G. Ramanujam, J.
1. The State of Tamil Nadu, the defendant in O.S. No. 72 of 1970, on the file of the Sub-Court, Dindigul, is the appellant herein.
2. The father of the respondents filed the said suit for a declaration that he is the owner of 'kudiwaram' interest in the suit lands which were originally 'Zamin Tharisu Punja' in patta No. 401 bearing Paimash No. 358 corresponding to Section No. 869 measuring 704-88 acres situated in Sirumalai Village, Nilakottai Taluk which was originally in Ammayanaic-kenur Zamin, and for a permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the same. His case as set out in his plaint was as follows : An extent of 851 'kulis' (502.09 acres) was assigned on payment of 'nazir' at the rate of one 'panam' per 'kuli' by the erstwhile Zamindar of Ammaya-naickenur by means of an assignment order dated 31st December, 1945, and the plaintifi was in possession of the same. Patta No. 401 was also issued by the Zamindar in pursuance of the said order of assignment. The Ammayanaickenur Zamin was taken over on 3rd Tanuary, 1951, under the provisions of Tamil Nadu Act XXVI of 1948. At the time of the assignment, the lands were registered as dry waste. The same could be cultivated if reclaimed and the bushes and shrubs are cleared. As the lands were ryoti and as the same have been assigned by the Zamindar to the plaintiff, the plaintiff has become a ryot. The assignment was also bona fide having been made for valid consideration. The plaintiff applied for ryotwari patta under the said Act. But the defendant refused to grant ryotwari patta on the ground that the assignment was not valid in law and as such no right flowed therefore to the plaintiff. The said refusal of the patta was unjustifiable and against law. The plaintiff filed W.P. No. 1723 of 1967 in this Court and that was dismissed by the Court with a direction to the plaintiff to file a suit to establish his title. Though the assignment was only for 851 'kulis' (502.09 acres), as a result of the survey carried out after the taking over of the estate, the lands assigned have been found to be 704-28 acres. Therefore, the plaintiff is entitled to a declaration that he is the owner of the suit properties and that the defendant has no right to interfere with his possession and enjoyment of the same.
3. The defendant resisted the suit contending inter alia that the lands in question were not ryoti lands but forest lands at the time of the assignment, and therefore, the assignment itself was invalid besides its being not bona fide, that therefore, the patta was rightly refused to the plaintiff by the defendant, that the plaintiff was not in continuous possession for over 12 years from the date of the notification so as to claim himself to be, a ryot within the meaning of the Estates Land Act, 1908, and that in any event, the suit being in substance for a ryotwari patta under the guise and plea of title and injunction, the civil Court has no jurisdiction to entertain the suit. Even otherwise the suit is barred by Section 65 of the Tamil Nadu Act, XXVI of 1948.
4. Pending the suit, the only plaintiff died and his legal representatives have been impleaded as plaintiffs 2 to 9.
5. The trial Court held after considering the evidence adduced by the parties at the time of trial that the suit lands are ryoti lands, that the plaintiff was a ryot, that the assignment by the Zamindar of Ammayanaickenur in 1945 was bona fide and for valuable consideration, and that the suit which is one for declaration of title and. injunction is maintainable. In that view, the learned District Munsif decreed the suit as prayed for with costs. The defendant took the matter in appeal to the lower-appellate Court, and the lower appellate Court set down the following two questions for consideration:
1. Whether the assignment made by the Zamindar in favour of the plaintiff was bona fide and for valuable consideration?
2. Whether the plaintiff was entitled to the declaration and injunction sought for in the suit?
6. On the first point, the lower appellate Court held that the assignment is bona fide and for valuable consideration, and on the second point, that the suit for declaration of title arid injunction is not barred by the provisions of the Tamil Nadu Act XXVI of 1948. This second appeal filed by the State against concurrent decisions of both the Courts below has been admitted on the following substantial question of law:
Whether the Courts below were right in decreeing the suit when the assignment itself was made subsequent to the Estates Abolition and Conversion into Ryotwari Act?
