William Ayling, J.
1. I have had the advantage of perusing the judgment which my learned brother is about to deliver; and I agree with him in holding that persons possessed of an interest in land of the nature indicated in Exhibit A cannot be regarded as 'ryots' entitled to the benefit of Section 6, Clause (1), of the Madras Estates Land Act; and that on this ground the suit must fail.
2. I also agree that appellants are entitled to refund of excess Court-fee claimed by them.
3. This was a suit under Section 55 of the Estates Land Act brought against the Receiver of the Nidadavole Estate by the two plaintiffs, who were the successful bidders at an auction-lease for the enjoyment of Purushottapalli Lanka for the Faslis 1317 to 1319. The District Judge has upheld the decision of the Deputy Collector dismissing the suit, the reason given by the District Judge being that the term ijaradar in Section 6, Sub-section C, of the Estates Land Act includes a person holding under a lease of this nature and the sub-section prevents such a person acquiring the rights of occupancy conferred on ryots in possession of ryoti land on the date when the Act came into force.
4. Several points have been argued before us for the appellants, the first being that in Sub-section 6 the words 'ijaradar or farmer of rent' must be read as meaning the same thing, the latter words being only a translation of the earlier and that the plaintiffs in this case are clearly not farmers of rent' and so are not governed by the sub-section. Reliance is placed on a decision of this Court in Letters Patent Appeal No. 360 of 1914 1 The language used by the Judges does seem to support this reading but the dictum is obiter, the point not having been argued. It is next contended that in fact an 'ijaradar' and a farmer of rent are identical phrases. The District Judge has held that the word 'ijaiadar' has a more extended meaning and that it includes a lease-holder like the present appellants. He has referred to several decisions and the meaning given to the word 'ijaradar' in Wilson's Glossary, Phillips on 'Land Tenures' and Baden Powell's Systems of Land Tenures in British India.' We have examined the authorities relied on by him but I do not think they support his conclusion. In Chockalinga Villai v. Vythealinga Pundara Sannady 6 M.H.C.R. 164 the Court had to construe a muchilika which was called an ijara muchilika', but it does not purport to define what an ijara is. In Collector of Tanjore v. Ramasamier 3 M.k 342 the Chief Justice says: 'An ijara' may mean a lease of lands, but it is more frequently used as a lease or farm of land revenue, rent or other proprietary rights, as distinguished from a patta or a lease of land for cultivation'. This is not an authority for the proposition that the word 'ijara' in the Act includes a lease of lands. In Krishnasami Pilial v. Varadaraja Ayyangar 5 M.s 345 the Court uses the following language: 'The term ijara' may doubtless be used, as is the term thika in Upper India, to denote any lease. In Wilson's Glossary, it is defined as a lease or farm of land held at a defined rent or revenue whether from Government direct or from an intermediate payer of Government revenue.... The ijara in its special signification is a lease of the lights of the Government or of the intermediate proprietor between the Government and the cultivator.' I cannot read these words as indicating a view of the Court that a lease of lands for cultivation is necessarily an ijara. But, in my opinion, we have not to seize hold of the word ijara in a lease and apply a special meaning to it, but to examine the document, see what is the nature of the right given to the lessee and on those materials decide the plaintiff's rights. The provisions of the lease have been carefully analysed and the important terms extracted in the judgment of the Deputy Collector. They are to be found on page 29 of the record. He states as follows: 'The plaintiff's lease recites circumstances which do not ordinarily find place in a jeroyati patta 6 M.H.C.R. 164 The ijaradars are not residents of the village, (2) the lanka was leased in an auction and the lessees were called ijaradars, (8) the rent was a lump sum and not so much per acre, (4) the land was periodically sold in public auction to the highest bidder, (5) the ijaradars and the rent changed at the end of a lease, (6) the ijaradars had no right to relinquish before the expiry of the lease, the suit lanka was watched by the Estate servants and repaired at great cost, the lessee is not entitled to reduction or remission of rent from any cause.' These points are correctly stated and are material distinctions between the position of these lessees and that of an ordinary ryot, I do not think it necessary to decide whether these lessees are ijaradars or not nor whether Section 6, Sub-section 6, operates to deprive them of the rights they claim. I prefer to decide the question on the true construction of Section 6, Clause (1), read with the interpretation Section and other sections of the Act, and the broad policy of the Act. The Act was passed for the purpose of defining the relations between land-holders and their cultivating tenants. Section 6 is the third Section in the Act defining the relative rights of the parties. Under Section 4 a landholder is entitled to collect rent in respect of ryoti land in the occupation of a ryot. Under Section 5 the rent of ryoti land is made a first charge upon the holding. These two sections state the broad rights of the laud-holder. Then comes Section 6, which confers a new and important right on every ryot. This Section provides that 'Subject to the provisions of the Act every ryot now in possession or who shall hereafter be admitted by a land-holder to possession of ryoti land...situated in the estate of such land-holder, shall have permanent right of occupancy:' that is to say, that whatever be the terms as to period in the patta and muchilika under which the ryot was, on the date when the Act came into force, holding the land, a permanent right of occupancy became attached to that holding whether he himself continued to hold it or any other ryot was subsequently admitted subject, of course, to the other provisions of the Act. Chapter IV makes it clear, what class of persons were to be the beneficiaries under the Act, for it provides for exchange of pattas and Muchilikas. These terms were well-known before the passing of this Act and are to he found in the Madras Rent Recovery Act, VIII of 1865, where they are defined as being the engagements of the land-holders and the tenants. The tenant has now become a ryot and the object of Section 6 is to give a permanent right of occupancy to all tenants, whereas, prior to the introduction of the Act, such permanent right had been held to exist only in cases of long standing occupation for the purpose of cultivation. Unless, therefore, there is language in the Act which indicates persons other than those who prior to the Act as tenants were exchanging pattas and machilikas with their land-holders, I am clear that the scheme of the Act must be limited to the ordinary cultivating tenants in an estate.
