AI Structured Summary
Not yet generated for this judgment
Judgment
Bhimasankaram, J.—This is an application under Art. 226 of the Constitution to call for and quash an order of the Estates Abolition Tribunal passed in appeal against an order of the Assistant Settlement Officer, on an application filed by the petitioner under S. 12 of the Madras Estates (Abolition and Conversion into Ryotwari) Act 26 of 1948.
The petitioner was the landholder of Gavaravaram an estate which was notified by the Government under the Act on 7-9-1950. He made an application to the Assistant Settlement Officer for the issue to him of a ryotwari patta in respect of several items of land. The said officer allowed his claim in respect of some items and disallowed it in respect of certain others. On appeal, before the Estates Abolition Tribunal in respect of the disallowed items, he achieved partial success. The items which are disallowed by the Tribunal fall into groups. The claim for items 1 and 40 to 45 which form one group was rejected on the ground that there was no proof of cultivation in regard to them from the year 1939 and that they are pasture lands, presumably within the meaning of S. 3 (b) of the Act. The claim in respect of items 16, 23 and 30 which form the other group was disallowed on the ground that they are irrigation tanks and although used only by the zamindar, they do not fall under S. 12 of the Act.
It may be stated at the outset that the Government are now prepared to allow the petitioners'' claim in regard to the second group. The dispute therefore is confined to the first group of items. It is contended for the petitioner that all these items though used as pasture lands were used only by the petitioner for the pasturage of his own cattle, that the cultivators of the village never claimed any right to feed their cattle therein, and that these lands should be considered as appurtenant to the adjoining private lands under cultivation of the landholder and as such falling within the category of private lands. It is not denied that the items are cultivable. It is however said that having regard to the large extent of private land under his cultivation, the land holder has necessarily to set apart portions of his lands for the pasturage of his cattle used for agricultural operations and that these items were so set apart.
The claim is sought to be put under S. 12 (a) of the Act which is as follows :
In the case of a Zamindari estate, the landholder, shall, with effect on and from the notified date, bo entitled to a ryotwari patta in respect of
(a) All lands (including lanka lands) which, immediately before the notified date, (i) belonged to him as private land within the meaning of S. 3, CI. (10) (a) of the Estates Land Act, or (ii) stood recorded as his private land in a record prepared under the provisions of Chapter XI or Chapter XII of the said Act, not having been subsequently converted into ryoti land;
Section 3 (10) (a) of the Madras Estates Land Act (1 of 1908) may also be usefully quoted :
In this Act, unless there is something repugnant in subject or context
(a) In the case of an estate within the meaning of Sub-cls. (a), (b), (c) or (e) of CI. (2), means the domain or home farm land of the landholder by whatever designation known, such as Kambattam, Khas, sir or Pannai and includes 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 a continuous period of twelve years immediately before the commencement of this Act; and" It is admitted that these items did not stand recorded as private land and do not fall under sub-cl. (ii) of S. 12 (a). The claim is rested only on sub-cl. (1) of sub-s. (a) of S. 12 of the Act. The essence of private land, it is argued, is that it has always been treated as the absolute and exclusive property of the landlord (sic) which no tenant ever laid claim.
Reliance is placed in support of th(sic) proposition on the decision of a Division Bench of the Madras High Court in Saraswat Bai v. State of Madras, 1956-2 Mad LJ 59 (AIR 1958 Mad 74) (A). In that case, the Estates Abolition Tribunal rejected the claim an erstwhile owner of a zamindary estate under S. 12 for the grant of a ryotwari patta in respect of a site occupied by a tank, the enti(sic)ayacut of which consisted of the cultivation private lands of him. The learned Judges p(sic) themselves the following question :
can a piece of land owned by a land holder and used exclusively as a tank to in(sic) gate his private lands be brought within t(sic) definition of private land in S. 3 (10) (a) of t(sic) Estates Land Act?
They premised the discussion by the statement that "the right conferred by S. 12 (a) the Act constitutes a statutory grant." T(sic) then observed that the test to be used in certaining what passed under it is the same the test which would be applicable to a conveyance. They referred to the following pass(sic) in AIR 1932 46 (Privy Council) , a decision of their Lordships of the Privy Council, wherein they were dealing with w(sic) passed to the Zamindar under the Perman Settlement.
