Rajagopala Ayyangar, J.
1. These writ petitions raise for consideration the scope and jurisdiction of the Tribunals created under the Tanjore Tenants and Pannaiyal Protection Act (XIV of 1952) and the Madras Cultivating Tenants Protection Act (XXV of 1955) in relation to tenants on lands which are claimed to be comprised in ' Estates ' falling within the Madras Estates Land Act (I of 1908). These writ petitions originally came on before one of us, but in view of the importance of the questions raised and the difficult points of statutory construction involved the petitions were directed to be posted before a Bench and they were accordingly heard by us.
2. Before setting out or examining the precise points which are raised by these petitions we consider it usefui to narrate the facts which have given rise to them.
3. We shall start with W.P. No. 1092 of 1956. It has been filed by tenants against whom an order for eviction was passed by the Revenue Divisional Officer, Salem, acting under Section 3(2)(a) of the Madras Cultivating Tenants Protection Act. The landlord filed a petition G.T.P. No. 30 of 1956 on the file of the Revenue Divisional Officer, Salem, for eviction of the tenants on the ground of non-payment of rent. In this petition he stated that there subsisted between him and the respondents on the date of his application a tenancy from year to year, the year being the calendar year. A formal tenancy agreement had been executed on 5th January, 1952, by the father of the tenants sought to be evicted and he stated that after the father died, the sons continue to be in possession under the lease deed though without a formal document evidencing the tenancy. The landlord alleged that a sum of Rs. 2,000 was in arrears being the rent due to him for the calendar years 1954 and 1955. Section 3(2) of the Madras Cultivating Tenants Protection Act (XXV of 1955) under which, this application was filed enacted that if a cultivating tenant were in arrear ' at the commencement of this Act' with respect to rent payable to the landlord and accrued due subsequent to the 31st March, 1954, he could be evicted from the land if he did not pay such rent within a month after the commencement of this Act or if he, after the commencement of this Act, did not pay rent within a month after such rent accrued due. As the Act received the assent of the President on 24th September, 1955, there can be no doubt that if the tenant were ' a cultivating tenant ' within the Act and the rent was in arrear he could be evicted from his holding.
4. The tenants filed a counter objecting to the eviction. The plea raised by them was that the applicant for eviction, was not a landlord and that they were not tenants as defined in Act (XXV of 1955). This was explained in paragraph 5 of the counter thus:
The lands are situated in Biroji Agraharam which was an inam originally. The Inamdar had both the varams in these lands. By virtve of the definition of Estate having been amended in the Madras Estates I and Act this Inam vllage had become an estate. ...These respondent and their father were in passession these lands on the relevant dates as required by law and they have acquired a right of occupancy in these lands. The petitioner is only a landholder as defined in the Madras Estates Land Act. For the above reasons it is clear that the relationship between them is purely governed by the provisions of the Madras Estates Land Act alone. Therefore this petition under the Madras Act (XXV of 1955) is not maintainable.
There were also other defences which might be termed as on merits regarding the quantum of the arrears but to these it is not necessary to advert in this petition
The Revenue Divisional Officer, Salem, who enquired into this petition held that though the village might have been ' an estate ' falling within the definition of that expression by reason of the amendment effected to the Estates Land Act in 1936; the respondents (the tenants) had no occupancy rights, and that the consequence of this was that they had merely rights as cultivating tenants under the Madras Act (XXV of 1955) and as they were in arrear of rent they ought to be evicted from their holding. It is against this order of the Revenue Divisional Officer, Salem, that the Writ Petition No. 1092 has been filed.
5. The landlord concerned in W.P. No. 905 of 1956 is the same as in W.P. No. 1092 of 1956. Only the tenants are different. Substantially the pleas were the same. The only point of difference between the proceedings in the two cases lay in this that on the date of the hearing before the Revenue Divisional Officer of the petition concerned in W.P. No. 905 of 1956 the tenant was absent. He was declared ex parte and the order for eviction was passed after considering the evidence of the landlord, where as in the other case (W.P. No. 1092 of 1956) the tenants appeared at the hearing and adduced evidence but this was held not sufficient proof of the occupancy rights which they put forward.
6. W.P. Nos. 436 to 441 of 1955 a rise out of the applications filed under the Tanjore Tenants and Pannaiyal Protection Act (XIV of 1952). The common petitioner in these petitions is the landholder. The lands in question are situated in the Inam village of Nattanikottai in Pattukottai taluk. The claim of the landholder was that the lands which are now in dispute were his private lands and had been let out to cultivating tenants on tenancy agreements under which the rents specified in the several applications were agreed to be paid. It was stated that during fasli 1362 some of the tenants raised disputes as regards the rate of rent and that this was settled on the intervention of the Tahsildar of Pattukottai. During fasli 1363 the tenants combined together and refused to pay the rents agreed to be paid. Thereupon six petitions were filed against as many tenants before the Tahsildar and Conciliation Officer of Pattukottai under Section 13 of the Tanjore. Tenants and Pannaiyal Protection Act (XIV of 1952). The material portion of, the section relevant to the present case enacts:
13(1) Save as otherwise expressly provided in this Act, any dispute between a landowner and a cultivating tenant. . . . . or any question which may arise as to the terms of a tenancy or the payment or non-payment of any rent. . . . shall, on application by any party, be decided by the Conciliation Officer.
