Civil Appeal Nos 152 153 155156 158 160 and 162 of 1972
From the Judgment and Order dated 2011
1970 of the Andhra Pradesh High Court in WA No 616 of 1969
103 of 1970 472 397 of 1970474 of 1970473 of 197099of 1970 and WP No 4947 of 1968
G Venkatesh Rao and AV Rangam for the Appellants
C Sitaramiah B Parthasarthi ADN Rao and A Subba Rao the Respondents
The Judgment of the Court was delivered by KN SAIKIA J
These seven appeals by certificate under Article 1331a of the Constitution of India are from the common Judgment of the Andhra Pradesh High Court dated 20111970 in several appeals and writ petitions
The appel lants are the tenants and respondents are the landholders or their legal representatives as the case may be in respect of the tenanted agricultural lands of the hitherto inam estates of Kukunuru and Veerabhadrapuram villages in the West Godavari District of Andhra Pradesh
After coming into force of the Andhra Pradesh Andhra Area Estates Abolition and Conversion into Ryotwari Act 1948 AP Act 25 of 1948 hereinafter referred to as the Estates Abolition Act  the inam estates were abolished and the land stood vested in the Government free of all encumbrances
The pre existing right title and interest of erstwhile landholders ceased except to claim ryotwari patta
The tenants were not liable to be evicted pending the proceedings for issuance of ryotwari patta
The respondents landholders hereinafter referred to as the landholders  claimed that the lands in question were either under their personal cultivation or they intended to resume those for private cultivation and as such those were their private lands and they were entitled to ryotwari pattas
The appellants tenants on the contrary claimed that those were not private lands of the landholders as those were neither under their personal cultivation nor they intended to resume those for personal cultivation but those were in possession of the tenants who were entitled to ryotwari pattas after the abolition of the estates
The Settlement Officer of Anakappalla after making inquiry under section 25 of the Estates Abolition Act held in all the cases in these appeals except one out of which WP No 6951968 arose that the landholders failed to establish that they were personally cultivating the lands or they intended to resume the lands for personal cultivation and as such rejected their claims except in the aforesaid case
The landholders  appeals therefrom to the Estates Abolition Tribunal were 398 allowed relying on
and applying the tests formulated in Periannan vs Amman Kovil AIR 1952 Mad 323 FB and holding that in all cases the landholders were entitled to the grant of ryotwari pattas as the lands were private lands within the meaning of section 310bi of the Andhra Pradesh
Andhra Area Estates Land Act 1908 AP Act I of 1908 hereinaf ter referred to as the Estates Land Act  and that the tenants were not entitled to ryotwari pattas in respect of the same
The appellants tenants moved writ petitions before the High Court of Andhra Pradesh impugning the deci sion of the Estates Abolition Tribunal
O Chinnappa Reddy J as he then was sitting singly after discussing the case law on the question by a common Judgment in nine writ petitions observing that it was common ground before the Subordinate Tribunal as well as before him that the nature of the lands at the inception whether ryoti or private was not known and that the burden of establishing that the lands were private lands was on the landholders and that it was also common ground before him that apart from the fact that there were occasional changes of tenants and that the lands were sometimes leased under short term leases there were no other circumstances indicating that the landholders intended to resume cultivation of the lands held that after the pronouncement of this Court in Chidambaraam Chettiar vs Santhanaramaswamy Odayar   the decision of the Full Bench of the Madras High Court in Periannan vs Amman Kovil supra could no longer be considered good law and that the decision in Jagdeesarn Pillai vs Kupparnreal ILR and in Perish Priest of Karayar vs Thiaga raja Swami Devasthanam App
176 178 and 493 of 1946 once more held the field
It was also observed that since in all the cases before him the only mode of proof attempted by the land holders was the grant of short term leases and change of tenants and rent it must be held that the lands were not established to be private lands and that no at tempt was made to prove personal cultivation or any inten tion to resume personal cultivation
As the Estates Aboli tion Tribunal applied the tests laid down by the Madras Full Bench in Periannan s case supra and since Periannan s case was no longer good law the writ petitions had to be allowed and the impugned orders of the Tribunal quashed in eight writ petitions
In Writ Petition No 695 of 1968 the orders of the Assistant Settlement Officer was quashed
The landholders preferred writ appeals therefrom
Two Writ Petitions namely Writ Petition No 4947 of 1968 and Writ Petition No 310 of 1968 were also taken up for hearing analogously