5. I now proceed to analyse Section 6, Sub-section (1). The teem 'ryot' is defined in Section 3, Sub-section 15, as a person who holds for the purpose of agriculture ryoti land in an estate, on condition of paying to the land-holder the rent which is legally due upon it.' This definition requires the existence of a ryot and a land-holder and equally requires that the ryot should not be a land-holder himself. Now a 'landholder' is defined as a person owning an estate or part thereof, and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner,' etc. It has been held in Bachu Perrojagar v. Bhogireddy Suhbarayadu 12 Ind. Cas. 71: (1911) 2 M.W.N. 351, that the latter part of this sub-section applies to an ijaradar and I am of opinion that, whether the lessee in this case is an ijaradar or not, he is a person entitled to collect the rents by virtue of a transfer from the owner.' It is admitted that the lessees did not cultivate the lands themselves; but sub-leased them to cultivating tenants. Clause 6 pf the lease assumes that the land will not be cultivated by the lessee, for it provides that neither you, nor the ryot that cultivated it, nor the merchant who purchased it, nor any one else, shall remove the tobacco and other produce raised on the lanka until the full ijara amount has been paid to the estate.' The lease, therefore, contemplates the existence of ryots other than the lessee and assumes his right to admit persons for the purpose of cultivation on such terms as to rent as he is able to agree on. It is obviously intended to put him in the position of the land-holder for the period of his lease subject to certain restrictive covenants and, in fact, does constitute him a person entitled to collect the rents of that portion of the estate leased by virtue of a transfer from the owner. He is, therefore, in my opinion, a person having the qualifications of a land holder, and, as such, cannot be a ryot.
6. The next question is whether he is a person who holds for the purpose of agriculture on condition of paying the rent which is legally due upon it.' These words require that the person should be one who pays rent as defined in the Act. Now rent means 'what is lawfully payable in money or in kind or in both to a land-holder for the use or occupation of land in his estate for the purpose of agriculture'. Here we get the requirement that the rent should be paid to a land-holder and the further requirement that it is to be paid for the use and. occupation of land for the purpose of agriculture. In one sense, it can be said that every person drawing money from a cultivated property is receiving money lawfully payable for the use of land for the purpose of agriculture.' But it is obviously necessary to limit this wide application if the Act is to be construed according to its true import. If a zemindar granted the greater portion of his estate on a lease for 99 years, that lessee, in one sense of the word, might be said to be paying money for the use and occupation of land for the purpose of agriculture' with the result that, if that sense were accepted, the lessee would he a ryot. It is obvious, however, that this can never have been the intention of the Legislature, for this reason, namely, that there cannot be two persons holding the position of ryot in respect of the same holding, and if the lessee were the ryot the actual cultivating tenant could not acquire any permanent rights of occupancy, because he would not be paying rent to a land-holder but to a ryot and the whole object of the Act would be frustrated. To my mind it makes no difference that the lease in this case is not for a long period but only for three years. It may be difficult in some cases to say whether a particular person is a ryot or not. But one test ca be applied from the recognised division o the interest in cultivable land into melvaram and kudivaram interests, If on examination of the whole facts of a case, appears clearly that the lessee is interested with the zemindar in the melvaram either by having bought it outright from him for a term as in the case of a farmer o rent, or by having leased it from him be is not paying money for the use of lane for the purpose of agriculture'. If, on tin other hand, he is talking from the land its kudivaram interest and paying the melvaram, to the landlord, then, whether he cultivate the laud himself or is compelled by circumstances to have it cultivated for him, he is so paying money for the purpose of agriculture. Another test is that afforded by the words hereafter admitted' by the land-holder to possession of a ryoti land. These words clearly have reference to the practice in existence at the time of the passing of the Act under which the cultivating tenants took up lauds in the zemindary. The Legislature could not, with reference to persons already in possession, use the phrase 'every ryot who has been admitted,' because there were many cases in which the possession of the tenant could not be shown, to have originated by admission, this in fact being the special class in whom permanent rights of occupancy wore held to exist by the decisions of this Court. It is, therefore, necessary to use the general phrase such as every rent now in possession', but I have no doubt that the Legislature intended that phrase to apply to the class of persons who were being admitted to possession, although the circumstances of their coming in to possession were no longer traceable.
