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Judgment
Rajagopalan, J.—The Petitioner was the holder of the zamindari estate, known as the Pudur Zamin in Tirunelveli district. Under the
provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act (Act XXVI of 1948) (hereinafter referred to as the Act) that
estate vested in the Government with effect from 3rd January 1951, the notified date. Vagaikulam was one of the villages included in that estate. It
was common ground that it was an uninhabited village, though, for how long it had remained uninhabited, there was no evidence to show, It was
also common ground that the entire extent of the village of about seventy-one acres forty-two cents always belonged to the Petitioner. No ryot
held any land in that village. Included in this extent of 71-42 acres was a tank (kanmoi) which measured 32-33 acres. The ayacut of that tank
measured 37-18 acres, and the Petitioner cultivated the whole of that ayacut as part of the private lands of the landholder in that estate.
After the estate had been abolished under the Act, the Petitioner applied to the Additional Assistant Settlement Officer for a ryotwari patta for
the entire extent of the lands in Vagaikulam including the areas occupied by the tank. The Additional Assistant Settlement Officer rejected the claim
for the tank as well as for some of the other plots of land. The Petitioner appealed against that decision to the Estates Abolition Tribunal. In effect,
the Tribunal allowed the claim of the Petitioner for a ryotwari patta for all the lands in Vagaikulam other than the tank. The Tribunal rejected the
claim of the Petitioner for a ryotwari patta for the area occupied by the tank.
The Petitioner applied under Article 226 of the Constitution for the issue of a writ of certiorari to set aside the order of the Tribunal.
The Tribunal held that the claim of the Petitioner-we are now concerned only with the claim for a ryotwari patta for the area of the tank-fell
neither under clause (a) or clause (b) of Section 12 of the Act. The learned Counsel for the Petitioner did not rest the claim on Section 12(b)
before us. But he challenged the validity and the correctness of the order of the Tribunal that the Petitioner''s claim fell outside the scope of Section
12(a). The finding of the Tribunal on that point was :
The first question is if these lands are pannai or private lands u/s 3(10)(a) of Act I of 1908. There is no evidence that these lands were dealt with
or enjoyed or treated as pannai lands prior to 1908; nor is there any evidence of direct and personal cultivation of these lands for a continuous
period of twelve years immediately preceding the commencement of Act I of 1908; nor is there any evidence that the kanmoi was constructed by
the Appellant or her ancestor. There is, therefore, no evidence that these lands are Appellant''s pannai lands as contemplated by Section 3(10)(a)
and she will not be entitled to a ryotwari patta for them u/s 12(a) of Act XXVI of 1948.
Section 12(a) of the Act runs :
In the case of a zamindari estate, the landholder shall, with effect on and from the notified date, be 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 Section 3,
clause 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.
It was conceded that no record of rights was ever prepared for Vagaikulam or for the estate. So the question, did the tank belong to the
Petitioner as a private land, had to be answered only with reference to the requirements of Section 3(10)(a) of the Estates Land Act.
Section 3(10)(a) of the Estates Land Act runs :
''Private land''- in the case of an estate � means the domain or homefarm 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.
In the rest of this judgment we shall confine the use of the expression ''private land'' to land that falls within the scope of Section 3(10)(a) of the
Estates Land Act.
What were the tests to apply in deciding whether a given piece of land was private land within the scope of Section 3(10)(a) of the Estates
Land Act was discussed and settled by a Full Bench of this Court in Periannan v. A.S. Amman Koil J.L.R. (1962) Mad. 741 (F.B.). In that case,
however, there was no occasion to consider whether a tank with its bed and bunds could under any circumstances be viewed as a private land as
defined by Section 3(10)(a) of the Estates Land Act. We shall consider later to what extent the principles laid in that case can be applied to the
facts of this case.
That a tank is ''land'' and that the expression ''land covers also the water that is stored over the land need admit of no doubt (see Wharton''s
Law Lexicon, pages 903 and 488). That the full proprietorship of the tank in Vagaikulaim, which lay within the ambit of the zamindari, always
vested in the Petitioner and her predecessors-in-interest admitted of no doubt either. It was common ground that at no time did any one other than
the landholder claim or exercise any rights over the tank or the water drawn there from. The Tribunal pointed out that there was no evidence to
show that it was the landholder that had constructed the tank in question. But considering the facts set out above, it would appear only to be a
reasonable inference that the tank in question, which was obviously intended to irrigate and actually irrigated exclusively the private lands of the
landholder was constructed by the landholder. The Tribunal also pointed out that there was no evidence to show that the tank was constructed on
what had been a private land. None the less, the question remains to be answered, was the tank a part of the private lands the Petitioner held in the
village before the estate vested in the Government under the Act (Act XXVI of 1948). There can be no conclusive inference either way that it was
private land or that it was not private land from the factum of the Petitioner''s full proprietorship of the tank as a piece of land. Nor can the
circumstance that at no time could the tank have been ryoti land, help to answer the question at issue. The definition of ''ryoti laud'' in Section 3(16)
of the Estates Land Act should itself suffice to reject any plea that the tank was ryoti land. Such a plea, it should be remembered, never arose for
consideration. Nonetheless, that it was not ryoti land is obviously rot enough to establish that it was private land.
