1. In this case the plaintiff is a pattadar under the zemindar of Vizianagaram. He brought this suit for the recovery of rents from the defendant as well as for ejecting him from his holding. The land is situated in a jeroyiti village within the zemindari estate. The first Court granted a decree both for the rent and for ejectment, but on appeal, the Subordinate Judge has reversed the decree so far as the claim for ejectment goes, on the finding that the defendant has occupancy right in the land and that he is not, therefore, liable to be ejected. The question argued before me is as to the existence of the defendant's occupancy right,
2. According to the rulings of the Privy Council, the latest of which is in Appeal No. 46 of 1922 in a case which went up from this Court, a tenant who sets up an occupancy right has to establish it. The facts appear to be that the lands in question in this case were originally forest lands in the zemindari. As regards such lands it was laid down by this High Court in Arunackela Ambalam v. R.G, Orr 29 Ind. Cas. 634 : 32 M.L.J. 407 : 40 M.P 722. that the zemindar owns an absolute estate in it. The lands in question seem to have been reclaimed by the defendant's father somewhere in 1868 and converted into cultivable lands and the evidence also shows that he had been in possession of the lands till his death and was succeeded in possession by the present defendant, his son, who has continued in possession ever since. The occupants paid rent first of all to the mustajari or leaseholder from the zemindar and, since 1898 when the plaintiff obtained his patta, they have been paying rent to the plaintiff. The rents have not been invariable as would appear from the receipts that are produced, Ex. I series; in 1914, the rent was enhanced from Rs. 35 to Rs. 55 by the plaintiff, and, as the defendant did not pay that, a small cause suit was brought for the purpose and a decree obtained. The rent was enhanced, because it would Been that some of the lands were converted from dry lands into west lands. There is no other circumstance in this case from which any inference as regards the permanent occupancy right can be drawn. It seems to me that these circumstances are not sufficient to justify an inference that the tenants had originally an occupancy right which is continuing. By mere length of tenancy no occupancy right can be acquired. The circumstances which have been proved here do not seem to me to justify any conclusion that the tenants have obtained occupancy rights in the land, but it is contended before me, on the authority of the ruling in Cheekati Zemindar v. Banasouru, Dhora 23 M.P 318 : 8 Ind. Dec. (N.S.) 624. and similar cases that I must presume that, as soon as a person enters upon a zemindari land and converts that land into a cultivable land, by that fact alone he acquires a right of permanent occupancy. Whatever the old view might have been on the point, the view can hardly be supported now after the Privy Council ruling in Surya-narayan v. Patanna 48 Ind. Cas. 689 : 41 M.1012 : 25 M.L.T.30 (1918) M.W.N. 859 : 28 C.W.N. 273 : 9 L.W. 126 : 29 C.L.J. 159 : 1 U.P.L.R. (P.C.) 11 : 36 M.L.J. 585 : 21 Bom. L.R. 547 : (1919) M.W.N. 463 : 45 I.A. 209 where their Lordships say at page 1019 that the assumption that the ownership of the soil in India was not in the Sovereign or Ruler and that the right of the Ruler was confined to a right to receive as revenue a share in the produce of the soil from the cultivator is an assumption that no Court is entitled to make and in support of which there is no reliable evidence. They also point out that such an assumption as contended for in that case, was not recognised in Regulation XXXI of 1802, and the words of that regulation are quoted by their Lordships. It has been held by this Court fn Nandigam Subfyarayulu v. Kannam Saheb 54 Ind. Cas. 22 : (1919) M.W.N. 836. that this observation of their Lordships of the Privy Council, which referred to Reddi kings, refer equally well to the zemindars. In view of this ruling of the Privy Council and the subsequent ruling of the Madras High Court, I do not think I can support the position that, because a man reclaimed some land in a zemindrai and made it cultivable land, he thereby got permanent occupancy rights. What then is the basis of this claim for permanent occupancy right that the defendant puts forward? The mere fact of the length of his possession will not do. The Estates Land Act cannot be said to have given him a right of occupancy at all; for at the time the Act came into Three it was the plaintiff, and not the defendant, who had a right in the land under the patta he got from the zemindar and was holding the land. Though the defendant was in actual occupation of the land he was occupying it only as a tenant of the plaintiff and he would be only an under tenant: of the plaintiff, the ryot and could not, therefore, claim to have any occupancy rights at all.
3. In these circumstances, it seems to me that the only decree that can be passed in this case is a decree allowing the ejectment of the defendant. The decree of the Subordinate Judge to the contrary must, therefore, be set aside and that of the District Munsif restored with costs throughout.