Satyanarayana Rao, J.These second appeals and the civil revision petitions arise out of a batch of suits relating to the village of Manamelpatti, a Dharmasanam village, in the Ramnad District. The suits out of which these second appeals arise were instituted by the trustees of Airabhadeswarar Soundaranayagi Amman Temple for ejectment of the defendants from the lands in their respective possession and for recovery of rent for faslis 1349 and 1350 for future profits. The village comprises 80 pangus out of which the plaint temple in this batch owns 23 1/2 pangus purchased from the original owners and one pangu taken on othi from the owner. The plaintiffs in the batch of suits out of which the civil revision petitions arise are the managers of the Devasthanam of Nagara Vairavanpatti Valaroleeswaraswami Nagara Vairavaswami Devasthanam. This temple owns 54 and 5/8th pangus or shares in the village and suits were instituted for recovery of the balance of amounts due as iru bogam for faslis 1349 and 1350. In both the batches of suits the plaintiffs claimed that they were the owners of mel-waram and kudiwaram interest in the lands which were being enjoyed as "pannai" lands or "private lands" that they were leasing the lands from time to time changing tenants and were also collecting "swami bhogam" in recognition of their full proprietary rights in the lands. They claimed that the tenants had no occupancy rights in the lands; and in the second appeals batch a relief for ejectment of the tenants is also claimed. The defence of the defendants-tenants in both the batches is common. They claimed that the temples owned only the melwaram interest and that they, the tenants, are the owners of the kudiwaram which they have been enjoying hereditarily paying half waram in respect of the nanjas and a fixed money rent for the punja or dry lands according to the "tharam" (classification) of the lands. They denied that they ever paid "swami bhogam" to the temple. In all the suits there is the common plea that the village is an "estate", u/s 3(2) (d) of the Madras Estates Land Act, as amended by the Madras Estates Land (Amendment) Act, 1936 (Act XVIII of 1036), that they had therefore acquired occupancy rights under the Act; that the lands were ryoti and that, therefore, the civil Court had no jurisdiction to try these suits.

2. Appropriate issues covering the contentions of the parties were raised in the two sets of suits and they were disposed of by the same District Munsif in the Court of first instance by similar judgments though not by a common judgment and the same procedure was adopted by the learned Subordinate Judge in appeals. The plaintiffs raised an alternative contention that on the footing that the village is an "estate", the suits lands are private lands or pannai lands of the temples and therefore the defendants acquired no occupancy rights in the lands under the statute and that the civil Court alone had jurisdiction to entertain and try the suits.

3. The main questions that had to be considered by the Courts below were whether the village was or was not an estate under the Madras Estates Land Act, &, if so, whether the lands were private lands as claimed by the plaintiffs or ryoti lands as claimed by the tenants. The further question that even apart from the Estates Land Act whether the defendants had acquired occupancy rights by prescription was also raised and considered. The Jurisdiction of the civil Court to entertain the suits depended upon the decision of the question whether the village was or was not an estate. There were also some other questions of subordinate importance in these suits which were considered and disposed of by the trial Court but they are no longer in issue in these proceedings now before us. They may, therefore, be left out of consideration.

4. On the main question the concurrent findings of the Courts below were that the village was an "estate" u/s 3(2) (d) of the Madras Estates Land Act as amended in 1936, that the plaint temples owned the melwaram and the kudiwaram interests in the lands; that the lands were private lands as defined by the Madras Estates Land Act, that the defendants had acquired no occupancy rights in the lands either under the Act or by prescription and that the suits were properly laid in the civil Court which had undoubted jurisdiction to try the suits. In the second appeals batch the trial Court granted a decree in ejectment, decreed arrears of rent for the two faslis and also decreed future mesne profits until delivery of possession. In the other batch rent was decreed as claimed by the plaintiff.

5. There were appeals by the defendants to the Subordinate Judge of Sivaganga who agreed with the findings of the District Munsif in all the suits; but he refused the plaintiff relief for ejectment in the second appeals batch on the ground that the tenancy which subsisted between the plaintiff and the defendants was not terminated by a proper notice to quit. He therefore modified the decrees irk ejectment granted by the trial Court by disallowing relief for delivery of possession but confirmed it in other respects.

6. The learned Subordinate Judge however while confirming in other respects the decrees of the District Munsif in this batch overlooked the fact that in view of his refusal to confirm the decree for possession he could not confirm the decree for future profits and this relief should have been deleted from the decree. It is now contended on behalf of the respondents that this is a mistake and should be rectified. In the rent batch the learned Subordinate Judge confirmed the decrees of the District Munsif in toto. These second appeals and the revision petitions were preferred by the unsuccessful tenants.

7. When these second appeals and the revision petitions came before me and my learned brother, Raghava Rao, J., in the first instance we directed that these cases should be heard by a Bench of three Judges in view of the conflict of judicial opinion on the question of the test to be applied to determine what constitutes private lands u/s 3(10) of the Madras Estates Land Act. They have accordingly been posted for hearing before us.

8. The questions raised in both sets of cases being common and as the lands in dispute are situated in the same village of Manamelpatti we have heard the cases together.

9. The finding of the Courts below that the temples owned the melwaram and kudiwaram interest in the lands and that the defendants had not acquired permanent rights of occupancy in the lands apart from the Act have not been disputed before us on behalf of the tenants. The dispute is confined therefore to two questions and two questions alone, the first, whether the village is an estate under the Madras Estates Land Act and secondly, whether the concurrent finding of the Courts below that the lands are private lands of the temple is correct or not.

10. The first question therefore for consideration is whether the village of Manamelpatti is an "estate" or not. Both the learned District Munsif and the learned Subordinate Judge were of opinion that it was an estate u/s 3(2)(d) of the Act, notwithstanding the fact that the grant to the village was not confirmed by the British Government in the view that the grant must be deemed to have been "recognised" by the Government as it was entered in the Government register and as Government never disputed the title of the temple to the suit lands and also collected road cess under the Local Boards Act from the plaint temples.

11. In dealing with this question reference is made in this judgment to the exhibits as they are marked in the second appeal batch. The same documents have also been died and exhibited in the rent batch but they were given different exhibit marks.

12. The grant is not forthcoming though it appears from Ex. P. 26 an extract from the register of Manibams forwarded by the District Collector, Madura, to the Board of Revenue in 1815 that there was a grant which was registered in the Collectors office. The earliest document on record which throws any light on the nature of the grant is this extract from the register of manibams. It does not purport to be a register of lands held exempt from payment of revenue as required to be maintained in each District by Section 15 of Regulation 31 of 1802. At the time of the Permanent Settlement 1802, Lakhraji lands were excluded from the settlement by Section 4 of Regulation 25 of 1802 known as the Permanent Settlement Regulation.

On the same day on which that Regulation was passed by the Governor-in-Council, namely, the 13th July, 1802 there were other Regulations which were also passed and one of them is Regulation 31 of 1802. Under this Regulation power was reserved by Government to deal on a future date with the alienated lands or Lakhraji lands which have been excluded from Permanent Settlement. For that purpose the Regulation enacted various provisions, one of which, Section 15, required that in each Zilla or district a register should be kept of the lands held exempt from the payment of the revenue and the register, it is directed by that section, should be denominated "register of lands exempt from payment of revenue under grants not being badshahi or royal." This Ex. P. 26 is not a register maintained under that section as was wrongly assumed by the learned Subordinate Judge.

The extract shows that the village Manamelpatti was granted for subsistence to one Ramaswami Aiyar and others on 3rd Margali of the year Kalayukthi, 1720. The year 1720 is not the A.D. year but the year of Salyavahana Saka which commenced in 78 A.D. The learned Subordinate Judge thought that the reference is to the A.D. year 1720 but it does not correspond to the year Kalayukthi. The reference must be to the Kalayukthi of the year 1798 A. D. There is an earlier Kalayukthi in the A. D year 1738. The grant is hereditary.

Column 4 of the register gives the estimated annual value of the village as 85 -- 22 -- 70. It is not known whether the reference is to pagodas or some other coin or grain measures. Whatever it be, column 10 of the register reveals that the annual rent payable for the village was 80 -- 0 -- 43. This means, whatever the unit may be, that Ramaswami Aiyar the grantee for whose subsistence the grant was made was getting only an income of 85 and odd units and was liable to pay as rent and not as revenue for the village 80 and odd units, leaving to him the insignificant balance of about 5 units. The present extent of the lands in acres as now admitted before us is about 140 acres wet and 86 acres dry making a total of 226 acres.

From the entries in this register it will be a legitimate inference to draw that this Ramaswami Aiyar and others were holding the lands on condition of paying 80 units of rent to the grantor. This register was prepared nearly 13 years after the date of the Permanent Settlement. The village was once part of the Ramnad Zamindari but now it is part of the Sivaganga estate. There does not seem to be any grant of inam as is evident from the entries in this register except it be that five units over and above the rent were treated as inam.

There are, however, two important documents which throw some light as regards the tenure on which the village was held by the grantees. They are Exs. P. 23 and P. 24 of the year 1882. Ex. P. 23 is a copy of the plaint in O. S. No. 25 of 1882 on the file of the Sub-Court, Madura East. That was a suit by the Zamindar of Sivaganga Estate and the receiver appointed for the estate as plaintiffs against the representative of the grantee for recovery of a sum of Rs. 968-7-11 representing profits for three faslis. The allegation in the plaint was that the village was an ayan village before the Permanent Settlement, that at the time of the faisala in F. 1211 (istimirar feisal), it was assigned as dharmasanam by his predecessor-in-title over which the grantees were paying annually at the rate of Rs. 229-2-0 as poruppu, while the Zamindar had to pay to the Government under the Permanent Settlement for their 3/5ths share a sum of Rs. 559-7-7 per year, that this grant by his predecessor at a lower rate which is far less than the rate fixed by the fysal arrangement did not bind the plaintiffs and that, therefore, they were entitled to recover the difference of Rs. 260-5-7 per year for the three faslis with interest thereon.

Ex. P. 24 is the judgment in that case which shows that the defence of the defendants was that the village was a dharmasanam from before the faisal and that the plaintiffs had no right to question the act of the Isthimirar Zamindar, that is the Zamindar to whom the zamin was granted under the Permanent Settlement and that the suit was barred by limitation. The finding of the Court was that the grant was not subsequent to the Permanent Settlement but was prior to it and that even if it was granted subsequent to the Permanent Settlement, the grant was binding on the plaintiffs as it was the self-acquired property of the grantor who could make a grant at a low fixed rent.

From this it is clear that the grant was a pre-settlement grant but the income was taken into consideration and was included in the assests of the Zamindari at the time of the Permanent Settlement and the peishcush was assessed on that basis. By converting it into dharmasanam village the rent was reduced to Rs. 299 and odd which is payable to the zamindar, the grantor.

It is fairly clear from the evidence now adduced in the case that this poruppu is being paid by the two temples in some proportion. The village therefore was not a Lakhraji village at the time of the Permanent Settlement and was not treated as inam grant which was excluded from the assets of the zamindari in 1802. It was treated as an undertenure held by the grantee and his descendants under the zamindar on payment of the poruppu of Rs. 299 and odd every year. It is for this reason I think that the Government abstained from dealing with this village at the time of the inam enquiry of 1860.

The grant was not the subject-matter of investigation at the time of those proceedings and the grant was not confirmed or recognised and no title deed was granted to the then holders of the village. The Government must be deemed to have recognised that the reversion had vested in the Zamindari.

The learned Subordinate Judge adverted to the question whether the village is held as permanent undertenure within the meaning of Section 3 (2)(e) of the Madras Estates Land Act; but in his opinion there was no evidence to establish that the income of the village was included in the assets of the Sivaganga zamindari at the time of the permanent settlement and he also opined that it was lakhraji land which must have been therefore excluded at the time of the Permanent Settlement from the computation of the assets.

The village, at the time of the grant was part of the Sivaganga Zamindari which was permanently settled in 1802. The grantee and his descendants are liable to pay to the grantor and his descendants the poruppu of Rs. 299 and odd annually. The village was included in the assets at the time of the Permanent Settlement and was not excluded. It was not treated as an alienated land or lakhraji land within the meaning of Section 4 of the Permanent Settlement Regulation. The grant therefore consists of a village which is now part of the permanently settled estate of Sivaganga falling under Clause (a) of Section 3(2) of the Act. It is held on a permanent undertenure. Therefore as the grant was not a grant of an inam but the grant of an undertenure it would certainly fall u/s 3(2) (e) of the Estates Land Act and will be an "estate" within the meaning of that clause.

It is sufficient under this clause that the grantee holds the village on a permanent undertenure even though the grantee at the time of the grant might have owned the Kudiwaram interest in the lands of the village, Ex. P. 26 shows that what was payable to the zamindar in respect of the village was treated as rent. If the grant consisted of less than a village and the grantor remitted a portion of the rent payable in respect of the land it may be a case which would fall within Section 26 of the Act and the successor of the grantor would not be bound by the grant at a lower rate of rent except in cases falling u/s 26(1); but if a village is granted at a lower rate of rent payable to the grantor the ease would be governed by Section 3(2)(e) and it would be a permanent undertenure within the meaning of that clause. I am therefore, clearly of the opinion that the village is an estate, not falling u/s 3(2)(d) but u/s 3(2)(e). In this view it is unnecessary to consider the question whether there is and if so what constitutes "recognition" of a grant u/s 3(2)(d) of the Act.

13. The next question is whether the lands involved in the suits are the "private" lands of the plaintiffs (temples) or "ryoti" lands as defined by the Estates Land Act. The question essentially is one of fact to be decided on the evidence in the light of the principles laid down by the Estates Land Act as interpreted by the various decisions. If the lower Courts had applied the correct test and come to the conclusion that on the evidence the land is private land, it would not be open to us either in second appeal or in civil revision petition to interfere with such a finding of fact.

It is however contended on behalf of the appellants that the Courts below did not apply the correct test to determine the nature of the land and that, therefore, the finding is vitiated and should not be accepted either in second appeals or in the civil revision petitions. As the jurisdiction of the Court to entertain the suits depends upon the decision of this question and if by an erroneous decision the Court assumed jurisdiction to decide the disputes it would be a ground for interference even u/s 115, C. P. C. No objection was therefore taken on behalf of the respondents that in the civil re vision petitions it is not competent for us to go into the correctness of the findings of the Courts below.

Indeed in the light of the decisions in Atchayya v. Seetharamachandra Rao 39 Mad 195 [LQ/MadHC/1912/347] ; Balakrishna v. Vasudeva, 40 Mad 793 ; Joychand Lal v. Kamalaksha 1949 2 M. L. J. 6 such a contention would be untenable. This aspect of the matter was considered by Viswanatha Sastri J. in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, , and if I may say so with respect he held correctly that the jurisdiction of this Court in a matter of that kind to interfere is not taken away by Section 115, C. P. C., if a proper case for interference is made out.

14. It has now been found by the Courts concurrently that the temples owned both the warams and this finding has not been challenged before us. The learned Subordinate Judge agreeing with the learned District Munsif has found that in the present case the temples purchased the entire ownership in the lands, that the tenants had executed leases dating from 1886 for short periods admitting the right of the temple to both the warams and also containing surrender clauses agreeing to surrender the land on the expiration of the period of the tenancy. They also paid what is called "Swami bhogam" in recognition of the absolute ownership of the temple to the lands. Sometimes there was also change of tenancy though the tenants have also continued in some cases for a longer period in possession of the lands and the tenants had never asserted the kudiwaram interest in the lands till very recently, that is, some time from or after 1930. There is however, no evidence that the plaintiffs ever cultivated the lands. The leases did not contain the expression "pannai" or any similar terms indicating that the lands are the private lands. On these facts and in view of the opinion of the author of the Ramnad Manual of the year 1890 that in that part of the country the loose expression "iru bogam" or both the warams indicated that the land was owned as pannai or private land, particularly in the case of dharmasanams, the learned Subordinate Judge held that the lands were proved to be private lands.

15. I shall deal with the evidence in detail later but on behalf of the appellants it was urged that even if the facts as found by the learned Judge were correct the inference that they are private lands is not warranted as according to the learned advocate for the appellants the test to determine whether the land is private land or not is to see whether the Zamindar had cultivated the lands himself or by hired labour at some time or other and whether there was indication that the landlord intended to retain the lands as resumable for cultivation for himself even though he might have leased them from time to time for a season. As this test is absent in this case, it is contended, that we should not accept the finding of the Courts below that the lands are private lands. The point therefore for consideration is whether this view is correct.

16. Before referring to the sections of the Act and the decisions bearing upon the question, it will be useful to have a correct picture of what was considered to be private land before the Estates Land Act of 1908 was passed and what the origin and the incidents of the private land were before 1908.

17. Both under the Hindu Kings and later during the time of the Moghul administration the status of a cultivating tenant in a village was defined by usage. The cultivating tenant always rendered to the State a portion of the produce of the land varying with the nature of the crop which is called "melwaram" while the share left to the cultivator was known as "kudiwaram." The words "melwaram" and "kudiwaram" were in vogue in the Tamil country.

In the Sircars the share payable to the Government was known as "Ambaram" or Raja bhagam" and what was left to the cultivator as palu. In some of the dowls or annual accounts by which settlement was made, reference was made in the documents to Sirkar hissab or the share of the Government (sometimes the Zamindar also was referred to as Sirkar) and the ryots hissab or the share of the ryot. Sometimes the share of the ryot is 1/2 or 9/20 varying according to the nature of the crops raised on the lands.

By common understanding and usage the cultivator was allowed to remain in the land without disturbance so long as he continued to pay the share due to the State. The cultivating tenant was treated as a co-owner with the mel-waramdars, whoever he may be, and not as a mere lessee. The Board of Revenue was charged with the duty of investigating and reporting upon the nature of the rights of ryots in this presidency about the year 1817 or 1818 and the proceedings of the Board of Revenue dated 5th January 1818, quoted in extenso in Diwan Bahadur Srinivasa Raghava Aiyangars Fifty Years Progress in Madras Presidency contains an exhaustive survey of the relations between the land-holders and the ryots under the customary law of this country. Those proceedings were referred to by Subramania Aiyar J. in Venkatanarasimha Naidu v. D. Kotayya 20 Mad 299 and Chidambara Sivaprakasa v. Veerama Reddi 45 Mad 586.

The collection from the ryots of the share of the revenue was entrusted both by the Hindu Kings and later by the Muhammadan rulers to officers variously described as Chowdrie, crorie, zamindars. This procedure was not peculiar to this presidency but it was also common in Bengal. These officers were appointed very often by sanads which denned their duties. They had also other functions to discharge and very often were entrusted with the duty of looking after the peace of the country. These officers by whatever description known were remunerated by various methods. They were paid a portion of the melwaram, very often about 1/10th and were also allowed to collect russooms or fees. To make up the deficiency special grants of lands were very often made to them which were denominated in Bengal, Naunkar (subsistence) and Soverum in the Sircars.

With a view to make their presence necessary everywhere in the district in their charge these lands were not granted at one place but were distributed very often to each village to make the supervision effective. These lands formed the property and the absolute property of those persons who later came to be called the Zamindars and they could let them out to tenants or cultivate them personally by themselves or through their servants. But if let to tenants, the tenants had no security of tenure in the sense in which it was understood under the customary law regarding other lands, that is to say, the tenant could not say as in the case of other lands that so long as he paid the rent due to the Zaraindar he should not be disturbed from possession of the property. This usage which applied to other lands did not apply to the lands so granted.

Reference may be made in this connection to the fifth report of the Select Committee on the affairs of the East India Company, 1812, Firmingols Edn. Vol. 1 pages 25, 149 and 151 and also to Mr. Grants Political Survey of Northern Sirkars, 1786, which is printed as Appendix to Vol III at page 22. Mr. Grant, says that "Nancar" is a Persian term. The Deccan Soverum was derived from a Turkish word with the common Telinga termination "um" signifying in both cases subsistence in bread or livelihood being to arise from small allotments of land freed from any public encumbrances & conveniently dispersed throughout the district so as to make his presence necessary everywhere, give him local attachment and greater effect to general superintendence in attending to his own private interest.

Baden Powell on Land Systems in British India Vol. 1, pages 514 and 515 refers to the emoluments received by the Zamindar and points out three sources from which the Zamindar derived his private lands. First, NIJJOT, the Hindu equivalent of the Persian term "Khudkast" the same as "Sir" of other parts, that is, the lands of his family which he cultivates with his own labour and personal superintendence from which the State might or might not take revenue; secondly, lands which the Zamindar reclaimed from waste for his own benefit in which there were no pre-existing ryots and which were cultivated by contract with tenants. Such bind of land was known under the name of Khamar, the Oriya or Bengali word, used for thrashing floor, and indicating lands the produce of which is divided on the thrashing floor between the cultivator or the soil owner. These lands as pointed out by the learned author bad necessarily to be subject to the sharing system as they were waste lands newly brought into cultivation and are subject to depreciations by deer, pigs and wild beasts, from the neighbouring jungles. The loss, if any, would be borne, equally under this system of sharing the produce by both the Zamindar and the tenant. Yet a third category of land is included in it which is Nankar which I have attempted to explain already. If these lands are granted free of revenue the Zamindar absorbs them into his own property. At page 515 the learned author states. "This custom of nankar spread wide, and in the Northern Sirkars of Madras was found enjoyed under the local name of "Savarum".

From this short summary it would be evident that private lands were not always cultivated by the Zamindar himself. He let them out on contract of tenancy under the sharing system to persons who had no security of tenure and the lands were not around his house or residence but were purposely distributed throughout the district so as to secure effective supervision by him of the entire district. These lands were not subject to the usage of the tenant acquiring a right to occupy it so long as he paid the rent due to the land-holder as per custom. Various descriptions of these lands were adopted both in Bengal and in this presidency and in other provinces having regard to the purposes for which the lands were granted. They really constituted emoluments or compensation to the Zamindar for the discharge of his duties which were defined and enumerated in the Sanad appointing him as Zamindar.

18. The Permanent Settlement of Madras practically followed and applied the principles of Permanent Settlement in Bengal contained in the Decennial Settlement Regulations, 1793, (Regulation 8 of 1793) as appears from the fifth report a copy of this regulation and the other regulations bearing upon the question were sent to Madras to enable the Madras Government to formulate the principles upon which the Permanent Settlement in Madras should be effected. These principles were embodied in the instructions issued to the Collectors on the 15th of October 1799 by the Special Commission embodying the principles on which the income for purposes of settlement of the Zamindari should be ascertained and the addition and subtractions to be made from that income to arrive at the final figures.

19. Paragraph 25 of the instructions relates to private lands and is modelled on Section 37 of the Bengal Decennial Settlement Regulations 1793. It states:

"all private lands at present appropriated by the Zamindars and other landholders to the subsistence of themselves and families as well as all lands held by private servants and dependents will be considered as forming part of the Sirkar land, they are responsible for the public Zama"

meaning thereby that the private lands along with other lands in the estate should be liable for payment of the public Zama or peishcush fixed upon the estate. But these lands it will be noted were sirkar lands appropriated by the Zamindar for their subsistence. It is not clear from the instructions whether in the collections made by the Zamindar which formed the basis of the settlement the income received by the Zamindar from private lands was or was not included. Whatever that may be, private lands were treated as part of permanent settlement as is clear from instruction No. 25 (vide also Section 2 of Regulation 25 of 1802).

20. The earliest of the decisions before the Estates Land Act which throws some light as to what constituted private lands or pannai land is the decision in Nagayasami Kamayya v. Yiramasami Kone 7 MHCR 53. That case arose u/s 12 of the Rent Recovery Act, VIII of 1865, which enabled a tenant eject ed by a land-holder without due authority to institute a suit before the collector to obtain rein statement with damages. The defendant in that suit was the Zamindar of Saptur, in the Ram- nad District, who ejected the tenant who was the plaintiff in the action from lands which the defendant claimed to be his pannai or private lands. The defendant contended that the tenant voluntarily relinquished the lands and that in any event the Collector had no power of interference u/s 12 of the Act in respect of the pannai lands, as in such a case the Zamindar would be the tenant of the lands and the plaintiff would be his undertenant. The Zamindar also raised an alternative contention that pannai lands were not part of the Zamindari and there fore Section 12 had no application. The suit was dismissed by the Deputy Collector as he was of the opinion that the relationship between the plaintiff and the defendant was that of a sub tenant.

This decision was reversed by the Civil Judge on appeal. The Civil Judge in his judgment considered the nature of the pannai land. According to him

"they are lands to which the proprietor had an exclusive right, that is to say, a right to receive the kudiwaram produce, and the right to receive the melwaram; lands regarding which landholders can arrange their own terms of rent as they can with respect to the waste or unoccupied lands alluded to in para 4 of the preceding section. Sometimes these lands are cultivated under the Zamindars own ploughs, and sometimes they are let out for cultivation by others."

He found that the lands formed part of the Estate and that u/s 12 of the Act the tenant was entitled to relief as claimed by him. This decision was affirmed by the High Court. Kindersley J. observed in the course of the judgment that the tenure of the tenant was something more than the tenure of an ordinary ryot; and the Zamindar cannot be said to be a tenant of his own lands. Even if the lands had not the incidents of being originally in the hands of the tenant it would not prevent the lessee when such a land was let from being a tenant of the Zamindar. The contrast, therefore, is between the lands which were originally in the hands of the tenants and lands to which the proprietor had an exclusive right, a right to receive the kudiwaram produce and the right to receive the melwaram. This is the distinction recognised as early as 1872 between the two categories of lands in Zamindari. As pointed out by the Civil Judge, it may be that sometimes the pannai lands were cultivated under the zamindars own ploughs or sometimes they may be let out for cultivation by others. But the essence of the matter seems to be the distinction between the absolute property of the proprietor and lands in which the proprietor has got only the right to receive the melwaram.

21. Besides waste lands, porombokes gramanathams, that there are two broad categories of lands in a village is also made clear by the very illuminating and exhaustive judgment of Subramania Aiyar J. in the well-known Cheekati Case Cheekati Zamindar v. Ramasooru Dhora 23 Mad 318. He there pointed out that the presumption of tenancies from year to year obtaining under the English Law has no application to conditions in this presidency where the ryots hold the land under no derivative title but hold them as co-owners with the landholders. The payment made by the ryots to the Zamindar, in the absence of a contract, is regulated by custom in the last resort, as laid down by Section 11 of the Rent Recovery Act. The ryots are entitled to hold the land for an unlimited time so long as they wished to retain it, but, of course, subject to the discharge of the obligations by them incident to the tenure. This applied according to the learned Judge not only to lands in the hands of the ryots but even to lands relinquished by former occupants or which were lying waste from time immemorial. If a ryot takes up the land again his tenure is treated exactly on the same footing as land into the possession of which it was not shown that he was inducted by the Zamindar. He pointed out the distinction between home-farm lands and the ryoti lands. The treatment accorded by the Zamindar to the two categories of lands is entirely different.

The learned Judge cited from a Nuzvid Case AIR 1922 Mad 281 [LQ/MadHC/1921/54] the evidence of the kurnam who deposed to the distinction observed in the treatment accorded to the two categories of lands. The ryoti land in the Kistna District is known as seri which in some other Districts is used in an opposite sense meaning private land. For ryoti lands seri pattas are granted for long periods. If a tenant dies the names of his heirs are substituted. If the lands are transferred pattas are granted to the transferees. The lands are alienable by sale and mortgage but in respect of home-farm lands the pattas are different. They are usually for one year with "quit" clauses to vacate the land at the end of the year. Usually khats are taken in respect of the private lands and the home-farm lands are leased out to the highest bidder. The rent in the case of seri land will never vary except when there is conversion from dry into wet and even that with the consent of the tenant. In the case of home-farm lands the transfer of the holding or succession is not recognised.

The description given by the karnam of the Nuzvid estate in the earlier case is as stated by the learned Judge whose knowledge of the land tenures in this presidency was intimate and unique is a fair description of what goes on in most zamindaris in this presidency and shows very clearly that

"the prevalent permanent form of agricultural holding in Zamindari tracts extends not only to lands held by ryots immemorially but also to what they take up under Zamindars, provided the lands so taken up do not form part of the home-farm lands of the Zamindars."

According to the learned Judge, lands which are home-farm lands of the Zamindar may be under his direct cultivation or they may be let to tenants but the treatment accorded as evidenced by the entries in the accounts and in the engagements entered into with the tenants as well as in the incidents is entirely different from that accorded to a ryoti land.

22. The position in Bengal regarding the nature of the private lands seems to be also similar. The expressions there in vogue to describe private lands are usually, Khamar, Nij, Nijjote. Nijjote is from Neech (under) and jote (to plough) that is land reserved by the zamindar and set apart for his own cultivation. According to the other authorities the expression is derived "from nij -- own, and means the lands in the zamindars own cultivation. The terms denote the ownership of the land as private land, as distinguished from those let out to the tenants. Khamar lands have always been recognised as being in a special and exclusive sense the private property of the zamindar as distinguished from all the rest of the cultivated or cultivable area which may be called ryoti land, and in respect of which the zamindars rights were merely to receive a share of the produce or an equivalent in money. Under the rules of the Decennial Settlement, khamar was understood to signify lands appropriated to the subsistence of the zamindar and their families. Under the Permanent Settlement regulation no land was recognised as "khamar" which was not such on the 12th of August 1765, the date of the grant of the Dewani and there is no law recognising the creation as khamar subsequent to that date (vide Guhas land Systems in Bengal and Bihar, 1915, at page 432).

23. Before the introduction of the Estates Land Act, 1908 under the common law of the country, therefore, private land was the absolute property of the zamindar he being the owner of the melwaram and kudjwaram which he could cultivate directly or let out to tenants on his own terms and the rights of the zamindar and his tenant to private lands were regulated by contract and by contract alone and not by custom. In ryoti lands the zamindar had only the right to receive the melwaram which is governed either by the contract or by custom as recognised u/s 11 of the Rent Recovery Act. He could not ordinarily enhance the rent and the rent had to be determined when there is a dispute in accordance with the principles laid down by Section 11 of the Rent Recovery Act. He had no right to eject the tenant though the tenant was at liberty to relinquish the land. But notwithstanding the relinquishment the character or nature of the land remained unaltered. There was the duty to exchange the pattas and muchilikas and the mode of enforcement of pattas and mulchilikas was also prescribed by the Statute. Cultivation therefore by the zamindar of private lands was not treated and recognised as the sole or exclusive test by which the character of private land could be determined.

24. In order to see whether any change was introduced in this behalf by the Estates Land Act of 1908, it is necessary to examine the provisions relating to the private land. Section 3(10) of the Act contains the definition of private land. "Private land" means "the domain or home-farm land of the landholder by whatever designation known, such as khambattam, khas, sir, or pannai. "Khas" and "sir" are not so far as I am aware in vogue in this presidency to denote private land.

The Act was somewhat modelled on the Bengal Tenancy Act and some of the expressions were borrowed from the corresponding section of the Bengal Tenancy Act. Even there the word "khas" does not occur in the section. Section 3(16) contains the definition of "ryoti land" which excludes private lands and also tank-beds thrashing floors and other communal lands and lands granted on service tenure. Section 8(3) provides that the merger of the occupancy rights under Sub-sections (1) and (2) of that section shall not have the effect of converting ryoti land into private land. Section 19 excludes from the purview of the Act the relations between a land-holder and his tenants of private land which implies that private land could be let to tenants.

Section 134 extends the provisions of the Act relating to the recovery of rent by distraint and sale of movable property, to the recovery of rent by the land holder from a tenant of his private land in the estate provided pattas and muchilikas have been exchanged between them, which is also a clear indication that not only the landlord is entitled to let the private land to tenants and need not necessarily keep it always under his cultivation but that even pattas and muchilikas as denned by the Act could be exchanged in respect of such lands to enable the landholder to enforce payment of rent by distraint and sale of movable property. Of course, the sale of the holding is not possible in such a case as the tenant had no interest at all in the lands as in the case of a ryoti land.

Lastly, there is chapter XII relating to private lands of the landholder. Section 181 (before amendment in 1934) excluded the operation of Sections 6, 8, 10, 11, 12 and 46 of the Act to private lands and stated that: "Nothing contained in these sections would confer a right of occupancy on the tenants of private lands." The landholders right to convert private land into ryoti is recognised by the proviso to the section. Provision is made in Sections 182, 183 and 184 for recording private lands & Section 185 provides rules for the determination of the landholders private land. This section was subsequently altered in 1934 and 1936 but the unamended section was as follows:

"When in any suit or proceeding it becomes necessary to determine whether any land is the landholders private land, regard shall be had to local custom and to the question whether the land was before the first day of July 1898, specifically let as private land and to any other evidence that may be produced, but the land shall be presumed not to be private land until the contrary is shown: Provided that all 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 twelve years immediately before the commencement of this Act shall be deemed to be the landholders private land."