7. The tenants who were named, as respondents in the several applications objected to the jurisdiction of the Conciliation Officer to hold the enquiry into the dispute. They stated that the relationship between themselves and the landholder was not one between a landowner and ' a cultivating tenant' as contemplated by the Act but that tihey were ryots entitled to occupancy rights under the Madras Estates Land Act and that the result of this was the absence of jurisdiction in the Conciliation Officer to entertain the petitions. . The Conciliation Officer dismissed the applications mainly on the ground that the applicant landlord had failed to prove the tenancy agreement which he has alleged and which was the basis upon which the officer's jurisdiction was invoked. This officer dismissed out of account the written agreement in relation to fasli 1362 as one that had been entered into without prejudice to either parties' rights. He went on to record:
It is thus clear that the petitioner has not proved that the relationship of landowner and cultivating tenant exists between him and the respondents. In the circumstances the petitions are dis-. missed as not falling under the purview of the Tanjore Tenants and Pannaiyal Protection Act, 1952.
The landholder took the matter on appeal under Section 13(2) of the Act. This appellate authority set out all the contentions and arguments raised by either side but dismissed the appeals on a very short ground. This is set out in paragraph 7 of the Order : ..it is not for this Court to determine the ownership of the lands in question or their tenure as to whether they are ryoti or private. The contentions of either party whether the appellant has got absolute ownership over the properties or whether the respondent has got kudikani or occupancy right in the lands are not for this Court to decide. These questions have to be contended and thrashed in a competent Court. According to the provisions of Act (XIV of 1952), I am to decide only whether the appellant comes within the meaning of landowner as given in Section 2(g) and the tenant (respondent) comes within the definition of Section 2(d) of the Act. The main issue to be decided in this case is to find out whether a tenancy agreement express or implied exists between the parties...It is an admitted fact that the landowner has notproved that there is an express agreement....The counsel for the appellant stated that the tenancy agreement is implied inasmuchas the respondent had been paying rent to the landholder. It is in evidence that the respondent had been in possession of the lands for a very long time. There is no proof to show that the landlowner or his predecessors in title ever called on the respondent to execute a lease deed for the lands. To the arguments put forth on the appellant's side that the tenants had no alienable rights in the lands and had not at any time previously alienated the lands by sale or mortgage, the respondents' counsel argued that the appellant had never changed or terminated the tenancy to prove his ownership....
There is nothing on evidence even to imply that the respondents had been paying a share of produce or a cash rent which is not assessment to the landholder which would bring the case under the provisions of this Act. In short there is no sufficient and satisfactory evidence to show that the tenants (respondents) recognised the appellant as the landowner at any time. In the circumstances, I am unable to find that there is any tenancy agreement express or implied under which the respondents recogaised the appellant as a landowner within the meaning of Act (XIV of 1952).'It is these orders passed by the Revenue Court in one set of petitions (W.P. Nos. 436 to 441 of 1955) and by the Revenue Divisional Officer in other set (W.P. Nos. 905 and 1092 of 1956) that are challenged as illegal and improper in these writ petitions.
8. We shall first take up for consideration W.P. Nos. 1092 and 905 of 1956 which call for the proper construction of the provisions of the Madras Cultivating Tenants Protection Act, 1955. The lands in question which are in the possession of the petitioners before us, namely, the tenants are situated in the village of Byroji Agra-haram. The history of this village and the successive stages of the grant are the subject of discussion and decision by the Privy Council in the case reported in Krishnaswami v. Perumal 64 L.W. 1 : A.I.R. 1950 P.C. 105. It was there held that the village was the subject of an Inam grant which fell within the definition of an ' estate ' as defined by the Madras Estates Land (Third Amendment) Act, 1936. It was therefore not an ' estate' which could be notified or taken over under the Madras Estates Abolition Act (XXVI of 1948).
9. If the lands were in ' an estate ' the next question that would arise would be in relation to the rights of the persons in occupation of the land for the purpose of cultivation. The claim on the part of the agraharamdars was that the lands in the possession of these tenants--petitioners in 1092 of 1956-were private lands, a contention which was accepted by the Revenue Divisional Officer. If the lands were private lands, there cannot be much controversy that the tenants would be entitled to the benefits and would also be subject to the obligations imposed by the Madras Cultivating Tenants Protection Act (XXV of 1955).
10. Mr. Mohan Kumaramangalam learned Counsel for the petitioners in these two petitions raised three questions for our consideration. (1) Has the Revenue Divisional Officer or the Tribunal created under Act (XXV of 1955) jurisdiction to determine whether a land is in an estate where such fact is denied. (2) If he has and he finds that the village in which the lands lie is an estate, has he jurisdiction to determine whether the lands concerned are or are not the private lands of the landholder (3) If he has and he finds that the lands are ryoti lands can the occupancy ryot in possession of his holding be treated as a cultivating tenant within Act (XXV of 1955) so as to enable the Revenue Divisional Officer to exercise jurisdiction in favour of or against such a ryot The learned Counsel invited us to answer these questions in the negative and to hold that when once the tenant pleaded that he was an occupancy ryot entitled to the benefit of the protection afforded by the Estates Land Act, the Revenue Divisional Officer became deprived of his jurisdiction and became bound to reject the petition leaving the parties to agitate their rights before the regular Courts or before the Tribunals set up under special enactments like the Estates Land Act, etc.
