Judgement Appeal from a judgment and decree of the High Court (November 26, 1914) affirming a decree of the Subordinate Judge of Masulipatam (November 22, 1912). The appellant on July 8, 1907, let about 22 acres of land within his zamindari to the respondents. The muchalka described the land as kambuttam land, and by cl. 8 (which is set out in their Lordships judgment) the respondents agreed that they would relinquish it on April 30, 1908. They, however, failed to do so, and were in possession at the commencement of the Madras Estates Land Act, 1908—namely, on July 1, 1908—though contrary to the expressed wishes of the appellant. In the course of a criminal complaint by the respondents against the appellant the Magistrate had attached the land under s. 145 of the Criminal Procedure Code. The appellant thereupon instituted the present suit, in which he claimed a declaration that the land was his private land, and that the respondents had no occupancy rights; he also claimed mesne profits. He alleged that the land had always been his private land, and he relied on the terms of the muchalka. The respondents by their written statement pleaded, inter alia, that the land had always been ryoti land, and that the appellant had no right to convert it into private land even if he had 78 Law Rep. 46 Ind. App. 44 ( 1918- 1919) Raja Yerlagadda Mallik-Arjuna Nayudu V. Rajulapati Somaya 179 purported to do so, which they denied; and that, both under the Madras Estates Land Act, 1908 (Madras Estates Land Act, 1908, s. 8 "(1.) Whenever, before or after the commencement of this Act, the entire interests of the land holder and the occupancy ryot in any land in the holding have become united by transfer, succession, or otherwise in the same person, such person shall have no right to hold the land as ryot, but shall hold it as a landholder.... (3.) The merger of the occupancy right under sub section 1 ....shall not have the effect of converting ryoti land into private land."), and independently of it, they had permanent rights of occupancy. The Subordinate Judge, after hearing evidence, dismissed the suit. He found that the land had been ryoti land down to 1883, though it had been let as kambuttam from time to time since that date. The Subordinate Judge, after hearing evidence, dismissed the suit. He found that the land had been ryoti land down to 1883, though it had been let as kambuttam from time to time since that date. He was of opinion that s. 8 of the Act was retrospective in effect, precluding the acquisition of private rights in land which had once been ryoti; he held that the respondents, being in possession of ryoti land on July 1, 1908, obtained permanent occupancy rights by virtue of s. 6,sub-s. 1 of the Act. The High Court dismissed an appeal. The learned judges (Sir John Wallis C.J. and Seshagiri Aiyar J.) agreed in affirming the decision that the land was ryoti though for different reason. The appeal is reported at I. L. R. 39 M. 341. The Chief Justice rejected the contention that by the retrospective effect of s. 8 ryoti land could be converted into private land only in the circumstances described in the proviso to s. 185. (See p. 48, note (1).) He considered that the intention of s. 8, sub-s. 1, was to prevent a landholder who acquired the kudivaram right from having the power of a ryot to let upon terms not open to a landholder. After referring to the definitions of " estate, " landholder," and " private land " in s. 3, he said " I do not think it can be said that a landholder holding private land is not holding it as a ryot, for that is the distinction contemplated in the section." He was, however, of opinion that it was very necessary that a conversion of ryoti into private land should be proved by very clear and satisfactory evidence. He said that in the present case there was no evidence that the zamindar had ever himself cultivated the land in suit; on the contrary, the evidence was it had always been cultivated by the tenants. It was shown that the land was ryoti down to a certain date; merely calling the land kambuttam and letting it on terms which negatived occupancy right did not amount to a conversion. He concluded with the passage set out in their Lordships judgment. Seshagiri Aiyar J. saw no reason to differ from the view of the trial Judge that from 1866 to 1874 the land was held and enjoyed as ryoti land. He concluded with the passage set out in their Lordships judgment. Seshagiri Aiyar J. saw no reason to differ from the view of the trial Judge that from 1866 to 1874 the land was held and enjoyed as ryoti land. He was of opinion that the proviso to s. 185 should be read as an exception to s. 8, and that the scheme of the Legislature was that the private land of a holder should not be augmented except in the special instance men tioned in that proviso. He pointed out that while s. 181 enacted that a landowner might convert his private land into ryoti land, the Act made no express provision for the converse case. The learned judges being agreed that the land was ryoti land did not deal with the question whether under the circumstances of the case the tenant acquired a permanent right of occupancy under s. 6, sub-s. 1 and the explanation, there being previous decisions of the Court binding them so to hold. 1918. Oct. 29. De Gruyther K. C. and Kenworthy Brown for the appellant. Even if the land is to be regarded as ryoti land the respondents did not obtain occupancy rights under s. 6, sub-s. 1 of the Act and the explanation. Those enactments refer only to persons whose possession is authorized. Here the respondents were holding over against the expressed wishes of the appellant, and contrary to the terms of their muchalka. Where the Act intends to refer to unauthorized possession as in ss. 45 and 163, the word "occupation" is used. Land in the unauthorized occupation of a person cannot