The Act, therefore, recognises two categories pf lands in the estate. Ryoti land in which the tenant who was then in possession or was let into possession subsequently automatically acquired a right of occupancy in the land. u/s 8 acquisition of occupancy right by the landholder by the modes indicated in that section has not the effect of converting what was once ryoti into private land. The tenant of a private land has no heritable or transferable right as in the case of ryoti land u/s 10 and he has also no right to use the land in his lease in any manner he pleased. Nor has he any right to the trees in the holding. This is the effect of excluding the applicability of Sections 6, 8, 10, 11 and 12 by Section 181 to private land. Section 46 which is also excluded provided for the acquisition of occupancy right by non-occupancy ryot as defined under the Act but this distinction between occupancy and non-occupancy ryot in ryoti land which was old waste and ryoti land which was not old waste has been abolished by the Amending Act, 1934. There, is no mode recognised by the Act by which a tenant of a private land could acquire occupancy right except under a grant by the landholder. Their relations are entirely governed by the contract between them.

25. After the Act the question of determining whether the land in suit is private land or ryoti land came up for consideration in several decisions before the Act was amended in 1934 and 1936. The definition of "private land" did not give any clear indication of the essence of private land. It merely stated that private land means the domain or home-farm land of the landholder -- whatever be the description by which the land was known, whether it was styled "khambattam, khas, sir, or pannai. The Act did not define anywhere the words "domain" or "home-farm" land.

When we turn to Section 185 which contains rules for determination of the land-holders private land some light is thrown on the question. Under the proviso to that section there is one definite and conclusive test to determine the land-holders private land; and that test is the proof that the land was cultivated as private land by the land-holder himself by his own servants or by hired labour with his own or hired stock for a period of twelve years immediately before the commencement of the Act. It requires therefore proof of cultivation of the land. If that is proved then the land is deemed to be private land whether in fact it was private or not. Even if it was once known to be ryoti according to this test of continuous cultivation for twelve years it is open to the land-holder to convert what was once ryoti into private land. Even if it was ryoti land at sometime, if he proved continuous cultivation within the meaning of the proviso, that is also a mode by which the land could be established to be private land. The proviso applied to cases where the origin of the land or the nature of the land was known to be ryoti and to cases where the origin was not known.

26. But what if the land-holder is unable to prove continuous cultivation and the nature of the land that it was ryoti or private is not known In such an event resort must be had to the body of the Section 185. Three tests are provided under this part of the section. One is local custom, the second is whether the land was before 1st July 1898, specifically let as private land and the third is any other evidence that may be produced. Here again the three rules are not definite in themselves and create difficulty in gathering the intention of the legislature. By local custom, as I understand it -- and the legislature must have had in mind -- is meant the usage in the village of the estate whereunder the lands which were dealt with in a particular manner were recognised by the community or by the tenants as lands in which they could acquire no occupancy rights by usage or custom and which are in the absolute disposal of the land-holder. The treatment by the zamindar in his estate accounts giving separate patta numbers, exchanging pattas and muchilikas or obtaining khats for short periods with surrender clauses and leasing it to tenants at varying rents and changing tenants from time to time may be a usage which distinguishes ryoti land from private land as pointed out by Subramania Aiyar J. in the CHEEKATI CASE 23 Mad 318. In some cases it may be that in respect of private lands the zamindar always leased out the land on sharing system while all the other ryoti lands were let out for definite money rents. All this applies of course when we start, with no knowledge that the land was once ryoti.

The section next refers to specifically letting of private land before the first day of July, 1898, that is, the date on which the first Estates land Bill was introduced. What is meant by specifically letting as private land is by no means clear. Is it meant that in the leases the landholder should describe the land as private land and let it as such Or placing the emphasis on the word "let" that the letting must be on terms which differed entirely from the terms of letting of ryoti land Perhaps it is meant to include both. Thirdly, it refers to any other evidence that may be produced. What exactly is the nature of the other evidence that is contemplated by the section is also difficult to understand. It may be proved that the land holder was cultivating the lands himself or was leasing it to tenants according to his convenience; or it may be proved that the tenants themselves had made admissions in the leases and khats that the zamindar, the land-holder is the absolute proprietor of the land in question. It may be that in recognition of his ownership of the kudiwaram interest he was levying from the tenants more rent which is described by various terms such as swami bhogam, etc., over and above the melwaram that is payable to him. It is significant that while under the proviso direct cultivation by the land-holder is insisted upon as the sole and exclusive test to determine that the land is private land in none of the three categories of evidence contemplated by the body of the section this test was specifically adopted.

27. There was some conflict of opinion both under the corresponding provision of the Bengal Tenancy Act and in Madras as to whether leases subsequent to 1st July 1898 could at all be considered to determine the question whether the land is private land or not. Sadasiva Ajyar J. in Lakshmayya v. Varadaraja Apparao Bahadur 36 Mad 168 [LQ/MadHC/1912/453] was of the opinion that u/s 185 of the Act leases granted on the 1st July 1898 are wholly shutout as evidence either for the purpose of proving the character of the tenure of the land or even to show that the land was treated in the same manner after July 1898. (Sundara Aiyar J. was of a different view). This was also the view of Wallis and Ayling JJ. in Chintam Reddi v. Appalanarasimha 1914 MWN 766 and of Venkatasubba Rao J. in Veerabadrayya v. Zamindars of North Vallur 50 Mad 201 [LQ/MadHC/1926/243]

But this view was not shared in by Abdur Rahim and Oldfield JJ. in Appurow v. Kaveri 7 Mad L W 271 who ruled that an admission of the land-holders title contained in a document executed by a tenant after 1st July 1898 is admissible to prove the character of the land and it was not excluded by the provisions of Section 185. They followed the view of Sundara Aiyar J. in Lakshmayya v. Varadaraja Apparao 36 Mad 168 [LQ/MadHC/1912/453] and dissented from the view of Sadasiva Aiyar J.

The question in my opinion has now been set at rest by the Privy Council in Bindeshwari Prasad v. Kesho Prasad, 5 Pat 634 a decision u/s 120 of the Bengal Tenancy Act, the language of which is in pari materia. It was there held that admissions in the kabuliat regarding the character of the land after March 2, 1883, which is the date fixed under the Bengal Act, were admissible evidence regarding the character of the land. I shall have occasion to deal with this decision more elaborately later but it is sufficient now to refer only to this point which was settled by the Judicial Committee, (see also the observations of Gentle. C. J. in Bandharu Jogi v. C. Seetharamamurti ILR (1948) Mad 223

28. The policy underlying the Act is that the Zamindar is not entitled to increase the extent of his private land by encroaching upon the ryoti land and converting it into private land. He cannot obviously do so after the coming into force of the Estates Lands Act in 1908. On the question whether he could do so retrospectively there was a difference of opinion in this Court between Sir John Wallis C. J. and Seshagiri Aiyar J. in the Chellapalli Case Zamindar of Chellupalli v. Rajalapati Somayya 39 Mad 341 [LQ/MadHC/1914/478] . The only extent to which under the Act retrospective conversion was permitted is under the proviso to Section 185 by the land-holder proving that he had continuously cultivated the land himself or through his servants for a period of 12 years before the commencement of the Act. u/s 8(3), the mere merger did not bring about a conversion of ryoti land into private land.

If the merger was followed however by continuous cultivation for a period of 12 years before the commencement of the Act, it would be open to the land-holder to claim that the land is private land notwithstanding that it was once ryoti. This was the view of Seshagiri Aiyar J. in the CHELLAPALLI CASE, 39 Mad 341 [LQ/MadHC/1914/478] . The Privy Council did not resolve this conflict when the decision in the CHELLAPALLI CASE 39 Mad 341 [LQ/MadHC/1914/478] , was taken up in appeal in Mallikarjuna Prasad v. Somayya 42 Mad 400 Since the decision in the CHELLAPALLI CASE 39 Mad 341 [LQ/MadHC/1914/478] the view of Seshagiri Aiyar J. was followed in Mallikarjuna Prasad v. Subbiah, 39 M L J 277 by Abdur Rahim and Burn JJ. and by Sadasiva Aiyar J. in the Zamindar of Nuzvid v. Lakshminarayana 45 Mad 39 [LQ/MadHC/1921/54] . The opinion of Sir John Wallis C. J. was followed by Krishnan and Venkatasubba Rao JJ. in Veerabadrayya v. Zamindar of North Vallur, 50 Mad 201 [LQ/MadHC/1926/243] .

29. In this state of conflict the question came up for consideration before a Full Bench in Bandharu Jogi v. C. Seetharamamurti ILR (1948) Mad 223 which upheld the view of Seshagiri Aiyar J. in CHELLAPALLI CASE 39 Mad 341 [LQ/MadHC/1914/478] . The effect of the Full Bench decision then is that even if the land was shown to be ryoti land at some remote past, it is not open to the land-holder by proving either letting it to tenants as his absolute property or by any other means to show that he has since converted the land into private land after acquiring the kudiwaram interest in such land except by establishing that for a continuous period of 12 years prior to the commencement of the Act, he cultivated the land himself. In other words, the land-holder is not permitted to increase the extent of his private land even prior to the Act except by showing continuous direct cultivation for a period of 12 years. The test of cultivation is the sole and exclusive test in the case where the land is known to be ryoti. Even if the land is not known to be ryoti and its character is unknown if the landlord is able to establish his continuous cultivation for a period of 12 years before the commencement of the Act, the conclusion may be reached that the land is private land. So far, the position is perfectly clear and is well settled.

30. If the character of the land is not known what are the essential characteristics of private land and what is the nature of proof required to establish that the land is private land when the landlord is not able to prove continuous cultivation for a period of 12 years Is it necessary even in such a case to prove that the land-holder cultivated the land personally though not continuously and that he always retained his intention to resume cultivation or is it enough to show that by usage and treatment the land was recognised as private land Some of the observations in the judgments of this Court lend support to the view that without proof of cultivation at some time and without proof that the land-holder intended to resume cultivation even though he had let the lands now and then, it is impossible to establish that the land is private land. This is the position that is taken up by the learned Advocate for the appellant in these cases and has given room for attacking the finding of the Courts below that the land has been proved to be private land.

31. An examination of the decisions which I propose to do presently, would establish that the test of cultivation and intention to resume cultivation is not the only mode by which the land could be proved to be private land. The essence of private land as understood before the Estates Land Act and under the provisions of the Act in my opinion as I have indicated already is that the land is the absolute property of the zamindar in which the tenant is not entitled to acquire occupancy right except by a grant and not by mere letting into possession.

By the amending Act, 1934, the proviso to Section 185 was transferred to the definition in Section 3(10) of the Act, and is divided into two parts Clause (a) and Clause (b); and it was further altered by Act XVIII (18) of 1936 and as the section now stands, Clause (a) applies to private lands in estates specified in Sub-sections (a) and (b), (c) or (e) of Clause (2) of Section 3 and Clause (b) applies to estates within the meaning of Sub-clause (d) of Clause (2) of Section 3. As we have held that the suit village is an estate u/s 3(2)(e) the definition in Clause (a) of Section 3(10) is applicable to the present case. The amendments of 1934 and 1936 have also altered Section 185 and here again the division is between the rules applicable to estates under (a), (b), (c) or (e) of Clause 2 of Section 3 and estates in Sub-clause (d) of Clause (2) of Section 3. There is no substantial variation in Section 185 which contains rules of evidence, except that the old proviso is omitted and is transferred to Clause (10) of Section 3 as Sub-clause (a). By continuous cultivation for a period of 12 years under the present definition the land is not deemed but is treated as private land. That is also a change effected by the amendments.

The omission, therefore, of the old proviso in Section 185 is also an indication in my opinion that the test of cultivation is not required where the origin of the land is not known. When the proviso formed part of Section 185 the argument was advanced in the CHELLAPALLI CASE 39 Mad 341 [LQ/MadHC/1914/478] that the existence of the proviso was an indication that cultivation though not continuously for 12 years at some time or other is indicated but there was no room for such a suggestion or contention as the proviso is now altogether omitted from Section 185. In none of the clauses in Section 185 is cultivation insisted on to prove the character of the land. It is therefore difficult to see on what basis the test of cultivation in cases falling under the first part of the definition is insisted on.

The attempt in some of the decisions is to deduce the test from the use of the expressions kambattam, khas, sir and pannai in the definition and also from the words domain or home-farm land. The words "domain" and "home-farm" lands are not defined in the Act. Wallis C. J. in the CHELLAPALLI CASE 39 Mad. 341 [LQ/MadHC/1914/478] , adopts the dictionary meaning of the word as given by Webster citing Shemtore. According to Webster it means "the land about the mansion home of a lord and in his immediate occupancy." Seshagiri Aiyar J. in the same case quotes from the Encyclopaedia Brittanica, Vol. III (3) : "Domain" as synonymous to "Demesne" and is explained in the Encyclopaedia Brittanica as follows:

"Demesne -- (Domeine, Demain, Domain etc.) that portion of the land of a manor not granted out in the freehold tenancy, but (a) retained by the lord of the manor for his own use and occupation, or (b) let out as tenamental land to his retainers or "villani." The domesne land originally held at the will of the landlord, in course of time came to acquire fixity of tenure, and developed into the modern copyhold. It is from domesne as used in sense (a) that the modern restricted use of the word comes, i.e.," land immediately surrounding the mansion or dwelling house, the park or chase."

The modern restricted use of the word as given in the Encyclopaedia was accepted by Seshagin Aiyar, J. and he concludes that the private land is confined to the lands surrounding the mansion or dwelling house of the Zamindar. As observed by Viswanatha Sastri J. in a recent case Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, to adopt the dictionary meaning of these English words:

"as confined to land immediately surrounding the mansion or dwelling house, the park or chase of a lord which would be the dictionary meaning of these English words, is to import feudal ideas of medieval England into a system of land tenure in this country without adequate justification. The English draftsman of the Bill which afterwards became the Madras Estates Land Act as well as the English Revenue Member of the Executive Council of the day who piloted the Bill through the legislature employed the expressions "domain" and "home-farm" as the nearest English equivalents of the tamil and telugu words "Pannai", "Khambattam" "Seri" etc. It is all very well when talking of the demesne lands of an English Duke or Marquis to use the term as denoting land appurtenant to the mansion of the lord of the manor. The manorial system was not prevalent in this country. Zamindars lived in cities and forts for reasons of security and their private lands were not confined to the vacant spaces surrounding their palaces or residence. It is a farfetched construction to impute to the Madras Legislature an intention to incorporate the English conception of "demesne land" as a test for differentiating the public domain from private land in a zamindari."

32. I respectfully agree with this criticism of the learned Judge and I do not interpret the words in the Act in that restricted sense. In fact, in the arguments before us no attempt was made to restrict it in the manner in which it was done in the CHELLAPALLI CASE, 39 Mad 341 [LQ/MadHC/1914/478] . In referring to the origin of these private lands I have attempted to show that the grantors of private lands took pains to see that the lands were dispersed throughout the District in order to secure effective superintendence by these zamindars over the various places in the District. There is no reason, therefore, to restrict the private lands to lands surrounding the residence of the landholder. Ones experience of these zamindars shows that these private lands are distributed and are to be found in each village comprised in an estate. If there were 150 villages private lands were very often to be found in the most of the villages or at least in a major number of the villages. This is what obtains in the Northern Sirkars and also in the Southern Districts. The framers of the Act could not have been ignorant of this simple fact when the definition was framed. In fact even Mr. Forbes who piloted the bill in the Legislature did not explain the terms in the manner in which it is now sought to be construed. As even in the arguments before us this restricted meaning of the term is not insisted upon, it is not necessary to pursue it further.

Even the word "home-farm" is not defined in the Act and in some of the decisions from this expression it was concluded that it must be the land which at some time or other was under the direct cultivation of the land-holder or at any rate even if it were let to tenant he intended to resume cultivation. This conception of home-farm land is negatived and there are clear indications in the Act itself to show that that was not the intention of the Legislature in using these expressions. Section 19 and Section 134 of the Act clearly contemplate leasing of the land to tenants by the landholder of his private land and even exchange of pattas and muchilikas are permitted which negatives the idea of cultivation by himself.

Further, the very classification of the lands into two categories, lands in which occupancy rights could be acquired under the statute and lands in which occupancy rights could not so be acquired is a clear indication that the test to determine is not cultivation but the nature of the land at its inception and also the subsequent treatment accorded to it by the landlord and by the tenants of the village.

The decision in NAGASAMI KAMAYA NAICK v. VIRAMASAMI KONE, 7 M H C R 53 and CHEEKATTI CASE 23 Mad 318 clearly bring about the essential distinction between the two categories of land and it is that that has to be established by the evidence. Of course, it does not shut out proof of cultivation and ordinarily cultivation may be a proper and even a good test but it cannot be sole and exclusive test to determine the nature of the land.

33. The attempt on the part of the learned advocate for the appellant is to deduce from the use of the expressions kambattam, khas, sir, or pannai in the definition that in order to constitute the land in an estate a private land, it should be the land which the land-holder himself cultivated and cultivation at some time or other must be proved. This it is claimed is derived from the meaning of the expressions used.

The definition says that private land means "the domain or home-farm land of the landholder by whatever designation known, such as khambattam etc". It does not say that the land would be private land if it is khambattam, khas, sir or pannai or if it is known to be such. These words are not explanatory of home-farm land as is evident from the expression by "whatever designation known" all that is stated is that the land goes by the name of those expressions khambattam etc.

Under the corresponding section of the Bengal Act, Section 120 in Clause (a) it is stated that private land is "land which is proved to have been cultivated as kamar, zirat, etc." by the proprietor himself with his own stock or by his own servants or hired labour for 12 continuous years immediately before the commencement of the Act. This definition insists cultivation as kamar etc., and corresponds to the second part of the definition in the Madras Act which requires continuous cultivation for a period of 12 years immediately before the commencement of this Act. The first part therefore does not mean that it should have been cultivated as kambattam, khas, sir or pannai.

Under the second part of Section 120 (b) of the Bengal Act, private land is cultivated land which is recognised by village usage as proprietors, kamar, zirat, sir etc. The expression by whatever designation known in the definition in Section 3 (10) must have reference to a recognition in the village as kambattam etc. The attempt on the part of the learned advocate is to make these words and their import as defined by Wilson in his Glossary, the essence of the definition and deduce therefrom that proof of cultivation of the lands is the sole test for determining private land. I am not prepared to read the section in the manner suggested by the learned advocate for the appellant and whatever may be the meaning to be attached to these expressions at present the definition has not made the meaning of those words the essential part of the definition.

"Kambattam" according to Wilsons Glossary at page 254 is used in two senses. One is cultivation which a cultivator carries on with his own stock, but by the labour of another, the other is the land which a Zamindar, Jagirdar, or Inamdar keeps in his own hands, cultivating it by labourers, in distinction to that which he lets out in farm. Khas applies according to that Glossary to lands held by zamindars and cultivated by themselves for their own benefit. "Sir" is the name applied to lands in a village which are cultivated by the hereditary proprietors or village zamindars themselves as their own especial share, either by their own labourers and at their own cost, or by tenants at will, not being let in lease or farm; these lands were sometimes allowed to be held at a favourable assessment, or were unassessed so as to provide Nankar, or subsistence for the proprietor. The term is also sometimes applied to lands cultivated on account of the state, or to those in which the revenue is paid by the cultivators without any intermediate agent. "Pannai" at page 398 means a field, a rice field; cultivated ground; tillage, husbandry". The two expressions "khas" and "sir" are not in vogue in this presidency so far as my knowledge goes. "Pannai" as defined by Wilson does not import personal cultivation by the zamindar. The only two words that are used in this presidency are therefore kambattam and pannai. The word "kambattam" is used in a general sense also to denote a mans personal cultivation.

It is difficult to infer from the meaning of these words as given by Wilson in 1855 that the words have the same meaning and must be understood in the same sense even at the present day or at any rate in 1908 when the Estates Land Act used that expression. As regards "pannai" as pointed out by the Civil Judge in NAGASAMI KAMAYA NAIK V. YIRAMA-SAMI, 7 M H C R 53 already referred to it is used to denote land in which the tenants acquired no occupancy rights. It is therefore not possible to infer from these expressions particularly from the meaning as given by Wilson in 1855 that these words have the same meaning and have the common feature of personal cultivation of the lands by the land-holder (see also the meaning of the words as given by Baden Powell cited above).

When in the second part of the definition the Legislature definitely insisted upon the test of continuous cultivation, to determine whether a given land is private land or not it is difficult to see if the intention of the legislature even in the first part was to insist upon test of cultivation why it did not expressly say so. The reason is according to me that these lands in estates have acquired a different character by reason of a continuous course of treatment and could easily be ascertained by reference to the documents such as village accounts, pattas and muchilikas and the other mode or manner in which the land-holder enjoyed these lands whether the lands were or were not private lands. The same idea is contained in the Bengal Act. In the village the tenants know with certainty which lands are private lands and which lands are ryoti lands in which they acquire occupancy rights.

It is therefore difficult to infer from the first part of the definition that cultivation is the test and is the exclusive test and the sole test for determining the nature of the land. Further, this view receives support from Section 185 which deals with evidence. If what is to be established under the definition is cultivation, it is difficult to understand why the Legislature permitted specific letting before 1898 as a test or as admissible evidence to prove the character of the land. The idea of letting is diametrically opposed to the idea of cultivation. Again local custom which is permissible under the first clause of Section 185 is also unnecessary and could not afford evidence of proof of cultivation. If according to the usage in the village the land was recognised as private land that is also a factor which goes to establish according to the section that the land is private land. The only clause under which cultivation may be proved is under Clause (3) of Section 185 which contemplates any other evidence that may be produced. Reading therefore the definition with Section 185, it is impossible to infer from the definition of the first part that the legislature intended to lay down the test of cultivation as the sole and exclusive mode of determining the character or nature of the land.

34. This leads me to a consideration of the decisions reported and unreported which have been placed before us in the course of arguments by either side. The decision in Lakshamayya v. Varadaharaja Apparao, 36 Mad 168 [LQ/MadHC/1912/453] is a decision relating to the Nuzvid estate of which the Gannavaram estate was a part. The suit was instituted by the Zamindar to eject the defendants from certain lands in a village which he claimed to be soverum or private lands in which he possessed both the kudiwaram and the melwaram rights. The defendants, the tenants, denied the right of the plaintiff to kudiwaram and claimed occupancy rights in the lands and contended also that the civil Court had no jurisdiction to entertain the suits as the lands were not private lands but were ryoti. The tenants were successful in the first Court, but on appeal the District Judge reversed that decision holding that the lands were the private lands of the Zamindar in which he owned both the warams. He relied upon the use of the words "soverum" in the accounts and in some of the muchilikas which according to him indicated that the Zamindar was the owner of both the warams. There was also other evidence which established that the Zamindar treated the lands on a different basis from "seri" or ryoti lands in his estate. In the survey of 1870 the two classes of lands were differently numbered and in the accounts the zamindar was shown as owner of the lands and not the cultivating tenants. The pattas of 1897 contained express admissions by the tenants that the lands were "soverum" lands & that they had no jeroyati or occupancy rights. The Zamindar also paid the water rates himself while in the case of "seri" lands or ryoti lands, the water cess was collected by the Government directly from the ryots. There was an assertion by the zamindar in 1892 that the lands were private lands and the ryots admitted the full proprietary right of the zamindar in the lands. From this evidence the District Judge concluded that the lands were private lands. There were second appeals by the ryots against the decision of the District Judge.

The main argument on their behalf was that the interpretation of the word "soverum" given to it by the District Judge that it comprises both the warams was not correct and this argument found favour with the learned Judges, Sundaram Aiyar and Sadasiva Ajyar JJ. who heard the appeals. "Soverum" denoted either the ownership of both the warams or of melwaram alone and so the use of the word in the documents was inconclusive to establish the ownership of both the warams by the zamindar. The learned Judges, however, were of opinion that this error on the part of the District Judge did not vitiate the finding as there was undoubted evidence afforded by the treatment of the lands by the Zamindar, and the admission of the tenants that they had no occupancy rights in the land. On the basis of this evidence, the finding of the learned District Judge was upheld by the High Court and the appeals were dismissed. Sundaram Aiyar J. at page 172 adverted to the origin of private lands and observed:

"Sometimes the zamindar was a descendant of a royal family that enjoyed demesne or private lands and remained in possession of them after the family ceased to exercise sovereign powers, but continued to have zamindari rights under the Muhammadan rulers. The holder was allowed to retain these private lands as compensation for services rendered by him to the State and partly also in consideration of his being responsible for the collection and payment of the State revenue. The private land in his own occupation was itself exempt from the payment of any revenue."

This description of the origin of private lands agrees with what was stated in the fifth report and by Baden Powell. The learned Judge treats private land as equivalent to "demesne" lands and what is more significant is that the inference of the lands being private was drawn from the treatment and the conduct of the parties in respect of the land extending over a long period of years. The treatment referred to is the mode of dealing with the lands as separate from ryoti lands in the survey and also in the village accounts. Admissions by the ryots before 1898 were also taken into consideration to determine the character of the land. There is no proof in that case that the lands were ever cultivated by the Zamindar nor was there any specific reference to an intention to resume cultivation at any future date. The case definitely falls under the first part of Section 3 (10) and is clear authority for the view that there may be other modes of proof other than cultivation by which an inference that the lands were private may be drawn.

This decision it must be mentioned was never questioned or disputed or doubted in this Court and is good law. The decision was pronounced by two eminent Judges who had considerable experience and intimate knowledge of land tenures of this presidency and is entitled in my opinion to the greatest weight.

The decision in Arthorama Pahu v. Arthopadhi 25 Mad. L. J. 248 is also a claim by a purchaser from a zamindar lands which were claimed to be private lands." All that is stated in the course of the judgment at page 250 is that the burden of proving that the lands are home-farm lands is on the Zamindar or his representatives. This is clearly laid down by Section 135 of the Estates Land Act; and then it is added that

"the question of possession, that is, whether the zamindar had been in direct possession through his private servants is the most important fact to be considered in such cases".

This decision is not an authority for holding that cultivation is the test.

35. There are two decisions in Chitam Reddi v. Appalanarasimha 1914 Mad W N 766 and Markapulli Reddiar v. Thandava Kone 1914 Mad W N 798 which have been referred to but they do not throw any light on the question under consideration.

36. I now come to the decision in Zamindar of Chellapalli v. Rajalapati Somayya 39 Mad 341 [LQ/MadHC/1914/478] on which strong reliance was placed by the learned advocate for the appellants and which is the basis in the later decisions for holding that the test of cultivation or at any rate an intention to resume cultivation at a future date should be applied. In that case the lands were definitely proved to be ryoti lands to start with. The Zamindar was not able to prove continuous cultivation for a period of twelve years before the commencement of the Act. He relied upon the treatment of these lands in his accounts and also admissions in muchilikas executed by tenants in proof of the conversion of the lands from ryoti into private. Both the learned Judges agreed on the question that even assuming that retrospective conversion was permissible under the Act such conversion could be proved by other means than that of cultivation for a continuous period of 12 years prior to the commencement of the Act. Both the learned Judges agreed on the finding of fact that the Zamindar failed to prove conversion even by such evidence. Seshagiri Aiyar J. took the view that retrospective conversion was not permissible except to the extent to which it was recognised by the proviso to old Section 185 which is now the second part of the definition in Section 3 (10). Wallis C. J. differed from that view. In the result both the learned Judges agreed in holding that the lands were not shown to be private lands.

The discussion by Wallis C. J. of the question whether actual conversion from ryoti into private land has been established by the evidence commences at page 345. He starts the discussion by formulating the question that it is necessary in order to prove actual conversion from ryoti into private land, there should be very clear and satisfactory evidence; and then he proceeds to examine whether the evidence adduced in the case was sufficient for the purpose.

The learned Judge adverts to the attempt of the Zamindars after Chockalingam Pillai v. Vythealinga Pundara, 6 M.H.C. R. 164 to introduce in pattas and muchilikas clauses negativing the existence of occupancy rights and to achieve this object they very often introduce the description of the lands as Kambattam or home-farm lands even though the lands were never cultivated by the zamindar and he had no intention of so cultivating it. He also pointed out that the Zamindar in that case increased the extent of his private land from what it was in 1936 namely 102 acres to about 800 acres by the date of suit which is definite evidence that the Zamindar was endeavouring his level best to withdraw public land and convert it into private land so as to prevent acquisition of occupancy rights by the ryots. It was found that the lands were always cultivated by the tenants. The learned Judge observed at page 346 that it was necessary for the Zamindar to establish that the lands were at some time domain or home-farm lands and the acquisition of kudiwaram right by the zamindar at a subsequent date would not by itself have the effect of converting what was once ryoti into private land. In that connection he observed at the bottom of page 346:

"It does not seem to me that calling the lands kambattam and letting them on terms which negative occupancy right with a view to prevent the assertion of such right is sufficient to convert them into private lands within the meaning of the definition."

In other words, the sentence in the context means that if the zamindar once knew the nature of the land to be ryoti, by mere introduction of the description of the land as kambattam in pattas and muchilikas which in the very nature of things must be a colourable description would not convert the land into private land. It must be remembered that even according to the proviso to Section 185 the only test that is permissible to prove conversion of what was once ryoti into private land is the test of cultivation. Having this in mind I should think the learned Judge observed at page 347:

"The Subordinate Judge has found and I agree with him that the suit lands were never cultivated by the zamindar as part of his home-farm lands, and it seems to me that his treatment of them as kambattam was merely colourable for the purpose of defeating the occupancy rights of the tenants. In some parts of India lands of this kind are known as sir lands, and this is one of the terms mentioned in the definition. In Budley v. Bukhtoo 3 N.W. P.H.C.R. 203 it was held that sir land is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even when from time to time he demises it for a season. I think that this test may well be applied here, and that, as the plaintiff has failed to satisfy it, the appeal fails and must be dismissed with costs."

This paragraph is the foundation for the argument of the learned advocate for the appellant in the present case and is also responsible for some of the observations in the later cases for concluding that the test to determine the character of the land and the sole test is proof of cultivation by the zamindar himself and proof that he intends to retain or resume for cultivation by himself even when from time to time he demises it for a season. The learned Judge was called upon to decide the question as to what should be established in order to prove conversion of the land into private land. He was not called upon to decide upon the language of Section 3(10) the essentials as to what constitutes domain or home-farm lands. Reference to colourable description in the pattas and muchilikas of the lands as kambattam is a clear indication that what the learned Judge had in mind was what was definitely known to be ryoti land and not a case where the character of the land is unknown and for the first time the Court is called upon to determine its nature on the evidence adduced. In the last sentence in the paragraph extracted above the learned Judge is careful enough to say that "this test" that is, the test of cultivation and the intention to retain may well be applied here, that is in the present case, in which the question of conversion and conversion alone is under consideration. In my opinion this passage cannot be treated as an authority for the interpretation by the learned Judge of Section 3(10),

Seshagiri Aiyar J. after referring to "domain" or "home-farm" land at page 350 refers to the proviso and observes:

"The object of the proviso is to enable the landlord to say that although the land was seri, he has by his own servants, or by hired labour cultivated the land for 12 years preceding the Act and that consequently it should be regarded as his home-farm land. An irrebuttable presumption should be drawn from such a conduct. If one remembers that a home-farm land is that which has been ordinarily cultivated personally by the landlord at the outset, the meaning of such a reservation in favour of the landholder will be apparent. This conclusion carries out the scheme of the legislature which seems to be opposed to the augmentation of the private land of landholders, except in the special instance mentioned in the proviso to Section 185."

The learned Judge here uses very guarded language and says that home-farm land is that which has been ordinarily cultivated personally by the landlord at the outset, thereby implying that it need not necessarily be always under cultivation and that at the time of the determination of the question there should have been proof that there was cultivation and the reservation in the proviso to old Section 185 was intended to benefit the landholder to the extent of the cultivation which he continuously carried on at or about the time of the commencement of the Act.

It is somewhat curious that the decision in BUDLEY v. BUKHTOO 3 N.W.P.H.C.R. 203 which is referred to by Sir John Wallis, in his judgment is also a case of attempted conversion of land in the occupation of cultivating tenant into sir or pannai land. The appellant who was the tenant in that case asserted that the land in his holding was held by him for over 12 years as an ordinary cultivator. The lands were however entered later in the revenue papers as "sir" land. He therefore applied to the Settlement Officer for the correction of the record and for registering him as a tenant with rights of occupancy. This application was opposed by the Zamindar who claimed that the land was his "sir" and had actually been cultivated by him until the preceding year when it was let by his son to the appellant. The Settlement Officer after enquiry found that the case of the tenant was true, that the land was cultivated for more than 12 years by him and that while under his occupation the Zamindar had recorded the land as sir although it was never cultivated by him. He therefore directed that the appellant should be recorded as tenant with rights of occupancy. The Zamindar instituted a subsequent suit contesting the correctness of the decision of the Settlement Officer and claiming that the land was his "sir" land. The Zamindar failed before the Munsif but was successful before the Subordinate judge who reversed the decision of the Munsif dismissing the suit and upholding the contention of the Zamindar as the land was registered in the revenue papers as sir for more than 12 years. There was a further appeal to the High Court which pointed out that the proposition applied by the Subordinate Judge was wholly unsound and that the:

"mere entry of land as sir will not make it a seer land. Were this so, it would be in the power of every zamindar to convert the whole of the land of the village into seer by simply recording it as such. Sir land, as we understand it is land, which at sometime or other has been cultivated by the Zamindar himself, and which although he may from time to time for a season demise to shikmees, he designs to retain as resumable for a cultivation by himself or his family whenever his requirements or convenience may induce him to resume it. The Settlement Officer had ruled that seer land must be land which had been cultivated by the proprietor and the Subordinate Judge was in error when he denounced this ruling as erroneous."

