T. S. Pl. P. Chidambaram Chettiar v. T. K. B. Santhanaramaswami Odayar & Ors.

that if it was part of all' inam it would be an 'estate' within the meaning of that Act. It was, however, contended that the manner in which the property reverted to the widows of the Raja in l 862 after an act of State did not show that the estate was freshly granted but wls restored to the widows who enjoyed both the wararns, in the same way as the warams were enjoyed before. To put it differently, the argiiment was that the effect of restoration or re­ linquishment was only the undoing of the wrong and therefore if the villages were the private properties of the Raja at the time of the seizure then the same character is maintained when tliey were handed back to his widow. The contention was that what actually happened in 1862 was the restoration of the status quo anttt rather than a fresh grant by the British Government. The ar~ment is not a new one but has been raised before arid reiected in a number of authorities. In Jijayiamba Bayi Saiba v. Kamakshi Biryi Saiba(') it was held by the Madras High Court that the Government Order, 1862 was a grant of grace and favour to persons .who had forfeite.:1 aJJ claims to the personal properties of the Rajah by the act. of State and was not a revival of any antecedent rights which they might have had. A similar orinion of the grant was expressed in a Full' Bench case of the Madras High Court in Sumlaram Ayyar v. Ramachandra Ayyar('). But in Maharaja of Kolhapur v. Sundaram Iyer(•), Spencer, 0.C.J., appeare<l to doubt the decision -0f Scotland, C.J., in Jijqyi.::mba Bayi Saiba v; Kamakshi Bayi Saiba(') that there was a grant of grace and favour in 1862. A similar view was taken in Sundaram v. Deva Sankara('), but these cases have been subsequently ex- (I) 3 M.H.C.R. 424. (3) I.LR• 48 Mad. I: (2) I.L.R. 40 Mad. 389. (4) A.1.R. l918 Mad. 428. 760 SUPREME COURT REPORTS I 1968] 2 S.C.R Plained or not accepted on this point. In T.R. Bhavani Shankar Joshi v. Somasundra Moopanar('), it was held by this Court that the act of State having made no distinction between the private nnd public properties of the Rajah the privalc properties were lost by the Act of State leaving· no right outstanding in the exist­ ing claimants. The Government Order, 1862 was therefore a fresh grant due to the bounty of the Government and not because of any antecedent rights in the grantees. It was pointed out that the words "relinquished" or "restored" in the Government Order did not have the legal effect of reviving any such right because no rights survived the act of State. The root of title of the grantees was the Government Order of i 862 and it was therefore held that the restoration amounted to a grant in inam by the British. Government within the meaning of the Act. But the question whether wich regard to any particular area ~bat was granted in inam is a whole village or less than a whole village is a question that has to be decided with reference to the facts of each particular case. The question therefore arises .whether the area in question, viz., Orathur Padugai, constitutes a whole village and therefore nn estate within the meaning of s. 3(2) (d) of the Act. It was contended for the appellant that the suit-lands were not compri­ sed in a whole inam village. The contention was rejected by both the lower courts which concurrently held that the lands were located in Orathur Padugai, a whole village by itself or a named village and therefore an estate within the meaning of the Acl. It was argued on behalf of the :ippcllant that the finding of the lower courts is vitiated in law because it is based on no evidence. In our opinion, there is no ju·stification for this argument. On behalf of the respondents reference was made to Ex. A-64. Pannimancalam Vattam Jamabandhi Accoun: individual-war. Fasli 1296, which shows in column no. 3 Orathur Padugai as a village. Similarly, in Ex. A-78(a), Cess account for Pannimangalam Vattam and Ex. A-79, the Village war Jamabandhi Account Fasli 1309 Orathur Padugai village is shown as a whole village. E~hibit A-82, Village war Jama­ tandhi Individual War, Fasli 13 JO. Ex. A-84. Jamabandhi Ghosh­ para for the village, Fasli 1311 and Exs. A-153 to A-157 all men­ tion Orathllr Paduj!ai as a village. All the leases, lease-auctions and receipts given for payment of rent speak of Orathur Padugai as a separate village. Even the sale deeds, Exs. B-6, B-31, B-32 and B-33 contain a recital of Orathur Padugai as a separate village. It is manifest therefore that there is sufficient mattrial to ~how that at least since 1830 onwards Ordthur Padugai is a whole village. On behalf of the appellant reference was ;nade (I} (1963) 2 S'c.R. ~21. · . . , CHIDAMBARAM v. T. K. B. ODAYAR (Ramaswami, J.) 761 to Ex. A-128 and Ex. A-129 dated April 6, 1800 and July 5, 1800. Exhibit A-128 is a letter from the President, Tanjore to the Secretary to the Government of Madras in which there is a reference to Pannimungalam. Jt