Govinda Menon, J.
1. This is an appeal by leave, from the judgment of Krishnaswami Nayudu, J., in S.A. No. 819 of 1945 and reported in Govindaswami Naidu v. T.P. Devasthanam (1954) 2 M.L.J. 702, which raises the question as to whether the appellant has occupancy rights in the lands which are the subject-matter of the Second Appeal.
2. The material facts have been sufficiently elaborately stated in the judgment under appeal and so do not require reiteration except for the purpose of appreciating the legal question discussed hereunder. Summary Suit No. 37 of 1942 was filed by the appellant under Section 35 of the Madras Estates Land Act for the grant of a patta against the respondent. The Tanjore Palace Devasthanam is represented by its hereditary trustee Sri Rajaram Rajah Saheb. The appellant who was a lessee from the respondent for a period of one year of the lands in question claimed that they have become an estate under the Madras Act XVIII of 1936 as a result of which he was entitled to the grant of a patta with the consequent exchange of muchilika, whereas the respondent's contention was that they are private-lands to which no occupancy rights could be attached. Though the trial Court decided in favour of the appellant the conclusion arrived in the Court of appeal was that the lands arc private lands as defined in Section 3(10) of the Estates Land Act in which case no patta can be issued. Krishnaswami Nayudu, J., confirming the decision of the learned District Judge granted leave to appeal.
3. There is no dispute whatever that the Rajahs of Tanjore had granted the entire village of Arumulipettai to the Mariamman temple for the purpose that the income thereform may be utilised for the performance of puja and other religious cremonies in the temple and as stated in the judgment under appeal it is common ground that from the date of the grant the entire free-hold rights vested in the temple and not the melwaram alone. The manner in which the temple enjoyed the lands was as if the entire proprietary right was the subject of the grant so that it cannot be disputed that both the warams were owned by the grantee and the same has been recognised and affirmed in several proceedings that had taken place before the lease to the appellant on 5th September, 1941.
4. According to the appellant the lands are ryoti lands since the village has become an estate by the Estate Land Act of 1936 and on that score he is entitled to the grant of patta. On the other hand, what is urged on behalf of the Devasthanam is that all along during the course of more than a century and a half the Devasthanam had been in possession of enjoyment of the lands in question as private lands.
5. Until the leasing in favour of the plaintiff, the mode in which cultivation of the lands took place was, a. lease would be granted to the highest bidder at the auction held by the Devasthanam and the leave would be granted for periods ranging from one year to twenty years. On deposit of the bid amount the lease would be confirmed. The evidence in the case shows that there has never been continuous possession of the lands for any length of time by the same lessee or by members of a family in succession. Such being the case it is a legitimate inference that though there has been no personal cultivation by the management of the Devasthanam still this course of conduct is consistent with the intention of changing the cultivatiors from time to time.
6. In C.M.P. No. 917 of 1956 we have admitted the plan of the village of Arumulipettai in Papanasam taluk as additional evidence in order to understand the natme of the locality as well as to elucidate the contents of Exhibit D-12, record-of-rights to register of Arumulipettai village, for we have found it difficult to appreciate the the several entries in the record-of-rights register without the aid of the plan of the village in question. In our opinion it is necessary for delivering the judgment in the case that the plan should be admitted. On behalf of the appellant, Mr. Ramachandra Iyer does not object to the admission of this plan by way of additional evidence.
7. On an inspection of the plan it is found that the Mariamman temple and the several shrines which are its adjuncts are situate in Section No. 70. In addition, there are other temples, Adidravida and Kallar house-sites as well as uncultivated and uncultivable lands not to mention of the porombokes. That being the case, though the village is designated an inam, it cannot be said that the entire area of the village is cultivated or cultivable.
8. Exhibit D-3, dated 20th December, 1862, the inam title-deed confirms the grant of the village consisting of 69-7 acres of dry land besides 171-3 acres of wet land and porombokes. That both varams were the subject of the inam is not disputed. Exhibits D-4 and D-5 relating to a litigation started as early as 1864 show the nature of rights conferred upon the Devasthanam. We may also refer to Exhibits D-6 to D-10 all of which indicate that what was granted was the entire rights in the lands comprised in the village and not only the revenue thereof. This is made abundantly clear by the judgment of the High Court in A.S. No. 248 of 1904 marked as Exhibit D-10 in the case. It is also clear from the certified copy of extract from the cash book of Tanjore Palace Devasthanam that during the years 1904 and 1905 a good portion of the lands was covered with prickly-pears. The entries in Exhibit D-49 also prove the same. Exhibits D-50 to D-53 show the dealings as absolute proprietor by the Devasthanam. Reference may also be made to Exhibit D-34 the certified copy of the lease muchilika, dated 30th December, 1903. There can, therefore, be no doubt, whatever that ever since the confirmation of the inam in 1862 the mode of enjoyment of lands was on the footing of absolute ownership by the Devasthanam. Even after 1933 the position remained the same. Exhibits D-13 to D-17 are indicative of the pannai cultivation from 1933 onwards and the account-books, Exhibits D-55 to D-64, further bear out that fact.