Just as there was colourable description of the lands in the decision in the CHELLAPALLI CASE 39 Mad 341 [LQ/MadHC/1914/478] , in the pattas, negativing occupancy rights of the tenants, in this case also the zamindar got the entries in the revenue records as seer land which of course, would not have the legal effect of changing the character of the land. The test of cultivation, therefore, was applied in both cases to establish conversion of ryoti land into private, The two decisions are not certainly authorities for interpreting the language of the definition.

There was an appeal in the CHELLAPALLI CASE, 39 Mad. 341 [LQ/MadHC/1914/478] to the Privy Council and the decision of the Judicial Committee is Mallikarjuna Prasad v. Somayya 42 Mad. 400. Their Lordships of the Judicial Committee accepted the concurrent findings of fact as to the lands being ryoti which is the opinion of both the Judges, Sir John Wallis, C. J. and Seshagiri Aiyar J. though they differed on the question of law. The Zamindar as pointed out by the Privy Council attempted to prove that by custom the lands were his private lands but failed in his attempt. Their Lordships of the Judicial Committee quoted the passage from the judgment of the Chief Justice just cited above and observed at p. 405 "that the test is obviously suggested by Section 185 of the Act and was rightly applied by the Chief Justice."

Upon this observation of the Privy Council the argument was based that the sole test of cultivation as the essence of the definition of private land in Section 3 (10) was accepted by the Privy Council and therefore must be taken as final. In my opinion this proceeds on a total misapprehension of the remarks of the Judicial Committee. The test suggested by Section 185 must necessarily refer to the proviso to Section 185 where alone "cultivation" is referred to. In the three categories of evidence referred to in the body of the section no reference is made to cultivation. Their Lordships, therefore, must have meant when they approved the test laid down by Sir John Wallis C. J. that in order to establish conversion "you must prove cultivation pr intention to retain as resumable for cultivation these lands." They were not considering the definition of private land in Section 3(10). It is a clear case in which to start with the land was known to be ryoti land and Section 185 had no application except the proviso which relates to cultivation for a period of 12 years in which case the land according to the old section was deemed to be private land even though it is known to be ryoti land at its inception.

Mallikarjuna Prasad v. Subbiah 39 Mad. L. J. 277 is a case in which the question of conversion of ryoti land into private laud arose for consideration. Both the learned Judges Abdur Rahim and Burn JJ. accepted the view of Seshagiri Aiyar J. that retrospective conversion was not permissible except to the extent recognised by the proviso to Section 185. There was no proof of direct cultivation in that case. Abdur Rahim J. at page 281 states the effect of the decision as follows:

"The question what is home-farm land and what is ryoti land within the meaning of this Act has been discussed in a number of cases of this Court and the general conclusion arrived at is that ryoti land is land which is in the occupation of the cultivating ryot in contrast with the home-farm land which the Zamindar is entitled to deal with in any way he chooses by contract without being hampered by the provisions of the Estates Land Act."

And then the learned Judge refers to the decision in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] which was confirmed by the Privy Council in Mallikarjuna Prasad v. Somayya 42 Mad. 400 and the test laid therein. The main object of Section 185 was considered as laying down rules of evidence showing whether the land in question is ryoti or private land and that by mere letting out on lease the land which was once ryoti was not enough to convert the land into home-farm land. Burn J. examined the scheme of the Act and at page 291 observed:

"The scheme of the Act appears to me to be to divide all cultivable land into two categories (1) private land -- the entire interest in such land is vested in the land-holder. The temporary rights of cultivators of such land are based on contract. They cannot acquire occupancy rights except by the deliberate action of the land-holder. (2) Ryoti land --in all such land two separate interests exist--- the melwaram and Kudiwaram interest-- the former is vested in the land-holder and the latter in the ryot. It seems to me that one, main object of the tenancy law is to preserve these two interests and keep them separate. The kudiwaram interest may be in abeyance but it can never be destroyed. The landholder cannot prevent the acquisition of the right of a ryot. This is so even where a decree had been obtained before the passing of the Act............A land-holder can hold the kudiwaram interest in one case only, i.e. where he possessed it before he became the land-holder -- (Vide Exception to Section 6) and even then the two interests remain separate."

The learned Judge construes the decision in Zamindar of Chelluppali v. R. Somayya, 39 Mad. 341 [LQ/MadHC/1914/478] and Mallikarjuna Prasad v. Somayya 42 Mad. 400 as laying down the test to be applied in deciding whether conversion hag really taken place or not (vide page 293 bottom). Even if there was getting, if there is intention on the part of the lessor to resume direct cultivation the land may be presumed to be private land.

37. The decision in Veekabhadrayya v. Zamindar of North Vallur 50 Mad. 201 [LQ/MadHC/1926/243] is no longer good law in view of the decision of the Full Bench in Bansharu Jogi v. Seethara Amurti ILR (1948) Mad. 223 The learned Judges were of opinion that retrospective conversion of ryoti land into private land was permissible under the Act even apart from proof of cultivation for a continuous period of 12 years before the commencement of the Act. The only importance of this decision is in dealing with evidence to determine the nature of the land. Venkatasubba Rao J. points out the distinction between the two species of lands (1) Immemorial Kamatam; (2) lands relinquished by ryots and absorbed into zamindars kamatam lands. He adverts to the distinction that is kept in the records maintained by the estate between the two categories of lands and the lands in dispute in that case were lands falling under the second category that is lands which were originally ryoti but subsequently added to the Zamindars private land. On the evidence the conclusion of the learned Judge was that the zamindar has established conversion and with this conclusion Krishnan J. also agreed. There was a specific finding in that case that the Zamindar failed to establish direct cultivation by himself and the question was decided mainly on the documentary evidence in the case. Here again even for inferring conversion the test of direct cultivation was not insisted on.

38. There is the decision of a single Judge of this Court by Madhavan Nair J. (as he then was) reported in Vadiyangati Chinnarigadu Vs. Kotigari Rangayya Chetty, , which deals with a case of private land. In that case the land was not known to be ryoti land to start with and the question had to be decided on the evidence whether the land was private land or not. The lands in the village were known as "khas" "khas Bhagayat" which indicated that the lands were cultivated by the zamindars themselves. The learned Judge considers the question as one which falls to be decided u/s 185 of the Estates Land Act, the burden of proof undoubtedly being on the plaintiff, the zamindar. The evidence in the case showed that from 1877 onwards the land was let to tenants and it was not known how it was dealt with prior to that date. There were leases from 1877 to 1891 which contained a description of the land in various ways as Kambattam, Samastanam Khanigi and also contained surrender clauses. The pattas issued to the tenants were described as Sagupadi pattas, in contra-distinction to pattas given to tenants who possessed occupancy rights in the lands. There was a change of tenancy and the rates of rent also varied from time to time, Sometimes rent was collected in kind and sometimes according to the varied cash rate in the village. The ryots were allowed in some cases to continue in possession of the lands from year to year. On this evidence it was held that the finding of the Courts below that the land was private land was justified. Reference was made in the judgment to the CHELLAPALLI CASE 39 Mad. 341 [LQ/MadHC/1914/478] and to the test of cultivation by the Zamindar that was laid down in that case. The evidence of direct cultivation was of course lacking in the case but all the same having regard to the dealing by the zamindar of the lands in a manner as he liked, it was held that that was sufficient proof that the land was private land.

No doubt in that case it was not contended that the test of cultivation alone is the determining factor but CHELLAPALLI CASE 39 Mad. 341 [LQ/MadHC/1914/478] was distinguished on the ground that it related to a land which was originally ryoti and the zamindar attempted to prove that there was conversion. This decision in my opinion establishes that apart from the test of cultivation there may be other modes by which the character of the land may be determined; and in doing so the evidence referred to in Section 185 as permissible evidence may be taken into consideration. The treatment of the land by the zamindar under leases, the terms of which were determined by him at his pleasure and the recognition by the tenants that they had no occupancy rights in the lands were considered as sufficient to warrant the inference that the land was private land. Ryoti lands were treated in a different manner from the private lands.

39. Chelikani Kondayya Rao and Others Vs. Vuppalapati Naganna and Others, , a decision of Wadsworth J. related to conversion of private land into ryoti under a document by which conversion was brought about. The learned Judge defines at page 781 "home-farm" land as land regarding which the land-holder at least retains an expectation that he will at some not too distant a date use it for his own cultivation and enjoyment. This test, it is claimed, follows from the decision in the CHELLAPALLI CASE 39 Mad. 341 [LQ/MadHC/1914/478] . The learned Judge, however, in laying down this test does not insist upon proof of direct cultivation at some time or other to establish that a land is home-farm land. A mere intention or an expectation to cultivate it even if it be at a distant date was enough according to the learned Judge to constitute the lands home-farm land.

This decision was carried in appeal under Clause 15 of the Letters Patent in Kondayya v. Naganna ILR (1941) Mad. 720 [LQ/MadHC/1941/31] which was heard by Sir Lionel Leach C. J....... Venkataramana Rao and Krishnaswami Aiyangar JJ. The majority of the Judges. Krishnaswami Aiyangar J. dissenting, confirmed the decision of Wadsworth J. that the land was converted effectively into ryoti land, as the land-holder sold the kudiwaram right under the document but retained only the melwaram right and they also further held that some of the terms in the sale-deed which were inconsistent with the land being ryoti would not alter the nature and effect of the conversion of the land into ryoti.

The only importance of this decision in my opinion, so far as it throws any light in the present discussion, is stated at page 726, by the learned Chief Justice that the essential characteristic of ryoti tenure is the permanent vesting in the tenant of the kudiwaram interest and the permanent retention by the landholder of the melwaram right. It would follow from this definition of the nature of ryoti tenure that if there is no such permanent vesing of the kudiwaram right in his tenant in a particular piece of land and both the rights were retained by the land-holder it would be private land if otherwise the land is not shown to be ryoti land to start with. Krishnaswami Aiyangar J. who dissented from the majority view differed from them and held that a mere conveyance of the kudiwaram interest did not amount in that particular case to a creation of a ryoti tenure in the land conveyed. This decision really lays down the test for determining what constitutes in law a conversion of private land into ryoti which is really the converse of the conversion of ryoti land into private.

40. The next decision which Js of importance is the unreported judgment of Krishnaswami Aiyangar and Somayya JJ. in Thiagurajasami Devastanam v. Muthuswami, C. M. A. No. 311 of 1943. The lands in that case were in an inam village which became an estate under the Estates Land Act" (Amendment Act XVIII (18) of 1936); and the sole question for decision was whether the lands in suit were or were not private or home-farm land of the land-holder.

41. It would not be out of place at this stage to advert briefly to the position of an inamdar who owned the kudiwaram in an inam village prior to the Estates Land Act, 1908, and thereafter. Before the Act of 1908, the only question in an inam village was whether the inamdar owned or not the kudiwaram interest in the lands. In many villages the distinction between what was known as private land in permanently settled estates did not obtain. The tenant in the land could acquire occupancy rights either by grant or by prescription. Section 3(2)(d) of the Estates Land Act, 1908, converted some of the inam villages into estates by enacting that if melwaram in a village was granted in inam to a person who did not own the kudiwaram right thereof and if the grant was either made or confirmed or recognised by the Government it was an estate. If the inamdar owned the kudiwaram in the village on the date of the grant the grantee of the melwaram would not be a holder of an estate. In respect of inam villages which became estates under this definition the legislature consciously or unconsciously applied the broad division of the land into private land and ryoti land and an exception was however recognised u/s 8 that if before or after the commencement of the Act, the inamdar acquired the kudiwaram interest in any land comprised in an estate falling within Clause (d) of Sub-section 2 of Section 3 such lands ceased to be part of the estate.

It followed therefore that under the old Act even after the date of the grant if the inamdar acquired kudiwaram interest in any particular land whether the acquisition was before the Act or after the Act it did not matter, the land ceased to be part of the estate and therefore ceased to be part of the ryoti land. In such cases it was not necessary for the inamdar to show that in respect of such lands the test in Section 3 (10) of the lands being private is fulfilled in order to prevent the acquisition of occupancy rights in such lands by a tenant who is let into possession after the Act.

When we come to the Act of 1936, the situation however was completely altered and inam villages were made estates irrespective of the question whether the grant was of mel-waram alone or not and also irrespective of the question whether the grantee owned the kudiwaram interest at the date of the grant or not. Under the definition of private land in estates falling u/s 3 (2) (d) of the Act, a special definition of private land was embodied in Clause (b) of Section 3 (10); the inamdar or land-holder could prove that the land is private land within the meaning of the definition if he proved continuous cultivation for a period of 12 years either before 1st July 1908 or before the 1st November 1933, but in either case he must further prove that he had since retained his kudiwaram interest without converting it into ryoti land. The first clause of Section 3 (10) (b) is the same as the first clause of Clause (a) of Section 3 (10). Under Sub-clause (b) (iv) a further exception was recognised in the case of lands in which the land-holder had acquired the entire kudiwaram interest in a land before the 1st November 1933, for valuable consideration; but if the purchase was at a sale for arrears of rent, it is further necessary for the land-holder to establish that there was continuous cultivation for a period of 12 years since the acquisition of the land and that he had not converted the land into ryoti. Section 8 (5) recognises a limited right of letting of land in respect of which there is a prior adjudication that the tenant had no occupancy rights which adjudication was before the 1st November 1933, to let the land for a period of 12 years, from the commencement of the Amending Act, 1936 on his own terms. The rules of evidence in Section 185 were also altered as a consequence of the alteration of the definition in Section 3 (10); in the second proviso to that section two Sub-clauses were added. Under the first Sub-clause the expression in a lease or patta of the land executed or issued on or after 1st July 1913 implying that a tenant has no right of occupancy 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 under the second clause such expressions would not by themselves be sufficient for proving the land concerned as private if contained in leases executed or issued before the 1st July 1918.

42. In C.M. A. No. 311 of 1943 the learned Judges had to consider whether the lands in suit were home-farm or private lands within the meaning of the first clause in Section 3 (10) (b), i.e., "domain" or "home-farm" land of the landholder by whatever designation known such as kambattam, khas, sir, or pannai; and it is the same word for word as the first part of the Clause (a). There was proof that the land-holder was the owner of both the warams, but he was not able to establish direct cultivation. The learned Judges held that mere proof that the land-holder was the owner of both the warams would not be sufficient to constitute the land private land. The question had to be decided on the documentary evidence in the case and the other facts established by documents and leases produced in the case. It was argued in that case on behalf of the tenants that the test of actual and direct cultivation by the landholder even though he might let it on leases for some season, or an intention of cultivating it himself should be proved to satisfy the requirements of the definition relying upon the decision in the Chellapalli case 39 Mad. 341 [LQ/MadHC/1914/478] . This decision it was held by the learned Judges and the tests propounded therein apply only to cases where the land was admittedly ryoti land to start with and was inapplicable to cases where the character of the land in its origin was unknown. The definition is not confined to lands which are known as khas or sir and they are given only as examples. If the lands are known by these expressions they would be domain or home farm land.

But even in the case where these expressions are not shown to have been applied to the lands in dispute it did not follow that by that reason alone they are not domain or home farm lands. If the land is continuously cultivated for a period of 12 years it is unnecessary to go to Clause (i) to determine the character of the land. The very fact that the definition recognises and includes in it lands which are shown to have been cultivated as private lands is a clear indication that there may be other lands which need not satisfy the test of cultivation. The leases in the case established that there was a change in the personnel of the tenants from time to time, the rent was varying and that the tenants had a right only to enjoy the produce from fruit bearing trees other than iluppai trees but had no right to cut them, that the iluppai trees exclusively belonged to the landholder and that the lands were leased out by public auction to the highest bidder. The cumulative effect according to the learned Judges of all these circumstances is to establish that the lands are home farm or private lands. There were also other circumstances showing that the landholder treated himself as the absolute owner of the both the warams and the tenants themselves recognised such ownership in unambiguous terms. This case, therefore, is an authority on the construction of the definition of private land and establishes that apart from proof of actual cultivation or an intention to resume cultivation at a distant date, there may be other tests by which the nature & the character of the land could be determined & that the decision in the Chellapalli case 39 Mad 341 [LQ/MadHC/1914/478] and the tests propounded therein are not the sole and exclusive tests in order to determine whether a land is private or home-farm land or not. The learned Judges held that on the evidence it was established that the lands were private lands. This decision more or less is analogous to the decision in Lakshmayya v. Appakao Bahadur, 36 Mad 168 [LQ/MadHC/1912/453] on facts though no reference was made to it.

43. I now come to the decision in Jagadeesam Pillai v. Kuppammal, I. L. R. (1946) Mad 687 on which strong reliance was placed by the learned Advocate for the appellant and which was also considered in some of the unreported decisions of this Court. The case related to lands in a village which is part of the Tanjore palace estate. It is an inam village which was an estate u/s 3(2) (d) of the old Act or in any event under Madras Act XVIII of 1936 and the question was whether the lands were private lands or ryoti lands. The Tanjore Palace Estate was by treaty ceded in 1799 to the East India Company by the then Raja, under which the company acquired a right to collect revenue of the lands in the Tanjore country. This was continued till 1855 when the Raja died and the villages lapsed to the East India Company. On representations made by the senior widow of the last Raja on 21st August 1862 after she was unsuccessful in the litigation which was finally disposed of by the Privy Council, the estate was made over to the senior widow. There was again litigation in 1866 between the Ranees when a receiver was appointed by the Court to manage the estate. The village in suit was ultimately allotted to one Subbanandaji Bhonsle Sahib; but the properties were subject to a charge and the plaintiff therein purchased them in auction on 2nd September 1940 in execution of the charge decree. The village of Kudavali which was the subject-matter of the suit was the village proper and has a hamlet called Ponavasal.

The earliest document in the case indicated that the lands in the village of Kaduveli and its hamlet Ponavasal were ryoti lands in which the ryots had occupancy rights. During the management by the Government in 1860-61, the accounts showed that from the total beriz the melwaram and service manyam melwaram are deducted and the balance was treated as miras thunduwaram. The lands during the period of management of the receivers were leased to tenants but from a document Ex. P. 16 of the year 1873 it appears that the cultivators received an advance for purchasing seeds for wet lands and that the village was "in amani" which term according to the ordinary meaning denotes that the lands were under direct cultivation, though the learned Judge, Wadsworth, O. C. J. expressed a different opinion. There was no other evidence of any direct cultivation of the lands. The effect of confiscation by the Crown of the lands did not affect the rights of the mirasi proprietors.

The learned Officiating Chief Justice accepted the interpretation put upon the word "Domain" by Wallis C.J. and Seshagiri Aiyar J. in the Chellapalli case, 39 Mad 341 [LQ/MadHC/1914/478] , as meaning "land immediately surrounding the mansion or dwelling house, the park or chase" and would connote land appurtenant to the mansion of the lord of the manor, kept by the landlord for his personal use and cultivated under his personal supervision as distinct from lands let to tenants to be farmed without any control from the lord of the manor other than such control as is incident to the lease. The learned Judge further observes :

"It seems to us that the Sub-clause (b) (1) of the definition is intended to cover those lands which come obviously within what would ordinarily to recognised as the domain or home-farm, that is to say, lands appurtenant to the landholders residence and kept for his enjoyment and use."

I have already shown that this narrow definition of "domain" or "home-farm" land does not fit in with the nature of private land as understood both in Bengal and in this Presidency.

Reference was made in the course of the judgment to the unreported decisions of Krishna-swami Aiyangar and Somayya JJ. but the learned Judge differed from the view expressed in that case that the decision in the Chellapalli case 39 Mad 341 [LQ/MadHC/1914/478] and Mallikarjuna Prasad v. Somayya, 42 Mad 400 were confined to lands which were originally ryoti but which were claimed to have been converted into private land. Apparently from the trend of the reasoning of the learned Judge at page 703 the learned Judge was not inclined to accept this distinction made in the unreported decision. In the opinion of the learned Officiating Chief Justice, Krishnaswami Aiyangar and Somayya JJ. dealt with the definition of private land in a way which was inconsistent with and which was irreconcilable with the decision of the Privy Council in Mallikarjuna Prasad v. Somayya 42 Mad. 400 He has however inclined to accept the correctness of the decision in the unreported case on the broad facts and remarked: "but with some of the observations contained in that judgment we must express our respectful disagreement."

The learned Judge does not specify the observations to which exception was taken and from which he expressed his respectful disagreement. It is therefore difficult to see on what ground the ratio decidendi of the unreported decision was not accepted by the learned Judge. At page 705 of the report the learned Judge discusses the nature of home-farm land, but from an examination of the discussion by the learned Judge it is by no means clear what exactly is the test which the learned Judge lays down to determine whether a particular land is home-farm land or not. He observed at page 705:

"The home farm land is land which the landlord farms himself as distinct from land which he lets out to tenants to be farmed. This first clause therefore is meant to include and signify those lands which are in the ordinary sense of the 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, for instance, lands which are at a distance from the domain or home farm but have been cultivated personally by the landlord for the required period of years, or lands in which the entire tenants right has been purchased by the landlord from the tenant when the land has never been treated as ryoti land since the purchase; 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 seems to us that the definition read as a whole indicates clearly that the ordinary test for private land is the test of retention by the land-holder for his personal use and cultivation by him under his personal supervision.

No doubt such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character but it does seem to us to be inconsistent with the scheme of the Madras Estates Land Act as amended 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 land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Madras Estates Land Act cannot acquire occupancy rights.

It seems to us that there are no materials in the present case to show that these lands have been so cultivated or retained by the land-holder. It is said that they are situated within a mile or two of one of the places in the estate; but they were not in origin home farm lands, before the seizure of the estate from the Raja, and seeing that the estate has been under successive receivers almost continuously since the regrant there is no evidence that the grantee treated these lands as lands kept for his personal use and occupation or cultivated them under his personal supervision. Seeing that the lands cannot come under any other clause of the definition than Clause (b) (1) of Sub-section (10) of Section 3 and having regard to the fact that the presumption is in favour of the ryoti character of the lands, we must hold that the plaintiff has failed to prove that the lands are private lands."

In this passage he seems to hold and lay down varying tests. In the first place lands which are far away from the residence of the landholder would not be private lands. He emphasises the distance and adverts to the circumstances that the lands were a mile or two away from the Palace in the estate. Secondly, that home farm lands are lands kept for the landholders enjoyment and use; and the test of retention by the land-holder of the land for his personal use and cultivation by him under his personal supervision is also emphasised. But at the same time the learned Judge concedes the right of the land-holder to lease out the lands on short term leases, for the convenience of the land-holder without losing their distinctive character. Thirdly, at another place, the learned Judge emphasises the test of cultivation, and fourthly again emphasises an intention to regard the lands as retained for his personal use and that there should also be an origin for home farm lands.

If the test is one of intention and if the right to lease the lands is conceded, a land-holder who owns both the warams and has always left the lands on short term leases at varying or fixed rates of rent and also had taken something from the tenant in recognition of his ownership of kudiwaram, it is difficult to see why in such a case an intention to retain the lands for personal use cannot be inferred. The retention of the kudiwaram itself without parting with it in my opinion is clear indication of an intention to resume cultivation even if it be at some distant future date. To restrict the definition to lands "appurtenant to the mansion of the manor" is to overlook the essence of the nature of private land as the history of these lands shows. Sections 19 and 134 of the Act clearly contemplates the leasing of the land to tenants and even the exchange of pattas and muchilikas which is clear indication that the lands need not be shown to have been cultivated at any time. Above all, in the concluding portion of the judgment he emphasises the fact that the lands in suit were not in origin home farm lands before the seizure of the estate from the Rajah. In other words, it means that the lands were shown to be once ryoti and therefore by any possible means they could not be converted into private land except by direct cultivation for a continuous period of 12 years. If this was what was meant in the judgment one need not quarrel with any or all of the observations of the learned Judge. The lands in the case, like the lands in the Chellapalli case, 39 Mad. 341 [LQ/MadHC/1914/478] were at their inception ryoti lands and the confiscation did not even affect the rights of the tenants, as held by the learned Judge. If that is so, by any amount of dealing with the property under the leases conversion into private land could not be affected. The actual decision in the case may be right on facts but the narrow and restricted definition of private and home farm lands which the learned Judges have indicated cannot be accepted as laying down the correct test. In my opinion the test was correctly laid down in the unreported decision in C. M. A. No. 311 of 1943.

44. After this decision in Jagadeesam v. Kuppammal I. L. R. (1946) Mad 687 there are some unreported decisions of this Court to which our attention was drawn. In Swami Vanniar v. Nagaraju, Section A. No. 847 of 1946 Rajagopalan J. had to consider the test to be applied u/s 3(10) (b) (iv) of the Act to establish retention of the kudiwaram interest in the land after acquisition of the kudiwaram. It was also contended in that case on the strength of the decision in Jagadeesam v. Kuppammal I. L. R. (1946) Mad 687 that the test of cultivation and retention by the landholder for his personal use and cultivation should be established to prove the retention of kudiwaram within the meaning of that Sub-clause. The learned Judge held that the decision in Jagadeesam v. Kuppammal, I. L. R. (1946) Mad 687 has no application and that the case before him was really covered by the decision in Rajayya v. Laxmana Ayyar I. L. R. (1946) Mad 181 [LQ/MadHC/1945/300] . The lease for short periods according to the learned Judge with varying terms would really indicate a definite intention on the part of the land-holder to retain his kudiwaram interest, not that he intended to part with it in favour of the lessee. The fact that the, lessee was the same is not enough to prove an intention to part with the kudiwaram interest.

In my view the intention to retain the kudiwaram interest & the intention to retain for cultivation are not different intentions. If a person retains the kudiwaram interest for what purpose does he retain it Only for the purpose of leasing it on his own terms and if necessary to resume cultivation. The test applied by Rajagopalan J. to establish retention of the kudiwaram interest may equally be applied to deduce an intention to resume cultivation of the kudiwaram interest owned by the landholder.

The learned Chief Justice and Rajagopalan J. in Ramakrishna Rao v. Seshayya App. No. 53 of 1946 considered whether on the broad facts of that case the land was private land or not. One peculiar feature in the case before the learned Judges was that practically the whole extent of the estate claimed as the private land of the land-holder. The land-holder however was unable to prove continuous cultivation but he was able to establish by evidence that he was keeping a large establishment of farm-servants in the village, live stock, agricultural implements and was carrying on personal cultivation of lands which were not taken up by the tenants. It was found that the lands were 1500 acres in extent and were more or less around the house of the land-holder. From these facts, it was inferred that the lands were private lands. The decision in Jagadeesan v. Kuppammal, I. L. R. (1946) Mad 687 was referred to in the course of the judgment and the passage from that decision already extracted in this judgment was also cited. The decision proceeded on the facts established in the case & it does not take us beyond the decisions already referred to.

Recently the question was examined by Subba Rao and Chandra Reddi JJ. in Parish Priest of Karayar Parish v. Thiagarajaswami Devasthanam, App. Nos. 176 to 178 and 493 of 1946. The learned Judges accept the test laid down in Jagadeesan v. Kuppammal, I. L. R. (1946) Mad 687.

45. The legal position is summarised as follows:

"The legal position having regard to the provisions of the Act and the decisions dealing with them in so far as it is relevant for the purposes of this case may briefly be stated thus. Private land as defined under the Madras Estates Land Act comprises two categories, private lands, technically so called and lands deemed to be private lands. In regard to private lands strictly so called, it must be a domain or home farm land as understood in law. The mere fact that particular lands are described in popular province as pannai, kambattam, sir, khas, is not decisive of the question unless the lands so called partake of the characteristics of domain or home-farm lands.

The test to ascertain whether a land is domain or home farm is that accepted by the Judicial Committee in Mallikarjuna Prasad v. Somayya, 42 Mad 400 i.e. 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. Whenever a question therefore arises whether a land is private land technically so called as defined in Sub-clause (1) of Clause (b) to Section 3 (10) the presumption is that it is not a private land. The recitals in the leases, pattas etc. after 1918 must be excluded and the recitals in similar documents prior to 1918 in themselves are not sufficient evidence. There must be in addition direct evidence that these lands were either domain or home farm lands in the sense that they were in their origin lands directly cultivated by the landlord or reserved by him for his direct cultivation. We are not concerned in this case with the question whether ryoti lands could be converted into private lands."

46. Reference may now be made to the judgment of my learned brother Viswanatha Sastri J. in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, . It arose out of a suit for rent which was instituted in a civil Court by the land-holder. The tenants pleaded that the lands were ryoti lands and that the civil Court had no jurisdiction to try the suit. The question for determination was whether the lands were or were not private lands. The Courts below upheld the contention of the landholder that the lands were private lands and decreed the suits for rent. In the revision petition before the learned Judge this finding was canvassed on the ground that the Court below gave themselves jurisdiction by a wrong decision that the lands were private lands and that they did not apply the correct test to determine the question whether the lands were private or not. The lands were admittedly situated in a permanently settled estate and the question was whether they satisfied the definition of private land in the first part of Section 3(10) (a) of the Estates Land Act. The test adopted in the Chelpalli case 39 Mad 341 [LQ/MadHC/1914/478] and by Wadsworth O.C.J. in Jagadeesam v. Kuppammal I. L. R. (1946) Mad 687 that domain lands are confined to lands appurtenant to the land-holders residence and kept for his enjoyment and use was rightly rejected by the learned Judge as inapplicable to conditions of land tenure in this presidency and as being opposed to the conception of private lands having regard to its history and nature. The learned Judge makes reference to the decision in Lakshmayya v. Appa Rao 36 Mad. 168 [LQ/MadHC/1912/453] and accepts the decision as correct.

The learned Judge examined elaborately the provisions of the Act and the decisions bearing upon the question and came to the conclusion that evidence of direct cultivation was not necessary and was not the only mode by which a land could be proved to be private land. Having regard to the course of the dealing by the zamindar of the lands from 1877 to 1939 which established that the zamindar treated the lands as private land and that the tenants acquiesced in the position that they had no occupancy rights in the land, the learned Judge came to the conclusion that the lands in question were private lands. For the reasons given by the learned Judge in his judgment I respectfully agree with his conclusions and also adopt the test applied by him to determine the character of the land as warranted by the provisions of the Act and the nature and character of private land 8g understood before and after the Estates Land Act.

47. This review of the decisions shows the conflict of judicial opinion and that the principle of stare decisis has no application. It is in view of the conflict that these cases were referred to a Full Bench to resolve the conflict.

48. Lastly, I have to refer to the decision of the Privy Council in Bindeshwari Prasad v. Keshoprasad Singh, 5 Pat 634 which in my opinion is decisive on the question which we have to decide. It is a decision u/s 120 of the Bengal Tenancy Act and this judgment of the High Court is reported in Keshoprasad Singh v. Parameshwari Prasad, 2 Pat 414. Before dealing with this case it will be convenient to refer to the language of Section 120 of the Bengal Tenancy Act:

"Section 120(1): The Revenue Officer shall record as a proprietors private land:

(a) land which is proved to have been cultivated as Khamar (zirat, sir) nil, nijlot (or kamat) by the proprietor himself with his own stock or by his own servants or by hired labour for twelve continuous years immediately before the passing of this Act, and,

(b) cultivated land which is recognised by village usage as proprietors khamar (zirut, sir), nil, nijjot (or kamat).

(2) In determining whether any other land ought to be recorded as a proprietors private land, the officer shall have regard to local custom, and to the question whether the land was, before the 2nd day of March 1883, specifically let as proprietors private land, and to any other evidence that may be produced, but shall presume that land is not a proprietors private land until the contrary is shown."

The rest of the clauses of the section are not important. Clause (a) corresponds to the second part of Section 3(10) (a), Clause (b) corresponds to the first part. Clause 2 corresponds to Section 185.

