Sadasiva Aiyar, J.
1.The plaintiff, the Rajah of Venkatagiri, is the appellant in this second appeal. The defendants are the tenants of certain lands in the Venkatagiri Estate. The said lands according to the 3rd paragraph of the plaint are waste lands which have been always used for the pasturing of cattle. Pasture rent is alleged to have been collected from the defendants for the use of these lands till Fusli 1317 at the rate of five annas one pie per acre for about 40 years. In the Muchilikas for 1317 and 1318, however, the defendants agreed to pay rent for the lands at a higher rate if any person applied for the grant of lands on Dharkast for purposes of cultivation. They further agreed by these Muchilikas to quit possession of the lands on demand if they refused to take up the lands at the higher rate. The suit was brought, claiming 3 reliefs:
(a) Ejectment of the defendants, because on the 3rd August 1907 the defendants, when notice was issued to them to take up the lands themselves at the higher rate, failed to take them up.
(b) For recovery of rent for Fuslies 1317 and 1318 at the rates offered by a person who applied for grant of the lands on Dharkast in April 1907.
(c) For mesne profits subsequent to date of suit till delivery, that is mesne profits for Fasli 1319 &c.;
4. There was first the question, whether this suit, which was originally filed in the Munsif's Court, was cognizable by the said Court. The Munsif returned the plaint to be presented to the Revenue Court. The Revenue Court again returned it to be presented to the Munsif's Court. There was an appeal against this order of the Revenue Court to the District Court, which set aside the Revenue Court's order and directed it to try the suit. The question as to which Court has jurisdiction to try this case depends it need hardly be said upon the allegations in the plaint and upon the case set up by the plaintiff in the plaint. Assuming for this 'purpose that the allegations in the plaint, supplemented by the plaintiff's documents are correct, it seems to us clear that the lands in dispute fall within the definition of ' old waste' in Section 3 Clause 7 of the Madras Estates Land Act. Old waste includes according to that definition, any land which, not being private land, has continuously remained un-cultivated and in the possession of the Zemindar for 10 years or has at the time of any letting by the landholder after the passing of the Act remained without any occupancy rights being held therein within a continuous period of not less than 10 years immediately prior to such letting. The plaint lands are therefore old waste lands. But old waste lands might be of two kinds. They might be old waste lands which are also ryoti lands or they might be old waste lands which are not ryoti lands. But a ryoti land in order to come under the definition of old waste should be land in respect of which before the passing of the Act ' the landlord had obtained the final decree of a competent Civil Court establishing that the ryot has no occupancy right.' See the last paragraph of Clause 7 Section 3. Ryoti land is described in Section 3 Clause 16 as cultivable land other than private land, communal land or service tenure land. It is clear from the Muchilika filed in this case that the plaint land is pasture waste and it is not permanently cultivable. When ryoti land is defined as cultivable land, we think it means land permanantly cultivable for all practical purposes and not land which might be occasionally cultivated. This is made clear by Section 6 Clause 4 of the Act, which says that waste land let under a contract for the pasturage of cattle and reserve forest land let under a contract for the temporary cultivation of agricultural crops shall not by reason only of such letting for pasturage or for temporary cultivation, become ryoti land. Hence land fit usually only for pasturing cattle and not for ploughing and raising agricultural crops is not ryoti land. The land in dispute in this case according to the allegations in the plaint and according to the terms of Muchilikas is not cultivable land, though it might be occasionally capable of cultivation under extraordinary and unusual circumstances and hence it is not ryoti land. No doubt the usual presumption under Section 23 of the Act is that a land is ryoti land other than old waste, but in this case such presumption has no place as the land is clearly ordinary old waste which is not ryoti land.
5. Then the next question is whether the tenant of such old waste let for pasture is a ryot. A ryot is defined in Section 3 Clause 15 as a person who holds (a) for the purpose of agriculture (b) ryoti land. The tenant of an old waste which is not ryoti land does not there-fore come under the definition of ryot. On another ground also, the tenants of the plaint land are not ryots, because they do not hold land for the purpose of agriculture. Agriculture is defined in the Act as including horticulture. See Section 3 Clause 1. The ordinary meaning of agriculture is the raising of annual or periodical grain crops through the operations of ploughing, sowing etc. In Soman Gope v. Raghnbir Ojha I.L.R. (1896) C. 160 it was held under the Bengal Tenancy Act that to turn land let for agricultural purpose into an orchard was to render it unfit for the purchase of the tenancy. In Lakshmana v. BamachandraI.L.R. (1887) M. 351 the same principle was laid down. See also Murugesa Chetti v. Chinnathumbi Goundan I.L.R. (1901) M. 421 While agriculture is by a special definition made to include horticulture in the Estates Land Act it has not been made to include Silviculture and pasturing. This clearly shows that the Legislature did not intend pasturage of cattle to be included within the meaning of the term agriculture. The matter seems to be finally clinched by the Select Committee's Report, (See Doraisami Aiyangar's book Appendix (IV page XCII) where the Select Committee make the following statements.
