Abdur Rahim, J.
1. I agree in the conclusion arrived at by my learned brother in his judgment which I had the advantage of reading but as the appeal raises a question of some importance relating to the interpretation of the Madras Estates Land Act I shall briefly give my reasons.
2. The plaintiff who is the appellant before us sued to eject the defendant from nine kattis or 153 acres of cultivated land claiming them as his privafe or home-farm land and also from 65 kattis of waste land in the village of Mejuri in the Zemin-dari of Chellapalli otherwise called Devaralakota. The appeal relates to the land of the former description with respect tp which the suit was dismissed and the memorandum of objections, filed by the defendants is against the decree in favour of the appellant with respect to the waste land. I shall first deal with the appeal in which the only question raised is whether the 9 kattis of cultivated land in suit are the home-farm land of the Zemindar. If the finding of the Subordinate Judge that they do not form his home-farm land is correct then the suit was rightly dismissed both dn the ground that such a suit is excluded from the jurisdiction of the Civil Courts and also because the plaintiff would have no right to eject the defendants.
3. With reference to this question one important fact is to be borne in mind. In 1864 in consequence of a violent cyclone and the action of the sea the land in dispute was flooded and, owing to saline deposits, could not be cultivated certainly for 2 or 3 years and, according to the appellant, for 8 or 9 years afterwards. His case is that he himself reclaimed the lands and from 1873 let out the lands as kamatam down to about March, 1909, when disputes arose between him and the defendants and there were proceedings in the Magistrate's Court in consequence. The Magistrate having upheld the defendant's possession by his order dated 29-11-1910 the plaintiff has filed this suit.
4. That the Zemindar has been describing these lands as kamatam in the leases granted since 1873 and increasing the rent from time to time and stipulating for the quitting of the lands at the end of the terms mentioned in the leases is admitted. It is also found, and that finding has not been challenged before us, that in some cases the lands have changed hands. The evidence as to whether the lands in dispute were uncultivable during the entire period between 1864 and 1873 and whether the planitiff himself reclaimed the lands is neither very clear nor consistent. On the whole I am inclined to accept the conclusion of the learned Subordinate Judge on the point set out in paragraph 18 of. his judgment. If the case of the plaintiff was true accounts should have been forthcoming to show that he spent money on reclamation of the lands or that he directly cultivated them in the years 1874 or 1885 to 1887. The explanation for non-production cf accounts relating to that period is not satisfactory. The Subordinate Judge has also given other reasons in support of his conclusion and it is necessary to repeat them That the land was in the occupation of ryots before 1864 is supported by strong evidence. The cultivation accounts of fasli 1254--Exs. II, II-a and XI and other documents discussed in the judgment of the learned trial Judge clearly support the case of the defendant's on this point. It therefore comes to this: that before 1864 the land was under the cultivation of ryots as ryofi land, and from 1864 onwards the Zemindar tried to treat the land as his Kamatam, but he never in fact as found by the subordinate Judge cultivated the land himself, nor is it proved that he reclaimed any portion of it. He certainly in 1he leases that he granted described the land as Kamatam, varied the rent from time to time and in many cases changed the ryots.
5. The two main points raised by the appellant are firstly that it was Kamatam land from the very beginning, and secondly that even if it was ryoti land, he converted it into Kamatam after 1864.