9. In Exhibit D-65, dated 5th September, 1941, the lease, under which the appellant came into possession for the first time, there is an unequivocal admission that the lands described in the schedule thereunder such as nanja, punja, padugai, garden, topes, etc., are owned by the Mariamman temple belonging to the Tanjore Palace Devasthanam with a right to both the warams and which have been in the enjoyment of the said temple from ancient times and that it has been taken on lease, for one fasli, that is, up to the end of fasli 1351 agreeing to pay at the rate of 2750 kalams of paddy excluding all swatantrams, etc., and all expenses as per the practice in the village. The lessee, further, agreed to carry out the sundry maramath (repairs) such as construction relating to channels, etc., at his own expense but in case where maramath works such as digging of pits were to be carried out, the lessee agreed to do the same after giving information to the lessor in writing sufficiently early and obtaining his written permission, send the expense account relating to the digging work noting the particulars of measurement in terms of the measuring rod and to have the accrued amount adjusted in the lease paddy to be measured by the lessee for the respective fasli. It was also agreed that under no circumstances would the lessee remove the paddy, straw, etc., lying on the threshing floor before measuring out the paddy, straw, etc., to be measured to the lessor and obtaining the receipt therefor, and the different varieties of paddy to be measured out during the various instalments have also been specified. It is the admitted case of both parties that at the time of Exhibit D-65 the absolute proprietorship of the land vested in the Palace Devasthanam. Had it not been for the fact that under Act XVII of 1936 the village in question became an estate, there would have been no possibility of such a contention being put forward.
10. Hardly had the appellant got into possession of the land after admitting the absolute ownership of the Devasthanam, than he began to claim kudiwaram rights. Exhibit P-7, dated 5th March, 1942, is a lawyer's notice sent at the instance of the appellant to the hereditary trustee of the Tanjore Palace Devasthanam by which he called upon the respondent to grant him patta under Section 50 of the Estates Land Act and get a muchilika from him for a fair and reasonable rent for fasli 1351 and subsequent faslis. The reply sent to this notice at the instance of the respondent in Exhibit P-8 wherein the appellant's claim for patta was denied and it was stated that the appellant was an ordinary lessee for a period of one year and that after the expiry of that period the respondent had entered into possession of the land and had been preparing the land for pannai cultivation as in the previous years. Plaintiff, as P.W. 1 had to admit that the Devasthanam had already raised a crop when he inspected the land for the purpose of obtaining a lease and it is not his case that the entire area can be cultivated as double cropland. He states that there are 207 acres of single crop wet land and out of this, only about 120 acres could be cultivated with wet crops.
11. It being now admitted in all the Courts that the village in question has become an inam estate by virtue of Act XVIII of 1936 what we have to decide is whether the subject-matter of the lease in favour of the appellant is ryoti land as denned in the Act or private land as contemplated in Section 3(10) of the Act.
12. In Periannan v. A.S. Amman Koil (1952) 1 M.L.J. 71 : I.L.R. (1952) Mad. 741 , the Full Bench had to consider the tests to be applied in deciding whether a private land is ryoti land or not, with regard to a village forming part of an estate as defined in Section 3(2)(a) to (e) and the learned Judges laid down the following tests:
(1) If there is no proof of cultivation for a continuous period of 12 years before the commencement of the Act the land may be proved to be private land by other methods. Private land was not shown to be once ryoti land. Local usage or custom and the letting of the lands as private land in leases before 1948 were specifically mentioned in Section 185(1) and 185(2) as relevant evidence but other evidence is also made expressly admissible under Section 185(3) of the Act;
(2) cultivation of the lands or leasing of the lands under short-term lease may be one mode of proof;
(3) an intention to cultivate or resume for cultivation is also a test to decide that the land is private land and such intention may be established by any other means, not necessarily by cultivation and cultivation alone. Absence of evidence of direct cultivation is not fatal to the claim;
(4) the essence of private land is the continuous course of conduct on the part of the landholder asserting and acting on the footing that he is the absolute owner thereof and the recognition and acceptance by the tenants that the landholder has the absolute right in the lands;
(5) there is no warrant for confining private land to land adjoining or appurtenant to the residence of the landholder or to lands that are kept for the personal enjoyment and use of himself and his establishment. But the Full Bench did not deal with a case of an estate coming under Sub-clause (d) of Section 3(2).
13. In such a case Section 185, Sub-clauses (1) and (3) will have to be considered. Section 185 states that in any suit or proceeding if it becomes necessary to determine whether any land is the landholder's private land, regard shall be had to local custom and then any other evidence that may be produced. Sub-clause (2) refers to the criterion to be followed in the case of an estate falling under Sub-clause (a), (b) (c) or (e) of Clause (2) and not (d). Proviso I lays down that the land shall be presumed not to be, private land until the contrary is proved and, in the case of an estate within the meaning of Sub-clause (d) of Clause (2) of Section 3 any expression in a lease, patta or the like executed or issued on or after the first day of July, 1918, to the effect or implying that a tenant had no right of occupancy or that his right of occupancy is limited or restricted in any manner, shall not be admissible in evidence for the purpose of proving that the land concerned was private land at the commencement of the tenancy. It further provided that any such expression in a lease, patta or the like executed or issued before the first day of July, 1918, shall not by itself be sufficient for the purpose of proving that the land concerned was private land at the commencement of the tenancy.
14. In the instant case the available evidence of letting of the land prior to 1912 is to the effect that the same was private land. The other indicia Such as cultivation or leasing of the land under a short-term lease, intention to cultivate, resumption for cultivation on the part of the landholder are also present here. It is nobody's case that there was any differentiation between kudiwaram and melwaram in the land prior to Exhibit D-65 but the continuous course of conduct has been to the effect that the Palace Devasthanam dealt with the lands as an absolute proprietor.