11. We shall premise this discussion by adverting to a submission by the learned Advocate-General who appeared for the respondents and which we understood was not in serious dispute. That was, that the territorial operation of Madras Act {XXV of 1955) was not confined to what we might term the ryotwari areas. In other words, the portions of the State Territory where there were ' estates ' within Madras Act (I of 1908) were not outside the territorial extent of the Madras Cultivating Tenants Protection Act, 1955. This is clear from the terms of Section 1 of the Cultivating Tenants Protection Act. Its territorial operation is set out in Section 1(2) thus:
1(2) : It extends to the whole of the State of Madras, except- (i) the districts of Malabar and South Kanara; (ii) the Gudalur taluk of the Nilgiri district;(iii) and the areas in which the provisions of the Tanjore Tenants and Pannaiyal Protection Act, 1952 (Madras Act XIV of 1952), are in force.'
It will be seen that the territory refered to in Sub-clause (i) and (ii) of Sub-section (2) are areas where the Malabar Tenpncy Act was in force and Sub-clause (iii) excluded from the territorial operation of the Cultivating Tenants Protection Act the area where the Tanjore Tenants and Pannaiyal Protection Act, 1952 was in force which was at that stage the district of Tanjore. The areas excluded had reference therefore to the tenancy legislation that governed the relationship between the landholder and the tenant there. It was not as if the Legislature had not known the existence of the Madras Estates Land Act and if it was the intention of the Legislature to exclude from the territorial extent of the Madras Act (XXV of 1955) the areas where the Estates Land Act was in force, one would have expected a provision in more specific terms. The learned Advocate-General was therefore well founded in his submission that the territorial operation of the Madras Act (XXV of 1955) was not confined to ryotwari areas.
12. We shall next proceed to consider the objections formulated by Mr. Mohan Kumaramangalam which we have set out earlier. The first of these questions is, has the Tribunal created under the Act (XXV of 1955) jurisdiction to determine whether a village in which the lands are situated is ' an estate ' or not. In our judgment this has to be answered in the affirmative. If, as we have held, the territorial extent of the Act extends even to the areas which are ' estates ' under the Estates Land Act, the jurisdiction of the officer cannot be held to be ousted merely because one of the parties affirms that the land is in an ' estate ' governed by the Estates Land Act. The enactment defines the rights of landlords and cultivating tenants within the area to which the Act extends and it necessarily follows that the officer is vested with jurisdiction to adjudicate into the disputes between such parties to determine whether the relationship is such as would attract his jurisdiction. Preliminary to the exercise of such jurisdiction there might be a necessity to determine the tenure of the village. Whatever finality might attach to any adjudication by the officer as regards the tenure of the village, the officer would certainly have jurisdiction to determine that tenure for the purpose of conducting the enquiry which the statute imposes on him. In our judgment, the officer has an incidental power or jurisdiction to determine the tenure of the village as preliminary to the investi-gation of the relationship of the contending parties before him. After all one has to remember that the bulk of the estates where the relationship between landholder and the tenant was governed by the provisions of the Estates Land Act have been notified and taken over under the Estates Abolition Act (XXVI of 1948) and the areas have become ryotwari. Only the islets composed of inams which became estates under the amendment of 1936 still remain governed by the Madras Estates Land Act, 1908.
13. If the finding of the Revenue Divisional Officer be that the village in which the lands are situated is not as 'estate' governed by the Estates Land Act, no further complications arise and the Revenue Divisional Officer would proceed next to enquire as to whether the relationship between the parties before him is that of landowner and cultivating tenant as defined by the Madras Act (XXV of 1955).
14. If, however, the finding of the Revenue Divisional Officer is that the lands are situated in an estate the next point urged by learned Counsel for the petitioners arises. This was as regards the jurisdiction of the officer to determine whether the land which is the subject-matter of the proceeding is private land of the landholder or whether it is ryoti land in which the Estates Land Act recognises or confers occupancy rights. On this part of the case Mr. Mohan Kumaramangalam took up two alternative positions (1) that the officer had no jurisdiction to determine the nature of the tenure of the lands but must dismiss the application immediately he held that the land was situated in an 'estate '; and (2) that assuming he were wrong and the officer had jurisdiction to decide the tenure of the land the officer should, decide the question as to the land being private land or ryoti land by a reference to the relevant provisions of the Estates Land Act in which the rules of evidence to determine such question have been laid down.
15. The first of the alternative arguments was based on the provisions contained in Section 183 and Section 185-A of the Madras Estates Land Act. Section 183 ran:
183(1). In the case of any land alleged to be a landholder's private land, on the application of the landholder or of any occupant and on his depositing the required amount for expenses, the Collector may, subject to rules made in this behalf by the State Government ascertain and record whether the land is or is not a landholder's private land.
(2) Notwithstanding anything contained in any agreement or compromise, the Collector shall not record any land as a landholder's private lands, unless it is proved to be such by satisfactoryevidence.
The portion material in the present context in Section 185-A is contained in Sub-sections (1) to (3).
185-A (1). In the case of an inam village which was not an estate before the commencement of the Madras Estates Land (Third Amendment) Act, 1936, but became an estate by virtue of that Act, in respect of any land which does not fall under any of the categories referred to in paragraphs (i) to (vi) of Sub-clause (6) of Clause (10) of Section 3 or under the category referred to in Sub-section (4) or Sub-section (5) of Section 8, the landholder may within three years of the date of the commencement of the Madras Estates Land (Third Amendment) Act, 1936, lodge an application, in such manner as fnay be notified by the State Government, for a declaration by a Special Tribunal constituted as hereinafter provided, that the kudivaram in such land was vested in him on the 1st day of November, 1933 and that he has retained it ever since.
