PETITIONER: T. S. PL. P. CHIDAMBARAM CHETTIAR Vs. RESPONDENT: T. K. B. SANTHANARAMASWAMI ODAYAR & ORS. DATE OF JUDGMENT: 10/01/1968 BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. BHARGAVA, VISHISHTHA CITATION: 1968 AIR 1005 1968 SCR (2) 754 CITATOR INFO : RF 1976 SC1066 (5) F 1991 SC 604 (19,30,34) ACT: Madras Estates Land Act 1 of 1908, ss. 3(2)(d), 3(10)(b) and 3(16)-Lands in Orathur Padugai in Tanjore Palace Estate whether fall under definition of 'estate' in s. 3(2) (d)- Tanjore Palace Estate whether created by grant-Orathur Padugai whether a whole village or part of a village- Distinction between 'private land' as defined in s. 3(10)(b) and 'ryoti land' as defined in s. 3(16). HEADNOTE: When the Raja of Tanjore died in 1855 without leaving male issue the East India Company took possession of all his properties including his private property. However on a memorial being presented by the senior widow of the late Raja, the Government of India in 1862 "sanctioned the relinquishment, of the whole of the landed property of the Tanjore Raja in favour of the heirs of the late Raja." The Tanjore Palace Estate thus came into existence. In 1948 the appellant purchased certain lands situate in Orathur Padugai which was part of the aforesaid Tanjore Palace Estate, and thereafter instituted suits for possession of these lands from various defendants. The trial court dismissed the suits on the ground that the lands were situated in an 'estate under s. 3(2)(d) of the Madras Estates Lands Act 1 of 1908 and they were 'ryoti lands' as defined in s. 3(16) in which the defendants had acquired occupancy rights. The Madras High Court affirmed the decree, whereupon the appellant came to this Court. it was contended on behalf of the appellant that (i) the lands did not form an 'estate' under s. 3 (2) (d) of the aforesaid Act because the restora- tion of the land to the widows of the Raja of Tanjore did not amount -to a fresh grant but only a restoration of the status quo ante; (ii) that Orathur Padugai was not a whole village as required by the definition of 'estate'; (iii) the widows of the Raja enjoyed both the 'warams' and the lands purchased by the appellant were 'private lands' in s.. 3(10)(b) so that the defendants did not have any occupancy rights therein. HELD: (i) The relinquishment by the Government of India in favour of the widows of the Raja in 1862 was a fresh grant as already held in several cases. In view of the authorities it could no longer be questioned that the Tanjore Palace state was an 'estate' within the meaning of s. 3(2)(d) of the Madras Estates Lands Act. [759 F-760 B] Jijoiamba Bayi Saiba v. Kamakshi Bayi Saiba, 3 M.H. C.R. 424, Sundaram Ayyar v. Ramachandra Ayyar, I.L.R. 40 Mad. 3891, Maharaja of Kolhapur v. Sondaram Iyer, I.L.R. 48 Mad. 1, Sundaram v. Deva Sankara, A.I.R. 1918 Mad. 428 and T. R, Bhavani Shankar Joshi v. Somasunakra Moopanar, [1963] 2 S.C.R. 421, relied on. Chota Raja. Saheb Mahitai v. Suddaram Iyer, 63 I.A. 224, referred to. (ii) There was sufficient material on the record to show that at least since 1830 onwards Orathur Padugai was a whole village and therefore an 'estate' within the meaning of the Act. [762 C] (iii) The lands in suit were 'ryoti lands' and not 'private lands'. The definition in s. 3(10) read as a whole indicates clearly that the ordinary test for 'private land' is the test of retention by the landholder 7 5 5 for his own personal use and cultivation by him or 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 is not' the intention or the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the warams in the lands and has been letting them out on short ]cases. 1765 H-766 B) In the present case there was no proof that the lands were ever directly cultivated by the landholder. The High Court had found that the same tenants continued to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease rights did not necessarily deprive the tenants of the occupancy rights which they were enjoying. The appellant had not been able to adduce sufficient evidence to rebut the presumption under s. 185 of the Act that the lands in the inam village are not private lands. [766 C-G] Yerlagadda Malikarjuna Prasad Nayudu v. Somayya, I.L.R. 42 Mad. 400 (P.C.), referred to with approval. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 54 to
65, 67 and 69 to 71 of 1963.
