M. Natesan, J.
1. These two second appeals arise out of two suits filed by the same plaintiff which raised a common question. The appeals have been preferred by the defendants in the respective suits, who have failed in the Courts below. The properties in question are erstwhile ryoti lands in the Zamin Village of Vilambur in Chingleput District. The village has been taken ever by the State under the Estates Abolition Act (Madras Act XXVI of 1948). The plaintiff laid the suit against the defendants for what he termed his melwaram share in the yield from the lands as the absolute owner of the lands, with the vesting of the estate in the State. The substantial defence to the action was that, with the vesting of the estate in the Government, the liability to pay melwaram ceased, and, as occupants of the lands, they need pay only kist to the Government. The defendants denied that they were tenants under the plaintiff. The real question for decision is, as between the plaintiff on the one hand and the defendants who claim to be cultivating the lands on the other, which of them was ' ryot' of the related holding under the Madras Estates Land Act (I of 1908).
2. In these appeals we are concerned with three items of land--two items of land in O.S. No. 175 of 1953 out of which S.A. No. 1363 of 1964 arises and one item of land in O.S. No. 200 of 1953 out of which S.A. No. 1362 of 1964 arises. The lands in question are those containing coconut, mango, jack and plamyra trees and one or two tamarind and cashewnut trees; The plaintiff claims a share in the yield from these trees as his melwaram share. It has been established that the defendants and their prodecessors have been on the lands for generations paying the plaintiff and his prodecessors a 6/10th share of the yield from the trees. There is no dispute in these proceedings about the quantum, if the liability is found. The defendants' case is that notwithstanding their having been sharing the produce with the plaintiff, they are the ryots of the lands, and, on the abolition of the estate, they became absolute owners of the lands, with no liability to share the yield from the lands with a middleman like the plaintiff. The extent of the lands is about 6 acres and about 180 fruit bearing trees are found on the lands. Substantial areas of the land, it must be noted, have been unoccupied. Though the defendants and their prodecessors have been on the lands as actual occupants for generations, at no time were they granted patta by the Zamindar. Nor did they pay kist direct to the Zamindar. A kachayat book, produced by the defendants, does show some payments of kist. But it is seen from the entries therein that the kist was paid at the instance of the jamabandi officers specifically on behalf of the plaintiff, in whose name the patta stood. Of items 1 and 2 of land in O.S. No. 175 of 1953, the plaintiff acquired item 1 under the revenue sale held in 1937. Exhibit A-1 is the sale certificate issued by the Sub-Collector evidencing that the revenue auction was held for arrears of kist for fasli 1344 due by the pattadar Vedachala Mudaliar. Item 2 was purchased in 1878 by an ancestor of the plaintiff under the sale deed Exhibit A-3. The sale deed shows that the property was in the rokka patta of the vendor. This property is found included in the family patta of the plaintiff. Subsequently the patta had been transferred to the plaintiff. The patta Exhibit A-4 contains both the items of land concerned in O.S. No. 175 of 1953. As regards the land in O.S. No. 200 of 1953, a portion of it was purchased by the plaintiff's great grand-father under the original of Exhibit A-9. There is a revenue sale certificate Exhibit A-11, dated 8th October, 1935 in respect of the purchase of the other portion of the property and the plaintiff traces his title to the revenue sale. Exhibit A-10 dated 27th June, 1944 is the patta for the whole of this suit item granted to the plaintiff by the Zamindar. The properties in both the suits, O.S. Nos. 175 and 200 of 1953, are covered by the patta Nos. 32 and 71 issued to the plaintiff, and there is record evidencing payment of kist by the plaintiff to the Zamindar. Exhibit; A-17 and A-18 are receipts for payment of kist by the plaintiff for faslis 1356 and 1357. Thus, we have it that the recognised pattadar of the lands in question is the plaintiff. He has been paying kist due to the landholder. The suit lands have been acquired in revenue auctions held for arrears of kist and by purchase by the plaintiff's ancestors from the pattadars. As regards the defendants, they have been in occupation of the lands and their predecessors-in-title were in occupation even from prior to 1908. But there is no proof that they were ever in possession directly under the Zamindar, paying kist to the Zamindar. They and their predecessors were admittedly paying shares in the yield to the plaintiff and his predecessors. The defendants made a feeble suggestion that the plaintiff and his predecessors were Ijaradars. But the Courts below have found that there is no evidence to warrant it. The plaintiff and his predecessors-in-tit]c were not just farmers of revenue, collecting rent for the landlord. They were not realising from the defendants and their predecessors what otherwise the landholder was entitled to receive from them interposing themselves between them and the landholder. The plaintiff and his predecessors acquired title to the suit properties under the Zamindar either in revenue sales of the kudi-varam interest or by purchase from pattadars of the lands, with liability to pay rent to the landholder.
