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Judgment
Viswanatha Sastri, J.—This civil revision petition has been filed against the decision of the Subordinate Judge of Vizagapatam in A.S. No.
145 of 1944 affirming the decree of the District Munsif in a suit for rent for 1939-1940 and 1940-41 in respect of certain lands situated in the
zamindari village of Madgole. The amount of the claim was less than Rs. 500 and hence the case comes to this Court by way of a civil revision
petition. The contention of the defendants, here petitioners, is that the lands in respect of which rent is claimed are ryoti lands, that they are tenants
with a permanent right of occupancy and that the suit for rent was cognizable only by a revenue Court. The respondent''s case, accepted by the
Courts below, is that the lands are his private lands and the suit for rent was therefore rightly filed in the Civil Court. It is stated for the petitioners
that this finding is erroneous and that the lower appellate Court has misdirected itself in law in arriving at this conclusion.
There was some discussion at the bar as regards the scope of the revisional jurisdiction of this Court in cases like the present, the respondents''
contention being that the findings of the lower appellate Court on the issues of fact and law are not open to review by this Court u/s 115 of the
Civil Procedure Code. Reliance was placed on their behalf of the recent decision of the Privy Council in Venkatagiri Iyengar v. Hindu Religious
Endowments Board (1949) 1 M.L.J. 505, where the Board upset the decision of a Division Bench of this Court in the exercise of its revisional
jurisdiction, the ground of reversal being that even the misconstruction of a vital document governing the rights and liabilities of the parties were
merely an error of law which, however grave, did not justify interference in revision u/s 115 of the Civil Procedure Code. In so holding, the Judicial
Committee reiterated their earlier views in Amir Hasan Khan''s case (1884) L.R. 11 IndAp 237 : ILR 11 Cal. 6 and Balakrishna Udayar v.
Vasudeva Aiyar (1917) 33 M.L.J. 69 : L.R. 44 IndAp 261 : ILR 40 Mad. 793 What the Judicial Committee laid down in this triology of cases
was that where a Court had jurisdiction to determine a question of fact or law and it determined that question, it cannot be said that it had acted
illegally or with material irregularity, however erroneous its determination might be and the High Court could not correct the error in the exercise of
its revisional jurisdiction. The position here is different. The suit was for rent due in respect of lands situate in an "" estate "" and was tried and
decreed by the District Munsif and his decree was affirmed on appeal by the Subordinate Judge. Neither of the lower Courts would have had
jurisdiction to try the case unless the lands in question were proved to be "" private . lands "" of the landholder, the presumption being that they are
not. The objection here is to the jurisdiction of the lower Courts based both on the character of the Tribunal and the nature of the subject-matter of
the dispute and does not rest merely on the ground that the lower appellate Court has erroneously found a fact or point of law, which though
essential to the validity of its decree, it was competent to enquire into and decide. If the Court below has, by a decision which is found to be
erroneous, given itself jurisdiction to try a suit which it has no power to entertain, this Court can interfere u/s 115, Civil Procedure Code. The
recent decision of the Judicial Committee referred to above deals with a different situation, namely, an erroneous decision on a question of law
after jurisdiction had been legally assumed. Here the vary basis and foundation of the jurisdiction of the Court below rests on the correctness of the
conclusion of the lower Court as regards the character of the lands in question and if I find that the Courts below assumed jurisdiction to try the suit
for rent on an erroneous finding as to the character of the lands, I can interfere u/s 115, Civil Procedure Code. See Akhayya v.
Seetharamachandra Rao (1912) 24 M.LJ. 112 : ILR 39 Mad. 195 . Both in Amir Hasan Khan''s case (1884) L.R. 11 IndAp 237 : ILR 11 Cal. 6
and in Venkatagiri Iyengar v. Hindu Religious Endowments Board (1949) 1 M.L.J. 505, the Subordinate Court had jurisdiction to decide the
dispute and while exercising that admitted jurisdiction, came to an erroneous conclusion on questions of law like limitation and the construction of a
document. In Balakrishna Udayir v. Vasudeva lyer (1917) 33 M.LJ. 69 : L.R. 44 IndAp 261 : ILR 40 Mad. 793 the District Judge by a
misconstruction of a statutory provision had given himself jurisdiction to direct an election to a temple committee. This Court set aside in revision
the order of the District Judge accepting the result of the election and recognising and confirming the person elected as a member of the temple
commitee. The Privy Council held that as a question of jurisdiction was involved the High Court had power to interfere in revision and reverse the
order of the District Judge. Section 115, Civil Procedure Code, is intended inter alia to keep Subordinate Courts within the limits of their
jurisdiction. Neither the trial Court can give jurisdiction to itself, nor can the appellate Court give jurisdiction to he trial Court, by an erroneous
decision and in either case, this Court is competent to interfere in revision. See a recent decision of the Privy Council in Joychand Lal Babu v.
