Sir G. V. Kumaraswami Sastriar, Kt., J. — This appeal arises out of a suit under Sect. 95 of the EstatesLand Act. The plaintiff is the tenant of the defendant who is the Rajah of Mandasa. The case of the plaintiff is that the defendant illegally distrained certain properties of his and the suit is to set aside the distraint. The plaintiff in paragraph 8 of the plaint states that the attachment made by the defandant is illegal, being contrary to the provisions of the Estates Land Act, and that there was no valid exchange of patta and muchilika or even a tender of a proper patta. To this the defendant replied in the written statement stating that the patta issued by the Settlement Officer continued in force, and that it is not correct to say that the attachment was illegal. It is not disputed that during fasli 1333 a record of rights under Ch. 11 of the Estates Land Act was prepared and in 1333 rent was settled under that chapter and before the record of rights was prepared the system in vogue was the sharing system and by the settlement proceedings certain cash rates were fixed. Up to fasli 1333 grain was paid and from 1334 cash rent was paid as per rate fixed by the settlement. The ryots appealed to the Board of Revenue and it did not grant the prayer of the ryots. The Board, however, acting under the powers given under Ch. 11 reduced the rates of rent fixed by the Settlement Officer by an order dated 17th December, 1925 by about three annas in the rupee. Under the Act, this determination of the rent takes effect from the next fasli. The defendant pleaded that there was sufficient compliance with the provisions of Sect. 53 as under R. 25 of the rules framed under the Estates Land Act an extract has to be given to each ryot containing all the particulars of land and the tenant's liability. Sect. 53 runs as follows:

“No landholder shall have power to proceed against a ryot for the recovery of rent by distraint and sale of his moveable property or by sale of his holding under Ch. VI unless he shall have exchanged a patta and muchilika with such ryot or tendered him such a patta as he was bound to accept or unless a valid patta or muchilika continues in force.”

Sects. 50, 51 and 52 refer to exchange of pattas and muchilikas. Sect. 51 requires that a patta in addition to giving certain particulars shall be signed by the landholder. It is clear from these provisions that an extract given under R. 25 of the Rules framed under the Act, by the Settlement Officer would not be a patta complying with the requirements of Sect. 51. We think that the District Judge was right in holding that the plea that there was a valid tender of patta by reason of an extract being given would not avail the defendant, and on the pleadings there was no other question to be determined. It is argued that issue 2 which runs as follows, “was the attachment illegal in the absence of a muchilika” was the only issue that the Court had to try; and that under the other condition in Sect. 53, namely, that there was a valid patta and muchilika in force, it is still open to the defendant to urge the validity of the distraint. I think that a patta and muchilika which is in force must be a patta and muchilika containing the terms in force at the date of the distraint. Under the settlement proceedings the basis of payment of rent is changed and what was before a waram rate was commuted into a fixed money rent. It cannot be said that the previous patta was not materially changed and that it would give the landholder the right to distrain. Distraint proceedings are of a summary nature, and the main object of the Act requiring exchange of patta and muchilika is that the tenant should know exactly what his rights are. Where there had been such a material change in the previous patta as was introduced by the settlement proceedings, I think it was the duty of the landholder to tender a fresh patta containing all the materials required under Sect. 51 and there is nothing in the Act to prevent him from doing so if he wants to take advantage of the special powers of distraint given to him. In my view pattas under Sect. 53 should contain all the terms which are existing at the date of the distraint or else pattas would not be available for the purpose of distraint, when the basis of rent payable has been altered. I am of opinion that the decision of the District Judge is right and this appeal must be dismissed with costs.

