T.R. Srinivasa Rajagopala Aiyangar vs Sri Santhanaramaswami Koil Vagaira Devasthanam, Needamangalam, by R. Natesa Aiyar (now Executive Officer)

Patanjali Sastri, J.—This second appeal arises out of a suit brought by the respondent u/s 77 of the Madras Estates Land Act for the

recovery of rent and local cess for faslis 1342, 1343 and 1344. The trial Court granted a decree for the rent due for all the faslis and the local cess

due for fasli 1342 only, disallowing the claim for the cess in respect of faslis 1343 and 1344. Both parties appealed and while the appeals were

pending the Madras Agriculturists'' Relief Act came into force. Under the provisions of Section 15 of that Act the defendant, appellant herein, who

is an agriculturist, paid the rent for faslis 1346 and 1347 and claimed that the arrears due for the earlier faslis including the rent now sued for should

be deemed to be discharged. This claim was allowed. As regards the local cess which is not affected by that Act, the learned District Judge held

that the landholder was entitled to the cess claimed for all the faslis and passed a decree accordingly dismissing the appeal of the tenant.

Two contentions have been raised by Mr. Arunachala Aiyar on behalf of the appellant. Firstly, he maintained that the respondent having already

initiated summary proceedings u/s 112 of the Estates Land Act for the sale of the appellant''s holding for recovery of the same rent and having thus

caused the appellant to institute summary suits contesting the respondent''s right of sale which are still pending before the Collector, the respondent

was debarred from suing u/s 77 of the Act. This section as amended by Act VIII of 1934 provides three remedies for the recovery of unpaid rent,

viz., a suit before the Collector, distraint and sale of movable property, and sale of the ryot''s holding. There is nothing in the section or elsewhere

in the Act to preclude the landholder from enforcing these remedies simultaneously. Mr. Arunachala Aiyar however placed reliance upon the

decision in Lehain v. Philpott (1875) L.R. 10 Exch. 242. and certain observations in Venkatachalapathi Aiyar v. Robert Fischer (1907) 17 M.L.J.

294 : ILR 30 Mad. 444. a case decided under the Rent Recovery Act of 1865. In the former case it was held that when a landlord distrained for

rent, he could not bring an action for the rent so long as he held the distress, though it was insufficient to satisfy the rent. Learned Counsel

contended that the same principle should be applied when the landlord, instead of distraining for rent, attempted to sell the ryot''s holding thereby

compelling the tenant to bring summary suits contesting the landholder''s right to the rent claimed. This view receives some support from certain

observations in Venkatachalapathi Aiyar v. Robert Fischer (1907) 17 M.L.J. 294 : ILR 30 Mad. 444. , where the English case is referred to, but

the observations are obiter as the only point decided was that the mere institution of a suit for rent did not make it illegal to proceed further with the

summary proceedings then pending for the sale of the ryot''s holding for recovery of the same rent, and that the resulting sale was valid. Turning to

Lehain v. Philpott (1875) L.R. 10 Exch. 242. , it will be seen that the real ground of the decision is contained in the observation of Bayley, J., in

Edwards v. Kelly (1817) 105 E.R. 1219 : 6 M. & S 204. , which was quoted and followed:

After the plaintiff had distrained he held in his own hands his remedy for recovering the rent, and the tenant was at that time no longer indebted, for

so long as the landlord held the goods under distress, the debt due from the tenant was suspended.

That is to say, the movables distrained are regarded as a pledge and the taking and holding of such pledge by the landlord who has thus in his

hands the means for satisfying his claim for rent is considered a good plea to an action on the debt. It is worthy of note that, as pointed out by

Cleasby, B., the rule is not based upon the principle of election of remedies, though some of the older English decisions proceeded on that

principle. Whether such a restriction on the landholder''s statutory remedy by way of a suit before the Collector can be imported on the analogy of

the English rule when the Act places no such restriction upon it, it is unnecessary to decide in the present case as no distress has been levied. But

the rule cannot, in my opinion, have any application where the landholder has merely attempted to bring the ryot''s holding to sale. The rent is a first

charge upon the holding u/s 5 of the Act, and it is difficult to see on what principle the landholder''s attempt to enforce the charge by bringing the

holding to sale, can be said to suspend his right of suing for the rent. As already observed, the Act does not say that these remedies should not be

exercised simultaneously, and in the absence of any such provision, it is not for the Court, in my opinion, to impose such a restriction based on the

analogy of the principle that distress is a pledge, and so long as it is held, operates as a bar to a suit for rent. On the other hand, the provision in

Section 77-E that all proceedings to sell the holding for an arrear of rent taken before the passing of the decree in a suit for rent shall be stopped

and not proceeded with further would seem to contemplate a simultaneous exercise of the two remedies by the landholder. The argument based on

the hardship to the ryot of having to carry on two parallel proceedings in respect of the same matter has no force as Section 10, Civil Procedure

Code, which is applicable to suits under the Act can be invoked in proper cases to prevent such hardship. I am, therefore, of opinion that the

pendency of the suits brought by the appellant contesting the respondent''s right of sale u/s 112 of the Act was no bar to the institution of the

present suit for recovering the same rent u/s 77.

The appellant''s next contention that he is not liable to pay local cess for faslis 1343 and 1344 is equally untenable. It is no doubt true that the

pattas issued to the appellant for those faslis did not provide for the payment of any local cess but this is by no means conclusive. The landholder''s

claim to recover from his tenant a part of the local cess paid by him to Government is really based upon Section 88 of the Madras Local Boards

Act and does not depend upon the exchange of pattas and muchilikas. It was argued that a ryot owning the kudivaram in his holding could not be

said to be a tenant as defined in the Local Boards Act. This argument cannot be accepted. Aryot is defined in Section 3 (15) of the Estates Land

Act as a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due

upon it, and a tenant is defined in Section 3 (22) of the Local Boards Act as including all persons who, whether personally or by an agent, occupy

land under a landholder. It, is clear from these definitions that a ryot is a tenant within the meaning of Section 88 of the Local Boards Act, and that

the appellant is therefore under a statutory liability to pay the local cess claimed. It was so held in Raja Rajeswara Muthuramalinga Sethupathi Vs.

Mahalinga Raju and Another, . and Section 16 of the Agriculturists'' Belief Act proceeds on the same view.

The appeal therefore fails and is dismissed with costs.

Leave refused.