6. As regards the first, it is a pure question of fact, and, as I have already indicated the evidence tends to negative the appellant's case. In fact there is hardly any evidence in support of his contention on this point. Whether the Zemindar is entitled before the passing of the Madras Estates land Act of 1908 to convert the ryoti land into Kamatam depends on the view one takes of the Estates Land Act in this connection. The question what is home-farm land and what is ryoti land within the meaning of this act has been discussed in a number of cases of this Court and the general conclusion arrived at is that ryoti land is land which is in the occupation of the cultivating ryot in contrast with the home-farm land which the Zemindar is entitled to deal with in any way he choses by contract without being hampered by the provisions of the Estates Land Act. What is home-farm land has recently been discussed by the learned Chief Justice and Mr. Justice Seshagiri Aiyar and their conclusion has been accepted by the Privy Council. The test which is laid down in the judgment of the learned Chief Justice in Zemindar of Challapalli v. Somayya I.L.R. (1914) Mad. 341 : 27 M.L.J. 718 was whether the land was in actual direct cultivation of the Zemindar although he might let it out on lease for some reasons provided he had the ultimate intention of cultivating it him self. The test has been approved by the Privy Co ncil in Yerlagaddu Mallikarjuna Prasada Naidu v. Somayya I.L.R.(1918) Mad. 400 : 36 M.L. 257 and applying it to this case the appellant's contentions must altogether fail. Since 1864, he has always been letting out the land. The evidence he gave of direct cultivation during some years was rightly rejected by the Subordinate Judge.
7. The next contention is that even if so, the Zemindar has effectually made the land Kamatam or home-farm land by the assertion of such right in the various leases which he granted and by the manner of his dealing with the land. Reliance is placed on the dictum of Mr. Justice Subramania Aiyar in Cheekati Zemindar v. Rana Sooru Dhora I.L.R.,(1899) Mad. 318 to the effect that it was open to the Zemindar to absorb the ryoti land into his home-farm land by dealing with it as such. But it is a general statement of what used to be the practice of some Zemindars and I cannot accept it as conclusive of the question. I think we must look to the provisions of the Estates Land Act to see whether such a conversion was possible having regard to the provisions of this Act. The defendants were in possession of the land at the time the Act came into force and therefore under Section 6 they will be entitled to hold it permanently with occupancy right unless it was shown that the land was not ryoti land. It was ryoti land till 1864 and the enquiry therefore must be whether its character had been changed by the action of the Zemindar. It seems to methat Section 8 of the Estates Land Act read along with Section 185 and other provisions of the Act make it clear that the legislature intended to lay down that ryoti land cannot be turned into home-farm land by the Zemindar by any Act of his either before or after the passing of the Act unless it came within the special provisions laid down in this connection. Section 8 says that wherever there is a union of the two interests that is, melwaram and kudiwaram interest either by transfer, succession or otherwise in the same person, such person shall have no right to hold the land as a ryot but shall hold it as a landholder; and then Sub-section (3) says that such a merger, by which I take it the legislature meant union of interests shall not have the effect of converting ryoti land into private land. The effect of this is that although for the time being by transfer, succession, relinquishment or otherwise the landholder may enjoy the kudiwaram in addition to his melwaram but the land itself does not loose its charactar as ryoti land does not become private land of the Zemindar, that is to say, if thereafter the landholder lets out the land for cultivation, the ryoti character is revived and the person in possession will be entitled to occupancy rights. Much light is thrown on this by the provisions of Sub-section 4 which says that if the land holder has acquired kudiwaram for valuable consideration before the passing of the act or by inheritance then in such cases he shall have for a period of 12 years from the passing of the Act the right to admit any person he chooses to the possession ot such land on such terms as may be agreed upon between them that is to say for a period of 12 years, he can enjoy and deal with it as his home-farm land. For instance if he lets it out on lease within the 12 years the ryot in actual cultivation would not acquire any occupation right therein. On this point I agree with Seshagiri Aiyar, J's view of the law in Zemindar of Chellapalli v. Somayya I.L.R.,(1914) Mad. 841 : 27 M.L.J. 718
