1. The original suit in this case was for ejectment of the defendants from the suit lands. These are situated in Paydimukkala Agraharam, an entire inam which is geographically within the zamindari of Vuyyur. Part of the agraharam including the plaint lands, 4 acres, was bought in by the zamindar about 1873 and had apparently been treated from that date as home farm land. The plaint land was in fasli 1306 in possession of defendant 1 who leased it under Ex. C. In fasli 1313 he relinquished the four acres and this was granted as a service inam to one Venka-boyudu who leased it to defendant 1 for four years under Ex. M. In fasli 1316 the zamin came under the Court of Wards. It resumed the inam and issued, kambattam patta to defendant 1 for fasli 1316. In the next fasli a seri patta, Ex. VI, was issued to him, but he-refused it. He, however, remained in possession. In fasli 1S21 a patta, the nature of which is in dispute, was issued to Ranganayaki, the daughter of Venkaboyudu. But she did not obtain possession from defendant 1. Plaintiff purchased from this lady and now sues on the strength of the patta issued to her for ejectment of defendant 1 and others.
2. The defence was that the zamindar had explicitly or implicitly conferred occupancy rights on the defendants long; before the patta was issued to Ranganayaki and that therefore that patta was useless and unenforceable. The first Court held that no pattah conferring; occupancy rights had been obtained by the defendants, that there was no proof of any re-grant to the defendants after the resumption by the Court of Wards, that defendants' 1, possession must be deemed all along to have been the possession of Venkaboyudu and Ranganayaki as he came into possession originally as a tenant of Venkaboyudu, and that Ranga-nayaki's patta right must prevail. The District Munsif, therefore, gave a decree-to the plaintiff. The lower appellate Court agreed that the defendants had not. proved any occupancy right but held that the patta issued to Ranganayaki also did not confer any occupancy right on her and, therefore, the plaintiff had no title to eject and it dismissed the plaintiff's suit.
3. In second appeal to this Court the cases was first heard by Spencer, J., who, holding that the lower appellate Court had made several mistakes of fact and had not rightly considered the documents, remanded the appeal for a finding whether having regard to Section 6, Madras Estates Land Act, Ranganayaki had been admitted to the possession of ryoti land in the Vuyyur estate at any time after 1st July 1908 and whether plaintiff obtained a valid transfer of such right from Ranganayaki. The lower appellate Court has submitted a finding in the affirmative on both points and I have heard the second appeal after submission of this finding.
4. The findings are, so far as they go, in favour of the appellant. The respondent attacks them on the ground that they also are based on mistakes of fact and on the ground that the remand order itself was based on an erroneous idea that Section 6, Madras Estates Land Act, will apply, whereas it cannot be applied since, the plaint land is not land in an estate within the meaning of the Act. On the latter point the appellant rejoins that I am bound by the order and the findings of Spencer, J., and cannot disregard them. I am prepared to concede as a general principle that a Judge of this Court coming fresh to the hearing of an appeal which has been partly heard by another Judge is bound by any finding that the other Judge may have come to in the course of the hearing of the appeal. But in the present case it appears to me that Spencer, J., did not come to any definite finding that Section 6, Estates Land Act, does apply. The learned Judge in his order holds that there are indications that the zamindar treated the land at first as private or home farm land and then went on to say:
But Section 6, Madras Estates Land Act, created an occupancy right in favour of every ryot in possession of ryoti land at the coming into force of that Act; and also every person who was admitted by a landlord into possession of ryoti land at any subsequent date.
5. There was, therefore, no decision by him that the land had been converted to ryoti land before 1st July 1908, and that was evidently a point, and a very essential point, left for the lower appellate Court to determine on the remand, and the lower appellate Court recognized that this was a point left for its decision.
6. Now its decision on this point is very vague. It admits it does not know when the conversion to ryoti land took place. Why it holds that any conversion did take place is not clear. It appears to think that Ex. DD, a muchilika executed by Ranganayaki for fasli 1321, indicates that the land had then been converted into ryoti, and that as there is no proof that it had been converted into ryoti before that, it must be taken that Ranganayaki was admitted to ryoti land by and on the date of Ex. DD. So far as I cam see, it relies for this position merely on the wording of Ex. DD, and I am clear that that wording will not take the case so far. Ex. DD is styled a visabadi muchilika for a period of one year, fasli 1321, and is executed by the guardian of Ranganayaki, who is styled jeroyatidar,, in favour of the Court of Wards' manager. The term ' visabadi ' does not imply necessarily permanent occupancy right, nor will the term ' jeroyatidar ' imply that or that the executant was occupancy ryot of the plaint land. There are other lands in Ex. DD which might justify the epithet. Besides which, if ' jeroyatidar ' in itself is enough to prove that the person so described is an occupancy right holder of the land, then defendant 1 himself was so described in Ex. VI, the pattah for fasli 1317, four years earlier, for these very plaint lands, the patta which he did not accept. This patta is also described as a visabadi patta.
