1. Assuming that Exhibit B is a genuine document and also that Exhibit A has the legal effect of a transfer for valuable consideration of the kudivaram, right in favour of the zemindar, Section 8, Clauses (1) and 3, of the Estates Land Act clearly enact that ryoti land cannot cease to be such owing to such merger of the melraram and kudivaram rights and that the landholder purchaser shall continue to treat the land as ryoti land' of which he is the landholder.
2. As Exhibit B of 1872 was relied on by the plaintiff from the beginning, as there is nothing in the records to show that the plaint land was treated as home-farm land before the date of Exhibit C and as the grounds of appeal to the lower Appellate Court relied on the transfers under Exhibit B and Exhibit A and not on the ground that the land had even before the date of Exhibit B beer, home-farm lands, we cannot allow the appellant to set up such a new case for the first time in second appeal, a case evidently not set up in the lower Courts. The allegation in plaint, paragraph 1, that the lands are the khas lands of the 5th defendant cannot in the above circumstances be construed into an allegation that the lands have been, from time immemorial, the khas lands of the 5th defendant.
3. Section 8, Clauses (1) and (3), of the Estates Land Act seem to prevent lands once ryoti from being converted into private lands on the ground of merger of the kudivaram rights into melvaram rights. Assuming that there might be cases in which such conversion can take place by any acts of the landlord after the merger (see proviso to Section 185 of the Act), such acts, even though they need not come within the terms of the proviso and need not be confined to the acts mentioned in the proviso, must be, of such strong and unequivocal character as to justify the Courts in giving an exceptional finding in favour of the conversion of ryoti into private land. We think that the finding of the Lower Courts in this case that Exhibits C, D, G and H are wholly insufficient to prove such conversion, was quite justified though their reliance on a passage in the judgment, Exhibit VI, (which only decided that home-farm lands are impartible like the other zemindari land) is palpably erroneous.
4. In the result we dismiss the second appeal with costs.