8. Apparently however the legislature wanted to make some provision in order to enable the Zemindar who has been in enjoyment of ryoti land by direct cultivation before the passing of the Act for a period of 12 years to give the Zemindar with respect to such land the right of treating it as his private land. That is what is enacted by the proviso to Section 185. As pointed out by Mr. Justice Seshagiri Aiyar in Zemindar of Chellapalli v. Somayya I.L.R.(1914) Mad. 841 : 27 M.L.J. 718 the main body of that section only points out what shall be regarded as evidence showing whether the land in question is ryoti or private land. It lays down 'when in any suit or proceeding it becomes necessary to determine whether any land is the landholder's 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'. It was contended by Mr. Sarma, the learned Vakil for the appellant that what is enacted here is that if there be evidence of custom prevalent in that part of the locality on the part of the landholder treating ryoti land as his private land, then that custom by itself would be sufficient to determine the character of the land. In my opinion, this contention is clearly untenable. The evidence of local custom is merely a piece of evidence which the court has to consider in determining whether the land in dispute is the private land of the Zemindar or ryoti land. Any other construction of Section 185 would be directly in contravention of Section 8 and indeed of the whole scheme of the Estates Land Act. In this case what has been proved by Mr. Sarma's client is that his client who has Zemindari Lands in a number of other villages, in letting out on lease the land which came into his possession either by relinquishment or otherwise stipulated in the leases that he would be entitled to eject the tenants at his pleasure and to vary the rent. Such a course of dealing, no doubt, would have evidentiary value in ascertaining whether the land is in fact home-farm land or ryoti land but would not operate in law to make the land home-farm land. With these few remarks I agree with my learned brother that this appeal should be dismissed with costs.
9. I also agree that the memorandum of objections should also be dismissed with costs and have nothing further to add.
10. Plaintiff is the Zemindar of Deveralakotta in the Kistna District. He brought this suit for a declaration that certain lands situated in the village of Majeru of his estate are his private lands and to obtain possession by ejecting the defendants. The lands to which the suit relates fall admittedly into two categories : (1) cultivated land, 9 Katties or about 153 acres in extent and (2) uncultivated land, 65 and odd Katties in extent. Two schedules are attached to the plaint. Schedule A contains according to the plaintiff a list of the cultivated lands and Schedule Balist of the uncultivated lands. The plaintiff's claim as regards the cultivated land has been dismissed by the lower Court on the ground that it had no jurisdiction to entertain a suit in respect of it. This decision is based on a finding that the land is ryoti within the meaning of that term as defined in the Madras Estates Land Act and that the jurisdiction of the Civil Courts to entertain suits of this nature is excluded by Section 189 of that Act. The plaintiff appeals.
11. As to the uncultivated land the lower Court has decreed the plaintiff's claim and a memorandum of cross objections is filed by the defendants.
12. The point for determination in the appeal is whether the lower court was right in holding that it had no jurisdiction to entertain the suit. The decision of this question depends upon whether the 9 Katties of cultivated lands are private lands as contended by the plaintiff or ryoti land as asserted by the defendants. The plaintiff's case is (1) that the land has always been private land or (2) that it was converted into private land prior to Madras Act I of 1908 coming into operation.
13. It will be convenient to deal first with the facts disclosed in the evidence as to the history of the land and the nature of the occupation with reference to the allegations of the appellant. His case on this point briefly is this : the lands have been private from time immemorial. In 1864, they were affected by the great Bunder cyclone and became uncultivable owing to saline deposit. This necessitated reclamation which was carried out by the Zemindar who subsequently cultivated the land directly in some years between 1864 and 1874. After that date he leased the lands as his own private lands. Lease deeds were executed from time to time. The first is Ex. G of 7th September 1874, and the last Ex. A of 2nd August 1904. The former is for a period of 8 years and the latter for 5 years. The plaintiff also alleges that during the time when the lands were ordinarily let out in this manner there were three years in which they were directly cultivated on this account and that in two years 1892 and 1893 the lands were let out for cultivation but for pasturage only. The last lease expired in March 1909. The plaintiff, asserted that he had been in occupation for a short period after that time. This point however is not of importance. The crucial date is the 1st July 1908. The deendants. were then in possession. The main question to be determined is what the nature of their possession was, and this cannot be affected by anything which the plaintiff may have done in the following years.