In the case in Bindheshwari Prasad v. Kesho Prasad 5 Pat 634 a suit was instituted by the Maharaja of Dumraon for possession of the lands by ejecting the defendants. The defence was that the defendants had occupancy rights in the lands and therefore they could not be ejected. The Subordinate Judge found that the lands were not zirait lands and that the defendants had rights of occupancy and made a decree dismissing the suit. The plaintiff appealed to the High Court of Patna which reversed the decree of the Subordinate Judge and granted a decree in ejectment to the plaintiff with mesne profits holding that the land was private land. The history of the lands was that they were in the bed of the river Ganga until shortly before 1843, when they emerged from the Ganges and part of it became fit for cultivation. In 1843, the Government who were interested in carrying on a stud farm obtained possession of the land from the Maharaja of Dumaron and cultivated the lands by themselves for a period of 30 years. The fact that the Government held the land under the Maharaja is made clear in the Judgment of the High Court in Kesho Prasad v. Parameshwari Prasad 2 Pat 414. In 1873, the Government surrendered the land to the Maharaja of Dumaron and vacated possession without claiming any interest in the lands. Thereafter the Maharaja let the lands to a Mr. Fox for a term of years which was extended in 1883 by nine years under a kabuliat executed by Mr. Fox on the 21st June 1883.

In that kabuliat Mr. Fox admitted that under no circumstances could he claim occupancy rights in the lands and that after the expiration of the term the Maharaja was at liberty to keep the said lands as his private lands or to lease them to others. In 1891 the Maharaja granted occupancy rights to Mr. Fox in consideration of the valuable services rendered by him to the Maharaja. Under the Bengal Tenancy Act occupancy right is a statutory right and is not conferred by gift by the land-holder. Mr. Fox defaulted payment of rent as a consequence of which in a suit instituted for recovery of arrears, a decree was obtained and the right, title and interest of Mr. Fox was sold in execution on 2nd March 1896 which was purchased by the Maharajah himself. Mr. Foxs rights in the lands terminated by this sale. On 2nd March 1896 the Maharaja let the lands to two persons for a term of five years who did not however acquire any occupancy rights in the land. In 1902, the Maharani who succeeded to the estate let the lands to the father of the detendants for a term of seven years from fasli 1309 to 1315 which was followed by an exchange of patta and kabuliat between the parties.

Under these documents lands were admitted to be zirait lands and that the lessees had no occupancy rights and that after the expiry of the term the Maharani should be entitled to keep the lands for herself in her possession or let them out to tenants as she pleased. The father of the defendants continued in possession until his death and thereafter the defendant continued in possession. In 1908 the estate was in the management of the Court of Wards. The mother of the defendants who were then minors obtained for their benefit a temporary settlement of the land for a term of nine years from fasli 1316 to 1324 and executed a kabuliat which contained terms by which it was admitted that they had no occupancy rights in the land and that after the expiry of the lease the lands would be surrendered. After the term had expired the defendants refused to surrender possession and a suit was therefore instituted.

In 1910 the mother of the defendants as guardian instituted certain suits in ejectment against trespassers and in the plaints in those suits also she admitted that the lands were private lands of the Dumaron Raja which were also recognised by custom as such. One of the questions raised and argued before the Privy Council was whether the admissions in the kabuliat executed after 2nd March 1883 that the lands were the Maharajas private lands were admissible in evidence. As already stated by me above, the Privy Council held that the said admissions were admissible. Their Lordships of the Judicial Committee considered the question even apart from the admissions contained in subsequent documents. At page 645 it is observed:

"But quite apart from that and even if their Lordships had taken a strict view in favour of the appellant of Section 120, the Bengal Tenancy Act, 1885, as if now stands, and irrespective of the patta of 1902 and the kabuliats of 1883 and 1892, still having regard to the facts that the lands which the Government held for 30 years were used by the Government for similar purposes as they would have been used by the Maharaja of Dumaron if he had been the owner of a stud farm, that no one claimed any right in any of them as settled zaiyat or, except trespassers without any title, as having an occupancy right in any of them, and to the statements as to the character of the land by the defendants and their mother in the plaints of 1910, when they were the plaintiffs in the suits against trespassers to which their Lordships have referred, and to the kabuliat given in 1908 by Mussammat Radha Kuar to the Manager of the Court of Wards, their Lordships find that there was ample admissible evidence that the lands were a zirat of the Dumaron Raj, and that the defendants had no right of occupancy in them."

From a perusal of the reports of this judgment and the judgment of the High Court in Kesho Prosad v. Parameshri Prasad 2 Pat 414 which was confirmed by the Judicial Committee it would be seen that from 1843 upto the date of the institution of the suit out of which the appeal arose, there was no trace of any cultivation or of an intention to resume cultivation at a future date in the case. The only evidence to prove that the land was private land was the admissions contained in the leases before 1883 and after and on that evidence and on that evidence alone, the Judicial Committee concluded that the lands were proved to be private lands. All that is stated in the definition in Section 120 of the Bengal Act excluding the first Clause (a) which requires continuous cultivation for a period of 12 years is that the land is cultivated land which is recognised by village usage as proprietors khamar (zirat, sir) nii, nijjot (or kamat). No indication is given in this definition that the land should be within a particular distance of the zamindars residence and though the words "kamar" etc. occur which have been interpreted as lands which are in the cultivation of the Zamindar, still the Privy Council held that the lands are private lands, even though cultivation was not proved. From this decision which was pronounced by the highest Tribunal under a section which is in pari materia with that in the Estates Land Act, it follows that the test of cultivation or even the test of intention to cultivate is not the only mode by which a land could be established to be private land. This decision and the decision in Lakshmayya v. Apparao Bahadur 36 Mad. 168 [LQ/MadHC/1912/453] were not referred to either in the decision in Jagadeesam v. Kuppammal ILR (1946) Mad 687 by Wardsworth O. C. J. or in the unreported decisions to which reference has already been made.

49. From the foregoing discussion the following propositions are established:

1. If the land is known to be ryoti 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 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.

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.

4. Cultivation of the lands or leasing of the lands under short-term leases 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 land-holder asserting and acting on the footing that he is the absolute owner thereof and recognition and acceptance by the tenants that the land-holder has absolute right In the land.

7. Mere proof that the land-holder is the owner of both the warams is not sufficient to prove that the land is private land.

50. It now remains to briefly refer to the evidence in the case on which the finding of the Courts below is based. The evidence in the second appeals batch and in the civil revision petition batch is similar. Between the years 1815 and 1864 there are no documents throwing light on the question in issue. We do not know how the grantee enjoyed these lands from the date of grant upto 1864. Between the years 1864 and subsequently there are the sale-deeds Ex. P. 1 series under which the temples acquired absolute rights in the property. The recitals in the sale-deeds are more or less similar. Under these documents, the rights of the vendor in the nanja, punja, timber, fruit bearing trees, thottam, well, inclusive of the hamlets together with the cocoanut trees and all trees excluding the residential quarters were conveyed. There is specific reference to the transfer of the "iru varams" that is, both kudiwaram and melwaram in all these sale-deeds which indicates that the vendors were in enjoyment of the kudiwaram right in the lands as well.

There are next the leases executed by tenants commencing from 1886 in the second appeals batch and 1873 in the rent batch. The leases in the second appeal batch are Exs. P. 2 series and the clauses in all these leases are more or less similar. The tenants specifically admitted in those documents that the lessor was the owner of both the warams and agreed to harvest the crops under the supervision of the land-holder and measure half of it to the land-holder as melwaram, and in recognition of the right of ownership the Kudiwaram by the land-holder and as lessee thereof they further agreed to pay one pangu of swami bhogam at the rate of 6 Ramalinga Marukkals and two straw bundles including cess for one transplantation at the rate of one anna and take the balances of the produce. There is the further condition that they would render service to the temple in respect of the share. There is also the "quit" clause in all the leases by which the tenants undertook to surrender the lands after the expiry of the term fixed the leases. The leases from 1866 to 1896 were for a period of five years. In 1898 there were two such leases for a period of three years. Then in 1902 there were leases for a period of five years except one which was for a period of four years. In 1919 the leases were all for a period of three years. In the rent batch also the leases were, in some cases for five years, in others, for three years, and there were also some leases for seven and more years.

The documents have been analysed by the Courts below and the effect of the documents is summarised by the learned Subordinate Judge in paragraph 16 of the judgment in the second appeal batch and there is also a similar summary in the rent batch as well. He says that the temple owned the kudiwaram and melwaram rights; that though the tenants were not disturbed from possession of the lands; there were some instances in which there was also a change of tenancy. The right of the temple to both the warams was admitted in the leases and there is the further payment of swami bhogam, a share from out of the tenants share of the produce in recognition of the ownership of the temple to the lands. The tenants never asserted during the whole course of the period till 1930 that they were entitled to kudiwaram interest. On the contrary in almost all the documents there were clear admissions that they had no kudiwaram rights and that the temple owned the kudiwaram right as well as the melwaram. In some of the leases in describing the boundaries the surrounding properties were described as property owned by the temple and not by the cultivating tenants. The payment of swami bhogam by the tenants a very important circumstance in my opinion indicating that the land is private land of which the temple is the full owner and is treated as a category of land in which the ryots could never acquire occupancy rights.

The meaning of "swami bhogam" and its significance was considered by Sadasiva Aiyar J. in Naina Pillai v. Ramanathan, 33 Mad. L.J. 84

"The word swami bhogam used in Exs. A. F. F. 1 and other documents has got a settled meaning in the Tanjore and Chingleput districts. Wilson in his Glossary says: Swami bhogam in the tamil country means the share of the produce or rent which is paid to the Mirasidar or hereditary proprietor by the tenant cultivator holding the land in farm for a fixed period". I think the use of the word swami bhogam in Ex. A in almost conclusive as to the full proprietorship of both the melwaram and kudiwaram rights in the temple."

This decision was affirmed by the Privy Council in Naina Pillai v. Ramanathan, 47 Mad 337 of the report the meaning given to local term by the learned Judges of this Court was accepted and their Lordships observed:

"All those learned Judges were, from their local knowledge, in a better position than their Lordships are, to correctly appreciate the meaning of the vernacular terms in use in the tamil country of Tanjore in reference to interest in lands, and all those learned Judges in carefully considered and exhaustive judgments found, to state briefly their findings, that the endowed property of the temple, of which the lands in question formed part was not an estate within the meaning of Madras Act I of 1908 and that the defendants were not, under the Act or otherwise, tenants with a right of permanent occupancy".

(See also the decision in Muhammad Ravuthar v. Muthu Alagappa Cheitiar, 34 Mad. L. J. 234 .

In Subramania Chettiar v. Subramania Mudaliar, 52 Mad 549 the Privy Council considered the meaning of "Tirwa swamibhogam" which was paid by the tenants to the land-holder. "Tirwa" according to the Judicial Committee is the share of the rents payable to the Government and "swami bhogam" is the revenue derived from the tenants or occupiers over and above what was necessary to pay the tax.

In Sivanpandia Thevar v. Zamindar of Urkaud, 41 Mad 109 "swami bhogam" was treated as part of the rent though it is something which is paid over and above the melwaram. It is unnecessary in this case to consider the correctness of that view. If a tenant is called upon to pay more than the lawful rate of rent payable in respect of ryoti land, the excess would be an enhancement. It is however unnecessary to decide whether swami bhogam in such circumstances would not be an illegal enhancement. The payment of swami bhogam therefore is a clear indication of not only the admission by the tenant of the ownership of the land-holder of the kudiwaram interest in the land but also an indication on the part of the land-holder of his intention to retain the kudiwaram and the object of such a retention can only be that at some future date he intends to resume for cultivation if necessary.

51. The learned Subordinate Judge points out that according to the Ramnad Pistrict Manual prepared by Mr. T. Rajaram Rao, Dewan of Ramnad Samasthanam, under the orders of the Court of Wards in 1890 "pannai" lands in the district are those in which the Zamindar or Inamdar owns both the landlords and tenants right and that he can lease out the lands to any one he likes for cultivation and obtain from him "swami bhogam" or Thunduvaram, a rent obtained in acknowledgment to the landlords tenancy right in the soil, in addition to the melwaram or landlords share, and that most of the Dharmasanams in the zamindari were held under "pannai tenure". This indicates that in this district these incidents are understood by usage as establishing that the tenure is pannai tenure and therefore it follows that the lands are treated by usage as private lands of the land-holder. The evidence therefore establishes in this case that for nearly a period of 80 or 90 years to which the documents relate, the lands are treated as lands in which the tenants under no circumstances acquire occupancy rights. In other words, the land is treated as private land and not ryoti.

Apart from the execution of the leases, there are admissions by the tenants themselves even after the Act and even after 1898 establishing that the lands are the absolute property of, the land-holder which can only mean that they are private lands. Such evidence is admissible and it would be legitimate to draw from such admissions that the lands are private lands as has been laid down by the Privy Council in Bindeshwari Prasad v. Kesho Prasad, 5 Pat 634 already referred to.

The leases were for short terms and contained surrender clauses; and the obligation to pay swami bhogam is also enjoined by the leases. This treatment of the lands by the land-holder and the exercise of the rights by him as the absolute owner of the lands which was acquiesced in and acknowledged by the tenants is clear and cogent evidence from which to infer that the lands were private lands. The usage in the district as recorded in the Ramnad District Manual is also to treat the lands with such incidents as private land. Such usage will be local usage and local custom within the meaning of Section 185 of the Estates Land Act, which again is permissible and relevant evidence when the question of determination of the character of the lands arises. There is also similar evidence and similar findings in the rent batch also and it is unnecessary to refer to them in detail. There is one additional circumstance in the rent batch namely that repairs to the nanja lands were effected by the plaint temple which is also an indicative of the lands being private lands.

52. Apart from the ownership of the two warams by the temples we have the undisputed conduct of the parties, recognising the lands as private lands in which the tenants had no occupancy rights. The Courts below in my opinion were alive to the question that had to be decided and approached the evidence in the case from a proper perspective and the finding reached concurrently is not vitiated by any legal flaw so as to justify interference by this Court in second appeal. I have no hesitation therefore in confirming the decision of the Courts below and dismissing the second appeals and the revision petitions with costs. In the second appeals the decree will be modified by deleting the direction to pay future mesne profits.

Vishwanatha Sastri, J.

53. The desion of these second appeals and civil revision petitions turns upon the answer to the question whether the lands which formed the subject-matter of the suits were the "private lands" of the plaintiffs land-holders, as defined in Section 3(10)(a) of the Madras Estates Land Act, I of 1908 ; hereinafter called "the Act", or whether they were ryoti lands in which the defendants-tenants had acquired a right of occupancy by virtue of Section 6(1) of the Act. In the arguments before us, title to a permanent tenancy by prescription, pleaded and found against in the Courts below, has not been relied on and the tenants rested their case entirely on the Act.

54. The essential facts relating to the history of the land have been set out in the Judgment of my learned brother, Satyanarayana Rao J. and I therefore forbear from summarising them on my own account. I agree that the village of Manamelpatti which was originally part of the Sivaganga zamindari is an "estate" falling within Section 3 (2) (e) of the Act. The plaintiffs are therefore "land-holders" as defined in Section 3 (5) of the Act, The defendants would be "ryots" if the lands in their occupation are "ryoti" as defined in Section 3 (16) and the lands would be "ryoti" unless proved to be "private lands" as defined in Section 3 (10) (a) of the Act.

55. The lands in question have been purchased by the plaintiffs and their predecessors-in-title under a series of sale-deeds ranging from 1864-1914 with both waram rights. In vernacular conveyancing it is customary to speak of the absolute ownership of land as consisting of irwaram rights, i.e., of both melwaram and kudiwaram, even though there are no distinct, independent and co-existing interests in the land like melwaram and kudiwaram in the lands conveyed. In the case of ryptwari lands and "private lands" as defined in the Act the distinction between melwaram and kudiwaram is notional, and the rent payable to the absolute proprietor of the land is called "melwaram" and the tenants share of the produce "kudiwaram" though the tenant has no permanent right of occupancy in the lands and his rights are regulated solely by the contract of lease between him and the proprietor.

The lands in question have been leased in parcels to tenants from time to time under terminable leases for periods ranging from three to ten years- The leases are not continuous but they cover the entire lands. All the leases contain a - provision for the payment of swamibhogam to the lessors in addition to the melwaram. Under the leases of 1873 the tenants agreed to surrender the land to the lessors whenever required by the latter at the beginning of the Tamil New Year. In the leases of the years 1885 to 1891 there are provisions for surrender of the land after the expiry of the term in the Tamil month of Chitrai. In the leases of 1905 there is a stipulation that if the conditions of the leases are not observed, the lessors would be at liberty to cancel the leases and let out the lands to other tenants even before the expiry of the term. In the leases for the period from 1919 to 1922 there is a provision for surrender of the lands by the tenants at the end of the term.

In all the leases there is a stipulation for rendering service to the two temples to which the lands belong. The leases are described as swamibhogam leases and the title of the lessor to both warams in the lands is admitted. The leases range from 1873 to 1922. It has been found by the Courts below that though there has sometimes been a change in the personnel of the tenants, in the majority of cases the lands have continued to be in the occupation of the families of the tenants hereditarily. Before 1930 none of the tenants asserted or claimed a . right of occupancy in the lands. During the years 1930 to 1935 two or three tenants purported to sell or mortgage their holdings under Ex. D. 4 to Ex. D. 7 but the plaintiffs were not parties to or aware of these transactions. There is no evidence of direct cultivation of any of the lands by the land-holders by their own servants or by hired labour with their own or hired stock at any time.

56. The crucial question may now be posed. Are the lands in question the "private lands" of the land-holders as" defined in Section 3 (10) (a) of the Act Mr. Sundaram Aiyar for the appellants contends--and this is the pinch of the case that direct cultivation by the land-holder for an appreciable period of time must be proved in every case where a land is claimed to be the "private land" of the land-holder. He says that direct cultivation is implicit in the very definition of private land in Section 3 (10) (a) and that this is the view taken in the decisions of this Court and the Judicial Committee. He conceded the concession being both self imposed and allowed by decisions that occasional or sporadic leasing of the lands with the intention of resuming direct cultivation by the land-holder would not be fatal to a claim that -the lands are "private lands". He relied on a number of reported and unreported decisions which will be referred to later. The contention of the respondent is that direct cultivation is only an evidentiary fact, may be an important piece of evidence, but is not a touchstone of the character of land as private land.

57. The draftsman of Act I (1) of 1908 has assumed a certain amount of knowledge of the history and the incidents of land tenures in zamindar areas in this Presidency on the part of those who have to interpret the Act. Of recent years views have been advanced by some learned Judges of this Court which have introduced an element of doubt and perplexity in the interpretation of Sections 3 (10) (a) and 185 of the Act. The arguments in this case fully reflected the uncertainty and conflict discernible in the decisions, attributable, in my humble opinion, to the Judicial embroidery of the language of the Act.

In my recent judgment in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, , I ventured to protest, though alone, against the wrong approach to the question now under debate in some of the earlier decisions. I am loath to rely on my own decision as a precedent and I take this opportunity of expressing my views with great deference to those who have held differently and with more elaboration than I thought necessary on the previous occasion.

The topic now under discussion has been darkened, rather than illumined, by a false analogy which has been drawn with feudal tenures and manorial customs in England. The substitution of extracts from judgments dealing with cases of conversion of ryoti land into private land for the language of Sections 3 (10) (a); and 185 of the Act and the wholesale adoption of expressions used by learned Judges in that connection, as if they were the words of the Statute itself, have also been responsible for much of the uncertainty in this corner of the law.

58. My own researches have not been as wide as those of my learned brother Satyanarayana Rao J. and in any case I need not cover the same ground. It is necessary, however, to sketch briefly the background of the Legislation which became Act I (1) of 1908. The whole of the lands, whether cultivated or cultivable or waste in the country have been from time immemorial apportioned to a particular village, so that all lands are within the known boundary of some village. Even today the village is the unit of revenue administration. Under what may be called the common Jaw of this part of the country, there are two main beneficial interests in cultivable lands, viz., the melwaram and the kudiwaram. Melwaram belonged to the State or to its assignee who might be zamindar, poligar jagirdar or inamdar and the kudiwaram to the ryoti or cultivating occupants of the land who had a right to remain in possession of the land so long as he paid the rent or revenue exigible. These were the only principal and independent interests in the land but there might be subordinate interests derived from the one or the other.

Subordinate tenure-holders from zamindars, ppligars or jagirdars holding under grants either rent free or subject to the payment of a favourable rent to the superior landlords, were themselves in the position of landlords or persons entitled only to the melwaram. Persons holding as sub-tenants under the ryot or kudiwaramdar had no right of permanent occupancy in the lands.

So far I have referred to two distinct and independent interests in the cultivable lands. There were also two distinct classes of such lands, viz., one the pannai, kambattam, homefarm or to use the phraseology of the Act "private lands" of the Zamindar, Poligar or Jagirdar and the other, the ayan, zeroyati, seri, or peasant lands, styled as "ryoti" lands in the Act. In the first class of lands both the melwaram and kudiwaram rights belonged to the zamindar, poligar or jagirdar and in the second the melwaram alone. The bulk of the lands belong to the latter class. The former rulers of the country had made special grants of land to the farmers of revenue or rent collectors who later on came to be known as zemindars, poligars, or jagirdars for the subsistence of themselves, their families, followers, retainers and dependants. These dignitaries were also brought under cultivation with their own servants or hired labour waste lands in which there was no right of occupancy. These lands constituted the private lands of the zamindar in which the cultivating tenants had no occupancy rights as contrasted with the public lands in which they could acquire such rights. This was the state of affairs at the time of the Permanent Settlement in 1802.

59. Both in the instructions issued to the Collectors for the purpose of carrying out the Permanent Settlement and under S. 2 of Regulation XXV (25) of 1802 the pannai or homefarm lands of the Zamindar, Poligar or Jagirdar were treated as lands liable to pay revenue to the Government. They were taken into account in calculating the assets of the Zamindari and fixing the peishcush payable to the Government. The position is thus stated in the first report:

"All private lands at present appropriated by the Zamindars and other land-holders to the subsistence of themselves and families as well as all lands held by private servants and dependants will be considered as forming part of the circar land and therewith responsible for the public Jama."

Section 2 of the Regulation recognised and vested, the proprietary right of the soil at least in the pannai or private lands, in the zamindar, though its language was much more sweeping and all embracing and inappropriate with reference to the public lands in respect of which he was, under the customary law, entitled to the melwaram. Regulation IV (4) of 1822 was passed declaring that Regulation XXV (25) of 1802 was not intended to define, limit, infringe or destroy the rights of any description of tenants, but as these rights were nowhere defined, there ensued much litigation and controversy regarding the respective rights of zamindars and tenants in public lands.

It is unnecessary, for the purposes of this case, to refer to the course of decision in this Court resolving such disputes- Suffice it to say that the first two Indian Judges of this Court, whose knowledge of the land, tenures of this Presidency was only equalled by the lucidity of their exposition of legal principles were largely responsible for according judicial recognition to the permanent occupancy rights of ryots of public lands in zamin areas by their bold declaration that "contractual relations and competitive rents" were incompatible with the status of such ryots. This principle applied not only to lands in the occupation of ryots but also to lands relinquished by former ryots as well as unoccupied but cultivable lands which were all considered to be public lands. See Venkata Mahalakshmamma v. Ramajogl 16 Mad 271; Venkatanarasimha v. Kotayya 20 Mad 299; Cheekati Zamindars Case 23 Mad 318.

But it was only in respect of the "public domain" later on defined in the Act as "ryoti lands" that the cultivating tenant in possession or occupation acquired a permanent right of occupancy. This right was not extended to the kambattam, pannai, or homefarm land, the "private domain" of the zamindar. In the respect of such lands, the tenants did not acquire a permanent right of occupancy by reason of their cultivation of such lands, the relationship between the zamindar and the tenants being regulated by the terms of the contract, between the parties.

60. Reference may here be made to a few decisions of this Court dealing with the rights of Zamindars in pannai lands before the passing of Act I (1) of 1908. Referring to pannai lands in a zamjndari in the Madura District (of which the suit village and the Sivaganga zamindari once formed part) the District Judge observed in an early case as follows:

"They are lands to which the proprietor has an exclusive right, that is to say, the right to receive the kudiwaram produce and the right to receive the melwaram; lands regarding which land-holders can arrange their own terms of rent. Sometimes these lands are cultivated under the Zamindars own ploughs and sometimes they are let out for cultivation of others."

This view was affirmed by a Bench of this Court, Kindersley J. remarking:

"The Judge says that they are lands to which the proprietor has an exclusive right, a right to the kudiwaram and to the melwaram. This is certainly something more than the tenure of an ordinary ryot, who is not entitled to the melwaram. And it appears to me from this and other cases which I have met with in this Court, that we cannot say that the defendant would have held these pannai lands if be had not been the zamindar."

The case was decided by the District Judge in 1870. The decision on appeal is reported as Nagayasami Kamayya v. Virasami, 7 M.H. C. R. 53. In a later decision in Venkatagiri Zamindar v. Raghavan 9 Mad 142 Turner C. J. stated the characteristic feature of "private" or homefarm lands in a zamindari in these terms:

"They are lands which according to a very general custom of the country the Zamindar reserves for his own cultivation when he thinks fit to resume them and on which a right of occupancy does not accrue."

That private lands in Zamindari areas were often leased to tenants for cultivation on contractual terms, without the tenants acquiring any right of occupancy, is also clear from the discussion of the evidence of Sir S. Subramania Aiyar J. in the Cheekati Zamindars Case, 23 Mad 318 .

61. Though the kambattam, pannai, homefarm or private lands of the zamindar were distinct from the zeroyati, seri or ryoti lands in a village and the bulk of the lands belonged to the latter class, it was found in practice that the zamindars were gradually extending the area of their private lands by incorporating ryoti lands therein. In a contest between a rich and powerful zamindar and ignorant and poor ryots the odds were of course, immensely in favour of the former. The rights too, whose origin, had to be traced to remote times, were not capable of easy proof.

According to contemporary testimony, ryots in the southern Districts held their own against zamindars and even defied them, while in the Northern sircars the zamindars were more grasping and were generally masters of the situation. The Estates Land Act was passed in 1908 in order, as its preamble states "to amend and declare the law relating to the holding of land in estates in the Presidency of Madras". Its general effect may be stated in the words of the Judicial Committee :

"In declaring the rights of the occupancy ryots and emphasising the distinction between the landlords private lands and the ryoti lands, the new Act affirmed the old customary law that had always been recognised by the British administration. Apart from rules relating to procedure and jurisdiction of the revenue Courts, it created one new right in order to settle the constant disputes beween landlords and tenants which had been going on for nearly a century, it gave occupancy rights to all ryots in occupation of lands within an estate at the time of the passing of the Act. It also gave some security to non-occupancy ryots in the enjoyment of their lands. In other, respects., generally speaking, it declared and gave statutory recognition to existing rights and status......The existence in a village or pannai, lands, in which the tenant cannot acquire occupancy rights except by contract, connotes the existence of lands in which he can acquire such rights by prescription." (Chidambara Sivaprakasa v. Veerama Reddi 45 Mad 586 ."

"Ryoti land" and "private land" are mutually exclusive categories u/s 3 (16) of the Act, though they may both form component parts of the same village. The distinction between the two classes of lands is maintained throughout the Act in respect of the rights and liabilities acquired or incurred and in respect of the jurisdiction of the Courts that have to adjudicate upon them. The fundamental difference is that the land-holder is the absolute owner of "private land" of both the melwaram and the kudiwaram, though the distinction between the two warams is notional in such a case. Nobody else has an interest except such as the land-holder might create under a contract or grant. The land-holder has a right to enjoy the land as he pleases either by direct cultivation or through tenants. He can lease out the lands at competitive rents and enforce the other terms of the contract of tenancy. The tenant does not acquire a permanent right of occupancy by being admitted to possession of such land. In the case of ryoti land there exists two separate and independent interests the melwaram and kudiwaram the former being vested in the land-holder and the latter in the ryot and the relations between the land-holder and the ryot are governed by the Act.

62. We are concerned in the present case to find put the true character of the land, whether it is ryoti or private land. Section 3 (10) (a) defines "private lands." The reference to Khambattam, khas, sir or pannai is only by way of illustration. The test of direct cultivation prescribed in the second part of Section 3(10) (a) is not laid down for private lands falling within the first part of the clause. It is conceded by all the decisions that lands retained by a zamindar as resumable for direct cultivation by him would be private lands.

Section 185 of the Act deals with evidentiary matters that have to be considered in arriving at a conclusion whether a particular land whose origin is not known is private land. The two provisions have to be read together. The first proviso is to S. 185 lays down a presumption that a land is ryoti unless the contrary is shown, thereby casting the onus of proof on the landholder. Section 185 does not profess to enumerate or exhaust all the heads of relevant evidence and does not shut out any evidence that would be admissible under the Evidence Act to prove a relevant fact or fact in issue except a particular category of evidence in connection with major inams.

The reference to "local customs" in Clause 1 of Section 185 is somewhat vague and indefinite. It evidently contemplates cases where, according to the consciousness of the village community, certain lands are always regarded as the private lands of the zamindar as distinct from serai, zeroyati or ryoti land.

It is well known that ryoti lands are treated differently from private lands in many respects. In the case of private lands the rents vary from time to time; the tenants change, periodical leases with provision for eviction or surrender are granted; and the land-holder is recognised and admitted to be the owner of both the warams. In the case of ryoti lands the rents are uniform and fixed; the tenants have hereditary rights and the right of alienation; and pattas and muchilikas do not provide for surrender of possession by tenants. In these and other ways the villagers recognise private lands as distinct from ryoti lands.

Section 185(2) requires the Court to have regard to the question whether the land was specifically let as private land before the first day of July 1898, that being the date when the proposal for legislation which became Act 1 of 1908 was first mooted. It cannot be that the legislature required that the expression "private land" which was defined for the first time in Act 1 of 1908 should have been used in that sense in leases granted before 1898. The word "let" emphasises the importance of the terms and the conditions of the tenancy and requires attention to the substance of the contract rather than the nomenclature of the land.

If the land-holder, had dealt with the lands as an absolute owner and with the tenant as a person who had no higher or other rights than those conferred by the contract of lease, and the tenant had admitted the absolute ownership of the land-holder and his own position as a person without any right of occupancy, evidence of such letting is relevant.

Notwithstanding the opinions to the contrary expressed in this Court, it must now be held on the authority of the decision of the Judicial Committee in Bindeshwari Prasad v. Kesho Prasad 5 Pat 634 decided under the corresponding provisions of Section 120 of the Bengal Tenancy Act that leases subsequent to 1898 negativing a right of occupancy in the tenants are also admissible to prove the character of the land.

This was also the vleiw of Sundaram Aiyar J. in Lakshmayya v. Apparao Bahadur 36 Mad 168 [LQ/MadHC/1912/453] of Wallis C.J. in the first Chellapalle case, 39 Mad 341 [LQ/MadHC/1914/478] and of Krishnan and Venkatasubba Rao JJ. in the North Vallur case 50 Mad 201 [LQ/MadHC/1926/243] and of Abdur Rahim and Oldfield JJ. in Appurow v. Kaveri, 7 Mad. L. W. 271.

Indeed Section 185(3) requires the Court to consider "any other evidence" that may be produced and is wide enough to allow -the reception of leases after 1898 in evidence though their probative value might not be as great as those of leases granted before 1898.

There was a provision in Section 181 of the Act that Sections 6, 8, 10, 11, 12, 19 and 46 do not apply to a land-holders private land but this provision was deleted by the amending Act of 1934 on the ground that those sections applied only to ryoti lands and the provision was otiose. The other provisions of the Act clearly also recognise that private lands could be let out by the land-holder without the risk of the lands losing their character as private lands. See Sections 19, 1)34, 158, and 161. Neither leases nor the exchange of pattas and muchijikas impair the character of lands as private lands.

To arrive at the conclusion that thoughSection 185 authorises the reception jn evidence of leases containing admissions of tenants negativing their rights of occupancy in order to prove that a Jand is private land, such leasing is an informative circumstance and that the character of the land as private land could in no case be established without proof of the land-holderss direct cultivation, is a leat of mental gymnastics beyond my capacity. It is not in my opinion, legitimate to write into Section 185 limitations and qualifications which the Legislature has not thought fit to insert.

63. Section 185(3) permits the production of "any other evidence". It is not without significance that in a section dealing with the evidence that has to be considered in arriving at a conclusion as regards the character of the land as private land, no specific reference is made, to what, according to the appellants, is at primary and indispensable evidentiary fact, viz., direct cultivation by the land-holder. I do not say that it is not a relevant or weighty consideration but it comes in only under the omnibus provision allowing "other evidence".

64. The further argument of Mr. A. Sundaram Aiyar for the appellant is that the requirement of direct cultivation by the land-holder is obvious from or at any rate plainly implicit in, the definition of "private land" in Section 3(10) (a) as the domain or home farm land of the landholder. Occasional leasing with an intention to resume direct cultivation being permissible it is said thatSection 185(2) must be read as referring only to such leases. He says thatSection 185, which deals with evidentiary matter should not be construed so as to abrogate the substantive provision found in Section 3(10) (a).

