The burden of proof lies on the plaintiff to establish that the land is old waste in order to seek ejectment of a ryot.

Sadasiva Aiyar, J.

1. Section 23 of the Madras Estates Land Act says that a land " shall be presumed to be ryoti land other than old waste " until the contrary is proved. The important question in issue in this case is whether the plaint land is ryoti land coming under the definition of old waste or ryoti land not coming under the definition of " old waste ". For, if it was not " old waste". Section 6 gives the ryot in possession on the date of the passing of the Act an occupancy right in the land; and this suit by the landlord (appellant before us) in ejectment was rightly dismissed by the lower courts. Old waste is defined in Section 3 Claues 7. Clause 7 contains two sub-clauses Nos. 1 and 2. The plaint land admittedly does not come under Sub-clause (1). As regards Sub-clause (2) there are two parts in it. The land in question does not come under the description of the land in the second part, that is, land in respect of which an ejectment decree against the ryot has been obtained before the coming into force of the Act. As regards the first part of Sub-clause (2), it refers to a land which has remained without occupancy rights , being held therein at any time within a period of not less than 10 years immediately prior to letting by the landholder after the passing of the Act. To find out whether a land was "old waste or not at the time of the passing of the Act, a definition which says that a land shall be considered as old waste at the time of a letting after the passing of the Act, if certain conditions are then fulfilled cannot be resorted to, because Section 6 applied at once on the passing of the Act, and when once occupancy rights are vested in a ryot at the time of the passing of the Act, the land ceases to be old waste.

2. Hence, it seems to me, that the plaint land, which was clearly ryoti land (that is, cultivable land other than private land according to the definition in Section 3 Clause 16) on the date of the coming into force of the land Act and which land the landlord could not then prove to be " old waste " under either of the sub-clauses of Section 3 must be held to have then been ryoti land other than old waste. If so, the defendant got a right of occupancy then under Section 6 and could not be ejected thereafter.

3. As to the argument that the addition made to Section 153 by the amendment Act of 1909, namely "nothing shall affect the liability of a non-occupancy ryot to be ejected on the ground of the expiry of the term of a lease granted before the passing of this Act," that this addition would become useless if all non-occupancy ryots in possession got occupancy rights on the passing of the Act, there are certain kinds of non-occupancy ryots included in Section 6 Clauses 3,4 and 5 of the Act, who do not obtain occupancy rights even if they were in possession on the date of the coming into force of the Act. The additional clause, inserted by the amending Act in S- 153 would apply to such lands. On these grounds I would dismiss this second appeal with costs.

4. If the land was " old waste," Section 157 of the Act as interpreted in Achaparaju v. Krishna Yachendrulu (1913) 24 M.L.J. 402 will bar this suit. But it is unnecessary to base my decision on that ground, as the correctness of that decision has been attacked in the arguments before us.

Tyabji, J.

5. The plaintiff prays for an order of ejectment against the defendant, his tenant; the tenant alleges on the other hand that he is a ryot in possession of the land at the date when the Madras Estates land Act came into question having been admitted by the plaintiff into the possession of the land which he alleges is ryoti land not being old waste and on this ground the defendant contends that he has the right of permanent occupancy in his holding. The first question therefore we have to decide is whether the land is ryoti, land not being old waste. The defendant relies upon Section 23 of the Madras Estates Land Act which raises the presumption that any l