1. Delivered a separate Judgment on 19th August 1920, having expressed his concurrence with Abdur Rahim, J., on 11th August 1920.
Abdur Rahim, J.
2. I must hold that the learned District Judge is not right in saying that there was no proper proof of the existence of attachment at the date of the purchase by the third defendant. As a matter of fact we have got the attachment list of 1902 to show that the property was under attachment, and if at the time of the purchase by the third defendant, which was in 1902, the attachment had been raised, it was for him to prove it. The learned District Judge ought to have proceeded on the assumption that the attachment continued. That being so, the purchase by the third defendant can be of no avail against the first defendant or his vendee. But it is argued that under Section 6 of the Madras Estates Land Act the tenant of the third defendant acquired a permanent right of occupancy when the Act came into force, i e., in 1908, although the holding had boon sold before that date and purchased by the first defendant, the landlord, in execution of his decree for rent. In support of this position a ruling of a division Bench of this Court has been put forward--Sivapada Mudali v. Thyagaraja Chettiar : AIR1915Mad736 . No doubt that decision supports the contention of the respondents, but with all respect to the learned Judges I find myself unable to agree with them. The first step in the reasoning in that judgment is that a ryoti land although brought to sale by the landlord and purchased by him does not cease to be ryoti land. I am prepared to accept that proposition. But I am unable to see how the next step in the reasoning is made out, namely, that a tenant whose holding has already been gold and who had therefore no interest whatever left in the holding acquired any right by virtue of Section 6. Before Section 6 can be applied--apart from the explanation which I shall presently consider--it must be shown that the man in possession is a ryot within the meaning of the Act; and a ryot has been defined as a person who holds agricultural land paying rent to the landlord. Here it is not suggested that after the holding of the third defendant had been sold he either paid rent or in any other way attorned to the landlord. He remained in possession after his holding was sold merely as a trespasser. Reliance is placed on explanation to Section 6. In my opinion, the explanation does not extend the scope of the section itself to the extent claimed. The explanation is to this effect:
For the purpose of this sub-section, the expression 'every ryot now in possession' shall include every person who, having held land as a ryot, continues in possession of such land at the commencement of this Act.
3. If we are to give any force to the phrase 'having held land as a ryot,' it must mean a person whose interest in the land has continued till the commencement of the Act, at least as a tenant at will, and who is actually in possession at that date. To give any other meaning to this explanation would be conferring very valuable rights on persons whose possession is that of more trespassers and who have no sort of right in the land recognized by the law at all. In this case, the third defendant continuing in possession of the land even after the sale was not only a trespasser but was acting in defiance of the law. It must be conceded that if there had been a final decree declaring that the third defendant had no occupancy rights passed before the Act came into force, Section 6 would, not help him at all as the land would be exempt from the operation of Section 6 as 'old waste.' Can it be said that where the holding itself has been sold and the tenant has ceased to have any more interest in the land he is in a better position? The fact that the land does not lose its ryoti character has undoubtedly this effect, that if the landholder thereafter lets any other tenant into possession for the purpose of cultivation then that tenant will acquire occupancy lights in accordance with the provisions of the Act. That is to say, by the purchase the landlord does not add to his home farm lands and the land remains a ryoti land throughout. The decision of the Full Bench in Kanakayya v. Janardhana Padhi (1913) I.L.S., 36 Mad., 439 , does not, in my opinion, in any way touch the present question, for there the only question was whether a decree of the Court of trial is a final decree within the meaning of the definition of 'old waste' in Section 3 before the time for appeal has expired. The other decision referred to in Sivapada Mudali v. Thyagaraja Chettiar : AIR1915Mad736 is Markappuli Reddiar v. Thandava Kone (1814) M.W.N., 799, but the judgment is very brief. We do not find that the facts are fully given there. We do not know from whom the first purchase was made, whether from the original ryot or somebody else. In my opinion therefore, the defence of the third defendant under Section 6 of the Estates Land Act is bad.
4. When the third defendant bought the land in dispute there was a usufructuary mortgage outstanding in favour of the second defendant and that mortgage was paid off with the purchase money. That being so, the learned District Judge finds that the third defendant must be held to be subrogated to the rights under the usufructuary mortgage, and by virtue thereof he would be entitled to possession of the land until he is redeemed. The learned vakil for the appellant thereupon applies to us for leave to amend the plaint so that the plaintiff may have a decree for redemption in this suit. No such application was made to either of the lower Courts and we do not think that in the circumstances of the case we should be justified in allowing an amendment of the plaint at this stage. It is not suggested that the right of redemption will in any way be barred. It will be open to the plaintiff to institute a separate suit for redemption if he so chooses. We also considered whether the plaintiff might not be entitled to recover the purchase money from the first defendant as the consideration for the sale was paid to him. But as the first defendant has not been made a party to this appeal, we cannot grant the appellant any such relief.