The Division Bench observing that the main question for consideration in the appeals was whether the decision of the Full Bench in Periannan s 399 case was good law and it turned on the effect of some impor tant precedents and a review of the principles enunciated by them and after discussing the case law took the view that in the first place the e observations of this Court in Chidambaram s case were in accord with the rule in Perian nan s case and secondly even if some of the dicta in the Judgment of this Court in Chidambaram suggested a contrary principle the effect of the entire observations did not support the contention that Periannan s case had been im pliedly overruled by this Court
The writ appeals were accordingly allowed except Writ Appeal No 616 of 1969 which was dismissed
Writ Petition No 4947 of was allowed and Writ Petition No 310 of 1968 was dismissed taking the same view
Hence these appeals by certificate
Mr AV Rangam the learned counsel for the appellants submits that the learned Single Judge having found as fact that the landholders had failed to establish that the lands were their private lands as those were neither under their personal cultivation nor they were intended to be resumed for personal cultivation and applying the rule in Chidamba ram s case the learned Single Judge having held that the lands were not private lands the Division Bench erred in holding to the contrary and that the learned Single Judge correctly held that Periannan s case was no longer good law as in Chidambaram Chettiar vs Santhanaramaswamy Odayar supra it was held that the definition of private land in section 310 of the Estates Land Act of 1908 read as a whole indicated clearly that the ordinary test for private land was the test of retention by the landholder for his own personal use and cultivation by him or under his personal supervision though they might be let on short leases it was not the intention or the scheme of the Act to treat as private those lands with reference to which the only pecul iarity was the fact that the landholder owned both the varams in the land and had been letting them out on short leases the Division Bench erred in holding that Periannan s test were still applicable
Mr C Sitaramiah the learned counsel for the respondents
submits that the correct tests for determining what was private land had been laid down in Periannan s case which were not different from those of Chidambaram s case and the Division Bench correctly applied those tests to find that the lands were private lands of the landholders and that in Chidambaram s case the appellant had not adduced sufficient evidence to rebut the presumption under section 185 of the Estates Land Act that the lands con cerned in the inam village were not ryoti lands as defined in section 316 as the Tanjore Palace Estate was held to be an estate  within the meaning of section 32d of the Estates Land Act and the widows of the Raja enjoyed both the varams but were not personally cultivating 400 them
In the instant case according to counsel the rights of the landholders were not the same as those of the widows of the Raja of Tanjore after the relinquishment of the landed properties by the Government which amounted to a re grant
The Division Bench pointed out several misconceptions in some precedents for which they could not be said to have laid down the correct law
Counsel further submits that in Chidambaram s case the grant of Orathur Padugai village was of the whole village and a named one and therefore it was an Estate within the meaning of section 32d of Estates Land Act and the courts having concurrently found that the lands in dispute were ryoti lands and not private lands the landholders claiming that the lands were private lands had to show that they converted the ryoti lands into private lands which they could prove only by showing their personal cultivation and they failed to prove it and that case was therefore distinguishable on facts and could not be held to have overruled Periannan s tests
The question to be decided in these appeals therefore is whether in view of this Court s decision in Chidamba rarn s case the decision in Periannan s case is still good law and whether on application of the correct legal tests the lands in dispute are private lands of the landholders entitling them to ryotwari pattas in respect thereof or those are ryoti lands in possession of the appellants as tenants of the landholders and as such they are entitled to ryotwari pattas thereof
In other words whether the appellants or the respondents are entitled to ryotwari pattas under the Abolition of Estates Act
To appreciate the rival submissions reference to the relevant provisions of the Estates Land Act and the Estates Abolition Act is necessary and to understand the relevant provisions of the two Acts a little knowledge of development of the land system and legislation in the area will be helpful
The Estates Land Act amended and declared the law relat ing to the holding on land in estated in the Andhra Area of the State of Andhra Pradesh which includes the West Godavari District to which the two inam villages concerned in this appeal belong
It appears the scheme of the Estates Land Act divides cultivable lands in the two categories namely 1 private lands and 2 ryoti lands
The Act relates to the holding of land in estates
