Ayling, J.
1. I have had the advantage of perusing the judgment which my learned brother is about to deliver; and I agree with him in holding that persons possessed of an interest in land of the nature indicated in Ex. A cannot be regarded as 'ryots' entitled to the benefit of Section 13 Clause (1) of the Madras Estates Land Act and that on this ground the suit must fail.
2. I also agree that appellants are entitled to refund of excess court fee claimed by them.
Napier, J.
3. This was a suit under Section 55 of the Estates Land Act brought against the Receiver of the Nidadavole Estate by the two plaintiffs who were the successful bidders at an auction lease for the enjoyment of Purushottapalli Lanka for the faslis 1317 to 1319. The District Judge has upheld the decision of the Deputy Collector dismissing the suit, the reason given by the District Judge being that the term Izaradar in Section 6 Sub-section 6 of the Estates Land Act includes a person holding under a lease of this nature and the sub-section prevents such a person acquiring the rights of occupancy conferred on ryots in possession of ryoti land on the date when the Act came into force.
4. Several points have been argued before us for the appellant, the first being, that in Sub-section 6 the words 'Izaradar or farmer of rent' must be read as meaning the same thing, the latter words being only a translation of the earlier and that the plaintiffs in this case are clearly not ' farmers of rent' and so are not governed by the Sub-section. Reliance is placed on a decision of this Court in L.P.A. 360 of 1914. The language used by the Judges does seem to support this reading but the dictum is obiter, the point not having been argued. It is next contended that in fact an ' Izaradar' and 'a farmer of rent' are identical phrases. The District Judge has held that the word 'Izaradar' has a more extended meaning and that it includes a lease-holder like the present appellants. He has referred to several decisions and the meaning given to the word 'Izara' in Wilson's Glossary, Phillips on 'Land Tenures' and Baden Powell's 'Systems of Land Tenures in British India. We have examined the authorities relied on by him but I do not think they support his conclusion. In Chokalinga Pillai v. Vythialinga Pandara Sannadhi (1870) 6 M.H.C.R. 164 the Court had to construe a muchilika which was called an 'Izara Muchilika' but it does not purport to define what an Izara is. In The Collector of Tanjore v. Ramasamier I.L.R. (1881) M. 342 the Chief Justice says, 'An 'Izara' may mean a lease of lands but it is more frequently used as a lease or farm of land revenue, rent or other proprietary right, as distinguished from a pattah or a lease of land for cultivation'. This is not an authority for the proposition that the word 'Izara' in the Act includes a lease of lands. In Krishnaswami v. Varadarajulu and Varadarajulu v. Venkatachella I.L.R. (1882) M. 345 the Court uses the following language:--' The term 'Izara' may doubtless be used as is the term Thika in Upper India, to denote any lease. In Wilson's Glossary it is defined as a lease or farm of land held at a defined rent or revenue whether from Government direct or from an intermediate payer of Government revenue....
5. The Izara in its special signification is a lease of the rights of the Government or of the intermediate proprietor between the Government and the cultivator.' I cannot read these words as indicating a view of the Court that a lease of lands for cultivation is necessarily an Izara. But in my opinion we have not to seize hold of the word Izara in a lease and apply a special meaning to it, but to examine the document, see what is the nature of the right given to the lessee and on those materials decide the plaintiff's rights. The provisions of the lease have been carefully analysed and the important terms extracted in the judgment of the Deputy Collector. They are to be found on page 29 of the record. He states as follows:--' The plaintiff's lease recites circumstances which do not ordinarily find place in a jeroyati pattah: (1) The Izaradars are not the residents of the village, (2) the lanka was leased in an auction and the lessees were called Izaradars, (3) the rent was a lump sum and not so much per acre, (4) the land was periodically sold in public auction to the highest bidder, (5) the Izaradars and the rent change at the end of a lease, (6) the Izaradars had no right to relinquish before the expiry of the lease, (7) the suit lanka was watched by the Estate servants and repaired at great cost, (8) the lessee is not entitled to reduction or remission of rent from any cause.'