One marked feature of the definition of private land and ryoti land in the Estates Land Act should, however, be noticed at this stage. Section
3(16)(a), specifically excludes beds and bunds of tank from the definition of ryoti land. There is no such express exclusion in Section 3(10)(a) of
the Estates Land Act which defines ''private land''. No exclusion could be implied either and the exclusion enacted by Section 3(16)(a) cannot be
imported into the definition in Section 3(10)(a) of the Estates Land Act. There is no scope either to bring the tank in question within the scope of
Section 20 or Section 20-A of the Estates Land Act. It never served any communal purpose. It was exclusively owned and used by the
landholder. No one else owned any of the land in the village Vagaikulam, which itself was uninhabited.
We come back to the question, can a piece of land owned by the landholder and used exclusively as a tank to irrigate the private lands of a
landholder be brought within the scope of the definition of private land in Section 3(10)(a) of the Estates Land Act. Unless that statutory test is
satisfied, a claim to the statutory right conferred on the quondam land holder by Section 12(a) of Act XXVI of 1948 cannot be upheld.
The right conferred by Section 12(a) of the Act constitutes a statutory grant, a right to ryotwari patta for what had been the private lands of the
landholder in an estate. The learned Counsel for the Petitioner urged that whatever was appurtenant to that right also passed to the grantee under
that statutory grant. He contended that the right to own and use the tank was appurtenant to the right to own and use the cultivated private lands,
while both the tank and the cultivated lands lay in an estate as defined by the Estates Land Act and that, therefore, both the rights vested in the
grantee of the statutory grant u/s 12(a) of Act XXVI of 1948. The learned Counsel referred to the observations of their Lordships of the Privy
Council in Secretary of State for India v. Subbarayudu ILR (1931) Mad. 268, 280 (P.C.). After explaining the principle laid down in the Urlam
Case ILR (1917) Mad. 886 (P.C.),
Viscount Dunedin observed :
Of course, the permanent settlement was dealing with, the Government right to a payment which represented and replaced the melvaram of more
ancient times, but the test is the same as the test which would be applied to a conveyance. In a conveyance, you ask what passed. In the case of
the permanent settlement, you ask what was the extent of the property that was settled. In the Urlam Case ILR (1917) Mad. 886 (P.C.), the
water rights in question passed because they were existing water rights enjoyed by way of easement at the time of the settlement. Here what
passed was the property and the property, being riparian, had inherent in it, without special mention, the riparian rights.
The same principle was applied in Secretary of State for India v. Thinnappa Chettiar ILR (1944) Mad. 227 (P.C.) : See : The observations at
pages 238 to 240. The learned Counsel for the Petitioner urged that the test should be the same whether it was a Crown grant, like that embodied
in a sanad issued after the permanent settlement, or a statutory grant. That the test should be the same in deciding what was it that was conveyed
under a grant appears to us to be a well-founded argument.
Was the tank truly appurtenant to the cultivated private lands of the Petitioner in Vagaikulam is the next question.
The Oxford English Dictionary explained ''appurtenance'' as follows :-
(1) (Law and general) A thing that belongs to another, a ''belonging ''; a minor property right, or privilege, belonging to another more important,
and passing in possession with it; an appendage.
(2) A thing which naturally and fitly forms a subordinate part of, or belongs to, a whole system; a contributory adjunct, an accessory.
The entire ayacut of the tank consisted of the cultivated priyate lands of the Petitioner. Those lands could not be irrigated without the water of
the tank. It could certainly be claimed that the ayacut and the tank together constituted a single unit for agricultural purposes; and each formed a
sub ordinate part of and belonged to the whole system. The tank was certainly accessory or adjunct to the ayacut. Unity of ownership of both
parts was there and so was the unity of enjoyment of both the tank and the ayacut. If the expression '' appurtenance '' is given its normal meaning
as disclosed by the dictionary, the tank in question was an appurtenance of the ayacut. That the entire ayacut formed the private lands of the
Petitioner, as defined by Section 3(10)(a) of the Estates Land Act, was never in dispute. The tank was an appurtenance of those private lands.
