GOVINDA PARAMA GURUVU, TRUSTEE OF SRI RADHA KANTA SWAMY S TEMPLE AT PUDABHADRA Vs. BOTHASI DANDASI PRADHANU

JUDGEMENT

(1.) It may be doubted whether the Judge is right in holding that the defendants were occupancy tenants. It is unnecessary to decide that question as we were already of opinion that Section 6 Clause (1) of Act I of 1908, as amended by Act IV of 1909, clearly conferred on them, a permanent right of occupancy. The suit was instituted in 1905 and the appeal decree was passed in 1906 and it is contended that the rights of parties are not affected by an enactment subsequently passed, and also that, at any rate in second appeal we are only entitled to consider the correctness or otherwise of the decree under appeal. The words of the Section are quite clear. Section 6 of Act I of 1908 enacts that "every ryot now in possession...of ryoti land...shall have a permanent right of occupancy" and under Act IV of 1909 every ryot now in possession shall include every person who, having held land as a ryot, continues in possession of such land at the commencement of this Act." The only question, therefore, for consideration is whether the ryot was in possession of the land when the Act came into force, i.e., on the 1 July 1903. It is conceded that the defendant, a ryot, was in possession of this ryoti land on that date. It is immaterial that a decree for possession had been already passed. We must, therefore, hold that the defendants are ryots with a permanent right of occupancy. It was further contended that the defendants can enforce their claims only in a fresh suit to be brought by them. We think it unreasonable to turn the tenants with rights of occupancy out of possession and refer them to a fresh suit. It leads to unnecessary multiplicity of proceeding. Order XLI, Rule 33 of the Code of the Civil Procedure, 1908, corresponding to Order LVIII, Rule 4 of the Judicature Act, enables the Appellate Court to enforce the defendants claim in second appeal. We must, therefore, dismiss the plaintiff's suit for recovery of possession.

(2.) But as occupancy tenants the defendants are bound to pay rent to the plaintiff. We shall accordingly direct the District Judge to return a finding on the question what is the rent payable to the plaintiff for the faslis 1314 to 1318.

(3.) Fresh evidence may be taken. The finding should be submitted in six weeks, and seven days will be allowed for filing objections.