As defined in section 32 estate  means a any permanently settled estate or temporarily settled zamindari 401 b any portion of such permanently settled estate or tempo rarily settled zamindari which is separately registered in the office of the Collector c any unsettled palaiyam or jagir d i any inam village or ii any hamlet or khandriga in an inam village of which the grant as an inam has been made confirmed or recognized by the Government notwithstanding that subse quent to the grant such village hamlet or khandriga has been partitioned among the grantees or the successors intitle of the grantee or grantees
Explanation 1 Where a grant as an inam is expressed to be of a named village hamlet of khandriga in an inam village the area which forms the subject matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village hamlet or khandriga of that name which have already been granted on service or other tenure or been reserved for communal pur poses
Explanation 1 A An inam village hamlet or kandriga in an inam village granted in inam shall be deemed to be an estate even though it was confirmed or recognized on dif ferent dates or by different title deeds or in favour of different persons
Explanation 1 B If any hamlet or khandriga granted as inam was at any time designated as an inam village of as a part thereof in the revenue accounts it shall for purposes of item ii or sub clause d be treated as being a hamlet or khandriga of an inam village notwithstanding that subse quently it has come to be designated in the Revenue ac counts as a ryotwari or zamindari village or part thereof
Explanation 2 Where an inam village is resumed by the State Government it shall cease to be an estate but if any village so resumed is subsequently regranted by the Government as an inam it shall from the date of such re grant be regarded as an estate
402 Explanation 3 Where a portion of an inam village is resumed by the Government such portion shall cease to be part of the estate but the rest of the village shall be deemed to be an inam village for the purposes of this sub clause
If the portion so resumed or any part thereof is subsequently regranted by the Government as an inam such portion or part shall from the date of such re grant
be regarded as forming part of the inam village for the purpose of this sub clause e any portion consisting of one or more villages of any of the estates specified above in clauses a b and c which is held on a permanent under tenure 
 It appears that the original definition had undergone several amendments
Clause d and Explanation I A were substituted by section 2i of Act XXXV of 1956
The Explanation 1 was inserted by section 21 of Act 1I of 1945
Explanation 1 and 1 B were amended by section 2ii of Act XXXV of 1956 and Explanation 2 and 3 are the renumbered old Explana tions 1 and 2 inserted by section 21 of Act H of 1945
The respondents claim to have been landholders 
As defined in section 35 Landholder  means a person owning an estate or part there of and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor in title or of any order of a competent Court or of any provision of law
Where there is a dispute between two or more persons as to which of them is the landholder for all or any of the purposes of this Act or between two or more joint landholders as to which of them is entitled to proceed and be dealt with as such landholder the person who shall be deemed to be the landholder for such purposes shall be the person whom the Collector subject to any decree or order of a competent Civil Court may recognize or nominate as such landholder in accordance with rules to be flamed by the State Government in this behalf
 Both Private land and ryoti land have been defined in the Act
As 403 defined in section 310 private land means a in the case of an estate within the meaning of sub clauses a b c or e of clause 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 b in the case of an estate within the meaning of subclause d of clause 2 means i the domain or home farm land of the landholders by whatever designation known such as kambattam khas sir or pannai or ii land which is proved to have been cultivated as private land by the landholder himself by his own servants or by hired stock for a continuous period of twelve years immedi ately before the first day of July 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 proved to have been cultivated 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 first day of November 1933 provided that the landholder has retained the kudiva ram ever since and has not converted the land into ryoti land or iv land the entire kudivaram in which was acquired by the landholder before the first day of November 1933 for valu able consideration from a person owning the kudivaram but not the melvaram provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land and provided further that where the kudivaram was 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 cultivated by the landholder him 404 self by his own servants or by hired labour with his own or hired stock
for a continuous period of twelve years since the acquisition of the land and before the commence ment of the Andhra Pradesh Andhra Area Estates land Third Amendment Act 1936
 As defined in section 316 Ryoti land  means cultivable land in an estate other than private land but does not include a beds and bunds of tanks and of supply drainage surplus of irrigation channels b threshing floor catfie stands village sites and other lands situated in any estate which are set apart for the common use of the villagers c land granted on service tenure either free of rent or on favourable 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