Appeals from the judgment and decree dated January 10, 1956
of the Madras High Court in Appeal Suit Nos. 223 and 224 of
1951, and 264 to 273, 275 and 277 to 279 of 1952.
R. Kesava Iyengar, R. Thiagarajan and R. Ganapathy Iyer,
for the appellants (in all the appeals).
Bishan Narain and O. P. Malhotra, for respondent No. 1 (in
C.A. Nos. 54 and 55 of 1963).
M. R. K. Pillai, for respondent No. 2 (in C.A. No. 55 of
1963) and for the respondents (in C.As. Nos. 56 to 65, 67 to
71 of 1963).
The Judgment of the Court was delivered by
Ramaswami, J. These appeals are brought against the judgment
and decree in A.S. nos. 223 and 224 of 1951, 264 to 273 of
1952, 275 of 1952 and 277 to 279 of 1952 of the Madras High
Court dated January _10, 1956 affirming the judgment and
decree in O.S. nos. 75, 77 to 81 of 1949 and 19 to 22, 24 to
26, 28 & 30 to 31 of 1950 of the Subordinate Judge, Tanjore.
The appellant instituted the above-mentioned suits for re-
covery of possession from the respective defendants of the
disputed lands and for payment of damages at the rate of Rs.
501per annum per acre. The case of the appellant was that
the disputed lands which were purchased by him by a sale
deed dated November 11, 1948 (Ex. A-145) are situated in
Orathur Padugai which is attached to Pannimangalam, one of
the villages comprised in what is known as the “Tanjore
Palace Estate”, that
756
the said lands are not situated in an estate as defined by
the Madras Estates Land Act 1 of 1908 (hereinafter referred
to as the ‘Act’) and in any event the said lands are
‘private lands’ of the appellant and not ‘ryoti lands’ as
defined in the Act and the various defendants are
trespassers in unlawful occupation of the lands and had no
right to continue in possession and were therefore liable to
ejectment. The appellant also claimed that the defendants were
liable to pay damages at the rate of Rs. 501-
per, annum per acre in respect of the lands in their
unlawful
occupation. The defence in all the suits was
substantially the same. it was contended by the
defendants that the disputed
lands are situated in an estate within the meaning of s. 3
(2) (d) of the Act, that the lands are ‘ryoti lands’ in
which they have permanent right of occupancy and that they
are not “private lands” as. alleged by the appellant and the
civil court had therefore no jurisdiction to entertain the
suits and the Revenue Courts alone had jurisdiction. By his
two judgments dated October -‘)1, 1950 and February 2, 1951,
the Subordinate Judge, Tanjore dismissed the suits, holding
that the lands were situated in an estate and were ‘ryoti
lands’ in which the defendants were entitled to occupancy
rights. The appellant took the matter in appeal to the
Madras High Court which affirmed the decision of the trial
court and dismissed all the appeals.
The two principal questions which are presented for deter-
mination in these appeals are : (1) whether the suit-lands
are located in an estate within the meaning of s. 3 (2) (d)
of the Act, and (2 ‘ ) if the answer to the first question
is in the affirmative, whether the suit-lands are ‘private
lands’ or ‘ryoti lands’ as defined in the Act.
Section 3 (2) (d) of the Act, as originally
enacted states
“3. In this Act. unless there is something
repugnant in the subject or context
(2) ‘Estate’ means-
(d) any village of which the land revenue
alone has
been granted in inam to a person not owning
the kudivaram thereof, provided that the grant
has been made, confirmed or recognised by the
British Government, or any separated part of
such village;”
The section was amended by the Madras Estates Land (Third
Amendment) Act 18 of 1936 to the following effect
757
” (d) any inam village of which the grant has
been made, confirmed or recognised by the
British Government, notwithstanding that
subsequent to the grant, the village has been
partitioned among the grantees, or the
successors in title of the grantee or
grantees.