15. The question, therefore, is whether the lands can be described as coming within the category of private land as defined in Section 3(10) of the Act. We are not concerned with Sub-clause (a) but only with Sub-clause (b) and even' there paragraphs 2 to 4 are not applicable. That even in the case of a whole inam village becoming an estate under Act XVIII of 1936 there can be private lands which are domain or home farm lands of the landholders is clear from Section 3(10)(b)(1). It is not as if such a category of land is confined only to zamindari estates or other estates as defined in Section 3(2), Sub-clauses (b), (c) or (e). The Legislature has contemplated that there is a whole inam village which has become an estate under Act XVIII of 1936 there can be private lands coming within the classification of 'domain or homefarm land.'
16. We have, therefore, to find out what exactly is the meaning of the expression 'domain or homefarm land of the landholder'. It seems to us that the alternative expression 'homefarm land' of the landholder is intended to explain the meaning of the word 'domain.' That is, what the Legislature intended a domain to be.
17. At page 342 in Zamindar of Chellapalli v. Somayya : (1914)27MLJ718 , Wallis, C.J., stated as follows
It may be well to note that the word 'domain' in this connection is explained by Webster citing Shemtore as meaning the land about the mansion-home of a lord and in his immediate occupany.
18. Seshagiri Ayyar, J., at page 348, stated thus:
The meaning of the word 'domain' is not given in the Act. The learned Chief Justice pointed out in the course of the argument that it was synonymous with demesne. In the 'Encyclopaedia Brittanica,' Volume III, it is explained as follows:
Demesne (Demeine, Demain, Domain, etc.) that portion of the land of a manor not granted out under a free-hold tenancy but retained by the lord of the manor for his own use and occupation or let out as tenemental land to hi retainers or villein. The demesne land originally held at will of the lord in course of time came to acquire fixity of tenure and develop into the modern copyhold (see manor). It is from demesne as used in the sense that the modern restricted use of the word comes, that is, the land immediately surrounding the mansion or dwelling house, the park or chase.
19. It is, therefore, clear that both the learned Judges have interpreted 'domain land' as one immediately surrounding the mansion or dwelling house, park or chase. This decision was approved by the Privy Council in Yerlagadda Mallikarjuna Prasad v. Somayya . But the meaning of the word domain or home-farm land has not been considered by the Judicial Committee for the reason that the case under consideration there did not relate to any such land. Their Lordships agreed with the High Court that the Zamindar did not cultivate any of these lands as home-farm lands. If the expression 'domain or home farm land' related only to lands surrounding the manor of the Lord and in the case of a Zamindar or inamdar Cultivable land in and around his residential house there was no necessity to go into the other question at all. The point that arose for consideration there was whether by custom the lands in question were private lands. There was no contention that the lands as such surrounded the dwelling house of the landholder.
20. The meaning given to 'home-farm land' in Zmindar of Chellapalli v. Somayya : (1914)27MLJ718 , has been followed in Sreemantha Raja Yarlagadda Mallikarjuna Prasad Naidu v. Subbiah (1919) 39 M.L.J. 277 , as referring to land in actual direct cultivation of the Zamindar, although he might let it on lease for some reason provided he had ultimate intention of cultivating it himself. In a similar strain Wadsworth, J., in Kondayya Rao v. Naganna : (1939)2MLJ778 , following Zamindar of Chellapalli v. Somayya : (1914)27MLJ718 , held that it is well settled that home-farm land is land regarding which the land-holder at least retains an expectation that he will at some not distant date use it for his own cultivation and enjoyment. The same learned Judge sitting with Koman, J., referred to the meaning of the word 'domain or home-farm land' in Jagadeesam Pillai v. Kuppammal : AIR1946Mad214 , as follows:
The Legislature did not use the words 'domain or home-farm land' without attaching them a meaning; and it is reasonable to suppose that they would attach to these words a meaning which would be given to them in ordinary English. In ordinary English usage the term 'domain or home-farm land', as is indicated by the judgment in Zamindar of Chellappalli v. Somayya : (1914)27MLJ718 , would connote land appurtenant to the mansion of the Lord of the manor or kept by the Lord for his personal use and cultivation under his personal use and cultivated under his personal supervision, as distinct from lands let to tenants to be farmed without any control from the lord of the manor other than such control as is incidental to the lease. It seems to us that Sub-clause (b)(1) of the definition intended to cover those lands which come obviously within what would ordinarily be recognised as domain or 'home-farm land, that is to say, lands appurtenant to the landholder's residence and, kept for his enjoyment and use. Home-farm is land which the landlord farms himself as distinct from land which he lets out to tenants to be farmed. This first clause, therefore, is meant to include and signify those lands which are in the ordinary sense of the word home-farm lands'.
21. In Appeal Nos. 176 and 493 of 1946, Subba Rao and Panchapakesa Ayyar, JJ., after, referring to the above cases agreed with the view taken by Wadsworth, J.