S. A. No. 298 of 1927.—The next appeal No. 298 of 1927 raises the same question with the addition as to whether the plaintiff could sue, he, not being a registered tenant. In the plaint it is alleged that the plaintiff was the manager of an undivided family, and that lands were owned by the undivided family and that the properties were distrained from the house of the joint family. The written statement pleaded that the plaintiff was not the registered tenant and therefore he cannot sue, but later on, it is stated that because of the plaintiff's conduct, the landholder was compelled to distrain and to direct attachment of the plaintiff's properties with the help of the police. It appears that so far as the joint family is concerned, the registered tenant was a member of that family. There is little doubt that the family was cultivating the land and it is unnecessary that the cultivator should be a person who tills the soil; it does not matter whether he raises the produce directly or through servants. It cannot be said that the defendant was before attachment ignorant of the fact that the joint family was cultivating the land. In fact he says he was forced to distrain because of certain acts of the plaintiff. Mr. Varadachariar argues that having regard to the provisions of Sect. 95 read with Sect. 79 (2), the only persons who could file a suit to set aside the distraint is the cultivator of whom the landholder had notice and to whom notice was to be given under the provisions of Sect. 79 (2). In other cases the only remedy of the person whose property is distrained is to file a civil suit. There is nothing in the Act in so many words which says that no person could sue unless he is the registered tenant. Mr. Varadachariar wants us to infer this from these two provisions. Sect. 77 empowers a landholder to distrain the moveable property of the defaulting ryot or the growing crops or the produce of the land or the trees in the defaulter's holding. This entitles distraint not only of the defaulting ryot's properties but also the properties of the cultivating tenant. Unless there is something compelling us to hold otherwise, it seems to me difficult to hold that the right of a person who, if he was a cultivator and whose property is wrongfully distrained is to have the benefit of the summary proceedings under this Act, should be controlled by the knowledge of the landholder and that if the landholder pleads ignorance the person whose property has been distrained should seek his remedy by filing a civil suit for damages. The wording of the Section is not very happy. But I do not think that the mere fact that Sect. 95 casts on the landholder the duty of giving notice to the cultivator, by necessary implication, takes away the right of suit from the cultivator even though it is shown that it was the cultivator whose property had been wrongfully taken away. I think the remedy given by Sect. 95 ordinarily would be the remedy given to a person whose property has been wrongfully distrained. So long as it is shown that he was cultivating and that his property had been distrained, I do not think that the word ‘aforesaid’ in Sect. 96 should be so construed as to deprive the right of suit. I think that the introduction of the word in Sect. 79 casts the duty on the landlord to give notice to the cultivator and nothing more is warranted by Sect. 79. Reference is made to The Midnapore Zamindary Co. Ltd. v. Muthappudayan, which was a case under Sect. 112 of the Act where we do not find the word, cultivator, and the only question there was about the registered holder. That decision does not render much help. I do not think that where the cultivator's property has been distrained wrongfully, he is deprived of the right of suit under the Act or of the right to plead that the distraint is not warranted by the provisions of the Act, simply because he happens to be not the registered holder or the landholder chooses to say that he had no notice of his cultivation. The matter is not free from difficulty, but it could not have been the intention of the legislature to deprive a person referred to above of his remedies under the Act. This appeal also fails and is dismissed with costs.