7. From the pleading set out above, it is seen that the substantial controversies between the parties in the second appeal are : (1) whether the suit properties were ryoti lands or forest lands on 31st December, 1945, when the Zamindar assigned the lands in favour of the plaintiff, and if the lands are forest lands, is the assignment from the Zamindar valid; and (2) whether the suit is barred by the provisions of the Tamil Nadu Act XXVI of 1948. Though the assignment in question was attacked as not being bona fide the truth of the assignment has not been questioned before me by the appellant.
8. On the first question, the trial Court had expressed the view that the lands at the time of the assignment had been classified as 'Zamin Tharisu Punjai', that even the order of assignment described the lands as 'Zamin Tharisu Nilam', that though the lands were full of thorns and shrubs, they could be cultivated after reclamation, that the lands being cultivable lands, they should be taken to be ryoti lands, and that the lands being ryoti, the Zamindar had the power to assign the lands to the plaintiff. The lower appellate Court has also agreed with the trial Court and held that the lands assigned were cultivable lands, and therefore the Zamindar could validly assign the same. The concurrent view taken by the Courts below as to the nature of the lands has been challenged by the appellant. In this connection, the appellant also puts forward a plea that once the character of the lands has been decided by the authorities constituted under the Tamil Nadu Act XXVI of 1948, the civil Court cannot go behind that classification and hold that the lands are of a different nature and character.
9. On the second question regarding the jurisdiction of the civil Court to entertain the suit, both the trial Court and the appellate Court have held that the suit as framed being one for declaration of title and for injunction is not barred by the provisions of Tamil Nadu Act XXVI of 1948. That view also, hat) been challenged by the appellant.
10. Thus the first question that arises for consideration in this appeal, is whether the suit properties are ryoti in character as held by the Courts below. The suit properties situated in Sirumalai Village, Nilakottai Taluk and classified as 'Zamin Tharisu' originally belonged to one K. Rangasami Naicker, Zamindar of Ammayanaickenur, Dindigul Taluk. Under Exhibit B-1 dated 31st December, 1945, he had assigned an extent of 851 'kulis' (502.09 acres) after collecting 'nazir' amount at the rate of one 'panam' per 'kuli'. After the assignment, patta bearing No. 401 was issued to him, he was paying kist for his 'kudiwaram' interest not only to the erstwhile Zamindar but also to the defendant after the estate was taken over on 3rd January, 1951, under the provisions of Tamil Nadu Act XXVI of 1948. The extent assigned was stated to be 502.09 acres within four stated boundaries. At the time of survey and settlement, the area within the four boundaries mentioned in the assignment deed was found to be 704.88 acres. At the time of tjhe assignment, the lands had been registered as dry waste and in the Zamin records they were shown as 'Zamin Tharisu'. The assignment deed itself refers to the suit property as a jungle full of thorns, shrubs, etc. The relevant recital in the document in Exhi bit B-1 is as follows:
The recitals in Exhibit B-1 also make it clear that no portion of the property assigned was actually being cultivated. It is in evidence that after the assignment, a small portion of the extent assigned has been brought under cultivation after reclamation, but not the entire extent. Except the extent shown to have been cultivated, the rest of the extent remains still a jungle,. After the estate was taken over and during the survey and settlement, the suit lands had been classified as forest lands and a notification under the Forest Act has also been issued declaring the lands as forest lands.
11. Section 3(15) of the Madras Estates Land Act, 1908, defines a ryot as follows:
Ryot means a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it. (Explanation:--A person who has occupied royti land for a continuous period of twelve years shall be deemed to be a ryot for all the purposes of this Act).
12. Section 3(16) which gives definition of 'ryoti land' is as follows:
Ryoti land means cultivable land in an estate other than private land but does not include,
(b) beds and bunds of tanks and of supply drainage, surplus or irrigation channels;
threshing floor, cattle-stands, village sites, and other lands situated in any estate which are set apart for the common use of the villagers;
(b) lands granted on service tenure either free of rent or on favourable rates of rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists.
