Rajagopala Ayyangar, J.
1. The order impugned in this writ petition for the issue of a writ of certiorari is that of the Revenue Court which directed restoration to possession under Section 4 of the Madras Cultivating Tenants' Protection Act, 1955 (Act XXV of 1955). The first respondent alleged that he had been cultivating the land of an extent of 2 acres and 42 cents in the village of Allur, Tiruchirappalli taluk.
2. The petitioner is the owner of the land now in controversy. The first respondent, Subramaniam, was in possession of this land as a cultivating tenant on 1st December, 1953. He filed an application out of which the present proceedings arise, R.A. No. 81 of 1956, in the Revenue Court, Tiruchirappalli, for restoration to possession of his holding under Section 4(1) of the Madras Act (XXV of 1955). The petitioner resisted this application but the same was allowed by the Revenue Court and it is the validity of this order that is challenged in this petition. A few facts are necessary to be stated to appreciate the point raised in the petition. The first respondent alleged that he was in possession of the land as a cultivating tenant on 1st December, 1953, the date which is crucial for the application of Section 4 of the Cultivating Tenants' Protection Act. The landlord denied it and stated one Sangili was the person then in possession. The Revenue Court, however, has found as a fact that the case set up by the landlord was not true and this being a finding of fact this contention has not been repeated before me. The petition must, therefore, proceed on the basis that the first respondent in whose favour of Revenue Court has passed an order was in possession of the property in dispute on 1st December, 1953. He continued to be in possession till 24th June, 1955, when by an order of a Magistrate under Section 145, Criminal Procedure Code, the lands were attached. Subsequently the landlord died on 13th July, 1955. Meanwhile when the lands were under attachment and were in the hands of the receiver appointed by the Magistrate they were leased to one Murugan for a period of one year. Murugan relinquished possession of the land at the end of the term in or about February, 1956. It was thereafter that the first respondent, the previous cultivating tenant filed this petition for restoration to possession. Section 4 of the Act under which this application was made runs:
Section 4(1) : 'Every cultivating tenant who was in possession of any land on the 1st December, 1953 and who is not in possession thereof at the commencement of this Act shall, on application to the Revenue Divisional Officer, be entitled to be restored to such possession on the same terms as those applicable to the possession of the land on the 1st December, 1953.
As the learned Counsel for the petitioner relied on the terms of Section 4(2) I will set out portions of that Sub-section which are material to the present case.
Section 4(2) : 'Nothing in Sub-section (1) shall be deemed to entitle any such cultivating tenant to restoration of possession...(iii) if subsequent to 1st December, 1953, the landlord has bona fide admitted some other cultivating tenant to the possession of land and such other tenant has cultivated the land before the commencement of this Act:
Provided that where such other tenant is in possession either as owner or as tenant or as both of any other land which exceeds the extent specified in the Explanation below and the cultivating tenant who was evicted is not in possession of any land or is in possession of any other land which is less than the extent specified in the said Explanation, the cultivating tenant shall be entitled to restoration of possession.
3. The respondent was not represented at the hearing and the petition was heard ex parte. Mr. Narayanaswami Iyer, learned Counsel for the petitioner, urged two points in support of his contention that the order of the Revenue Court was erroneous and without jurisdiction. The first was that the first respondent did not satisfy the terms of Section 4(1) as a person who was not in possession thereof at the commencement of this Act that is 27th September, 1955, because he ceased to be in possession by reason of the order of the Magistrate and not by reason of any eviction by the landlord. For this purpose learned Counsel relied on the judgment of this Court in Kuppammal v. Vellingiri Gounder (1957) 1 M.L.J. 293. I however, consider that the decision does not render the dispossession of the first respondent (cultivating tenant) in this case outside Section 4(1). The petitioner is relying upon a lease effected by the receiver appointed by the Magistrate after attachment as if it were one by himself and it is on this basis that the argument about the applicability of Section 4(2) was rested. It cannot be that the receiver represented the landlord for the purpose of admitting the second counter petitioner to possession but that the receiver who came into being by an order of the Magistrate would not represent the landlord for the purpose of dispossessing the first respondent from possession. It is not anybody's case at least now that the first respondent surrendered possession. In those circumstances I consider that the case of the respondent falls within the terms of Section 4(1) of the Act and that he is entitled to the protection afforded by that provision.
4. The second point urged was that subsequent to 1st December, 1953, that is in or about 1955 after the receiver appointed by the Magistrate took possession there was a lease of the land under which some other cultivating tenant was admitted to possession of the land and that such other tenant had cultivated the land before the commencement of the Act. It was urged that Murugan the person so admitted was a cultivating tenant and that he did not fall within the Proviso of Section 4(2)(iii) and that his admission to tenancy, even though he relinquished possession of the land subsequently, was a bar to the restoration of possession. I feel unable to accede to this argument either. I am inclined to read Section 4(2)(iii) as meaning that restoration to possession of a cultivating tenant will not be possible if there is another tenant who is bona fide in possession of land and who does not fall within the terms of the Proviso. If therefore the tenant had relinquished possession before the date of the application for restoration to possession there is no bar to the application of Section 4(1).
5. The language of the Proviso in speaking of the other tenant uses the present terms 'is in possession as owner or as tenant' indicates that it is the present possession of the land of such a bona fide tenant that constitutes the bar and not the possession of some tenant who enters upon the land cleared out before the date of the application. In my judgment there are no merits in this petition which fails and is dismissed. The rule nisi will be discharged.