6. These points are correctly stated and are material distinctions between the position of these lessees and that of an ordinary ryot. I do not think it necessary to decide whether these lessees are Izaradars or not, nor whether Section 6 Sub-section (5 operates to deprive them of the rights they claim. I prefer to decide the question on the true construction of Section 6 Clause (1) read with the interpretation section and other sections of the Act and the broad policy of the Act. The Act was passed for the purpose of defining the relations between landholders and their cultivating tenants. Section 6 is the third section in the Act defining the relative rights of the parties. Under Section 4 a landholder is entitled to collect rent in respect of ryoti land in the occupation of a ryot. Under Section 5 the rent of ryoti land is made a first charge upon the holding. These two sections state the broad rights of the landholder. Then comes Section 6 which confers a new and important right on every ryot. This section provides that 'subject to the provisions of the Act every ryot now in possession or who shall hereafter be admitted by the landholder to possession of ryoti land situated in the estate of such landholder, shall have permanent right of occupancy.' That is to say, that, whatever be the terms as to period in the patta and muchilika under which the ryot was on the date when the Act came into force, holding the land, a permanent right of occupancy became attached to that holding whether he himself continued to hold it or any other ryot was subsequently admitted subject of course to the other provisions of the Act. Chapter IV makes it clear what class of persons were to be the beneficiaries under the Act, for it provides for exchange of pattas and muchilikas. These terms were well-known before the passing of this Act and are to be found in the Madras Rent Recovery Act VIII of 1865 where they are defined as being the engagements of the landholders and the tenants. The tenant has now become a ryot and the object of Section 6 is to give a permanent right of occupancy to all tenants, whereas, prior to the introduction of the Act, such permanent right had been held to exist only in case of a long standing occupation for the purpose of cultivation. Unless, therefore there is language in the Act which indicates persons other than these who, prior to the Act, as tenants, were exchanging patttas and muchilikas with their landholders, I am clear that the scheme of the Act must be limited to the ordinary cultivating tenants in an estate,
7. I now proceed to analyse Section 6 Sub-section 1. The term ryot is defined in Section 3 Sub-section 15 as 'a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it. ' This definition requires the existence of a ryot and landholder and equally requires that the ryot should not be landholder himself. Now a landholder is defined as 'a person owning an estate or part thereof and includes every person entitled to collect the rent of the whole or any portion of the estate by virtue of any transfer from the owner, etc.' It has been held in Perraju Guru v. Subbarayadu I.L.R. (1911) Mah. 126 that the latter pact of this sub-section applies to an Izaradar and I am of opinion that whether the lessee in this case is an Izaradar or not, he is 'a person entitled to collect the rents by virtue of a transfer from the owner. ' It is admitted that the lessees did not cultivate the lands themselves but subloised them to cultivating tenants. Clause 6 of the lease assumes that the land will not be cultivated by the lessee, for it provides that neither you, nor the ryot that cultivated it, nor the merchant who purchased it, nor any one else, shall remove the tobacco and the other produce raised on the lanka until the full izara amount has been paid to the estate.' The lease therefore contemplates the existence of ryots other than the lessee and assumes his right to admit persons for the purpose of cultivation on such terms as to rent as he is able to agree on. It is obviously intended to put him in the position of the landholder for the period of his lease subject to certain restrictive covenants and, in fact, does constitute him a person entitled to collect the rents of that portion of the estate leased by virtue of a transfer from the owner. He is, therefore, in my opinion, a person having the qualification of a landholder and, as such, cannot be a ryot. The next is whether he is 'a person who holds for the purpose of agriculture on condition of paying the rent which is. legally due upon it.' These words require that the person should be one who pays rent as defined in the Act. Now rent means 'what is lawfully payable in money or in kind or in both to a landholder for the use or occupation of land in his estate for the purpose of agriculture.' Here we get the requirement that the rent should be paid to a landholder and further requirement that it is to be paid for the use and occupation of the land for the purpose of agriculture. In one sense it can be said that every person drawing money from a cultivated property is receiving money ' lawfully payable for the use of land for the purpose of agriculture. ' But it is obviously necessary to limit this wide application if the Act is to be construed according to its true import. If a Zamindar granted the greater portion of his estate on a lease for 99 years, that lessee in one sense of the word might be said to be paying money ' for the use and occupation of land for the purpose of agriculture', with the result that if that sense were accepted the lessee would be a ryot. It is, obvious, however, that this can never have been the intention of the legislature for this reason, namely, that there cannot be two persons holding the position of the ryot in respect of the same holding and if the lessee were the ryot the actual cultivating tenant could not acquire any permanent rights of occupancy, because he would not be paying rent to a landholder but to a ryot and the whole object of the Act would be frustrated.' To my mind it makes no difference that the lease in this case is not for a long period but only for three years. It may be difficult in some cases to say whether a particular person is a ryot or not. But one test can be applied for the recognised division of the interest in cultivable land into Melwaram and Kudiwaram interests. If on examination of the whole facts of a case it appears clearly that the lessee is interested with the Zamindar in the Melwaram either by having bought it outright from him for a term as in the case of a farmer of rent, or by having leased it from him, he is not paying money for the use of land ' for the purpose of agriculture'. If on the other hand, he is taking from the lands its Kudivaram interest and paying the Melwaram to the landlord, then, whether he cultivates the land himself or is compelled by circumstances to have it cultivated for him, he is so paying money for the purpose of agriculture. Another test is that afforded by the words 'hereafter admitted' by the landholder to possession of a ryoti land. These words clearly have reference to the practice in existence at the time of the passing of the Act under which the cultivating tenants took up lands in the Zamindary. The legislature could not, with reference to persons already in possession use the phrase ' every ryot who has been admitted ' because there were many cases in which the possession of the tenant could not be shown to have originated by admission, this in fact being the special class in whom permanent rights ofoccupancy were held to exist by the decisions of this Court. It is therefore necessary to use the general phrase such as ' every ryot now in possession,' but I have no doubt that the legislature intended that phrase to apply to the class of persons who were being admitted to possession although the circumstances of their coming into possession were no longer traceable.