13. The definition of 'ryoti land' will include all cultivable lands in an estate other than private land. 'Forest land' has been defined under Section 3(b) of the Madras Estates Communal, Forest and Private Lands (Prohibition of Alienation) Act, 1947, as under:
Forest land includes any waste land containing trees and shrubs, pasture land and any other class of land declared by the (State) Government to be forest land by notification in the Fort St. George Gazette
14. It is the case of the appellant that the lands having been classified and shown as 'Zamin Tharisu' 'Zamin waste' even at the time of the assignment of the lands and the lands being full of trees, shrubs and thorns they may prima jack fall within the above definition of 'forest land'. The assignment deed itself proceeds on the basis that the waste lands which are full, of shrubs, stones, mounds and thorns are being alienated because it will involve huge expenditure for reclamation so as to bring them for cultivation, and the landholder is not in a position to do it. The lands were not actually cultivable on the date of the assignment. Having regard to the nature and description of the lands in the assignment deed Exhibit B-1, they will fall within the definition of 'forest land', on the date of assignment. The fact that after some reclamation, a portion of the lands has been subsequently brought under cultivation cannot mean that on the date of the assignment, the lands were cultivable. According to the learned Counsel for the respondents, a land which could be brought under cultivation after making reclamation should be taken to be cultivable land and that merely because the land was originally shown as 'Tharisu' or classified as 'waste land', it cannot be taken to be non-ryoti. Apart from the intrinsic evidence found in Exhibit B-1 that the lands assigned thereunder were waste lands with full of trees, shrubs, thorns, stones and mounds requiring a huge amount of money and labour for reclamation, D.W. 1 who is a Forester has deposed that the suit land is a forest, and there are valuable trees such as 'Vekkali', 'Vengai', Savukkai', 'Kadukkai1, Nelli', 'Thethegathi', etc. However, this evidence has been ignored by the trial Court on the ground that even though there may be valuable trees as pointed out by D.W. 1, there is no evidence of thick forest. Page 58 of the 'A' Register for Sirumalai village has been marked as Exhibit B-19, and it shows that Section No. 869 has been classified as. This also has been ignored by the trial Court on the ground that the mere use of the word in the register in the absence of any other acceptable evidence would not conclusively show that the suit property, Section No. 869, is a forest or forest land.
15. Having regard to the fact that though the Madras Estates Land Act or the Madras Estates Abolition and Conversion into Ryotwari Act, have not defined 'forest land', the definition of 'forest land' in Tamil Nadu Act XIV of 1947 which preceded Madras Act XXVI of 1948, can be looked into. Having regard to the object of the Madras Act XIV of 1947, which is to prevent the alienation of communal, forest and private land in an estate pending the abolition of Zamindaries, the definition of 'forest land' occurring therein can be taken to find out what are the lands the erstwhile Zamindar could not alienate. That definition includes any waste land containing trees and shrubs. In this case the assignment deed Exhibit B-1 would clearly show that the lands assigned are waste lands full of shrubs trees, thorns, stones and mounds. The document Exhibit B-1 also indicates that the motive for assignment is the huge expenditure involved for making them cultivable. Thus, as on the date of the assignment Exhibit B-1, the lands were hilly tracts full of trees, shrubs, thorns, stones and mounds and were not as such cultivable. It is true that after spending considerable amount for reclamation, they could be made cultivable. Hut if that were to be the test, then even the bed of tank, or bed of sea could be reclaimed and made cultivable after incurring a huge expenditure. On that ground we cannot say a tank bed or sea bed is a cultivable land. The trial Court has proceeded on the basis that the State Government has not shown the lands as forest lands in the revenue accounts. But Exhibit B-16 has been produced by the defendant which is a copy of the communication emanating from the Special Deputy Collector (Forest Settlement), Madurai, dated 31st May, 1971, showing that the lands have been classified as forest lands. Apart from this, the 'A' Register of the village, Exhibit R-19 also shows that the land has been classified as meaning 'forest'. Apart from this, as already stated, there is intrinsic evidence in Exhibit B-1 itself that the lands assigned are meaning 'forests'. The Courts below have held without jurisdiction that much significance cannot he attached to the word occurring in Exhibit B-1. Apart from this, the admission of the authorised Manager of the first plaintiff before the Special Deputy Tahsildar, Madurai in his statement under EsAibit B-1 3 that the suit lands are not accessible even to the pedestrians and it is not possible to climb the hill and reach the lands for the purpose of cultivation or horticulture, that the lands are 7 miles away on the hill from the foot of the hill, would clearly indicate tthat the lands are forest lands covering a hill tract which cannot be approached even by pedestrians. This admission, has also been wrongly ignored by the lower Court on the ground that the admissions by themselves will not show that the property is a forest land. According to the lower Court, since the suit property relates to a large extent of land, the presence of trees and uncultivable portions will not itself take away the ryoti character of the land and make it a forest land. The trial Court, however, in making that observation overlooks the fact that no portion of the area covered by Exhibit B-1 was shown to be cultivable at the time of the assignment. It may be that after the assignment and with a view to get patta for the lands, the first plaintiff could have brought some portion of the lands under cultivation after incurring a considerable expenditure. But the relevant date for considering whether the lands were forest lands or ryoti lands was the date of assignment.
