S. Natarajan, J.
1. The respondents' case that their lands in R.S. Nos. 41/4, 82/5 and 82/6 are exempt from the operation of the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961, hereinafter referred to as the Act, on the ground that they are orchards, was not accepted by the Authorised Officer, Land Reforms, Mayuram. But, on appeal, the Land Tribunal (The Subordinate Judge of Mayuram) accepted the contention of the respondents and allowed their appeal. It is to canvass the correctness of the judgment of the Tribunal that the State of Madras represented by the Collector of Thanjavur has preferred this revision petition.
2. The learned Additional Government Pleader raises two contention in support of the petitioner's case that the order of the Tribunal is wrong and erroneous. It is firstly argued that the respondents have not adduced proof to show that the lands in question continued to be orchards from the date of their conversion as orchards on or before 1st day of July, 1959, which is the stipulated date under Section 73 (vii) of the Act and that, without such proof being adduced, the respondents are not entitled to claim exemption from the operation of the Act. The second ground that is urged is that the growing of plantains will not constitute an orchard as defined in Section 3 (32) of the Act.
3. In support of the first contention it is pointed out that, though the adangal extract for Fasli 1368 makes reference to plantain cultivation in R.S. No. 41, the respondents have not produced the adangal extract for the subsequent faslis and that the adangal extract produced for Fasli (sic) evidencing plantain cultivation in all the three survey numbers cannot be taker; to mean that in between 1968 and Fasli 1376 plantain cultivation had been done in all the three survey numbers without break. The learned Counsel for the respondents refutes the contention of the learned Additional Government Pleader in this behalf and points out that according to the evidence of P.W. 1, the karnam, the respondents had been raising plantain crops in the three survey numbers for the last twenty years. Apart from that, the further contention of the learned Counsel for the respondents is that the proviso to Section 73(vii) does not stipulate that the landowner claiming exemption under that section should give proof that there has been continuous planting of plantains in the land for which exemption is sought for, from a period prior to 1st July, 1959 to such period when the Act came into force. Prima facie, the contention of the learned Counsel for the respondents in this behalf does not appear to be sound.
Section 73 (vii) and the proviso read as follows:
Except as otherwise provided in Sub-sections (2) and (3) of Section 5 and in Section 6, nothing contained in this Act shall apply to (vii) lands converted on or before the 1st day of July, 1959, into orchards or topes or arecanut gardens, whether or not such lands are continuous or scattered; Provided that such lands shall be exempt only so long as they continue to be orchards, topes or arecanut gardens.
A reading of the section and the proviso lend support to the contentions of the learned Additional Government Pleader that in order to derive the benefit conferred by Section 73 (vii), the applicant must not only prove that the land in respect of which exemption is sought for was converted on or before 1st day of July, 1959 into an orchard or tope or arecanut garden, but that he must further show that from the date of conversion, the said land had continued to be maintained as an orchard, tope or arecanut garden till such time the exemption is asked for. The oral evidence of the karnam, without documentary evidence in the shape of adangal extracts, cannot establish the case of the respondents that the three items of lands continued to be orchards ever since the date of their conversion till the date of the application for exemption. of the lands under Section 73 (vii). This controversy need not however be gone into in great detail in this case on account of the fact that on another aspect of the matter, the petitioner's contentions clearly deserve to be accepted.
4. As I have already stated above, the second contention of the learned Additional Government Pleader is that the raising of plantain crops will not render the lands where such crops are raised orchards and that unless the said lands could be classified either as orchards, or topes or arecanut gardens, the respondents will not be entitled to claim the benefit of the exemption provided under Section 73 (vii). In order to appreciate the contention of the learned Additional Government Pleader, it is necessary to make reference to the definition of an orchard occurring in Section 3 (32) of the Act. The definition is as follows:
Orchard means an enclosure or assemblage of fruit or nut-bearing trees, constituting the main crop therein, whether of spontaneous or artificial growth, but does not include trees on such bunds as are not within or adjunct to such enclosure or assemblage.
The question as to whether plantain is a. tree or not arose for consideration in Akshvanathaswami Devasthanam v. Ramaswami Reddiar (1971) 84 L.W. 335. Ismail, J., after an elaborate consideration of the matter has held that plantain is not a tree and that botanically, as contained in the text books and encyclopaedias, and according to the meaning given in the various dictionaries a plantain is not a tree and that strictly speaking it is only a large herb and not a tree at all and is a tree, if at all, only in a loose sense. It is no doubt true that the case which arose for consideration in the above decision was one under the Madras Public Trusts (Regulation of Administration of Agricultural Lands) Act (LVII of 1961). But that does not make any difference in the matter. The definition of 'orchard' in the said Act is identically the same as that found in Section 3 (32) of the Act concerned in this revision except for the small difference that in. Act LVII of 1961, the additional words 'and includes nandavanams' find place in the definition of 'orchard'. The decision of Ismail, J., has been followed by Sadasivam, J., in Govindasami Padayachi V. Suryanarayanaswami (1971) 84 L.W. 369 which was also a case under Act LVII of 1961. Sadasivam, J., has held that plantains are not trees and hence the exemption under Section 51 (iv) of that Act could not be invoked on the ground that the land under cultivation of plantains will constitute orchards. He has further held that on the same reasoning it is not possible to hold that lands in which plantain crops are raised are topes.
5. I am in respectful agreement with the view expressed in these two decisions viz., that plantain is not a fruit-bearing tree as contemplated in Section 3 (32) of the Act. Once it is held that plantain is not a fruit-bearing tree it necessarily follows that the enclosure wherein the crop is raised will not be an orchard and once it is not held to be an orchard, the respondents are not entitled to claim exemption from the provisions of the Act under the cover of Section 73 (vii).
6. The Tribunal has not gone into this aspect of the matter. On the other hand it has taken it for granted that plants which yield plantain fruits are undoubtedly plantain trees and, on that wrong surmise, has upheld the contention of the respondents that the three survey numbers in respect of which exemption sought for from the provisions of the Act are orchards.
7. The revision therefore succeeds and is allowed. The order of the Tribunal will stand set aside and the order of the Authorised Officer will stand restored. There will be no order as to costs.