Oldfield, J.
1. The plaintiff-appellant, a landholder, sued in the Civil Court to recover possession of land, on which the three defendants-respondents were alleged to have trespassed, The question is whether the lower Courts were right Mi. holding that the suit should have been brought in a Revenue Court on the ground that defendants were non-occupancy tenants of old waste, the Court of first instance applying Section 153, and the lower Appellate Court Section 157, Estates Land Act.
2. The facts are that defendants first cultivated their respective portions of the land without permission in Faslis 1315, 1317, 1318 respectively. They, however applied for pattas in Exhibit E in Fasli 1318 and Exhibit E2, E3 in Fasli 1320, and payments were accepted from them: but no pattas were given them, the lower Appellate Court's reference to Exhibit D series as relating to the suit land being mistaken. In Fasli 1321 plaintiff decided to reserve the land for forest and directed the filing of the present suits to eject defendants.
3. It is well established, the latest decision being Srimath Kidambi Jagannatha Charyulu Ayyavarlu v. Pidipiti Kutumbarayadu 25 Ind. Cas. 891 : 27 M.L.J. 233 that it is for the party, who seeks to oust the jurisdiction of the ordinary Civil Courts, to establish his right to do so. Defendants, however, who have not appeared at the hearing of the appeal, could rely on the averments in the plaint, that the suit and was in a village, and that it was cultivated and, therefore, cultivable, as prima facie evidence that it was ryoti land; and it is not disputed that, if the laud was ryoti, it fulfilled the requirements of the definition of 'old waste.'
4. Contra, however, plaintiff contends that the land is not ryoti, because it is of the description referred to either in Section 2(16)(6) or Section 6(4) of the Madras Estates Land Act. The lower Appellate Court dealt with th6 applicability of neither Section and the Court of first instance only with that of the latter. But, as we are clear that neither applies, I do not stay to consider whether plaintiff is debarred from relying on them at this stage. The burden of proof that the land comes within one of these exemptions to the general Rule is on him; and there is no evidence to discharge it. The only facts relied on are that the land is 'referred to in Exhibit E series as poramboke, that in Exhibit C plaintiff's tahsildar permitted cultivation on a charge of sivaijama assessment pending completion of the Vadavar project and that plaintiff, in Exhibit Kin passing orders for the filing of these suits, included the land in a reserved list with the intention to apply the forest rules to it. But there is nothing in Exhibit E series to show that the land was of one of the descriptions of porambolce specified in Section 2 (16)(b): there is no evidence as to the nature of the Vadavar project or the connection of this land with it: and, whatever the meaning of the expression in Section 5(4) 'admission to waste land,' the question of forest reservation arose, not at or before defendants' admission, but in connection with their eviction. In these circumstances the land must be treated as old waste ryoti land.
5. Plaintiff contends, next, that the Section applicable to suits in respect of such land is Section 163, not Section 153 or 157 of the Madras Estates Land Act. The first mentioned cannot apply if defendants have been admitted as ryots by plaintiff and on the facts, the conclusion must be that they have been. Admission as a ryot is not defined in the Act. But admission to possession of ryoti land other than old waste is, as appears from the explanation to Section 6(2) of the Madras Estates Land Act, deemed to be entailed by the landholder's acceptance from the occupant of such land of a payment under Section 45 of the Madras Estates Land Act. It is not clear how any distinction can be drawn between the admission of a person to possession of ryoti land referred to in Section 6(2) of the Madras Estates Land Act and his admission as a ryot referred to in Section 163 of the Madras Estates Land Act, or why the method of admission defined in the one should not be utilised mutatis mutandis, when old waste is in question, in construing the other. On the other hand the reference in Section 162(2) of the Madras Estates Land Act to recovery of sums payable under Section 45 of the Madras Estates Land Act entails that a person may be liable for such sums, when he has not been admitted as a, ryot. The result, which is consistent with the foregoing application of the explanation to Section 6 (2) and with Section 163 is accordingly that a person, from -whom the landholder has received the payment due under Section 45 in respect of his occupation of old waste, has been admitted to possession, and Section 163 confers a right of suit in the Civil Court only against those who are liable under Section 45, but have made no payment, those who have made such payment being treated as having been admitted. The payment under Section 45 is referred to in the Section itself as rent and persons, who continue to hold after making a payment voluntarily and in consequence of the Collector's decision, must be treated as holding on condition of making such payment and are, therefore, within the definition of 'ryot' in Section 2(15) of the Madras Estates Land Act. Suits to eject them will, therefore, lie under Section 153 in the Revenue Court.
6. To apply the foregoing to defendants' payments, they are described in Exhibit C series made under sivaijama head: and I accept the conclusion as to the meaning of sivaijama reached in Aleman Rama Rao v. Secretary of State for India 24 Ind. Cas. 904 : L.W. 339 : (1914) M.W.N. 388. There Sadasiva Aiyar, J., referred to the sivaijama grants in question as completed, though conditional, whilst Seshagiri Aiyar, J., described such grants as made, where permission is given to occupy land for a particular purpose or where there was an unauthorized occupation or one, which the authorities did not consider objectionable. That case dealt with land under the control of Government. But there is no reason for a different interpretation of the term when the land is in private ownership. The result is that acquiescence in the occupation and acceptence of rent are the essential features. They are present in the case before us and are sufficient to constitute an admission of defendants as ryots.
