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Judgment
Kumaraswami Sastri, J.—Second Appeal No. 289 of 1927.-This appeal arises out of a suit u/s 95 of the Estates Land 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 defendant 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 Chapter XI 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. XI 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 Section 53, as under Rule 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. Section 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 (Chapter 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.
Sections 50, 51 and 52 refer to exchange of pattas and muchilikas. Section 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 Rule 25 of the Rules framed under the Act by the
Settlement Officer would not be a patta complying with the requirements of Section 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 Section 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 u/s 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 u/s 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.
Second Appeal 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 Section 95 read with Section 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 Section 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. Section 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 Section 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 Section 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 Section 96 should be so construed as to deprive the right of suit. I think
that the introduction of the word in Section 79 casts the duty on the landlord to give notice to the cultivator and nothing more is warranted by
Section 79. Reference is made to The Midnapore Zamindary Co., Ltd. v. Muthappudayan ILR (1920) M. 534 : 1920 40 M.L.J. 213, which was
a case u/s 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 patta and muchilika between the parties and no proper patta had been tendered to him by the defendant. To
this the defendant replied that the patta 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 patta 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 patta. When the case came before the District Judge, he found that there was no
exchange of patta 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 no opportunity, he could have shown that there had been a proper exchange of waram
pattas and muchilikas between the parties which would have made the defendant''s right to distrain clear u/s 53 of the Act. Section 53 provides
that the landholder shall not have power to distrain for rent unless he shall have exchanged a patta and muchilika with the ryot or tendered to the
ryot such a patta as he was bound to accept or unless a valid patta 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 patta was any longer in force after the money settlement. Nor
can it be said within the meaning of Section 53 that the defendant had tendered to the plaintiff any patta 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 patta and muchilika, that could not be sufficient compliance, with
Section 53 of the Act to give the landholder a right to distrain after the money settlement had come info force. The right to distrain is a special right,
and the intention of Section 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 pattas and muchilikas or tender of proper pattas and cases where valid pattas 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 Second Appeal No. 289 of 1927 must be dismissed with costs.
Second Appeal 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 plaintiffs joint family. u/s 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 Section 96 of the Act must be read with Sections 95 and 79 (2) of the Act, with the result, as he interprets those provisions,
that it is not every cultivator other than a pattadar who can bring a suit in respect of the property distrained, but only a cultivator of whose
cultivation the Zamindar 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 Section 96 of the Act appears to me to be a cultivator other than the defaulter as mentioned in Section 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.