1. These are applications under Article 226 of the Constitution for the issue of writs of certiorari, to set aside the order of the Appellate Tribunal constituted under the Estates Abolition Act, confirming the orders of Assistant Settlement Officer.
2. The petitioner was the landholder entitled to what was known as the Pudur zamindari, which consisted of a number of villages. The estate vested in the Government after the Government issued the notification prescribed by Section 3 of the Abolition Act. The petitioner applied to the Assistant Settlement Officer for ryotwari pattas for various items of lands, in nine villages. Except possibly in the case of one item in Melapatti Village, all the lands for which the petitioner applied for ryotwari pattas stood registered in the accounts maintained by the landholder as poramboke lands. Two of the items were described further as nandavanams. The rest were described as topes. The topes contained either tamarind or palmyrah trees.
3. There can be no doubt that the Appellate Tribunal had jurisdiction to decide the claim, and it should be remembered that the Appellate jurisdiction was invoked by the petitioner herself. The main contention of the learned Counsel for the petitioner was that the exercise of that jurisdiction was vitiated by an error apparent on the face of the record.
4. All the three members of the Tribunal were of the opinion that the petitioner's claim for a ryotwari patta for the nandavanams failed. The chairman and the Third Member were of the view, that the petitioner's claim for ryotwari pattas for the topes also failed. The Second Member differed from them on that point and held that the petitioner had established her claim to ryotwari pattas for these items.
5. The description of the lands for which the petitioner applied for patta as poramboke is no doubt a relevant factor, but it is by no means a conclusive factor in deciding the question at issue, was the petitioner entitled to a ryotwari patta? That title to the poramboke lands within the ambit of an estate also vested in the landholder can no longer admit of any doubt. In Secretary of State v. Krishna Rao (1945) 2 M.L.J. 352 : L.R. 73 IndAp 211 : I.L.R. (1946) Mad. 225, their Lordships of the Privy Council pointed out:
Since the decision of this Board in what is usually called the Urlam case (1917) 33 M.L.J. 144 : L.R. 44 IndAp 166 :I.L.R. 40 Mad. 886, there can no longer be any question but that a grant of the proprietary interest includes the grantor's rights in tank, river and channel poramboke, and it is unnecessary to consider whah effect, if any, such a grant has on what is called communal poramboke, such as burning grounds, threshing floors and the like.
6. As I pointed out, for these communal porambokes, a specific provision has been made in the Estates Land Act under Section 3(16), Section 20 and Section 20-A among others.
7. The learned Counsel for the petitioner further referred to the Province of Madras v. Sri Vedaranyeswaraswami Devasthanam : (1949)2MLJ454 , and the Province of Madras v. Arunachalam Chettiar (1951) 1 M.L.J. 354, where the principles laid down in Krishna Rao's case (1945) 2 M.L.J. 352 : L.R. 73 IndAp 211 : I.L.R. (1946) Mad. 225, were followed.
8. Proprietary interest in what has been described as poramboke lands in an estate, of course, does not conclude the question, whether the petitioner is entitled to a ryotwari patta for any of the lands so described. Since the right to a ryotwari patta in the quondam estates which were abolished by Act XXVI of 1948 is itself a creature of that statute, the right to ryotwari patta has to be determined in accordance with the provisions of that Act, principally Section 12(a). The alternative claim in this case was based upon the provisions of Section 12(b)(iii) of the Abolition Act. Obviously the lands that fell within the scope of Section 3(16)(a) or (b) of the Estates Land Act cannot come within the ambit of the provisions of Section 12(a) or Section 12(b)(iii) of the Abolition Act.
9. I have said enough to indicate that the description of a given piece of land as poramboke may not conclude the question at issue. The Tribunal adverted to the names of some of the topes. That again may have little evidentiary value, though, of course, it was wholly for the Tribunal to decide what was the evidentiary value of such a description. Whether such a description showed that it was a ryoti land or that it was land reserved for communal purposes either under Section 3(16)(a) or Section 3(16)(b) of the Act was What the Tribunal had to consider. It was the use to which the land was put, not its name that should matter. That I am afraid they did not consider.
