I think the only difference is that in the second case the letting must be after the passing of the Act; and therefore the same question as to what letting is meant arises as regards both parts of the definition. As regards both parts it may be observed that the second part would cover all cases coming within the first part if it were not confined to lettings after the passing of the Act. This restriction was no doubt rendered necessary by the fact that it would have been opposed to a main principle of the Act as embodied in Section 6(1) to allow of occupancy right being questioned in the case of ryots in possession at the time of the passing of the Act on the ground that before the passing of the Act they were not entitled to occupancy right. It was therefore considered desirable to devise some other test which should be applicable to cases arising both before and after the passing of the Act and this is what is done by the first part, in which the ten years period may expire before or after the passing of the Act. If the words ' at the time of letting ' mean whenever immediately after the prescribed period the lands have been let by the landholder, then the land must be held to have acquired the character of old waste as from that moment and to retain it until something happens to deprive it of that character such as the acquisition of occupancy right by the tenant under Section 46 and the land now in question must be regarded as old waste. If that be the meaning the words ' had or shall have 'would have been more appropriate than ' has ' which on the other hand is quite correctly used if the letting referred to is the letting in question, that is to say, the letting to the ryot who is claiming occupancy right under Section 6(1) on the strength of his admission. Here it may be observed that the words 'letting' and 'tenant ' appear to be used throughout the Act only in cases where no occupancy right is conferred (cf. Section 6(3) and (4) and Section 157,) as admission to ordinary ryoti land is not regarded as creating the relation of landlord and tenant properly so called. ' Letting' in the one case is there-fore more or less equivalent to admission in the other; and if we bear in mind that the main principle of the Act is that admission to ryoti land confers occupancy right except in the case of admis-sum to or letting of did waste, this affords some reason for holding that ' the time of letting' intended in the definition is the time of admission which under Section 6(I) would confer occupancy right if the land were not old waste; and refers there-fore to the time of admission of the person who is claiming occupancy right by virtue of such admission I have felt considera. We difficulty as to the correct construction of the definition which is by no means clearly drafted, but on the whole I think that this is the preferable construction and if the construction be doubtful we shall I think beat effectuate the intention of the Legislature by leaning to the construction under which the land does not lose its character of ordinary ryoti land. See Section 23. In coming to the conclusion I have abstained from basing any in ferences on the presumed intention of the Legislature as to the precise point at issue, except in so far as it appears from the terms used. The appeal must be allowed to this extent and the suit dismissed, in so far as it seeks to eject the defendants from possession, with costs.

Abdur Rahim, J.

3. The appellants obtained the land from which the respondent landholder seeks to eject them under a lease for 3 years which expired on the 30th June 1909. Their first contention is that as they were in possession after the 1st July 1908, the date on which the Madras Estates Land Act came into force, the landholder is precluded by Section 6 of the Act from ejecting them. That is conceded if the land is not 'old waste' as defined by the Act. The definition of 'old waste' so far as it bears on the facts of this case is to be found in Section 3 Clause 7 Sub-Clause 1 in these words: 'Old waste means and includes any land in an estate which, not being private land, has at the time of letting by the landholder been owned and possessed by him ox his predecessors-in-title for a continuous period of not less than ten years and has continuously remained uncultivated during the time, such period being either after or partly before and partly after the passing of this Act, or within twenty years before the passing of this Act.' The facts found are that the land was not cultivated until 1901 when it was for the first time leased out for cultivation for a period of five years from 1901 to 1905. Thereafter the lease to the defendants was granted.