Explanation (1):
Where an inam village is resumed by the
Government,it shall cease to be an estate;
but, if any village so resumed is subsequently
regranted by the Government as an main, it
shall, from the date of such re-grant be
regarded as an estate.
Explanation (2):
Where a portion of an inam village is resumed
by the Government, such portion shall cease to
be part of the estate, but the rest of the
village shall be deemed to be an inam village
for the purposes of this sub-clause. If the
portion so resumed or any part thereof is
subsequently regranted by the Government as an
inam, such portion or part shall, from the
date of such re-grant be regarded as forming
part of the inam village for the purposes of
this sub-clause.”
By s. 2 of the Madras Act 11 of 1945 s. 3 of
the Act was further amended as follows
“Section 2 : (1)
In sub-clause (d) of clause (2) of s. 3 of the
Madras Estates Land Act, 1908 (hereinafter
referred to as the said Act) Explanations (1)
and (2) shall be renumbered as Explanations
(2) and (3) respectively and the following
shall be inserted as Explanation (1)namely :
Explanation (1):
Where a grant as an inam is expressed to be
of a named village, the area which forms the
subject matter of the grant shall be deemed to
be an estate notwithstanding that it did not
include certain lands in the village of that
name which have already been granted on
service or other tenure or been reserved for
communal purposes :
(2)The amendment made by sub-section (1) be
deemed to have had effect as from the date on
which the Madras Estates Land (Third
Amendment) Act,
758
1936 came into force and the said Amendment
shall be read and construed accordingly for
all purposes;”
Section 3(19) of the Act has defined a
“Village” as follows
” ‘Village’ means any local area situated in
or constituting an estate which is designated
as a village in the revenue accounts and for
which the revenue, accounts are separately
maintained by one or more karnams or which is
now recognised by the State Government or may
hereafter be declared by the State Government
for the purposes of this Act to be a village,
and includes any hamlet or hamlets which may
be attached thereto.”
The history of what is known as the “Tanjore Palace Estate”
is well-known and will be found in various reported
decisions of the Judicial Committee and of the Madras High
Court : (See Jijoyiamba Bayi Saiba v. Kamakshi Bayi
Saiba(l), Sundaram Ayyar v. Ramachandra Ayyar(2), Maharaja
of Kolhapur v. Sundaram Iyer (3) and Chota Raja Saheb
Mohitai v. Sundram Iyer(4). In 1799, Serfoji, the then Raja
of Tanjore, surrendered his territory into the hands of the
East India Company, but he was allowed to retain possession
of certain villages and lands which constituted his private
property. When his son the last Raja died in 1855 without
leaving male issue, the East India Company took possession
of all his properties including his private property.
Thereupon the senior widow, Kamachee Boye Sababa filed a
Bill on the Enquiry Side of the Supreme Court of Madras, and
obtained a decree that the seizure of the private properties
was wrong. On appeal by the Secretary of State in Council
of India, the Privy Council reversed the decree, and ordered
the dismissal of the Bill. Thereafter, a memorial was
submitted to the Queen and in 1862 the Government of India
which had succeeded the East India Company “sanctioned the
relinquishment of the whole of the landed property of the
Tanjore Raj in favour of the heirs of the late Raja”. Under
instructions from the Government of India, the Government of
Madras, on August 21, 1862, passed an order the material
part of which is as follows :
“In Col. Durand’s letter above recorded the
Government of India have furnished their
instructions with reference to the disposal of
the landed property of the Tanjore Raj
regarding which this Government addressed them
under date the 17th May last. Their decision
(1) 3 M.H.C.R. 424.
(2) I.L.R. 40 Mad. 389.
