IPONNUSWAMY PADATACHI Vs. KARUPUDAYAN

JUDGEMENT

(1.) Mr. C.V. Ananthakrishna Iyer, Vakil for the 1st respondent, does not support the view of the case taken by the District Judge, but argues that the land in question is not a part of an estate within the meaning of the Madras Estates Land Act, and contends also, conceding that the position of the 2nd defendant is that of a ryot of old waste, that by virtue of the proviso to Section 153 of the Madras Estates Land Act the jurisdiction of the Civil Courts is nevertheless not ousted. Mr. L. A. Govindaraghava Iyer, Vakil for the appellants, accepting the position of his clients as that of a non-occupancy ryot, being a ryot of old waste, argues on the strength of Chaganti Atchaparazu v. Raja Yelugoti Kristna Yachandrulavaru 19 Ind. Cas. 225 : 24 M.L.J. 402 : 13 M.L.T. 829 : (1913) M.W.N. 378. that Section 157 nullifies the effect of the proviso to Section 153 which otherwise would, he concedes, be applicable to the facts of the case and so would save the jurisdiction of the Civil Court. The District Judge has not decided the question whether the land is or is not part of an estate and the District Munsif has decided that it is part of an estate. I am of opinion that on the facts found and not now contested that the 2nd defendant has no occupancy right, the presumption arises that the occupancy right was either granted to or acquired by the inamdar. That presumption was the basis of the finding of the Subordinate Judge of Tanjore in Rajaram Rao v. Sundaram Aiyar 8 Ind. Cas. 299 : (1910) M.W.N. 566 8 M.L.T. 350. and was, as I understand the judgment of Sankararn Nair, J., in that case, accepted in this Court as sufficient to attract to the case the exception to Section 8 of the Madras Estates Land Act.

(2.) It is argued here on the strength of certain cases in Bombay that if we presume, as we must in this case presume, the original grant to have been the grant of the revenue only the fact that the occupant has no occupancy right is not sufficient to show that the inamdar has acquired that right. These cases do not support that contention. In Ramachandra, v. Venkatarao 6 B. 598 at p. 608. it is said that the Sarunjamdar may deal with the unoccupied lands and cultivate by himself or through tenants not as grantee of the soil but for purposes of revenue, and that observation is explained in Ganpatrou Trimbale Patwardhan v. Ganesh Baji Bhat 10 B. 112 at p. 117. as equivalent to a decision that the Saran-jamdar may acquire occupancy rights which would be unaffected by the resumption of the grant. Far from supporting the appellants this latter case supports the view taken by the Subordinate Judge in Rajaram Bow v. Sundaram Iyer 8 Ind. Cas. 299 : (1910) M.W.N. 566 8 M.L.T. 350.. The other case is Rajya v. Balakrishna Gangadhar 29 B. 415 : 7 Bom.L.R. 439, where it is pointed out at page 420 that lands unoccupied at the time of the grant would be sheri, that is, as I understand it, private land, [vide Ganpat Row v. Ganesh Baji Phat 10 B. 112 at p. 117.] and if that is so the case does not help the appellant. It seems to me, that these cases support the view that when it is found that a tenant has no occupancy right in his holding, and the land is not private land, the presumption is that the occupancy right is in the landholder either by the original grant or by prior or subsequent acquisition. It is argued that under the exception to Section 8 of the Madras Estates land Act, the landholder must be shown to have acquired the occupancy right in some particular way, but I cannot accede to that argument. 1 agree with the view taken upon that point by Spencer, J., in Adusumulli Suryanarayana v. Acchuta (sic) 22 Ind. Cas. 339 : 826 M.L.J. 99 : 15 M.L.T. 268. It is, think, an unsafe method construing the statute to restrict the meaning of the word acquire in the exception to Section 8 merely on the ground that in Section 6(2) and for the purposes of that section the Legislature does not permit the land-holder before the lapse of ten years indefeasibly to acquire the occupancy right in land abandoned or surrendered. The Exception to Section 8 is referred to in Section 6 (2) and the effect of that may be that in construing Section 6(2) we shall have to exclude surrender and abandonment from the methods of acquisition by which a land-holder may at once acquire indefeasibly an occupancy right, but that does not appear to me to afford a reason for restricting the meaning of the word acquire when the context does not compel us to do so. In the present case we have to take it that the inam is one to which Section 3(2) (d) applies and consequently that there is a Kudivaram right in the land. That Kudivaram right must be in some one and it is not shown to be in any third party : it is ex cancesds not in the 2nd defendant and it, must, therefore, so far as I can see, be in the land-holder that is, for our purpose in the plaintiff and if we cannot in the circumstances hold that it was granted to him along with the Melvaram, or that he had it before the grant (in either of those cases the 2nd defendant is out of Court) it follows to my mind that he has acquired it since the grant. The land is, therefore, not part of an estate and it is not contended that on the merits the 2nd defendant has any claim to remain in possession.

(3.) On this ground, and without deciding the other, questions, I would dismiss the second appeal with costs. Spencer, J.