Sidney Wadsworth, Officiating C.J.
1. The respondent has obtained a decree for the possession of the village of Kaduveli which is a part of the Tanjore Palace Estate. The appellant who is the tenant claims that the suit lands are situated in an estate governed by the Madras Estates Land Act and that he has occupancy rights therein and cannot be evicted. The trial Court has held that, whatever was the position before the amendment of the Madras Estates Land Act by the Madras Act, XVIII of 1936, the lands must now be deemed to be part of an estate under the Estates Land Act. It has also negatived the claim of the plaintiff that these are private lands within the definition in Section 3(10) of that Act. But it has held that the defendant is not entitled to resist the plaintiff's claim for possession because the occupancy right in these lands is held not by the defendant but by a previous tenant. In appeal it is contended that this finding regarding the subsistence of the occupancy right of the previous tenant is erroneous; but the respondent contends that even granting so much, the appellant must fail because the lower court erred in holding that the lands in suit are not private land.
2. In order to understand the question arising in this suit it is necessary to summarise very briefly the history of the Tanjore Palace Estate. In 1799 the then Raja of Tanjore by treaty ceded to the East India Company the right to collect revenue of the lands in the Tanjore Country and to administer justice therein. The Raja retained control over the Fort of Tanjore and was also permitted to retain certain villages and lands and palaces. This state of affairs continued up to the death of the last Raja in 1855. On his death, there being no heir, the Court of Directors of the East India Company decided that the title of Raja had become extinct and the whole of his propety including some 190 villages lapsed to the East India Company. Accordingly in October, 1856, Mr. H. Forbes appointed for the purpose, took possession of the entire estate.
3. The senior widow of the last Raja then filed a bill in equity in the Supreme Court at Madras against the East India Company claiming to be entitled to succeed to the whole of her late husband's estate. She succeeded before the Supreme Court, but on appeal to His Majesty in Council it was held that the seizure of this-estate, including the public and private property of the late Raja, was an act of the sovereign power which could not be questioned in the municipal Courts and the claim of the widow was therefore rejected. After this decision the widows of the late Raja presented a memorial in which they asked for a grant of the properties of the late Raja to his heirs as an act of grace and justice. By an order dated the 21st August, 1862, passed under the instructions of the Government of India which had succeeded the East India Company, the equitable claim of the Raja's widows and daughter was recognised and the whole of the lands were relinquished in their favour. It was ordered that the estate should be made over to the senior widow to be managed by her and she was required to provide in a suitable manner for the participative enjoyment of the estate in question by the other widows--her co-heirs; and on the death of the last, surviving widow, the daughter of the late Raja, or failing her the next heirs of the last Raja, if any, would inherit the property. The Government Agent at Tanjore was directed to place the senior widow in possession of the property. Vide Chota Raja Saheb v. Sundaram Aiyar (1936)71 M.L.J. 41 : L.R. 63 IndAp 224 : I.L.R. 59 Mad. 633
4. In 1866 litigation commenced between the Ranees and a receiver was appointed by the Court. The whole of the villages belonging to the Tanjore Palace Estate remained in the possession of receivers from 1866 down to 1912 when the last receiver filed an inter-pleader suit, O.S. No. 26 of 1912 on the file of the Subordinate Judge of Tanjore, which subsequently became O.S. No. 3 of 1919 on the file of the District Court of Tanjore. That suit resulted in the allotment of the village of Kaduveli to the 28th defendant in that suit Subhanandaji Bhonsle Saheb; but the properties were subject to a charge and in execution of the decree for the charge the properties were brought to sale and purchased by the present plaintiff in Court auction on the 2nd September, 1940. The plaintiff therefore claims title as the successor of one of the heirs of the grantees to whom the estate was restored by the Government of India.