5. The result is the Appeal must be dismissed with cost.
6. The facts as I take them are that appellant, plaintiff, is purchaser of the item now in dispute from first defendant, who bought the saleable interest in it of his defaulting tenant in a rent sale in 1907. First defendant gave a delivery receipt, but did not obtain actual possession, probably because in 1892 the land had been transferred to the possession of second defendant by a mortgage, Exhibit V, which with reference to Section 38, Act VIII of 1865. and Rajagopal v. Suhbaraya I.L.R.,(1884) Mad., 31 , was not affected by the rent sale, and had been sold in 1902 by Exhibit VI to third defendant who is now in possession, part of the purchase money having been paid to second defendant in discharge of his mortgage. Plaintiff's contentions are that third defendant has no right to retain possession or alternatively that he should surrender it on being reimbursed what he spent in respect of the suit item on redeeming Exhibit V, the necessary amendment of the plaint being permitted. I agree with my learned brother that the former is unsustainable and deal only with the main argument, with which third defendant has resisted the latter, that because he was in possession at the commencement of Act I of 1908, he is entitled under the Explanation to Section 6(1) thereof to resist plaintiff's suit for possession on the ground that he has acquired an occupancy right.
7. The period for which third defendant has retained possession since the rent sale falls short of any by which plaintiff's right to sue for possession or redemption can be barred; and there is no question of estoppel, The argument is then, that the character of the possession referred to in the Explanation to Section (i)(I) being undefined, even such possession as third defendant's or a defaulter's (for no attempt has been made to show that third defendant is in a better position than his transferor) will confer occupancy right. To take first the case of a defaulter, who has lost his interest in the land by a rent sale and continues in possession in disregard of its result, there is every reason why he should not profit by his conduct; and a construction of the Explanation, which would enable him to do so, should, if possible, be avoided. True, such a construction was adopted in Sivapida Mudali v. Thyagaraja Chettiar : AIR1915Mad736 . But it was supported only by reference to a dictum contained in the referring order in Kanakayya v. Janardhana Padhi I.L.R., (1913) Mad, 439 (F.B.) , and to the landholder's obligation under Section 8(1) to hold the land as landholder notwithstanding his purchase of the occupancy right. With all respect, these reasons seem to me insufficient. Kanakayya v. Janardhana Padhi I.L.R.,(1913) Mad, 439 (F.B.) was not decided with reference to Section 6 or the Explanation now in question and the dictum referred to is only a general warning against confusion between possession and title, not an attempt to interpret the former expression with reference to its context in that explanation or the intention of the legislature. Section 8(1) no doubt entails that the land after the landholder's purchase remains ryoti; but it does not purport to affect the character of the possession referred to in Section 6(1) or its Explanation and cannot do so.
8. As regards the intention of the legislature in the latter provision there is every reason against supposing that the result already referred to was contemplated by it. In the context the body of the section refers to ryots in possession or to be admitted by the landholder in the future, and it is to be supposed that the explanation refers to possession of a similar kind and to cases of a similar legal origin, such as those of holding over and the like. Certainly such an interpretation is preferable to one by which it would not merely specify one class of cases already described in mere general terms, but would extend the scope of the substantive provision in a different direction; and I therefore agree with my learned brother that we must adopt it.
9. The foregoing proceeds on the assumption which was made in argument, that third defendant is in the same position as the defaulter, his transferor, would have been in, if he had retained possession. But his actual position has been stated and, since he cannot plead his purchase against plaintiff's rent sale, his possession must for the present purpose be regarded as authorized only by the mortgage, which he discharged; and then the objection to the application in his favour of the principle of the decision in Sivapada Mudali v. Thyagaraja Chettiar : AIR1915Mad736 is no less. For, whether or no the learned Judges were consistent in conceding, as they did, that rights in the kudivaram interest as between rival claimants other than the landlord are not intended to be affected by Section 1, there is still the fact that the equity of redemption of the mortgage must have been included in the saleable interest of the defaulter, which the landholder bought, and will be unenforceable, if third defendant's construction prevails. The result would be that a mortgagee with possession, perhaps with a portion of his term still outstanding, at the commencement of the Act would in virtue of that possession acquire a new title, by which his liability to redemption would be extinguished; and, in the absence of anything clearly or directly abrogating the established mortgage law in such cases, that cannot be accepted.
10. Plaintiff's right being to obtain possession on payment to third defendant of the amount spent by the latter in redeeming the mortgage on this item, it cannot, I agree with my learned brother, be exercised in these proceedings. I therefore concur in dismissing the Appeal with costs.