Of course, the permanent settlement dealing with the Government''s right to a p(sic)ment which represented and replaced melwaram of more ancient times, but the is the same as the test which would be app(sic) to a conveyance. In a conveyance you what passed. In the case of the permanent settlement you ask what was the extent of property that was settled. In the URL CASE, K. Balasurya Prasada Row v. Secy State, (AIR 1917 PC 42) (C), the water ri(sic) in question passed because there were exis(sic) water rights enjoyed by way of easemen(sic) the time of the settlement. Here what pa(sic) was the property and the property, b(sic)riparian, had inherent in it without special i(sic)tion, the riparian rights.
Then they formulated the question as to other the tank was truly appurtenant to the cultivated private lands of the petitioner. In (sic)struing the word "appurtenant" they folic the meaning given to it in Babu Lal Vs. Ram Prasad and Others, , a Full Bench decision of the Allahabad High Court, held that "the phrase ''appurtenant to an cultural holding'' means something which adjunct to or an integral part of the hold and after referring to some other autho(sic) taking a similar view, observed as follows
"Where the parcel of lands was held the petitioner for cultivation and there w(sic) tank upon it, the tank would go with the and if there was a right to a patta for the there would be a right to a patta for the as appurtenant to the land. or if we can in the language of Craham J., in Surendra Kumar Sen Chaudhury and Others Vs. Chandratara Nath and Others, , if a portion of the demised area (the grant this case being under S. 12 (a) of Act 26 of 1948) is used for agricultural purposes, that will determine the character of the grant as a hole.... If the tank had been construction on what was proved to have been private land before that construction, the landholder would be entitled to a patta for the tank also.
Even if there was no proof of the nature the land before the tank was constructed, the tank was always held and enjoyed by the owner of a parcel of private lands as appur(sic)aant to those lands, S. 12 (a) of the Act, in (sic)r opinion, would confer a statutory right to ryotwari patta for the tank also. As we have already stated the tank and its ayacut(sic)gether constituted one unit, owned and en(sic)ed by the same person,. the landholder, for agricultural purposes. The right in what was appurtenant to the private lands passed with (sic)e right in the private lands granted by the (sic)tute under S. 12 (a) of the Act.
(sic)e learned Judges also considered the question from another point of view. They point out that "the definition in S. 3 (10) (a) of Estates Land Act does not expressly or (sic)en impliedly exclude land which is in use a tank", and that the argument on behalf the Government that actual cultivation (sic)uld be the test in deciding whether a piece land was private land was unacceptable, (sic)en they say thus:
Absence of actual cultivation may not be (sic)cient to negative the claim, that a piece of cultivated land is nonetheless private land. (sic)ere is little substance in the plea of the (sic)ned Government pleader, that the bed of a (sic)c as such is uncultivable, in the sense that (sic)s impossible to cultivate it. Neither nature the statute made it impossible for the petitioner to cultivate the bea of the tank... if had chosen to do so alt any time. That ac(sic) cultivation, continuous or* intermittent, was the test to apply in deciding whether a en piece of land was within the scope of (10) (a) of the Estates Land Act was made (sic)r in Periannan v. Amman Kovil, ILR 1952 (sic) 741: 1952-1 Mad LJ 71: (AIR 1952 Mad (sic) (FB) (F).
Then they quoted from the Full Bench in ILR 1952 Mad 741: 1952-1 Mad LJ Periannan and Others Vs. Airabadeeswarar Soundaranayagi Amman Kovil of O''Siruvayal and Others, two of the (sic)e propositions formulated by Satyanarayana J. thus:
(3) If there is no proof of cultivation for (sic)mtinuous period of 12 years before the (sic)mencement of the Act, the land may be (sic)ed to be private land by other methods, (sic)ided the land was not shown to be once... (6) The essence of private land is cooti(sic)s course of conduct on the part of the holder asserting and acting on the footing he is the absolute owner thereof and re(sic)ition and acceptance by the tenants that landholder has absolute right in the land.
They proceeded to observe that the tank was riever ryoti land, that though it was true that it was not proved to have been cultivated at any time even intermittently there was nevertheless a continuous course of conduct of the landholder treating the tank as a piece of land in which he had absolute rights and using the land only for his agricultural purposes. ''Agriculture" they remarked, "has obviously a larger connotation than cultivation", and expressed the view "that the lands were held as of right by the landholder for his exclusive agricultural purposes should suffice to bring those lands within the scope of S. 3 (10) (a) of Estates Land Act."
They also noticed the absurdities involved in the acceptance of the contrary view in the following passage.