5. The village of Kaduveli forms part of a vattam or group consisting of Kaduveli village proper and the hamlet of Punnavasal. The earlier document indicating the tenure of this village is the paimash account of 1830, Ex. D-i. This shows that Kaduveli village including the hamlet of Punnavasal comprised river-bed wet land which was enjoyed by several mirasdars ' as long as the moon and the sun last.' In Kaduveli village three shares are shown as belonging to the Annachatram and one share to Miras Chinna Appu Muppan; and one share was apparently divided between Ramanamayyan Setti and Jagannadha Joshi. There is also a recital that two of the mirasdars entitled to Jagannatha Joshi's share namely, Ananda Pillai and Chidambaram Pillai, had sold one fourth of the Kaduveli lands to Sirkla Mosi Sarase Rao Kedike Saheb who appears to have been an estate, official. It is provided that the Mirasi rights of Punnavasal lands should be retained by Ananda Pillai and Chidambaram Pillai and one fourth share of the Mirasi right in Kaduveli should be entered in the name of the purchaser. Whatever be the precise effect of these paimash entries, they make it abundantly clear that in 1830 the village consisting of Kaduveli and the hamlet of Punnavasal was a mirasi village in which the occupancy right subsisted in individuals other than the landlord.
6. There is no further documentary evidence until the year 1858 which falls within the period after the seizure of the estate by the Crown and before its restoration to the heirs of the deceased Raja. Ex. P-13 is the Ilaka Jamabandi Chitta for Fasli 1267. It shows that the dry lands of Kaduveli village were held on a three years lease by one Appu Pillai Chidambaram Pillai, not apparently the old mirasdar, on a cash rent of Rs. 485 and the wet lands of the same village were held on a similar lease by the same lessee who was entitled to what is called a purakudi varam of one-fifth of the produce, that is to say, he was treated not as a mirasdar, but as a mere cultivating tenant. In Punnavasal hamlet the mirasi right of three fourths of the village was treated as belonging to the Sircar and the lands were let to cultivating tenants; whereas one-fourth mirasi right was held by the original mirasdar Chidambaram Pillai and the son of the other original mirasdar Ananda Pillai. No term is given for the period of their tenancy.
7. In Fasli 1270, i.e., 1860-61 when the village was still under the control of the Government, we have Ex. P-15 which is the Thunduvaram Jamabandi Chitta in respect of Sircar Miras lands in the village of Kaduveli. The term ' thunduvaram' ordinarily indicates the share of the produce which goes to the mirasdar as dis-tinguished from the melvaram which goes to the landlord and the purakudivaram which goes to the cultivating sub-tenant. This account shows that the Kaduveli lands were held on a three years lease by Ekambaram Pillai. The total beriz is given. From this is deducted the melvaram and service manyam melvaram and the balance is treated as miras thunduvaram; that is to say, the yield of the lands is apportioned so as to show separately the amount which goes to the estate as representing the landholder, the amount which is payable to the service inamdars and the amount which the estate takes as also the holder of the mirasi right. In the hamlet of Punnavasal, the three pangus of sircar miras are treated in a similar way.
8. Ex. D-9 is the Jamabandi Chitta of Kaduveli village for Fasli 1273 and is dated the 30th June, 1864. It contains a reference to damage by floods to the lands belonging to the one-fourth mirasi holder in Punnavasal, Ananda Pillai, Chidambaram Pillai and also similar damage to the lands belonging to the Palace miras. It also refers to a lease of the Palace miras, wet and dry lands in Kaduveli village for three years to one Arumuka Nadan, whose name clearly shows that he cannot be an heir of any previous mirasdar, he being of a different caste and particulars are given of the receipt as Palace miras thunduvaram out of the lands in the enjoyment of artisans and servants. From this document it is clear that Punnavasal was still being treated as being a hamlet of which the mirasi rights were held as to three fourths by the Palace and as to one-fourth by the representatives of the original mirasdars, whereas Kaduveli was treated as a village in respect of which the Palace owned the mirasi rights and leased the lands for a term of years to a tenant.