8. These considerations apply to all lessees, but with regard to the permanent lessee there are special circumstances which still further differentiate the case. How is it possible to bring this lessee within the provisions for the ascertainment of rents. The lease terminated a year after the Act came into force. If the lessee is a ryot he is entitled to the benefit of Chapters III and IV, that is to say, he can sue before the Collector and have his rent fixed. To allow such a proceeding would be to ignore the circumstances under which he came into possession. The land is put up for auction on the express understanding that the rights of the purchaser were to be limited to a period of three years and the price bid by the purchaser was on that basis. Admittedly, the owner of the estate contemplated resuming his rights at the end of three years and, admittedly, the lessee could not be compelled to hold the land for any longer period. It is difficult to see on what principle it can be suggested that having agreed to pay rent of a rather speculative nature for three years, he is entitled to hold the land for ever. What rent is he to pay? Is this speculative rent which was lawfully payable by him at the time the Act came into force to be presumed to be ' fair and equitable ' within the meaning of Section 28 ; and how is the contrary to be proved? A lanka is land of a variable area. Half of it may be washed away by a flood. Even if not washed away portions of it may become uncultivable by deposit of sand is the Collector to. fix a rent for a reduced cultivable area, or the same area rendered less valuable for cultivable purposes and if so on what basis? It seems to me that this test also is fatal to the contention of the 'plaintiffs in the present case: for, it is impossible, of course, that anything can be rent which is not subject to the provisions of Chapters III and IV. I can see great difficulty in applying the provisions of this Act even to a case where lanka land of this description was let out in parcels to actual cultivating tenants though 1 express no final opinion on that point. But I am clear that a lessee of the character of the present plaintiff is not a ' ryot' within the meaning of the Act. Our attention has been called to a case decided by this Court L.P.A. No. 48 of 1916, in which it appears to have been held that lessees of this character are not farmers of revenue but cultivating ryots of ryoti land. In that case it is certainly clear that the lease was of a lanka land let in the same manner as in the present case. Unfortunately we have not the advantage of any reasoning by which the learned Judges arrived at their conclusion and, with great deference, I cannot agree with. it. I have examined the provisions of the Act very carefully and as a result I am bound to dissent from that decision.
9. There remains to consider the point raised by the learned Advocate General that the lessee being out of possession cannot sue for a patta. I can find nothing in the Act to support this contention. Admittedly the result of his argument would lead to this, that, if a zamindar forcibly ejected a tenant, the latter would be obliged to go to a Civil Court to recover possession before he can sue for a patta. The section under which a ryot is entitled to demand a pattah is Section 50 and the words are ' Every ryot shall be entitled to call upon his landholder to grant him a pattah'. The word 'ryot' is defined as being a person who holds ryoti land in an estate and it has been decided by this Court that mere possession does not constitute holding. The word ' holding ' implies ' tenure' and I have no doubt that any person who can show to a Revenue Court that he has a lawful tenure is entitled to avail himself of the provisions of sections 50 and 55 for, the purpose of getting a patta.
10. In the result the Appeal fails and is dismissed with costs. The appellants are entitled to refund of the amount of the extra Court fee imposed by the Lower Appellate Court and also that paid in this Court. Vide Notification 2419 of May 12, 1909, Fort St. George.