The argument has been sought to be sustained by reference to glossaries and dictionaries interpreting the words sir, khas, kambattam and pannai and the authority of prior decisions of this Court and the Privy Council. My learned brother Satyanarayana Rao J. has discussed the dictionary or glossary meaning of these expressions and I need not traverse the same grounds.

Section 3(10) (a) deals with two categories of lands (a) private lands properly so-called i.e., home-farm lands of which kambattam and pannai are given as examples, (b) lands whose origin or character is not known or which were once ryoti lands. The enumeration of different kinds of private lands in Clause (a) is only illustrative and not exhaustive. In the case of lands coming under Clause (b) above described, proof of direct cultivation by the iand-holder with his own servants or by hired labour with the own or hired stock for a continuous period of 12 years before 1st July, 1908 without any other evidence, constitutes the lands "private lands". Ryoti land however could be converted into private land only in this manner and no other, and direct cultivation by the land-holder for the requisite period, is an indispensable considition of such conversion as held by this Court in Bandharu Jogi v. Seethahamamurti I. L. R. (1948) Mad 223 .

In the case of lands falling under class (b) above stated proof of direct cultivation for twelve years before 1st July 1908 would without more, conclusively establish they are private-lands. In respect of lands once ryoti, direct cultivation for the specified period is the only mode by which they can be deemed to be private lands. The insistence on direct cultivation in the case of one species of lands deemed to be-private lands is a clear indication that there-might be other private lands which need not satisfy the test of direct cultivation and these-are included in the first part of the definition in Section 3(10) (a).

In respect of lands whose character as ryoti or private land is in dispute, direct cultivation for 12 years before 1908, is not the only mode by which their true character can be established. Section 185 renders admissible not only leases before 1898 showing that the lands were specifically let as private lands but also such other evidence as would be relevant under the Evidence Act. It in respect of such lands there is relevant evidence other than direct cultivation is is open to a Court to find on such evidence that the lands are private lands.

65. Before I consider the cases cited at the Bar I wish to clear the ground by stating that we are not concerned in this case with conversion of ryoti land into private land but only with the nature of the evidence required to establish the original character of the land as private land. BeforeSection 185 was amended in 1934, it contained a proviso that land directly cultivated by the land-holder as private land for 12 years before 1st July 1908 shall be deemed to be private land even though the land was originally ryoti. It has always been the law that mere merger of the kudiwaram interest in the melwaram does not convert ryoti land into private land.

Before the amendment of 1934 conflicting views were expressed by learned Judges as to whether the proviso toSection 185 was exhaustive and retrospectively prohibited other modes by which conversion of ryoti land into private land has been effected before the Act. Wallis C.J. in CHELLAPALLI case 39 Mad 341 and Krishnan and Venkatasubba Rao JJ. in the North Vallur case 50 Mad 201 took the view that the proviso toSection 185 was not exhaustive and that such conversion was not retrospectively affected by Act 1 of 1908 while Sesha-giri Aiyar J. in the CHELLAPALLI case 39 Mad 341 [LQ/MadHC/1914/478] Abdur Rahim and Bum JJ. in Mallikarjuna v. Subbiah 39 Mad. L. J. 277 and Sadasiva Aiyar J. in the Nuzvid case 45 Mad 39 [LQ/MadHC/1921/54] took the opposite view.

A reference to this past controversy is necessary in order to appraise the value of the decision relied on by the appellants. Wallis C.J. who was of the opinion that the proviso toSection 185 (before amendment) did not retrospectively prohibit conversion of ryoti land into private land before the Act or the recognition of such conversion as legal by the Court after the Act, even though direct cultivation for 12 years before 1-7-1908 under the proviso to Section 185 (as it then stood) was not proved observed that the test of direct cultivation found in the proviso might well be applied as a test even to other cases of conversion claimed to have been effected in other modes before the Act came into force. Zamindar OF Chellapalli v. Somayya 39 Mad 341 [LQ/MadHC/1914/478] . On appeal the Judicial Committee approved of the application of the test suggested by the proviso toSection 185 even to cases of conversion not falling within the proviso. See Mallikarjuna Prasad v. Somayya, 42 Mad 400

The force of this observation is considerably weakened by the deletion of the proviso to S 185 in 1934. Though Wallis C.J. started by observing that the case "raises a question of importance as to what constitutes private land under the Act" the further discussion shows that the learned Chief Justice was considering only a case of conversion of what was once admittedly ryoti land into private land. He found that the zamindar had at no time directly cultivated the lands which he claimed to have converted and that his treatment of the lands as kambattam in his accounts was merely colourable for the purpose of defeating the occupancy rights of tenants. He referred to Budley v. Bukhtoo 3 N.W.P.H.C.R. 203 itself a case of colourable conversion of ryoti land merely by means of entries in records ag sir or private land, where the Court had observed that

"sir land was land which a zemindar had cultivated himself and intended to retain as resumable for cultivation by himself even when from time to time he demised it for season."

Seshagiri Aiyar J. referred to home farm land as land that "has been ordinarily cultivated personally by the landlord at the outset". The policy of the Act is to prevent an extension of private land in a zamindari by a process of conversion or even by legitimate acquisition of the ryoti interest as shown by Section 8 of the Act.

The proviso toSection 185 was deleted and a corresponding provision inserted inSection 3(10) (a) in 1934 to emphasise the position that direct cultivation for 12 years before. 1-7-1908 is the only method of conversion of ryoti land into private land recognised by the Act, thereby overruling the views, of Wallis C.J. in the CHELLAPALLE case 39 Mad 341 [LQ/MadHC/1914/478] and Krishnan and Venkatsub-ba Rao JJ. in the North Vallur case 50 Mad 201 [LQ/MadHC/1926/243] , and Sadasiva Aiyar J. in the NUZVID case, 45 Mad 39 [LQ/MadHC/1921/54] .

That this is the effect ofSection 3(10) (a) after the amendment of 1934 has now been held by the Full Bench in Bandhru Jogi v. Seetharamamurti ILR (1948) Mad 223. The stringent requirement of direct cultivation imposed by law to discourage conversion of ryoti land and to prevent a land-holder from increasing his stock of private land at the expense of ryoti interests need not be imported into a consideration of the question whether a particular land whose origin is not known, is ryoti or private.

66. In the course of their judgment in the CHELLAPALLIE case 39 Mad. 341 [LQ/MadHC/1914/478] Wallis C.J. and Seshagiri Aiyar J. interpreted the word "domain" in Section 3(10) (a) of the Act as denoting land immediately surrounding the mansion house, park or chase of a lord of the manor and in his immediate occupancy and applied the same test to determine the private land of his Indian counter part, the zamindar.

Wadsworth O.C.J. and Koman J. in Jagadeesam v. Kuppammal ILR (1946) Mad 687 observed that the word "domain", or home farm would connote land appurtenant to the mansion of the lord of the manor kept by the lord for his personal use and cultivated, under his personal supervision.

In the TEDLAM case, Ramkrishnarao v. Seshayya, A Section 53 of 1946 decided by. the learned Chief Justice and Rajagopalan J. the latter under the impact of these two decisions, felt bound to refer to the lmprententious village house of an absentee mokhasadar as answering the description of the "mansion of the lord of the manor" and the lands in the village of an extent of 1500 acres as laying round about the "mansion" house.

The decisions in the CHELLAPALLI Case, 39 Mad 341 [LQ/MadHC/1914/478] and Jagadeesam - Pillais case I. L. R. (1946) Mad. 687 were, cited, the latter at great length and followed. In my judgment in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, I have expressed my dissent from this narrow interpretation of this term and pointed, out that it has no relation to the actual conditions prevailing in this Presidency. "The mansion house" test would not be applicable to this country except in rare cases. It is a matter of common knowledge that Zamindars, Poligars, Jagirdars and major inamdars owned considerable extents of private land in several villages far removed from their dwellings.

In England manorial lands were not contiguous and often lay scattered about amongst and intersected by other lands having nothing to do with the manor. The demesne lands fell into three classes (a) lands occupied by the lord of the manor himself (b) lands which the lord allowed his velliens to occupy and cultivate upon certain terms corresponding to the copyhold lands of later, times (c) lands allowed to lie waste or common in which free tenants and copyholders had important rights along with the lord of the manor. The English country side is not organised on the same lines as Indian villages where by reason of facilities for irrigation, cultivable lands usually form a block separated from the inhabitants houses which lie close together usually in the village natham.

67. Yarlagadda Mallikarjuna v. Subbiah 39 Mad. L. J. 277 decided by Abdur Rahim and Burn JJ. was also a case where lands admittedly once ryoti were claimed to have been converted into private lands by the zamindar of Chellapalle. Abdur Rahim J. referred to home farm land as land which the zamindar is entitled to deal with in any way he chooses by contract without being hampered by the provisions of the Act". Burn J. referred to private land as land in which the entire interest is vested in the land-holder and the rights of tenants are based on contract in contrast with ryoti land in which two separate and distinct interests known as melwaram and kudiwaram exist, the former vesting in the land-holder and the latter in the ryot.

The learned Judges agreed with the opinion of Seshagiri Aiyar J. In the earlier Chellapalli Case, 39 Mad 341 [LQ/MadHC/1914/478] that the only mode recognised by the Act for converting ryoti into private land was direct cultivation by the land-holder for 12 years before 1908. They also applied the test of direct cultivation or retention of land for direct cultivation adopted by Wallis C. J. in the earlier case and held that as there had been no direct cultivation by the land-holder at any time, the lands retained their original character as ryoti lands. The mere description of ryoti lands as kambattam in leases granted by the zamindar during comparatively recent times and the transfer of ryoti lands to the category of kambattam lands in the zamindari accounts without any change in the tenure of the lands and without any idea of taking up direct cultivation were held to be mere colourable transactions. This case went on the same lines as the first Chellappali Case 39 Mad 341 [LQ/MadHC/1914/478] .

These two decisions do not compel us to hold that where the question is not whether land once ryoti has since been converted into private land but whether the land is ryoti or private land, it must be considered to be ryoti land in every case where there is no proof of direct cultivation by the land-holder for a substantial period. The test of direct cultivation was not insisted upon even for a conversion of ryoti land into private land to the North Vallur Case, 50 Mad 201 [LQ/MadHC/1926/243] overruled by a Full Bench on another point.

68. I shall now proceed to consider the decisions where the question was not one of conversion but of the ascertainment of the true character of the lands as ryotj or private lands. The earliest reported case after Act I of 1908, so far as I know, is the decision in Lakshmayya v. Apparao Bahadur 36 Mad 168 [LQ/MadHC/1912/453] where this Court held that the lands in dispute were the private lands of the Gannayaram Zamindar. There was apparently no evidence in that case of direct cultivation and certainly no such evidence was referred to, or relied upon, in the High Court. The lands had been leased to tenants under muchilikas from 1892 onwards, the lands being described as savaram" lands of the Zamindar, a description which, this Court differing from the District Judge, held to be one of ambiguous and uncertain import. Savaram lands which are analogous to nankar lands in Upper India connote lands kept by the zamindar for the support of himself and the members of his family and would prima facie be his private lands according to the notions prevalent in the Northern Sircars. . This Court posed the real question as being "whether the evidence was sufficient to establish that the zamindar was the owner of both the melwaram and the kudiwaram in the lands" and answered it in the affirmative relying on the following circumstances. The lands were treated in the accounts of the zamindar as different from seri or ryoti lands and were held by tenants on rates of rent different from those prevailing for seri lands. Water cess on the lands was paid by the Zamindar while ryots lands. Water cess on the lands was paid by the Zamindar while ryots paid the cess in respect of ryoti lands. In the eases granted since 1892 the zamindar asserted, and the tenants admitted, his full proprietary rights in. the lands. In the leases of 1896 and 1897 the lands were let as private lands. Grain rents had been substituted for money rents and the leases had been granted by auction to the highest bidder.

This decision is a clear pronouncement that the character of a land as a private land could be established by the modes than by proof of direct cultivation by the landholder. Sundara Aiyar J. held that the Act did not lay down any definite rule as to all the kinds of evidence that might be produced to prove that the lands were private lands and the leases granted subsequent to July 1898 were not shut out by S. 185 of the Act, a view which waa affirmed by Wallis C. J. in the CHELLAPALLI CASE 39 Mad 341 [LQ/MadHC/1914/478] and Krishnan and Venkatasubba Rao JJ. In North Vallur Case 50 Mad 201 [LQ/MadHC/1926/243] and the Judicial Committee in Bindeshwari Prasads Case 5 Pat 634 .

69. The decision of the Judicial Committee in Bindeshwari Prasads Case 5 Pat 634 has in my opinion a very important bearing on the topic now under consideration. The case arose underSection 120 of the Bengal Tenancy Act corresponding to Section 3 (10) (a) andSections 185 (1) (2) and (3) of our Act. It ia a matter of common knowledge that our Act was modelled on the Bengal Tenancy Act, the Permanent Settlement having proceeded on the same lines in both provinces.

In that case the Maharaja of Dumraon, the land-holder, sued for eviction of his tenants from the large extent of lands situated in the zamindari alleging that they were his zerait or private lands. The tenants pleaded that they were ryoti lands in which they had acquired a statutory right of permanent occupancy underSections 20 and 21 of the Bengal Tenancy Act corresponding to Section 6 of our Act. The lands in question were 225 bighas in extent and had emerged in 1843 by the fiuvial action of the Ganges and become part of the zamindari. The bulk of the lands was suitable for cultivation. The entire lands had been leased from time to time by the Maharaja to the Government from 1843 till 1873 when the Government surrendered possession to him. The lands were again leased in 1873 to a Mr. Fox for ten years, the lease being renewed in 1883 for a further term of nine years under a kabuliat which recited inter alia that the lands were zerait (private lands) of the lessor. In 1891 the Maharaja even granted permanent occupancy rights in the lands to Mr. Fox in consideration of his services. Mr. Fox fell into arrears of rent and the Maharaja filed a suit, obtained a decree and purchased the right, title and interest of Mr. Fox in the lands in 1896. Thereafter the lands were leased by the Maharaja to one Akauri Ram for a period of five years.

In 1902 the proprietrix of the Dumraon Raj granted a lease of the lands to Keshav Prasad, the father of the defendants, for a term of 7 years, the lands being described in the kabuliat as the zerait lands of the lessor. The lessee agreed that the lessor would be at liberty to lease the lands to anybody he liked at the end of the term. The lessee, and after his death, his sons, remained in possession for the full term of seven years except during a temporary dispossession from some of the lands by trespassers who had no title and who had set up an untenable claim of occupancy right.

In the suits filed by the heirs of the lessee for eviction of the trespassers they had described the lands as zerait lands of the Dumraon Raj. Under a fresh kabuliat executed on B-12-1908 by the heirs of Keshava Frasad, the original lessee, the term of the lease was extended till 1925. This kabuliat also contained admissions by the lessees that the lands were the zerait of the lessor and there were also stipulations to the effect that the lessees would not claim rights of occupancy and that the lessor would be at liberty to take and keep possession of the lands himself or settle the lands on any other person at the expiry of the term. On the expiry of the term of this last kabuliat, the lessees declined to give up possession and asserted that they were ryots who had acquired" occupancy rights.

The Judicial Committee held, affirming the decision of the Patna High Court, that the lands were the private lands of the Dumraon Raj in which the lessees could not and did not acquire occupancy rights. Though the lands had never been under the direct cultivation of the zamindar at anytime since their emergence in 1843 and, had always been leased to tenants as zerait lands for varying terms, they were nevertheless held to be the private lands of the zamindar. This conclusion was based only on the terms of the several leases referring to the lands as zerait lands and the admissions of the tenants that they had no right of occupancy in them.

The Judicial Committee also held that the admissions in leases executed by tenants after 1883 (the corresponding date under our Act being 1898) negativing a right of occupancy in the lands were admissible in evidence to prove the character of the lands as private lands. In other words, the Judicial Committee did not exclude any evidence admissible under Evidence Act to prove that the lands were the private lands of the Zamindar.

The learned advocate "for the appellant distinguished the case as resting on the terms of Section 120 of the Bengal Tenancy Act and as having no application to the construction oj our Act. I am unable to find any appreciable difference between the two provisions. Section 120 (1) (a) of the Bengal Tenancy Act corresponds to the second part of Section 3 (10) (a) of our Act; Section 120 (1) (b) corresponds to the first part of Section 3 (10) (a); and Section 120 (2) corresponds to Clauses 1, 2 and 3 and the first proviso to Section 185 of our Act. Not only is there no material difference in the law applicable but the facts in the Patna case were very much stronger against the case of the landholder who had even gone to the length of creating occupancy rights in Mr. Fox and might therefore well have been presumed to have given up any intention of direct cultivation. He had even purchased the occupancy rights of Mr. Fox at an execution sale for arrears of rent.

Under Section 22 of the Bengal Tenancy Act (corresponding to Section 8 of our Act), an acquisition of occupancy rights by the landholder at a rent sale does not enable him to hold the land as ryoti. Nevertheless the Privy Council held that the transaction by which the Dumraon Raj conferred permanent tenancy rights on Mr. Fox did not affect the character of the lands as zerait and when they came back to the possession of the Raj by a purchase at an execution sale, they regained the character which they originally possessed. It is somewhat unfortunate that this decision has not been the subject of consideration by this Court on many occasions when its relevancy was beyond dispute.

70. I shall now deal with the later decisions of this Court. In Vadiyangati Chinnarigadu Vs. Kotigari Rangayya Chetty, , the question was whether certain land was ryoti or the private land of the zamindar. There was no evidence of direct cultivation by the land-holder at any time. On the other hand, the evidence adduced by the land-holder consisted of periodical leases originating from 1877. The tenants had been given sagubadi pattas which were different from those issued to tenants of ryoti lands. The lands were described as kambattam and there was a provision in the leases granted before 1891 for surrender of the land by the tenants at the end of the term. The tenants however had not been turned out of the land but allowed to continue from year to year. On these facts Madhavah Nair J. held that the lands were the private lands- of the land-holder though never directly cultivated by him.

In the unreported case of SRI Thiagarajasami Devastanam v. Muthuswamp, C. M. A. No. 311 of 1943 Krishnaswami Aiyangar and Somayya JJ. dealt with a case of private lands in a whole jnam village which had been granted with both warams to a temple and which became an estate u/s 3 (2) (d) as amended by Act 18 of 1936.

The Court held that the mere fact that the land-holder was the grantee of both the warams was not sufficient to show that the land was his private land, having regard to the statutory presumption in Section 185 of the Act that land is ryoti and also to ,the provisions of the Sections 185-A and 185-B of the Act. There was no proof of direct cultivation of the land by the landholder at any time, the land having been periodically leased out as required by a scheme framed for the temple. The case fell within Section 3 (10) (b) (1) of the Act, which, in the case of major inams, corresponds to the first portion of Section 3 (10) (a) applicable to the zamindaris; palayams arid jagirs.

It was pointed out by the learned Judges that the words "sir", "khas", "khambattam" and "pannal" were given in Section 3 (10) merely as examples of private lands properly so called and that in the case of lands not bearing the particular nomenclature, the Court would still have to find out whether the lands were private lands, i.e., the domain or home-farm land of tho land-holder. The Court relied upon terms in the leases granted before 1st July 1918 implying that the tenants had no right of occupancy in proof of the private character of the lands. The changes in the personnel of the tenants, the variations in the rent payable, the restrictions on the rights of tenants to enjoy the trees on the land, the fixing of a term of years with a provision for surrender of the lands at the end of the term and the periodical auction of the leases to the highest bidder, were relied upon in support of the conclusion that the lands were private lands of the temple. The Court distinguished the cases in the first Chellapalli Case 39 Mad 341 [LQ/MadHC/1914/478] , and the second Chellapalli Case 39 Mad. L. J. 277 on the ground that they were cases where the Court had to consider whether ryoti land had been converted into private land before the Act, in which case the test of direct cultivation might be a crucial test.

71. Kondayya v. Naganna ILR (1941) Mad 720 was an appeal from a judgment of Wadsworth J. in Chelikani Kondayya Rao and Others Vs. Vuppalapati Naganna and Others, , and dealt with a case of conversion of private land into ryoti land by the grant of a permanent right of occupancy by a Mukhasadar to hjs tenants. Wadsworth J. referred to home-farm land as land regarding which the land-holder at least retained an expectation that he would at some not too distant a date, use it for his own cultivation and enjoyment following the Chellapalli Case 39 Mad. 341 [LQ/MadHC/1914/478] . After examining the relevant provisions of the Act, Leach C. J. on appeal observed:

"There was nothing jn the Act as it stood before 1936, nor is there anything in it now, which prevents a land-holder from leasing his private land on whatever terms he may think fit so long as he does not part with the kudiwaram interest."

Towards the end of the Judgment the follow ing passage occurs:

"The appellants here could have sold the lands in suit to the first respondent absolutely or they could have leased them at any rent they might have agreed upon without separating the kudiwaram right from the melwaram right, but as they chose to separate the kudiwaram right from the melwaram right and grant a permanent right of occupancy on the basis of the payment of rent relative to the melwaram right, they must, in my judgment, be deemed to have converted the lands into, ryoti lands."

Leasing by itself does not, therefore, impair the character of lands as private lands. Rajayya v. Lakshmana Aiyar ILR (1946) Mad 181 was also a case relating to the conversion of isuwaram land into ryoti land u/s 3(10) (b) (IV) of the Act. There a landholder had acquired the kudiwaram interest for valuable consideration before 1st November 1933 and had been letting out the land on leases ever since. It was contended that the land had regained its original character as ryoti in the absence of direct cultivation by the land-holder. The Court (Somayya and Patanjali Sastri, JJ.) negatived this contention in these terms:

"The mere fact that the lands have been leased to a tenant for a number of years dees not mean that the land-holder has not retained the kudiwaram and that he has converted them into ryoti lands. Proof of intention on the part of the landlord to part with the kudiwaram right is necessary".

In a similar case, SWAMI VANNIAR v. NAGARAJA, S. A. No. 847 of 1946 Rajagopalan J. observed as follows:

"Leases for short period with varying terms would really indicate a definite intention on the part of the land-holder to retain his kudiwaram interest, not that he intended to part with them in favour of the lessee. The fact that the lessee was the same is not enough to prove an intention to part with the kudiwaram interest."

I do not see why the same test should not be applied to a case where both the warams originally vested in the land-holder and the question arises whether the lands have become ryoti or where the presumption u/s 185 of the Act is sought to be relied upon,

72. The next reported case on which considerable reliance has been placed by the appellants is Jagadeesam Pillaj v. Kuppammal ILR (1946) Mad 687 the judgment of the Bench being that of Wadsworth O. C. J. Stripped of unnecessary detail, the facts of the case were these. The Rajah of Tanjore had, before his death in 1855, acquired the mirasi rights, i.e., absolute ownership in the lands of Kaduveli village. On the death of the Rajah all his landed properties were annexed by the East India Company as an act of State and kept in the possession and management of the company and its successor, the British Crown, till 1862, when they were regranted to the widows of the Rajah. Owing to quarrels among the widows, a permanent receiver was appointed by the Court in 1866 to manage the lands and divide the income among the widows. The receivers successively appointed by the Court were in possession of the lands till 1928. Thereafter the Kaduveli lands were divided among the claimants to the estate of the Rajah. In 1934 one of them granted a lease of the lands allotted to his share to a tenant for a term of three years. At the end of the term the tenant claimed that the lands were ryoti and that he had acquired occupancy rights u/s 6 of the Act. The land-holders sued to evict the tenant on the ground that the lands were private lands. The learned Judges of this Court held that the lands were ryoti in which the tenant had acquired occupancy rights u/s 6 of the Act.

A Full Bench of this Court in Sundaram Iyer v. Ramachandra aiyar, 40 Mad 389 [LQ/MadHC/1917/14] , held that the villages comprised in the Tanjore Palace Estate were "estates" within the meaning of Section 3(2) (d) of the Act, as it then stood, though the case related to the village ot Uljikadai with reference to which, as pointed out by Sadasiva Aiyar J. it was conceded that there was a grant only of the melwaram.

The learned Judges in Jagadeesam Pillais Case, ILR (1946) Mad 687 traced the history of the Kaduveli lands from 1330. The village was then a mirasi village, the lands being owned by the mirasdars as proprietors of the soil. The mirasi rights had thereafter been acquired by the Rajah of Tanjore and on his death in 1855, vested in the East India Company and its successor, the British Crown. In 1856 the Government teased the lands to a purakkudi or outside cultivator for" a term of three years. In 1860 the Government leased the lands to a different tenant with a stipulation for payment of miras thunduwaram in addition to the melwaram in recognition of the Governments right as a holder of the mirasi rights in the lands. After the grant of the village by the Government to the widows of the Rajah in 1862, the lands which were styled as "palace miras" were leased to a tenant with a provision for a payment of miras thunduwaram in addition to the melwaram. The receivers who came into the management in 1866 and continued till 1926 went on granting periodical leases of the lands to the highest bidder, the lands being stated to be absolute property of the land-holder in the leases granted before 1908 and to the private lands of the land-holder in leases after 1908. The lands were proved to have been cultivated in amani in 1870 which, with all deference TO Wadsworth O. C. J. meant direct cultivation. The Court expressed its conclusion on the facts in these terms:

"We do not know how the Rajah of Tanjore acquired the mirasi rights In the main village of Kaduveli; but we may take it as established that after the rendition of the estate (1862) there was no recognition of the Subsistence of any occupancy right hi any tenants of the main village who were holding lands under the receivers or under the actual owners of the estate."

It is somewhat difficult to understand the exact process of reasoning by which the learned Judges reached their conclusion. If their view was that the village was an estate even u/s 3 (2) (d) of the Act, as originally enacted in 1908, then the acquisition by the Rajah of the kudiwaram or mirasi right even though it was made before 1855 would not convert the land into private land, see Section 8 of the Act. Even after the regrant of 1862 the land would continue to be held on the same tenure unless it came within Section 3 (10) (b) (ii) to (v) of the Act which, however, was not the case. The long history of the lands prior to 1862 narrated in the judgment would not be germane unless the learned Judges thought that the Rajah was only a melwaramdar and that by his subsequent acquisition of the kudiwaram interest there was no merger so as to extinguish the kudiwaram right.

In the course the judgment, however, the Court proceeded on the basis that the confiscation swept away all antecedent rights of the Rajah, that the grant of the village in 1882 was a grant of both the warams to the Ranis and that the village became an estate u/s 3 (2) (d) of the Act as amended by Act XVIII (18) of 1936. They then proceeded to discuss the meaning of the term "private land" in Section 3 (10) (b) (i) of the Act in the light of thg observations of this Court and the Judicial Committee in THE CHELLAPALLIS CASE 39 Mad 341 [LQ/MadHC/1914/478] affirmed on appeal in 42 Mad. 400 .

73. Referring to the earlier Judgment of this Court in Thiagarajasami Devasthan v. Muthuswami, C. M. A. No. 311 of 1943, decided by Krishnaswami Aiyangar and Somayya JJ. their Lordships observe: "The learned Judges deal with the definition in a way which, with very great respect, we find difficult to reconcile with the decision of the Privy Council just quoted. (Chellapalli Case, 39 Mad 341 [LQ/MadHC/1914/478] affirmed on appeal in 42 Mad 400 . We are not concerned with the correctness of the unreported decision on the particular facts before the learned Judges; but with some of the observations contained in that judgment we must express our respectful disagreement." It is rather unfortunate that the learned Judges did not point to any passage or any of the reasons contained in the judgment they were criticising but considered it sufficient to express a general feeling of dissatisfaction and disapproval. They, however, laid down the tests for ascertaining whether a land was private land or ryoti in an estate in these terms:

"It seems to us that 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 land-holders residence and kept for his enjoyment and use. The home-farm is land which the landlord farms himself as distinct from land which he lets out to tenants to be farmed. The definition read as a whole indicates clearly that the ordinary test for "private" land is the test of retention by the land-holder for his personal use and cultivation by him under his personal supervision. No doubt such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character; but it does seem to us to be In consistent with the scheme of the Madras Estates Land Act as amended 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 those 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 Madras Estates Land Act cannot acquire occupancy rights."

I have already stated that there is no warrant for confining "private lands" to land adjoining or appurtenant to the residence of the land-holder or to land that is kept for the personal enjoyment and use of himself and his establishment. The learned Judges themselves seem to concede that prool of direct cultivation is only one method of establishing the character ol a land as private and that it can be established by some clear indication of an intent to regard the land as retained foV the personal use of the landholder and his establishment. Why may not this indication be gathered from the terms of the leases themselves under which the lands have been let to tenants The learned Judges did not give any indication ol how "the clear indication" insisted upon by them is to be futher nished or gathered. The short term leases granted by the Receivers as well as by the Government were, as their Lordships themselves point out, qn the footing that the lessors were owners of both the warams and wholly inconsistent with the recognition of any right of occupancy in any of the tenants who were holding under such leases. Except for one year during which the village was cultivated in amani, there was no evidence of direct cultivation by the land-holder in that case. In spite of different tests differently worded and indicated in the different portions of the judgment, perhaps the only basis on which the conclusion of the learned Judges rests is that proof of direct cultivation for a substantial period of time Is absolutely essential to prove the character of lands as private lands in cases coming within Section 3 (10) (b) (i) of the Act. If so, I am not prepared to go so far as the learned Judges have gone in that case.

74. The decision of the Full Bench In Bandharu Jogi v. Seetharamamurti ILR (1948) Mad 223 merely decided that in view of the amendment of Section 3 (10) (a) and Section 185 of the Act in 1934, the only mode ef converting ryoti land into private land sanctioned by the Act is by direct cultivation of the land by the land-holder with his own servants or by hired labour and with his own or hired stock for a continuous period of 12 years, before 1st July 1908, the date when the Act came into force. Some of the reported decisions which have already been referred to in this judgment were also noticed by the Full Bench but the case was one of conversion of ryoti land into private land. The Court had not to deal with the situation which has now arisen and to ascertain for the first time whether a particular and was private or ryoti.

In Narayadu v. Venkataramanamurti (1949) 8 Mad. L. J. 623 I held that the lands there in question were private lands relying on the course of dealing between the zamindar and the tenants as evidenced by leases from 1877 to 1939. I also pointed out that the test of direct cultivation was a useful test but direct cultivation was not an indispensable part of the evidence requisite for establishing that a land, whose character as private or ryoti is under investigation, falls within the former category.

In Ramakrishnarao v. Seshayya, A. S. No. 53 of 1946, it was held by the learned Chief Justice and Rajagopalan J. that the lands in question in that case were private lands, relying on the evidence of direct cultivation by the land-holder of different portions of the land at different times with his own stock. Passages from the judgment of Wadsworth O. C. J. in Jagadeesam Pillais Case ILR (19.46) Mad 687 were quoted in extenso and with evident approval and the tests for mulated in the judgment were applied. As there was ample evidence of direct cultivation by, the land-holder in that case, the further question whetner its absence was fatal to the claim of the land-holder had not to be considered.

75. The last of the cases to be noticed is a decision of Subba Rao and Chandra Reddi JJ. in Parish Priest of Karayar Parish v. Kattalai of Sri Thiagarajasami Devastanam, A. S. Nos. 176 to 178 and 493 of 1946, which related to lands in inam villages which had been granted to the Sri Thiaga-rajaswami Devastanam. The learned Judges held that lands of the extent of about 1000 acres involved in those appeals were not private lands of the temple but were ryoti lands in which a lessee of the lands from the Executive Officer of the temple had acquired permanent rights of occupancy as a result ol the amending Act XVIII (18) of 1936. The Court outlined the origin of private lands as lands directly cultivated by tribal chieftains through their farm servants or hired labour and waste lands gradually brought under cultivation by them with their own servants or hired labour. It was pointed out that "even if a land is known as kambattam or pannai, unless it satis fled the characteristics of a domain or home farm land, it cannot be private land within the meaning of the Act". The description o| "domain" land in the Encyclopaedia Brittanica and the definitions of "kambattam", "sir",, "khas" and "pannai" in Wilsons Glossary were referred to. The learned Judges relied upon the Chellapalli Case, 39 Mad 341 [LQ/MadHC/1914/478] and Jagadeesam Pillais Case. ILR (1946) Mad 687 and applied the BUDLEY v. BUKTOO 3 N W P H C R 203, test adopted by Wallis C. J. as a correct test for ascertaining whether a land was ryoti or private land.