Village is defined in section 319 Village  means any local area situated in or constituting an estate which is designated as a village in the revenue accounts and for which the revenue accounts are separately maintained by one or more karnams or which is now recognized by the State Government or may hereafter be by the State Government for the purposes of this Act to be a village and includes any hamlet or hamlets which may be attached there to The Estates Abolition Act provided for the repeal of the permanent settlement the acquisition of the landholders in permanent estate and in certain other estates in the State of Andhra Pradesh and the introduction of the ryotwari settlement in such estates
It extended to the whole of the State of Andhra Pradesh and applied to all estates as de fined in section 3 clause 2 of the Estates Land Act
This Act in section 23 defined estate  to mean a zamindari or an under tenure or an inam estate
As defined in section 27 inam estate  means an estate within the meaning of section 3 clause 2d of the Estates Land Act
405 The statement of objects and reasons of the Estates Abolition Act speaks of acute discontent among estate ryots and good deal of agitation under zamindari administration which was considered to have outlived its usefulness and needed abolition
It also mentioned about the election manifesto issued by the Working Committee of the Congress Party in December 1945 urging reform of the land system and that such reform involved the removal of all intermediaries between the peasant and the State and that the rights of such intermediaries should be abolished on payment of equi table compensation
In February 1947 the Madras Legislative Council passed a resolution accepting the general principle of the abolition of the zamindari system and recommending to the Government that legislation for the purpose be undertak en and brought forward at an early date
The Government accordingly proposed to abolish the zamindari system by acquiring all estates governed by the Estates Land Act including whole inam villages and converting them into ryotwari paying equitable compensation to the several per sons having an interest in the estates
The Estates Abolition Act has also undergone a number of amendments
The Amendment Act 1 of 1950 inserted section 54a section 54b dealing with compensation
The Amendment Act XVII of 1951 clarified certain positions in regard to Inam vil lages
Section 171 of the Estates Abolition Act provided for the grant of ryotwari patta to a person holding any land granted on service tenure failing under section 316c of the Estates Land Act irrespective of whether such land consisted of only a portion of a village or of one or more villages
The reference to one or more villages in the section had given rise to the misapprehension that it applied also to an entire village granted on service tenure
But the intention was that the provisions of the section should not apply to such a village and clause 3 of the Act gave effect to it and clause 4 was consequential of clause 3
The provisions of the Estates Abolition Act were brought into force in certain inam villages on the assumption that they were under tenure estates
But it had been subsequently found that the assump tion was not correct
It was therefore necessary to withdraw the operation of the Act from those villages and the Amend ment Act provided for such withdrawal
The Amendment Act XXI of 1956 dealt with annual payments to any religious educa tional or charitable institutions
The Amendment Act XVII of 1957 made provisions for the abolition and conversion in the ryotwari tenure of certain categories of inams under the Estates Abolition Act
Under section 32d of the Estates Land Act as originally enactedwhole inam villages in respect of which the original grant conferred only the melvaram right on a person not owning the kudivaram thereof alone 406 became estates 
By virtue of Third Amendment of the Es tates Land Act whole inam villages m which both melvaram and kudivaram rights vested in the inamdars also became estates
The provisions of the Madras Estates Land Reduction of Rent Act 1947 Madras Act XXX of 1947 were applicable to both these categories of whole inam villages
But the provi sions of the Estates Abolition Act were not applicable to the whole inam villages which became estates under the Madras Estates Land Third Amendment Act 1936 ie those in which the inamdars possessed both the melvaram and kudi varam rights
Under section 2 of the Estates Land Amendment Act 1946 section 32d of the Estates Land Act was further amended so as to include within the definition of estate  hamlets and khandrigas of inam villages which were previously held to be not estates
Provision was also made so as to bring within its purview only such of the inam hamlets and inam khandrigas of inam villages wherein the melvaram rights alone vest in the inamdars
Thus the only categories of inam estates which now remained outside the purview of the Estates Abolition Act were a the whole inam village which became estate by virtue of the Madras Act XVIII of 1936 and b inam hamlets and khandrigas of inam villages which became estates by virtue of the Estates Land Andhra Amend ment Act 1956 but in respect of which both melvaram and kudivaram rights vested in the inamdars