The expressions, appurtenant and appurtenance, have also been interpreted by Courts both in England and in India. A fairly full discussion of
the case law on the subject can be found in the decision of a Full Bench of the Allahabad High Court in Babu Lal v. Raw Prasad ILR (1939) All.
67, 73 (F.B.). Bennett, Ag. C.J., referred to the passage in Stroud''s Judicial Dictionary, second edition (1903), page 109 :
But the word ''appurtenant'' may be used in a secondary sense as equivalent to such a phrase as '' usually enjoyed with'' and observed :
On this passage a view has been taken that this secondary sense is not a right of easement and that the phrase ''appurtenant to a holding'' implies a
part of the holding ''or part and parcel of the holding'' or ''forming part of the holding''.
The learned Acting Chief Justice then proceeded to examine the scope of Roe v. Siddons (1888) 22 Q.B.D. 224, on which Wharton in his
Law Lexicon based the secondary meaning ''usually enjoyed with''. Iqbal Ahmad J., with whom Harries J., agreed observed at page 83 :
I am clear that the word ''appurtenant'' in the phrase ''appurtenant to a holding'' has been used in this country in the secondary sense noted above
and not in the sense of a right of easement.
Again he observed:
It follows from what has been observed above that the phrase ''appurtenant'' to an agricultural holding means something which is adjunct to or an
integral part of the holding.
We shall confine ourselves to the question, whether a tank which irrigates an ayacut under it is an appurtenance of that parcel of lands which
constitutes the ayacut when both are owned by and are in the possession of the same landholder of an estate.
In Nidhi Krishna Bose v. Ram Doss Sen (1873) 20 W.R. 341, Couch C.J., observed:
Where land is let for cultivation, and there is a tank upon it, the tank would go with the land; and if there was a right of occupancy in the land, there
would be a right of occupancy in the tank as appurtenant to the land.
On the facts of that case, however, the learned Chief Justice found that the tank was the principal subject of the lease and that, therefore, the
lessee did not acquire a right of occu pancy. The same learned Judges, Couch C.J., and Gloves J., held in Siboo Jelya v. Gopal Chunder
Chowdhry and Anr. (1873) 19 W.R. 200:
This tank appears to be used only for the preservation and rearing of fish. It does not appear to have formed part of any grant of land, or that it can
in any way be considered as appurtenant to any land held by this Defendant. The only thing occupied appears to be the tank itself.
The claim for occupancy right was negatived.
Both these decisions were considered by a Division Bench in Surendra Kumar v. Chandratara Nath (2), and Hitter J., observed:
. . . The true test as to whether the lease is for agricul tural purposes or not is to see whether the primary object was the lease of the tank or lease
of the land surrounding it for purposes of agriculture with tank within it.
Graham J., recorded:
. . . if a portion of the demised area is used for agricultural purposes, that will determine the character of the lease as a whole.
The principles laid down in Nidhi Krishna Bose v. Ram Doss Sen (1873) 20 W.R. 341, and Surendra Kumar v. Chandratara Natty AIR
1931 Cal. 136, were considered again by Mitter J., in Bir Bikram Kishore v. Amanaddin (1935) 40 C.W.N. 156. On a construction of the lease
in question in that case the learned Judge came to the conclusion that the primary object of the letting was a non-agricultural purpose.
Applying the principle laid down by Couch C.J., in Nidhi Krishna Bose v. Ram Doss Sen (1873) 20 W.R. 341, with which we respectfully
agree and adapting the language of the learned Chief Justice to the facts of this case, we would say where the parcel of lands was held by the
Petitioner for cultivation and there was a tank upon it, the tank would go with the land and if there was a right to a patta for the land there would be
a right to a patta for the tank as appurtenant to the land. Or if we can put it in the language of Graham J., in Surendra Kumar v. Chandratara Nath
AIR 1931 Cal. 136, if a portion of the demised area (the grant in this case being u/s 12(a) of Act XXVI of 1948) is used for agricultural purposes,
that will determine the character of the grant as a whole.
What Section 13(a) of the Act granted was a right to a ryotwari patta for private lands, as that expression has been defined by Section 3(10)
(a) of the Estates Land Act. If the tank had been constructed 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 of the land before the tank was cons tructed, if
the tank was always held and enjoyed by the owner of a parcel of private lands as appurtenant to those lands, Section 12(a) of the Act, in our
opinion, would confer a statutory right to a ryotwari patta for the tank also. As we have already stated, the tank and its ayacut together constituted
one unit, owned and enjoyed by the same person, the landholder, for agricultural purposes. The rights in what was appurtenant to the private lands
passed with the right in the private lauds granted by the statute u/s 12(a) of the Act.