They laid down that in addition to the recitals in lease deeds, there must in every case ba evidence that the land in its origin was directly cultivated by the landlord or reserved by him for his own direct cultivation. The grant of short term leases with a provision for re-entry by the lessors on the expiry of the term was not sufficient to indicate an intention to resume direct cultivation. They further held that direct cultivation by the land-holder; for a few stray years was of no avail as in their opinion such cultivation might have been necessitated by the dearth of persons willing to take the lands on lease. The previous unreported decisions of this Court were not individually referred to or examined but distinguished on the ground that they were all decisions rendered on their own facts. The learned Judges rested their decision against the landholder Devastanam on various other grounds also which are now not germane.

76 . I may now summarise my conclusion on the legal aspects of the case. Where land prayed or admitted to be once ryoti land is claimed to have been converted into private land, the claim is untenable unless the land-holder proves direct cultivation for a period of 12 years before 1st July 1908. No other mode of conversion is permissible. Where you have to find out whether a land is private or ryoti its original character not being known, proof of direct cultivation of the land by the land-holder for 12 years before 1st July 1908, would, without other evidence, conclusively establish its character as private land, but this is not the only mode of proof permitted to land-holder. Other evidence may be adduced and looked into and might consist, among other matters, of direct cultivation of the land at some period anterior to the 12 years preceding 1st July 1908 but this is not indispensable. Direct cultivation may be valuable and weighty evidence and may be inferred from accounts and other records usually kept by large land-holders.

If, owing to lapse of time or other reasons, evidence of direct cultivation is not forthcoming its absence is not fatal to the claim that the land is private. Section 185 of the Act does not shut out, but on the other hand allows all evidence that would be relevant arid admissible under the law of evidence, to prove that fact in issue, namely, whether the land is private or ryoti. Local usage or custom and the letting of the land as private land in leases before 1898 are specifically mentioned in Sections 185(1) and (2) as being relevant evidence but other evidence is also expressly made admissible u/s 185(3).

The classification of lands as private lands at the time of the permanent settlement or in the early records of zamindaries, the terms of the grant of an undertenure, the assertion and enjoyment by the land-holder of the right to both the warams, the intention to retain with himself the kudiwaram right and the consequent right to resume direct cultvation if he chooses, ceases of the lands as private lands or with terms and conditions inconsistent with any right of occupancy in the leases, admissions by tenants that the land-holder is the owner of both warams and that they have no occupancy rights, changes in the personnel of the tenants, variations in the rates of rent payable by the tenants -- these and kindred matters would be relevant and admissible in evidence to prove that the lands are private lands. The probative value of such evidence depends on the facts and circumstance of each case.

The burden of proof that a particular land in an estate is private land rests on the landholder, the statutory presumption being the other way. This burden is not discharged merely by proving that both the warams were granted to or enjoyed by the land-holder once upon a time. There must be evidence of the treatment of the lands as private lands by the land-holder, either by direct cultivation or otherwise in the manner above stated.

77. There is one feature of these cases which requires special mention. The leases granted from time to time to the tenants are styled "Swamibhogam leases" and there is a stipulation in all of them for payment by the tenant of swamibhogam to the landlords in addition to the melwaram proper. If the tenants had a right of occupancy in the lands they could have objected to the imposition of this liability for swamibhogam in addition to the rent; but they never raised any such objection. It has been pointed out in several decisions that the payment of swamibhogam by the tenants is a clear admission that the landlord is the owner of both the melwaram and the kudiwaram right in the land i.e., that he was the absolute proprietor of the soil NAINA PILLAI v. RAMANATAN 33 Mad L J 84 ; MOHAMAD ROWTHER v. MUTHU ALAGAPPA CHETTIAR 34 Mad. L. J. 234 ; SUBRAMANIA v. SIVASUBRAMANIA m 41 Mad L J 175; Subramania Chettiar v. Subramania Mudaliar 57 Mad. L. J. 1 .

At page 285 of the Ramnad District Manual it is stated as follows:

"Pannai lands are those in which the Zamindar or Inamdar owns both the land lords right and tenants right He can lease out the lands to anyone he likes for cultivation and obtain from him "swamibhogam" or "thunduwarani", a rent obtained in acknowledgment of the land lords tenancy right in the soil in addition to the melwaram or landlords share."

78. Swamibhogam is supposed to be taken out of the kudiwaram or cultivators share of the produce and paid in addition to the mel waram or landlords share. It consists of a one-tenth or a greater share of the kudiwaram produce which the tenant pays to the land lord aiong with the melwaram. Thunduwaram resembles very closely the swamibhogam and it is also a portion of the kudiwaram paid by the tenant to his immediate landlord in addition to the melwaram. The swami bhogam is a fixed amount while the thundu warani may vary in proportion to the amount of crop actually harvested. The description of the leases in the present case as swamibho gam leases as well as the provision in these leases for the payment of Swamibhogam in ad dition to the melawaram by the tenants to the trustees of the temple would indicate an inten tion on the part of the land-holder not to part with the kudiwaram interest but to retain the lands as resumable by him for direct cultiva tion in the future.

Mr. A. Sundaram Aiyar relied on the decision in Sivanupandia thevar v. Zamindar of Urkad, 41 Mad 109 where it was held that "swamibhogam" was part of the rent lawfully payable by a ryot to the landholder. There the lands were admitted to be ryoti and the tenants were ryots. The only question was whether the swamibhogam paid all along to the landholder was an illegal levy or part of the rent lawfully payable and it was held to be a part of the rent. The origin of the payment in that case was not known and it had been paid for a long time as a component part of the rent.

79. The evidence adduced in these cases to support the claim of the plaintiffs that the lands are private is somewhat meagre and of a poor quality. At the same time it cannot be said that irrelevant evidence has been admit ted or that there is no evidence in support of the findings of the Courts below. Nor have the Courts below misdirected themselves on any point of, law. I agree with my learned brother, Satyanarayana Rao J. as regards the result of these second appeals and civil revi sion petitions.

80. RAGHAVA RAO J:- These second appeals and civil revision petitions raise two questions of some difficulty (1) whether the village in question is an estate within the Madras Estates Land Act, and (2) whether the land in the possession of the defendants is private land of the plaintiff-land-holders. Both the Courts below have answered both these questions in the affirmative. The defendants are the appellants and the petitioners in these cases.

81. At the conclusion of the arguments I found myself by no means certain in regard to the answer to hbe givne to the second question, although in regard to the answer to be given to the first I more or less made up my mind in favour of the appellants. I have had the advantage since of perusing the judgments of my learned brethren in order to arrive at a decision in their light as well as in the light of the arguments.

82. On the first of questions I agree with my learned brethren that the suit village must be held to be an estate with reference to Section 3 (2) (e) and not Section 3 (2) (d) of the Madras Estates Land Act. The view of the learned Subordinate Judge On appeal in concurrence with the conclusion of the learned District Munsif at the trial holding the village to be an estate with reference to the latter provision of the statute is beset with too much of error to commend itself to my acceptance. The grant which is not badshahi or royal is not of 1720 A. D. as supposed by the learned Subordinate Judge but of 1798 A. D. The year 1720 referred to in Ex. P. 26 does not relate to the era beginning with the death of Christ but to Saliyahana Saka as found out by us on our investigation at the hearing. Even on the assumption that the Dindigul referred to in Section 2 of Madras Regulation XXXI of 1802 included the area in which the suit village is situate, the grant does not satisfy the description of a grant made before the lath day of March 1792 for it to attract the validating declaration contained in that section. Nor does Ex. P. 26 relate to a register maintained u/s 15 of the Regulation. It may be that the character of the grant as that of a village was not disputed in the Courts below and is not unnecessarily belied by the contents of Ex. P. 26.

But the question still remains whether, not having been dealt with by the Inam Commission, the grant can be said to be a village recognised by the British Government as contemplated by Section 3 (2) (d). The declaration in Section 2 of the Regulation not being applicable to the case and the entry in Ex. P. 26 not being one made in a register maintained under the regulation, the only other features remaining for consideration out of those relied tin by the lower appellate Court for bringing the suit village within Section 3 (2) (d) of the Act are, firstly the direction contained in the Inam Rules framed in 1859 or so for the guidance of the officers are concerned with the Inam Settlement, that all inams held uninterruptedly for a period of 50 years should be treated as possessed under a valid title whatever may have been the origin and secondly, the, collection of road cess by the Government from the inamdars.

As regards the first, the fact remains that the rules never came into effect with reference to suit village which has been left severely alone arid not at all touched by the Inam Set tlement of the sixties of the last century or in any latter settlement.

I am not satisfied that Thirumalai v. Bangaru, 21 Mad 310 which related to the construction of Section 4 of the Pensions Act XXIII of 1871 is of any assistance to the determination of the present point as supposed by the learned Subordinate Judge. The argument in that case was that by confirming the grant of a village by a Sivaganga Zamindar to a Ma-dura Naick at the time of the Inam Settlement the Government must be deemed to have themselves made a regrant, and that a Collectors certificate was therefore required for the suit there in question to be maintainable. The argument was repelled for the reason that assuming that the act of the Government in confirming the inam amounted to a regrant of it, it could not be said that the giving of land free of the revenue is a grant of land revenue- so as to bring the case within the provisions of the Pensions Act. The basis of, the argument there -- namely a confirmation of the grant by the Government at the Inam Settlement -- does not exist here, and, in my opinion, the mere general direction in ihe Inam Rules above referred to not carried out admittedly at any Inam Settlement in relation to the suit village cannot be regarded as a recognition of the suit village by the Government as an inam for the purpose of Section 3 (2) (d) of the Madras Estates Land Act.

Nor am I satisfied that the mere collection of road cess by the Government in respect of the suit inam village is such a recognition --a recognition, I mean, of the validity of the original grant which has so far remained untouched by the Government. If as opined by the late Mr. Ramadoss in his commentary on the Act at pages 53 and 54 the word "recognised" might apply to the case of those inam grants which did not form the subject of the Inam Commissioners inquiry but which have not been disputed, cancelled or resumed by the British Government i.e., those which have been continued by an implied consent without express confirmation, there would perhaps be some point in the reliance placed by the learned Subordinate Judge on the two features above mentioned.

The question hpwever has been raised in a case decided subsequent to the publication of that commentary in Sam v. Ramalinga, 40 Mad 664 [LQ/MadHC/1916/94] whether the word "recognised" required something more than acquiescence by the British Government. The inclination of opinion expressed by one of the judges in that case (Srinivasa Aiyangar J. -- later. Sir K. Srinivasa Aiyangar) is that recognition implies something more than acquiescence, something done by the Government, as for instance by acceptance of service, jodi, etc. From that inclination of opinion of that distinguished Judge, I am not prepared to dissent, supported as it is by the analogy of the decision in Secretary of State v. Bhamumurthi, 24 Mad. L. J. 538 which was no doubt a case under ihe Madras Proprietary Estates Village Service Act II of 1894 but which in construing similar words "lands granted or continued by the State" occurring in Section 17 of that Act held that "continuance" in the context of the section implied a recognition by the Government of the right of the inamdar which could have been set up by him in support "of his possession, and that mere sufferance by the Government or forbearance from taking steps which it might have been open to the Government to take or collateral expressions of opinion not intended to be recognition or confirmation of the right of the holder would not amount to. continuance.

83. Section 3 (2) (d) of the Madras Estates Land Act being inapplicable for the reasons indicated, the question is whether Section 3 (2) (e) catches the village concerned in this case. I am distinctly of opinion that it does Exs. P: 23 and P. 24 make it reasonably clear, that the village was the subject matter of a pre-settlement inam included later in the assets of the zamindar at the time ot the Permanent Settlement as an ayan village in respect of which there was a subsequent reduction of rent payable to the zamindar by the inamdar by way ot Dharmasanam grant. That being BO, the village is In the nature of an undertenure (ailing under Clause (e) of Section 3(2).

84. I may state before passing on to the second question arising for determination that I have had to say so much as I have said on the question whether or not the suit village falls within Clause (d) ot Section 3(2) because In answer to an intimation of opinion from the Bench during argument that Clause (e) and not Clause (d) of Section 3(2) would govern the present case--a position which the learned advocates for the respondents accepted without any objection--the learned advocate for the appellants-petitioners stated that he was not prepared to abandon his contention as to the applicability of Clause (d) whatever our opinion about the applicability or inapplicability of Clause (e).

85. On the second question 1 felt a good deal of doubt as to the true view to take during the progress of the argument which did not by any means stand resolved at its conclusion. The uncertainty in which I was left was because of two conflicting considerations. On the one hand there was the natural feeling of the strong reluctance to overrule a whole catena of decisions beginning with Zamindar of Chellapalle v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , a decision of Wallls C. J. and Seshagiri Aiyar J. of 1914 and ending with two latest judgments of this year not yet reported of two different Benches -- that of Rajamannar C. J. and Rajagopalan J. in Ramakrishna v. Seshayya, A. S. No. 53 of 1946 and that of Subba Rao and Chandra Reddi, JJ. in Parish Priest v. Kattalai of Sri Thiagarajasami Devastanam, A. S. Nos. 176 to 178 and 493 of 1046 all priroa facie speaking In one voice favourable to the contention of the learned advocate for the appellants and petitioners before us except a solitary decision in Thiagarajasami Devastanam v. Muthuswami, C. M. A. No. 311 of 1943 striking" a discordant note.

Further in between 1914 and 1949 there is the decision of the Judicial Committee of the Privy Council in Zamindar of Chellapalli v. Somayya, 42 Mad 400, which affirmed in appeal the decision of the High Court in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] . Further still there are two decisions of Division Benches in Mallikarjuna Prasada Naidu v. Subbiah 39 Mad. L. J. 277 and Jagadeesam v. Kuppammal, ILR (1946) Mad 687 and one decision of a Full Bench in Bandharu Jogi v. Seetharamamurthi, ILR (1948) Mad 223, in which the test of direct cultivation for ascertaining the character of private land propounded in Zamindar Of Chellapalli v. Somayya. 39 Mad 341 [LQ/MadHC/1914/478] , which has been insisted upon .for the appellants and petitioners before us has been accepted. On the other band, there seemed to go against the appellants and petitioners a ruling of the Privy Council in Bindeshwari Prasad v. Kesho Prasad, 5 Pat 634, which, if indistinguishable, must needs mean-an end of these appeals and revisions.

86. Before I deal with Bindeshwari Prasad v. Kesho Prasad. 5 Pat 634, I shall deal with the decisions of this Court bearing on the point falling to be decided in order to ascertain their result, and before I deal with them, I wish to draw attention to a few fundamental considerations required to be borne in mind, in my judgment, for a correct construct ion of the statute with which we are concerned in the light of which I propose to ascertain the true interpretation of the relevant provisions of the statute, as I conceive it.

87. The Madras Estates Land Act as pas sed in 1908 is a declaring and amending Act as the preamble shows, and it has since under gone vital changes in the years 1934 and 193.8 in several particulars more especially in regard to the definitions of "estate" and "private land." The original Act & the changes from time to time have, as everybody knows, been dictated by Governmental policies calculated to extend the sphere of "estates" and further the rights of "ryots", to limit the extent and define the character of "private land" and to discourage the growth, and expansion of "private land" by the unjust efforts of land-holders.

It is impermissible, in my opinion, for any Court in construing any statute and much more so in construing a statute of this description passed to amend as well as declare the law re lating to the holding of land In estates in the Presidency of Madras, to press into service his torical knowledge or to resort to the antece dent state of the law, except for resolving doubts arising on the language of the enact ment or for supplementing it in matters not covered or dealt with by it. The Court is not concerned with giving either more or less effect to the policies and purposes of the legislature than is warranted by the letter of the statute except where the golden rule of literal con struction as Lord Wensleydale described it ia an early English case in the House of Lords GRAY v. PEARSON, (1857) 6 H. L. 61 entails anamolies bordering on manifest absurdities and futilities leading to palpable injustice and infringing all reasons whatsoever. "Private land" may have meant anything according to Baden Powell or other text book writerg or Judges prior to the passing of the Estates Land Act. What "private land" means as defined in the statute is, however, a matter to be ascertained in accordance with the precise language of the Statute as interpreted by decisions rendered subsequent to the enactment of the statute without prepossessions or preju dices derived from or founded upon a know- ledge of the prior state of the law. The sta tute must of course be read as a whole, and Section 3 (10) and Section 185 may have to be taken together so as to harmonise with each other - a matter to which I shall address myself in detail in the sequel. But the well-settled principle is that the language of a statute must not be strained and the scope of any definition therein extended so as to make it apply to a case to which it does not legitimately on its terms apply by invoking consideration of the supposed intention of the legislature or by seek ing to assimilate the law under the statute somehow to the law in force prior to the en actment, even if the latter be found to be different in any respect from the former.

88. Then, again, the construction of at statute couched in English language can only be according to the meanings of the English, words used in it, as those meanings can be ascertained from English Lexicons, Law Lexicons preferably and particularly. The employment of English as the vehicle of our statutory enactments had been the inevitable feature of our legislative We so far, and until the day comes when it ceases to be that, it is no good complaining of that feature however unfortunate it may be. It may or may not have been the fault of the legislature to use words belonging to a foreign system of jurisprudence as the best possible approximates or the nearest possible equivalents available in the language of the English Law for giving effect to concepts connected with our own indigenuous system of land tenures. While of course differences in fundamentals between the two systems ought not to be overlooked, affinities where they exist, ought not to be ignored either.

Bearing in mind the affinities as well as the differences, if decisions of this Court have construed the English words of the statute in their English sense so as, it may be, to produce results disharmonious to the antecedent state of the law, such disharmony is, in my opinion, no ground for expanding the scope of the statute so as to accord with such a state of the law. No "Judicial embroidery" -- to use the figurative phrase used by my learned brother, Viswa-natha Sastri J. which by the way as I shall show hereafter is with due respect by no means a correct phrase in which to characterise the decisions relied on by the learned advocate for the appellants and petitioners before us -- which has been imported by Judges into the interpretation of the Act need or ought to lure us or confuse us. But no Judge need or ought to reshape the substance at the root, rewrite the language of the enactment itself so as to perpetuate the state of the law prior to the enactment, merely because his notions as derived from that state of the law may stand violated by the English words employed by the legislature understood in their English sense. If there is vice or mischief at the basis of a legislative enactment it is not the province of the Court to remedy it of its own initiative by what is sometimes described as judicial legislation. It is for the legislature itself if it so chooses to intervene to that end and for that purpose.

89. I may observe further that the rule of stare decisis which is an integral part of every system of administration of justice governed by precedents is a rule not to be lightly regarded or readily departed from. I, for one, see nothing wrong in the adoption by Judges in later cases of a locus classicus in an earlier decision which has expounded the definition in a statute in a correct and exhaustive manner or in their construction of the words used in sucb an exposition as if they were themselves the words used ip the statute. As will be shown hereafter, the topic with which we are concerned has not been as supposed by my learned brother, Viswanatha Sastri J. darkened by any false analogies drawn with feudal tenures or manorial customs but only sought to be dimmed by an attempt made in just a case or two to get away from the authority of a fully considered and binding exposition of the law by distinguished Judges such as is contained in Zamindar Of Chellapalli y. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , which, affirmed, as it has been, by the Privy Council in Zamindab of Chellapalli v. Somayya, 42 Mad 400 and adopted as it has been in later cases by the learned Judges of this Court, has stood the field and governed the notions of litigants, lawyers and Judges in this Province for three decades and a half.

90. I have considered it not only proper but necessary to make the foregoing remarks founded on principles of Statute construction so elementary as even to seem platitudinupus in justification of my dissent from the view of my learned brethren on this part of the case. Of course, if the authority of a superior tribunal such as is alleged to exist in Bindeshwari Prasad v. Kesho Prasad, 5 Pat 634, of the year 1926 overruled expressly or impliedly the view taken in earlier decisions here which all the same has been followed by learned Judges in later cases the matter would stand on a different footing.

Likewise, should I be satisfied that the statement of law to be found in Zamindar or Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , which has been accepted in later cases is not the ratio decidendi but only an obiter dictum I might not hesitate to disturb the course of decisions if I found the dictum to be obviously erroneous, although, even then, there would be the difficulty in my way that the obiter dictum accepted and approved as it has been by the Privy Council in Zamindar of Chellapalli v. Somayya, 42 Mad 400, in an appeal from the same case must of course be followed by me.

Even viewing my powers as a member of a Bench of three Judges not necessarily bound by any decision of Divisional Benches one way or the other, I should think that I have still to prescribe for my guidance the considerations expressed in the following passage in Section 557 pages 257 and 258 of Lord Hailsharns Halsburys Laws of England, Vol. 19:

"Apart from any question as to the Courts being of subordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by Courts of higher authority than the Court establishing the rule even though the Court before whom the matter arises afterwards might not have given the same decision had the question come before it originally

But the supreme appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside a statute and outside the common law, when no title and no contract will be shaken, no person can complain, and no general course of dealing be altered by the remedy of a mistake: and where the course of practice is founded upon an erroneous construction of an Act of Parliament, there is no principle which precludes, at any rate, that tribunal from correcting the error, although the construction of a statute of doubtful meaning, once laid down and accepted for a long period of time, ought not to be altered unless the House of Lords can say positively that it to wrong and productive of inconvenience. Furthermore, the same considerations do not apply where the decision, though followed, has been frequently questioned, and doubted. In such case it may be overruled by any Court of superior jurisdiction."

After all, this Court is not the supreme appellate Court of the land, although this Bench is of superior authority to that of Divisional Benches. The law laid down in Zamindar OF Chellapallj v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , has been accepted and acted upon for a long time. Neither the Privy Council (leaving alone for the moment Bidheshwari Prasad v. Kesho Prasad, 5 Pat 634, nor the Federal Court has so far said that it is wrong and productive of inconvenience. It is not as if the law so laid down has been frequently questioned and doubted. It has been questioned and doubted in just a case or two, as I have already observed, there too not on any valid ground, as I shall show hereafter.

91. Next, before concentrating attention on the view taken in the decisions of this Court I should like to define the exact contentions of counsel before us and to notice the relevant provisions of the Statute.

92. The contention of the appellants and petitioners as I understood it is not that there should be direct evidence of direct cultivation by the land-holder of the property claimed by him to be his private land at some time or other and for an appreciable or substantial period of time. The contention broadly stated is that there must be some proof--direct and positive or indirect and circumstantial it does not matter -- of direct cultivation by the landholder at some time or other and for some time or other.

It may be proof furnished by any evidence admissible under the Indian Evidence Act Consistently with the provisions of the Madras Estates Land Act. But it must be evidence tending to show, except where a local custom to the contrary is proved, that at some "time or other and for some time or other the land was actually under the direct cultivation of the land-holder, that is, by himself, his own farm servants or hired labour. If after that, there happens to be any leasing out, as there may well be, the leases must be of such a kind and character as to be consistent with an intention on the land-holders part to resume direct cultivation in the future.

Such direct cultivation except in cases of local custom to the contrary is a fact to be proved as a requirement implicit in the definition of private land before the presumption that all cultivable land in an estate is ryoti can stand rebutted. Where admittedly ryoti land or cultivable land in an estate not proved to have been of the character of ryoti land or of private land at the inception has been proved to have been the subject of direct cultivation by the land-holder for a continuous period of 12 years it automatically gets impressed with the stamp of private land by force of an express statutory provision. Into the case of ascertainment of the character of land as private land for first time as well as into the case of ascertainment of the conversion of admittedly ryoti land or land; the exact character of which is not known, into private land, the idea of direct cultivation as a sine qua non does in the learned counsels submission enter; only, in the latter case the period of direct cultivation must be full 12 years before the 1st day of July 1908.

The contention for the respondents, on the other hand, is that direct cultivation is the exclusive test only in cases of conversion of admittedly ryoti land into private or in cases where land whose exact character as ryoti or private is not known earlier but which is proved to have Been the subject of such cultivation for a period of 12 years immediately before the commencement of the Act is claimed by the land-holder to be his private land.

It is also urged that reading Section 3(10)(a) with Section 185 (with the second proviso of the latter section excluded), it becomes clear that there may well be other modes of proof of the character of land as private land than proof of its direct cultivation at some time or other and for some time or other.

93. The relevant provisions of the Madras Estates Land Act are those of Section 3(10) (a) (excluding the inclusive part) and Section 185 (with the second proviso excluded)--one a definition section, the other an evidential section. There are other provisions proving the lettability of private land and providing for exchange of pattas and muchilikas in connection therewith which are not, in my opinion, material, as it is not the contention for the appellants and petitioners that there can be no letting at all of private land which is such by reason of proved prior direct cultivation. The definition section so far as it is plain cannot be controlled in its operation by the evidential section which must accordingly be read except whore it contains matter repugnant, in conformity to the definition section. Only when the definition section is ambiguous can such light as may be thrown upon its meaning by the evidential section be carved in aid of the interpretation of the definition section.

94. The relevant part of Section 3(10)(a) uses two words "domain" and "home-farm" as signifying two categories of private land within the intendment of the statute. The meaning of each one of these two words it is necessary to ascertain in order to arrive at a proper decision in the present case. Neither "domain" nor "home-farm" is defined in the statute; but in regard to "home-farm" in particular, beyond what is implicit in the word itself the legislature gives a further clue to its meaning by use of illustrative terms in the explanatory phrase "by whatever designation known, such as kambattam, khas, sir or pannai". These illustrative terms are popular labels the use of which prima facie connotes the character of the land as "home-farm". The legislature intends them only as interpretative aids by no means either exhaustive or conclusive with reference to the application of the statutory test of "home-farm", the interpretation of which is the primary matter for consideration.

95. To take up the meaning of the word "domain" it has been defined in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , as "the land about the mansion house of the Lord and in his immediate occupancy." To that interpretation of the word no exception has been so far taken except ill a recent decision of my learned brother, Viswanatha Sastri J. reported since the hearing of this case in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, , and in his judgment in this case just delivered. The passage in the former judgment which embodies the exception taken is as follows:

"There has been, in my judgment, some amount of misconception as regards the meaning of the words "domain" or "home-farm" land of the land-holder -- expressions found in Section 3(10)(a) of the Act. To interpret these words as confined to land immediately surrounding the mansion or the dwelling house, the park or chase of the Lord which would be the dictionary meaning of these English words is to import feudal ideas of medieval England into the system of land tenures in this country without adequate justification ......... It is a far-fetched construction to impute to the Madras Legislature an intention to incorporate the English conception of "demesne" land as a test for differentiating the public domain from private land in a zamindari."

In the Judgment of my learned brother just delivered there are two passages pertaining to this point, one is where the conclusion expressed in the passage just quoted is repeated which I need not reproduce. The other is where the conclusion expressed in the passage just quoted is repeated which I need not reproduce. The other is where my learned brother refers to the three classes of demesne lands existing in England in support of his view that the mansion house test as the compendiously describes it, bears no relation to the actual conditions, prevailing in this presidency.

"It is a matter of common knowledge", says my learned brother, "that Zamindars, Poligars, Jagirdars and major inamdars owned considerable extents of private land in several villages far removed from their dwellings."

The three classes of demesne in England are then described by my learned brother as follows: (a) lands occupied by the Lord of the manor himself; (b) lands which the Lord allowed his villains to occupy and cultivate upon such terms corresponding to the copyhold lands of later times; and (c) lands allowed to lie waste or commons in which free tenants and copy-holders had important rights along with the Lord of the manor".

96. Of the three classes of demesne property in England the first, in my opinion, does correspondingly exist in this country as well. In most cases of land-holders it is common knowledge that they not only have land immediately surrounding their dwelling houses but also have it in their immediate occupancy. There is no fundamental difference in this respect between conditions in England and in India, and I canndt see how if a meaning had to be given to the English word "domain" occurring in an Indian Statute any other meaning could reasonably be given to it than the one given from Websters Lexicon by Wallis C. J. in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , namely, "the land about the mansion house of a Lord and in his immediate occupancy" in which Seshagiri Aiyar J. concurred after his own independent reference to the Encyclopaedia Britannica which brought into his judgment- more matter, not strictly relevant, about the English feudal tenure of land let out by the Lord of the manor as tenemental land to his retainers or villani --the origin of the modern copyhold tenure in England -- and which has apparently provoked the comment of my learned brother on the undesirability of importing conceptions connected with the feudal tenures of medieval England into the interpretation of a Statute like the Madras Estates Land Act.

The comment understood in that limited sense may well stand justified; but in the absence of any alternative, interpretation of the word "domain" which certainly has not been vouchsafed by my learned brother and in view of the existence in India of lands about the dwelling house of the land-holder in his immediate occupancy corresponding to such land in existence as demesne in England the meaning of the word as given by Wallis C. J. in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , must, in my opinion, be accepted.

In fact, it will be seen from the passage in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, , quoted above that the exception taken by my learned brother is not to the meaning of the word "domain" as such so much as to the meaning of the two expressions "domain" & "home-farm" which, as he supposes, have been taken together & interpreted, rather misinterpreted, as confined to land immediately surrounding the mansion or dwelling house, park or chase of a Lord. I regret I cannot and do not share this view. In fact in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , while the meaning of the word "domain" is specially noticed it is not that the word "homefarm" has been ignored by the learned Judges. It will be seen from the discussion in that case that the word "home-farm" has not been confused with "domain" but interpreted and given effect to with reference to the land in question in that case.

The question in that case in fact arose with reference to other than domain land, i.e., land situated far away from the dwelling house of the zamindar and actually in a village of the zamindari known as Iyanki different to the village Chellapalli in whcih the dwelling house of the zamindar was situated.

In that case as well as in other cases in which the question of the character of the land as private or ryoti arose with reference to the lands situated far away from the dwelling house or in any other village or villages than- the village in which the dwelling house was situate, the work of the Court in the matter of the determination of the character of the land would have stood absolutely simplified, had the mansion house test been applied. In that case it was not the word "domain" but the word "home-farm" that fell to be applied to the land in question, and the test of direct cultivation propounded was really because of what was implicit in the word "home-farm".

It is not correct, in my opinion, to say that the Judges who decided that case treated the words "domain" and "home-farm" together as importing that the zamindars private land must be confined to land surrounding his place or residence as in the case of demesne land of an English Lord of the manor. I not only feel highly reluctant, I find it in fact wholly impossible to impute to Judges so distinguished and so experienced as those who decided that case any ignorance of the very well known fact that private land in an estate might not only be situate far away from the dwelling house of the zamindari in the same village but might also well lie scattered in different villages throughout the estate, especially when the case before the learned Judges was itself concerned with the latter type of land.

I am surprised to find the remark in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, , made to this effect:

"So far as I know in no case prior to Zamindari of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , was it suggested that the zamindars private land must be confined to land surrounding his palace or residence as in the case of demesne land of the English Lord of the manor."

But was it so suggested in that case and could it be I quite agree that the mansion house test which has reference only to the word "domain" is necessarily narrow, for there is the other word "home-farm" in the definition of private land, and land may well be private land if, although not domain land, it is home-farm land.

97. Before I proceed to consider the meaning of the expression "home-farm" land I have a few more remarks to make on the decision in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, , which though not strictly pertinent to the particular point which I am just discussing I may as well make even now and here. In the first place I have no quarrel with the actual decision in the case, and I am not by any means sure that I would not have myself arrived at the same conclusion. There was ample evidence furnished in that case by the descriptions contained in several documents including leases both after and before 1898 that the land in question was rajuseri (zamindars seri or cultivable land), sontaseri (home-farm) or private seri (private cultivable land of the zamindar). There was also oral evidence of actual personal cultivation at some time or other. My learned brother held that the ruling in Bindheswari Prasad v. Kesho Prasad Singh, 5 Pat 634, justified the reception in evidence on a question of private land or ryoti land of admissions by tenants in leases subsequent to 1898 whatever their probative value, and virtually, though not in terms, resolved the conflict of judicial opinion on that point in this Court. With this view I perfectly agree.

The second remark that I have to make is that in referring to direct or personal cultivation my learned brother observes that it

"may be and is often a useful test for determining the character of land in an estate, that is to say, whether it is private land or ryoti land but that teasing by itself is not fatal to the claim, that the land in question is private land."

The antithesis in the sentence is between direct cultivation and leasing. The learned counsel for the appellants-petitioners before us has not argued that leasing is per se fatal to any claim of private land. Only he has insisted that the leasing must be of a kind and character not inconsistent with an intention to resume direct cultivation.

The third remark that I should make is that white rightly rejecting the mansion house test as too narrow my learned brother accepted and applied the test of direct cultivation subject to the qualification that leasing by itself is not fatal to the claim of private land. Referring to the test of direct cultivation what my learned brother further says is that it is not an indispensable condition that the private lands should be proved to have been cultivated by the landholder himself or his hired labour, be it noted, within recent times. In other words, the direct cultivation test is accepted as the test of private land qualified however in its application by the consideration adverted to in the Judgment.

The fourth remark that falls to be made is that the privy council ruling in Zamindar of Chellapalli v. Somayya, 42 mad 400 is referred to by my learned brother as approving the observations made by Sir John Wallis in Zamindar of Chellapalli v. Somayya, 39 mad 341 [LQ/MadHC/1914/478] , wun reference to the test of direct cultivation as the test lor the determination of the character of land as private land.