(a) (a) A special Tribunal or special Tribunals shall, from time to time, as occasion may arise be constituted to hear and dispose of applications of the nature specified in Sub-section (1).
(b) Every such Tribunal shall consist of three members chosen by the State Government one of whom shall be a Judicial Officer eligible for appointment as a Judge of the High Court and another shall be an experienced Revenue Officer. The State Government shall appoint one of the members of the Tribunals as the President thereof.
(c) Clauses (i) and (ii) of the second proviso to Section 185 shall apply to proceedings under this section.
(d) Any order under this Sub-section passed by a special Tribunal or by a majority of the members thereof shall be final and shall not be liable to be questioned in any Court of law.
(3) In the case of an estate within the meaning of Sub-clause (d) of Clause (2) of Section 3 read with Explanation (1) to that Sub-clause, the provisions of this section shall have effect as if for the expression ' three years of the date of the commencement of the Madras Estates Land (Third Amendment) Act, 1936 ' in Sub-section (1), the expression ' one year of the date of the commencement of the Madras Estates Land (Amendment) Act, 1945 ' had been substituted:Provided that this Sub-section shall not entitle a landholder to lodge an application under Sub-section (1) read with this Sub-section, if he had previously lodged an application in respect of the same land and such application was heard and disposed ofon its merits by a special Tribunal.
The argument based on these provisions was that if a landholder were desirous of making a claim that the lands in his estate fell within the categories described in Section 3(10)(b) of the Estates Land Act, he had to resort to the provisions either of Section 183 or Section 185-A before the appropriate authority or Tribunal named in these provisions for having his rights declared and recorded and that if the landlord had not done so the presumption raised by Section 185 of the Act '' that the land shall be presumed not to be private land until the contrary is proved ' would stand, unrebutted with the consequence that every land within the geographical boundaries of an estate would have to be held to be ryoti land. We are unable to accept the. construction that either Section 183 or Section 185-A were designed to erect exclusive forums for the determination of what constituted private land in an estate. The provisions have always been held to be enabling in their nature and leaving it open to the ordinary Courts cr other Tribunals before which the tenure of the land might be in controversy to determine the character of the land by reference to the provisions of the Estates Land Act enacted in that behalf.
16. In this connection and in support of this contention, our attention was drawn to the provisions of Act (XXIX of 1956) which effected an amendment to the Madras Estates Land (Reduction of Rent) Act, 1947 (XXX of 1947). The principal Act (XXX of 1947) made provision for the reduction of rents payable by the ryots in estates governed by the Estates Land Act, 1908, to the level of assessment on similar lands in ryotwari areas. The scheme of that enactment was twofold : (1) the reduction as stated already of rents in an estate and (2) that cortained in Section 3(4) of the Act, viz., the rents so reduced being collected by the State Government.
With effect from the commencement of the fasli year 1357 until the commencement of the fasli year in which the estate may be finally taken over by the State Government and the payment over to the landholder of the rents so collected.
It would be seen that the reduction of the rents was to be effected only in respect of the rents payable by ryots that is on lands other than private lands of the landholder. If any particular land in an estate was a private land- of the landowner, the Government would have no right to effect any reduction in the rents payable by tenants on such lands; nor could Government collect such rents under the terms of Section 3, (4). One question which arose on these provisions was whether the officers charged with the duty of collecting the rents due from estates in regard to which the rents were reduced, had an incidental power to determine whether the land for which rent was reduced was private land or not. The question came up before one of us in W.P. Nos. 561 and 563 of 1954 and it was held that they had no such jurisdiction. It was to remedy this state of affairs that in the main, Act (XXIX of 1956) was passed. This enactment effected an amendment of the principal Act (XXX of 1947) and provided in Section 3-A:
3-A. (1) Notwithstanding anything contained in the Madras Estates Land Act, 1908 (Madra Act I of 1908). or any other law for the time being in force, if any question arises whether any land in a village is or is not ryoti land it shall be determined by the Collector.
The other Sub-clauses or Section 3-A provided the machinery by which this matter was to be determined. It was at one time suggested in the arguments before us that the provisions contained in Act (XXIX of 1956) would bar the jurisdiction of the Revenue Divisional Officer under Act (XXV of 1955). We are however of the opinion that regard being had to the scope and purpose of Act (XXIX of 1956) this does not bar the jurisdiction of the Revenue Divisional Officer acting under Act (XXV of 1955), though if there were a final determination by the Collector or the Tribunals as regards the tenure of the land, that determination would certainly be evidence which the Revenue Divisional Officer functioning under Act (XXV of 1955) must take into account.
17. The other alternative contention deserves in our opinion to be accepted. Section 185 of the Estates Eand Act lays down the rales of evidence on the basis of which the determination whether any particular land is proved to be the private land of the landholder is to take place. It runs in the terms:
185. When in any suit or proceeding it becomes necessary to determine whether any land is the landholder's private land, regard shall be had
(1) to local custom,
(2) in the case pf an estate within the meaning of Sub-clauses (a), (b), (c) or (e) of Clause (2) of Section 3, to the question whether the land was before the first day of July, 1898, specifically let as private land, and
(3) to any other evidence that may be produced; provided that the land shall be presumed not to be private land until the contrary is proved:
Provided further that in the case of an estate within the meaning of Sub-clause (d) of Clause (2) of Section 3.
