1. I have had the advantage of reading the judgment which my learned brother is about to deliver and I agree with him in thinking that it is not necessary that we should call upon the District Judge's successor to rehear these appeals and deliver a fresh Judgment. The questions at issue are really quite simple. It has been clearly found that no occupancy rights were ever possessed in these lanka lands before the Madras Estates Land Act I of 1908 came into force. The question then arises:--Did the tenants acquire occupancy rights in consequence of the introduction of the Act?
2. The auction sale lists are dated 16th and 17th July 1908, but assuming that the letting to the successful bidders was intended to have effect from the beginning of Fasli 1318, that is, from 1st July 1908, it would still be letting 'after the passing of the Act;' for as held in Second Appeal No. 1760 of 1912 by Sadasiva Aiyar, J. and myself the Act was passed on 28th June 1908 when it received the assent of the Governor-General. Thus where the words ' the passing of this Act7 occur they do not denote 1st July 1908, when by Section 1 the Act is declared to have ' come into force.' The legislature being aware that the Fasli year commences from 1st July probably so worded the section by design to avoid confusion as to leases dating from 1st July 1908.
3. In Venkataratnam v. Sri Rajah Varadaraja Appa Rao (1916) 81 M.L.J. 123 the learned Chief Justice regards the time of letting as equivalent to the time of admission, but as, admission to possession is given a special meaning in the explanation to Section 6 of the Act, namely, the receiving of any payment for occupation, I am doubtful whether we should understand the expression 'the time of letting' as meaning more than the time of leasing or executing a lease.
4. In this view the lands in suit were clearly ' old waste' under Section 3, Clause 7(2) of the Act and Section 6(1) expressly excludes occupants of old waste from the class of ryots on whom occupancy rights are conferred by the Act. In determining the amount of rent payable for Fasli 1321 the Courts were right in having regard to the previous contracts between the parties and rightly applied the presumption arising by virtue of Section 28 as to the rate payable in the preceding revenue year.
5. The Second Appeals and the Memoranda of Objections must be dismissed with costs.
6. These Second Appeals arise from two batches of suits one by the proprietor of the Gopalpur Estate for arrears of rent for Fasli 1321 against his tenants under Section 77 of the Madras Estates Land Act and the other by the tenants under Section 55 against him for proper pattas. The appellants before us are the tenants in both batches.
7. The first point taken in appeal is that the appellate judgment does not comply with the requirements of Order XLI, Rule 31 of the Civil Procedure Code and therefore should be set aside and the Lower Court should be directed to rehear the appeals and deliver a fresh judgment. The appellate judgment is no doubt somewhat meagre and not in strict conformity with the rule quoted. That however, is only an irregularity or error in procedure; and unless it is a substantial error which has affected the decision of the case on the merits, it is not a proper ground for second appeal under Section 100 of the Civil Procedure Code. Unless, therefore, we are satisfied that the learned District Judge failed to apply his mind to the case and to consider the evidence properly or that the appellants have been prejudiced in any way on the merits we will not be justified in interfering with the decree of the Lower Appellate Court on the ground stated. The learned District Judge heard the appeals to him at great length and came to his own findings on the merits, though he did not state his reasons very fully as he was agreeing with the Court of First Instance in his findings. The present case is different from the case cited in Sitarama Sastri v. Suryanarayana Sastrulu I.L.R. (1898) Mad. 12 ; 8 M.L.J. 318 as I think that the learned Judge had the points in dispute before his mind and exercised his own judgment in arriving at his findings. I must therefore disallow this objection.
8. The next point argued is that the findings of the Lower Appellate Court that the lands in suit were ' old waste ' within the meaning of Section 3, Clause 7 and that the tenants had no permanent occupancy rights in them are erroneous. The findings that the tenants had no occupancy rights in the lands before the Estates Land Act came into force is a finding of fact on evidence and must be accepted. It is manifestly correct as the right of cultivating these lands was sold by auction from time to time once in every three years to the highest bidder, the lands are appropriately called Sale lankas. The tenants contend that though this may be so,--Section 6, Clause (1) of the Madras Estates Land Act conferred on them a new permanent occupancy right in these lands on its enactment. That section provides that ' every ryot now in possession or who shall hereafter be admitted by a landholder to possession of the ryoti land not being old waste situated in the estate, of such landholder shall have a permanent right of occupancy in his holding.' It is however found as a fact that the ryots were not in possession of these lands on the 1st of July 1908 when the Act came into force they having given up possession the previous day. This finding must be accepted in second appeal as one of fact. The lands were again let to the tenants and possession given to them only about a month later. Subject to an argument which I shall presently consider, it is clear then that at the time of that letting the lands had remained without occupancy rights for over ten years and hence they came within the definition of 'old waste' in Section 3 Clause (7) Sub-clause (2) ; and therefore Section 6, Clause (I) was inapplicable.
9. The argument, I referred to, is based on the fact that the letting was for the whole of the Fasli 1318 as well as for the two subsequent faslis. The lease period therefore commenced from the beginning of Fasli 1318, that is, from the 1st of July 1908. It is urged that as the tenants obtained the right to possession as from the 1st of July they must be treated in law as having been in possession on that day within the meaning of Section 6 and that they come therefore within the words ' ryots now in possession ' and that on the authority of the case reported in Budu Saravagarudu v. Venkataraju : (1913)25MLJ617 it must be held that they got permanent occupancy rights under the section. The word 'pusssesion' in the section cannot, I think, be construed to cover a mere right to possession. The ryot must have been in possession for the section to apply, that is, at least in constructive or legal possession if not actual possession. The effect of the lease was only to give the tenants a right to possession from the 1st of July but they had no possession whatever on that date legal or actual. The case quoted does not therefore apply and I think the tenants got no occupancy rights by virtue of the section.