14. The plaint is silent as to how the land was cultivated, if cultivated at all, prior to 1864; but the contention of the plaintiff was (vide P.W. 20) that before that time it had been under direct cultivation of the Zemindar as his private land, The defendants (vide D. Ws 1 and 3) allege (a) that it had been cultivated by the ryots of Chinnapuram, the village to which the defendants belong. The Subordinate Judge is of opinion that the lands had been in the occupation of ryots (vide para 23 of his judgment) but he considered it unnecessary to decide whether Chinnapuram ryots were the cultivators as a finding that the lands were ryoti was sufficient in his opinion. The plaintiff has exhibited only one document of a date prior to 1874. Not a single piece of documentary evidence is produced to indicate, that the plaintiff had ever dealt with these lands as his private lands prior to 1873 or that they had been so treated in the village accounts. The Subordinate Judge thought that the accounts had been purposely withheld and this opinion is probably correct. Accounts must have existed. It is unlikely that all can have disappeared ; and the plaintiff in whose custody they must be has given no satisfactory explanation for their non-production. The defendants have been able to produce copies of certain village accounts relating to this period and the genuineness and, admissibility of these documents have not been questioned before us. Ex. II (a) is the jamabundy Chitta of 1842. This account shows that the whole cultivable area of the village was then classed as Seri. It is admitted (vide P.W. 1) that Seri in this locality is the term used to describe lands in which ryots have occupancy rights. The account gives details of all the different classes of lands in the village and it may be noted that the total extent of the cultivable land is given at the same figure as that shown in Ex. X relating to 1878. The difference between the two accounts lies in this that whereas Ex. II (a) shows that no Kamatam land existed in the village Ex. X shows a otal of 44 and odd Katties under this head as forming part of the total cultivable area.
15. Other accounts, e. g. Ex. III A are relied upon as containing no reference to the existence of Kamatam lands. The same absence of mention of Kamatam lands is observable in documents of dates between 1864 and 1873; e. g. Ex. XII A of 1870 which sets out the demand on Kamatam lands in a number of villages but shows none for Majeru and Ex. P (1) of 1869 in which an area is shown as under ryots' holdings which approximates to what was admittedly the total cultivated extent in the village about that time.
16. The explanation tendered for the plaintiff that Seri and Kamatam lands were not distinguished in the accounts has been rightly rejected. The fundamental difference in the Zemindar's right in respect of these two classes of lands is well known and it is most unlikely that they would have been lumped together as is now suggested. The explicit statement in Ex. II (a), the absence of any reference to private lands in other accounts and the failure of the plaintiff to produce any documentary evidence in support of his assertion fully justify the conclusion of the Subordinate Judge that the lands were ryoti prior to 1864.
17. The village was seriously affected by the cyclone of 1864 and there is some evidence that the Zemindar took steps to have the land free from saline deposit left by the inundation and that he cultivated the lands for a few years prior to 1874 (vide P. Ws 16, 17 and 18). The Subordinate Judge has discredited this evidence and I am not prepared to say that he is wrong. The statements are made by interested witnesses. There is no record to corroborate their testimoney either as to the reclamations or cultivations, P.W. 17 gives no evidence on the latter point and the other witnesses are very vague as to the years in which cultivation is alleged to have taken place. According to P.W. 16 accounts bearing on these matters ought to be in the Zemindar's office but none has been produced. Reference has been made to a recital in Ex. G. to the effect that the land was then (1874) under Kamatam cultivation. Such a statement is of very little weight as indicating direct cultivation by the Zemindar. The subsequent use of the term does not import any thing of the kind, and it is clear that Ex. G. was worded as it is for the express purpose of asserting exclusive rights in the Zemindar. Ex. XI has also been referred to but in my opinion the effect of this document has been correctly stated by the learned Subordinate Judge in para. 23 of the judgment and far from supporting the plaintiff's case as is claimed it shows that as late as 1873 the land in suit had not been described as Kamatam. Such accounts relating to these years as have been exhibited, Ex. V. (a) P 1 and XII (a) lend no support to the allegation that these lands were under personal cultivation of the Zemindar. Ex. V. (a) shows that