22. A different note was struck by Viswanatha Sastri, J., in Pentakota Narayadu v. Venkataramamurthi : (1949)2MLJ623 , by holding that the notion of the private land of a Zamindar being confined to land surrounding his residence is not accurate. The learned Judge observes at pages 625-626 as follows:
There has been in my judgment some amount of misconception as regards the meaning of words 'domain or home-farm land of the landholder - expressions found in Section 3(10)(a) of the Act. To interpret these words as confined to land immediately surrounding the mansion or dwelling house, the park or chase of a Lord which would be the dictionary meaning of these English words is to import feudal ideas of mediaeval England into the system of land tenures in this country without adequate justification. The English draftsman of the Bill which afterwards became the Madras Estates Land Act as well as the English Revenue Member of the Executive Council of the day who piloted the Bill through the legislature employed the expression 'domain or home-farm' as the nearest English equivalents to the Tamil and Telugu words pannai, kambattam, seri, etc. It is all very well when talking of the demesne lands as of an English Duke or Marquis to use the term as denoting the land appurtenant to the mansion of the lord of the manor. The manorial system was not prevalent in this country. The Zamindars lived in cities and forts for reasons of security and their private lands were not confined to the vacant spaces surrounding their palaces or residences. It is a farfetched construction to impute to the Madras Legislature an intention to incorporate the English conception of demesne land as a test for differentiating the public doman from private land in a zamindari. I very respectfully venture to think that Wadsworth, O.C.J., unduly narrowed the meaning of the expression 'private land' when he defined it as land appurtenant to the land-holder's residence and kept for his enjoyment and use and as land which the landholder farms himself as distinct from land which he leases out to tenants to be farmed. Direct or personal cultivation may be and is often a useful test for determining the character of the land in an estate, that is to say, whether it is private land or ryoti land, but leasing by itself is not fatal to the claim that the land in question is private land.
23. The learned Judge was also of the view that it is not an indispensable condition that private land should be proved to have been cultivated by the land-owner himself or by hired labour within recent times. Following the observation of Madhayan Nair, J., in Chinnarigadu v. Rangayya : AIR1935Mad789 , an opinion was expressed that leasing does not affect or impair the character of private lands if in fact they are strictly such. If the land had been let specifically as private land before 1898, such letting is relevant and admissible in evidence of its character as private land and other evidence to prove its character as private land is also admissible. The Majority of the Full Bench in Pericnnan v. A.S. Amman Koil (1952) 1 M.L.J. 71 : I.L.R. (1952) Mad. 741 , consisting of Satyanarayana Rao and Viswanatha Sastri, JJ., re-affirmed the view that domain or home-farm land need not necessarily be situated in and around the residence of the zamindar or inamdar and the situs is not a necessary condition for any particular portion of the zamindari or inam for being designated domain or home-farm land. At page 779 Satyanarayana Rao, J., propounded various tests that might usefully be applied to find out whether a particular extent of land is private land or not and during the course of the discussion he was emphatically of the view that contiguity to the residence of the Zamindar or inamdar is not a necessary feature of domain or home-farmland. We do not think it necessary to extract passages from the elaborate judgments of the learned Judges. Raghava Rao, J., dissented from the conclusion of his two learned colleagues and argued that domain land must be land about the mansion house of the Lord and in his immediate occupancy. He thought that in the earlier judgments 'domain' has not been equated as synonymous with home-farm land. The following quotation from pages 810-811 would demonstrate the learned Judge's view:
In that case it was not the word 'domain' but the word 'home-farm' that fell to be applied to the land in question and the test of direct cultivation propounded was really because of what was implicit in the word 'home-farm'. It is not correct, in my opinion, to say that the Judges who decided that case treated the words 'domain' and 'home-farm' together as importing that the zamindar's private land must be confined to land surrounding his palace or residence, as in the case of demesne land of an English Lord of the manor. I not only feel highly reluctant, I find it in fact wholly impossible to impute to Judges so distinguished and so experienced as those who decided that case any ignorance of the very well-known fact that private land in an estate might not only be situate far away from the dwelling house of the Zamindar in the same villlage, but might also well lie scattered in different villages throughout the estate, especially when the case before the learned Judges was itself concerned with the latter type of land. I am surprised to find the remark in Pentakota Narayudu v. Venkata Ramamurthi : (1949)2MLJ623 , made to this effect: 'So far as I know in no case prior to Zamindar of Chellapalli v. Somayya : (1914)27MLJ718 , was it suggested that the Zamindar's private land must be confined to land surrounding his palace or residence as in the case of demesne land of the English Lord of the manor'. But was it so suggested in that case and could it be? I quite agree that the mansion house test which has reference only to the word 'domain' is necessarily narrow for there is the other word 'home-farm' in the definition of private land, and land may well be private land, if, although not domain land, it is home-farm land.
24. In C.M.A. No. 311 of 1943 Krishnaswami Ayyangar and Somayya, JJ., had to consider the case of a land situated in an inam village which became an estate for the first time by reason of Madras Act XVIII of 1936. In regard to the contention that some of the lands were private lands the tests laid down by the learned Judges met with the approval of the majority of the Judges in the Full Bench case but was not accepted by Wadsworth, J., in Jagadeesam Pillai v. Kuppammal : AIR1946Mad214 . There also the question was whether Clause 1 of Section 3 (10; (a) was applicable.
25. We are not at all inclined to agree with Raghava Rao. J., that different interpretations should be put upon the words, 'domain or home-farm land' and that the learned Judges in Zamindar of Chellapalli v. Somyya : (1914)27MLJ718 , had intended that the alternative expressions specified separate concepts. The word 'or' cannot be read as 'and' in this connection. It seems to us that the idea underlying the judgment of Sir John Wallis, C.J., was that the somewhat unfamilliar expression to the Indian Lawyer of 'domain' was to be explained away as meaning home-farm land. It is in that light that the subsequent decisions have understood it. When, therefore, the word used is domain it necessarily means private land and the question is whether such domain land should surround and be contiguous to the residential place of the Zamindar or inamdar.