is stated therein that "the fields of Pannymungalam to the westward of Tanjore which from time immemorial have been reserved for the pasture of the drear cow do remain in the Raja's possession. There is neither village nor cultivation on these lands". In answer to this letter there is a communication from the Chief Secretary to the Government to the Resident, Tanjore, Ex. A-129. In para 5 of this letter it is stated: "The fields of Pucanymangalam containing neither village nor cuitivation shall remain in the hands of Rajah for the pastur­ age of His Excellency's cows." Much reiiance was placed 6y Counsel for the appellant on these two documents, but the High Court has rightly pointed out that the identity of the lands refer­ red to in Exs. A-128 and A-129 is doubtful. The lands in suit arc situated at least 30 miles south-east of Tanjorc town In Mannargudi taluk but in Exs. A-128 and A-129 the lands are described as westward of Tanjore. That there was Orathur village in existence even as early as 18 30 is clear from Ex. A-l 5J because in describing certain boundaries of another village it is mentioned as to the north of assessed Orathur village nadappu karai (bund pathway). Exhibit A-4 of 1868 is a Debit and Credit Balance account relating to Orathur Padugai attached to Mukasa Pannimangalam Thattimal. It is clear from this Exhibit that the entire village except the waste land was assessed. From Exhibit A-5 dated September 4, 1870, it appears that the punja lands. in Orathur village were taken on lease from the Collector of Tanjore who was the receiver and manager of the estate of the Rajah of Tanjore for a period of 5 years on payment of a total sum of Rs. 122/9/3. Exhibits A-7, A-8, A-12 to A-16 and A-18 are either Adaiyo/ai muchi/lkas or lease deeds for leasing the lands in. Orathur padugai village for a term granted by the Collector of Tanjore. In all these documents the description is that the lands are situated in Orathur Padugai in Mokhasa Pannymangalam· Thattimal. The documents range between the years 1870 to 1875. In Ex.A-63 which is. the individual war settlement register for Pannymangalam vattam for Fasli 1296 against column 6 it is stated that the income in the matter of the anumi cultivation of sugarcane, etc., on 95 kullis is 'Rs. 4 and it is in Orathur padugai village, Pannymangalan1 vattam. Exhibit A-61 is the debit and credit balance account of Orathur padugai for Fasli 1294. Similarly, in Ex. A-64, the individual war settlement register for Pannimangalam vattam, column 3 relating to the villaie of Orathur states ihat tlie Orathur padugai is a village and the vattam is Panniniangalam. There arc similar dos- 762 SUPl.ElllE COUllT l.EPORTS (1968) 2 S.C.R. criptions of Orathur as a village in Ex. A-65 which is the settle­ ment register for Pannirnangalam vattam for Fasli 1297. Exhibit A-80 contains a similai description <>f Orathur village in Panni­ mangalam vattam. Exhibits A-153 to A-155 and A-157 ire all lease deeds between the years from 1901 to 1906 relating to lea'le of lands in Orathur padugai. It is manifest that there is suffi­ cient evidence to show that from 1868 right up to 1907 Orathur padugai was considered as ·a separate village. It was contended for the respondents that even after the passing of the Act Orathur padugai was treated as a separate village. Reference was made in this connection to a number of documents, E:ts. A-158, A-105, A-159, A-106, A-116, A-161, B-17, A-117 to A-120, B-18, A-121, A- I 62 and A-163. In our opinion, the finding of the lower courts that Orathur padugai is a whole village and therefore ~on­ stitutes an 'estate' within the meaning of the Acl is supported by p1 o;ier evidence and Counsel for the appellant is unable to make good his argument that the finding of the lower courts is in any way defective in law. We proceed to consid.er the next question arising in •his case, viz .. whether the suit-lands are 'private lands' within the meaning of s. 3 ( I 0) ( b) of the Act which reads as follows : "3. In this Act, unless there is something repugnant in the subject or context- (I 0) 'Private land'- (b) in the case of an estate within the meaning <>f sub­ clause ( d) of clause (2), means- ( i) the domain or home-farm land of the landholder, by whatever designation known, such as, kambattam, khas, sir or pannai; nr (ii) land which is proved to have been cultivated as private land by the landholder himself, by his own ser­ vants or by hired labour, with his own or hired stock, for a continuous period of twelve years, immediately before the first day of J\llY 1908, provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land; or (iii) land which is 1_Jroved to have been cultivated by landholder himself, by his own servants or by hired labour, with his own or hired stock. for a continuous period of twelve yeallS ·immediately before the first day of NDvember 1933, provided that the landholder has I I ~ I j ' CHIDAMBARAM v. T. JC. B. ODAYAR (Ramaswami I.) 763 retained the