9. This state of affairs seems to have continued throughout the period during which the receivers held the lands. The subsistence of private mirasi right in one-fourth of Punnavasal was continuously recognised and the other three-fourths in that village was treated as belonging to the Palace and the tenants took the lands for short periods under leases. An attempt has been made to deduce from one muchilika Ex. P-16 dated the 30th July, 1873, a state of affairs in which the Kaduveli wet lands were actually under the direct cultivation of the receivers. Ex. P-16 is a muchilika executed by the cultivators of the lands. It recites that Kaduveli was 'in amani' during the fasli and the cultivators received an advance of Rs. 350 for purchasing seeds for wet lands and that they undertook to return that amount in instalments. Far from this being evidence of direct cultivation, it seems to us very clearly to be evidence that the land was cultivated by lessees on a sharing system which is the ordinary meaning of the term ' amani.' The fact that the cultivators received an advance for the purchase of seeds is the clearest possible indication that the lands were not cultivated by hired servants of the landlord.
10. It is unnecessary to go into the details of the subsequent leases of Kaduveli lands. Upto the time of the passing of the Madras Estates Land Act in 1908, there is no indication that the lands were regarded as home-farm lands of the estate, unless such an indication can be spelt out of the words:
Belong to and remaining in the enjoyment of the estate.
11. Found in some of the lease deeds. An attempt has been made to argue that the Tamil word ' sonthamana ' which literally means ' own/ indicates something more than mere ownership and is used to refer to the ' private' nature of the tenure of the lands as distinguished from ordinary lands in which the estate claimed no right of personal enjoyment of the soil. We find ourselves unable to agree to this suggestion. It is, however, clear that the receivers granted leases for these lands and in some cases they granted leases before the termination of the previous lease, probably owing to abandonment by the previous lessee; and that though there is nothing to indicate that the estate regarded these lands as home-farm lands, they were clearly regarded as different from lands held by mirasdars and were lands in respect of which the lessee had no right of occupancy. The Jamabandi account for 1901, Ex. P-22 shows clearly that the Kaduveli lands were held on muchilikas which were term leases, whereas the one-fourth mirasi lands privately owned in Punnavasal were referred to as being held on a permanent lease, while the three-fourth Palace miras of that hamlet were given on a lease for a period. After the passing of Madras Act I of 1908 the leases in respect of Kaduveli lands contained a recital that the lands formed private lands remaining throughout in the enjoyment of the estate.
12. On the 14th May, 1929, when the estate was in the control of an usufructuary mortgagee, the immediate predecessor of the present defendant, Raghunatha Ingle, executed a lease muchilika, Ex. P-11, in favour of the mortgagee. That document contains a recital that the tenant will not sub-lease the lands without permission, that the leaped lands do not form part of an estate within the definition in Madras Act I of 1908 and that the tenant has no occupancy right in the lands leased and should surrender the lands on the termination of the lease. In 1931 the defendant's father, Visvanatha Pillai, took a sub-lease for three years from Raghunatha Ingle. Ex. P-11 (a) is the muchilika relating to that lease and it contains similar recitals admittirtg that the lands demised did not form part of an estate under Act I of 1908 and that the sub-lessee had no occupancy right in the land. The lease granted to Raghunatha Ingle terminated at the end of Fasli 1344 and on the 24th May, 1934, the sub-lessee, Visvanatha Pillai, presented a petition to the landlord Subbanandaji Bhonsle, Ex D-2, in which he asked for a direct lease of those lands for three years. This was duly granted and is evidenced by Ex. D-3. These documents do not indicate what had happened to the previous lessee, Raghunatha Ingle. The natural inference is that he had surrendered his lease and was not asking for a renewal, the term of the lease having expired.
13. The three years lease given to Visvanatha Pillai would last until May, 1937. On the 27th December, 1937 we have what is described as a statement in writing given by the present defendant to the receiver then in charge of the lands which recites an oral lease in his favour of the land on condition of his payment of Rs. 140 cash and 225 kalams of paddy for Fasli 1347. It is common ground that from Fasli 1347 onwards the defendant has been the lessee of the lands originally leased to his father.