Kamalakshan Chowdry (1949) 2 M.I.J. 6, reported after the arguments were heard in this case.
The crucial question, therefore, in the case is whether the lands in respect of which rent is claimed are "" private lands "". If they are, the Courts
below would have had jurisdiction to try the suit. In arriving at a conclusion on this question, the Courts below have not disclosed in their
judgments whether they had in view the relevant considerations or the governing provisions of the Madras Estates Land Act. This omission is partly
responsible for the length of the arguments and of my judgment in this case.
It is common ground that the lands are situate in the zamindari village of Madgole. Section 3(10)(a) of the Madras Estates Land Act defines
Private land "" as the domain or home-farm land of the landholder by whatever designation known such as kambhattam, khas, sir or pannai. The
rest of the definitions has no application to the present case, because it is not the case of the landlords that the lands have been cultivated as private
land by themselves or by their own servants for a continuous period of 12 years immediately before Act I of 1908 came into operation. u/s 185(2)
and (3) of the Madras Estates Land Act, in determining whether any land is the landholder''s private land, regard shall'' be had to the question
whether the land was before the 1st day of July, 1898, specially let as private land and any other evidence that may be produced. There is a
proviso that the land shall be presumed not to be private land until the contrary is proved. There has been, in my judgment, some amount of
misconception as regards the meaning of the words "" domain "" or "" home-farm land "" of the landholder-expressions found in Section 3(10)(a) of
the Act. To interpret these 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 the import feudal ideas of mediaeval E gland into the system of land tenures 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 expression "" domain "" and
home-farm"" as the nearest English equivalents of the Tamil and Telugu words "" pannai "", ""kambhattam"", ""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 the 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 residences. 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. I
very respectfully venture to think that Wadsworth, O.C.J., unduly narrowed the meaning of the expression "" private lands "" when he defined it as
land appurtenant to the landholder''s residence and kept for his enjoyment and use "" and "" as land which the landholder farms himself as distinct
from land which he leases out to ten nts to be farmed "". Jagadeesam Pillai Vs. Kuppammal, Direct or personal cultivation 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 leasing by itself is not fatal to the
claim, that the land in question is private land.
It is unnecessary for the purpose of this case to trace the origin and history of the conception of "" private land "" in a zamindari. The topic will be
found discussed with reference to the different parts of the country in Baden Powell''s Land System, Vol. I, pages 166, 167, 449, 515, 695 and
Vol. 3, page 624. In the Northern Circars from which this case comes, home-farm lands are sometimes referred to as Savaram lands whose origin
and characteristics will be found discussed in Mulpuru Lakshmayya and Others Vs. Sir Rajah Varadaraia Apparow Bahadur Zamindar Garu., .
Suffice it to say that this notion of the private land of a zamindar being confined to land surrounding his residence is not accurate The distinction
between public domain and private land in zamindari areas lay in this, that if land was private land, occupancy right could not be acquired in it
unless the zamindar himself voluntarily transferred it to the category of ryoti land. "" Private land "" was the freehold of the zamindar. All other
cultivable lands within the ambit of the zamindari were ryoti or jereoyiti as they were called in the Northern Gircars, i.e., lands which a tenant could
occupy on the customary terms and in respect of which he became a co-owner with the zamindar under the common law of the country as
developed by the decisions of this Court in (1897) 7 MLJ 251 and the Cheekali Zamindar case ILR (1899)Mad. 318 (325, 326) and embodied
later in Madras Act I of 1908. So far as I know, in no case prior to Sreemanthu Raja Yarlagadda Mallikharjuna Nayadu Bahadur, Zamindar Garu
of Chellapalli Vs. Rajalapati Somayya and Others, was it suggested that a zamindar''s private land must be confined to land surrounding his palace
or residence as in the case of demesne land of an English Lord of the manor.
Again, it is not an indispensable condition that private lands should be proved to have been cultivated by the landowner himself or his hired
labourer within recent times. It is recognised by Sections 19 and 185 of the Madras Estates Land Act that private lands could be leased without
impairing their character as private lands. The relations between the lessor and lessee of private lands are governed by the contract of tenancy and
not by Act I of 1908. As early as the celebrated case of the Cheekati Zamindar I.L.R.(1899)Mad. 318 Sir Subramania Aiyar, J., referred to the
distinction between the terms of the leases granted in respect of seri lands and pattas granted in respect of ryoti lands. The Judicial Committee in
Terlagadda Mallikar juna v. Somayya (1918) 36 M.L.J. 257 : L.R. 46 IndAp 44 : ILR 42 Mad. 400 appear to have approved of the observations
of Sir John Wallis in Sreemanthu Raja Yarlagadda Mallikharjuna Nayadu Bahadur, Zamindar Garu of Chellapalli Vs. Rajalapati Somayya and
Others, that private 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. u/s 3(10)(a) of the Madras Estates Land Act "" private land "" means lands styled as sir, khambattam,
or pannai and also includes, by an extended application, land that had been cultivated by the landholder himself by his own servants or by hired
labour with his own or hired stock for 12 years before Act I of 1908 came into force, even though in its origin it might not have been private land.
