VEMANA VENKATACHELLA NAIDU Vs. ETHIRAJAMMAL

JUDGEMENT

(1.) I must hold that the learned District Judge is not right in saying that there was no proper proof of the existence of attachment at the date of the purchase of the 3rd defendant. As a matter of fact, we have got the attachment list of 1902 to show that the property was under attachment, and if at the time of the purchase by the third defendant which was in 1902 the attachment had been raised, it was for him to prove it. The learned District Judge ought to have proceeded on the assumption that the attachment continued. That being so, the purchase by the third defendant can be of no avail against the first defendant or his vendee. But it is argued that under Section 6 of the Madras Estates Land Act the tenant of the third defendant acquired a permanent right of occupancy when the Act came into force, i.e., in 1908, although the holding had been sold before the date and purchased by the first defendant, the landlord, in execution of his decree for rent. In support of this proposition a ruling of a division Bench of this Court has been put forward in Sivapada Mudali v. Thiagaraja Chettiar . No doubt that decision supports the contention of the respondents, but with all respect to the learned Judges I find myself unable to agree with them. The first step in the reasoning in that judgment is that a ryoti land although brought to sale by the landlord and purchased by him does not cease to be ryoti land. I am prepared to accept that proposition. But I am unable to see how the next, step in the reasoning is made out, namely, that a tenant whose holding has already been sold and who had therefore no interest whatever left in the holding acquired any right by virtue of Section 6. Before Section 6 can be applied--apart from the explanation which I shall presently consider, it must be shown that the man in possession is a ryot within the meaning of the Act; and a ryot has been defined as a person who holds agricultural land paying rent to the landlord. Here it is not suggested that after the hclding of the third defendant had been sold he either paid any rent or in any other way attorned to the landlord. He remained in possession after his holding was sold merely as a trespasser. Reliance is placed on explanation to Section 6. In my opinion, the explanation does not extend the scope of the section itself, to the extent claimed. The explanation is to this effect : " For the purpose of this Sub- section, the expression every ryot now in possession shall include every person, who, having held land as a ryot, continued in possession of such land at the commencement of this Act. If we are to give any force to the phrase having held land as a ryot," it must mean that a person whose interest in the land has continued till the commencement of the Act at least as a tenant at will and who is actually in possession at that date. To give any other meaning this explanation would be conferring very valuable rights on a person whose possession is that of a mere trespasser and who has no sort of right in the land recognized by the law at all. In this case, the third defendant continuing in possession of the land even, after the sale was not only a trespasser but was acting in defiance of that law. It must be conceded that if there had been a final decree declaring that the third defendant had no occupancy rights passed before the Act came into force, Section 6 would not help him at all as the land would be exempt from the operation of Section 6 as old waste. Can it be said that where the holding itself has been sold and the tenant has ceased to have any more interest in the land he is in a better position. The fact that the land does not lose its ryoti character has undoubtedly this effect that if the landholder thereafter lets any other tenant into possession for the purpose of cultivation, then that tenant will acquire occupancy rights in accordance with the provisions of the Act. That is to say, by the purchase the landlord does not add to his home farm lands and the land remains a ryoti land throughout. The decisions of the Full Bench in Kanakayya v. Janardhana Pudhi (1910) I.L.R. 36 Mad. 489 does not, in my opinion, in any way touch the present question, for there the only question was whether a decree of the Court of trial is a final decree within the meaning of the definition of old waste in Section 3 before the time for appeal has expired. The other decision referred to in Sivapada Mudali v. Thiagaraja Chettiar is the decision in Markappuli Reddiar v. Thandava Kona (1914) M.W.N. 798 but the judgment is very brief. We do not find that the facts are fully given there. We do not know from whom the first purchase was, whether, the orginal ryot or somebody else. In my opinion therefore, the defence of the third defendant under Section 6 of the Madras Estates Land Act is bad.

(2.) When the third defendant bought the land in dispute there was a usufructuary mortgage outstanding in favour of the 2nd defendant and that mortgage was paid off with the purchase money. That being so, the learned District Judge finds that the third defendant must be held to be subrogated to the rights under the usufructuary mortgage, and by virtue thereof he would be entitled to possession of the land until he is redeemed. The learned vakil for the appellant thereupon applies to us for leave to amend the plaint so that the plaintiff may have a decree for redemption in this suit. No such application was made to either of the lower Courts and we do not think that in the circumstances of the case we should be justified in allowing amendment of the plaint at this stage. It is not suggested that the right of redemption will in any way be barred. It will be open to the plaintiff to institute a separate suit for redemption if he so chooses. We also considered whether the plaintiff might not be entitled to recover the purchase money from the first defendant as the consideration for the sale was paid to him. But as the first defendant has not been made a party to this appeal, we cannot grant the appellant any such relief.

(3.) The result is that the appeal must be dismissed with costs, Oldfield, J.