1. This is a second appeal which is sought to be preferred against the decree and judgment of the learned Subordinate Judge of Vizagapatam in A. S. No. 45 of 1952 confirming the decree and judgment of the learned District Munsif of Vizagapatam in O. S. No. 101 of 1951.
2. O. S. No. 101 of 1951 was tried along with two other suits, O. S. Nos. 102 and 103 of 1951 and a common judgment was delivered. The plaintiffs in all these suits were the same and the first defendant in all these suits was different. But the controversies between the plaintiffs and these defendants were the same and were in regard to three parcels of land situated within the municipal limits of Vizagapatam town. The first defendant in O. S. No. 101 of 1951 preferred an appeal in A. S. No. 45 of 1952 and we are not concerned with the first defendant in the other two suits.
3. The case for the plaintiffs in regard to these lands situated as just now mentioned inside the Vizegapatam Municipality and which are being enjoyed as residential sites and on which sheds have been put up is as follows: The lands along with other lands originally belonged to Ankitham people. One branch of Ankitham people gave permanent 'cowle' of their share of lands, of which the suit sites form part, to Eluru Appalaswami, Polamuru Chellayya, Dandu Atchanna and Duvvapu Potchanna by registered document dated11-7-1888, registration extract of which is Ex. A. 7 while the second branch of Ankitham people gave a similar permanent 'cowle' of their share to others under Ex. A, 13. Eluru Appalaswami sold his share in Ex. A. 7 to Dandu Atchanna, his co-sharer, by registered sale deed dated 13-7-1901, Ex. A. 11. Polamuru Chellayya sold the share got by him under Ex. A. 7 to Chilla Appalaswami under registered sale deed dated 2-4-1901, Ex. A. 9. Dandu Achanna sold his interest in the property covered by Ex. A. 7 to Chilla Appalaswami by registered sale deed dated 20-4-1901, Ex. A. 13. Duvvapu Pothanna sold his share under Ex. A. 7 to Chilla Appalaswami by registered sale deed dated 2-4-1901, Ex. A. 10. Chilla Appalaswami sold the lands acquired by him under the sale deeds mentioned above to Messrs. Rednam Venkata Krishna Rao and Gurunatha and Jonnalagadda Appanna Fantulu under registered sale deed dated 12-3-1919, Ex. A. 8.
At the partition between the three sharers the suit sites fell to the share of the plaintiffs in these suits, and this is admitted by D. W. 2. The site was managed by Sri Rednam Venkata Krishna-rao during his lifetime and later by his son Sri Rednam Dharmarao, the second defendant. During the aforesaid management, defendants were inducted into possession of the sites, first defendant's mother having executed a 'Kadapa' dated 15-6-1940. The site in question was required by the lessee for residential purposes; but however as printed agricultural leases were readpy available, the 'kadapa' was obtained on a printed form describing the site-as 'nivesanam' with a condition that it should be vacated with 15 days' notice. After the expiry of the lease, the lessee continued in Possession as tenant holding over, paying yearly rent from time to time. The first defendant held possession of the site as tenant after her mothers death, paying rent therefor to the lessor. Later she defaulted in the payment of rent.
4. The contention of the present appellant Muthyala Lakshminarayana, wife of Sankarayya, 50 years, trader and residing at Vizagapatam is that she was inducted into possession of the present suit site by Chilla Appalaswami, that Chilla Appalaswami conferred occupancy rights and that this appellant had been cultivating the suit lands. Then there was a great storm which is now admitted to be the cyclone of 1925 and this site became unfit for cultivation. Then this lessee constructed a residential shed and has not been cultivating the land and has been continuing to pay the rents. This is one stage. The second stage is stated to be that when Sri Rednam Venkata Krishna Rso Naidu started managing these properties he told this appellant that she might continue on the suit site with permanent tenancy rights and that this appellant has been paying the rents occupying the site in the residential shed. Therefore the plaintiffs are not entitled to evict this permanent occupancy tenant and secondly, that the House Rent Controller alone has jurisdiction to order eviction.
5. Therefore, the two points which arose for consideration in the lower courts were whether the appellant first defendant had acquired permanent rights of occupancy either under the Madras Estates Land Act or by means of a grant from Chilla Appalaswami and Rednam people and secondly, whether the suit for eviction is barred by the Madras Buildings (Lease and Rent Control) Act, 1946.
6. Both the courts below came to the conclusion on the facts that the first defendant appellant is not a permanent occupancy tenant either. under the Madras Estates Land Act or by means of a grant and that the Madras Buildings (Lease and Rent Control) Act has no application to this case. The suit of the plaintiffs was decreed and time was given for vacating the property.