There are two categories of private lands in zamindari areas contemplated by Section 3(10)(a), namely, private land properly so-called and land
deemed to be private land by reason only of direct cultivation by the landholder for 12 years before the Act. In the case of private land strictly so-
called, leasing does not affect or impair its character as private lands. In the case in Vadiyangati Chinnarigadu Vs. Kotigari Rangayya Chetty, ,
Madhavan Nair, J., held that the Jaids in question in that case were private lands by reason of their description as "" kambattam "" and
samasthanam khanigi "" in spite of the facts that there was no evidence of direct cultivation by the zamindar at any time, that the lands had been
leased to tenants under leases commencing from 1877 and styled as Sagubadi pattas and that the tenants were never turned out of the lands by the
zamindar but were allowed to continue in occupation hereditarily. If land had been let specifically as private land before 1898, such letting is
relevant and admissible evidence of its character as private land and other evidence to prove its character as private land is also admissible. See
Section 185 of Act of 1908. There has been a difference of opinion in this Court as to whether leases subsequent to 1898 are admissible to prove
letting as private land, see for example Chintan Reddi Sanyasi v. Sri Rajesaji 1914 M.W..N. 766, Yarlagadda Mallikarjuna v. Subbiah (1919) 39
M.L.J. 277, Appurao v. Kaveri (1917) 7 L.W. 271, Zamindar of Chellapalli v. Somayya (1914) 27 M.I.J. 718 : ILR 39 Mad. 341. The
reasoning of the decision of the judicial Committee in Bindeswari Prasad Singh v. Maharaja Kesho Prasad (1926) 51 M.L.J. 587 : L.R. 53 IndAp
164 : ILR 5 Pat. 634 , a case decided on the analogous provisions of the Bengal Tenancy Act, would seem to render admissions by tenant in
leases subsequent to 1898 also admissible in evidence whatever be their probative value.
In the light of the above principles, I have to consider whether the lands with which we are concerned in this suit are private lands. The lands are
situate in the village of Madgole itself and have been referred to as part of the Rajuseri lands of the Madgole zamindar in several documents dating
from 1877 to 1939. This would show prima facie that the lands were regarded as the seri or private land of the Raju, i.e., Zamindar of Madgole. It
may be that the expression ""seri"" is used in different senses in different parts of the Northern Circars, and that the use of the term ""seri "" in
documents would not conclude the matter. See Mulpuru Lakshmayya and Others Vs. Sir Rajah Varadaraia Apparow Bahadur Zamindar Garu., ,
Sri Ravu Seshayya Garu Vs. The Rajah of Pittappur, Sri Raja Ravu Venkata Kumara Mahipati Surya Rao Bahadur Varu, and V. Appa Rao Vs.
Sreeramreddi Sanyasayya and Others, . But the documents filed in the case show, in my opinion, that the expression ""seri "" was used to denote the
private land of the Madgole zamindar.
Exhibit P-4, dated 6th March, 1877, is a usufructuary mortgage for Rs. 4,500 of "" Rajuseri "" lands of which the suit lands form a part. The lands
are described as "" our private seri from a very long time till now."" The mortgagee is empowered either to lease out the said la and or carry on
private cultivation. Exhibit P-5, dated 25th August, 1892, is a permanent cowle of the suit lands and the rest of the "" Rajuseri "" lands granted by the
zamindarini of Madgole to Venugopala Bhupathi the predecessor-in-titte of the plaintiffs. The rent fixed is Rs. 150 per annum and the grantee was
authorised to enjoy the lands permanently either by cultivating himself or leasing them out. Exhibit P-5 recites that the lands had been granted under
yearly leases for the previous year and for the current year to three individuals and that the lards had been in the possession of the grantor till then.
Exhibit P-7, dated 21st May, 1893, is a deed of relinquishment executed by the three lessees referred to in Exhibit P-5 in favour of the grantee
Venugopala Bhupathi on receipt of a sum of Rs. 600 for the crops on the land and the cultivation expenses incurred by the lessees. This document
recites that the lands are to be taken back to the "" sontha. sen "" of Venugopal Bhupathi. These are also the documents prior to 1898 and the
recitals therein show that the lands in question were regarded as the private lands of the Madgole zamindar.