(1). Agriculture'-From the definition we have omitted ' Silviculture' and ' pasturing.' The general right of a ryot to use the land in his holding in any manner which does not materially impair its value for agriculture purpos.es is declared in Clauses 10 and 11; and ordinarily, neither Silviculture nor pasturing would be in-consistent with such use, but we recognise that the former cannot always be exercised as an unrestricted right, and that both silviculture and pasturing may be undertaken in circumstances which do not give a person admitted to use public cultivable land for those purposes alone any claim to the status of ryot Clause 6(6). For ' pasturing' we have made special provision in Clause 6(6). As to ' silviculture,' the limitation of a ryot's right to plant trees has been declared in Clause 22 (2).
6. It being thus clear that the defendants in this case according to the plaintiff's allegations do not come under the designation of ryots the next question is whether a suit for ejectment of these tenants of old waste who are not ryots is cognisable by the Revenue Court or by the Civil Court. Section 199 Clause 1 is the section which bars the jurisdiction of Civil Courts in certain specified cases, and it is unnecessary to state that, where the general jurisdiction of the Civil Courts is specially taken away only in particular classes of cases, the civil courts retain their jurisdiction as regards all other classes of cases not so excluded. Now Section 189 (1) excludes the civil court's jurisdiction (investing the Collector or other Revenue officer with that jurisdiction) only in respect of suits and applications of the nature specified in parts (A) and (B) of the schedule, to the Act. Turning to parts A and B of the schedule, suits triable by a' Collector, so far as this question of ejectment is concerned, are suits coming under Sections 153, 48 (ii) and 158 of the Act. Section 153 relates to the ejectment of a non-occupancy ryot. But, as the defendants in this case are not ryots, that section does not apply. Section 48 (ii) also relates to the ejectment of a ryot who fails to make a certain declaration. Section 158 relates to a tenant of private land. It is thus clear that the present suit so far as it prays for ejectment of a' tenant not being a ryot of old waste not being ryoti land, let for pasture purposes and not agriculture, is not cognisable by a Collector but only by a Civil Court. The Munaif's original order returning the plaint to be presented to the Revenue Court and the District Court's order on appeal from the Revenue Court deciding that the Revenue Court alone had jurisdiction are erroneous so far as the claim relates to the ejectment of the defendants and the recovery of mesne profits from fasli 1319 downwards is concerned. As regards the rent claimed for faslis 1317 and 1318, the plaintiff, if his allegations are true, is entitled on the Muchilikas for faslis 1317 and 1318 to recover under the 4th paragraph of the Muchilika rent at the Sagubadi dry rate of the nearest piece of land in the village though he may not be entitled to the higher wet cultivation rent at the rate offered by the alleged darkhastdar. The Lower Courts have not gone into the question whether there was an appli-cation by a darkhastdar in April 1907, whether defendants were asked to take up the land for temporary cultivation as provided in the muchilika for faslis 1316 to 1318 and to what rate of rent the plaintiff is entitled in faslis 1317 and 1318.
7. Even as regards the suit for what is called Pasturage rent for fuslis 1317 and 1318, the suit cannot lie in the Revenue Court because Section 77 of the Act relates to arrears of rent as defined in the Act and the definition of rent in the Act confines the expression to whatever is payable for the use of land for the purposes of agriculture (with its appurtenances like cesses, water rate etc. and sums payable by a ryot as such, on account of pasturage fees and fishery rent. Sums payable by a ryot as such on account of pasturage fees can only refer to sums payable by agricultural tenants for the use of communal pasture lands. It was ingeniously argued that even a tenant who holds waste lands (which are not ryoti lands) for purposes of pasture under Section 6 Clause 4 is a ryot, because such a tenant is treated as a non-occupancy ryot in Section 46 of the Act, though the benefit of the provisions of that section given to non-occupancy ryots as a class is withheld from such a tenant. We think that this ingenious argument cannot prevail against the clear definition of 'ryot' found in Section 3 Clause 15 and that the involved grammatical implications derived from the language of 46 should not be allowed to override the express declaration and definition found in Section 3. .
8. It therefore follows that even as regards the pasturage rent due by tenants who are not ryots, the jurisdiction of the ordinary courts is not taken away. We accordingly set aside the original order of the Munsif dated the 10th January 1910 and the original order of the District Court passed in appeal against the Revenue Court's original order returning the plaint to be presented to the District Munsif and we direct the plaint to be received by the Munsif if presented to him within two weeks of the return of the same by this Court to the plaintiff and we direct the Munsif to dispose of the suit according to law. Costs hitherto incurred will abide the result.