Chinnapuram ryots held a considerable extent of land in Majeru even after the cyclone, i.e., in 1865 but it is not possible to identify the fields mentioned with those in suit. The oral evidence as to defendant's cultivation between 1864 and 1874 is of very little value. This does not however affect the result as the plaintiff has failed to establish cultivation by himself. It is very likely that owing to deterioration of the soil after the cyclone these Seri lands or some of them were relinquished by the ryots subsequent to 1864. Mere relinquishment would not however alter their character and the plaintiff has failed to show that anything more happend to effect any such change. Another argument advanced was that as the land admittedly went out of cultivation for some years between 1864 and 1874 it must be regarded as having been no longer cultivable within the meaning of Section 3(16) of the Estates Land Act. It is impossible to accept this contention. To do so would involve this result: that when land becomes incapable of cultivation owing to temporary causes, e.g., sub-mersion, it forfeits its character as ryoti land. This would be an altogether unreasonable interpretation to put on the words of the Act. The present instance is a weaker one for the land could probably have been rendered fit again for profitable cultivation at any time by some extra expenditure of money and labour. In the result I think the Subordinate Judge was right in holding that the lands were ryoti up till 1873.
18. The main facts as to what happened from 1874 onwards are not in dispute. There is no doubt that the plaintff's father and the plaintiff after him intended to convert the land into their private property in the sense that they desired to extinguish occupancy rights which had existed ana to prevent the future assertion of such rights by cultivators of these lands. To this end a series of leases was granted beginning with Ex. G. and ending with Ex. A. These admittedly cover the suit lands and it is unnecessary to give details about these documents for there is no controversy as to their contents. The land is described as Kamatam. The demises are for fixed periods. The lessees undertook to relinquish the lands at the end of their term. The Subordinate Judge has found that the rates of rent varied from time to time and that the lessees were changed. These findings have not been questioned before us. As already stated the plaintiff alleges that the practice of granting leases was suspended for three years and that the lands were under direct cultivation on behalf of the Zemindar during this period. The Plaintiff has however no consistent case as to which these three years were. P.W. 20 deposes that the direct cultivation was for three years preceding the appointment of a Receiver by the Court, The evidence shows that this appointment was made in 1887. This was the allegation before the Subordinate Judge and he points out that it is falsified by Exhibit VII, a registered lease for these very years. P.W. 16 also says that the suit lands were held on lease in 1887. A list, Ex. N, of Kamatam lands was given to the Receiver in 1887 and it shows 12 Katties in Majeru under this head. The suggestion is that the 9 Katties now in dispute are included in this total. As is pointed out by the Subordinate Judge, this account does not indicate direct cultivation, for it describes the lands as leased out to others. It is now suggested that the three years began in 1887. The non-production of lease deeds for 1888 and 1889 is relied upon and the oral evidence of P.W. 16 and 17. No documentary evidence has been produced. In its absence and in view of the statement of P.W. 20, I am not prepared to attach any weight to the vague assertions of the two other witnesses or to the non-production of lease deeds for the years from 1887 to 1889. The Plaintiff has failed to establish direct cultivation for any years between 1885 and 1890. It appears to be true that the lands were not cultivated in 1902 and 1903 as the result of floods and that they were let for pasturage only during those years. This incident does not appear to be material.
19. The facts then are that the suit land was ryoti up to 1873 at least and that it had never been directly cultivated by the plaintiff or his predecessors up to the 1st July 1908. On that date the defendants were in possession under Exhibit A. The land was not old waste and it was held for the purpose of agriculture. If the land was ryoti the defendants acquired permanent right of occupancy from the 1st July 1908 when Madras Act I of 1908 came into force if they did not already possess this right. If they have this right they cannot be ejected except under the provisions of the Act and a Civil Court has no jurisdiction to entertain a suit of this nature. The plaintiff alleges however that the land has been converted from ryoti into private. On the facts found, this change if it happened at all, must have taken place after 1873.