A strict application of the test of cultivation would exclude, for example, the area occupied by an irrigation well in the midst of undisputed private lands; so would a small pond or an uncultivated mound of earth stand excluded. Yet no basis could be found in the statutory language of S. 3 (10) (a) of the Estates Land Act for such exclusion. The area of the water-spread could be of no consequence, when either proof of actual cultivation or evidence of availability for cultivation is the only means: of establishing that the piece of land falls within the scope of S. 3 (10) (a) of the Estates Land Act.
It must be observed that the first of the two propositions quoted by the learned Judges, from the Full Bench decision deals with a case where there is no proof of cultivation for a continuous period of 12 years before the commencement of the Act and all that it says is that the land may be proved to be private land by other methods provided that it was not shown to be one ryoti. As I read it, it only means that the proof of cultivation for the specified period is not the only mode of establishing that a particular land is a private land of the zarnindar. It does not really embody any test for determining what is private land
Nor does it indicate that the test of cultivation is altogether to be dispensed with. I cannot see how that proposition supports the reasoning of the learned Judges that the test of cultivation is not a necessary test in deciding whether a particular land is private land It seems to me that that proposition only states that a particular kind of proof, i.e., cultivation for the specified period is not the only mode of proof.
As regards the second of the propositions enunciated by Satyanarayana Rao J. to which reference was made by the learned Judges, while it is true that the first limb of the proposition speaks of a continuous course of conduct on the part of the landholder asserting and acting on the footing that he is the absolute owner of the land, the second limb of the proposition requires recognition and acceptance by the tenants that the landholder has absolute right in the land. The conjunction used it is to be noted is ''and''.
Further the proposition refers to the essence of a private land, that is to say, all private land should pass the test; in other words, no land can be private land unless the particular test is satisfied, and the test consists of two parts (1) conduct on the part of the landholder and (2) conduct on the part of the tenants. It seems to me that there is no point in making a reference to "the tenants" unless it was intended to refer to cultivated land. In order to ascertain the true meaning of these propositions, reference may also be made to the judgment of Viswanatha Sastry, J., who was in agreement with Satyanarayana Rao, J. in Periannan and Others Vs. Airabadeeswarar Soundaranayagi Amman Kovil of O''Siruvayal and Others, . He summarised his conclusions as to the law on the point thus : (I omit those portions which relate to conversion of what was once ryoti into private land):
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 landholder for twelve 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 landholder. 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 twelve 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 landholders. If, owing to lapse or 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 and admissible under the law of evidence, to prove the 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 specially mentioned in S. 185 (1) and (2) as being relevant evidence but other evidence is also expressly made admissible under S. 185 (3). The classification of lands as private lands at the time of the permanent settlement or in the early records of the zamindaries, the terms of the grant of under-tenure, the assertion and enjoyment by the landholder of the right to both the warams, the intention to retain with himself the kudiwaram right and the consequent right to resume direct cultivation if he chooses, leases of the land as private lands or with terms and conditions inconsistent with any right of occupancy in the lessees, admissions by tenants that the landholder 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 circumstances 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 discharge merely by proving that both the warams we granted to or enjoyed by the landholder on(sic) upon a time. There must be evidence of the treatment of the lands as private lands by the landholder, either by direct cultivation or other wise in the manner above stated.
If we turn to the dissentient judgment Raghavarao J., the point on which he was disagreement with the other learned Judge was that according to him in regard to private land other than domain land, there must proof that at some time or other and for son(sic) time or other there was direct cultivation the landholder before cultivable land in estate can be claimed to be a home-farm land and hence private land.
The learned Judges in 1956-2 Mad 595: (AIR 1958 Mad 74) (A), proceeded up the footjng that the propositions quoted them from the judgment of Satvanarayana P, J., in the Full Bench do not involve the nec(sic)sity of proof of cultivation at any time. W(sic) the greatest respect, I cannot bring myself subscribe to that view. This is not to say h(sic) ever that I regard their decision on the fa(sic) before them as not correct.
If there is proof that the whole of a bl(sic) of laud has been enjoyed as private land, mere fact that a small portion of it which c(sic) stitutes an integral part of it was used for a(sic) cultural purposes other than cultivation d(sic) not make that part other than private land, would be a reasonable inference in such a (sic) that the whole block of the land as a unit reserved by the landholder himself for cultivation purposes and it would be absurd to (sic)pect that there should be proof that every i(sic) of such land was once cultivated.
Otherwise, as the learned Judges p(sic) out, the ridges between fields and the sites which wells are diig would be excluded f(sic) the definition. What is held and enjoyed an integral part of private land may, I ac(sic) be held as Jiaving been impressed with same character. But where there is cultivated land in an estate, the fact that it has n(sic) been let out or the fact that no person cl(sic) or has ever claimed the kudiwaram therein not in my opinion suffice to make out the is private land.