9. I agree in the judgment of my learned brother which I have had the benefit of reading.
10. The question involved in this appeal is whether the Special Deputy Collector of Nellore presiding in the Revenue Courts had jurisdiction to try the suit out of which the appeal arises in which the plaintiff claims to be put into possession of the property referred to in the plaint removing the defendants therefrom; the plaintiff also claims '' mesne profits' and other incidental reliefs. The plaint was in the first instance presented in the Munsif's Court but the Munsif held that he had no jurisdiction to try the suit. The Special Deputy Collector also held that he had no power to order the defendants to be ejected from the land and dismissed the suit.
11. The jurisdiction of the Revenue Courts so far as is material for the present case is derived from Section 189 of the Madras Estates Land Act (Madras Act I of 1908) and the jurisdiction of Civil Courts is by the same section taken away to the same extent to which it is granted to Revenue Courts. It would therefore seem clear that in regard to any matter in which Civil Courts ordinarily have jurisdiction they retain that jurisdiction unless it is acquired by the Revenue Courts and that the ordinary jurisdiction of the Civil Courts is now apportioned between the Civil and the Revenue Courts. It seems necessary to make this remark as in the course of the arguments before us it was suggested on the one hand and apprehended on the other that it may happen that neither the Civil Court nor the Revenue Courts might have jurisdiction to eject the defendants.
12. The question that arises before us now is whether the Revenue Courts have the jurisdiction to try a suit in which the above referred to reliefs are sought.
13. Section 189 of the Estates Land Act gives jurisdiction to the Revenue Courts over all suits and applications of a nature specified in parts A and B of the schedule. Hence in order to determine whether the Revenue Courts have jurisdiction to try a suit of this nature we have to turn to the various items in the Schedule. The schedule refers to ejectment suits in items 17 and 19 of Part A corresponding to Sections 151(1) and 158 and items 9 and 27 of Part B corresponding to Sections 43 (2) and 158 respectively. These sections refer to the nature of the lard itself and to the tenant's rights therein. Sections 151 and 153 and 48 refer respectively to suits for ejecting occupancy and non-occupancy ryots and Section 158 refers to a suit against a tenant of private land. It follows therefore that unless the plaintiff can make out that the defendant is either a ryot or a tenant of private land, he cannot establish his right to sue for ejectment in a Revenue Court.
14. It was argued before us that the use of the land for pasturage purposes itself makes it ryoti land. Ryoti land is defined in S. (3) so far as is at present material, as 'cultivable land in an estate other than private land.' Therefore, land must be cultivable before it can be termed ryoti land. It was argued that pasturage must be taken to be included in the term cultivation as used in the Madras Estates Land Act; but pasturage is something different from cultivation. Cultivation implies some kind of labour on the land generally consisting of breaking up the soil; whereas pasturage has reference to a particular mode of using natural growth on the land without its being cultivated. Land used for pasture therefore cannot ordinarily be styled as cultivated land, and on the facts of this case it is clear that the land as a matter of fact is not cultivable. That the Legislature did not intend pasturage to be included in the term ' cultivation' as it is employed in the Madras Estates Land Act seems also to be indicated by a consideration of Section 6 Clauses 1 and 4; the latter clause expressly provides that 'admission to waste land under a contract for the pasturage of cattle...shall not by itself confer upon the person so admitted a permanent right of occupancy.' At the same time it is provided in Section 6(1) that ' every ryoti in possession...of ryoti land not being old waste...shall have a permanent right of occupancy in his holding.' As the 4th sub-section of the same section provides that admission to waste land under contract for the pasturage of cattle...does not by itself confer upon the person so admitted a permanent right of occupancy,' it would appear that the legislature did not conterplate pasture land as being ryoti land. The tenant of such land equally does not come under the definition of a ryot in Section 3 (15) which requires the land to be ryoti land and to be held for the purpose of agriculture in order that the tenant may be termed a ryot. It was argued before us that this land falls with in the definition of 'old waste' in Section 8 (7) and that therefore it must fall under the category of ryoti land. It is true that the expression ' ryoti land not being old waste' in Section 6 and in other portions of the Act shows that 'old waste' may be ryoti land but there is nothing to show that all ' old waste' is ryoti land. ' Old waste' which is not cultivable and which consequently does not fall within Section 3 (16) cannot be styled ryoti land.
15. Finally it was not contended before us that this land was private land so as to make Section 153 applicable.
16. The question still remains to be considered whether the Revenue Courts have jurisdiction to try the suit so far as it relates to the recovery of mesne profits for Fasli years 1317 and 1318. What is described as mesne prof. in the plaint is nothing else than the rent due under the Muchilikas which are now on the record before us. The section which gives to the Revenue Courts jurisdiction to order the recovery of arrears of rent by the landlord is Section 77 See schedule Part A, item 8. The word 'rent' in the section must be understood in the sense in which it is defined in Section 3(11). It must therefore refer only to what is lawfully payable to a landlord for the use or occupation of the land in the estate for the purpose of agriculture. The land in this case, as already stated, has been used not for agriculture, but for pasturage. Section 71 therefore does not give the Revenue Courts jurisdiction to decree the recovery of arrears of rent claimed in the plaint.
17. For these reasons I agree in the order proposed by my learned brother.