14. On these facts the learned Subordinate Judge has given a decree to the plaintiff, not on the ground that the lands are private lands of the estate, which was the case asserted in the plaint, but on the strength of the theory, of which the pleadings contain no suggestion, that though there is an occupancy right, that right was held not by the defendant or his father, but by the previous tenant, Raghunatha Ingle, who is presumed to have been the tenant of the holding on the 30th June, 1934, the date contemplated in the second explanation to Section 6 of the Madras Estates Land Act as amended in 1936. It seems to us that the learned Subordinate Judge has misunderstood the effect of Section 6 of the Act. The first sub-section is as follows:
Subject to the provisions of this Act, every ryot now in possession or who shall hereafter be admitted by a landholder to possession of jyoti land situated in the estate of such landholder shall have a permanent right of occupany in his holding.
and Explanation (2) makes it clear that in respect of an inam village which was not an estate before the commencement of the Madras Estates Land (Third Amendment) Act, 1936, but became an estate by virtue of that Act, the expressions ' now ' and ' commencement of this Act ' shall be read as meaning the 30th day of June, 1934 and the expression ' hereafter ' shall be considered as meaning the period after the 30th day of June, 1934. The learned Subordinate Judge seems to propound a theory that if once a ryot has acquired an occupancy right by being in possession of his holding on the 30th June, 1934, that occupancy right will enure for him thereafter regardless of whether or not he continues to hold the land. This seems to us clearly to be a fallacy and a very dangerous fallacy; for, if it were correct; it would enable a landlord to keep a nominal occupancy ryot to whom he did not look for the payment of rent and to treat the person admitted to possession of the holding by himself as a mere tenant at will, which would defeat the whole object of the amending Act of 1936. Section 6(1) gives the ryot a permanent right of occupancy in his holding. If he has no holding, he can have no right of occupancy. The natural inference from the facts of the present case whereby on the termination of the lease of Raghunatha Ingle the landlord without objection from the former tenant gave a fresh lease to the defendant's father and at the end of that lease admitted the defendant himself into possession as tenant, is that Raghunatha Ingle surrendered the land at the end of the period of lease and that the defendant's father did the same at the end of the period of his lease. There is no evidence whatever to indicate that Raghunatha Ingle had any holding in the land after the termination of his lease. Unless it were established that he continued to be the tenant of the land, notwithstanding the grant of a lease to the defendant's father, the occupancy right would be lost to him. It is abundantly clear that a ryot can surrender his land and if he does so he loses the occupancy right, for he has lost the holding. We are therefore unable to agree with the learned!, Subordinate Judge in his view that the defendant, though he was admitted into possession by the landlord, did not thereby get the right of occupancy contemplated in Section 6 of the Act.
15. The learned Advocate-General who appears for the respondent, while not conceding that the view of the learned Subrodinate Judge on the question of occupancy right is wrong, rested his case mainly on the contention that the learned Subordinate Judge erred in holding that the suit land is ryoti land. His contention is that the land is private or home-farm land which is excluded from the defi-nition of ' ryoti land ' and that therefore the admission of the defendant to possession of that land did not confer on him any right of occupancy. The learned Subordinate Judge rejected a similar contention before him mainly on the ground that there is clear evidence that Kaduveli village was originally a mirasi village and that there was no proof of direct cultivation of the land by 'the landholder or of any circumstances clearly indicating that the land had been converted into private land. For this part of his argument the learned Advocate-General had laid great emphasis on the fact that by the act of state in 1859 the Crown confiscated all the rights held by the late Raja in the whole estate including his private property therein. The argument is that, granting the subsistence of mirasi rights when the suit village was held under the Raja of Tanjore, the act of state put an end to all proprietary rights and the title? which the plaintiff now holds must be traced back, not to the title of the last Raja of Tanjore, but to the title conferred by the grant from the Crown in 1866. On this basis it is contended that the subsistence of a mirsai right in 1830 is not relevant and what we have to consider is the effect of the grant to the heirs of the late Raja of the estate which, so far as the main village of Kaduveli was concerned, was clearly a grant of both the melvaram and the kudivaram. It is argued that starting from this point, we have a village in which the grantee clearly held both the varams and that from 1866 onwards it has been made abundantly clear that the grantee never treated the main village of Kaduveli as ryoti land. The leases were all given for terms and were frequently cane lied before the term had expired and the whole course of conduct of the Government before the grant and of the receivers who represented the estate after the grant is consistent only with the theory that no occupancy right was regarded as subsisting, the lands being regarded as the private property of the estate in which the grant of a lease conferred no further rights than those specified in the contract. Emphasis is laid on the fact that the tenants were not allowed to cut trees, not allowed to grant subleases without permission and were obliged to surrender the land on the termination of the lease.