7. I find that on the facts both the lower courts came to the correct conclusion that the first defendant appellant has not made out the permanent occupancy rights set up by her either under the Madras Estates Land Act or by. grant
8. Taking the case put forward under Madras Estates Land Act, first of all, on the facts it has not been shown that this area forms part of an estate to which the Estates Land Act is applicable. Secondly, in order to acquire- occupancy rights the land in which the right is claimed should be ryoti land. Land fit for pasturing cattle and not for ploughing and raising crops is not 'ryoti' land: -- 'Raja of Venkatagiri v. Ayyappa Reddi', AIR 1915 Mad 781 (A). Where for great many years lands have not been cultivated, the onus of proving that the lands are cultivable is on the person contending that they are 'ryoti' lands, that is to say, cultivable lands: -- 'Maharaja of Venkatagiri v. Rami Reddi', AIR 1917 Mad 106 (B). Saline grazing ground which has been enjoyed as pasture land for many years is not cultivable land: -- 'Seshayya v. Rajah of Pithapur', AIR 1917 Mad 649 (C). The mere fact that lands may have been occasionally cultivable with some dry crops will not make any difference. Waste lands usually submerged in water in the rainy season, though actually cultivated in a few years were held to be hot ryoti lands: -- 'Subbayya v. Venkataramiah', AIR 1924 Mad 832 (D).
Where 'ryoti' land is defined as cultivable land, it means laud permanently cultivable for all practicable purposes and not land which might be occasionally cultivated. It means land that is ordinarily and usually cultivated and does not refer to waste and even though waste land can at times be cultivated with labour and expenditure of money. Though lands were actually cultivated in the remote past but used for building purposes at the time of the passing of the Act in 1908, and since then, such lands will not be presumed to be 'ryoti' lands: -- 'Sitarama Reddiar v. Komarappa Mudall', AIR 1939 Mad 46 (E). But since lands have been proved to have been cultivated at the time of the passing of the Act or at some time while the Act had been in force, whatever the actual use to which a 'ryot' may put a land to, the land continues to be 'ryoti' land, so long as he continues to have the right to use it for agricultural purposes: -- 'Appalaswami v. Rajah of Vizianagaram', 25 Mad LJ 50 (P).
In the instant case the land has ceased to be cultivable long ago even if at any time it had been cultivated and concerning which both the courts found no substantial evidence and in fact the case for the appellant herself is that her occupation of the land has been by putting up a residential Shed and that she cannot be evicted therefrom except under the Madras Buildings (Lease and Bent Control) Act. Thirdly, the Estates Land Act has no application whatsoever to a 'Lopayakari' or sub-lessee tenant like the defendant appellant. The reason Is the possession of the sub-lessee must be treated as the possession of the 'Kudivaram' tenant himself: 'In re K. Pothuraju', AIR 1916 Mad 629 (G). The possession of the respondent has clearly been found to be that of a lessee from the Ankitham people under the permanent 'cowle' Ex. A. 7. The position of the appellant is that of an under-lessee. Under Section 19 of the Madras Estates Land Act there can be acquisition of occupancy rights by these 'Lopayakari' tenants under this Act. Section 19 states:
'Except as otherwise specially provided in this Act, the relations between a 'ryot' and his tenants, or between a landholder and a tenant of his private land, and the rights of any other owners of land, are not regulated by the provisions of this Act'
In other words, unlike the Bengal Tenancy Act, the Madras Estates Land Act does not recognise the acquisition of occupancy rights by these sublessee tenants. In fact this has been considered as a blemish by Sri V. Vedantachari in his Madras Estates Land Act, Vol. I, at page 187 and he has hoped that when legislation was next taken up, this would require consideration. The Legislature has however simplified this problem by abolishing the estates. Therefore, in any event this appellant could not acquire occupancy rights under the Madras Estates Land Act.
9. It is true that a sub-tenant or a sub-lessee from a 'ryot' could not acquire a right of occupancy; but he can do so by custom or usage or by grant: -- 'Rajah Peary Mohun v. Balachander', 5 Cal WN 310 (H). In this case no custom or usage is set up. But on the other hand, the case for the appellant is a specific grant both by Chilla Appalaswami In the first instance and by Radnam Venkatakrishnarao in the second instance. In regard to the lease, if it is expressly granted to be in perpetuity, no difficulty arises; but when nothing is known about its duration, certain presumptions are called into aid to determine it. In regard to the express grant in. perpetuity, there is no evidence worth mentioning as found by both the courts below. There was no averment with regard to the tenure of these sites in the written statement and the 'kist' receipts granted to the mother of the appellant and to the appellant respectively throw no further light on this matter. And apart from this, there is no other documentary evidence in regard to the tenancy on behalf of the appellant. Therefore, We have to rely practically upon the oral evidence in this case and the oral evidence did not advance the case of the appellant any further.