26. There is, no doubt, whatever, that all the decisions beginning with Zamindar of Chellapalli v. Somayya : (1914)27MLJ718 , and ending with the full bench decision in Periannan v. A.S. Amvian Koil (1952) 1 M.L.J. 71 : I.L.R. (1952) Mad. 741 , have understood the word 'domain' as referring to land immediately surrounding the manor house of the Lord and the attempt has been not to import the peculiar pattern of land-holding in the country side of England to the Zamindari lands and inam holdings in this Presidency. The impression that one can gather is that throughout these catena of cases the learned Judges were of the view that in England it is impossible to have 'domain lands' situated away from the Lord's manor or chase. Nearness and contiguity are the necessary sine qua non for the land being domain land. For example the idea was an English nobleman in the feudal days cannot have domain lands surrounded by other kinds of copy-holds or freeholds and situated away from the baronial castle or Lord's manor.
27. In our opinion, this view is unjustified. In England it has been understood from very early days that in Manorial estates domain lands may be scattered in bits in various tracts of the Lord's estate. It is not the lands which are grouped together and which surround the castle that can alone be called domain lands. Sir John Wallis C.J., in finding out the meaning of the word 'domain' refers to Websters' dictionary, which after all was an American compilation reflecting to a large extent the ideas and concepts prevalent in the 19th century in the United States of America. So far' as we have been able to gather from our researches of English authorities, it is plain that contiguity and nearness to the Lord's mansion house are not the necessary incidents of a particular land being 'domain'. Lands scattered all over the county and sometimes in other counties as well formed the domain lands.
28. Professor F.W. Maitland in his treatise 'Domesday book and beyond' at page 119 discusses the various tests for defining a manor. One of the tests suggested is that a manor must contain demesne lands and in discussing that, the professor states as follows:
A manor must contain demesne land; this again we cannot believe. In one case we read that the whole manor is being farmed by the villeins so that there is nothing in demesne, while in the other cases we are told that there is nothing in demesne and see that no trace of any recent change. Thus one after another all the familiar propositions seem to fail us, and yet we have seen good reason to believe that manneriam has some exact meaning. It remains that we should hazard an explanation.
At page 114, we find the following observations:
The berewick also frequently meets our eye. Its name seems to signify primarily a wick or village, in which barley is grown; but it seems often to be a detached portion of a manor which is in part dependent on and yet in part independent of the main body. Probably at the berewick the Lord has some demesne land and some farm buildings a barn or the like, and the villeins of the berewick are but seldom called upon to leave its limits. But the Lord has no hall there, he does not consume its produce upon the spot and yet for some important purposes the berewick is a part of the manor. The berewick might well be some way off from the hall; a manor had three berewicks on the mainland and two in the Isle of Wight.
It is clear from the above quotations that the learned author makes a distinction between demesne land and non-demesne land and that is in the case of the former cultivation must be direct by the Lord taking the free services of tenants with customary rights and in the latter the tenants themselves cultivate the lands.
29. Vinogradoff in 'The Growth of the Manor' at pages 312 and 313 observes as follows:
It is characteristic of the power of deeply rooted ideas and habits that, in a very great number of cases, the Lord's dominical land was often entangled among the intermixed strips and that the Lords commonly submitted to the incidents and practices as expressed in the by-laws and customary rules of the village Courts. But it is not impossible to draw the demesne land out of the customary network, and we find more and more often that cultural separates, plots cultivated in severalty make their appearance by the side of the open field shots, furlongs and commons.
Again at pages 330-331 it is observed as follows:
If we look to the demesne land of the manor, we shall find at its centre the hall, with barns, stores, mills, stables, folds and possibly rabbit warrens and dove-cotes in connection with it. In many cases, the arable of the demesne lay intermixed with the strips of the tenants, a fact which by itself bears testimony to the gradual rise of a manorial organisation from the open-field community. There was of course a natural tendency of the demesne to obtain a position of severally and to enclose itself. If nevertheless a great part of demesne land of the manor remains lying in open field it is clear that it was entangled in the champion farming by tradition, and subjected to its regulations because it stood originally not above the village community but inside it.
Enclosed plots of arable and private medows, pastures and woods are also often to be found, and they occur more and more frequently as time goes on. We catch glimpses of the process of enclosure and of the changes brought about by more intense and perfect husbandry. New sequences of crops are introduced, the soil of some portions of the demesne gets to be manured and cutivated more carefully and to protect these ameliorations, hedges have to be set up, intakes are formed; and these intakes represent the most advanced technical progress of those, times.
Considerable portions of the demesne were leased in separate plots to servants and farmers. As to the first, they often got their remuneration in this form intead of getting wages and we find ploughmen holding some five acres of land for this reason. But besides these farmers, settlers and squatters were accommodated in this way with small plots, so-called for lands. A for land was out of the ordinary course of cultivation of the open field community, and was managed in severalty by the tenant who got a lease for a term of years or for life. Thus we come again across a current of individualistic management derived from the demesne and constantly on the increase during the period under observation. The reclaiming of the waste under the leadership and by the licence of the manorial administration mostly took this course. The protection of the Lord was sufficiently strong to safeguard such enterprises, and colonisation now takes mostly on individualistic turn, while it was communalistic during the preceding period; evidently, there was more demand now for individual energy and capital than for co-operation, mutual defence and responsibility. We come across some remarkable facts in this direction; the Earl of Warenne, for example was empowered by Edward I to enclose in the waste so much land as was necessary to give him a revenue of 200. If the rent is estimated at about 4d. an acre a very usual estimation in those times, this would mean that the Earl got license to enclose and colonise about twelve thousand acres in the most favoured part of England.