16. We shall consider first the effect of the confiscation of the property of the late Raja of Tanjore in 1859 and its regrant to the heirs of the Raja in 1862. We must remember that we are not now concerned with a case in which a former proprietor is trying to enforce against the Crown a title derived from a previous sovereign. It is no doubt well settled that in such circumstances municipal Courts can enforce against the new sovereign only such rights as had been conferred or recognised by the new sovereign after the act of state changed the sovereignty. The cases quoted on the subject were the Tanjore Palace case--The Secretary of State in Council of India v. Kamachee Boyt Sahaba (1859) 7 M.I.A. 476 Vajesingji v. Secretary of State for India (1924) 47 M.L.J. 574 : L.R. 51 IndAp 357 : I.L.R. 48 Bom. 613 Cook v. Sprigg (1899) A.C. 572 Secretary of State v. BaiRaj Bui (1915) 29 M.L.J. 242 : L.R. 42 IndAp 229 : I.L.R. 39 Bom. 625 and Secretary of State for India v. Sardar Rustan Khan (1941) A.C. 356. The authority of these cases leaves no doubt that when the properties of the Raja of Tanjore were confiscated by the Crown, if the Crown had purported to confiscate also the proprietary rights of the mirasdars holding under the Raja of Tanjore, these mirasdars could not in the local Courts have established as against the Crown the subsistence of their rights, except to the extent to which the Crown had regranted those rights or recognised their continuous subsistence.
17. It does, however, seem to us clear from the documents in this case that when the Crown confiscated the assets of the Raja of Tanjore, it did not purport to confiscate the rights of the mirasi proprietors other than the Raja himself. It is clear that the subsistence of the mirasi right in one-fourth of the lands of the Punna-vasal hdmlet was not confiscated by the act of state which deprived the Raja's heirs of his lands; and even with reference to the Raja's lands, although there was a confiscation of all his properties, the Crown continued to recognise the subsistence of mirasi right in those properties, by treating separately the income from the melvaram and from the mirasi right; a similar recognition is found when the estate was given back to the heirs of the Raja. In the hamlet of Punnavasal private mirasi rights still subsisted and it was clearly recognised that in the rest of the lands, the mirasi rights also subsisted as such, though held by the estate itself; and the same seems to have been the position with reference to the main village of Kaduveli, though the recitals are not so clear in regard to.this village because no private mirasdar remained. We do not know how the Raja of Tanjore acquired the mirasi rights in the mains village of Kaduveli; but we may take it as established that after the rendition of the estate there was no recognition of the subsistence of any occupancy right in any tenants of the main village who were holding lands under the receivers or under the actual owners of the estate. The recital in leases executed after the coming into force of Act I of 1908 of words to the effect that the land was the private land of the Zamindar were obviously inserted with an eye to the provisions of the Act and cannot have any evidentiary value.