Reilly, J.—In the suit out of which Second Appeal No. 289 of 1927 arises the plaintiff objected to the defendant's distraint as illegal on the ground that there had been no valid exchange of pattah and muchilika between the parties and no proper pattah had been tendered to him by the defendant. To this the defendant replied that the pattah issued by the settlement officer at the recent monetary settlement continued in force and therefore the distraint was not illegal. The Sub-Collector who heard the suit framed an issue on these pleadings in the following terms: “Was the attachment illegal in the absence of a muchilika.” His finding was that it was not illegal and that the distraint was valid because the settlement pattah issued by the Revenue Department after settlement was one which the plaintiff was bound to accept and he presumed that the plaintiff had accepted it. The finding therefore was that there had been a proper tender of pattah. When the case came before the District Judge, he found that there was no exchange of pattah and muchilika and decreed the suit on that ground. Mr. Varadachariar has objected in this appeal that the District Judge should not have allowed a new point to be taken before the appellate Court in that way for the first time. On the pleadings it does not appear to be a new point. Mr. Varadachariar objects that, if his client had had an opportunity, he could have shown that there had been a proper exchange of waram pattahs and muchilikas between the parties which would have made the defendant's right to distrain clear under Sect. 53 of the Act. Sect. 53 provides that the landholder shall not have power to distrain for rent unless he shall have exchanged a pattah and muchilika with the ryot or tendered to the ryot such a pattah as he was bound to accept or unless a valid pattah or muchilika continues in force. Under the waram system the amount to be collected year after year is fixed for that year on the basis of the crop; but under the monetary settlement the money rent is fixed for a period of thirty years unless special proceedings are taken. It cannot be said that the waram pattah was any longer in force after the money settlement. Nor can it be said within the meaning of Sect. 53 that the defendant had tendered to the plaintiff any pattah which he was bound to accept in the fasli or in relation to the fasli in question. If there had been an exchange of waram pattah and muchilika, that could not be sufficient compliance with Sect. 53 of the Act to give the landholder a right to distrain after the money settlement had come into force. The right to distrain is a special right, and the intention of Sect. 53 of the Act appears to me to be to confine that right to two sets of cases, that is, cases where there has been an exchange of pattahs and muchilikas or tender of proper pattahs and cases where valid pattahs or muchilikas continue in force, the terms of which are clear and unquestionable between the parties. In the present case, I do not think that the learned District Judge was wrong in allowing the question to be argued before him in first appeal. I agree therefore that S. A. No. 289 of 1927 must be dismissed with costs.

S. A. No. 298 of 1927 raises exactly the same points with the addition that the plaintiff is not the registered ryot. In his plaint he described himself as the manager of the joint family which owned the holding in question. In reply, the defendant denied that the plaintiff was the registered pattadar. He said further on in his written statement that he had a right to distrain the plaintiff's property. The landholder has a right to distrain the moveable property of the defaulting ryot or the growing crops on the land or the produce of the land. The effect of that is that he can distrain not only the property of the ryot himself but the crops which may have been raised by the ryot's tenant or the produce which has been removed by the ryot's tenant. If the plaintiff is not the registered ryot of this land—and it is admitted he is not and that a junior member of the family is the registered ryot—then the only way in which the defendant-zamindar could have a right to distrain the plaintiff's property for the rent concerned would be on the ground that it was the crop or the produce of the registered ryot's land. It has been explained to us that although the registered holder is a junior member of the family, the holding is owned and the land is cultivated by the plaintiff's joint family. Under Sect. 96 certain cultivators of land, for the rent of which the property is distrained, can bring suits in the revenue Courts. Mr. Varadachariar contends that the word “cultivator” in Sect. 96 of the Act must be read with Sects. 95 and 79 (2) of the Act, with the result, as he interprets those provisions, that it is not every cultivator other than a pattahdar who can bring a suit in respect of the property distrained, but only a cultivator of whose cultivation the zemindar has notice. If the provisions of the Act are to be construed in that way, the result will be very extraordinary. The landholder might cut the crop which the cultivating tenant had raised on the defaulting ryot's holding, and, if it happened that the landholder had notice of the person who raised the crop, the cultivating ryot would have a summary remedy by way of suit in the revenue Court, but if the zamindar were ignorant who was the cultivating tenant, the cultivating tenant would be equally damnified but would be deprived of that remedy. That would be an extraordinary result. I do not think that there is anything in the wording of the Act which warrants such an interpretation. The term ‘cultivator aforesaid’ in Sect. 96 of the Act appears to me to be a cultivator other than the defaulter as mentioned in Sect. 79(2) of the Act. That being so, I agree that the plaintiff in this suit had a right to sue and that this second appeal also must be dismissed with costs.

W. S. S.Appeals dismissed.