The nun and last remark called for is that the case before my learned brother was not a case oi conversion of admitted ryoti land or land of unknown character into private land and yet tile lest of direct cultivation was applied without regard to any differentiation oi the kind auempted by the learned counsel lor the respondent and accepted by my learned brother in the present case. It may be tnat my learned brother has had the chance of a better and fuller consideration of the matter in the light of the arguments before us and has been able to go further than he did in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, .

All that I am concerned to point out at this juncture is that while that portion of his judgment in that case whcih imputes the mansion nouse test to the learned Judges who decided Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , is in my respectful opinion erroneous, the rest of the judgment is by no means adverse to the contention for the appellants and petitioners before us. Why I am concerned to point out this is that there may be and ought to be no mistaking of that judgment as militating against the whole catena of decisions in this Court relied on in support of that contention. The unreported decision of Krishnaswami Aiyangar and Somayya JJ, in Thiagarajasami Devasthanam v. Muthuswami, C. M. A. No. 311 of 1943, is of course no doubt there, in conflict with that catena of decisions, and with that, I shall deal later.

98. Now to turn to the word "home-farm" land I find that the words "home" and "farm" are separately defined and annotated in dictionaries, and what has to be done in order to get at the meaning of the compound is to combine the meaning of the two words after ascertaining them separately in the manner most suited to the context of the definition so as to make of them a compound calculated to hormonise with the common spirit of the several illustrative terms employed by the legislature in the explanatory phrase attached to "home-farm land of the land-holder" occurring in Section 3 (10) (a), namely, "by whatever designation known as such as kambattam, khas, sir, or. pannai ". These terms are no doubt only illustrative and not exhaustive, as the words "such as" preceding them show.

Other terms of a like significance it is not difficult to conceive of. We have them in "Sonta Seri" and "Raju Seri" in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, and in Nagari Iduva in Venkatagiri Zamindar v. Raghavan, 9 Mad 142 and in Samasthanam Khanigi which is found mentiond in the leases discussed in Vadiyangati Chinnarigadu Vs. Kotigari Rangayya Chetty, , and to which along with Nagari Idhuva Mr. Vendantachari refers in his commentary on the Act. Sonta Kamatam is another expression also in vogue to the same effect a variant of kambattam.

In my opinion, as J have already Indicated, "domain" and "home-farm" are two different expressions, and the explanatory phrase qualifies only the latter expression and not the former.

Pursuing this process for determining the meaning of the compound "home-farm" I find first that the separate meaning of the word "home" suitable to the context is the kind of meaning obtainable from phrases like "at home" and "home-rule", the former of which is explained in the Concise Oxford Dictionary of current English (3rd Edn., Reprinted in 1944) as meaning "in ones own house", and the latter of which is explained in the same Dictionary as meaning "The Government of a country by its own citizens". I find next that the separate meaning of the word "farm" suitable to the context to be found in the same Dictionary is "tract of land used under one .management for cultivation". Putting together the meanings of the two words "home" and "farm" as so chosen I hold that the home farm land of the land-holder means "land of the land-holder in his own cultivation". In fact "home-farm" is also explained in the same Dictionary in the context and under the heading of "farm" itself. "Farm" is first defined in its noun form as meaning "tract of land used under one management for cultivation" (originally of leased land) and then is given the meaning of the word "home-farm" thus--"reserved & worked by owner of an estate containing other farms." I have underlined (here in quotation) the words reserved, worked & owner from which It seems to me that fn the words home-farm land of the land-holder occurring in Section 3(10) (a) of the Madras Estates Land Act is implicit the idea of land reserved & kept in the land-holders own or direct cultivation--the idea, to borrow words occurring elsewhere in the same clause of the same Sub-section of the same section, of cultivation by the land-holder himself by his own servants or by hired labour with his own or hired stock.

99. This conception of "home-farm land" according to the Statute thus deducible is further emphasised by the legislature by its use of the pharse by whatever designation known such as "kambattam, khas, sir or pannai." These four illustrative words have about them the common idea, the idea, again, of direct cultivation. They are not, as I have already pointed out, conclusive legal labels which themselves constitute the definition of private land. They are significant, popular, Vernacular terms current in the country at the time that the Madras Estates Land Act was passed, which have been specifically mentioned by the Legislature in the explanatory phrase attached to "home-farm land of the land-holder" in the definition of "private land" In order to serve as aids to the ascertainment of the meaning of "home-farm", not itself separately defined by the Statute.

From the mode of treatment accorded by my learned brother, Satyanarayana Rao J. concurred in by my learned brother, Viswanatha Sastri J. wtlhout any discussion of his own, to the question of the relevancy of these words used by the Legislature to the construction of the word "home-farm" and to the question of the exact meanings to be assigned to these words so used I must express my unqualified but deferential dissent. Their utility in the context of such construction has been unduly under-estimated by my learned brother. Satyanarayana Rao J.

His Lordships whole discussion reveals many a point of approach as well as of detail which in spite of my very respectful consideration have unfortunately not commended themselves to me. In the first place, it is said that the Legislature has not made of the four terms and their meanings as given in Wilsons Glossary the essence of the definition of private land. The question is not, in my opinion, precisely that but materially different.

The question rather is whether the legislature has not made of the terms the essence of the explanatory phrase attached by it to "homefarm land" in the definition of "private land" whatever may be the meanings that may be attached to those terms in accordance with Wilsons Glossary or by any other means, which is another matter. Has not the Legislature made of the terms which are manifestly illustrative only and not exhaustive, interpretative aids to the ascertainment of home-farm On what basis did it conglomerate these terms except the basis of some common concept running through them all, whatever the concept may be, which is another matter For what purpose did it conglomerate except that of illustrating as evident from the words "such as" the designations by which home-farm land may be known in different areas Is not what is meant by "home-farm" which Is not separately defined by the Act to be gathered from the illustrative words of designation employed in the Act

100. Secondly, my learned brother observes:

"It (i.e., the definition of private land) does not say that the land would be private land if it is kambattam, khas, sir, or pannai, or if it is known to be such."

The words in brackets are, I may say, mine that is by the way. True, the home-farm part of the definition of private land does not say that land would be "home-farm" land and fall within that category of private land only if it was or went by the names of kambattam, khas, sir or pannai; but that part of the definition does say that the land must be "home-farm" land, i.e., must Indeed and in fact be "homefarm land" by whatever designation known such as kambattam, khas, sir or pannai in order to fall within that category of private land.

101. Thirdly it is observed in the judgment of my learned brother that it is not possible to Infer from these four expressions and particularly from the meanings as given by Wilson In 1855 that they would have the same meaning at the present day or, at any rate, in 1908, when the Madras Estates Land Act was passed. It is hardly necessary for me to point out that the high authority of Wilsons Glossary which has been oft relied upon by the High Courts and the Privy Council is too well known to be disregarded or discountenanced except where statutes since passed or judicial decisions since rendered contain anything in express terms or by necessary implication repugnant to the meanings as given in the Glossary so as to render them obsolete altogether or limit their operation.

I cannot understand too what significance is implied in the contrast between the present day and the date of the passing of the Madras Estates Land Act in the observations of my learned brother. Surely it has not been so far suggested anywhere that, nor has it been stated by my learned brother why, if the meanings are good today, they were not as good in 1908.

The real question is whether in the Act there is any clear evidence of any legislative depart-ture in 1908 from the meanings of Wilson which would only be possible if there had been a departure from them in popular parlance between 1855 and 1908. I have not been able to find evidence of any such departure either of the latter kind or of the former.

Our attention has been drawn to no authority suggesting such a departure, derived from Sta tutes in pari materia, if they may be so call ed compendiously, in force in other Provinces so far as they may be relevant or from deci sions pronounced under those Statutes or ren dered in this Province prior to 1908, The Ben gal Tenancy Act VIII of 1885 contains no definition of the words current in .Bengal and Bihar to denote private land which are no doubt referred to in Section 120(1) of that Act. The word "sir" used in our Act is not therefore de nned by that Act. The word is also the word current in the Umited North West Provinces of Agra and Oudh and Central Provinces and Berar.

I have looked into the definitions of that word in Acts in force in those Provinces given in Section 4, Sub-section (12) of the North West Provinces Land Revenue Act III of 1901, and in Section 4(6) of the Central Provinces Land Revenue Act, XVII of 1881, after calling for the United Provinces Code and the Central Provinces Code not available in the Library of the High Court, from the Library of the Legislatures in the Fort. I have found nothing in those definitions which are partly based on special conditions relating to the previous Revenue Settlements in those Provinces which militates against the ordinary meaning of the word as given in Wilsons Glossary.

On the other hand, the idea of cultivation by the proprietor himself with his own stock or by his servants or by hired labour as of the essence of "sir" seems to be recognised by those definitions also, although adapted to such special conditions in the way that the Legislatures of the Provinces deemed fit so to adopt. I do not consider jt necessary to reproduce those definitions here or to pursue this aspect of the matter any further. The meaning of the word "sir" as given in Wilsons Glossary is, it may however be noted, in no way militated against by what is accepted by Budley v. Bukhtoo 3 N. W. P. H. C. R. 203 which is, in fact, based on the same idea as is expressed by the meaning given in the Glossary.

In our Province before the Madras Estates Land Act of 1908, although there was no statute denning any one of the four words kambattam khas, sir and pannai, there was just one decision reported in Nagayasami v. Virasami Kone 7 Mad H C R 53, defining pannai land. The question there was whether a suit before the Revenue Courts u/s 12 of the Madras Regulation VIII of 1865 by a tenant for reinstatement after the zamindars ejectment in respect of panai lands was maintainable. The argument for the defendant, the Zamindar, was that it was not, because the pannai lands were of their nature not part of the zamindari, and the defendant was not a zamindar in respect of such lands within the definition of the term "landholders" used in that Act.

The Civil Judge negatived the argument holding that quoad such lands the zamindar could not, as contended, be treated as himself a tenant with the cultivator as his Subtenant. For so holding the Civil Judge referred to the character of pannai lands as being lands to which the proprietor had an exclusive right, a right to the melwaram as well as the kudiwaram, adding further what is perhaps more material that those lands are sometimes cultivated Under-the Zamindars own ploughs and sometimes they are let out for cultivation by others. The High Court after referring to what the Civil Judge had said upheld his view that the suit before the Collector was maintainable notwithstanding that the lands were pannai. I am not able to so read the observations of the Civil Judge accepted by the High Court as to dispense with requirements of proof, if a question of the character of the lands as "pannai" arose, of direct cultivation or in case of letting, of the character of the letting being in its terms in no way inconsistent with an intention on the land-holders part to resume direct cultivation.

102. Fourthly, it is remarked by my learned brother that the meanings given in Wilsons Glossary do not have the common feature of personal cultivation. One has only to look at those meanings as conveniently reproduced at pages 75 and 76 of Mr. v. Vedanthacharis Commentary of the Madras Estates Land Act to appreciate aright the correctness or otherwise of the remark. I need only observe to avoid a slight confusion which may otherwise result at first sight of the passage in the commentary that the annotation of the word "pannai" as given in the Commentary corresponds to what is given in the Glossary under the word "pannai" as well as the words "pannaiah", "punna" "punnah" the meaning of which latter words follows closely enough on the meaning of "pannah" separated" only by the meanings of two other connected words "pannaikaran" "Pannaissumai" which may also be usefully consulted in this connection, although the meaning given under the words "panniah", "panna", "pannah" taken together is the more relevant.

103. I propose to reproduce here so far as is relevant the Glossary meanings of the four words used in the Statute, not of the two other words connected with one of those words "pannai", namely, "Pannaikaran" and "pannais-sumai".

Kamatamu or kambattam: The land which a Zamindar, Jagirdar or Inamdar keeps in his own hands cultivating it by labourers in distinction to that which he lets out in farm. Khas: As a revenue term it is applied also to lands held by Zamindars and cultivated by themselves for their own benefit. Sir: A name applied to the lands in a village which are cultivated by the hereditary proprietors or village zamindars themselves as their own especial share either by their own labourers or at their own cost or by tenants at will not being let in lease or farm.

Pannai: A field, a rice field, cultivated ground, tillage, husbandry. Panniah, Punna, Punnah: An estate or farm the property of a Rajah and cultivated by his slaves.

104. It will be seen from the words underlined by me (here in quotations) of each of the Glossary meanings extracted above, that In all of them the features of direct cultivation of the land-holder is manifestly present. I may add in this connection that in the Tamil Lexicon of 1931 published under the authority oj the University of Madras which I have consulted, there are several meanings assigned to the word "panna" at page 2453, column 2 of which the seventh and eighth meanings and more particularly the seventh which are material to the present discussion are "direct cultivation" and "establishment of farm labourers" respectively.

My learned brother further observes that the words "khas" and "sir" are not words at all used in this Presidency, i regret I cannot appreciate the significance of the observation. The words are there in the Statute and unless they are to be regarded as surplusage-- which is, obviously impossible--their meaning must be ascertained and applied. Assuming the observation to be relevant, I very much doubt with respect, whether that is right.

So far as the word "khas" is concerned, reference may be made in this connection to Vadiyangati Chinnarigadu Vs. Kotigari Rangayya Chetty, , a case from the District of Chittoor where in regard to a portion of a village called "khasbagayat" it was held that the expression indicated that the lands in that portion were held by zamindars and cultivated by themselves for their own benefit. Moreover, I may say from my personal knowledge that there is in the Zamindari of Pithapuram adjoining the Fort an extent of 20 Or 30 acres of land known as kasuthota, i.e., garden in the direct cultivation of the Zamindar which is the only private land comprised in that estate.

It may not also be correct, in my opinion, to suppose that the word "sir" has not been known at any time to be in use in this Presidency. It seemed to me strange that a word not in use in this Presidency, as I too first thought of this word though not of the word "khas", was used in a Legislative enactment of the Province as a description designation of home-farm land which is part of the definition of private land.

After my mind had been somewhat exercised over this thought it occurred to me that it might possibly be an Uriya word in vouge in the Gan-jam District which when the Madras Estates Land Act was passed in 1908 was a part of this Presidency, though it has since gone into the separately formed provinces of Orissa consisting of the original Orissa part of the province of Bihar and Orissa and the Ganjam District part of the Madras Presidency. Consulting then at the University Library Poorna-chandra Ordia Bhasha Kosha complied by G. C. Prahraj, Advocate, High Court, Patna and published by the Utkal Sahitya Press, Cuttack in 1928, I found therein the word "sir" in fact explained at the top of column 2 of page 8519 as meaning a permanent home-farm of a proprietor-or maphidar or lakharajadar. That is the meaning of the Uriya word "sir" while the meaning to be found in Wilsons Glossary is that of the Hindi word "sir". The two meanings substantially agree. Only, comparatively the one is compendious while the other is elaborate, and possibly the compiler of the Dictionary took the word "home-farm" from the definition of private land in the Madras Estates Land Act.

Then as regards kambattam my learned brother himself concedes that it is in Telugu used in a general sense to denote a mans personal cultivation. Born to the language like my learned brother I too cannot understand; the word in any other sense. That in my view, is also the meaning as given in Wilsons Glossary and tne meaning of the word as used in the Act. My learned brother has given, no reason why the undoubted and undisputed meaning of this word should be excluded from consideration in understanding the word "homefarm" in connection with the explanation ot which it occurs in the Act.

Nor am I prepared to treat the word "pannai" used in the Act as being of no assistance, because it means nothing more than a field, a rice field, cultivated ground, tillage and husbandry according to the meaning given by Wilson. As I have shown above, it does mean, according to the Tamil Lexicon something, more definite, something clearly in point namely direct cultivation, and it has been applied to the property of a Rajah cultivated by slaves as also pointed out by Wilson himself.

In these circumstances I cannot but conclude-that the meaning of the words occurring in Section 3(10) fa) of the Madras Estates Land Act as given in Wilsons Glossary may well be accepted as a safe guide for their interpretation, for the purposes of the present case.

105. Fifthly, my learned brother observes after referring to the words used in Section 120 of" the Bengal Tenancy Act, namely, cultivated as kamar, zeroyiti, etc., which no doubt do not occur in our Act that the expression "by whatever designation known" in our Act must have reference to a recognition of certain lands in the village as kambattam, khas, sir or pannai. I respectfully doubt whether this view-point is correct for a two-fold reason : first that thereis the word "home-farm" in the definition in our Act which sufficiently fulfils the purpose of "cultivated" in the Bengal Tenancy Act, second that while kambattam, khas, sir and pannai are words of popular usage meant in recognition of the character of land they have been chosen by the Legislature as illustrative terms entering into the explanatory phrase attached to "home-farm land of the Jand-holder" "by whatever designation known such as kambattam, khas, sir, or pannai" because of their appropriateness, attributable to their meanings, as given in the foregoing, to the context of the legislative explanation of home-farm land as part and parcel of the statutory definition of private land.

106. It will be seen that my exposition of the definition of private land in the faregoing certainly favours the submission of the learned counsel for the appellants and petitioners. The lines of argument by means of which the. learned Counsel for the respondents sought to invalidate are, firstly that according to decisions of this Court prior to the Act which ascertained and applied the comomn law right the expression "private land" is much larger in the scope of its context than is warranted by this narrow view of the statute, which ought not ordinarily to be presumed to interfere with the common law unless and until the contrary is shown beyond doubt; secondly that Section 185 of the Act when carefully scrutinised yields considerations warranting the larger view, that is to say, of the common law in force prior to the Act.

107. In connection with the first line of argument reference was made by the learned counsel tor the respondents to Nagayasami v. Virasami, 7 Mad. H. C. R. 53, which I have dealt already. There is also the case in Venkatagiri Zamindar v. Raghava, 9 Mad 142 referred to by my learned brotner, Viswanatha Sastri J, in his judgment in this connection. Tnat case arose witn reference to certain lands in tiie zamindar of Venkatagiri which were the subject matter of a mucmika executed by tne lamer of tne defendants. The piaintitf zammdar sued the defendants in ejectment relying on a condition in the muchilika that the lands were to be returned whenever wanted and " alleging that due notice to quit had been served on the defendants. The muchilika described the lands as Nagari Iduva (i.e. lands belonging to the Samasthanam). The words in brackets are by tlie way mine. The defendants denied that the lands were of that character. They further alleged that the lands were Ijara Iduva not liable to be recovered by the plaintiff but liable only to be delivered by them to the Ijaradar if the lands were leased out by the plaintiff on Ijara. The learned District Judge in the appellate Court held that on the construction of the muchilika the defendants could not be ejected unless the lands were let on Ijara by the plaintiff to a stranger. On appeal to the High Court Turner C.J. and Muthuswami Aiyar J". in the judgment of the Court delivered by the former said this:

"The Judge has, in our judgment misundeiv stood the condition in the muchilika of fasli 1285. If the lands held by the defendants are what are known as home-farm lands of the Zamindari they are lands which according to a very general custom of the country the zamindar reserves for his own cultivation when he thinKs fit to resume them and on which a right of occupancy does not accrue. The Zamindar when he lets such lands has ordinarily a right to resume them at the end of any agricultural year on giving due notice."

On this passage there are two remarks which I desire to make. For one thing it refers to "home-farm land of the land-holder" which is the expression made use of by the Legislature in the definition of private lands in the Act of 1908. For another it recalls to ones mind the passage in the decision in Dudley v. Bukhtoo, 3 N. W. P. H. C. R. 203 to which Turner C. J. had been while a puisne Judge of the North West Province a party sitting with Pearson J. of that Court. The passage in the decision runs as follows:

" Seer land as we understand it, is land which at some time or other had been cultivated by the Zamindar himself, and which although he may from time to time for a season demise to Shikmese he designs to retain as resumable for cultivation by himself or his family whenever his requlrementsor convenience may induce him to resume it."

I cannot read the passage in Venkatagiri Zamindar v. raghava 9 Mad 142 In the way in which my learned brother seems to read it that is to say, as not making of direct cultivation an essential part of the character of home-farm land. It may be that the test of direct cultivation does not apply to the "domain" Jand category of private land which may never be cultivated, although cultivable, because all that "domain" means is "land about the mansion house of the Lord and In his immediate occupancy" and not necessarily in his direct cultivation, although when and if let. out even the leasing of such land must be on terms not inconsistent with an intention on the part of the Zamindar to take it back for his own direct use. The test of direct cultivation is clearly implicit in the very idea of home-farm lands to which the learned Chief Justice refers in terms of resumption for the land-holders own cultivation. No question of conversion of ryoti land into private land arose in Venkatagiri Zamindar v. RAGHAVA, 9 Mad 142 and what the Court did was to enunciate the proposition that home-farm land is land in which a right of occupancy does not necessarily accrue, in contradistinction apparently to ryoti land in which such a right does arise, by letting.

108. The two broad categories of ryoti and private lands in estates with this feature of distinction have existed from time immemorial. As pointed out by the Rt. Hon. Mr. Ameer All in the very passage from the case in Sivaprakasa v. Veehama Reddi, 45 Mad 586 (bottom) and 602 quoted by my brother, Viswanatha Sastri J:

"One important feature of the Act is worthy of note. It throws into relief the component parts which from immemorial times go to constitute a village; first the lands In the direct cultivation of the proprietor (called by various names); second lands opcupied by tenants or ryots and third old waste lands over which by custom the land-holder possessed certain specific rights now crystallised in the statute".

It will be seen from the words underlined (here in quotation) by me above that In referring to the first of the three categories of lands going to constitute a village, the Rt. Honble Mr. Ameer All is referring to the home-farm land with the explanatory phrase attached to it which IS part of the definition of private land in Section 3(10) of the Act. It will also be seen that in an earlier page 599, the Rt. Honble Mr. Ameer Ali specifically refers to the definition of "private land" in Sectioin 3 as meaning "the domain or homefarm land" (expressions borrowed from English law) of a land-holder by whatever designation known such as kambattam khas sir or pannai. These words so referred to by him In connection with the definition of "private land" are apparently the words had in mind by him in describing the first of the categories of lands constituting a village at page 602 of the Report.

It is further noticeable that while the Privy Council refer to "domain" or "home-farm" land as expressions borrowed from English Law, they make no grievance of the use of such expressions in the Statute, as in any way inappropriate to an Indian Statute dealing with conceptions sometimes different, it may be, from those which are associated with the system of feudal tenures in England, Far from supporting the view urged for the respondents in regard to what "home-farm land" means, the passage in the judgment of the Privy Council Just quoted rather supports the contention advanced by the learned Counsel for the appellants and petitioners that fn order that lands may be held to be home-farm lands and therefore private lands it is essential to prove their direct cultivation on the part of the proprietor, at sometime or other. The statement of law in the passage in question, being Of the highest tribunal, is binding on us and cannot be whittled down by any process ot reasoning whatsoever on the part of any Indian Court.

109. The references which my learned brethren have made--to the decisions in Venkatanarasimham v. Kotayya, 20 Mad 299 and Cheekati Zamindari Case 23 Mad 318 as indicating the gradual growth and evolution of the rights of ryots in estates are absolutely unexceptionable; but they hardly bear speaking with all respect, upon the point what exactly "private lands" are according to the definition of the Statute. On the other hand, assuming such references to be relevant, one should rather imagine that from the unrighteous attempts which the land-holders had been making prior to the Act to expand their private land by seeking to convert ryoti land into private the Legislature was solicitous to define and limit private land in a straight and simple, if somewhat narrow manner which would not only serve to assist the Courts in their determination of the question, which had become confused and complicated by the con duct of land-holders, whether any particulai land claimed to be private or ryoti as such, but also serve to , preclude the land-holders from expanding their private land by persisting even after the Act in the course of such conversion or ryoti land into private. The way in which apparently the Legislature chose to achieve the object that it had in view was insisting irrespectively of historical origins which need no longer be probed Into, upon proof of the character of the land claimed to be private as either that of domain land or as that of home-farm-lands as explained by the Statute itself by means of the expression "by whatever designation known as kambattam khas sir and pannai inserted in the section. Judging from :this standpoint I wonder how the zamindars private lands even if they consisted of the three categories referred to by Baden Powell in his Land System of British India, Vol. 1, page 515 as a matter of historical information can be understood in any other sense than what is expressed or implied by or in the definition section of the Madras Estates Land Act 1 of 19,08; Had the intention of the Legislature been to impress with the stamp of private land all land in which the land-holder had at the commencement of the Act a right to both the melwaram and the kudiwaram the definition could well have run in very simple terms expressive of-such an intention.

The Legislature could have well adopted in that case the language of the Civil Judge in the case in Nagayasami Kamiah Naick v. Virasami Kone, 7 M H C R 53, which is supposed by my learned brethren to be an accurate judicial definition of private land prior to the Act, for the purpose of the definition of private land in the Statute itself. Nothing could have been easier than that. The private land of a land-holder in Ordinary English may well mean in contradistinction to ryoti land. Land In the ownership of the landholder which he has kept for himself without creating any rights in the ryots. But if the legislature lias prescribed a method of ascertainment of such land by limiting it to a specified categories -- domain land and home-farm land -- no Court can in its legitimate function add to the statute so as to restore the expression to its connotation in ordinary par lance. This disposes of the first line of argu ment of the learned counsel for the respon dents in answer to the submission of the learn ed advocate for the appellants and the peti tioners before us so far as it is favoured by my exposition of the definition of private land in the foregoing.

110. Turning now to the second line of argument advanced by the learned counsel for the respondents it comes to this, shortly stated, firstly that Sectioin 185 of the Act contains nothing to indicate direct cultivation as one of the matters of evidence for the Court to have regard to for determining whether any land is the landholders private land; and secondly that the transposition of the proviso of old Sectioin 185 to the second part of Clause (a) of Sub-section 10 of Sectioin 3 is significant as showing that direct cultivation is not the test of home-farm land in the earlier part of the definition of private land in Sectioin 3 (10) (a).

111. Sectioin 185, as I have already observed, is an evidential section while Sectioin 3 (10) (a) is the definition section. The former cannot except by force of its specific terms be read so as to override the latter. The two sections must, as I have already observed, be read so as to harmonise with each other. The object of Sectioin 185 is only to provide for certain matters as being evidence relevant to determining whether any land is the land-holders private land. It seems to me illogical or at any rate unnecessary for the Legislature to repeat the essential matter already expressed or implied in the definition Section 1 itself. The position might Well be different where, as in the Bengal Tenancy Act, the Legislature did not enact a definition of private land and had therefore to use in Sectioin 120 the words "cultivated as khamar etc." For land to be held to be private land, evidence of direct cultivation at sometime or other and for sometime or other being necessary according to the definition section Itself of our Act by reason of what home-farm land by whatever designation known such as kambattam, khas. sir or pannai means, as I have already explained, the Act has in the evidential section only stated that regard shall be had to certain factors bearing on the essential matter of the definition.

Local custom comes in, because proof of that may clear up the difficulty in demarcating how far the land about the mansion or dwelling house of the zamindar and in his immediate occupancy extends or may, where trie words used in the Statute, kambattam, khas, sir or pannai, are not in vogue but other words are in a particular locality, help the Court to decide upon the home farm character of the land by ascertaining the meanings of those other words. Local custom may sometimes even stamp land with the character of private land which does not full within the definition section at all. To that extent the force of therestrictive definition given in the statute as compared with the larger definition to be found in Baden Powell or in decisions prior to the Act, if any, may well stand cut down so as to bring in tinder the head of private land waste lands and Nankar savaram lands although regularly leased out without regard to., terms and conditions making resumption Of direct cultivation possible, pro tanto rehabilitating that larger definition which, if it existed was taken leave of by the framers of the Act in 1908 not without reason as already pointed out by me.

Then comes, in Sectioin 185, Jetting out of Zand specifically as private land before the 1st day, of July 1898, because evidence of that kind relating to a period more than ten years prior to the passing of the Act and relating to a period prior to the publication of the Bill which became afterwards the Madras Estates Land Act of 1908 may well be presumed to be dependable evidence of a conduct on the landholders part not dictated by an indecent anxiety to create evidence of the character of land as private land in view of the approaching legislation. Any other evidence that may be produced bearing on the character of the land as private land is next referred to in Sectioin 185 and that Includes as ruled by the Privy Council In Bindeshwari Prasad v. Kesho prasad, 5 Pat 634, and as not disputed by the learned counsel for the appellants and petitioners, admissions of tenants that the land is private land even in leases subsequent to the 1st of July 1898 whatever their probative value.

It is asked by my learned brother, Viswa-natha Sastri J. in his judgment how the definition of private land in the Act which came In only in 1908 could possibly be present to the minds of land-holders and tenants prior to the Act, and how possibly they could describe any land as private land specifically in leases prior to the Act, The answer js firstly that there is no substantial difference between the conception of private land prior to the statute, and the conception under the statute which only throws into relief,, to use the language of the Privy Council in Sivaprakasa v. Veerama Reddi, 45 Mad 586 the three component parts which from times immemorial have gone to constitute a village and secondly that if there la any difference while the statutory definition cuts out certain classes of land recognised as private land prior to the Act the definition the Act does not create any category of land for the first time as private land till then unknown. So that, specified letting of land as private land in the usual vernacular terms prior to the passing of the Act is not an impossible species of evidence on the construction of the definition of private land contended for by the appellants and petitioners.

112. Then on the question whether the transposition of the proviso of old Sectioin 185 of the Act to the definition section makes any difference to the interpretation of Sectioin 3 (10) (a). I am distinctly of opinion that it does not. The idea of the proviso was that continuous cultivation of the kind and of the length of time contemplated by it should raise an irrebuttable presumption that land is private land. It is only natural that when the Act of 1008 was amended in 1934 and 1936 the logically appropriate place for the proviso was considered by the Legislature to be the definition section itself in view of the Indistlnguishabllity In practical effect between a provision by way of an irrebuttable presumption that in a certain case the land is private land and a provision by way of Inclusion in the definition section Itself that the land shall in such a case be private, land. What is more, the juxtaposition of the old proviso to Sectioin 189 in relation to the old Sectioin 3 (1) as effected by the transposition is, in my opinion, accounted for by the affinity of ideas between the subject-matter Involved in the definition of private land as home-farm land, and the subject-matter of the old proviso to Sectioin 185 raising the irrebuttable presumption that land Is private land in a certain contingency contemplated by the proviso.

It seems to me non sequitur to say that the reference to direct cultivation in the proviso to the evidential section which has become part of the definition section by the amendment dispenses with proof of- direct cultivation which Is a requisite. Implicit in the borne-farm part of the definition of private land as even the dicta of the Privy Council in Sivapra Kasa v. Veerama Reddi, 45 Mad 586, to which I have already referred go to show.

The only effect of the transposition of the old proviso to Sectioin 135 to the definition section is to emphasise the view which was not unanimous in this Court till Bandharijogi v. Seetha Ramamurthi, ILR (1948) Mad 223, that there is only one mode of conversion of ryoti land into private recognised by the Act, namely, the mode enacted by the old proviso which has now become part of the definition section itself by legislative amendment.

113. I shall proceed next to a consideration of the decision on the construction of- the definition of "private land" in this Court subsequent to the passing of the Act. These decisions may be divided into two categories, decisions pronounced prior to Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , and decisions beginning with that case and coming down to date.

114. Of the first it is unnecessary for me to refer to any other case than the one in Lakshmayya v. Apparao Bahadur, 38 Mad 168, in which the two learned Judges who decided it differed on the question as to the admissibillty in evidence of leases subsequent to 1898 in aid of the determination of the character of land as private land, a question, on which there is now the binding, authority of the Privy Council In the cast in Bindeshwari Prasad v. Kesho Prasad, 5 Pat 634. It is true that private land is contrasted In that case by Sundara Aiyar J. with that public land, as he calls It, held by ryots with occupancy right and that the former kind ot land is broadly assumed to be land of which the zamindar is the owner of both the melwaram and the kudiwaram. There Is no discussion in that case of the question what the home-farm part ot the definition of private land in the Act means, which is the question raised, before us. Moreover, there was in that case evidence amongst other things of specific letting of the land as private land before the 1st day of July 1898 specifically mentioned in Section 185 of the Act.

The learned Judges accepted the finding of fact of the lower appellate Court as vitiated by no legal error -and well supported by the evidence which, as I have already observed need not after all be direct evidence of direct cultivation, at some time or other, evidence in the nature of Pratyaksha Pramana but may well be inferential or circumstantial evidence, evidence in the nature of Anumana, to use the Sanskrit words of Hindu- Sastras employed by Sadasiva Aiyar J. In that case, The evidence of conduct on the part of the zamlndar in according to the lands in Question there a different kind of treatment to that accorded by

115. To turn next to the second category of decisions it is not denied that but for the un-reported decision of Krishnaswami Alyangar and Somayya JJ. in Sri Thiagarajasami Devasthanam v. Muthuswami Odayar, C. M. A. No. 311 of 1943, and possibly the decision of Madhavan Nair J. in Vadiyangati Chinnarigadu Vs. Kotigari Rangayya Chetty, , with both of which I shall hereafter deal, the trend of judicial opinion in this Court has been quite unanimous and in a sense favourable to the contention of the learned counsel for the appellants and petitioners before us. Some of these decisions have been attempted to be distinguished in the course of the argument as decisions relating to the conversion of admitted ryoti land into private land. Others which could not be so distinguished were attacked as wrong.

