Judgement

Appeal from a judgment and decree of the High Court (November 26, 1914) affirming a decree of the Subordinate Judge of Masulipatam (November 22, 1912).

The appellant on July 8, 1907, let about 22 acres of land within his zamindari to the respondents. The muchalka described the land as kambuttam land, and by cl. 8 (which is set out in their Lordships judgment) the respondents agreed that they would relinquish it on April 30, 1908. They, however, failed to do so, and were in possession at the commencement of the Madras Estates Land Act, 1908—namely, on July 1, 1908—though contrary to the expressed wishes of the appellant. In the course of a criminal complaint by the respondents against the appellant the Magistrate had attached the land under s. 145 of the Criminal Procedure Code.

The appellant thereupon instituted the present suit, in which he claimed a declaration that the land was his private land, and that the respondents had no occupancy rights; he also claimed mesne profits. He alleged that the land had always been his private land, and he relied on the terms of the muchalka. The respondents by their written statement pleaded, inter alia, that the land had always been ryoti land, and that the appellant had no right to convert it into private land even if he had

78 Law Rep. 46 Ind. App. 44 ( 1918- 1919) Raja Yerlagadda Mallik-Arjuna Nayudu V. Rajulapati Somaya 179

purported to do so, which they denied; and that, both under the Madras Estates Land Act, 1908 (Madras Estates Land Act, 1908, s. 8 "(1.) Whenever, before or after the commencement of this Act, the entire interests of the land holder and the occupancy ryot in any land in the holding have become united by transfer, succession, or otherwise in the same person, such person shall have no right to hold the land as ryot, but shall hold it as a landholder.... (3.) The merger of the occupancy right under sub section 1 ....shall not have the effect of converting ryoti land into private land."), and independently of it, they had permanent rights of occupancy.

The Subordinate Judge, after hearing evidence, dismissed the suit. He found that the land had been ryoti land down to 1883, though it had been let as kambuttam from time to time since that date. He was of opinion that s. 8 of the Act was retrospective in effect, precluding the acquisition of private rights in land which had once been ryoti; he held that the respondents, being in possession of ryoti land on July 1, 1908, obtained permanent occupancy rights by virtue of s. 6,sub-s. 1 of the Act.

The High Court dismissed an appeal. The learned judges (Sir John Wallis C.J. and Seshagiri Aiyar J.) agreed in affirming the decision that the land was ryoti though for different reason. The appeal is reported at I. L. R. 39 M. 341.

The Chief Justice rejected the contention that by the retrospective effect of s. 8 ryoti land could be converted into private land only in the circumstances described in the proviso to s. 185. (See p. 48, note (1).) He considered that the intention of s. 8, sub-s. 1, was to prevent a landholder who acquired the kudivaram right from having the power of a ryot to let upon terms not open to a landholder. After referring to the definitions of " estate, " landholder," and " private land " in s. 3, he said " I do not think it can be said that a landholder holding private land is not holding it as a ryot, for that is the distinction contemplated in the section." He was, however, of opinion that it was very necessary that a conversion of ryoti into private land should be proved by very clear and satisfactory evidence.

He said that in the present case there was no evidence that the zamindar had ever himself cultivated the land in suit; on the contrary, the evidence was it had always been cultivated by the tenants. It was shown that the land was ryoti down to a certain date; merely calling the land kambuttam and letting it on terms which negatived occupancy right did not amount to a conversion. He concl