be 78 Law Rep. 46 Ind. App. 44 ( 1918- 1919) Raja Yerlagadda Mallik-Arjuna Nayudu V. Rajulapati Somaya 180 described as "his holding;" s. 6, sub-s. 1 therefore cannot be applied. It is improbable that the Legislature intended to give a permanent right of occupancy to persons who were in the position of trespassers, as the respondents were. The present question did not arise, and was not decided, in the Full Bench case of Kannakayya v. Janardhana Padhi. (( 1913) I. L. R, 36 M. 439.) In that case the person in possession had been held to be a ryot in possession of ryoti land; he consequently had an, anterior occupancy right. [Reference was also made to Govinda Parama Guruvu v. Bothasi Dandasi (( 1910) 20 Madr. (( 1913) I. L. R, 36 M. 439.) In that case the person in possession had been held to be a ryot in possession of ryoti land; he consequently had an, anterior occupancy right. [Reference was also made to Govinda Parama Guruvu v. Bothasi Dandasi (( 1910) 20 Madr. L. J. 528.), and Swapada Mudali v. Pitty Thyagaraya. (( 1914) 27 Madr. L. J. 665.)] But upon the facts as found this was private land and not ryoti. The evidence and the findings below show that from 1884, if not from 1874, the land had been described as kambuttam, and had been let under that description. By s. 185 the letting of the land under the description of private land is made a test of its character. The proviso to that section must be construed as a proviso and not as an exception to the substantive enactment Maha Prasad v. Ramani Mohan Singh. (( 1914) L. R.411. A. 197,206.) The respondents did not appear. Dec. 3. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal from a decree dated November 26, 1914, of the High Court at Madras, which affirmed a decree, dated November 22, 1912, of the Subordinate Judge of Masulipatam, by which the suit had been dismissed. The plaintiff is a zamindar, and he brought his suit on April 3, 1910, for a declaration that certain lands within his zamindari in the village of Ayyanki, in the Kistna District, of which the defendants were in possession, were his private lands within the meaning of the Madras Estates Land Act, 1908 (Madras Act I. of 1908), in which the defendants had no right of occupancy, for the ejectment of the defendants from those lands, and for mesne profits. The defendants resisted the suit on the ground that the lands in question were ryoti lands within the meaning of the Act, and that they had in them rights of occupancy and were not liable to be ejected by the Civil Court. The defendants resisted the suit on the ground that the lands in question were ryoti lands within the meaning of the Act, and that they had in them rights of occupancy and were not liable to be ejected by the Civil Court. As defined by Madras Act I. of 1908, "private land" means "The domain or home-farm land of a landholder by whatever designation known as kambuttam, khas, sir or pannai." "Ryot" as defined by that Act means "A person who holds for the purpose of agriculture ryoti land in an estate on condition of paying the landholder the rent which is legally due upon it." " Ryoti " land as defined by that Act means " Cultivable land in an estate other than private land, but does not include (a) tank-beds, (b) threshing floors, cattle-stands, village sites, and other lands situated in any village which are set apart for the common use of the villagers, (c) lands granted on service tenure either free of rent or on favourable rates of rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists." The lands in question do not satisfy the conditions men tioned in (a), (b) or (c), and are therefore not excluded from the statutory definition of ryoti lands. They were cultivable lands in the estate of the plaintiff, and had been held by the defendants for the purpose of agriculture under a muchalka, which will be presently referred to, and were not old waste lands. [The judgment then set out s. 6, sub-s. 1 of Madras Act I. of 1908, the explanation added thereto by Madras Act IV. of 1909, and s. 185 of the former Acts. (Madras Act I. of 1908, s. 6, sub-s. 6 (1.) "Subject to the pro visions of this Act, every ryot now in possession or who shall hereafter be admitted by a landholder to possession of ryoti land, not being old waste situated in the estate of such landholder, shall have a permanent right of occupancy in his holding ; but nothing contained in this sub section shall affect any permanent right of occupancy that may have been acquired in land which was old waste before the commencement of this Act." To the above sub-section there was added by Madras Act IV. of 1909 the following explanation "For the purpose of this sub-section, the 78 Law Rep. 46 Ind. App. 44 ( 1918- 1919) Raja Yerlagadda Mallik-Arjuna Nayudu V. Rajulapati Somaya 181 expression, every ryot now in possession, shall include every person who, having held land as a ryot, con tinues in possession of such land at the commencement of this Act." Madras Act I. of 1908, s. 185 " When in any suit or proceeding it becomes necessary to determine whether any land is the landholders private land, regard shall be had to local custom and to the question whether the land was before the first day of July, 1898, specifically let as private land and to any other evidence that may be produced, but the land shall be presumed not to "be private land until the contrary is shown Provided that all land which is proved to have been cultivated as private land by the landholder himself, by his own servants or by hired labour with his own or hired stock , for twelve years immediately before the commencement of this Act shall be deemed to be the land holders private land.")] The plaintiff endeavoured to prove that by custom the lands in question were his private lands. He failed to prove any such custom. He failed to prove any such custom. In a muchalka of July 28, 