On the whole, however, the characteristic feature of manorial husbandry consists in the working together of the domain and of the community of the tenants. In the normal case there is no distinction between this community and the township of old, which is still recognised as the administrative sub-division of the hundred. The system was reasonably balanced when the soil and the work of the tenants was divided in such a way as to afford sufficient means of existence for the demesne of the Lord and for the households of the tenants. When this was the case, the peasants generally succeeded in laying by some capital which they used for gradually paying out their dues, while the Lord strove to enlarge the separate husbandry of his portion and to attract settlers for rack rents. Both tendencies were directed towards aims which by their development endangered the existence of the manorial arrangement and prepared a new departure in economic and social organisation.
We have the following quotation from Goodeve's Law of Real Property (Fifth edition, page 310):
A manor is an aggregate of rights vested in the Lard including rights in respect of lands, and also certain rights of jurisdiction. The lands comprised within the manor are: (1) - demesne land; (a) of which the freehold is vested in the lord; and (b) tenemental lands which are lands held of the Lord by freehold tenants and in regard to which the Lord has a seignory, and is entitled to the services by which they are holden; (3) the demesne lands comprise lands in the occupation of the lord himself or of his lessees for years, or of his customary tenants; (4) and also the waste lands. The rights of the Lord in the waste lands are generally subject to rights of common. (5) enjoyed by the tenants of the manor, whether freeholder or customary tenants.
In Encyclopaedia Britannica, 1951 edition, page 178 (Volume 7), there is the following passage:
Demesne, that portion of the lands of a manor not granted out in freehold tenancy, but (a) retained by the Lord of the manor for his own use and occupation or (b) let out as tenemental land to his, retainers or villain. This demesne land, originally held at the will of the Lord, in course of time came to acquire fixity of tenure and developed into the modern copyhold (see manor). It is from demesne as used in sense (a) that the modern restricted use of the word comes, i.e., land immediately surrounding the mansion or dwelling house, the park or chase.
30. Encyclopaedia Britannica, 1951 edition, page 821, Volume 14:
The economic fabric of the French seigneurie varied greatly according to localities. In the North of France it was not unlike that of the English manor. The capital messuage, or castle, and the home-farm of the Lord were surrounded by dependent holdings, censives paying rent, and villain tenements burdened with services. Between these tenancies there were various ties of neighbourhood and economic solidarity recalling the open field cultivation in England and Germany. When the harvest was removed from the open strips they returned to a state of undivided pasture in which the householders of the village exercised rights of common with their cattle. Wild pastures and woods were used more or less in the same fashion as in England (droit de pacage de vaine pasture). The inhabitants often formed courts and held meetings in order to settle the by-laws and to adjudicate as to trespasses and encroachments.
Topography.- Topographically, a manor is a complex estate consisting of (a) the lord's demesne, scattered in strips in the open fields or in consolidated blocks of fields; (b) the land of the free tenants who owe the lord small rents in money or in kind, and certain fixed labour services; (c) the land of the villeine, lying for the most part in the open fields, and owing more onerous and uncertain services as well as rents in money and in kind.
31. John Scriven: A treatise on the Law of Copyholds and of the other Tenures (customary and freehold) of lands within Manors with the Law of Manors and of Manorial customs. Generally and the Rules of Evidence applicable thereto including the Law of Commons or Waste Lands; and also the jurisdiction of the various Manorial Courts : seventh edition (1898):
A manor usually consists of and comprise the following particulars that is to say: (1) The manor house or mansion house with the demesne lands occupied therewith; (2) The freehold tenements holden of the manor; (2) The copyhold tenments holden of (and which remain also parcel of) the manor; (4) The waste lands of the manor with the soil thereof and the mines and minerals therein or thereunder; and (5) The services, which are to be rendered by the tenants of the manor together with the Court Baron already mentioned; and not unfrequently an advowson is appendant to the manor; and the seashore may be parcel of the waste lands of the manor; and divers franchises and profits or emoluments are usally annexed of appurtenant to the manor'. 'The term demesne land properly signifies lands of a manor, which the lord either has, or potentially may have in propris manibus. But if the demesne lands of a manor are by conveyance treated as a distinct property they cease to form part of the manor, although the rents and dues may remain.
32. The further discussion by Mr. Scriven about the severance of the demesne lands from the manor as well as the subsequent grouping of these lands by adding them to the adjoining domain lands of the manor are instructive only to show the development of manor lands in England.
33. This is somewhat reminiscent of the discussions against the Madras Estates Land Act.
34. We shall now refer to some of the Dictionaries and Lexicons where the word is explained and denned. In the Dictionary of the English Language by Samuel Johnson, Volume 1 (19th edition), page 1806, we find the following:
Domain Demean demesne (doeine-French). That land which a man holds originally of himself called dominium by the civilians and opposed to feodum or fee which signifies those that are held of a superior Lord. It is sometimes used also for a distinction between those lands that the Lord of the Manor has in his own hands or in the hands of his lessee demised or let upon a rent for a term of years or life and such other lands appertaining to the said Manor as belonging to 'free copyholders. 2. Estate in land. 3. Land adjoining to the mansion left in the Lord's own hand
Those acts for planting forest trees have hitherto been wholly ineffectual, except about the demesnes of a few gentlemen, and even there in general very unskilfully made 'Swift.