With reference to these other decisions, reasons have been given by my learned brethren in their judgments for their view that they are erroneous, reasons, which I have already dealt with in my own judgment herein before. I need therefore only show here that the attempt made by counsel to distinguish those other decisions in which the test of direct cultivation has been laid down as confined in their operation to cases of conversion of ryoti land into private land is not warranted either by the reason of the thing or by the course of decisions which have applied that test to cases like the present as well,

In Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , the way in which Wallis C. J. begins his judgment is this:

"This case raises a question of considerable importance as to what1 constitutes private land under the Madras Estates Land Act, 1908."

and then he proceeds to consider the meaning of the word "domain" and in effect to apply the home-farm part of the definition of private land to the evidence on record about the lands in question before the Court. He winds up the whole discussion with the following remark:

"In some parts of India lands of this kind are known as sir lands, and this is one of the terms mentioned in the definition. In Budley v. Bukhtoo, 3 N W P H C R 203, it was held that sir land is land which a Zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even when from time to time he demises it for a season. I think that this test may well be applied here and that as the plaintiff has failed to satisfy it the appeal fails and must be dismissed with costs."

From this it will be seen that the test of direct cultivation accepted by the learned Chief Justice and concurred in by his colleague, Sheshagiri Aiyar J. constitutes the very ratio decidendi and is not in the nature of a mere obiter dictum. The distinction between ratio decidendi arid obiter dictum given in Halsburys Laws of England, Vol. 19, at pages 251 and 252 is as follows:

"It may be laid down as a general rule that that part alone of a decision of a Court of law is binding upon Courts of co-ordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose on hand (usually termed dicta) have no binding authority on another Court, though they may have some merely persuasive efficacy."

Bearing this distinction in mind I have no doubt but that what the learned Judges in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , have said with reference to the test of direct cultivation is really the basis for their decision jn that case and not something which went beyond the occasion. The statement of the law laid down in the case has been accepted by the Privy Council in Zamindar of Chellapalli v. Somayya, 42 Mad 400 in appeal against the decision in the same case. After; setting forth the passage in Wallis C. J.s judgment which I have myself extracted above, Sir John Edge, delivering the judgment of the Judicial Committee observed that "that test is obviously suggested by Section 185 of the Act and was rightly applied by the Chief Justice".

It is said for the respondents that because of the reference to Section 185 of the Act by the Privy Council in accepting the test propounded by the Chief Justice it follows that the decision must be confined only to cases of conversion of ryoti land into private covered by the proviso to Section 185. I think that is a wrong view to take of the meaning of the decision of the Privy Council. Although the test of direct cultivation is not specifically referred to by the Privy Council as a test adopted by the Chief Justice from the language of the definition section, and although the facts of the case before the High Court and before the Privy Council pertained to evidence bearing upon the conversion of ryoti land into private, it is clear that the passage in the learned Chief Justices judgment which enunciates the test derived from Budley v. Bukhtoo, 3 N W P H C R 203, has not been understood by the Privy Council as a test derived only from the proviso to Section 185 of the Act. Clearly, Section 185 of the . Act and not the proviso to Section 185 of the Act alone and in particular is what is referred to generally by the Privy Council in their acceptance of the test of Wallis C. J. as one suggested by that section. The section itself being one which had to be read with the definition of private land in the statute which the learned Chief Justice interpreted and applied by reference to Budley v. Bukhtoo, 3 N W P H C R 203, there Is nothing in the general reference to Section 185 of the Act by the Privy Council or in the absence of any reference by them to Section 3 (10) of the Act, which militates against the obvious meaning of the passage in Wallis C. J.s judgment or confines its operation only to cases of conversion of ryoti land into private.

The definition of private land was obviously before the Privy Council as well as before the High Court, and the way in which the judgment of the High Court had referred to the meaning of the word "domain" and had actually applied the home-farm-part of the definition of private land to the case before the Court, winding up the whole discussion with a reference to Bukdley v. Bukhtoo, 3 N W P H C R 203, obviously negatives any justification for limiting the test of direct cultivation only to cases of conversion contemplated by the proviso to Section 185 of the Act.

116. The next important decision to which I wish to refer is Jagadeesam v. Kuppammal, ILR (1946) Mad 687, which when carefully scrutinised is not really the contused and confusing one that it has been supposed to be by my learned brethren. I regret to have tp say that I cannot with all respect to my learned brethren who I know have studied that case with much greater meticulousness than I have done agree with a good deal of the criticism levelled against it by them so far as the exposition of the law there is concerned. With the facts of that case as they were ascertained by the learned Judges in their judgment, I am not so much concerned as with the Question how far the law as enunciated by the learned Judges for the purpose of its application to those facts is correct. I do not consider it material to make sure for myself how far the criticism of my learned brethren against the way in which the Court in that case ascertained the relevant facts is correct. I shall assume with respect that that criticism is correct.

I need only say that the Court in that case adopted a two-fold factual basis for its conclusion on the question raised before it whether the lands were private lands within Section 3 (10) (b). The first factual basis was that the lands in question were originally ryoti, and the question which arose for consideration on that basis was whether there was sufficiently effective conversion of the land into private. That was negatived by the High Court in appeal in concurrence with the learned Subordinate Judge at the trial. The second factual basis was that the title of the plaintiff to sue the defendants in ejectment was to be traced solely to the grant of 1862 by the Government after confiscation without reference to the existence of a mirasi tenure in the previous owner.

117. Since the case was considered by the High Court on both the bases I cannot agree with the contention of the learned counsel for the respondent that the case must be treated only as a case of conversion of ryoti land into private like the case in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , and can be distinguished from the present case on that ground. As I have already pointed out, this kind of distinction attempted by the learned counsel for the respondents is of no substance and cannot be accepted.

The point to note about the decision in Jagadeesam v. Kuppammal, ILR (1946) Mad 687, which is material to the present discussion is that while dealing with the law on the second factual basis, Wadsworth, p. C. J. delivering the judgment of the Court points out correctly how the direct cultivation test of home-farm land had been laid down by Sir John Wallis C. J. in Zamindar of Cheixapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , with reference to Budley v. Bukhtoo, 3 N W P H C R 203, after a consideration of the meanings of "domain" and "home-farm" land, and how that test so laid down was later accepted by the Privy Council In Zamindar of Chellapalli v. Somayya, 42 Mad 400.

The learned Officiating Chief Justice then proceeds to apply that test himself to the case before the Court which, be it noted, was a case u/s 3 (10) (b) and not one u/s 3 (10) (a) like the present, after making on the unreported decision in Krishnaswami Aiyangar and Somayya JJ. in Sri Thiagarajasami Devasthanam v. Muthuswami Odayar, C. M. A. No. 311 of 1943, an adverse comment to the effect that those learned Judges had dealt with the definition of private land in the statute in a way which with great respect he found it difficult to reconcile with the decision of the Privy Council in Zamindar of Chellafalli v. Somayya, 42 Mad 400.

In applying Sir John Wallis C. J.s test of direct cultivation the learned Officiating Chief Justice proceeds to note that in ordinary English usage the term "domain" or "home-farrn" would connote land appurtenant to the mansion of the lord of the manor, kept by the Lord for his personal use (that, so far as domain is concerned, as I think), and cultivated under his personal supervision (this so far as home-farm land is concerned as I think). Having said so with reference to the first clause of Section 3 (10) (b) he proceeds to observe that the other clauses, i.e., (ii), (iii) and (iv), referred to land other than strictly domain or home-farm land within the first clause, and that the definition in Section 3 (10) (b) read as a whole, that is, in all its clauses, indicates clearly that the ordinary test for private land is the test of retention by the land-holder for his personal use and cultivation by him under his personal supervision. Then follow these observations:

"No doubt such lands may be let oh short leases for the convenience of the land-holder without losing their distinctive character; but it does seem to us to be inconsistent with the scheme of the Madras Estates Land Act as amended to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the varams 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 land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Madras Estates Land Act cannot acquire occupancy rights.

It seems to us that there are no materials In the present case to show that these lands have been so cultivated or retained by the land-holder."

Two lines of criticisms have been levelled by my learned brethren against this case. First it is said that the adverse reference in this case to the unreported decision of Krishnaswami Aiyangar and Somayya JJ. is only an expression of general dissatisfaction and disapproval giving no exact indication of what the dissatisfaction or disapproval is about. I find no difficulty in understanding what the dissatisfaction or disapproval is about. The dissatisfaction or disapproval Is about the way in which the learned Judges in the unreported decision confined the test of direct cultivation propounded in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] . and accepted by the Privy Council in Zamindar of Chellapalli v. Somayya, 42 Mad 400, to cases of conversion of ryoti land into private.

Nor -- and here comes the second line of criticism -- do I read the passage quoted above from Jagadeesam v. Kuppammal ILR (1946) Mad 687, and the preceding discussion as betraying the mansion house test, as my learned brother Viswanatha Sastri J. calls it, as the sole test propounded by the learned Officiating Chief Justice in that case for the ascertainment of the character of private land or as betraying confusion on account of a series of varying tests appearing from place to place and not easy to reconcile with each other or one another. The learned Officiating Chief Justice accepts, in my opinion, the test of domain and home-farm as interpreted according to the ordinary English meanings of those words by Sir John Wallis C. J. in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] , so far as the Clause 1, Section 3 (10) (b) (i) is concerned, and reading the other Clauses (ii) to (iv) of Section 3 (10) (b) along with Clause (i), the learned Officiating Chief Justice proceeds to wind up by saying that the definition read as a whole indicates clearly the test of retention by the land-holder for his personal use and cultivation by him under his general supervision.

It is impossible for me to believe that a Judge, of such long revenue experience in the Presidency as the learned Officiating Chief Justice restricted home-farm land to land lying about the dwelling house of the land-holder or thought that there could be no home-farm land beyond the precincts of the domain attached to the mansion. I hold that the decision in Jagadeesam v. Kuppammal, ILR (1946) Mad 687, states the law with substantial if not literal accuracy and in loyal and respectful conformity to Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] and Zamindar of Chellapalli v. Somayya, 42 Mad 400, so far as concerned the meaning of domain or home-farm land of a land-holder by whatever designation known such as , kambattam, khas, sir or pannai.

118. This view of private land and of home-farm- land in particular ag defined in Jagadeesam v. Kuppammal, ILR (1946) Mad 687, on the basis of the decisions in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] ana Zamindar of Chellapalli v. Somayya, 42 Mad 400, has been accented in the till-nowunreported judgment of the learned Chief Justice and Rajagopalan J. in Ramakrlshna Rao v. Seshayya, A; S. No 53 of 1946 which related to the case of a village in the Tedlem estate falling within Section 3 (10) (b). Rajagopalan J. delivering the Judgment of the Court, and after referring to the finding of the learned Subordinate Judge that there was no proof that the mokhasadars actually cultivated the suit lands continuously for a period of 12 years before the commencement of the Estates Land Act observed that in the circumstances of the case before the Court there could be no question of any statutory 12 years period for cases falling u/s 3 (10) (b) (i) even taking Section 185 of the Act into account. -

The learned Judges proceeded to say that the test laid down in Zamindar of Chellapalli v. Somayya. 39 Mad 341 [LQ/MadHC/1914/478] , and approved by their Lordships of the Privy Council in Zamindar of Chellapalli v. Somayya, 42 Mad 400, was applied in Mallikarjuna Prasad v. Subbiah, 39 Mad L J 277, as pointed out by the learned Subordinate Judge. It was the same test, says the learned Judge, that was applied by a Bench of this Court in Jagadeesam v. Kuppammal, ILR (1946) Mad 687, from which the relevant passages are thereafter quoted by him in extenso. Then follows a discussion of the facts of the particular case which is not material to the present discussion. It will be seen from this that the conclusion expressed by the Court that there could be no question of any statutory 12 years period for cases falling u/s 3 (10) (b) (i) is on the basis of even taking Section 185 of the Act into account. Section 3 (10) (b) (i) is really the thing corresponding so far as our present case goes to Section 3 (10) (a) first part, I respectfully agree with this decision.

The decision of another Bench of this Court, Subba Rao and Chandra Reddi JJ. -- in Parish Priest v. Kattalai of Sri Thiagarajasami Devasthanam, A. S. Nos. 176 to 178 and 493 of 1946 -- which is to the same effect so far as the interpretation of the character of the home-farm species of private land is concerned has not also so far been reported. There is a very careful and detailed discussion to be found in that judgment with reference to the entire case law on the subject as well as with reference to the definitions of kambattam, khas, sir and pannai jn Wilsons Glossary. The decision in Jagadeesam v. Kuppammal, ILR (1946) Mad 687. is in the result accepted by this Bench as it was by the Bench consisting of the learned Chief Justice and Rajagopalan J. in the TEDLAM CASE, A. S. No. 53 of 1946, already referred to. I hope that the two unreported decisions will soon be reported, to render our judgments in this case more fully intelligible even as the decision of my learned brother, Viswanatha Sastri J. in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, , unreported at the hearing of this case has since been reported.

119. As I have already noted, although not as a matter strictly necessary for their own decision of the particular point which arose in the case in Bandharu Jogi v. Seetharamamurthi, ILR (1948) Mad 223, the learned Judges of the Full Bench who decided that case (Gentle C. J., Horwill J. and Rajamannar J.) accepted the test laid down in Zamindar of Chellapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] and Jagadeesam Pillai Vs. Kuppammal, , of the report. There the learned Chief Justice points out:

"In ZAMINDAR OF CHELLAPALLIS CASE, 38 Mrd 341 and in Jagadeesam Pillai Vs. Kuppammal, , the meaning of "domain or home-farm land"--the expressions used in Section 3(10) --and the nature of private land were discussed. It was pointed out that the above expressions would connote land appurtenant to the mansion, kept for personal use and cultivated under personal supervision, as distinct from land let to tenants for farming."

Then the contrast is brought out between the nature of the land before the Court in that case and domain or home-farm land as interpreted in the decisions referred to, in the following terms:

"That is not a description of ryoti land which a land-holder cultivates for less than twelve years after its reclamation from waste land, and then lets to tenants as private land at a considerable profit rental."

In the passage just quoted I find a considered comment of approval by the Full Bench of the decisions in Zamindar of Chalafalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] and Jagadeesam v. Kuppammal, ILR (1946) Mad 687, which, in my opinion, is entitled to very great weight when we are called upon to overrule those earlier decisions.

120. I do not think it necessary to discuss any more cases subsequent to the- passing of the Madras Estates Land Act 1908 except that I have still to deal with the unreported decision of Krishnaswami Aiyangar and Somayya JJ. in Thiagakajasami Devastanam v. Muthusami Odayar., CMA No 311 of 1943 and the decision of Madhavan Nair J. reported in Vadiyangati Chinnarigadu Vs. Kotigari Rangayya Chetty, .

To take up the first of these two decisions, that pertains, it must be observed, to a case u/s 3(10) (b). The learned Judges negative the applicability to the case before them of Clauses (ii) to (iv) and in dealing with Clause (i) which was the clause applicable they had, unlike in the present case which refers to a case u/s 3(10) (a) first part, to take into account the second proviso to Section 185 which enacts the admissibility or inadmissibility in evidence of expressions in leases, pattas or the like executed before or after the 1st 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. The relevancy of that decision to the present case consists in this that the learned Judges rejected the argument for the respondent before them that proof of direct cultivation would according to the decisions in Zamindar of Chelapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] arid Zamindar of Chalapalli v. Somayya, 42 Mad 400 be necessary in order to establish the character of land as private land in cases within Section 3(10) (b), Clause (i) Which corresponds to the first part of Section 3(10) (a) dealing with home-farm land as part of the definition of private land. In so rejecting the argument the learned Judges explain away the decisions in Zamindar of Chelapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] and Zamindar of Chalapalli v. Somayya, 42 Mad 400 as cases where the lands were originally ryoti lands and were claimed by the land-holder to have been later converted into private lands.

It is on this decision that the learned counsel for the respondents before us based his argument in this regard which I have already repelled. I have already dealt with the decision in Jagadeesam v. Kuppammal, ILR (1946) Mad 687 which, in my opinion, also militates against any such manner of distinction. I do not need to say anything more upon this decision except firstly that the learned Judges themselves seem to make it clear that the mere vesting of both the melwaram and the kudiwaram in the land-holder is not sufficient to prove the character of land as private land and secondly that the learned Judges refused sanction for the reporting of their judgment as turning on facts essentially.

121. There remains for consideration only the case In Vadiyangati Chinnarigadu Vs. Kotigari Rangayya Chetty, . I am not clear that this strikes a note of dissent from the test, of direct cultivation on which the argument for the appellants and petitioners before us is founded I am rather inclined to think that it favours the argument. All that that decision in my opinion, says is that there need be no direct evidence of personal cultivation. Referring to the case in Zamindar of Chalapalli v. Somayya, 39 Mad 341 [LQ/MadHC/1914/478] : 27 Mad L J 718 it is observed by the learned Judge as follows :

"In the case quoted (Zamindar of Challapalli v. Somayya 39 Mad 341 [LQ/MadHC/1914/478] : 27 Mad L J 718 it was thought that it was necessary that direct evidence of cultivation should be given to prove that the land in question was private land, because it was proved that the land originally was ryoti land."

What the learned Judge had in mind is obviously a contrast between direct evidence of cultivation and indirect evidence of cultivation. In the case before the learned Judge, there was such indirect evidence to support the finding of the lower appellate Court that the land in question was home-farm land which was furnished by the description of the land as khasbagayat in several documents and by the proved fact that the lands in question were let yearwar to different tenants and on different rates of rent. The learned Judge lower down in the judgment observes:

"It was not contended before me that the only evidence that will prove that the land belongs to the zamindar as his home-farm land is evidence of direct cultivation. For if that is the case there is no such evidence in the case before us."

It is clear therefore that in that case, there was no contention before the learned Judge of the kind which has been advanced before us for the appellants and petitioners, and the case in question even if it is not to be regarded as a decision in their favour cannot certainly be regarded as a decision against them.

122. That disposes of what I consider to be the material case-law which deserves discussion for the purpose of the present case. I am of opinion that the well-settled authority of this Court on the point under consideration which in the bulk if not entirely is in favour of the appellants and petitioners before us ought not to be departed from and that the conflict introduced into the situation by the unreported decision in Thiagarajaswami Devastanam v. Mothuswami Odayar, C M A No. 311 of 1943 should be resolved in favour of that well-settled authority.

123. But then it is said that there is a de cision of the Privy Council reported in Bindehswari Prasad v. Kesho Prasad, 5 Pat 634, which is inconsistent with the con tention for the appellants and petitioners before us and entails its rejection. The facts of that case have been fully set forth in the judgments of my learned brethren and need not be referr ed to over again by me. It seems to me how ever that before treating the decision in that case as concluding the contention of the appel lants and petitioners before us adversely to them it is necessary to bear in mind in regard to the point under consideration the features of difference as well as of affinity between the Bengal Tenancy Act under which that case arose and the Madras Estates Land Act under which the present appeals and revision petitions have arisen. I am not certain that the two Acts are strictly peaking in pari materia though it is well-known that in no small measure was our Act based on the Bengal Tenancy Act. The Bengal Tenancy Act deals with a more complex system of land tenures than the Madras Act does, and the treatment of private land in the two Acts is not by any means the same or even substantially similar.

As observed in Volume 31 of Hailshams Edition of Halsburys laws of England at pages 486 and 487 it is difficult to define what constitutes being in "pari materia and I am by no means clear that the two statutes passed by two different Provincial Legislatures of the country with reference to not altogether similar conditions of land-holding can be regarded as so far as pari materia that a decision under the Bengal, statute must necessarily rule a case under the Madras Act.

Even In cases of statutes in pari materia it is laid down at the same place to the same volume of Halsburys Laws of England that while it may be presumed in the absence of context indicating a contrary intention that similar language is to be similarly interpreted the same word used in different Acts may however have different meanings in each statute according to the intentions of the Acts.

A comparative study of Section 3(10) (a) and Section 185 of the Madras Act on the one hand & of Section 120 of the Bengal Act on the other makes it dear that while home-farm land by whatever designation known as kambattam, khas, sir or pannai of Section 3(10) of the former Act corresponds to Section 120(1) (b) of the latter, private land under the latter Act is, as shown by Section 120, not necessarily cultivated land but may well be other than cultivated land. There are no definitions to be found in that Act of ryoti land and private land as we have in ours. Private land is, in that statute, apparently treated as synonymous with land of which the land-bolder is the full owner. That is how their Lordships reliance upon the facts adverted to by them in the penultimate paragraph of their Judgment in support of their conclusion in favour of the private character of the land in question in that case becomes intelligible. "Any other evidence that may be produced" which is the language of Section 120(2) of the Bengal Tenancy Act could therefore well cover such facts.

Similar language in Section 185(3) of the Madras Estates Land Act cannot have the same result because the evidence in question must bear upon the home-farm character, which is part of the statutory definition of private land, of the land claimed to be private, that is, upon the character of the land as land directly or personally cultivated by the landholder himself or under his supervision by his own servants or by hired labour with his own or hired stock. The Privy Council ruling might be useful and apposite if private land meant here, as held by my learned brethren all land in the absolute ownership of the land-holder. Not otherwise. Since I hold that private land does not mean that, according to the Madras Statute the Privy Council ruling has, in my opinion, no application.

Moreover, in that case it will be seen that of the facts to which their Lordships had regard In upholding the private character of the land there in question even on the basis of the appellants construction of Section 120 of the Bengal Tenancy Act and even without reference to the patta of 1902 and the kabuliats of 1883 and 1392 one important fact is the admission on defendants behalf in the plaints of 1910 as to the character of the land as zirait. The admissions as noted by their Lordships at page 640 of the report are that "in the plaints in each of the suits the lands are described as lands the milkiat interest in which belonged to Dumraon Raj and the lands were stated to be zirait lands and to have been recognised as such by village custom". There was therefore before their Lordships indirect evidence. if not direct, of the character of the land as cultivated land falling within Clause (b) of Subsection (1) of Section 120.

I am not like my learned brother--Viswanatha Sastri J., surprised in these circumstances that this case has not been referred to so far in any case of this Court as bearing upon the matter on hand. Nor do I share his view that it is unfortunate that it has not been so referred to. It is also noticeable that no case under the Madras Estates Land Act was cited to the Board in this Patna case as is made clear by the report of arguments to be found in Bindeshwari Prasad v. Kesho Prasad Singh, 53 Ind App 165 : 5 Pat 634, as would have been done had the two Acts in the respect with which we are concerned, been regarded as in pari materia.

124. Now, to summarise my conclusions on the question of law they are as follows:

1. that domain land which is one category oft private land is land about the dwelling house of the land-holder and in his immediate occupancy;

2. that there must be proof that at some time or other and for some time or other there was direct cultivation by the land-holder before cultivable land in an estate can be claimed to be "home-farm" land and hence "private land" within the definition of "private land" in the statute;

3. that the evidence may be direct and positive or indirect and circumstantial;

4. that the mere existence in the land-holder of both the warams in a land in an estate does not per se make of it private land;

5. that where there is any letting of any private land, as there may well be, the letting must be on terms and conditions consistent with an intention on the part of the land-holder to resume direct cultivation or personal use;

6. that local custom may well define and demarcate private land in an estate in accordance with customary notions of people of the locality although in a manner different sometimes to what the statutory definition of private land may justify;

7. that, otherwise, any evidence admissible u/s 185 of the Madras Act must be such as satisfies the requirements of the definition of "private land"; and,

8. that cultivable land In an estate must be presumed to be ryoti, unless the contrary is shown, and that the contrary is not shown by the circumstance of the existence of both warams in the land-holder.

125. Next in order to apply these propositions of law to the present case I must turn to the findings of fact of the lower appellate Court which are binding on this Court in second appeal find in revision. The question then will be whether those findings in the light of the law, as I have stated above, justify the rejection of these appeals and revisions or require that they should be allowed.

126. The learned Subordinate Judge holds in paragraph (7) of his judgment that the defendants had never any occupancy right and till recently did not claim any, and points out in paragraph (13) of his judgment that there have been admissions by some of the defendants or their predeeessors-in-title touching the existence of both the warams in the land-holders as by their being parties to the description of land as iruvaram land in documents and by their agreeing to the payment of swami bogam to the land-holder. He holds in paragraph (14) that sometimes there has been a change of tenancy though generally the lands have continued to be in the occupation of the same family hereditarily and observes in paragraph (16) that there is no evidence as to when the defendants or their predecessors-in-title were actually let into possession. He says that we have no evidence as to who brought the lands under cultivation but that from 1864 onwards successors-in-interest of the original inamdars have been claiming both the warams in lands by dealing with them and leasing them out. He does not find that varying rates of rent have been charged or paid. These are essentially the findings of fact of the lower appellate Court.

127. The learned Judge however seems to think, as appears from paragraph (16) of his judgment, that considering the evidence as a whole and having regard to all the circumstances the question for consideration is whether the tenants had any occupancy rights in the land. The question, in my opinion, is not precisely that but rather whether the plaintiffs have established the character of the land as private land and effectively rebutted the statutory presumption that the land is ryoti. He also discusses the case as if it fell u/s 3(2) (d) and Section 3(10) (b) and not u/s 3(2) (e) and Section 3(10) (a) of the Act which are really the relevant parts of the statute for consideration on our conclusion as to the nature of the inam grant. With reference to the law applicable, the learned Subordinate Judge relies on Vadiyangati Chinnarigadu Vs. Kotigari Rangayya Chetty, , with which I have already dealt in the foregoing. He also relies on a statement in the ramnad Manual prepared by Mr. T. Rajaram Rao the Dewan of the Ramnad Samsthanam under the order of the Court of Wards in 1890 which I shall quote and consider presently.

128. On the findings of the lower appellate Court just referred to, it seems to me that applying the law as laid down in the foregoing I can only reach one result--namely that these appeals and revisions must be allowed--subject of course to what I shall have to say infra on the passage in the Ramnad Manual relied upon by the lower appellate Court. The learning about swami bogam and what it means has been referred to in detail in the judgments of my learned brethren; but that word, as I think, emphasises nothing more than the existence of the kudiwaram as well as. the melwaram in the land-holder. It is no doubt a payment in separate recognition of the land-holders right to the kudiwaram, but cannot in my opinion, afford any evidence however, indirect, of direct cultivation of the lands by the land-holder at sometime or other and for sometime or other, proof of which by means of one species of evidence or another within the intendment of Section 185 of the Madras Estates Land Act is A condtion pre-requisite for the recognition of the lands in suit as private lands.

Where there is proof of direct cultivation at some time or other and for some time or other, subsequent letting may not matter, and the respondents can well rely on the leases in the present case as in no way inconsistent with an intention on the land-holders part to resume direct cultivation. Proof of the direct cultivation required is admittedly lacking in the present case, and the judgment of the lower appellate Court which mistakes the law and also misconceives in a way the rule of onus pro-bandi applicable to the appreciation of the evidence cannot be allowed to stand., After all on the plaintiffs side the positive evidence adduced to prove the private character of the lands is as rightly remarked by my learned brother Viswanatha Sastri J. poor jn quality and meagre in extent and the statutory presumption of the ryoti character of the lands must in my opinion be held not to have been effectively rebutted.

129. The passage in the Ramnad Manual which has still to be considered is. as quoted by the lower appellate Court in its judgment to the effect that

"pannai lands are those in which the zamindar or inamdar owns both the landlords and tenants rights and that he can lease out the lands to any one he likes for cultivation and obtain from him swami bogam or thunduvaram a rent obtained in acknowledgment to the landlords tenancy right in the soil in addition to the melwaram or landlords share, and that most of the dharmasanams in the zamindari were held under pannai tenure."

After all, the manual itself has not been produced before us and I am afraid that this passage, standing by itself, cannot if properly read, be of any conclusive assistance to the respondents. It is not stated in it that every land in which the zamindar or inamdar owns both the landlords and tenants right is necessairly pannai land irrespective of the requirement of proof of direct cultivation which is implicit in the word "pannai". What all is stated there is that pannai lands are lands in which the zamindar or inamdar owns both the landlords and tenants rights. Then again it may be that pannai lands can be leased out by the zamindar or inamdar to any one he likes for cultivation, and that swami bogam or thunduvaram can be obtained in respect of them.

It has not been suggested for the appellants and petitioners or in any of the decisions relied upon by them that pannai lands cannot be leaded out at all; nor does the fact that swami bogam or thunduvaram can be obtained by the owner of pannai lands from his tenant necessarily show anything more than that there is a distinct recognition of the existence of the kudiwaram right in the land-holder. It was contended in fact before the lower. appellate Court that the fact that in the documents relied upon by the plaintiffs there was reference to both the warams showed that the two interests in the land were kept distinct, which is not possible in the case of pannai lands, and that therefore the lands must be treated as ryoti lands.

Whether a contention going go far as that is well founded or : not is another matter; but there is no doubt but that the charging of swami bogam or thuriduvaram by the landholder when leasing out lands is not a necessary indication of the character of the lands as pannai lands.

In fact in a case in Sivanpandia Tevar v. Zamindar of Urkad, 41 Mad 109 to which our attention was drawn by the learned Counsel tor the appellants and petitioners it was held that swamibogam was part of the rent lawfully payable by a ryot to the land-bolder even in respect of ryoti land. It is remarkable that in none of the documents on record is any description to be found of the suit lands as pannai land, although pannai is a term certainly in vogue in the area from which these cases have come. It is difficult in these circumstances to attach any great importance to the passage in the Ramnad Manual relied upon by the lower appellate Court.

Much less am I prepared to read the passage in question as indicative of a local custom whereby if land is shown to be land belonging in both the warams to the Jand-holder on which when leased out swamibogam or thunduvaram is collected, it is ipso facto liable to be treated as home-farm land and as therefore private land according to the definition of "private land" in the statute. In fact, I may observe that no question of local custom as such was at all argued by counsel before us. Nor does it appear to have been raised in the Courts below.

130. This disposes of all that I consider to be relevant matter for the purpose of the pre sent appeals and revisions, which must, in my opinion, be allowed. I regret that I am obliged to, differ from my learned brethren for the reasons indicated in the foregoing, as I am quite alive, to the consideration that the ruling of this Bench in these appeals and revisions can not of course be quite as authoritative as it would be, if the decision were unanimous. At the same time, I must say that I differ with no sense of diffidence but with every sense of confidence inspired by former judgments of distinguished Judges of this Court which derive support from the dicta of the Privy Council in Zamindar of Chelappali v. Somayya, 42 Mad 400 and Chidambara Sivaprakasa v. Veerama Reddi, 45 Mad 586 and which have held the field for more or less an unbroken period of more than three decades. Out of the great sense of deference that I entertain for my learned brethren, I have anxiously considered whether I may not bring my self to agree with their conclusions, whatever my view oi some of their reasoning; but the points of disagreement in perspective and de tail alike have been too marked and too defined to admit of my concurrence at least in the result

Out of the same sense of deference, I have had to deal in great detail than I should have otherwise done in a manner perhaps savouring somewhat of the argumentative with parts of the reasoning of my learned brethren which I could not after the most earnest and anxious consideration accept. Some of those parts of the reasoning relate to points not raised or enlarged upon by learned counsel in the case on whom I mean no remark of disparagement on that account. I have had therefore to make references to these points by making references to the judgments of my learned brethren and not to the arguments of the learned counsel.

I must say further that I have laboured under some slight sense of embarrassment when called upon to deal with the judgment of my learned brethren, Mr. Viswanatha Sastri J. in Pentakota Naryudu and Others Vs. Yellapu Venkata Ramanamurthi and Others, , when sitting in his company. His Lordship knows perhaps better than I do to estimate its ambit and explain its import. I have not however felt myself relieved on that account of the responsibility of interpreting that decision in my own way and according to my own lights in the context of the prior case law on the subject. I can only hope that I have performed that rather delicate task with all the success of which the situation admitted.

In conclusion I desire to express my sense of grateful appreciation of the judgments of my learned brethren which I have had the advantage of reading before preparing my own & of the able and exhaustive arguments of learned counsel on both sides, on account of the great assistance which I have derived from those judgments as well as those arguments in reaching, in particular, on the second of the points for decision set forth by me at the opening of this judgment, my own conclusion which, although to my regret a dissident one is the only one which I have found it possible to reach in all the circumstances of the case. (In accordance with the opinion of the Majority, the Civil revision petitions and the second appeals are dismissed with costs, subject to the modification indicated above of the decree in second appeals. Rupees five nundred is fixed as advocates fee in each batch).