18. It is not really necessary for us to determine whether or not the village of Kaduveli including the hamlet of Punnavasal formed an estate under the Madras Estates Land Act as it stood before the amendment of 1936. The Full Bench which decided Sundaram Ayyar v. Ramachandra Ayyar : AIR1918Mad435 answered in the affirmative the question whether the Tanjore Palace Estate was an estate under the Madras Estates Land Act, I of 1908. This decision has in some cases been distinguished on the ground that only one village was then under the consideration of the Court; but in terms the answer of the Full Bench appears to include the whole of the estate. There is much to be said for the view that when the grant is considered as a whole, it must be regarded as a grant of the land revenue to a person not owning kudivaram in the land, although it can be shown that in the case of individual lands in the estate the kudivaram interest which had been previously owned by the Raja was included in the rendition to his heirs. Whatever be the effect of the application of the Madras Act I of 1908 to this estate, all doubt is removed by the passing of the amending Act in 1936.
19. If we assume that the title of the palintiff is to be traced solely to the grant of 1862 without reference to the existence of a mirasi tenure under the previous owner, can it be said that on the facts proved in this case the lands in Kaduveli come within the definition ' of private land ' in Section 3(10) of the Act? Under the Madras Estates Land Act as it stood before the amendment of 1936 ' private land ' was defined as 'the domain or home-farm land of a landholder by whatever designation known such as khambattam, khas, sir or pannai'. Section 185 of the Act provided that
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; Provided that all land which is proved to have been cultivated as private land by the landholder himself, by his own servants or by hired labour with his own or hired' stock for twelve years immediately before the commencement of this Act shall be deemed to be the landholder's private land.
20. When dealing with the question whether land which had once been ryoti land can have been legally converted into private land before the passing of the Estates Land Act, a Bench consisting of Wallr, C.J. and Seshagiri Ayyar, J., in the case of Zamindar of Chellampalli v. Somayya : (1914)27MLJ718 held that such a conversion should be proved by very clear and satisfactory evidence. The learned Chief Justice in holding that the evidence adduced was not sufficient for the purpose quoted the case of Budley v. Bukhtoo (1871) N.W.P.H.C.R. 203 in which it was held that sir land was land which a Zamindar had cultivated himself and intended to retain as resumable for cultivation by himself even when from time to time he demised it for a season. The learned Chief Justice applied the same test and held that the plaintiff had failed to satisfy it. This decision came on before the Privy Council on appeal in Tarlagadda Mallikarjuna Prasad Nayudu v. Somayya (1918) 36 M.L.J. 257 : L.R. 46 IndAp 44 : I.L.R. 42 Mad. 400 and their Lordships quoted the above passage from the judgment of the Chief Justice with approval pointing out that this test is obviously suggested by Section 185 of the Act. The judgment of Wallis, C.J., in the case just quoted also considers the meaning of the words 'domain or home-farm land of a landholder by whatever designation known,' and points out that the dictionary meaning of the word ' domain ' is ' the land about the mansion-home of a lord and in his immediate occupancy.' Seshagiri Ayyar, J., on the same subject quotes from the Encyclopaedia Brittanica in support of the view that the word '' domain ' means ' land immediately surrounding the mansion or dwelling house, the park or chase,' and expressed the view that it was in a similar sense that the Legislature used the expression. These decisions are quoted in an unreported case in Tiruvarur Sri Tyagarajaswami Devasthanam Rajati Kattalai v. Muthuswami Odayar A.A.O. No. 311 of 1943 on which the learned Advocate-General has relied and are distinguished on the ground that they only relate to cases in which the land which was originally ryoti land was claimed to have been converted into private land. The learned Judges in the unreported case dealt with the more elaborate definition of private land given in Section 3(10) of the Madras Estates Land Act as amended in 1936 in order to arrive at a decision on the facts of that particular case that land which had never been ryoti land and which was shown to have been treated in many respects as if it were ryoti land, could come under the heading of domain or homefarm land by whatever designation it is known, even though there was no proof that there had been actual cultivation by the landholder. The learned Judges deal with the definition in a way which, with very great respect, we find difficult to reconcile with the decision of the Privy Council just quoted. We are not concerned with the correctness of the unreported decision on the particular facts before the learned Judges; but with some of the observations contained in that judgment we must express our respectful disagreement. The definition of ' private land ' in Section 3(10) as amended by the Act of 1936 is as follows:
