1. This suit was brought by the Court of Wards Manager of the estate of Mirzapuram on behalf of the minor Zemindar, who is a landholder under the Madras Estates Land Act (Act I of 1908), to evict the defendants on the expiry of their lease in Fasli 1322. In second appeal, three questions were argued: first, whether the land in suit is 'old waste', secondly, whether the tenants of 'old waste' can be ejected, and thirdly, whether mesne profits can be decreed by a Revenue Court.
2. It was asserted in paragraph 3 of the plaint that the lauds in the schedule of the plaint were 'old waste', and in the written statement there is no specific denial of this fact. Therefore, applying rules 3 and 5 of Order VIII of the Code of Civil Procedure (Act V of 1908), the defendants must be taken to have admitted the fact that the land in suit was 'old waste', and it is not open to them now to set up a contention to the contrary.
3. The defendants held on a lease for 10 years from Faslis 1313 to 1322 under a registered Muchilika, dated 24th April 1903. Section 153, Clause (e), of the Madras Estates Land Act provides for the ejectment by suit of a non-occupancy ryot on the ground that the term of his lease has expired in cases where he has been admitted to occupation under a registered lease for a term exceeding 5 years. To this section a proviso was added by Section 8 of Madras Act IV of 1909 (Madras Estates Land Amendment Act; which runs thus: 'Nothing in this section shall affect the liability of any person who is a non-occupancy ryot according to the provisions of this Act to be ejected on the ground of expiry of the term of a lease granted before the commencement of this Act'. It has been held that this addition to Act 1 of 1908, not being worded as a proviso, furnishes an additional ground of ejectment (see the notes at page 197 of Mr. Krishnamachariar's Madras Estates Land Act). Whether this view is correct or whether the words thus added were intended merely to amplify and explain the preceding section, it is clear that the section as it now stands gives ample power to a landholder to sue in a Revenue Court to evict a non-occupancy ryot occupying land in his estate under a lease for more than five years granted before the commencement of the Act and holding over after the term has expired. Where the words of the section are so plain, it is impossible for the defendants to contend that the Act does not provide for their being ejected after the term of their lease has expired. The only authority in their favour is that in Chaganti Atchaparazu v Kristna Yachandrulavaru 19 Ind. Cas. 225 : 18 M.L.T. 329 : (1913) M.W.N. 878 where it was held that a ryot of 'old waste' could not be ejected on the ground of expiry of a term of lease contained in a contract entered into before the Act came into force. But this decision overlooked Clause (e) of Section 153 in so far as it contained an observation in two places that Section 153 did not make the expiry of the lease a ground for ejectment. This was pointed out by me in Ponnuswamy Padayachi v. Karupudayan 24 Ind. Cas. 217 : 15 M.L.T. 299 : 1 L.W. 218 where the correctness of that decision was doubted and Ponnuswamy Padayachi v. Karupudayan 24 Ind. Cas. 217 : 15 M.L.T. 299 : 1 L.W. 218 has since been followed by Oldfield, J., in President, District Board, Tanjore v. Kannuswami Thondaman 35 Ind. Cas. 121.
4. It is suggested that the defendants, who are ryots of 'old waste', are not necessarily non-occupancy ryots within the meaning of the proviso to Section 153. But this contention is inconsistent with Section 6, Clause (3) of the Act, and in Mr. Ramadoss's Commentary on the 'Estates Land Act' at page 256 and in Mr. Krishnamachariar's book at page 195 a category of non-occupancy ryots is given which includes ryots of 'old waste'. From the definition in Section 3, Clauses (7) and (12), it is clear that a 'ryot' is the term used in the Act' for a tenant of 'ryoti' land and that land may be 'old waste' and yet be 'ryoti land', the term 'old waste' merely denoting that it has not been occupied for 10 years by anyone with a right of occupancy.
5. The last question is whether mesne profits can be decreed by a Revenue Court. On this point, I think that Section 45 authorises a Revenue Court to award this form of rent. In Kamulammal v. Athikari Sangali Subba Pillai 48 Ind. Cas. 615 : 35 M.L.J. 11 it was held that a Revenue Court has this power against any persons, even trespassers, in unlawful possession of ryoti land.
6. Another question that was referred to in the District Court but not taken in second appeal, is that of the jurisdiction of the Revenue Courts to try a suit of this nature. Such a contention could not be raised with any chance of success, in view of Section 153, read with Article, 19 of Part A of the Schedule to the Act, and in view of the recent decision in Yelikepalli Venkaya v. Venkataramayya Apparao 43 Ind. Cas. 711 : 33 M.L.J 757. It is not necessary to do more than to point out for the District Judge's information that he was mistaken in supposing that the case in Ponnuswamy Padayachi v. Karupudayan 24 Ind. Cas. 217 : 1 L.W. 218 would support an objection on the score of jurisdiction of the Revenue Court in this case, seeing that the lease on which the defendants occupied the plaint land and held over on its expiry was one for a term exceeding 5 years, for which Clause (e) of Section 153 expressly provides, and that Ponnusawmy Padayachi v. Karupudayan 24 Ind. Cas. 217 : 15 M.L.T. 299 : 1 L.W. 218 dealt only with leases for a period of less than 5 years which terminated before the Act came into force, for which there is no express provision in Section 153, and thus no jurisdiction is conferred upon the Collector by Article 19 of Part A to the Schedule which applies to suits for eviction under this section only (see column 2) and the words 'before the Collector' in Section 153.
7. As the contentions raised by the appellant's Vakil have failed, the second appeal must be dismissed with costs.
Sadasiva Aiyar, J.
8. I wish to add only a few words on the additional provision enacted in 1909 and added to Section 153 of the Estates Land Act. The body of the section enacts that a non-occupancy ryot (including a non-occupancy ryot in possession of old waste') shall be liable to ejectment on one or more of the grounds (a) to (e) mentioned therein 'and not otherwise'. Then this addition of 1909 by the Legislature enacted that 'nothing in this section shall affect the liability of any person who is a non-occupancy ryot according to the provisions of this Act to be ejected on the ground of expiry of the term of a lease granted before the commencement of this Act.' I find it impossible to hold that this addition was not intended to add one more independent ground to the grounds (a) to (e) on which the tenant was liable under the unamended section to be ejected at the suit of the landlord. The ingenious argument of Mr. Nagabhushanam that this addition out down the meaning of the plain language of Clause (e) so as to confine the expression 'a registered lease' found in that clause to a lease executed after the Act came into force and so as to exclude a registered lease deed executed before the Act came into force, did not interest me at all as valid. It is difficult to believe that the Legislature, while granting the right to the landlord to eject on the expiry of the lease term a tenant of 'old waste' to whom a registered lease deed for a term exceeding five years was granted after the Act came into force, intended to refuse the same right to eject to the landlord if the lease-deed whose term has expired had been granted before the Act.
9. As regards the other points dealt with in the judgment of my learned brother, I express my concurrence and I have nothing to add.