20. I am prepared to assume in favour of the Appellant (although the point is not free from doubt) that at the time he first let the land under the name of Kamatam (Exhibit G) it had come into his possession on relinquishment. The respondents contend that ryoti land could not be converted into private land under the law as it stood prior to the passing of the Estates Land Act. There was then a presumption that a person admitted to possession of relinquished land or waste had occupancy right-(Cheekati Zemindar v. Ranasooru Dhora I.L.R.(1899) Mad. 318 the land holder had greater freedom of contract than under the present law and he could prevent the acquisition of the occupancy right by special engagements. The presumption remained and any person subsequently admitted without reservation would at once acquire occupancy right. It is doubtful if the landholder could avoid this result by turning the land into private land. A remark of Subramania Aiyar, J. in his judgment in the Cheekati Zemindar's case is relied upon as indicating that conversion could be effected. There is no doubt that large areas of ryoti land were classed as private by Zemindars from 1870 onwards, but no case has been cited in which the effect of such treatment on the land by the Zemindar was considered. The further contention for the respondents is that even if the ryoti land had been treated as private prior to Act I of 1908 coming into force the provisions of the Act operate retrospectively to prevent any conversion. For the present purpose it is not necessary to consider the case of ryoti land which falls within the definition of old waste. The rights of a landholder who has acquired the right of an occupancy ryot in land in a holding are governed by Section 8. The union of the interests of the ryot and landholder does not make the land private. It is however urged that after such union it is open to the landholder was of the opposite opinion. The learned Chief Justice to effect conversion. This is the view taken by Wallis, C.J. in Zemindar of Chellapalli v. Somayya I.L.R.(1914) Mad. 341. Seshagiri Aiyar, J. was of the opposite opinion. The learned Chief Justice held on the facts that there had been no conversion and it is on this finding that the appeal to the Privy Council was dismissed (Yerlagadda Mallikarjuna Prasad Nayudu v. Somayya I.L.R. (1919) Mad. 400. In S.A. No. 275 of 1913 (Ayling and Seshagiri Aiyar, JJ.) the land had been ryoti up to 1878. The lower Courts had found that it was then converted into 'Pannai'. On Second Appeal it was held that Section 8 prevented such a conversion and that the land remained ryoti. The exposition of the scheme of the Act and the interpretation of Section 8 by Abdur Rahim, J. in Dundampudi Venkatarayudu v. Bikkina Subbarayudu 49 Ind .Cas. 179 seems to me to lead to the same conclusion. There are statements in some judgments which have been cited, e.g. S.A. No. 1402 of 1912 which contemplate the possibility of conversion but no instance has been given in which such a conversion has been upheld.
21. The scheme of the Act appears to me to be to divide all cultivable land into two categories (1) private land--the entire interest in such land is vested in the landholder. The temporary rights of cultivators of such land are based on contract. They cannot acquire occupancy rights except by the deliberate action of the landholder. (2) ryoti land--in all such land two separate interests exist--the melvaram and kudivaram interest--the former is vested in the landholder and the latter in the ryot.
22. It seems fo me that one main object of the tenancy law is to preserve these two interests and keep them separate. The kudivaram interest may be in abeyance but it can never be destroyed. The landholder cannot; prevent the acquisition of the right by a ryot. This is so even where a decree had been obtained before the passing of the Act establishing that the ryot had no occupancy right (vide Section 3 Clause 7). In some cases the acquisition can be delayed and be conditional on payment but this does not affect the general principle underlying the legislation. A landholder can hold the kudivaram interest in one case only, i.e., where he possessed it before he became the landholder-(vide Exception to Section (6) and even then the two interests remain separate.