Murray's New English Dictionary on Historical Principles (1897), Page 177, contains an elaborate account of demesne:
(3) An estate held on demesne, land possessed or occupied by the owner himself and not held of him by any subordinate tenant: (a) in the wider sense applied to all land not held of the owner by freehold tenants, i.e., copyhold tenure; (b) in a more restricted sense excluding the land held by the villeins or copyholders and applied only to that actually occupied or held in hand by the owner (Vinagradeff Villainage in England, 223-224). Hence (c) in modern use. The land immediately attached to a mansion and held along with it for use or pleasure; the park; chase, home-farm, etc.
35. In Funk & Wagnall's New Standard Dictionary the English language, Volume 1, 1927, we find the following:
Demesne - A manor house and the adjoining lands in the immediate use and occupation of the owner of an estate. The manor house became the centre of every English village. Around it lay the demesne or home-farm and the cultivations of this--rested wholly with the villeins of the manor.
36. Green Short's History of the English People, Chapter V, Section 4, page 245:
(3) By extension the grounds appertaining to any residence or any landed estate. Demesne lands those parts of the manor retained to himself as distingushed from the portion farmed out to tenants (boardlands) as necessary for his own family use, page 677.
In Webster's International Dictionary of the English language, page 388, there is the following:
A Lord's chief manor place with that part of the lands belonging thereto which has not been granted in tenancy; a house and the land adjoining left for the proprietor's own use.
37. (Whartons Law Dictionary Burrell) written also demain. In Williams and East Wood on Real Propert (24th edition), page 6, when discussing the form of public wealth in the 11th to 13th centuries the learned author observes thus: The peasantry occupied land in return for which they were bound to labour on their Lord's demesne, that portion of the land which he retained for his own occupation. (Bract 263, Col. Litt. 17. See Vinogradoff vill in Eng. Essay ii, Ch. III).
38. A consideration of the meaning given to the word domain, demesne and demain in its historical perspective as can be seen from the above quotations leaves one with the impression that the distinction between domain or home-farm land of the lord of the manor (which developed into copy-holds) and non-demesne or freehold was based not on location or proximity and contiguity to the manor hall or chase or even its extent but that the real incident of demesne land was that it was under the direct cultivation or occupation of the lord of the manor and thereby constituted his absolute property as contrasted with' freehold lands of the tenants wherein the peasants in possession had something in the nature of occupancy rights with obligations to perform certain duties or pay fee. Halsbury's Laws of England, Volume 27 (second edition) Hailsham, page 588, paragraph 1054 contains a discussion regarding demesnes. Standard Textbooks like Goodeve's 'Law of Real Property' make it quite clear that demesne land may be scattered, in bits in various parts of the estate belonging to a nobleman in England and its peculiar characteristic is the cultivation by the Lord directly and not the nearness to his residence. We are, therefore, with respect, of the opinion that in importing the meaning of the word domain from the English law of landlord and tenant to this country the learned Judges did not correctly set out the scope of that term. The touchstone of domain or demesne land is its direct cultivation and the tests laid down by the majority Judges of the Full Bench case with regard to private land apply equally to the term 'domain land'.
39. It is urged by Mr. Ramachandra Iyer for the appellant that it must be shown that the village in question contained ryoti lands also in order that there can be private lands as contradistinguished from ryoti lands in a case where the whole inam village has become an estate. In this connection he invited our attention to the origin of inams in Tanjore contained in the Manual of the Tanjore District at pages 226, 454 and 673 as well as to the discussion contained in the well-known case Cheekati Zamindar v. Ranasooru Dhora I.I.R.(1899) Mad. 318 , etc. How private lands came into existence can be seen from the discussion of the same contained in the well-known textbook of 'Land Tenures in the Madras Presidency (second edition) by Section Sundararaja Iyengar at page 140. None of these authorities dealt with the meaning of the term 'domain land' especially since in the present case attention if focussed solely upon the nature of the land as defined in Section 3(10)(5)(a).
40. In Pun v. Sri Udaya Pratap Singh : AIR1952Ori223 , Panigrahi, J., discusses the origin and growth of private Zamindari estates and according to the learned Judge the test to determine whether any disputed land is a fictitious kind of private land to which Proviso to Section 185 of the Estates Land Act applied is whether or not the landlholder himself cultivated the land either by his own servants or by hired labour, etc. There are copious quotations from well-known authors in the judgment relating to the history of private land. Apart from referring to the various cases to which we have adverted the meaning, to be given to the expression 'domain land' does not find a place in the discussion. We are in entire agreement with the learned Judge that the true test in determining the character of land in such a case is to see whether the landholder intended that he should exercise proprietary right over the land as and when he pleased although he might have let it out to tenants from time to time. This test applies not only to private lands strictly so called but also to fictitious private lands and in the case of domain or home-farm land the test is identical.
41. We have, therefore, no hesitation in concluding that the fact that the lands in question are not situated on all the four sides of the temple will not detract from their character as domain or home-farm land if they have been cultivated as such or that the inamdar had the intention of cultivating them without losing his proprietary rights in the lands.