7. Further it is at least open to serious doubt whether the Court of Wards, being a sort of trustees for the real owner, has a legal right to lessen that owner's rights by converting his private lands into ryoti lands and conferring occupancy rights on the occupiers. This is not a point which has been raised so far in this case, but it is certainly a point to be considered in deciding whether there really was any conversion of the land from private land; into ryoti land.
8. The patta corresponding to Ex. DD-has not been filed by the plaintiff, so that. I am unable to say what rights it did confer. An imperfect copy, Ex. DD (1) was filed in the lower appellate Court on a petition by the plaintiff in order-that
no adverse inference may be drawn against him on the ground that he failed to produce the patta.
9. But it was filed in the lower appellate Court merely for the purpose of identification and cannot be used for any other purpose. The original patta seems to have been filed once as Ex. A in a small cause suit of which Ex. IX is the judgment, but that Ex. A has not been produced. Therefore, as the lower appellate Court has rightly held, there is no other evidence than Ex. DD, and that to my mind is insufficient to show that the land was converted into ryoti land.
10. It has been argued that defendant 1 in para. 9 of his written statement has made an admission that a seri patta was issued to Ranganayaki and this is coupled with the evidence of P.W. 4, the head clerk of Vuyyur estate, that seri pattas are issued only to jeroyati lands with occupancy rights. Even if so, such an admission inter partes cannot have the effect of converting what is in fact not ryoti land into ryoti land or of conferring on either party occupancy right in land which is not ryoti land. It may be argued that there was no dispute as to whether the land was ryoti land or not and that the real point in dispute was as to the point of time at which it became ryoti. No doubt defendant's original contention was that he got a seri patta before the plaintiff got his, but the plaintiff's real contention also amounted to saying that the land only became ryoti when Ranganayaki got her patta. It is not really open to him to contend that -defendant 1 was Ranganayaki's tenant all along by force of Ex. M and, therefore, defendant 1's possession was Ranganayaki's possession. There are two strong reasons against the adoption of that view, first that from fasli 1318 onward Ranganayaki treated defendant 1 as a trespasser and sued him as such-Exs. P and IX, the second of which suits actually was dismissed on the ground that Ranganayaki had no occupancy right or possession on the date of suit, and second, that the resumption of the inam in 1316 put an end to any rights she had had in the land. Therefore plaintiff's title can date back only to the day when Ranganayaki was given a patta in 1321. If the land was ryoti before then, then undoubtedly defendant 1 was in possession on his own account, and if, as the plaintiff contends, 'S. 6, Madras Estates Land Act, applies, then defendant 1 would, by force of this section, have obtained occupancy right on 1st July 1908; so that the plaintiff is driven back to the position that the land was not ryoti before the grant of patta to Ranganayaki and that it only became ryoti impliedly because that pattah was issued. Now, when each side founds its contention that the land is ryoti merely on the ground of the existence of a seri patta which is not produced by either of them, the real decision on the question, whether the land is ryoti or not, depends on a consideration of whether the grant of such seri patta has been satisfactorily proved. That the defendant did not obtain such a patta both the lower Courts agree. That the plaintiff had not obtained it is the finding of the lower appellate Court. This was the real standpoint from which the lower appellate Court viewed the case, although I am not sure it viewed the issue quite clearly enough. But though it made some mistakes of fact in deciding against the grant of seri patta to Ranganayaki, these mistakes do not vitally affect its conclusion, and I am in agreement with it that the plaintiff has not proved that any seri patta was issued to Ranganayaki and, therefore, has not proved that the original character of the land as private land has been converted into ryoti.
11. That being so, Section 6, Madras Estates Land Act, has no application even though it be held that the land is within an estate. Even this latter point is very doubtful though it need not be decided here. It was held by this Court in Veerabhadrayya v. Venkanna : (1913)24MLJ659 that this agraharam is not an estate since the original grant was of both varams. It has been argued before me that the purchase by the zamindar will have the effect of including in his main estate such of the land as has been purchased by him. It is an argument on which it is not necessary to pronounce here and on which I should not pronounce without fuller consideration.
12. An argument on estoppel was reserved by Spencer, J., for hearing at the final hearing of the appeal. It was contended by the plaintiff that defendant 1 is estopped by Ex. M, his lease, from contending that Venkaboyudu, his original lessor and the plaintiff's predecessor, was not in possession all along. But obviously the resumption put an end to any title Venkaboyudu or his successor had. The paramount title-holder stepped in the shape of the Court of Wards and defendant 1 attorned to it, and it accepted kist direct from him for two years after the resumption: see Ex. XIV series. Defendant 1 is, therefore, not estopped from denying now that his original lessor or his successors had title on the date of suit: see Ramasami Thevan v. Alaga Pillai : AIR1925Mad143 , which is confirmed on appeal in a judgment reported in Alaga Pillai v. Ramasami Thevan A.I.R. 1926 Mad. 187.
13. In view of these considerations I agree with the lower appellate Court's finding and dismiss this appeal with costs. C.M.S.A. 63 of 1923 is also dismissed. No order as to costs.