23. The purpose of keeping the interests separate is to prevent encroachments by the landholder which would reduce the area in the estate in respect of which the relations between him and the occupiers are governed by the provisions of the Act and not by the general law. I think that Section 8 was intended to and does in fact carry out this object.
24. The Act (vide Section 19) is not concerned with the relations between a ryot and his tenants or between a landholder and the tenants of his private land. Section 8 prevents the landholder from putting himself in a ryot's position and I think it also prevents him from attaining the same object by converting ryoti into private land. In some cases conversions before the Act are also clearly a subterfuge that it can be held that no conversion hasin fact taken place. Large areas might however be converted in good faith and once conversion has taken place the occupancy right is destroyed for ever. This interpretation of Section 8 does not interfere with private cultivation by landholders. They can cultivate ryoti land in their possession to any extent they please and for as long as they like. They cannot be compelled to admit ryots. I think the position of a landholder after the acquisition of the kudivaram is that he holds as owner of the melwaram only. The kudivaram interest is not destroyed and will be revived as soon as any one is admitted to occupation of the land. The landholder is prohibited from enjoying both the interests and is consequently unable to convert the land into his private land. This seems to me to be the effect of Section 8 Clause (1) and (3) read together. These provisions place the same limitations on the rights of landholders whether the acquisition of the kudivaram interest was before or after the Act. It was conceded in the argument that Section 8 rendered conversion illegal on the 1st July 1908. It seems to me that it had the same effect on conversions alleged to have been made prior to that date. The Act contains no provision for the conversion of ryoti land into private land though the converse case is provided for in Section 181. Reference is however made to the proviso to Section 185 as contemplating conversion. If certain conditions are fulfilled the proviso creates an irrebut-table presumption in favour of land being private. The operation of this presumption may lead to land which was once ryoti being classed as private. I think however that the object of the provision is to render unnecessary inquiries into the history of the land in the remote past when there is strong prima facie evidence of its being private. I agree with Sesha-giri Aiyar, J., (39 Mad. 341) that the rules of evidence in the first part of the section are intended as a guide in inquiries whether the land was in its origin private or not.
25. I am inclined to hold that the appeal should be dismissed on the ground that the land remained ryoti on 1-7-08 as the plaintiff could not convert it into his private land. Apart from this there is in my opinion another reason why the appeal must fail. It is this--that on the facts no conversion was effected. Private land is defined in Section 3(10) of the Act as follows : ' Private land ' means the domain or home-farm land of a landholder by whatever designation known such as Kambatam, Khas Sir or Pannai.' In the present case, the term used is Kamatam. In order to ascertain whether conversion has been effected it is essential to know what the special characteristics of Kamatam land are ; ryoti land will not be converted into something else by simply calling it by another name. If conversion is pleaded, it must be shewn that there has been a change not merely in name but in fact. The test to be applied is laid down by Wallis, C.J. in his judgment in a case instituted by the present plaintiff in respect of land in another village of the same estate. The case is reported as Zemindar of Chellapalle v. Somayya I.L.R. (1914) Mad. 34l, Kamatam land is described as being 'land which a Zemindar 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.' On appeal to the Privy Council their Lordships of the Judicial Committee in Yerlagadda Mallikarjuna Prasada Naidu v. Somayya I.L.R. (1919) Mad. 400 accepted the view of the learned Chief Justice and after quoting the words just referred to went on to remark as follows : at p. 405 'that test is obiviously suggested by Section 185 of the Act and was rightly applied by the Chief Justice.' The plaintiff's allegation as to direct cultivation of the suit land has not been established. But he relies also in proof of conversion on evidence of custom and of the land having been let as private land (vide Section 185 of the Estates Land Act.)