3. When the plaintiff has made out that he and his predecessors-in-title have been holding the lands under pattas granted by the Zamindar, I fail to see how the defendants can contend that they were themselves ryots of the holdings. May be the plaintiff has not made out that the defendants or their predecessors-in-title were inducted on the lands at any particular period as their lessees or under-tenants. The right to possession and occupation of the lands has been in the plaintiff and his predecessors. It is not as if the lands have been in the patta of the plaintiff and his predecessors-in-title nominally, the defendants and their predecessors as occupants of the lands having direct relationship with the landlord to ignore the pattas. The defendants have been sharing the produce with the plaintiff and his predecessors, like ordinary lessees from them, recognising their acquisition of rights in the lands and the plaintiff and his predecessors were having direct relationship, with the landlord as ryots paying kist to the landholder. If the defendants are lessees of the lands from the plaintiff, the fact that they have been so, for decades, cannot make any difference to the nature of their rights, unless law should otherwise provide. Various laws arc being placed on the statute book giving the actual tiller of the soil who with his family has been on the land for decades, protection from unjust eviction.
4. A certain amount of confusion has been caused in the matter by the nomenclature which the plaintiff has adopted when stating his claim. It is stated in the plaint that the kudiwaram right in the Thope belongs to the defendants, while the melwaram belongs to the plaintiff. While praying for a decree, a declaration was sought of the plaintiff's right to melwaram in the properties. Strictly speaking, there is no such thing as ' melwaram ' or ' kudiwaram ' after the vesting of the estate in the state on the abolition of the estate. If the plaintiff was a ' ryot' under the Estates Land Act, prior to the abolition of estates and the lands in question had been or ought to have been properly included in his holding, he became a ryotwari pattadar of the lands on the abolition of the estate. In a loose sense only it could be said that he was entitled to melwaram from the defendants, the defendants having kudiwaram. It is not unoften that an absolute proprietor's share in the produce is referred to as ' melwaram ' and the share of the produce by the lessee cultivating the land referred to as ' kudiwaram.' It is common to come across the expressions ' melwaram ' and ' kudiwaram ' even in cases of ryotwari lands, and private lands in estates, the distinction between melwaram and kudiwaram being notional and the rights inter se being regulated solely by the contract of lease between the proprietor and the cultivator--see observations of Viswanatha Sastri, J., in Perianna's case I.L.R. (1952) Mad. 741 : (1952) 1 M.L.J. 71. Also human nature being what it is with its frailties, one can see the tenant qua his cultivating-under-tenant or lessee referring to his share as the melwaram and his lessee's as the kudiwaram, not using the words as terms of art but as signifying his sharing of produce as proprietor of the land with the actual tiller of the soil.