(i) any expression in a lease, patta or the like executed or issued on or after the first day of July, 1913, to the effect or implying that a tenant has no right of occu
pancy or that his right of occupancy is limited or restricted in any manner, shall not be admissible in evidence for the purpose of proving that the land concerned was private land at the commencement of the tenancy; and
(ii) any such expression in a lease, patta or the like, executed or issued before the first day of July, 1913, shall not by itself be sufficient for the purpose of proving that the land concerned was private land at the commencement of the tenancy.
Having regard to the comprehensive language employed in the opening words of the section we are clearly of the opinion that the rules of evidence laid down in Section 185 applies to every Court or Tribunal which had to determine whether any land in an estate was the landholder's private land.
18. Mr. Mohan Kumaramangalam complained that the Revenue Divisional Officer in the present case ignored the rules of evidence laid down in Section 185 of the Estates Land Act and arrived at his finding that the lands involved in Writ Petition Nos. 1092 and 905 of 1956 were private lands without reference to these rules and that in consequence the orders were vitiated by apparent error. The learned Advocate-General appearing for the respondents did not seriously contest this position. The result of this would be that subject to the determination of the other points to which we shall presently advert, the orders of the Revenue Divisional Officer in W.P. Nos. 1092 and 905 of 1956 would have to be set aside and the petitions remitted to him for reconsideration.
19. We shall next proceed to enquire into the legal consequences which would follow a finding by the Revenue Divisional Officer as regards the land in dispute being (a) the private land of the landholder within the meaning of Section 3(10) of the Estates Land Act and (b) not proved to be private land but was ryoti land, and consider these alternatives separately.
If by applying the rules of evidence enacted in Section 185, Revenue Divisional Officer acting under Act (XXV of 1955) reaches a finding that the lands concerned in the applications before him were the private lands of the landholder we do not see any difficulty in the further application of the provisions of the Madras Act (XXV of 1955). Section 19 of the Estates Land Act enacts:
Except as otherwise specially provided in this Act, the relations between a ryot and his tenants or between a landholder and a tenant of his private land, and the rights of any other owners of land, are not regulated by the provisions of this Act.
The relationship therefore between a landholder and the tenant of his private land is governed wholly by contract and is not regulated by the provisions of the Estates Land Act except that under Section 134. a landholder is in specified circumstances given the right to recover arrears of rent from his tenant by distraint and summary sale and Section 158 provides for a summary eviction in the event of there being arrears of rent. There would therefore be no difficulty in the literal application of the several provisions of the Madras Act (XXV of 1955) to tenants on such lands. In such cases the function of the Revenue Divisional Officer would be to ascertain whether a tenant was a cultivating tenant as defined in the Act and if the Officer was satisfied on this score, the tenants right to restoration under Section 4 and liability to be evicted for the grounds stated in Section 3 would logically follow.
20. The difficulty however arises in cases where the finding of the Officer was that the land in question was other than ' private land ' that is ' ryoti land ' in an estate. If a ryot had sub-let the lands and was not in personal cultivation of it so that he was not a cultivating tenant as defined by Section 2(a) of Act (XXV of 1955) there is no problem presented of having to reconcile the provisions of the Estates Land Act with those contained in Act (XXV of 1955). Where however ' A ryot with occupancy rights is also a cultivating tenant within section 2
(a), the question that immediately arises is a very difficult one, viz-, the interaction of the Estates Land Act and the Cultivating Tenants Protection Act. Put in concrete form, the questions that arise would be (a) could a ryot who personally cultivated his holding as required by Section 2(a) of Act (XXV of 1955) and who could be evicted by reason of his holding being brought to sale for arrears of rent under Chapter VI of the Estates Land Act or for abuse of his right under Section 151 of the same Act, claim restoration to possession under Section 4 of Act (XXV of 1955) and (b) could a ryot having occupancy rights in the land be evicted from his holding on any of the grounds set out in Section 3 of Act (XXV of 1955) or could the ryot even after passing of the Act (XXV of 1955) lay claim to the statutory right conferred upon him by section g of the Estates Land Act in these terms:
No land-holder shall be entitled to eject a ryot from his holding or any part thereof otherwise than in accordance with the provisions of this Act
and assert that he could be evicted from his holding, only under Section 151 of the Act. On this part of the case the contention urged by Mr Kumaramangalam was that ryots entitled to occupancy rights under the Estates Land Act were not 'tenants' within Section 2(a) of Act X,XVof 1955 for the reason that such ryots did not hold lands under a 'tenancy agreement.' Learned Counsel urged that such occupancy ryots were owners of the kudivaram in lands and did not hold under any title derived from the landholder but on the other hand were co-owners of the land along with him. In this connection learned Counsel relied on the observations contained in several decisions of this Court and among these we shall refer to the more important , ones. Learned Counsel relied on Venkatanarasimna Naidu v. Dandamudi Kotayya : (1897)7MLJ251 , and in particular to the following passage :' But there is a very material difference between the relation of landlord and tenant in England and that of a Zamindar and a ryot or cultivating proprietor, or, to speak more accurately, the person in whom, with reference to Government or its assignees, the right to occupy the soil for purposes ofcultivation is to be taken as vested.... Now, there is absolutely no ground for laying downthat the rights of ryots in zamindaries invariably or even generally had their origin in express or implied grants made by the zamindar. The view that, in the large majority of instances, it originated otherwise is the one most in accord with the history of agricultural landholding in thiscountry.... And why is this so It is for the simple reason that the rights of ryots cameinto evistence mostly, not under any letting by the Government of the day 01 its assignees, the zamindavs. etc., but independently of them.'The passage in Narayana Ayyangar v. R.C. On : (1902)12MLJ449 , where Venkataranarasimha Naidu, v. Dandamudi Kotayya : (1897)7MLJ251 , was referred to and followed ran in these terms :' . . . . the defendants are admittedly the holders of kudivaram right in perpetuity. There is no suggestion that they derived their title from the zamindar or that the ordinary kudivaram right is limited, in their case, by any contract or special or local usage. ....The case of the true tenant in the English sense, that is, of the man who holds by a title derived from the landlord may, of course, be very different especially in the case of shortleases.'