4. The contention on behalf of the landholder is that by the words 'at the time of letting' is meant the first letting while the ryots contend that what is meant is the particular letting in question. Both Mr. Justice Oldfield and Mr. Justice Tyabji who disagreed on another point, agreed in upholding the former interpretation. With all respect, however, 1 do not find sufficient warrant for confining the operation of Sub-Clause 1 only to cases where the land has been waste for 10 years before it was first let without any regard to the subsequent condition of the land. That seems to be inconsistent with the idea underlying under another class of 'old waste' defined by Sub-clause (2) ac-cording to which any land acquires that character whether cultivated or not if it remains without occupancy rights being held therein within ten years prior to any letting after the passing of the Act. Under this sub-clause therefore land which was once 'old waste' may cease to be so and become 'old waste' again, its character varying with the conditions of its occupation. It is difficult to understand why it should be otherwise under Sub-clause (1) so that land which was not 'old waste' at the time of the first letting cannot become 'old waste' afterwards or land which was once 'old waste' must remain so for ever although it might be cultivated for any length of time. It is suggested that the phrase 'old waste' which is quite inapt as applied at least to cases under Sub-clause (2) must be treated as a merely conventional expression and the cases dealt with under the two sub-clauses must be kept quite distinct and separate. But it is a well established principle of interpretation that of two possible constructions the one which gives a consistent meaning to the different parts of an enactment should be preferred. If Sub-clause (1) be taken to apply to cases where the land at the time of the particular letting with reference to which the question has arisen, such as, whether the occupier is liable to be ejected, has remained uncultivated for a continuous period of ten years prior thereto, there would be no conflict of ideas between the two sub-clauses. For as under Sub-clause (2) so under Sub-clause (1) the character of land whether it is to be classed as 'old waste' or not would change with its condition. An examination of the provisions of the Act shows that one principal object of the Legislature was to assure the ryots or cultivators of Zemindari lands in the possession of their holdings on payment of fair and customary rent. Only with respect to a very limited class of land was the right of the landholder to direct possession or to free disposition was recognised to a greater or less extent, e. g., the landholders' private lands and 'old waste.' Even with reference to 'old waste' once the landholder admits to it a tenant, his power of disposition and freedom of contract with respect thereto becomes considerably narrowed. (See Sections 157, 153 and Sections 46 to 49). Whatever especial rights in such lands have been reserved to the landlord were so reserved by reason of the fact that they were not in the possession of cultivators of the class whose rights or supposed rights the Legislature wanted to protect. If the construction that if any land was not 'old waste' at the time of first letting it cannot acquire that character, after-wards either and that once a land is found to be 'old waste' within the meaning of Sub-clause (1) to Clause (7) that description must adhere to it permanently, were correct, the reasons underlying the definition of 'old waste' would at least partially disappear. In this case before the tenancy of the appellants began the land was under cultivation for several years and therefore counting from the commencement of the appellants' tenancy the land was not uncultivated for a continuous period of ten years. So it cannot be said to be 'old waste.' This finding is sufficient to dispose of the appeal and it becomes unnecessary to deal with the other questions raised by the appellants. I therefore agree in the order proposed.

Srinivasa Aiyangar, J.

5. This appeal arises out of a suit by a landholder to eject the defendants from land let to them before the passing of the Estates Land Act, on the expiry of the term. The first question for determination is whether the land when let was 'old waste,' and this depends on the correct interpretation of the. first clause of the definition of 'old waste' or rather of a few words in it. The clause in question is in these terms : 'Any land which has at the time of letting by the landholder been owned and possessed by him or his predecessors-in-title for a continuous period of not less than ten years and has continu-ously remained uncultivated during the time, such period being either after or partly before and partly after the passing of this Act, or within twenty years before the passing of this Act;' and the material words to be construed are 'at the time of letting.' Does it mean at the time of the letting in question, or the first letting of land which till then remained uncultivated? I think the former is the correct interpretation of the words and not the latter.

6. Broadly speaking lands were divided into two main classes, the first consisting of lands which remained uncultivated for a con-tinuous period of ten years at the time of letting and the second of those which, though cultivated either by the landholder's own labour or by ryots, were still lands in which no occupancy right had been acquired. It is only where the letting was after the passing of the Act that any lands of the latter class could be or become old waste. (Sub-Clause 2 of the definition). Sub-Clause 1 includes cases of letting both before and after the Act. A consideration of the two sub-clauses shows that in cases of admission to occupation after the Act, it was wholly immaterial whether the land let was cultivated or not, whether it was cultivated by hired labour or by the landholder's servants, or whether it was let to tenant from time to time, so long as they did not acquire occupancy right under the provisions of the Act. If for example the land remained uncultivated and was owned and possessed by the landholder for a continuous period of ten years at the time of any letting after the passing of the Act, whether it was the first letting or other-wise, it would be old waste. Such would be the result whether Sub-clause 1 or 2 is applied. As regards letting before the Act the land, to fall under the category of 'old waste,' should in the first place have remained uncultivated for a continuous period of ten years after 1888, (i.e., 20 years before the passing of the Act). It is also, I think, necessary that it should remain uncultivated for a period of ten years at the time of the letting in contro-versy. If for example waste land was brought under cultivation by the landholder by his own servants or by hired labour in 1898 and let for the first time to a tenant in 1899 or any year there-after, but without a contract in writing, the tenant would acquire occupancy rights under Section 6 01. (1). A comparison of C1. (5) with Clause (3) makes it clear that such a land does not come within the definition of old waste. Cls 2, 3 and 5 of Section 6 are illustrations or state the consequences of the definition of 'old waste'. It is to be observed that in the illustration which I have given above, the land was waste for ten years continuously from 1888. But at the time of the letting it was not uncultivated, though nobody could possibly have acquired an occupancy right during the period when the land was under cultivation prior to the letting. In the case supposed the land would not be ' old waste' by reason of its cultivation by the landholder himself prior to the letting, it is impossible to conceive any reason why if let to tenants in the intervening period it should still remain old waste. It is to be observed that in waste lands brought under cultivation by the landholder he was given higher rights than in old waste. This makes it clear that under the first clause for a land to come within the definition of old waste, it really must remain uncultivated for a continuous period of ten years prior to the letting in question and not merely at the first letting, whether such letting was before or after the Act.