The Amendment Act XX of 1960 dealt with all post 1936 inam villages which were also brought within the purview of the Estates Abolition Act by the Amendment Act XVIII of 1957
The Andhra Pradesh Andhra Area Inams Abolition and Conversion into Ryotwari Act 1956 Act XXXVII of 1956 provided for conversion of all inam lands other than estates into ryotwari tenure
The Act extended to the whole of the Andhra State but applied only to lands described in clause c of section 2
Section 2c defined inam land to mean any land in respect of which the grant in inam has been made confirmed or recognised by the Government Act 3 of 1964 inserted thereafter the words land includes any land in the merged territory of Banagana palle in respect of which the grant in inam has been made confirmed or recognised by any former Ruler of the territo ry but does not include an inam constituting an estate under the Estates Land Act
Section 2d defines an Inam Village to mean a village designated as such in the revenue accounts of the Government and includes a village so designated immediately before it was notified and taken over by the Government under the Estates Abolition Act
Thus to find out whether a village was designated as inam village or not prima facie the revenue accounts of the Government which 407 were there at the time of the Inam Abolition Act came into force had to be looked into
If it was so shown no further proof was necessary
Only when the entries in the revenue accounts were ambiguous and it was not possible to come to a definite conclusion it might be necessary to consider other relevant evidence which was admissible under the evidence Act
Section 2 A of this Act said Notwithstanding anything contained in this Act all communal lands and poramookes grazing lands waste lands
forest lands mines and quer ries tanks tank beds and irrigation works streams and rivers fisheries and ferries in the inam lands shall stand transferred to the Government and vest in them free of all encumbrances
 Section 3 of the Act prescribed the procedure for deter mination of inam lands and provided for giving opportunity to interested persons
As we have already noted the High Court found that the basis of the decision of the Tribunal in all the cases was that sometimes the leases were for short terms with occa sional change of tenants and rents payable by them and that the nature of the lands whether ryoti or private was not known and that it was the burden of the landholder to prove that the lands were private lands and that there was no other circumstances to show that the landholders intended to resume cultivation of the same
It was conceded before the Single Bench by the learned Advocate for the petitioners that if the tests formulated by the Full Bench in Perian nan s case applied to the facts of these cases the land must be held to be private land and the landholders must be considered to have established their claim to grant of ryotwari pattas
The Division Bench did not change this position in view of the provisions of Section 185 of the Estates Land Act as amended from time to time
The original section said 185
When in any suit or proceeding it becomes necessary to determine whether any land is landholder s private land regard shall be had to local custom and to the question whether the land was before the first day of July 1898 specifically let as private land and to any other evidence that may be produced but the land shall be presumed not to be private land untill the contrary is shown Provided that all land which is proved to have been cultivated as private land by the landholder himself by his own servants 408 or by hired labour with his own or hired stock for twelve years immediately before the commencement of this Act shall be deemed to be the landholder s private land
 Section 185 was amended in 1934 1936 and 1955 whereafter it as follows 185
When in any suit or proceeding it becomes necessary to determine whether any land is the landholder s private land regard shall be had 1 to local custom 2 in the case of an estate within the meaning of subclause a b c or c of clause 2 of section 3 to the ques tion whether the land was before the first day of July 1898 specifically let as private land and 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 Provided further that in the case of an estate within the meaning of sub clause d of clause 2 of sec tion 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 has no right of occupancy or that his right of occupancy is limited or restricted in any manner shall not be admissible in evidence for the purpose of proving that the land concerned was private land at the commencement of the tenancy and ii any such expression in a lease patta or the like executed or issued before the first day of July 1918 shall not by itself be sufficient for the purpose of proving that the land concerned was private land at the commencement of the tenancy
 When the Estates Abolition Act was passed the legisla ture envisaged the difficulties that could arise in respect of the estates in which the landholder would be entitled to ryotwari patta
Section 13 409 provided as to in respect of what lands in inam estates the landholder would be entitled to ryotwari patta and said 13