Learned Counsel invited our attention to similar passages to be found in certain other decisions but we consider it needless to refer to those because the legal basis on which the proposition is rested in these decisions also is the same as that to be found in the passages extracted.
21. We do not consider that these decisions or the principles laid down in them afford any great assistance to the petitioner's thesis which consists of a denial of any tenancy agreement between landlords and occupancy ryots in inams which became estates by virtue of the amendment to the Estates Land Act in 1936. In the first place even in the case of ryots in ancient zamindaries where occupancy rights were traceable to custom and possibly to zamindars as assignees of land revenue coming into the village economy later than the cultivators and in regard to which the Madras Estates Land Act merely recognised pre-existing rights and afforded statutory protection to them this Court has held in Rajah of Bobbili v. State of Madras (1952) 1 M.L.J. 174 that the relationship between a landholder and the ryot approximated to that of a landlord and tenant. Venkatarama Ayyar, J., stated at page 202 of the report:
It is true as already pointed out, that the rights of the zamindar differ in material particulars from those of the landlords under the general law but those differences do not affect the relationship of the zamindar and the ryots in law which is that of a landlord and a tenant; nor do they alter the character of the payments made by the ryot to the zamindar whether in kind or money which is rent. The legislation on this subject has proceeded for nearly a century on the basis that they stand in the relation of a landlord and tenant and it is too late in the day to dispute that position.
Moreover under Section 6 of the Estates Land Act occupancy rights were recognised not merely in the case of those in possession of ryoti lands at the date of the commencement of the Act (Act I of 1908) but also in those who were admitted to possession of ryoti land by the landholder after that date. If the right was traceable to the act of admission by the landholder it would certainly be derivative and the theory of co-ownership of the ryot would not fit into such a situation.
22. Lastly in the case of inams which became estates by reason of the Estates Land (Third Amendment Act) 1936 the right of a cultivator to occupancy rights was certainly not based on custom because admittedly they did not enjoy this right at the date of the amending Act. Before that date the relationship between landholder and the cultivator was strictly that of a landlord and tenant. It was this basis of derivative relationship under which the tenancy was terminable that the amending Act of 1936 operated to prohibit eviction except under Section 151 of the Act and to confer the other statutory rights of an occupancy ryot. Occupancy ryots in such estates cannot therefore claim by the customary law of the country that they own lands in co-proprietorship along with the estate holder.
23. The result of the preceding discussion is that ryots with occupancy rights in the 1936 Inam estates would satisfy the requirement of holding under a 'tenancy agreement' which is required by the last part of the definition of a cultivating tenant in Section 2(a) of Act XXV of 1955. If such tenants satisfied also the other condition required by the Sub-section namely 'personal cultivation' they would be cultivating tenants within the Act.
24. But the question still to be answered is whether such ryots are bound by the provisions of Section 3 and entitled to the benefits of Section 4 of Act XXV of 1955. They could be held to fall within these operative provisions of the enactment of 1955, only if the later enactment be held to be comprehensive legislation, codifying as it were the law in relation to all tenancies, its operative provisions superseding those in other enactments and effecting a pro tanto repeal of the relevant provisions of other enactments and in particular of the Madras Estates Land Act, 1908. Implied repeals are not favoured by the law and unless the provisions of the two enactments are so inconsistent with each other that they could not stand together, a Court of construction would not imply a repeal.
25. We shall start with Section 3 of the Act. of 1955. By virtue of this provision ' cultivating tenants' could be evicted from holding on four grounds, set out in Section 3(2)(a) to (d) reading
3 (2).-Subject to the next succeeding Sub-section, Sub-section (1) shall not apply to a. cultivating tenant :- '
(a) who, if in arrear at the commencement of this Act with respect to rent payable to the landlord and accrued due subsequent to the 31st March, 1954, does not pay such rent within a month after the commencement of this Act or who, after the commencement of this Act, does not pay rent within a month after such rent accrues due; or
(b) who has done any act or has been guilty of any negligence which is destructive of, or injurious to, the land or any crop thereof or has altogether ceased to cultivate the land; or
(c) who has used the land for any purpose not being an agricultural or horticultural purpose; or
(d) who has wilfully denied the title of the landlord to the land.