(3) I.L.R. 48 Mad. 1. (4)
63 I.A. 224.
759
is to the effect, that ‘since it is doubtful
whether the lands in question can be legally
dealt with as State property, and since the
plea in equity and policy, for treating them
as the private property of the Raja is so
strong that it commands the unanimous support
of the members of the Madras Government,’ the
whole of the lands are to be relinquished in
favour of the heirs of the late Raja (page
228).”
The Tan ore Palace Estate came into being as a result of
this grant.
The question in these appeals is whether the property invol-
ved in the suits being a part of the Tanjore Palace Estate
can be considered to be an “estate” within the meaning of
the term in the Act. It was conceded by the Counsel for the
appellant that if it was part of an inam it would be an
,estate’ within the meaning of that Act. It was, however,
contended that the manner in which the property reverted to
the widows of the Raja in 1862 after an act of State did not
show that the estate was freshly granted but was restored to
the widows who enjoyed both the warams, in the same way as
the warams were enjoyed before. To -put it differently, the
argument was that the effect of restoration or re-
linquishment was only the undoing of the wrong and therefore
if the villages were the private properties of the Raja at
the time of the seizure then the same character is
maintained when they were handed back to his widow. The
contention was that what actually happened in 1862 was the
restoration of the status quo ante rather than a fresh grant
by the British Government. The argument is not a new one
but has been raised before and rejected in a number of
authorities. In Jijoyiama Bayi Saiba v. Kamakshi Bayi
Saiba(1) it was held by the Madras High Court that the
Government Order, 1862 was a grant of grace and favour to
persons who had forfeited all claims to the personal
properties of the Rajah by the act of State and was not a
revival of any antecedent rights which they might have bad.
A similar opinion of the grant was expressed in a Full Bench
case of the Madras High Court in Sundaram Ayyar v.
Ramachandra Ayyar(2) But in Maharaja of Kolhapur v. Sundaram
Iyer(3), Spencer, O.C.J., appeared to doubt the decision of
Scotland, C.J., in Jijoyiamba Bayi Saiba v. Kamakshi Bayi
Saiba(l) that there was a grant of grace and favour in 1862.
A similar view was taken in Sundaram v. Deva Sankara(4), but
these cases have been subsequently ex-
(1) 3 M.H.C.R. 424.
(3) I.I.R. 48 mad. 1.
(2) I.L.R. 40 Mad. 389.
(4) A.I.R. 1918 Mad. 428.
760
plained or not accepted on this point. In T.R. Bhavani
Shankar Joshi v. Somasundra Moopanar(1), it was held by this
Court that the act of State having made no distinction
between the private and public properties of the Rajah the
private properties were lost by the Act of State leaving no
right outstanding in the existing claimants. The Government
Order, 1862 was therefore a fresh grant due to the bounty of
the Government and not because of any antecedent rights in
the grantees. It was pointed out that the words
“relinquished” or “restored” in the Government Order did not
have the legal effect of reviving any such right because no
rights survived the act of State. The root of title of the
grantees was the Government Order of l862 and it was
therefore held that the restoration amounted to a grant in
inam by the British Government within the meaning of the
Act. But the question whether with regard to any-particular
area what was granted in inam is a whole village or less
than a whole village is a question that has to- be decided
with reference to the facts of each particular case.
The question therefore arises whether the area in question,
viz., Orathur Padugai, constitutes a whole village and
therefore an estate within the meaning of s. 3 (2) (d) of
the Act. It was contended for the appellant that the suit-
lands were not comprised in a whole inam village. The
contention was rejected by both the lower courts which
concurrently held that the lands were located in Orathur
Padugai, a whole village by itself or a named village and
therefore an estate within the meaning of the Act. It was
argued on behalf of the appellant that the finding of the
lower courts is vitiated in law because it is based on no
evidence. In our opinion, there is no justification for
this argument. On behalf of the respondents reference was
made to Ex. A-64, Pannimangalam Vattam Jamabandhi Account
individual-war, Fasli 1296, which shows in column no. 3
Orathur Padugai as a village . Similarly, in Ex. A-78(a),
Cess account for Pannimangalam Vattam and Ex. A-79, the
Village war Jamabandhi Account Fasli 1309 Orathur Padugai
village is shown as a whole village. Exhibit A-82, Village
war Jamabandhi Individual War, Fasli 1310, Ex. A-84,
Jamabandhi Ghoshpara for the village, Fasli 1311 and Exs.