7. These considerations apply to all lessees, but with regard to the present lessee there are special circumstances which still further differentiate the case. How is impossible to bring this lessee within the provisions for ascertainment of rent? The lease terminated a year after the Act came into force. If the lessee is a ryot he is entitled to the benefit of Chapters III and IV, that is to say, he can sue before the Collector and have his rent fixed. To allow such a proceeding would be to ignore me circumstances under which he came into I possession. The land is put up for auction on the express understanding that the rights of the purchaser were to be limited to a period of three years and the price bid by the purchaser was on that basis. Admittedly, the owner of the estate contemplated resuming his rights at the end of three years and, admittedly, the lessee could not be compelled to hold the land for any longer period, It is difficult to see on what principle it can be suggested that, having agreed to pay rent of a rather speculative nature for three years, he is entitled to hold the land for ever. What rent is be to pay? Is this speculative rent which was lawfully payable by him at the time the Act came into force to be presumed to be fair and equitable' within the meaning of Section 28; and how is the contrary to be proved? A lanka is land of a variable area. Half of it may be washed away by a flood. Even if not washed away, portions of it may baooma uncultivable by deposit of sand. Is the Collector to fix a rent for a reduced cultivable area, or the same area rendered less valuable for cultivable purposes, and if so, on what basis?. It seems to me that this test also is fatal to the contention of the plaintiffs in the present case: for it is impossible, of course, that anything can be rent which is not subject to the provisions of Chapters III and IV. I can see great difficulty in applying the provisions of this Act even to a case where lanka land of this description was let out in parcels to actual cultivating tenants, though I express no final opinion on that point, Hut I am clear that a lessee of the character of the present plaintiff is not a ryoti within the meaning of the Act. Oar attention has been called to a case decided by this Court, Letters Patent Appeal No. 48 of 1916, in which it appears to have been held that lessees of this character are not farmers of revenue but cultivating ryots of ryoti land. In that, case it is certainly clear that the lease was of a lanka land let in the same manner as in the present case. Unfortunately we have not the advantage of any reasoning by which the Learned Judges arrived at their conclusion and, with great deference, I cannot agree with it. I have examined the provisions of the Act very carefully and as a result 1 am bound to dissent from that decision.
8. There remains to consider the point raised by the learned Advocate-General that the lessee, being out of possession, cannot sue for a paila. I can find nothing in the Act to support this contention. Admittedly the result of his argument would lead to this, that, if a zemindar forcibly ejected a tenant, the latter would be obliged to go to a Civil Court to recover possession before he can sue for a patta. The section under which a ryot is entitled to demand a patta is Section 50 and the words are PI very ryot shall be entitled to call upon his land-holder 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.
9. In the result the appeal fails and is dismissed with costs. The appellants are entitled to refund of the amount of the extra Court-fee imposed by the lower Appellate Court and also that paid in this Court. Vide Notification No. 2419 of May 12, 1909, Fort St. George Gazette.
Judgment in Letters Patent Appeal No. 360 of 1914, Sri Raja Mavyam Mahtthikshmamma Garu v. Nurukonda Ramiah is as follows:
Sadadva Aiyar and Moore, JJ--Though ijaradar usually moans 'farmer of rout' (see Clause 6 of Section B of the Estates Land Act), the ijara muchilika on which the plaint lands were let to the respondents in this case was clearly a muchilika executed by a cultivating tenant (and not by a farmer of revenue) and both parties clearly intended it to be treated as such. The word 'ijara' seems to have been used only to indicate that the landlord claimed a right to change the cultivating tenants and the amount of rent duo to him from time to time.
On the merits, therefore, the order sought to be revised was right and it is unnecessary to decide the difficult question whether this Court is an Appellate Court over the Civil Tribunals established by the Governor-General in Council under the Scheduled Districts Act of 1874 for the Godaveri Agency tracts affected by that Act.
The Letters Patent Appeal is dismissed. There, will be no order as to costs.