16. The ryoti land as per the definition is a cultivable land in an estate. In Raja of Venkatagtii v. Ayyapareddi ILR(1915)Mad. 73 : 25 M.L.J. 578, a Bench of this Court had held that a cultivable land is permanently cultivable for all practical purposes and it is not land which might be occasionally cultivated. In the course of its judgment, the Bench had referred to Section 6(2) of the Madras Estates Land Act, 1908, and had observed that waste land let under a contract for pasturaging cattle in any reserve forest or for cultivation of agricultural crops cannot, by means of such pasturaging or temporary cultivation, become a ryoti land. Section 6(2) of the said Act provides that occupancy rights shall not be conferred on persons who are admitted into waste land under contract for pasturaging cattle or admitted into land reserved bona fide by the landholder for raising a garden or tope or for forest under a contract for the temporary cultivation thereof with agricultural crops. The object of Section 6(2) appears to be to prevent the landholder assigning waste lands or lands reserved for a garden or forest. In Subbaya v. Sree Raja Venkataramiah Appa-rao Bahadur : (1924)47MLJ469 it was held that to the case of waste lands in an estate which used to be usually submerged in water in rainy season and not under cultivation at all Section 163 of the Madras Estates Land Act, does not apply and the civil Courts have jurisdiction to grant mesne profits, that the fact that such land can at times be cultivated with labour and expenditure of money does not make it ryoti land within the meaning of that Act, and that when definition of ryoti land speaks of cultivable land, it means land that is ordinarily and usually cultivated and does not refer to waste land though ever waste land can at times be cultivated by expenditure of money. In Naganna Ncddu v. Pitchayya ILR(1929) Mad. 797 L.R. 56 IndAp 346 : 57 M.L.J. 654 : 30 L.W. 435 : A.I.R. 1929 P.C. 249, a question arose whether 297 acres included in a lease before the Act of 1908 were ryoti lands within Section 3(16) of that Act although it had never been cultivated. On behalf of the Zamindar, it was contended that the entire extent was given for pasturaging and not for cultivation, and therefore, remained excluded from the patta. The Privy Council held that though the lands were not cultivated, the same could be reclaimed and brought under cultivation and as such they will fall within the definition of ryoti land. In Athmanathaswami Devastanam v. Gopalaswami : 3SCR763 , the Supreme Court while considering the question as to whether the lands in the suit were cultivable lands, observed that from the mere fact that they had not been cultivated for a long time or that they were waste lands covered with shrubs, jungle and the like, it cannot be held that they were not cultivable lands, and that the lands which can be brought under cultivation are cultivable land unless some provision of law provides for holding it otherwise in certain circumstances. The case before the Supreme Court was in respect of lands which have been allowed to be cultivated under the Grow More Food campaign and therefore the lands were taken as capable of cultivation without undue expenditure of money and labour. The test laid down by the Supreme Court in that case is that the land should be such that it could be brought under cultivation without undue expenditure of money and labour. The lands dealt with by the Privy Council in Naganna Naidu v. Pitchayya ILR(1929) Mad. 797 L.R. 56 IndAp 346 : 57 M.L.J. 654 : 30 L.W. 435 : A.I.R. 1929 P.C. 249 are waste lands that were given for pasturaging and having regard to the fact that the lands, could be brought under cultivation without much expenditure, the Court took the view that it should be taken to be cultivable land.