The evidence of D. W. 2 that she and her mother put up residential house with the advice and consent pf the lessors is an interested statement uncorroborated by other independent evid-ence. The first defendant In O. S. No. 103 of 1951 examined as D. W. 4 did not put forward any such advice and consent of the lessors. Therefore, we have to find out whether we can infer permanent tenancy from long possession and unvarying rent. But where the origin of the tenancy is known, as in this case, mere possession, however, long, will not confer a permanent right and in such cases it is not for the landlord: to explain the possession but for the tenant to Show that his holding leads to inference of the permanent tenure: -- 'Vasudeva Patradu v. The Zamindar of Salur', 3 Mad H. C. R. 1 (D, --'Srinivasachetti v. Nanjunda Chettl', 4 Mad 174 (J); -- 'Thiagaraja v. Giyana Sambanda Pandara Sannadhi', 11 Mad 77 (K); -- 'Lingareddi v. Venkatakrishna Rao', 21 Mad LJ 166 (L); -- 'Bai Ganga v. Dullappa Parag', 5 Bom H. C. R. (AC) 179 (M); -- 'Ender Lala v. Lallu Hari', 7 Bom H. C. R. (AC) 111 (N); -- 'Narayan Visaji v. Lakshman Bapuji', 10 Bom H. C. R. 324 (O), --'Narayan Bhat v. Davlata', 15 Bom 647 (P); --'Kalidas Laldas v. Bhaiji Naran', 16 Bom 646 (Q), -- 'Secy. of State v. Luchumeswar Singh', 16 Cal 223 (R).
Permanent tenancy may also be inferred when the tenancy is made for building purposes; but the mere fact that a lease of land is made for dwelling purposes does not make it permanent, unless there is something to show that the building was intended to be or was In fact a masonry building : -- 'Baroda Prosad v. Prosanna Kumar', 16 Cal WN 564 (S). Here the structure put up is a shed. Other pieces of evidence showing permanency like transfer of the tenant's interest to the knowledge of the landlord by selling, mortgaging, partitioning or receiving compensation for lands acquired by Government or subsequent conduct of the parties showing with reasonable certainty that the grant was intended to be perpetual by evidence of long and uninterrupted enjoyment, effecting of valuable improvements and descent from father to son or by other evidence to that effect, have been absent in this case. 'Rajaram v. Narasinga', 15 Mad 199 (T); -- 'Foulkes v. Muthuswami Goundar', 21 Mad 503 (U); -- 'Foulkes v. Rajaratna Mudali', 6 Mad H. C. R. 175 (V); -- 'Viswanatharao v. Chinna-kolandai Nainar', AIR 1915 Mad 680 (W), --'Palaniandi Malavarayan v. Vadamalai', AIR 1916 Mad 1001 (X); -- 'Audi Thevan v. Palant Thevan', 16 Ind Cas 702 (Mad) (Y); -- 'Chidam-baram Sivaprakasa v. Veerama Reddi', AIR 1922 PC 292 (Z).
On the other hand, the plaintiffs have shown that the evidence of D. Ws. 3 and 4 that the Chille people admitted them into possession is false and that they got into possession only through Sri Rednam Venkata Krishnarao, the paternal uncle of the plaintiffs. The case for the defendants was that Sri Rednam Venkata Krishna Rao gave in writing that he would give these sites with permanent occupancy rights and that it was an unregistered instrument. But apart from the fact that there can be no grant of permanent occupancy rights by parcels or by unregistered document, even this alleged unregistered document is not forthcoming because the convenient explanation put forward for the absence of any documentary evidence was that they were all lost in the cyclone, though curiously enough two of the receipts produced by D. W. 2 relate to the years 1921 and 1924.
Why should the great storm take away the material documents which would prove the case of this appellant that she was inducted into possession by Chilla Appaswami and then raised this structure with the help and encouragement of Sri Rednam Venkatakrishna Rao, and leave only these two receipts? There can be no doubt, as pointed by the learned District Muasif, that this story of the storm carrying away all the important papers has been invented to explain the otherwise inexplicable version of the defendant appellant. In short it has not been shown that the appellant defendant has acquired occupancy rights by grant.
10. Both the courts have found that the Madras Buildings (Lease and Rent Control) Act has no application to this case because the lease was in respect of a vacant site and not in respect of a residential house or hut and secondly it is now well settled that a decree in ejectment can be passed by the civil court and all that the Madras Buildings (Lease and Rent Control) Act ensures is that during the subsistence of that Act the civil court cannot execute the decree but the landlord will have to take appropriate steps under the provisions of the said Act. There is no taking away of the jurisdiction of the civil court but only imposition of restrictions in regard to the mode Of execution; -- 'Muhammadunny v. Unniri', AIR 1949 Mad 765 (21) and -- 'Madhavakurup v. Muhammad Sukri', AIR 1949 Mad 367 (Z2).
11. In the result, both the lower courts on adequate and acceptable evidence have found that the defendant appellant has not acquired permanent occupancy rights and that the Madras Buildings (Lease and Rent Control) Act has no application to this case.
12. There is no point of law in this second appeal. It is dismissed.