Lands in inam estate in which landholder is entitled to ryotwari patta In the case of an inam estate the landholder shall with effect on and from the notified date be entitled to 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 10b of the Estates Iand Act or ii stood recorded as 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 and bi all lands which were properly included or which ought to have been properly included in the holding of a ryot and which have been acquired by the landholder by inheritance or succession under a will provided that the landholder has cultivated such lands himself by his own servants or by hired labour with his own or hired stock in the ordinary course of husbandry from the date of such acquisition or the 1st day of July 1945 whichever is later and has been in direct and continuous possession of such lands from such later date ii all lands which were properly included or which ought to have been properly included in the holding of the ryot and which have been acquired by the landholder by purchase exchange or gift including purchase at a sale or arrears of rent Provided that the landholder has cultivated such lands himself by his own servants or by hired labour with his own or hired stock in the ordinary course of husbandry from the 1st day of July 1945 and has been in direct and continuous possession of such lands from that date iii all lands not being i lanka lands ii lands of the description specified in Section 3 clause 16 sub clauses a b and c of the Estates Land Act or iii forest lands which have been abandoned or relinquished by a ryot or 410 which have never been in the occupation of a ryot provided that the landholder has cultivated such lands himself or by his own servants or hired labour with his own or hired stock in the ordinary course of husbandry from the 1st day of July 1945 and has been in direct and continuous posses sion of such lands from that date
Explanation Cultivate  in this clause includes the plant ing and rearing of topes gardens and orchards but does not include the rearing of topes of spontaneous growth
 Section 15 dealt with the determination of lands in which the landholder would be entitled to ryotwari patta under the foregoing provisions of the Act and said 1 The Settlement Officer shall examine the nature and history of all lands in respect of which the landholder claims a ryotwari patta under Sections 12 13 or 14 as the case may be and decide in respect of which lands the claim should be allowed
XX XX XX XX XX XX XX XX XX XX An interpretation of the words Private land and ryoti land has to be made in consonance with the legislative purpose provisions and scheme of the enactment
Interpre tare et concordare leges legibus est optimus interpretandi modus
To interpret and in such a way as to harmonize laws with laws is the best mode of interpretation
We may now examine the question whether the tests formu lated in Periannan s case supra can still be applied in face of the decision in Chidambaram s case supra
In other words whether Periannan s decision is still a good law
In Periannan the Full Bench of Madras High Court dealt with a batch of second appeals and a batch of civil revision peti tions
The suits out which the second appeals arose
related to the village of Manamelpatti a Dharmasanam village in the Ramnad District and those were instituted by the trustees of Airabhadeswarar Soundaranayagi Amman Temple for ejectment of the defendants from the lands in their respective possession and for recovery of rent for faslis 1349 and 1350 and for future profits
The village comprised 80 pangus out of which the plaint temple in this batch owned 2312 pangus purchased from the original owners and one pangu taken on othi from the owner
The plaintiffs in the batch of suits out of which the civil 411 revision petitions arose were the managers of the Devastha nam of Nagara Vairavapatti Valaroleeswaraswami Nagara Vaira vaswami Devasthanam
That temple owned 54 and 58th pangus or shares in the village and the suits were instituted for recovery of the balance of amounts due as irubhogam  for faslis 1349 and 1350
In both the batches of suits the plaintiffs claimed that they were the owners of meIvaram and kudivaram interests in the lands which were being enjoyed as pannai lands or private lands that they were leasing the lands from time to time changing tenants and collecting swamibhogam in recognition of their full proprietary rights in the lands
They claimed that the tenants had no occupancy rights in the lands and in the second appeals batch a relief for ejectment of the tenants was also claimed
The defence of defendants tenants in both the batches was common
They claimed that the temples owned only the melvaram interest and that they the tenants were the owners of the kudivaram which they had been enjoying heredi tarily paying half varam in respect of the nanjas and a fixed money rent for the punja or dry lands according to the tharam classification of lands
They denied that they ever paid swami bhogam to the temple
In all the suits there was the common plea that the village was an estate under Section 32d of the Madras Estates Land Act as amended by the Madras Estates Land Amendment Act 1936 Act XVIII of 1936 that they had therefore acquired occu pancy rights under the Act and that the lands were ryoti and that therefore the civil court had no jurisdiction to try those suits