17. The suit lands, however, are hilly tracts full of trees, shrubs, mounds, thorns, etc. The situation of the lands is high up on the hill 7 miles from the foot of the hill and it is admittedly inaccessible even to pedestrians. Such hill tracts could not be brought under cultivation without undue expenditure of money and labour. Admittedly on the date of the assignment and when the landholder inducted the first plaintiff into possession of the lands, the lands were not cultivable lands, nor could they be made cultivable, unless a huge-expenditure of money is incurred. Having regard to the preamble to Tamil Nadu Act XIV of 1947, the purpose of the Act is to prevent the indiscriminate alienation of communal, forest and private lands in estates pending the enactment of legislation for acquiring the interest of the landholders in such-estates and introducing ryotwari settlement therein. The definition of forest land occurring in that Act definitely covers the land which is the subject-matter of assignment under Exhibit B4. Sections 4 and 6 of that Act prohibit the landholder from selling, mortgaging, converting into ryati land, leasing or otherwise assigning or altering any communal or forest land in his estate without the previous sanction of the District Collector on or after 27th June, 1947, the date on which that Act ', came into force. Though the order of assignment in favour of the first plaintiff is in the year 1945, for, the purpose of determination of the character of the land, the definition of; 'forest land' occurring in that Act is material. Though Act XIV of 1947 came into force on 27th June, 1947, Section 4(1)(3) of that Act invalidates any transaction in relation to forest land exceeding 20 acres entered into ' before 27th June, 1947.
18. 'Fprest' has also been defined in Section 2(a) of the Madras Preservation of Private Forests Act (XXVII of 1949) as waste or communal land containing trees and shrubs, pasture land and any other class of land declared by the Provincial Government to be a forest by notification. 'Forest' has been defined in the Concise Oxford Dictionary as 'Large tract covered with trees and undergrowth sometimes mixed with pasture, trees growing on, it'... Thus, the, lands covered by the assignment Exhibit B-1 clearly fall under the definition of 'forest' under the provisions of Act XIV of 1947 or under the provisions of Act XXVII of 1949 or under the common and general notion of forests. In this case, the suit lands are not situated in the plains in which case it can be said that even though the lands have been left as waste, they could be made cultivable easily without spending much expenditure. But in this case the suit lands are entirely hilly tracts situated on the hill 7 miles from the foot of the hill which is not accessible even by pedestrians and which is full of trees, shrubs, thorns, stones and mounds. It is not thus possible to hold that they are cultivable lands attracting the definition of ryoti land. If the contention of the learned Counsel for the respondents that even hilly tracts could be brought under cultivation after felling down the trees, shrubs, etc., and after reclamation, and therefore, the lands have to be taken as cultivable lands, were to be accepted, it will mean that any space on earth could be made cultivable, whether it is land, hill or sea. Even sea could be filled up and reclaimed and made cultivable after spending a huge expenditure of money and labour. For that reason it cannot be; said that sea is a cultivable land. We have to therefore hold that at the time of the assignment, the lands were not ryoti lands but were forest lands, and therefore, the landholder had no right to assign the lands. In view of the finding that the suit lands are not ryoti lands, the first plaintiff will not be entitled to get patta for the same. In this view of the matter, it is unnecessary to go into the question as to whether the suit is barred under the provisions of Madras Act XXVI of 1948 as on the finding rendered on the question of the character of the land, the suit has to necessarily fail. The second appeal is therefore allowed, and the decree and judgment of both the Courts below are set aside, and the suit shall stand dismissed with costs, throughout.