10. Most of the lands, as I have pointed out, were topes on ground. There was certainly evidence to show, and that was considered by the Tribunal, that in the partition in the landholder's family in 1898 all these topes were treated as properties of the landholder available for partition. All the same, if a claim was based upon Section 12(a) of the Abolition Act, what the petitioner had to prove was that these lands were private lands within the meaning of Section 3(10)(a) of the Estates Land Act. If the claim came under Section 12(b)(iii) of the Abolition Act and fell outside the scope of Section 3(16) of the Estates Land Act, what the petitioner had to prove was that the land had been abandoned_or relinquished by the ryot, and further that the petitioner had cultivated the lands, from 1st July, 1939 and had been in continuous possession of such lands from the date. Reverting to the claim based on Section 12(a) of the Abolition Act, the tests for deciding what constitutes private lands within the meaning of Section 3(10) of the Estates Land Act were formulated by a Full Bench of this Court in Periannan v. A.S. Amman Kovil (1952) 1 M.L.J. 71. It was with reference to these tests that the Appellate Tribunal had to consider the claim for each specified land without mixing up the evidence for and against one claim with the evidence for and against another. That the Tribunal failed to do.
11. The tests laid down in Periannan's case (1952) 1 M.L.J. 71, were:
(1) if the land is known to be ryoti land at its inception, the only mode by which it could be converted into private land is by proof of continuous cultivation for a period of 12 years prior to the commencement of the Estates Land Act. In the present case it was no one's claim that the lands were ryoti lands. They have all along been shown as poramboke lands, which by itself should normally exclude the possibility of their ever having been ryoti lands as defined by the Estates Land Act. (2) Even if the nature of the land is not known, continuous cultivation for the required period of 12 years before the commencement of the Act would conclusively establish that the land is private land. Cultivation, it is now well settled, also includes horticulture. (3) If there is no proof of cultivation for a continuous period of 12 years before the commencement of the Act, the land may be proved to be private land by other methods, provided the land was not shown to be once ryoti. As I said, it should be difficult to sustain any claim, even had one been put forward and it was not-that any of these lands was at any time ryoti land. So what the Tribunal had to consider was that, even if there was no proof of cultivation for a continuous period of 12 years, the land could be proved to be private land by other methods. Some of the other methods were indicated in the further propositions laid down by the Full Bench. (4) Cultivation of the lands or leasing of the lands under short terms may be one mode of proof. (5) An intention to cultivate or resume for cultivation, is also a test to decide that the land is private land, and such intention may be established by any other means not necessarily by cultivation and by cultivation alone. (6) The essence of private land is continuous course of conduct on the part of the landholder asserting and acting on the footing that he is the absolute owner thereof and recognition and acceptance by the tenants that the landholder has absolute right in the land. It is principally tests 4, 5 and 6 that may arise for consideration in this case. (7) Mere proof that the landholder is the owner of both the warams is not sufficient to prove that the land is private land. No question of waram as such could arise in the case of lands registered as poramboke, but the fact, that the full proprietary interest even in poramboke lands, leaving out of consideration, those that fell within the scope of Section 3(16) of the Estates Land Act, vests in the landholder, may be a relevant factor.
12. None of the tests referred to above was really considered with reference to the evidence on record by the Appellate Tribunal, that is, relevant factors which the Tribunal had to consider were not considered by it. I have already pointed out that by treating the evidence for and against one or more items of lands as concluding the nature of another piece of land was really taking into account irrelevant factors.
13. Since the exercise of the jurisdiction vested in the Tribunal has been vitiated, and this is an error apparent on the face of the record in the circumstances of this case, the petitioner is entitled to the writs asked for in each of these petitions.
14. The learned Government Pleader urged that, though the Tribunal did not advert to all the relevant factors with reference to each claim of the petitioner, since the order of the Tribunal was one confirming that of the Assistant Settlement Officer, the Court should decline to grant the relief asked for by the petitioner, if there was evidence on record to sustain the finding of the Tribunal, that the petitioner was not entitled to a ryotwari patta, either under Section 12(a) or Section 12(b)(iii) of the Abolition Act. Certainly, it is not within my jurisdiction to canvass the sufficiency of the evidence on record. That, as I said, was wholly within the jurisdiction of the Tribunal. What I have endeavoured to show is that the Tribunal did not consider each of the claims of the petitioner as it should have done. Though the general principles applicable to the claims of the petitioner could be dealt with by a common order, the evidence with reference to each claim may have to be discussed separately, and all the relevant factors with reference to each such claim, including the general principles applicable thereto, may have to be considered in the exercise of the jurisdiction vested in the Appellate Tribunal.
15. Since the order of the Tribunal is set aside, it means the Tribunal will have to dispose of the appeals preferred to it afresh, taking into account the observations in this order.
16. These petitions are allowed. The rules are made absolute. No order as to costs.
17. Should any party apply to the Tribunal for an opportunity to offer further evidence, the disposal of such an application is totally within the jurisdiction and discretion of the Tribunal.