After Venugopal Bhupathi got the lands under the permanent cowle Exhibit P-5, there are two kadapas Exhibits P-8 and D-10, dated 26th
June, 1901, each in respect of a portion of the Rajuseri lands for a period of five years executed in his favour by certain lessees. The recital in these
two documents is that the lessees were to carry on cultivation according to custom and that if Venugopal Bhupathj;, the lessor, notified at the end
of any Telugu year within the period of five years, his intention to resume direct cultivation of the land, the lessees would surrender possession to
him without reference to the term of the lease. The term of the kadapas Exhibit P-8 and Exhibit D-10 expired in 1906 and no lease of the land
from 1906 to 1917 is put in evidence. There is a cowle Exhibit D-1, dated 20th April, 1947, for one year executed by Venugopal Bhupathi in
respect of a portion of the Rajuseri lands which are described as sarva mokhasa. The lands are referred to as being in the cultivation of the lessor.
Objection was taken to the identity of this document and nobody connected with it has been examined to prove the nature or the enjoyment by the
lessee under this lease deed though such evidence was stated to be available.
On 22nd March, 1932, Venugopal Bhupathi and his sons usufructuarily mortgaged a two-third share of the Rajuseri land under Exhibit P-10
and executed a simple mortgage in respect of a third share under Exhibit P-12, dated 7th June, 1922. There was a further simple mortgage of the
entire land under Exhibit P-12(c), dated 20th October, 1924, and a usufructuary mortgage of the one-third share under Exhibit P-11, dated 23rd
February, 1927, by Venugopal Bhupathi and his sons. Under Exhibit P-1, dated 22nd March, 1939, that part of the Rajuseri lands which is now in
question, was purchased by the present plaintiffs while other portions of the said lands not in question in this suit, were purchased under Exhibits P-
13 and P-14. On 29th April, 1939, the defendants in the present suit executed a kadapa Exhibit P-2 in favour of the plaintiffs for a period of one
year. It is on foot of this kadapa that the present suit for rent for 1939-40 is filed along with a claim for damages for use and occupation for the
subsequent period.
It is admitted by the contesting defendant examined as D.W. 1 in the case that the lands in question were personally cultivated by the
usufructuary mortgagees under Exhibits P-10 and P-11 and that subsequent to the sales in their favour by Venugopal Bhupathi, the vendees were
themselves cultivating the lands personally except Ramu Naidu who used to lease out a portion of the lands purchased by him but not the lands
now in question. Mr. Venkatesam, the learned Counsel for the respondents, naturally laid great stress on this evidence of the defendant himself as
showing personal cultivation by the landholder for a period of about 17 years, immediately preceding,the kadapa Exhibit P-2. There is also other
oral evidence to the same effect to which it is unnecessary to refer in view of the defendant''s own statement.
Thus, there is documentary evidence dating from a period anterior to 1898 showing the land in question was dealt with as private land. There
have been yearly leases and, term leases now and then since 1891. The leases however are not continuous. The tenants have changed as well as
the rents payable in respect of the lands. These leases certainly indicate that the landholder continued to deal with the lands as private lands liable
to be reduced to his physical possession whenever he required them for his own personal cultivation. From 1922 till 1929 there has been personal
cultivation by the mortgagees and vendees from the original landholder. On this evidence, I am unable to say that the Courts below erred in law in
arriving at the conclusion that the lands in question were private lands.
In view of my conclusion that the lands are private lands, it is unnecessary for me to ccnsider at length two other questions which were argued
at the bar. Mr. Ramanarasu, for the petitioners, contended that the most that could be claimed for the plaintiiffs in this case is that the grant in
favour of Venugopal Bhupathi under Exhibit P-5 of 1892 was of both the warams. In that event, the grantee and his successor-in-title would be
landholders "" within the meaning of Section 3(5) of the Madras Estates Land Act and the present suit for rent would lie in the Revenue Court. He
relied on the decisions in Jarugumilli Brahmayya by mother and next friend Rajeswaramma Vs. Challaghali Achiraju, and Narayanaraju v.
Suryanarayadu (1939) 2 M.L.J. 901 : L.R. 66 IndAp 278 : ILR 1940 Mad. 1 . in support of his contention. Mr. Venkatesam for the respondents
contended that even on the assumption that the zamindarini of Madgole merely owned both the warams in the Rajuseri lands and that the lands
were not private lands, the grantee Venugopal Bhupathi became a ryot under the terms of Exhibit P-5 and the subsequent acquisition of the
melwaram interest under the terms of the compromise Exhibit P-7 would not affect his status as a ryot. He referred to the decision in Ganjain
Manikyamba and Another Vs. Pasala Mallayya and Others, . He contended that u/s 19 of the Estates Land Act, the relationship between a ryot
and his lessee is not governed by the Act, but by the terms of their contract. In view of my conclusion that the lands in question are private lands, it
is unnecessary to refer to these contentions further....
I hold therefore that the conclusion of the Courts below that the lands in question in, this suit are private lands is supported by the evidence in
the case and is not shown to be erroneous in law. I dismiss the civil revision petition with costs.