26. On the other hand in regard to ryots in estates Section 9 of the Estates Land Act enacted:
9. No landholder shall as such be entitled to eject a ryot from his holding or any part thereof otherwise than in accordance with the provisions of this Act.
The only provision for 'eviction' referred to here is to be found in Section 151 which ran:
151 (1)--A landholder may institute a suit before the Collector to eject a ryot from his holding only on the ground that the ryot has materially impaired the value of the holdihg for agricultural purposes and rendered it substantially unfit for such purposes.
(2) Notwithstanding anything contained in this section, a landholder may sue before the Collector for compensation in addition to, or in lieu of ejectment; or for an injunction or for the repair of the damage or waste, with or without compensation.
If the ryot was in arrcar in regard to rents, under the Estates Land Act there could be no eviction and there could be distraint or the holding could be brought to sale under Chapter Vlof the Act either by summary process or by a regular suit in a Rent Court, the ryot having several opportunities to avert the sale during progress of the proceedings or have the sale set aside on depositing the arrears even after the sale under Section 131 of the Act.
27. The question which immediately arises for consideration is whether it could have been the intention of the Legislature to enlarge the grounds for eviction and to wipe off all those benefits which the Estates Land Act conferred on ryots and put them on the same footing as tenants of private land in an estate. Having given the matter our best consideration we are of the opinion that the later enactment did not impliedly repeal the provisions of the Estates Land Act and that occupancy ryots in estates are unaffected by the provisions of the Cultivating Tenants Protection Act even though they might fall within the definition of cultivating tenants contained in it. We have reached this conclusion mainly for the reason that the cultivating Tenants Protection Act is designed to protect cultivating tenants from unjust eviction as stated in its preamble. As the provision as to eviction contained in Sections 9 and 151 of the Estates Land Act confers more extensive rights on tenants thaa those provided by Section 3 of the later Act we consider it not proper to hold that by reason of the enactment of Act XXV of 1955 rights already enjoyed by cultivating tenants were intended to be cut or abridged. Apart from the complication arising out of the definition of 'cultivating tenant', there is no indication in the later Act that it was intended to be an all-embracing and comprehensive legislation covering every species of tenants including those who were afforded larger protection under pre-existing law. In our judgment the mischief which Act XXV of 1955 was designed to remedy determines its scope. It was enacted to Testrict grounds of eviction open in cases of tenancies unregulated by statute and this fixes its extent of operation. It would not be a proper interpretation of a statute passed in such circumstances to hold that it enlarged the grounds already open to landlords to effect eviction of those who held under them. If Section 3 of Act XXV of 1955 did not operate to prejudicially affect the rights of 'ryots' in estates.it would logically follow that Section 4 of the later Act could also not be invoked by 'ryots' who for instance, have been evicted from their holdings between December, 1953 and September, 1955, or have been ousted from their holdings as a result of their sale under Chapter VI of the Act notwithstanding that they might fall within the definition of 'cultivating tenants.'
28. We shall now summarise the effect of this discussion on the result of W.P.Nos 1092 and 905 of 1956. We have already noticed that the Privy Council had held that the village in which these lands are situated was an estate by reason of the amending Act of 1936; and as regards the village being 'an estate' as thus defined there was no controversy before the Revenue Divisional Officer. The point which next arose for consideration was whether the particular land in regard to which restoration was claimed was or was not the private land of the landholder. The finding reached by the Revenue Divisional Officer was that it was private land But in arriving at this finding it is common ground that the officer did not keep in mind or apply the rules of evidence laid down by Section 185 of the Estates Land Act. The order of the officer holding that the lands were the private lands of the landholder was thus vitiated by fundamental error. The orders for eviction passed in these two writ petitions cannot therefore be sustained. In this view it is unnecessary to consider whether the Revenue Divisional Officer was justified in declaring the tenant in W.P. No. 905 of 1956 ex parte and in proceedings to pass an order for eviction considering the evidence of the landholder alone.
29. The petitions are accordingly allowed, the rules nisi are made absolute and the orders for eviction set aside. The petitions are remanded to the Revenue Divisional Officer for enquiry and disposal in accordance with law in the light of our observations in this judgment. There will be no order as to costs in any of these petitions.
30. W.P. Nos. 436 to 441 of 1955.--The necessary facts of these petitions have already been set out. There is little difference between the Tanjore Act (XIV of 1952) and Act XXV of 1955 on the definition of the term 'cultivating tenant.'
31. The only material difference between them consists in the provisions of Section 3 of the Tanjore Act which are not to be found in Act XXV of 1955. Section 3 of Act XIV of 1952 enacts:
3. The provisions of this Act-
(a) shall have effect notwithstanding anything to the contrary contained in any pre-existing law, custom, usage, agreement or decree or order of a Court, but
(b) shall not apply in respect of the land held by a landlowner in any village if the land held by him in such village does not exceed one veli (6-2/3 acres) which is either wet land or dry land irrigated from any Government source, or three velis (twenty acres) of dry land not irrigated from any Government source.