5. Mr. Rangaswami Iyengar, learned Counsel appearing for the appellants (defendants) would submit that the defendants were ryots under the Madias Estates Land Act at the time of abolition of estates. But to be a ' ryot' under the Estates Land Act, a person must hold ryoti land in an estate for the purpose of agriculture on condition of paying to the landholder the rent which is legally due upon it. The defendants here were not holding lands under any engagement with any landholder, and what they were paying for their occupation was not rent to the landholder. They were only sharing the produce with the plaintiff who paid the rent legally due on the lands to the landholder. The grant of pattas to the plaintiff established the revenue engagement between the plaintiff and the landholder, with reference to the holdings in question. As pointed out earlier in the present case the pattas were not mere paper records, but having regard to other evidence in the case, evidence of the fact that the holding has been held by the plaintiff on condition of paying the rent to the landholder, thus making him the ryot of the holding. Faintly it was suggested, in the course of arguments for the appellants that the Explanation to Section 3 (15), which provided that a person who has occupied ryoti land for a continuous period of 12 years shall be deemed to be a ryot for all the purposes of the Act, would make the defendants who have been on the lands for generations ryots. But this Explanation applied only to cases where there was already no ryot on the holding. The Explanation was added by Section 4 (6) of the Madras Act (VIII of 1934) and obviously intended to make a determined squatter on unoccupied ryoti land liable for payment of rent to the landholder, giving him occupancy rights. The Explanation, by its own force, cannot transfer the rights of a recognised ryot to his lessee just for the reason his lessee had been cultivating the land for him for over 12 years and actually on the land for the period. Of course, if the plaintiff could be deemed to be the landholder of the holding qua the defendants, that would be a different matter. But a landholder under the Estates Land Act means a person owning an estate or part thereof and of course includes also a person entitled to collect the rent of the whole or any portion of the estate by virtue of any transfer from the owner or his prodecessors-in-title or of any order of a competent Court or of any provision of law. Here right through and during the currency of the Estates Land Act, the plaintiff or his predecessors claimed a share in the produce from the defendants not as rent by virtue of any transfer from the owner or of any specific provision of law. He himself paid the rent due on the holding to the landholder. Under the definition of rent, there can be only one rent due from a holding, and the liability for that was of the plaintiff. If the defendants' liability to the plaintiff is looked upon as rent under the Act, then that would make two persons simultaneously ' ryots ' of the same holding, each independent of the other and to different landholders a tenure not provided for under the Estates Land Act.
6. The decision of this Court in Kakarapalli Pothuraju, In re (1915) 2 L.W. 270 : 28 I.C. 277, is Valuable in this context. In that case, on the finding that the second defendant therein held possession as sub-lessee under the kudiwaram tenant, it was held that the second defendant's possession at the time of passing of the Estates Land Act must be treated as possession of the kudiwaram tenant himself. It was observed that such possession by the lessee would not give him independent kudiwaram right in the land, even if the Zamindar gave patta direct to the lessee. The following observations made in Vellathi v. Smt. Thayammal A.I.R. 1958 Mad. 232, may also be quoted here:
Any pattadar can rent out his land for any rent he likes. Often the rent is higher than the rent he pays to the landlord. But sometimes it does happen that the rent he can get from his lessee is only the same or even less than what he has to pay his landlord. This adventitious circumstance has nothing to do with the question of occupancy rights. It will be monstrous indeed if a tenant from a pattadar having occupancy rights gets the same occupancy rights in those lands himself by virtue of the tenancy. That will make occupancy rights under the Estates Land Act meaningless.
7. In the face of the above observations, the citation of a passage for the appellant from the decision of the Judicial Committee in Butchavva v. Apparo I.L.R. (1921) Mad. 856 48 I.A. 387 : (1921) 41 M.L.J. 669, made in a totally different context, is not apt. That case arose out of a suit for the issue of pattas in respect of certain lanka lands by the lessees of the lands from the zamindar. The lessee, by its terms, contemplated the cultivation of the lands by ryots. Leases were granted on auction. Those who desired to become lessees of the land previously demised, bid at the auction, and the new lease was granted to the highest bidder, whether he was the old lessee or another, and there was no custom of continuity of occupation by the lessee. It was found in that case that the lessees dealt with the lands demised as middlemen subletting them to tenants who held their holdings subject to payment of rent to their immediate landholder. When the lessees claimed to have a rent fixed for all the lands demised to them and to have a patta granted to them, the Judicial Committee observed that the object of the Estates Land Act was to improve the condition and confer new rights and privileges, especially upon the occupaying cultivators or ryoti land, such as the lands in question. The Judicial Committee remarked:
It would be quite opposed to its policy to confer on middlemen who sublet to occupying and cultivating tenants, rights and privileges, at all resembling those conferred on occupying cultivators, and indeed, would result in depriving the latter class of the benefits intended to be conferred upon them. It could hardly be suggested that it was the object of the statute to bring about such a result as this, that the middleman could compel his landlord to grant him a patta at a rent to be fixed by a Court, and the middleman's occupying and cultivating subtenants should in their turn be able to compel their immediate landlord, the middleman, to grant to them pattas of their holdings at rents to be similarly fixed, and this, though the middleman was an absentee who never even visited his estate.