7. Some support is given to this construction, by the clause at the end of the definition, viz., old waste ' includes ryoti land in respect of which before the passing of this Act the landholder has obtained a final decree of a competent Civil Court establishing that the ryot has no occupancy right and so long as no right of occupancy has been acquired subsequent to the date of such decree.' Taking the present case as an illustration, if the term of the tenant had expired before the 1st of July 1908 and if the landlord had obtained a final decree of a Civil Court that he had no occupancy right, the land would be old waste. According to the construction suggested by Mr. Nagabhushanam, the land would be old waste even though no such decree had been passed. The last clause then as applied to cases falling under Sub-clause 1 would be redundant and useless.

8. It might appear anomalous that land, which when first let was old waste and which would continue to be old waste so long as that tenant was in possession, should cease to be old waste as soon as that tenant is turned out and a new tenant put in, I have already stated this would not be the case with regard to letting after the Act. As regards letting before the Act, the Legislature did, I think, intend to make a difference. The main principle of the Act is to be found in Sections 6, 8 and 9. The intention was to confer occupancy rights on all ryots in occupation of cultivable land at the time of the passing of the Act; as regards letting after the Act, the Act safe-guarded the position of non-occupancy rights, by giving them facilities for the acquisition of occupancy rights and preventing their eviction, except on specific grounds among which expiry of the term is not ordinarily one. In a series of cases in Madras it was held that when a landholder lets a tenant into occupation of waste lands, in the absence of any particular stipu-lations as regards rent or the term, the tenant had occupancy rights in the land and was bound to pay only the customary or usual rate of rent in the village. But it was conceded that the landholder was at liberty to enter into a special contract with the tenants so let, either as regards the rate of rent or the duration of the tenancy. An investigation into the question whether a ryot had occupancy right or not was attended with great difficulty as the landholders generally made no distinction in admission to possession of waste lands and the ordinary cultivated lands of the estate. They issued the same kind of pattas in both (different from the form used for pannai lands where pattas were issued for these lands) and often introduced in ordinary pattas a term that the ryots after the fasli, should not cultivate without permission or without a fresh patta, a term which was not intended to be enforced. The Legislature might well have intended to make an exception in the case of lands which remained continuously uncultivated for a certain period before the letting whose incidents are in controversy. If. the land remained uncultivated for a continuous period of ten years at the time of the last letting before the Act, that is a matter which can easily be proved. But if it had been let often, it may be impossible to differentiate it from the ordinary cultivated lands of the estate.

9. The language as it now stands is quite apt and is capable of an exact and appropriate denotation. The first clause contemplates letting after the Act in two cases. In cases where the ten years period is computed after the Act, there can be any number of lettings as old waste; where the ten years period is, partly, or wholly, before the Act, there can be only one letting, as old waste; but in all the three cases alike the land should have remained uncultivated for a continuous period of ten years before the letting in question. The introduction then of ' at the time of any letting' and ' immediately prior' would be inappropriate in the first clause. That explains the difference in the language of the two clauses.

10. It must also be remembered that lands which are 'old waste' at one time may become ordinary ryoti land, not being all waste and vice versa. The question always is whether at the time of the letting in dispute the land was old waste; I therefore think that' the words 'at the time of letting' refer not to the first letting, but to the letting which is the subject of dispute. In this view the suit lands are not ' old waste'; and under Clause (1) of Section 6 the ryot acquired an occupancy right in the land and he could not therefore be ejected. It is unnecessary therefore to consider the other points raised in the appeal. The appeal must be allowed and the plaintiff's suit in so far as it seeks to eject the defendants should be dismissed. He would be entitled to the stipulated rent. I agree as to the order for costs.


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