26. With regard to the custom, a considerable body of evidence has been adduced to show that the plaintiff has classed as Kamatam a large extent of land relinquished by ryots and lands the Kudivaram in which he had purchased. It is argued that in the present case there has been a relinquish-ment and that an inference should be drawn that the lands are Kamatam. In view of the test to be applied in deciding whether conversion has really taken place or not, it is irrelevant to prove that the landholder has been describing thousands of acres of what were ryoti lands as Kamatam and has been leasing them out under this name for cultivation by others. It would be important to establish that the land in suit was of a kind which was usually brought under direct cultivation of the landholder and was retained by him for this purpose. The evidence in this case proves nothing of the kind. Witnesses no doubt assert that the plaintiff does cultivate directly portions of the lands in several villages which he describes by the name of Kamatam. But it is clear that this applies only to a small fraction of the whole extent and that the rest is leased to others. Then as to the evidence of letting, it is true that for over 30 years from 1874 the land was held on lease under the name of Kamatam. But the use of this term in pattahs, lease deeds, or other similar documents is by itself of little value as showing that the land was in fact Kamatam. The demise to be relevant for the present purpose must be consistent with an intention on the part of the lessor to resume direct personal cultivation. The learned vakil for the appellant has argued that the facts of the present case difter from those in Zemindar of Chellapalli v. Somayya I.L.R. (1914) M 341 and that the test laid down then should not be applied now. It is said that in the former case the land had always been under the occupation of ryots and that as the change in the description of the land took place while such occupation continued, it was merely colourable, while in the present case the occupancy right was not actually held by any one at the time the land was first classed as Kamatam. There is no force in this argument. The test laid down is of a general application, and the change in this case was also in my opinion colourable. A colourable transaction is one which is other than it purports to' be. A transfer of land to kamatam must be held to mean a transfer primarily for the purpose of direct cultivation by the landholder. Where no such intention exists, it seems to be that the transaction is rightly described as colourable. The lands in dispute were never cultivated by the plaintiff and there is nothing in the evidence to indicate any intention on his part to undertake such cultivation. On the other hand, the object was to establish the landholder's right to both warams to destroy the occupancy right and to enable the landholder to get the lands cultivated by others on such terms as he chose to impose. In the result i agree with the Subordinate Judge in holding that no conversion to private land has been established and I would dismiss the appeal with costs.
27. The memorandum of cross objections is directed against the decree in so far as it holds the plaintiff entitled to possession of 65 and odd Katties of uncultivated land. The only point argued is that the Court had no jurisdiction to entertain the plaintiff's claim in respect of this land. It is conceded that the determination of this question depends upon whether the defendants are ryots or not. The plaintiff's case is that the land was let for pasturage only. It has been decided in several cases that such a holding by a tenant is not for the purpose of agriculture and that he is therfore not a ryot within the definition in Section 3(15) of the Madras Estate Land Act. (See Maharaja of Venkatagiri v. Ayyapa Reddi I.L.R. (1913) M. 788 : 26 M.L.J. 578 and Seshayya Garu v. Raja of Pittapur : (1916)31MLJ214 ) This position is not questioned before us. But it is argued that the leases under which the defendants, held this land cannot be regarded as for pasturage only as provision is made in some earlier deed, e.g., Exhibits G and F, for the contingency of portions of land being cultivated--by providing a rate of rent to be paid in such event. It is also pointed out that in one lease deed Exhibit D all the land is lumped together, i.e., 9 Katties of cultivated land and the land to which this memorandum of objection relates, without distinction being made between agricultural land and the grazing land. It seems to me however that the intention is perfectly clear throughout. A block of waste land comprising over 1000 acres was let out at the rate of about two annas an acre. In most of the leases including Ex. A which was in force on the first of July 1908, it is expressly stated that the land taken for enjoyment as grazing ground. It has not been shown that any part has in fact been cultivated and I do not think that the wording in the few leases relied upon by the defendants alters the nature of the transaction. The admission was under a contract for pasturage only and the reference to other rates is to meet a possibility of breach of the agreement by the tenant. The Subordinate Judge had jurisdiction to make the decree in plaintiff's favour and I would dismiss the memorandum of cross-objections with costs.