The plaintiffs also raised an alternative contention that on the footing that the village was an estate the suit lands were private lands or pannai lands of the temples and therefore the defendants acquired no occupancy rights in the lands under the statute and that the civil court alone had the jurisdiction to entertain and try the suits
The High Court found that the main questions that had to be considered by the courts below were whether the village was or was not an estate under the Madras Estates Land Act and if so whether the lands were private lands as claimed by the plaintiffs or ryoti lands as claimed by the tenants
The further question that even apart from the Estates Land Act whether the defendants had acquired occupancy rights by prescription was also raised and considered
The jurisdic tion of the civil court to entertain the suits depended upon the decision of the question whether the village was or was not an estate
On the main questions the concurrent findings of the Courts below were that the village was an estate under Section 32d of the Madras Estates Land Act as amended in 1936 that the plaint temple owned the melvaram and kudivaram interests in the lands that the lands were 412 private lands as defined by the Madras Estates Land Act that the defendants had acquired no occupancy rights in the lands either under the Act or by prescription and that the suits were properly laid in the civil court which had un doubted jurisdiction to try the suits
The Subordinate Judge in appeals agreed with the finding of the trial court but refused the plaintiff s relief for ejectment on the ground that the tenancy was not lawfully terminated
The lands in both the sets of cases were situated in the same village of Manamelpatti
Before the High Court the findings of the courts below that the temple owned the melvaram and kudivaram interests in the lands and the defendants had not acquired permanent rights of occupancy in the lands apart from the Act had not been disputed by the defendants
The dispute therefore was confined to two questions namely first whether the vil lage was an estate under the Madras Estates Land Act and secondly whether the concurrent finding of the courts below that the lands were private lands of the temple was correct or not
While deciding the second question and dismissing the second appeals and the civil revision petitions the learned Judges discussed the relevant case law and therefrom Satyanarayana Rao J with whom Vaswanath Sastri J con curred at paragraph 49 page 346 of the report held that the following propositions were established 1
If the land is known to be ryoti at its inception the only mode by which it could be converted into private land is by proof of continuous cultivation for a period of 12 years prior to the commencement of the Act
Even if the nature of the land is not known continuous cultivation for the required period of 12 years before the commencement of the Act would conclusively establish that the land is private land
If there is no proof of cultivation for a continuous period of 12 years before the commencement of the Act the land may be proved to be private land by other methods provided the land was not shown to be once ryoti
Cultivation of the lands or leasing of the lands under short term leases may be one mode of proof
An intention to cultivate or resume for cultivation is also a test to decide that the land is private land and such 413 intention may be established by any other means not neces sarily by cultivation and by cultivation alone
The essence of private land is continuous course of conduct on the part of the land holder asserting and acting on the footing that he is the absolute owner thereof and recognition and acceptance by the tenants that the landhold er has absolute right in the land
Mere proof that the land holder is the owner of both the warams is not sufficient to prove that the land is private land
 Considered in light of the definition of private land sections 13 and 15 of the Estates Abolition Act and the basic concept of domain or home farm land we are of the view that the proposition 4 5 and 6 above have to be doubt ed
Viswanatha Sastri J who concurred summarised his conclusions as under I may now summarise my conclusion on the legal aspects of the case
Where land proved or admitted to be once ryoti land is claimed to have been converted into private land the claim is untenable unless the land holder proves direct cultivation for a period of 12 years before 1st July 1908
No other mode of conversion is permissible
Where you have to find out whether a land is private or ryoti its original character not being known proof of direct cultivation of the land by the land holder for 12 years before 1st July 1908 would without other evidence conclusively establish its character as private land but this is not the only mode of proof permitted to land holder
Other evidence may be adduced and looked into and might consist among other matters of direct cultivation of the land at some period anterior to 12 years preceding 1st July 1908 but this is not indispensable
Direct cultivation may be valuable and weighty evidence and may be inferred from accounts and other records usually kept by large land holders