Private land (a) in the case of an estate within the meaning of sub-clauses (a), (b), (c) or (e) of Clause (2) means the domain or home-farm land of the landholder by whatever designation known, such as khambattam, khas, sir orpannai and includes all land which is proved to have been cultivated as private land by the landholder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years immediately before the commencement of this Act; and (b) in the case of an estate within the meaning of sub-clause (d) of Clause (2),means--(i) the domain or home-farm land of the landholder, by whatever designation known, such as khambattam, khas, sir or pannai; or
(ii) land which is proved to have been cultivated as private land by the landholder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years immediately before the first day of July, 1908, provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land; or
(iii) land which is proved to have been cultivated by the landholder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years immediately before the first day of November, 1933, provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land; or
(iv) land the entire kudivaram in which was acquired by the landholder before the first day of November, 1933, for valuable consideration from a person owning the kudivaram but not the melvaram, provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land and provided further that, where the kudivaram was acquired at a sale for arrears of rent, the land shall not be deemed to be private land unless it is proved to have been cultivated by the landholder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years since the acquisition of the land and before the commencement of the Madras Estates Land (Third Amendment) Act, 1936.
21. We are now concerned with sub-clause (b) of that definition. In that sub-clause, the first paragraph describes private land as the domain or home-farm land of the landholder, by whatever designation known and certain vernacular equivalents are given. The Legislature did not use the words ' domain or home-farm land ' without attaching to them a meaning; and it is reasonable to suppose that they would attach to those words the meaning which would be given to them in ordinary English. In ordinary English usage the term domain or home-farm, as is indicated by the judgment in gamindar of Chellapalli v. Somayya : (1914)27MLJ718 would connote land appurtenant to the mansion of the lord of the manor, kept by the lord for 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 incident to the lease. It seems to us that the sub-clause (b)(i) of the definition is intended to cover those lands which come obviously within what would ordinarily be recognised as the domain or home-farm; that is to say lands 'appurtenant to the landholder's residence and kept for his enjoyment and use. The 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. The other clauses of the definition appear to deal with those lands which would not necessarily be regarded as home-farm lands in the ordinary usage of the term, for instance lands which are at a distance from the domain or home-farm but have been cultivated, personally by the landlord for the required period of years, or lands in which the entire tenant's right has been purchased by the landlord from the-tenant when the land has never been treated as ryoti land since the purchase; and with reference to those lands there is a proviso that lands purchased at a sale tor arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period. It seems to us that the definition read as a whole indicates clearly that the ordinary test for ' private ' land is the test of retention by the landholder for his personal use and cultivation by him under his personal supervision. No doubt such lands may be let on short leases for the convenience of the landholder without losing their distinctive character; but it does seem to us to be inconsistent with the scheme of the Madras Estates Land Act as amended to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the varams in the lands and has been letting them out on short term leases. There must in our opinion be something in the evidence either by way of proof of direct cultivation or by some clear indication of an intent to regard those lands as retained for the personal use of the landholder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Madras Estates Land Act cannot acquire occupancy rights.
22. It seems to us that there are no materials in the present case to show that those lands have been so cultivated or retained by the landholder. It is said that they are situated within a mile or two of one of the palaces in the estate; but they were not in origin home-farm lands, before the seizure of the estate from the Raja and seeing that the estate has been under successive receivers almost continuously since the re-grant, there is no evidence that the grantee treated those lands as lands kept lor his personal use and occupation or cultivated them under his personal supervision, seeing that the lands cannot come under any other clause of the definition than Clause (b)(i) of Sub-section (10) of Section 3 and having regard to the fact that the presumption is in favour of the ryoti character of the lands, we must hold that the plaintiff has failed to prove that the lands are private lands.
23. It follows from these findings that the appeal must be allowed with costs here and in the Court below and the plaintiff's suit dismissed.