Availability of possession u/ss 8(5) and 6(1).

Rajagopala Ayyangar, J.-The Executive Officer of Sri Navaneetheeswaraswami Devasthanam, Sikkil, East Tanjore, is the appellant in these appeals and the short point that arises for consideration in them is as regards the proper construction of section 8(5) of the Madras Estates Land Act I of 1908. The village of Sellur belongs to the appellant Devasthanam who is the Ekabokam Mirasdar or the sole proprietor of the village. The question is whether the respondent is entitled to occupancy rights under Madras Act I of 1908. The learned District Judge from whose judgment and decree these appeals are preferred has held that the respondent who is a tenant has such rights and that the civil Courts have no jurisdiction to entertain the suit for eviction.

Certain facts are beyond controversy. The suit inam village was not an “estate” within the meaning of Act I of 1908 as it stood originally but became an “estate” by virtue of the amending Act XVIII of 1936 and the lands in dispute are not “private lands.” There had been an earlier litigation in relation to the lands in the village when a suit was filed for the eviction of the then tenants. It was originally numbered as O.S.No.35 of 1910 on the file of the Sub-Court, Nagapattinam and was transferred to the Sub-Court, Tanjore and renumbered as O.S.No.4 of 1913. The village was held not to be an “estate” and so the right of occupancy claimed by the tenants was negatived. The right of the landlord trust to evict them was affirmed by the Sub-Court in its judgment, dated 12th January, 1916, which was finally affirmed by this Court in A.S.Nos.146, 228 and 230 of 1916 on 29th November, 1917. The trust has been in enjoyment of these properties since then by leasing them out to its tenants. While so the properties now in suit were leased to the respondent-defendant under two lease deeds Exhibit A-7 dated, 11th September, 1945, for a period of three years and under Exhibit A-8, dated 27th July, 1946 for a similar period. Each of these lease deeds contains a provision under which the lessee agreed to surrender possession at the end of the term. On the allegation that there had been default in the payment of rent and other breaches of express covenants in the leases enabling the landlord to effect re-entry the landlord claimed to forfeit the leases and issued notice on 9th September, 1947, determining the leases and demanding the surrender of possession of the leased lands. As this was resisted the plaintiff filed the present suit on 17th October, 1947, for possession of the properties and for arrears of rent, mesne profits, etc. The tenant denied the jurisdiction of the Court to adjudicate upon the subject-matter by reason of the provisions of the Madras Estates Land Act as amended by the Madras Act XVIII of 1936 setting up occupancy rights. He also filed a summary suit in the Revenue Court for the grant of a patta to him under the statute. The Revenue Court dismissed this summary suit for the grant of patta by reason of the fact that under section 8 (5) of the Madras Estates Land Act the tenants were not entitled to claim occupancy rights. The defeated ryot took up the matter on appeal to the District Judge. The suit O.S.No.32 of 1947 by the landlord for eviction and this appeal were heard together. In O.S.No.32 of 1947 an issue (issue 1) was raised as regards the jurisdiction of the Court which was dependant upon whether the tenant had occupancy rights in the lands by reason of the Madras Estates Land Act. This was heard as a preliminary point and the learned District Judge held that the tenants had acquired such rights by reason of his construction of section 8(5) of the Act and he therefore directed the dismissal of the suit without considering the other issues in the case. On the same reasoning the learned District Judge also allowed the appeal against the dismissal of the summary suit for the grant of a patta. Appeal No.241 of 1949 and S.A.No.2083 of 1949 are by the landlord trust against the d

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