Muthu Reddi v. Muthu Venkatapathi Reddi

The plaintiffs sue as ryots, owning the occupancy right in the suit lands, and the lower courts have held that they gave defendants their tenants, valid notice to quit and are entitled to recover possession, rent and profits.

Defendants' first and main contention before us depends on the following facts, which have been admitted or found:—The mirasi or occupancy right in lands in the suit village belongs to the 1 and 2 plaintiffs, each owning an unascertained moiety of it First plaintiff and his predecessors have owned their moiety from time immemorial. Second plaintiff acquired hers as Stridhanam from her father in 1873. There is no connection between their titles, though it is a fact that second plaintiff married a member of first plaintiff's family. The plaintiff sue together, as tenants-in-common of the whole village and co-owner of the whole occupancy right. First plaintiff's predecessors however became entitled to the Zemindari, in which the suit lands are, by purchase about a hundred years back; and first plaintiff has succeeded to his rights, apparently (though nothing is alleged to turn on the fact) in respect of half the estate. Defendants therefore argue with reference to Sect. 8 (1) Act 1 of 1908 that, the occupancy and landholder's rights having been united by, transfer in the same person, first plaintiff's predecessor, the latter had and first plaintiff has a right to hold and sue only as a landholder, not as a ryot; and that, as first plaintiff cannot sue in the latter capacity, he and the second plaintiff cannot do so together. Plaintiffs it is admitted, can succeed, only if their suits are, as the plaints describe them, brought by ryots against non-occupancy-tenants, since it is not alleged that the conditions in which a landholder can evict his ryots are fulfilled.

Several answers, total or partial, to this contention have been attempted. But attention may be confined to one, which is decisive. Sect. 8, on which defendants rely, is no doubt, as its marginal note indicates, the portion of the Act devoted to the topic of merger; and the result of its Clause (1) is that, when the interests of the landholder and the occupancy ryot have become united in the same person, the right of the latter is, subject to the rights of third persons determined. This provision, the one relied on by defendants, is no doubt absolutely general and if it stood unqualified their argument could be sustained. Clause 2 of the same section deals with a particular case of the class covered by cl. (1), the acquisition of the occupancy right by one amongst several co-landholders, but assumes that the general rule is applicable in those circumstances also, and provides for the protection of the co-landholders' right to his share of the rent and for the revival of the ryots' right in favour of any future lessee of the land. It is in these circumstances that, according to defendants, the case before us of acquisition of the landholder's right by one of the co-ryots the converse in some respect of the case dealt with in cl. (2), must, also be covered by cl. (1). They however overlook another provision, the explanation printed after cl. (6) of Sect. 6. That clause prohibits acquisition otherwise than by inheritance or devise of occupancy right by an Ijaradar, or farmer; but the explanation following it is of wider scope, providing that a right of occupancy shall not be lost in consequence not only of its owners subsequently holding the land, as an Ijaradar, or farmer, but also, what is, unconnected with cl. 6 of his becoming interested in it as landholder. Here, it is plain, we have what Sect. 8 did not afford, provision for the particular case before us; and, though its position in the explanation to a clause dealing with other matters and separated from Sect. 8 by Sect. 7, relating to mining rights, is anomalous, its unambiguous language cannot be deprived of effect. This being so, it is unnecessary to deal at length with the arguments based on the general doctrine of merger or the evidence found by the Lower Courts to be in plaintiff's favour as to the manner in which the parties have understood their rights, especially as indicated by defendants' payment of Thunduvaram, consistently with the payment being to a ryot owning occupancy right. As regards the first point it may however be observed that, as the Act, a comprehensive Tenancy Code, is explicit, discussion of the general law is irrelevant; and that an exception to the general presumption of merger, similar to that allowed by the explanation after Sect. 6, clause 6, though more logically placed, is to be found in the explanation to Sect. 22 of the Bengal Tenancy Act (VIII of 1885). Vide also Abul Hasan Khan v. Bhura. Defendants' remaining argument is that the Lower Appellate Court should have dealt with their plea regarding a specific letting to them and the absence of any notice by which the tenancy thus created could be terminated. The plaint para. 4 referred to their entering into arrangement with plaintiffs, which was subject to an obligation to surrender the land at the end of the Fasli; and in para. 5 the giving of a registered notice in December 1910 to surrender before the end of the Fasli (i.e,) 30th June 1911, is mentioned. In the written statements the arrangement was denied and there was nothing regarding the notice, except a reference to it was “alleged.” Issue 2 was framed regarding the arrangement. But there was no issue regarding the notice; and throughout defendants have never put forward any alternative contention that, if the arrangement was established, the lease under it was never terminated in a valid way by the notice alleged or otherwise. In these circumstances they cannot put forward such a contention for the first time in this Court at the hearing.

The Second Appeals therefore fail and are dismissed, S. A. No. 1298 with costs and the others without costs.

S. S.Appeals dismissed.