It must be borne in mind that there presumption under the Madras Estates I Act that all cultivable land in an estate is land. That being so, we must start with presumption against the landholder. Then is he to prove that it is his private land, did not stand recorded as private land u(sic) Cl. (ii) of Sub-s. (a) of S. 12 of the Act? must prove that it is his domain land or h(sic) farm land. Although domain land as to w(sic) I shall not express any decided opinion in this case there is no such claim - may necessary involve cultivation, the word "home-farm" necessarily involves cultivation.
It is true that the judgment of Satyanarayana Rao. J. in the Full Bench case reported in ILR 1952 Mad 741: 1952-1 Mad LJ at p. 89 Periannan and Others Vs. Airabadeeswarar Soundaranayagi Amman Kovil of O''Siruvayal and Others, contains a passage which is capable of ing understood as dispensing with the necesr(sic)y of test of cultivation in regard to what is own as home-farm land. He remarks as lows:
Reading therefore the definition with 185, it is impossible to infer from the definition of the first part that the Legislature in(sic)ded to lay down the test of cultivation as sole and exclusive mode of determining the character or nature of the land.
(sic) this must be understood, in my judgment, referring to personal cultivation by the (sic)lindar, as appears from the discussion pre(sic)ing this sentence, which runs thus :
If what is to be established under the (sic)inition is cultivation it is difficult to under(sic)id why the Legislature permitted specific (sic)ng before 1898 as a test or as admissible Hence to prove the character of the land, idea of letting is diametrically opposed to idea of cultivation.
(sic) view as to the meaning of the learned ge is also strengthened by other passages in judgment. The learned Judge says at p. (of Mad LJ): (at p. 343 of AIR), that the as regards the question whether certain (sic)s were home-farm or private lands within meaning of S. 3 (10) (b) (i) of the Estates (sic)d Act was correctly laid down in the un(sic)ited decision in C. M. A. No. 311 of 1943 (sic)d) (G), a decision of their Lordships (sic)inaswami Ayyangar and Somayya, JJ. At (sic)97 (of Mad LJ): (at p. 341 of AIR), he (sic) what according to him is the effect of decision in the following sentences:
The definition is not confined to lands (sic)h are known as Khas or Sir and they are (sic) only as examples. If the lands are known these expressions they would be domain or (sic)farm land. But even in the case where expressions are not shown to have been (sic)ed to the lands in dispute it did not (sic)v that by that reason alone they are not or home-farm lands. If the land is (sic)luously cultivated for a period of 12 it is unnecessary to go to Cl. (1) to de(sic)e the character of the land.
The very fact that the definition re(sic)ies and includes in it lands which are (sic) to have been cultivated as private lands clear indication that there may be other which need not satisfy the test of cultivated. The leases in the case established that was a change in the personnel of the, (sic)s from time to time, the rent was vary (sic)d that the tenants had a right only to en(sic)te produce from fruit bearing trees other (sic)lluppai trees but had no right to cut that the illuppai trees exclusively be(sic) to the land-holder 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 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 and the character of the land could be determined and that the decision in the Chellappalli Case, Zamindar of Chellapaili v. Rajalapati Somayya, ILR 39 Mad 341 : (AIR 1915 Mad 750 (2)) (H), 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 makes it clear that the learned Judge refers to direct or personal cultivation when he speaks of the test of cultivation. The case of Lakshmayya v. Vardaraja Apparao Bahadur, ILR 36 Mad 168 (I), which both the learned Judges approved dealt also with the first port of the definition and referring to it, Satyanarayana Rao, J. at p. 90 (of Mad LJ): (at p. 337 of AIR), says thus:
The case definitely falls under the first part of S. 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.
In that case the mode in which the lands were dealt in the survey and also in the village accounts was considered along with the admissions by the ryots made before 1898. But there was no proof that the lands were ever cultivated by the zamindar or that he evinced an intention to resume cultivation on any future date. Speaking of the same decision Viswanath Sastry J., at p. 115 (of Mad LJ): (at p, 353 of AIR), says that
this decision is a clear pronouncement that the character of land is a private land could be established by other modes than by proof of indirect cultivation by the laad holder.
Further at p. 112 (of Mad LJ): (at p. 351 of AIR), he points out that the contention of the appellants was that direct cultivation by the landholder was a primary and indispensable evidentiary fact, his own view being that it is not so.