10. It was also argued that the expression ' the time of letting ' in Section 3, Clause 7(2) means the time from which the lease took effect and not the time when it was executed and as it took effect from the 1st of July, there was no letting after the passing of the Act as required by that Sub-clause (2) and therefore that sub-clause will not apply to these lands to make them ' old waste.' This argument assumes that the words ' passing of the Act ' mean the same thing as ' the coming into force of the Act.' The two expressions are evidently not the same. Under Section 1, the Act came into force on the 1st of July. But the Act was passed when it received the assent of the Governor-General on the 28th of June 1908, The meaning of the term 'passing of the Act' was considered in Second Appeal No. 1760 of 1912. I agree with the view there expressed. Even assuming that the ' letting ' was on the 1st of July without deciding it, it will still be 'after the passing of the Act' and there is thus no difficulty in bringing the lands in the case within the definition.
11. No doubt under Section 23 of the Act the presumption is that any land is ryoti land other than old waste and the person asserting that any land is old waste must prove it. I agree however with the Lower Courts that in this case the landholder has established that the suit lands are now ' old waste ' and I accept their finding as correct. The tenants of course, have therefore no permanent occupancy rights now in the land.
12. The next question to be considered is what is the proper rate of rent payable by the tenants for the Fasli in question. The lower Courts have decreed rent at the same rate as was paid by the tenants for the previous Falsi except in Suit No. 132 of 1915 with which we are not now concerned. The period of the lease deed expired by the end of Falsi 1320 and there is no written agreement for Fasli 1321. No pattas. and muchilikas were exchanged between the parties at any time. Under Section 27 of the Act the tenants must however be presumed to have held the land under the same terms as to rent as existed for the previous fasli unless the contrary is proved. It is not alleged by the tenants that any new arrangements have been come to; nor is it shown that there is anything contrary to the presumption under Section 27 in this case. I may add here that I do not agree with the respondent's contention that he can take advantage of Section 52, Clause 3 and treat his lease or written agreement as in force under that clause till it is superseded by a fresh lease or by exchange of puttas and muchilikas. That section, in terms, applies only to cases where pattas and muchilikas have already been accepted, exchanged or decreed ; and not to cases of other written agreements between parties. What pattas and muchilikas are and what they should contain are stated in Section 51 ; any written agreement like the one in this case cannot therefore be treated as pattah or muchilika, I think, however, by force of Section 27 as already stated, the landholder was entitled to the same rate of rent as in Fasli 1320.
13. It was next argued that the amount of rent paid for Faslis 1318 to 1320 over and above what was paid for the same lands in Fasli 1317 and before, was an illegal enhancement by the landlord as he took no action under Section 30 of the Act for it and the excess should therefore be disallowed under Section 24 of the Act. That section says, 'the rent of a ryot shall not be enhanced except as provided by this Act.' It must therefore be read as subject to all the other provisions of the Act and not merely to Section 30. As pointed out for the respondent Section 6, Clause 3 expressly authorises a landholder to let ' old waste ' to a ryot on such terms as may be agreed on between them, when he is admitted to the occupation of the land. The first time the tenants were so admitted in this case after the Act came into force, was in Fasli 1318 ; and therefore the agreement as to rent then entered into was clearly valid and cannot be treated as an enhancement offending against Section 24. If now the landholder wants to enhance the rents without the consent of the tenants, he must no doubt take action under Section 47 of the Act. This argument also therefore fails.
14. In the Second Appeals relating to the pattah it was further argued that under Section 57, the Collector was bound to decide what the terms of the proper pattah for Fasli 1321 were and that in doing so he should settle the proper rate of rent payable by the tenants. That is no doubt the effect, of the section and the lower Courts have settled the proper rent to be what the tenants agreed to pay and paid for the previous fasli; the question as to proper rent is the same in both the rent and the pattah suits. The tenants contend that they are only bound to pay what may be considered a fair and equitable rent for Fasli 1321 as there is no written agreement for that year and that that rent should be fixed with reference to rates prevailing for similar lands with similar advantages in the neighbourhood. In considering this argument it must be borne in mind that these are tenants of ' old waste' and not ryots of ryoti land with permanent occupancy rights. To get a reduction of the rent, for that is what the tenants claim, by considerations of what is fair and equitable they must show some provision of law under which, they are entitled to this privilege. The only sections in the Act which have any bearing on the question of reduction of rent are Sections 25, 38 and 41 ; of these it is only Section 25 that deals with rates prevailing 'on similar lands and with fair and equitable rates. That section is expressly excluded from applying to ryots of ' old waste ' for it applies in terms only to ryots of ' ryoti land other than old waste' who are all occupancy ryots. Section 28 was also relied on by the appellants' vakil as giving his clients a right to show that the rent paid for the previous fasli was not fair and equitable. If they had the right to get their rent reduced on considerations of fairness and equity, no doubt they could prove that the rent for the previous fasli was not an equitable rent under the section. But the section certainly does not give them the right itself. That section is evidently supplementary to Section 25 and deals with burden of proof where a fair and equitable rent has to be settled raising a presumption in favour of the equitableness of the rent which was being paid at the time. It cannot be read as giving any substantive right to reduction of rent to any one who does not otherwise possess it. I must therefore hold that no question of equitable rent arises even in the pattah cases as argued.
15. The rent decreed and inserted in the pattah by the lower Courts is therefore correct; and as the appellants fail On all the points urged before us all the second appeals are dismissed with costs.
16. The memoranda of objections filed by the landlord refer to vakil's fees in the Lower Appellate Court. They were not pressed before us as the Lower Appellate Court was clearly right in fixing a consolidated fee in the batch of appeals. They are also dismissed with appellant's costs.