For the purpose now on hand it is the provision in Section 3(a) that is relevant and material. The question to be considered is whether the expression in Section 3(a) regarding the Tanjore Tenants and Pannaiyal Protection Act 'having effect notwithstanding anything to the contrary contained in any pre-existing law', is sufficient basis for holding that the rights created or conferred by this Act XIV of 1952 have to be read in supersession of the provisions of the Estates Land Act. The matter is no doubt not free from doubt. We have already adverted to the several circumstances which impelled us to hold that Madras Act XXV of 1955 had not effected a repeal of Section 9 or the other relevant provisions of the Estates Land Act. These circumstances apply with equal force for the construction of the Tanjore Tenants and Pannaiyal Protection Act. But this apart we have the preamble reciting the mischief which the enactment was intended to remedy. This runs:
Whereas in the district of Tanjore the relations between landowners and their agents on the one hand and tenants and farm labourers on the other had become strained, resulting in the displacement of tenants and the dismissal of farm labourers and in agrarian crimes and disturbances.
This was an evil which obtained in ryotwari areas or in areas where the tenancy was contractual without statutory regulation where the tenants could be evicted under the ordinary law. It would be a strange thing to hold that an enactment which was conceived of in the interests of tenants and to ensure their continued retention on the land should be construed as one under which a larger right of eviction was conferred on the landlords than had obtained prior to Act XIV of 1952. In our judgment the law that is referred to in Section 3(a) is that contained in an enactment like the Transfer of Property Act or other pieces of general law and not those like Sections 9 and 151 of the Estates Land Act, 1908, which were conceived of in the interests of tenants and prohibited their eviction except on very special grounds. The terms of Section 9 of the Act which contain a direction to have lease-deeds executed setting out the terms of the tenancy confirm this construction of the enactment. We are therefore of opinion that notwithstanding Section 3(a) by the same line of reasoning which we have adopted of the construction of the provisions of the Madras Act XXV of 1955, occupancy ryots in estates whose rights are determined by the provisions of the Estates Land Act are not intended to be brought within the scope of Act XIV of 1952 notwithstanding that such cultivators might fall within the definition of ' cultivating tenants' as defined in Section 2(d) of that Act. We have only to add that since these proceedings began, the provisions of the Tanjore Act in relation to ' tenants' have been repealed by Act XXV of 1955, and replaced by the Cultivating Tenants Protection Act.
32. In considering W.P. Nos. 436 to 441 of 1955 it is unnecessary to cover the same ground in regard to W.P. Nos. 1092 and 905 of 1956 and discuss the jurisdiction of the Conciliation Officer or the Revenue Court under the Tanjore Act for the provisions are identical and the conclusions we have reached would apply equally under this enactment. It is sufficient therefore to summarise our conclusions on the several points. The Conciliation Officer and the Revenue Court on appeal had jurisdiction under Section 3 of the Act to determine whether the lands in question were situated in an estate. If this was answered in the negative and the relation between the parties satisfied the definition of landlord and cultivating tenant as defined in the Act the Tribunals would have to proceed under Section 13 and resolve the disputes between the parties. If, on the other hand, the answer were in the affirmative that they were in an 'estate', the Tribunals would have had to embark on a further enquiry and determine whether the lands in question were or were not the private lands of the landholder and this was the contention put forward by these petitioners before the Conciliation Officer. In considering this matter, the Conciliation Officer as well as the Revenue Court would have to apply the relevant provisions of the Estates Land Act. It was the contention of Mr. Vedanthachariar, learned Counsel for the petitioner in W.P. Nos. 436 to 441 of 1955, that a record-of-rights had been prepared for the village in which the lands are situated under Chapter XI of the Estates Land Act in which these lands have been entered as the private lands of the landholder. Learned Counsel urged that under Section 167 (3) of the Estates Land Act every entry in a record of rights published--it was his case that it was published as required under Section 166(2)--shall be evidence of the matter referred to in.such entry and shall be presumed to be correct until: the contrary is proved.' Learned Counsel produced the record--of-rights itself before us but we consider that the proper course,is for the officer who has to determine this question of fact to take this piece of evidence into account and after assigning to it the probative value which the law requires arrive at a finding as to whether the lands in dispute are or are not the private lands of the landholder. If on a consideration of the relevant material including the entry in the record-of-rights the Revenue Court finds that the lands are private lands, it would undoubtedly have to dispose of the appeal before it on the merits and examine the complaint of the landholder set out in his petition under Section 13 of the Act. If, on the other hand, it found, again after considering the relevant materials in the manner we have set out above, that the lands in question were not proved to be the private lands of the landholder it would have to dismiss the appeal on the ground that the relationship between the petitioner-landlord and the tenant was not such as would fall within the purview of Act XIV of 1952. This has not been the approach of the Revenue Court and it has not considered the relevant materials placed before it for determining the tenure of the land. It has been brought to our notice that the landholder has filed a suit in the Civil Court for a declaration that the lands in question are his private lands implead-ing as defendants thereto the several tenants who are the respondents in the several applications before the Conciliation Officer. The pendency of the suit, however, does not oust the jurisdiction of the Revenue Court and for the purpose of affording relief open to landlords and cultivating tenants, the Tribunals erected under Act XIV of 1952, are, in our opinion, vested with jurisdiction to determine the tenure as preliminary to affording these parties the reliefs open to them under the statute. The pendency of the suit cannot therefore have any effect upon the order that has to be passed in these writ petitions.
33. The order of the Revenue Court dismissing the appeals preferred by the landholder--the petitioner before us--cannot be sustained. The petitions are accordingly allowed, the rules are made absolute and the orders of the Revenue Court dismissing the appeals are set aside. The appeals are remanded to the Revenue Court for disposal in accordance with law in the light of the observations contained above.. There will be no order as to costs in any of the petitions.