lmdivaram ever since and has not conver­ ted the land into ryoti land; or (iv) land the entire kudivaram in which was acquired by the landholder before the first day of No_vember 1933 for valuable consideration from a person owning the kudivaram but not the melvaram, provided that the landholder has retained the kudivararii ever since and has not converted the land into ryoti land, and provided further that, where the kudivaram wa~ acquired at a sale for arrears of rent the land shall not be deemed. to be private land unless it is proved to have been culti- vated oy the land holder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years since the acquisi­ tion of the land and before the commencement of the Madras Estates Land (Third Amendment) Act, 1936.'' Section 3(16) of the Act defines 'Ryoti land' as follows: " 'Ryoti land' means cultivable land in an estate other than· private land out does not include-·- ( a) beds and bunds of t;mks and of supply, drainage, surplus or irrigation channels; (b) threshing-floor, cattle-stands, village-sites, and other lands situated in any estate which are set apart for the common use of the villagers; ( c) lands granted on service tenure either free of rent or on favourable rates of rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists." Section 185 of the Act enacts a presumption that land in inam village is not private land and reads as follows : "185. When. in any suit or proceeding it becomes necessary to determine whether any land is the land­ holder's private land, regard shall be had-- ( 1) to local custom, (2) in the case of an estate within the meaning of sub­ clause (a), (b), (c), or (e) of clause (2) of section 3, to the question whether the land· was before the first day of Jtily 1898, specifically Jet as. private land, and H (3) to any other evidence that may be produced :. Provided that the land shall be presumed not to be private land until the contrary is proved: 764 SUPREME COURT REPORTS [ J 968] 2 S.C.R. Provided f11rther that in the cao;e of an estate within A the meaning of sub-clause (d) of clause (2) of section 3- ( i) any expression in a lease, patta or the like, executed or issued on or after the first day of July, 1918 to the effect or implying that a tenant h~s no right of occu­ pancy or that his right of occupancy is limited or restric­ ted in any manner, shall not be admissible in evidence for the purpose of proving that tile land concerned was p~ivate land at the commencement of the tenancy; and (ii) any such expression in a lea~e, patta or the like, executed 0r issued before the first day of July 1918, shall not by itselfbc. sufficient for the purpose of proving that the land concerned was private land at the com­ mencement of the tenancy." Secticn 6 is to the following effect : "6. (I) Subject to the provisions of this Act, every ryoi now in possession or who shall hereafter be admitted by a landholder to possession of ryoti land situated in the estate of such landholder shall have a permanent right of occupancy in his holding. Explanation ( 1 ) .-For the purposes of this sub-seciion, the expression 'every ryot now in possession' shall in· elude every per;on who, having held land as a ryot continues in posses~ion of such la.'!d at the commence­ ment of this Act. " The Subordinate Judge and the High Court have concurrently come to the conclusion, upon consideration of the e\•idence, that the lands in suit are not private lands but ryoti lands. On hehalf of the appellant Mr. Kesava Iyengar conceded that onus is on the appellant to show that the lands are 'private lands' within the meaning of the Act, but the argument was stressed that t}ie lower courts have failed to take into account certain important docu­ ments filed on behalf of the appellant, viz .. A-128, A-129 and the Paimash account dated August 25, 1830, Ex. A-147 and the Land Registor, Ex.A-134. In our opinion. there is no war­ rant for the argument advanced on behalf of the appellant. As regards Exs. A-128 and A-129 it is apparent that apart from the question as to the identity of the land, they relate to a period p=-ious to the grant of 1862 which alone constitules the root of title of the grantees and there is no question of restoration or revival of any anterior right. The same rcallOtjing applies to the Paimash account dated August 25, 1830, Ex. A-147 which , ... ,,.