DUDDAMPUDI VENKATRAYUDU (DEAD) Vs. BIKKINA SUBBARAYUDU

JUDGEMENT

(1.) This second appeal is by the 3rd defendant in the suit. The plaintiff 1st respondent as found by both the lower Courts is purchaser of the rights of defendants Nos. 1 and 2 in the lands in question amounting to 18 and odd acres, and be seeks to recover possession of the property from the 3rd defendant. The Kinds were granted as a Nimebadi Inam by the Rajah of Pittapur more than 100 years ago, but after the Permanent Settlement, to the ancestors of defendants Nos. 1 and 2, and both the District Munsif and the Subordinate Judge agree that the grant must be taken to have been of the Melvaram atone. The point for determination before us is whether the 3rd defendant is entitled to the benefit of Section 6, Madras Estates Land Act, and that depends upon the further question (a) whether the possession of the 3rd defendant on the date of the passing of the Act was or was not in the character of a mortgagee and if it was not, (b) whether the 3rd defendant had possession, of the land as Ryot or merely as a subtenant of the Inamdars. The land consists of 12 acres wet and 6 acres dry and it is found by both the Courts to be Ryoti land , that is, cultivable land in an estate other than private land.

(2.) With reference to the first question, the 3rd defendant s connection with the land began on 27th February 1896, when defend-ants Nos. 1 and 2 borrowed money from him on a simple mortgage bond and let him into possession under a lease for 8 years (Exhibit A). In 1899 the Inamdars borrowed an additional amount and executed a consolidated usufructuary mortgage (Exhibit C); in 1900 they obtained from the 3rd defendant a further loan and for this amount executed another usufructuary mortgage (Exhibit D) and on the game date as Exhibit D, defendants Nos. 1 arid 2 granted a lease for 8 years (Exhibit MM). If the dealings had stopped here, the question whether the 3rd defendant s possession of the land was in the character of a Ryot or a mortgagee would in my opinion, be one of considerable difficulty. But on the 6th July 1904 the defendants Nos. 1 and 2 paid off all that was due to the 3rd defendant and got back the mortgage deed. (See Receipt Exhibit F.) On the same day, however, they executed Exhibit G, by which the lease Exhibit MM was kept in force. Therefore, since 1904 the 3rd defendant s possession was that of a lessee and this is supported by the fact that in 1910 defendants Nos. 1 and 2 sued and recovered decrees for rent from the 3rd defendant. This question was one of mixed law and fact and depended entirely on the effect of the above transactions. The Subordinate Judge, in holding against the 3rd defendant on this point, overlooked the fact that the mortgages were paid off in 1904 and he remained in possession wholly as lessee by virtue of Exhibits G and MM. If the 3rd defendant s possession were as in Bengal Indigo Co. v. Roghobur Das 24 C. 272 : 1 C.W.N. 83 : 23 I.A. 158 : 7 Sar.P.C.J. 94 : 12 Ind. Dec (N.S ) 848 (P.C.) in part at least, not that of cultivator s only, but that of creditor s operating repayment of the debt due to them by means of the security, it would raise a question requiring serious consideration how far the judgment of the Privy Council could be distinguished on the basis of the provisions of the Madras Estates Land Act.

(3.) If, as I hold, the 3rd defendant was not in possession as mortgagee on the date the Madras Estates Land Act came into force, was he in possession as a Ryot ?