A-153 to A-157 all mention Orathur Padugai as a village.
All the leases, lease-auctions and receipts given for
payment of rent speak of Orathur Padugai as a separate
village. Even the sale deeds, Exs. B-6, B-31, B-32 and B-
33 contain a recital of Orathur Padugai as a separate
village. It is manifest therefore that there is sufficient
material to show that at least since 1830 onwards Orathur
Padugai is a whole village. On behalf of the appellant
reference was made
(1) [1963] 2 S C.R. 421.
761
to Ex. A-128 and Ex. A-129 dated April 6, 1800 and July 5,
1800. Exhibit A-128 is a letter from the President, Tanjore
to the Secretary to the Government of Madras in which there
is a reference to Pannimungalam. It is stated therein ‘that
“the fields of Pannymungalam to the westward of Tanjore
which from time immemorial have been reserved for the
pasture of the circar cow do remain in the Raja’s
possession. There is neither village nor cultivation on
these lands”. In answer to this letter there is a
communication from the Chief Secretary to the Government to
the Resident, Tanjore, Ex. A-129. In para 5 of this letter
it is stated: “The fields of Pucanymangalam containing
neither village nor cultivation shall remain in the hands of
Rajah for the pasturage of His Excellency’s cows.” Much
reliance was placed by Counsel for the appellant on these
two documents, but the High Court has rightly pointed out
that the identity of the lands referred to in Exs. A-128
and A-129 is doubtful. The lands in suit ate situated at
least 30 miles south-east of Tanjore town in Mannaroudi
taluk but in Exs. A-128 and A-129 the lands are described
as westward of Tanjore. That there was Orathur village in
existence even as early as 1830 is clear from Ex. A-151
because in describing certain boundaries of another village
it is mentioned as to the north of assessed Orathur village
nadappu karai (bund pathway). Exhibit A-4 of 1868 is a
Debit and Credit Balance account relating to Orathur Padugai
attached to Mukasa Pannimangalam Thattimal. It is clear
from this Exhibit that the entire village except the waste
land was assessed. From Exhibit A-5 dated September 4,
1870, it appears that the punja lands in Orathur village
were taken on lease from the Collector of Tanjore who was
the receiver and manager of the estate of the Rajah of
Tanjore for a period of 5 years on payment of a total sum of
Rs. 122/9/3. Exhibits A-7, A-8, A-12 to A-16 and A-18 are
either Adaiyolai muchilikas or lease deeds for leasing the
lands in Orathur padugai village for a term -ranted by the
Collector of Tanjore. In all these documents the
description is that the lands are situated in Orathur
Padugai in Mokhasa Pannymangalam Thattimal. The documents
range between the years 1870 to 1875. In Ex.A-63 which is
the individual war settlement register for Pannymangalam
vattam for Fasli 1296 against column 6 it is stated that the
income in the matter of the amani cultivation of sugarcane,
etc., on 95 kullis is Rs. 4 and it is in Orathur padugai
village, Pannymangalam vattam. Exhibit A-61 is the debit
and credit balance account of Orathur padugai for Fasli
1294. Similarly, in Ex. A-64, the individual war
settlement register for Pannimangalam vattam, column 3
relating to the village of Orathur states that the Orathur
padugai is a village and the vattam is Pannimangalam. There
are similar des-
762
criptions of Orathur as a village in Ex. A-65 which is the
settlement register for Pannimangalam vattam for Fasli 1297.
