K.S. Venkataraman, J.
1. This is an appeal by the second defendant in a suit which was filed before the learned District Munsif of Melur on 2nd January, 1958, for injunction restraining the defendants from interfering with the possession of the plaintiff. The suit was dismissed by the trial Court on the ground that the plaintiff had not proved her possession on the date of the suit. But on appeal preferred by the plaintiff this finding was reversed and the learned Subordinate Judge found that the plaintiff was in possession on the date of the suit, and was still in possession.
2. During the pendency of the appeal before the learned Subordinate Judge, the first defendant is alleged to have created a lease in favour of the second defendant. On behalf of the second defendant it was pleaded that he was not liable to be evicted by virtue of the provisions of the Madras Cultivating Tenants' Protection Act, XXV of 1955. The learned Subordinate Judge without discussing this point at length held that the title of the lessee could not be higher than that of the lessor, and when the lessor was liable to be evicted, so too the lessee, the second defendant.
3. In this appeal which has been preferred by the second defendant, the point of law urged by Sri V.V. Raghavan, the learned Counsel for the appellant, is that under the Madras Cultivating Tenants' Protection Act, the second defendant-appellant is entitled to protection from eviction. Now the definition of 'cultivating tenant' is 'cultivating tenant in relation to any land means a person who carried on personal cultivation on such lands under a tenancy agreement express or implied.' It will be seen that from the finding of fact of the lower appellate Court, which is binding on me in Second Appeal, the appellant is not even in possession and therefore cannot be said to be carrying on personal cultivation. Therefore the argument breaks even at the threshold. Further when we turn to Section 3 of the Act, which confers a Substantive right of immunity from eviction on a cultivating tenant, it runs thus:
(1) Subject to the next succeeding Sub-sections, no cultivating tenant shall be evicted from his holding or any part thereof, during the continuance of this Act, by or at the instance of his landlord, whether in execution of a decree or order of a Court or otherwise.
It will thus be seen that the cultivating tenant is protected against eviction only by or at the instance of his landlord. This protection may avail him as against his lessor, his landlord, the first defendant, but cannot avail him as against the plaintiff. Between the plaintiff and the appellant there is no relationship of landlord and tenant. The wisdom underlying this provision can be illustrated by imagining what would happen if the contrary position contended for by the appellant were to be accepted. If as the learned Counsel contends, the appellant is entitled to the benefit of this immunity from this eviction, it would mean that what a trespasser in the land cannot directly get against the true owner, he can secure to a sub-lessee from him by simply pretending to let out the land to the sub-lessee. Surely the law cannot be so absurd as that. The view which I have indicated above has been taken by no less than three Judges of this Court, Panchapakesa Ayyar, J., in C.R.P. No. 353 of 1957; Ramaswamy, J., in Pubbiri alias Perumal Goundan v. Govinda Mudaliar : (1957)2MLJ617 and Rajagopalan J., in Siluvai Ferando v. Pancres Laon (1958) 71 L.W. 461. I followed the last two mentioned judgments in my own judgment in Second Appeals Nos. 541 and 619 of 1960 dated 10th December, 1962.
4. The appeal fails and is accordingly dismissed.