8. That was a case of a confirmed middleman who would be a landholder qua the cultivating tenants, and a farmer of revenue qua the zamindar governed by contract. The decision of this Court in the matter is found reported at Thallaparagada Subba Rao v. Gopisetti Narayaniswami Naidu : (1916)31MLJ339 , pointing out that the definition of the term ' ryot' required the existence of a ryot and landholder and equally required that the ryot should not be landholder himself, Napier, J., observed in the case that as regards the qualification of a ryot that he must be paying rent which is legally due upon the land, the words required that the person should be one who paid rent as defined in the Act. After noticing that there could not be two persons holding the position of the ryot in respect of the same holding, it was observed:
If on the other hand, he is taking from the lands its kudiwaram interest and paying the melwaram to the landlord, then whether he cultivates the land himself or is compelled by circumstances to have it cultivated for him, he is so paying money for the purpose of agriculture.
9. It is also useful to quote here the following, observation of the learned Judge:
There remains to consider the point raised by the learned Advocate-General that the lessee being out of possession cannot sue for a patta. I can find nothing in the Act to support this contention.... The section under which a ryot is entitled to demand a patta is Section 50 and the words are ' every ryot shall be entitled to call upon his landholder to. grant him a patta.' The word ' ryot' is defined as being a person who holds ryoti land in an estate and it has been decided by this Court that mere possession does not constitute holding. The word ' holding ' implies tenure, and I have no doubt that any person who can show to a Revenue Court that he has a lawful tenure is entitled to avail himself of the provisions of Sections 50 and 55 for the purpose of getting a patta.
10. Section 50 (3) of the Estates Land Act provides that the ryot shall, at his request, be entitled to have all the lands in his possession in a single village entered in a single patta. It is clear, therefore, that Section 50 providing for a patta, does not make it a condition that the pattadar must himself personally be the occupant of the land and that the land must be under his personal cultivation. We are not concerned in this case with what rights, if any the defendants by their long and continuous occupation, acquired against the plaintiff. The only point is whether the claim for a share in the produce, as has been paid by the defendants to the plaintiff all these years is tenable after abolition of the estate, on the ground that the plaintiff has no further interest in the lands and the lands are held by the defendants directly under the State. The above discussion shows that this claim is not affected by the Abolition Act. The plaintiff has been a ryot of the holding in question at the material period and not a landholder and the defendants have been lessees under him. Sharing of the produce between the plaintiff and the defendants was not as a rent due by a ryot to the landholder under the Estates Land Act, for the defendant's liability to share the produce to cease with the abolition of the estate. It follows that the Courts below were justified in decreeing the suit as prayed for.
11. Before parting with the case, it has to be pointed out that some of the observations of the learned District Judge are not necessary for disposal of the case on hand. The learned District Judge has examined the question whether the defendants have acquired a right by prescription to a permanent lease of the suit lands and finds against them. It is unnecessary to decide that question in these proceedings. The suits are not for eviction. As I stated at the outset, the short question for consideration is whether the plaintiff is entitled to his share in the produce from the lands, which he would term ' melwaram.' Whether the defendants have prescribed a title to continue in occupation of the lands vis-a-vis the plaintiff has not been the subject of any specific issue by the trial Court. In fairness and justice to the parties this question must be left open for consideration, if occasion should arise. To the extent the learned District Judge has modified the decision of the trial Court in this regard, the judgment has to be set aside and the decree of the learned District Munsif restored. Subject to the above modification, deciding the variation portion of the decree of the trial Court by the appellate Court, the second appeals are dismissed. In the circumstances, there will be no order as to costs. No leave.