1. Delivered his 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 of 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 been 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 the Division Bench of this Court has been put forward; Sivapada Mudali v. Pitty Thayagaraja 27 Ind. Cas. 383 . No doubt that decision supports the contention in 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 a royti 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 sold 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 subsection, the expression 'every ryot now in possession' shall include every person who, having held 'and as a ryot, continued in possession of gush land at the commencement of this Act.' If we are to give any force to the phrase having held land as a ryot', it must mean that 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 a person whose possession is that of a mere trespasser and who has no sort of right in the land recognised by 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 name 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 P The fast that the land does not lose its ryoti character has undoubtedly this effect, that if the land-holder thereafter lets any other tenant into possession for the purpose of cultivation then that tenant will acquire occupancy rights in accordance with the provisions of the Act. That is to say, by the purchase this landlord does not add to his house-farm lands and the land remains a ryoti land throughout. The decision of the Full Bench in Gorakala Kanakaiya v. Janardha Padhai 8 Ind. Cas. 736 does not, in my opinion, in any
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