As I understand the ratio decidendi underlying the majority view in the Full Bench, all that the decision means is that proof of personal or direct cultivation by the Zamindar is not indispensable in order to establish that any land was private land. It does not dispense with the necessity of proving that the land was at some time or other under cultivation either by the zamindar himself or by tenants holding under terminable leases
I am glad to find that my view of the effect of the Full Bench decision coincides with that which has been taken by a Divisional Bench of the Madras High Court consisting of Rajamannar, C.J. and Panchapakesa Ayyar, J. in Gopalaswami Ayyangar v. Athraabhaswamy Devasthanam, 1957-1 Mad LJ 104: (AIR 1958 Mad 80) (J). They observed at p. 108 (of Mad LJ): (at p. 83 of AIR), as follows:
The essence of private land is that it was once cultivated by the landholder himself, except as regards Kudivaram lands acquired by the landholder before 1st November, 1933, for valuable consideration (which is not the case here) regarding which lands he is given some privileges. The suit lands were admittedly wholly uncultivated before they were granted to the appellant on lease and delivered into his possession. So they can never be called home-farm lands or private lands at their inception by any stretch of imagination.
They also referred to the Privy Council case in Naganna Naidu v. Pitchayya, AIR 1929 PC 249 (K), and pointed out that in that decision the Privy Council held that
pasture lands, which had remained uncultivated so far, but which could be reclaimed and brought under cultivation, would, when granted on lease, entitle the lessee to occupancy rights.
In this view, I am not prepared to extend the decision in 1956-2 Mad LJ 595: (AIR 1958 Mad 74) (A), to facts such as are presented by the case before me. Here it is not denied that the land is cultivable. Prima facie, therefore, applying the presumption under the Estates Land Act, it is ryoti land. The fact that the land was used by the landholder for pasturage purposes for his own cattle, seems to make no difference to the character of the land, when it is admitted that it is cultivable land.
It is argued by Mr. Vedantachari for the petitioner that the Assistant Settlement Officer fell into error in considering the claim of the petitioner as covered by S. 12 (b) of the Act, the three sub-clauses of which require proof of cultivation by the zamindar himself or by his own servants or by hired labour. But in my view, even if the claim of the petitioner is put under CI. (i) of sub-s. (a) of that section, there must be proof that the land was cultivated at some time or other either by the zamindar himself or by his servants or hired labour though if need not be with reference to the specified dates mentioned in the three sub-clauses of sub-s. (b) of that Section.
I cannot hold that this land has been used as appurtenant to the adjoining private lands and forms an integral part thereof, because it seems to me that there is considerable difference between a claim in regard to a tank as being appurtenant to cultivable land and a claim to pasture lands as appurtenant thereto In this connection I am prepared to adopt t(sic) meaning given to the word ''appurtenant Babu Lal Vs. Ram Prasad and Others, , which was a decision from which the learned Judges in 1956 Mad LJ 595: (AIR 1958 Mad 74) (A), que(sic) with approval that the phrase ''appurtenant a holding implies a part of the holding'' part and parcel of the holding'' ''or ''formi(sic) part of the holding''. They also considered this context cases dealing with leases for a(sic) cultural purposes and cited the observation Couch, C. J., in Nidhi Krishna Bose v. R Doss Sen, 20 Suth WR 341 (L), which is follows :
Where land is let for cultivation, a(sic) there is a tank upon it, the tank would go w(sic) the land: and if there was a right of occupationa in the land, there would be a right of oc(sic)pancy in the tank as appurtenant to the land In the result they held that "the appurtenant tank was part of the parcel of lands all which together constituted the private lands the petitioner". I do not think that the (sic)soning would be applicable to a claim in (sic)gard to a pasture land which cannot, in opinion, be held, to have formed an inte(sic) part of the other private lands.
The principle of ''appurtenance'' cannot my opinion, apply to the case of land w(sic) was cultivable but has never been cultivated Nor do I think that the other ground u(sic) which the learned Judges based their dec(sic) that the lands on which the tanks stood held as ryoti by the landholder for their ex(sic)sive use for agricultural purposes can be yoked in support of the petitioner''s conten(sic)
It is true that I applied the dec(sic) of the learned Judges in W. P. Nos. 162 and 163 of 1955 (Andh) (M). But the facts t(sic) in were slightly different. In any case, not prepared to extend that decision to a(sic) to a claim such as I am dealing in the pr(sic) case.
In the result, the order of the E(sic) Abolition Tribunal will be quashed in sa(sic) as it relates to items 16, 23 and 30. C(sic) wise the petition will stand dismissed. Will be no order as to costs.