Exhibit A-80 contains a similar description of Orathur
village in Pannimangalam vattam. Exhibits A-153 to A-155
and A-157 are all lease deeds between the years from 1901 to
1906 relating to lease of lands in Orathur padugai. It is
manifest that there is sufficient evidence to show that from
1868 right up to 1907 Orathur padugai was considered as a
separate village. It was contended for the respondents that
even after the passing of the Act Orathur padugai was
treated as a separate village. Reference was made in this
connection to a number of documents, Exs. A-158, A-105, A-
159, A-106, A-116, A-161, B-17,A-117 to A-120, B-18, A- 12
1, A- 1 62 and A- 1 63. In our opinion, the finding of the
lower courts that Orathur padugai is a whole village and
therefore constitutes an ‘estate’ within the meaning of the
Act is supported by proper evidence and Counsel for the
appellant is unable to make good his argument that the
finding of the lower courts is in any way defective in law.
We proceed to consider the next question arising in this
case, viz., whether the suit-lands are ‘private lands’
within the meaning of s. 3 ( 1 0) (b) of the Act which reads
as follows :
“3. In this Act, unless there is something
repugnant in the subject or context-
.
.
.
.
.
.
.
. . . . . . . . . . . . . . . . . . . . . . .
(10) ‘Private land’-
(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, kambattam, 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 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
763
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 land holder 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.”
Section 3(16) of the Act defines ‘Ryoti land’
as follows :
“Ryoti land’ means cultivable land in an
estate other than private land but does not
include–
(a) beds and bunds of tanks and of supply,
drainage, surplus or irrigation channels;
(b) threshing-floor, cattle-stands, village-
sites, and other lands situated in any estate
which are set apart for the common use of the
villagers;
(c) lands -ranted 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.”
Section 185 of the Act enacts a presumption
that land in inam village is not private land
and reads as follows :
“185. When in any suit or proceeding it
becomes necessary to determine whether any
land is the landholder’s private land, regard
shall be had–
(1) to local custom,
(2) in the case of an estate within the
meaning of sub-
clause (a), (b), (c), or (e) of clause (2) of
section 3, to the question whether the land
was before the first day of July 1898,
specifically let as private land, and
(3) to any other evidence that may be produced
Provided that the land shall be presumed not
to be private land until the contrary is
proved:
764
Provided further that in the case of an estate
within the meaning of sub-clause (d) of clause
(2) of section 3-
(i) any expression in a lease, patta or the
like, executed or issued on or after the first
day of July, 1918 to the effect or implying
that a tenant has no right of occupancy or
that his right of occupancy is limited or
restricted in any manner, shall not be
admissible in evidence for the purpose of
proving that the land concerned was private
land at the commencement of the tenancy; and
(ii) any such expression in a lease, patta or
the like, executed or issued before the first
day of July 1918, shall not by itself be
sufficient for the purpose of proving that the
land concerned was private land at the com-
mencement of the tenancy.”
Section 6 is to the following effect
“6. (1) Subject to the provisions of this Act,
every ryot now in possession or who shall
hereafter be admitted by a landholder to
possession of ryoti land situated in the
estate of such landholder shall have a
permanent right of occupancy in his holding.
Explanation (1).-For the purposes of this
subsection, the expression ‘every ryo
t now in
possession’ shall include every person who,
having held land as a ryot continues in
possession of such land at the commencement of
this Act.
The Subordinate Judge and the High Court have concurrently
come to the conclusion, upon consideration of the evidence,
that the lands in suit are not private lands but ryoti
lands. On behalf of the appellant Mr. Kesava Iyengar
conceded that onus is on the appellant to show that the
lands are ‘private lands’ within the meaning of the Act’,
but the argument was stressed that the lower courts have
failed to take into account certain important documents
filed on behalf of the appellant, viz., A-128, A-129 and the
Paimash account dated August 25, 1830, Ex. A-147 and the
Land Register, Ex.A-134. In our opinion, there is no warrant
for the argument advanced on behalf. of the appellant. As
regards Exs. A-128 and A-129 it is apparent that apart from
the question as to the identity of the land, they relate to
a period previous to the grant of 1862 which alone
constitutes the root of title of the grantees and there is
no question of restoration or revival of any anterior right.