1907, which the defendants or some of them gave to the plaintiff, and under which they agreed to hold the lands as his tenants until April 30, 1908, the lands were described as " your diwanam kamatam (private) lands." Clause 8 of that muchalka is as follows " As we have no manner of right and title to the said lands, neither we nor our heirs shall raise any objection to your leasing out the lands according to your pleasure at the expiration of the term, that is, after April 30, 1908, without the need for a fresh relinquishment from us or any notice from your sircar at the close of the period of this khat (muchalka), considering this itself as a relinquishment and as a notice." At the trial of the suit there was a conflict of evidence as to whether the lands were the private lands of the plaintiff or were ryoti lands, and the evidence which was produced was fully and carefully considered by the trial judge, who found that the plaintiff had failed to prove that the lands had been cultivated and dealt with as private lands by the plaintiff and his predecessors in title. The trial judge found that the lands were ryoti lands, and by his decree dismissed the suit. From that decree dismissing the suit the plaintiff appealed to the High Court at Madras. The appeal was heard by the Chief Justice and Seshagiri Aiyar J. who- agreed with the finding on the evidence of the trial judge. The learned Chief Justice in his judgment said "The Subordinate Judge has found, and I agree with him, that the suit lands were never cultivated by the zamindar as part of his home-farm lands, and it seems to me that his treatment of them as kambattam was merely colourable for the purpose of defeating the occupancy rights of the tenants. In some parts of India lands of this kind are known as sir lands, and this is one of the terms mentioned in the definition. In Budley v. Bukhtoo (( 1871) 3 N. W. P. Rep. In some parts of India lands of this kind are known as sir lands, and this is one of the terms mentioned in the definition. In Budley v. Bukhtoo (( 1871) 3 N. W. P. Rep. 203.) it was held that sir land is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even when from time to time he demises it for a season. I think that this test may well be applied here, and that, as the plaintiff has failed to satisfy it, the appeal fails, and must be dismissed with costs." That test is obviously suggested by s. 185 of the Act, and was rightly applied by the Chief Justice. Seshagiri Aiyar J. in his judgment stated that " I see no reason to differ from the conclusion at which the Lower Court has arrived." The High Court by its decree affirmed the decree of the Subordinate Judge and dismissed the appeal. From that decree of the High Court the plaintiff has brought this appeal. The concurrent findings of fact as to the lands being ryoti lands must be accepted as binding on the appellant. But it is contended that after April 30, 1908, when their term expired, the defendants were trespassers on the lands, and continued to be and were trespassers when Madras Act I. of 1908 was passed and came into force, and that the explanation to s. 6, sub-s. 1 of Madras Act I. of 1908, which 78 Law Rep. 46 Ind. App. 44 ( 1918- 1919) Raja Yerlagadda Mallik-Arjuna Nayudu V. Rajulapati Somaya was added by Madras Act IV. of 1909, does not apply to a person whose continued possession of ryoti land is that of a trespasser, and applies only when the person continuing in possession does so with the consent of the landholder, which as a fact was not the case here. As a fact, the defendants continued in possession of the ryoti lands in suit after April 30, 1908, not only without the consent of the plaintiff, but contrary to his wishes and expressed intentions, and contrary to the terms of clause 8 of the muchalka of July 28, 1907. The appellants contention as to the effect of the explanation to s. 6 sub-s. 1, is, in the opinion of their Lordships, unsound and untenable. The appellants contention as to the effect of the explanation to s. 6 sub-s. 1, is, in the opinion of their Lordships, unsound and untenable. The defendants had held the lands from July 28, 1907, until April 30, 1908, for the purpose of agriculture on condition of paying to the plaintiff, the landholder, the rent legally due upon the lands. The lands were ryoti lands, as has been found by each Court below, and the defendants were, in fact, continuing in possession of the land at the commencement of Madras Act I. of 1908, although such continuing in possession was without the consent and was contrary to the wishes of the plaintiff. The construction of s. 6, sub-s. 1 of Madras Act I. of 1908, as amended by s. 3 of Madras Act IV. of 1909 is too plain for argument. Assuming that the defendants had not any permanent right of occupancy in the lands in question before the commencement of Madras Act I. of 1908, they obtained a permanent right of occupancy in the holding by the operation of s. 6, sub-s. 1 as amended by s. 3 of Madras Act IV. of 1909, and the suit was rightly dismissed by the Civil Court. The effect of s. 6, sub-s. 1 of Madras Act I. of 1908, as amended by s. 3 of Madras Act IV. of 1909, came before the High Court of Madras in Govinda Parama Guruvu v. Bothasi Dandasi Pradhanu (20 Madr. L. J. 528.) in 1910. In that case the landlord had before July 1, 1908, obtained a decree for possession of ryoti land against the occupiers who were in possession on July 1, 1908? and Benson and Sankaran Nair JJ. rightly held that "It is immaterial that a decree for possession had been already passed. We must, therefore, hold that the defendants are ryots with a permanent right of occupancy." See also Kanakayya v. Janardhana Padhi. (I. L. R. 36 M. 439.) This appeal fails. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. As the respondents have not appeared there will be no order as to the costs of this appeal.