7. It is further essential to the application of Section 153 that the ground, on which eviction is claimed, shall be such as it contemplates: and no doubt such cases as the present are not referred to specifically in it. But in this connection I follow Spencer, J., in the recently reported case of Ponnuswamy Padayachi v. Karupudayan 24 Ind. Cas. 217 : 38 M.K 843 : 26 M.L.J. 285 : 1 L.W. 218 : 15 M.L.T. 299 adopting his conclusion that the provisions of the section are not exhaustive of all possible cases of eviction. He has pointed out the absurdity of supposing that greater protection is afforded to tenures of long than of short duration: I, therefore, hold that Section 153 is applicable to the suits and that they should have been brought before the Collector.
8. The appeals, therefore, fail and are dismissed.
Sadasiva Aiyar, J.
9. The only question in these appeals is whether the defendants are tenants of ryoti lands and whether the suits which were brought in the District Munsif's Court ought to have been brought in4 the Revenue Court. The respondents are not represented before us. It seems to have been assumed in the lower Courts (and nowhere denied), that the lands were cultivable lands and also that they were not private lands. I think the definition of ryoti land in Section 2, Clause 3, of the the Estates Land Act applies to these lands. Mr. L.A. Govindaraghava Aiyar for the appellant relies on the fact that there was an idea at one time of applying the forest rules (in connection with the project known as the Vadavar project) to these lands. But nothing came out of that idea and the lands have been actually under cultivation between 1805 and 1908. Though the lower Courts do not expressly find that the lands are ryoti lands and though the Act does not contain an express rule as to presumption in respect of the waste lands in estates, that they should be deemed to be cultivable waste, I think that actual cultivation by a tenant without his having been obliged to incur any extraordinary expense or trouble in bringing the land under cultivation is almost conclusive evidence that the land is cultivable land. The whole policy of the Act is in favour of raising a presumption that a land in an estate is ryoti land. See also Section 23 of the Act. Sub-section 4 of Section 6 is clearly confined to waste land which is admitted to be waste land other than ryoti land and which is sought to be brought under the head of ryoti land by reason of its temporary letting by the landlord for cultivation.
10. Mr. Govindaraghava Aiyar's next argument is that even if the land was ryoti land, the defendants were not admitted as ryots, by the, landholder and, therefore, under Section 163, Clause (1), they are liable to be ejected as trespassers by suits brought in the Civil Court. If I understood him aright he tried to make a distinction between the possession as a ryot of old waste and the possession as tenant of old waste. I confess that I am unable to understand the distinction. The definition of a ryot in Clause 15 of Section 3 does not support the existence of such a distinction. Next it was urged by him that the defendants were not admitted as ryots by a landholder but squatted upon the land of their own accord, and hence they are neither tenants nor ryots who can claim the benefit of Sections 157 and 153 and that they are under the disability imposed upon them by Section 163(1), that disability entailing upon them the liability to be ejected for trespass in a Civil Court, whereas under Sections 157 and 153, if they were tenants of old waste, they can only be ejected on some special grounds and even on such grounds, through suits in a Revenue Court. Though the defendants did squat at first upon the lands without permission, the landholder agreed to their remaining upon the lands as sivaijama tenants paying the usual rent; when he so agreed to treat them as tenants I think he did 'admit' them as tenants. The repeated stress laid by Mr. Govinderagbava Aiyar on the word 'sivaijama' has not convinced me that the agreement by which the plaintiff accepted the defendants as tenants (though he refused to give them occupancy rights and reserved to himself the right to turn them out of possession at the end of each agricultural year if he did not renew the sivaijama tenancy for the next year,) was not an admission of the defendants into the tenancy of the lands. I am unable to accept his contention that the sivaijam a rent paid by the tenants was in the eye of the law merely damages agreed upon between the landowner and; the trespassers and that the said rent was paid as such damages by the said trespassers. No doubt Section 45 speaks of rent payable by occupants of ryoti lands without the landlord's consent, but the word 'rent' is sometimes loosely applied in English and Indian decisions for damages payable by trespassers and by persons whose term of tenancy had ceased (who are called again loosely 'tenants holding over' and 'tenants by sufferance') as well by persons who are really entitled to be called tenants. The damages payable by persons holding over are sometimes called 'rent for use and occupation' and sometimes 'damages or compensation for use and occupation'. I have dealt recently with the difficulties caused by the use of the terms 'tenants by sufferance', etc., and I do not wish to repeat myself. Govindaswamy Pillai v. Ramaswami Aiyar 34 Ind. Cas. 6 : 3 L.W. 408 : 30 M.L.J. 492. In the result I agree with the lower Courts that Sections 153 and 157 apply to the cases of the defendants and that Section 163(1) does not apply. The appeals will, therefore, be dismissed.