~·· ' \ CH!DAMBARAM v. T. K. B. ODAYAR (Ramaswami, I.) 765 cannot, therefore, be held to be of much relevance in this con­ nection. Reliance was placed on behalf of the. appellant on Ex. A-134, the Land Register for Pannimangalam which shows that in Orathur Thauimal Padugai" which consists of Punjais (dry lands) and arc rain-fed, the land-holder (the Tanjore Palace· Estate) owns both the warams (lruwaram in vernacular). It was argued· for the appellant that the expression 'lruwaram' means that the land was owned as Pannai or private Janda. Reference wa' made to the record of rights and Irrigation Memoir dated January ) 3, 1935, Ex. B-8 which shows that. the Janda are lr111mram and there are no wet lands. But the use of the expression "Jruwaram" in these dccuments is not decisivt; of the question whether the land is private land of the appellant or not. Under s. 3 ( 10) of the Act. private land comprises of two cam. gories. private hmds technically so-called. and lands deemed to be private lands. Jn regard to private lands technically so-called, it must be the domain or home-farm land of the landholder aa understood in law. The mere fact that particular lands are described in popular parlance as pannai kambattam. sir, khas, is not decisive of the question unless the lands so-called partake of the characteristics of domain or home­ farm lands. In our opinion the correct test to ascertain whether a land is domain or. home-farm is that accepted by the Judicial Commi1tee in Yerlagadda. Malikarjtma Prasad Nayudu v. Som­ ayya('), that is, whether it is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season. The Legislature did not use the words 'domain or home-farm land' without attaching to them a meaning; and it is reasonable to suppose that the Legislature would attach to these words the meaning which would be given to them in ordinary English. It seems to us that the sub-clause {b )(i) of the' definition is intend­ ed to cover those lands which come obviously within Y:hat would ordinarily be recognised as the domain or home-farm, that is to say, lands appurtenant to the landholder's residence and kept for his enjoyment and use: The home-farm is land which the land­ lord cultivates himsef, as distinct from land which he lets out to tenants to be farmed. The first clause is, therefore meant to in­ clude 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 r.ecessarily be regarded as home-farm lands in the ordinary usage of the term; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not he regarded as private lands unless cultivated directly by the landlord for the required nerimL It seems to us that the definition reads as a whole (ll .1.1..R. 42 Mad. 4 (P.C.). L3 Sup. Cl/68-5 166 SUPREME COURT llEPOllTS [1968] 2 S.C.R. indica~ clearly that the ordinary test for 'private land' is the test of retention by the landholder for his personal use and cul­ tivation by him or under his personal super>'ision. No doubt, auch lands may be let on short leases for the convenience of the landholder without losing their distinctive character; but it is not the intention or the scheme of the Act to treat as private those lands with ref.erence to which the only peculiarity is the fact that the landJgrd owns both the warams in the lands and has been letting them out on short term leases. There must, iu our opinion be something in the evidence either by way of pro0f of direct cultivation o• by some clear indication of an intent to regard these lands as retained for the personal use of the landholder and his establishment in order to place those lands in the apecial c;itegory of private lands in which a tenant under the Act cannot acquire occupancy rights. In the present case there i~ no proof that the lands were ever directly cultivated by the landholder. Admittedly, soon after the grant of 1862 the estate came under the administration of Receivers, who always let out the lands to the tenants t0 be cultivated. In Ex. B-8, the Record of Rights the lands are entered in column 5 as Punja ot dry land. In column 4 which requires the entry to be made as private land they arc not entered as private lands. Ii was argued for the appellant that the lands are sometimes called 'Padugai' and that the expression meant that the lands were within the ftood bank and forming part of the river bed. But the description of the land as 'Padugai' is not of much consequence because they are also called as Orathur 'Thottam', thottam meaning a garden where garden crops are raised to distinguish it from paddy fields. It appears that the lands actually lie between two rivers and com­ prise more than l 00 acres, and by their physical feature cannot be 'padugai' in the sense in which the term is normally used. The argument was stressed on bel}alf of the appellant that leasing rights of the land were auctioned periodically. But the Righ Court has observed that one and the same tenant continued to bid at the auction and there was evidence that tenants continued ' to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease right~ ldid not necesc sarily deprive the tenants of the occupancy tjghts which they. were enjoying. We accordingly hold that the appellant has. not G adduced sufficient evidence to rebut the presumption under s. 185 · of the Act that the lands in the inam village are not private lands . and the argument of the appellant on this aspect of the case must be rejected. For the reasons expressed we hold that the judgment of the Madras High Court dated January 10, 1956 is correct and these appeals must be dismissed with costs--0ne set of hearing fee. G. C. Appeals dismis.fed.