The same reasoning applies to the Paimash account dated
August 25, 1830, Ex. A-147 which
765
cannot, therefore, be held to be of much relevance in this
connection. Reliance was placed on behalf of the appellant
on Ex. A-134, the Land Register for Pannimangalam which
shows that in Orathur Thattimal Padugai which consists of
Punjais (dry lands) and are rain-fed, the land-holder (the
Tanjore Palace Estate) owns both the warams (Iruwaram in
vernacular). It was argued for the appellant that the
expression ‘Iruwaram’ means that the land was owned as
Pannai or private lands. Reference was made to the record
of rights and Irrigation Memoir dated January 13, 1935, Ex.
B-8 which shows that the lands are lruwaram and there are no
wet lands. But the use of the expression “Iruwaram” in
these documents is not decisive of the question whether the
land is private land of the appellant or not. Under s.
3(10) of the Act, private land comprises of two categories,
private lands technically so-called, and lands deemed to be
private lands. In regard to private lands technically so-
called, it must be the domain or home-farm land of the
landholder a,,. understood in law. The mere fact that
particular lands are described in popular parlance as pannai
kambattam, sir, khas, is not decisive of the question unless
the lands so-called partake of the characteristics of domain
or homefarm lands. In our opinion the correct test to
ascertain whether a land is domain or home-farm is that
accepted by the Judicial Committee in Yerlagadda Malikarjuna
Prasad Nayudu v. Somayya(1), that is, whether it is land
which a zamindar has cultivated himself and intends to
retain as resumable for cultivation by himself even if from
time to time he demises for a season. 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 the Legislature would attach to these words the meaning
which would ‘be given to them in ordinary English. 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 cultivates himself, as distinct
from land which he lets out to tenants to be farmed. The
first clause is, therefore meant to include and signify
those lands which are in the ordinary sense of he 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; and with reference to those lands there is a proviso
that lands purchased at a sale for arrears of revenue shall
not be regarded as private lands unless cultivated directly
by the landlord for the required period. It seeing to us
that the definition reads as a whole
(1) I.L.R. 42 Mad. 400(P.C.).
3 Sup. CI/68-5
766
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 or 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 is not the intention or
the scheme of the Act to treat as private those lands with
reference to which the only peculiarity is the fact that the
landlord owns both the warams 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 these 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 Act cannot acquire occupancy
rights. In the present case there is no proof that the
lands were ever directly cultivated by the landholder.
Admittedly, soon after the grant of 1862 the estate came
under the administration of Receivers, who always let out
the lands to the tenants to be cultivated. In Ex. B-8, the
Record of Rights the lands are entered in column 5 as Punja
or dry land. In column 4 which requires the entry to be
made as private land they are not entered as private lands.
If was argued for the appellant that the lands are sometimes
called ‘Padugai’ and that the expression meant that the
lands were within the flood bank and forming part of the
river bed. But the description of the land as ‘Padugai’ is
not of much consequence because they are also called as
Orathur ‘Thottam meaning a garden where garden crops are
raised to distinguish it from paddy fields. It appears that
the lands actually lie between two rivers and comprise more
than 100 acres, and by their physical feature cannot be
‘padugai’ in the sense in which the term is normally used.
The argument was stressed on behalf of the appellant that
leasing rights of the land were auctioned periodically. But
the High Court has observed that one and the same tenant
continued to bid at the auction and there was evidence that
tenants continued to cultivate the lands without break or
change, and the fact that there were periodical auctions of
the lease rights did not necessarily deprive the tenants of
the occupancy rights which they
e’ were enjoying. We accordingly hold that the appellant
has not adduced sufficient evidence to rebut the presumption
under s. 18: of the Act that the lands in the inam village
are not private land and the argument of the appellant on
this aspect of the case must be rejected.
For the reasons expressed we hold that the judgment of the
Madras High Court dated January 10, 1956 is correct and
these appeals must be dismissed with costs–one set of
hearing fee.
G. C. Appeals
dismissed
767