42. It is then urged by Ramachandra Iyer that the indications are to the effect that the inam should be treated just in the nature of lands comprised in a whole inam village for the following reasons, namely, that during the time of the inam settlement the village was recognised and confirmed as an inam and that the expression 'Dufftar Rokha' as is seen from page 204 of Sundararaja Ayyangar's Land Tenures in the Madras Presidency only shows that it is a memorandum prepared in the accounts department of the Tanjore Palace purporting to be applications for inam grant on which an order is endorsed to the effect that the application is granted meaning thereby that there was a grant of an inam. He further contends that there is no assessment levied or imposed in the nature of 'jodi, kattubadi', etc., and when the matter was enquired into by the Inam Commissioner the original of 'Dufftar Rokha' was looked into. See Exhibit 13. It is also urged that there was no remission of any rent by the British Government and lastly the argument is that consistent conduct in all the litigations has been that the inam was considered as appurtaining to such an inam as would come within the ambit of Madras Act XVIII of 1936. It was finally urged that the Full Bench decision in Periannan v. A.S. Amman Koil (1952) 1 M.L.J. 71 : I.L.R. (1952) Mad. 741, and other cases related to estates not coming under Section 3(2)(d) of the Act but under other clauses of the same section. This last argument can be easily disposed of before taking up the other contentions. As we have already pointed out that the touchstone of the test is the same in both the cases and we are fortified in this conclusion by a recent decision in Karuppi v. Palaniappa Chettiar (1954) 2 M.L.J. 454, where the same test was applied to estates coming under Section 3(2)(d) as well.
43. Mr. Jagadeesa Ayyar for the Devasthanam meets the other contentions of Mr. Section Ramachandra Iyer by inviting our attention to the history of the Palace Devasthanam as contained in the judicial decisions and argued that the endowments are not strictly inams but are governed by Exception to Section 8, Clause (5). Reference was made to the various observations in The Secretary of State in Council of India v. Kamachee Boye Sahaba (1858) 7 M.I.A. 476, (payments of pagodas, 484, allowance to pagodas and private property) and from these expressions it is contended that the private properties belonging to the Raja were given as free grants to the Devasthanam and in that case there can be no question of any occupancy rights at all. That the temples were granted over to the successors of the Rajah of Tanjore by the British Government was sought to be established from the various observations contained in Kallianasundaram Iyer v. Umbra Bayi Sahib : (1897)7MLJ324 . The learned Judges there accepted the decision of the lower Court as correct and were inclined to take it that the relinquishment of the Devasthanams in favour of the Ranies of Tanjore was in the nature of an absolute grant. In Ayiswara Nandaji Saheb v. Sivaji Raja Sahib : AIR1926Mad84 , the question is again discussed. We also find in Pratapa Simha Raja Saheb v. Simji Raja Sahib : AIR1927Mad50 , observations of a similar nature.,
44. It is possible, therefore, to infer from the above decisions which have dealt with the Devasthanams under the Tanjore Palace Estate that the absolute proprietary right in the soil in regard to such lands vested in the Rajah and therefore, when once the grant is made to the temple, the grantee becomes the full proprietor.
45. Mr. Jagadeesa Ayyar further rightly contended that the inam title proceedings and the title deeds did not conclude the question and invited our attention to the scope of the inam enquiry as set out in page 282 of Sundararaja Ayyangar's 'Land Tenures in Madras Presidency'. Though as stated by their Lordships of the Judicial Committee in Arunachalam Chettiar v. Venkatachalapathi Guruswarttigal ; that the inam enquiry and proceedings were great acts of state, it has to be remembered that the inam title deed conveyed nothing higher than what was already existing. See the decision in The Secretary of State for India in Council v. Srinivasachari , as well as Act VIII of 1869 which defined the nature and scope of the inam enquiry. With regard to the question of the absence of any taxation on the land Mr. Jagadeesa Ayyar met this point by referring to the observations of the Judicial Committee in similar matters in Secretary of State v. T.R.M.T.S.T. Thinnappa Chettiar , where their Lordships after referring to the opinion of the High Court that in certain inams in view of the fact that the grant was being made as a favour and grace by way of restoration of the village which had belonged to the last Rajah, the Government did not think it proper to demand any rent, jama or quit rent in respect of those village when they made the regrant in 1862, agreed with the view taken by the High Court. The explanation for the absence of any quit rent is, in our opinion, what has been laid down by the Judicial Committee.
46. The above analysis shows that the tests applied by Krishnaswami Nayudu, J., for holding that the land is private land are correct and though there has been no actual cultivation by the Devasthanam itself the lands were always considered as the absolute property of the temple without any liability to pay any revenue to the Government and were being treated throughout in that capacity. At no time was there any consciousness that two separate concepts or entities such as melwaram or kudiwaram existed. Throughout the course of more than a century, the Devasthanam as well as those who cultivated the lands proceeded on the footing that a tenure resembling ryotwari system existed and in our opinion Exhibits P-13 and D-3 are in no way inconsistent with the absolute proprietorship. Agreeing, therefore, with Krishnaswamy Nayudu, J., we hold that the plaintiff js not entitled to a patta.
47. There is a further argument advanced by Mr. Jagadeesa Ayyar that in the connected suit by the Devasthanam for arrears of rent there is a final decision that the land is not an estate and the same, having been confirmed in C.R.P. No. 120 of 1945, cannot again be re-agitated. Though there is very much to be said on this aspect of the case we do not wish to rest our conclusion on that alone. The result is the Letters Patent Appeal fails and is dismissed with costs.