The matter may be looked at from another angle. The Petitioner could claim that, even without full recourse to the principle of appurtenance
which we have discussed above, the tank in question was part of his private lands, as that expression has been defined by Section 3(10)(a) of the
Estates Land Act. We have already pointed out that appurtenance by itself connotes that what is claimed as appurtenant is part of a whole. The
appurtenant tank was part of the parcel of lands, all of which together constituted the private lands of the Petitioner. That the tank was not
cultivated while the rest of the lands was cultivated by the Petitioner may not affect the determination of the question at issue, could the tank by
itself be viewed in the circumstances of this case as a piece of private land within the meaning of Section 3(10)(a) of the Estates Land Act.
We have already pointed out that the definition in Section 3(10)(a) of the Estates Land Act does not expressly or even impliedly exclude the
land which is in use as a tank, used exclusively to irrigate the cultivated private lands of the landholder. The learned Government Pleader urged that
actual cultivation should be the test in deciding whether a piece of land satisfied the statutory requirements of Section 3(10)(a) of the Estates Land
Act. We are unable to accept this contention. The definition in Section 3(10)(a) of the Estates Land Act is an inclusive definition and the second
limb of that definition which includes all land proved to have been cultivated as private land, does not abrogate the first limb of Section 3(10)(a).
''Private land'' in the case of an estate means the domain or home-farm land of the landholder by whatever designation known. . . Absence of
actual cultivation may not be sufficient to negative the claim that a piece of uncultivated land is nonetheless private land. There is little substance in
the plea of the learned Government Pleader that the bed of a tank as such is uncultivable, in the sense that it is impossible to cultivate it. Neither
nature nor the statute made it impossible for the Petitioner to cultivate the bed of the tank in Vagaikulam if she had chosen to do so at any time.
That actual cultivation, continuous or intermittent, was not the only test to apply in deciding whether a given piece of land was within the scope of
Section 3(10)(a) of the Estates Land Act was made clear in Periannan v. A.S. Amman Koil ILR (1952) Mad. 741 (F.B.). Of the tests formulated
by the learned Judges in that case, items 3 and 6 ran :
If there is no proof of cultivation for a continuous period of twelve 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.
The essence of private land is continuous course of conduct on the part of the landholder asserting and acting on the footing that he is the
absolute owner thereof and the recognition and acceptance by the tenants that the landholder has absolute right in the land.
The land in question, that is, the tank was never ryoti land. It is true it was not proved to have been cultivated at any time even intermittently.
Nonetheless, the continuous course of conduct of the landholder was to treat the tank as a piece of land in which the landholder had absolute rights
and to use the land (tank) only for his agricultural purposes. Agriculture has obviously a larger connotation than cultivation. Whether or not it
exhausts conception of domain or private lands, that the lands were held as of right by the land holder for his exclusive agricultural purposes
should, in our opinion, suffice to bring those lands within the scope of Section 3(10)(a) of the Estates Land Act.
A strict application of the tests 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
Section 3(10)(a) of the Estates Land Act for such exclusion. The area of the water-spread could be of no consequence, when neither 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 Section
3(10)(a) of the Estates Land Act.
The distinction between the land in use as a tank held as appurtenant to cultivated private land and that land (tank) held for the exclusive
agricultural purposes of the landholder may be fine drawn, but nonetheless it is perceptible. In either case, it would, in our opinion, satisfy the
statutory definition of private land in Section 3(10)(a) of the Estates Land Act. Despite its continuous use as tank, if the land came within the scope
of the definition of private land in Section 3(10)(a) of the Estates Land Act, the landholder would be entitled to a ryotwari patta for that land (tank)
also u/s 12(a) of Act XXVI of 1948.
The Tribunal, in our opinion, misconceived the scope of Section 3(10)(a) of the Estates Land Act and Section 12(a) of Act XXVI of 1948
when it in effect applied the test of cultivation in the past as the only and conclusive test. It really amounts to a failure to exercise jurisdiction to
decide the issue before it after taking into account all the relevant factors. The order of the Tribunal has, therefore, to be set aside by the issue of a
writ of certiorari. That, in effect, means that the Tribunal will have to dispose of the appeal afresh in accordance with law and in the light of the
observations in this judgment.
The rule is made absolute and the petition is allowed. There will be no order as to costs.