If owing to lapse of time or other reasons evi dence of direct cultivation is not forthcoming its absence is not fatal to the claim that the land is private
section 185 of the Act 414 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 that fact in issue namely whether the land is private or ryoti
Local usage or custom and the letting of the land as private land in leases before 1898 are specifically mentioned in Ss 1851 and 2 as being relevant evidence but other evidence is also expressly made admissible under section 1853
The classification of lands as private lands at the time of the permanent settlement or in the early records of zamindaries the terms of the grant of an undertenure the assertion and enjoyment by the land holder of the right to both the warams the intention to retain with himself the kudiwaram right and the consequent right to resume direct cultivation if he chooses leases of the lands as private lands or with terms and conditions inconsistent with any right of occupancy in the leases admissions by tenants that the land holder is the owner of both warams and that they have no occupancy rights changes in the personnel of the tenants variations in the rates of rent payable by the tenants these and kindred matters would be relevant and admissible in evidence to prove that the lands are private lands
The probative value of such evidence depends on the facts and circumstance of each case
The burden of proof that a particular land in an estate is private land rests on the land holder the statu tory presumption being the other way
This burden is not discharged merely by proving that both the warams were granted to or enjoyed by the land holder once upon a time
There must be evidence of the treatment of the lands as private lands by the land holder either by direct cultiva tion or otherwise in the manner above stated
 Considering the statutory definition in our opinion the third paragraph and last part of last paragraph above have to be doubted
Raghava Rao J who dissented summarised his conclusions separately
We are not oblivious the fact that on the basis of the above propositions cases have been decided for a long time
But their tenability having been questioned in the instant case we proceed to examine them
The above propositions no doubt refer to different 415 aspects including the evidentiary aspect of the question of determination of private lands  and ryoti lands  but it may be difficult to hold that each or all of them by them selves laid down any rule to be invariably followed irre spective of the history location and nature of the estates their cultivation and the customs governing them
There is also no sufficient exposition of the central concept of domain  and home farm  lands in the above propositions
These words were not defined in the Estates Land Act In Zamindar of Chellapalli vs Rajalapati Somayya  Wallis CJ adopted the dictionary meaning namely the land about the mansion house of a Lord and in his immediate occupancy
Seshagiri Aiyar J in the same case quoted from the Encyclopaedia Brittanica Vol
III 3 Domain  as synonymous to Domesne  and is explained as follows Domesne Domeine Demain Domain etc that portion of the land of a manor not granted out in the freehold tenancy but a retained by the lord of the manor for his own use and occupation or b let out as tenemental land to his retain ers or villani  The domesne land originally held at the will of the landlord in course of time came to acquire fixity of tenure and developed into the modern copyhold
It is from domesne as used in sense a that the modern re stricted use of the word comes ie land immediately surrounding the mansion or dwelling house the park or chase  In Jagadeesam Pillai vs Kupoarnmal supra which related to lands in an inam village which was part of the Tanjore palace Wadsworth Offg
CJ accepeted the interpretation put upon the word Domain by Wailis CJ and Sesnagiri Aiyar J In Chellapalli case supra as meaning land immediately surrounding the mansion or dwelling house the park or chase and that connoted land appurtenant to the mansion of the lord of the manor kept by the landlord for his personal use and cultivated under his personal supervi sion as distinct from lands let to tenants to be farmed without any control from the lord of the manor other than such control as in incident to the lease
The learned Judge further observed It seems to us that the sub clause b1 of the definition is intended to cover those lands which come obviously within what would ordinarily be recognised as the domain or home farm that is to say lands appurtenant to the landholder s residence and kept for his enjoyment and use
 In Parish Priest of Karayar Parish vs Thiagarajaswami Devas 416 thanam supra Subba Rao and Chandra Reddy JJ accepted the test laid down in Jagadeesam supra and the legal position was summarised as follows The legal position having regard to the provisions of the Act and the decisions dealing with them in so far as it is relevant for the purposes of this case may briefly be stated thus
Private land as defined under the Madras Land Estates Act comprises two categories private lands technically so called and lands deemed to be private lands
In regard to private lands strictly so called it must be a domain or home farm land as understood in law
The mere fact that particular lands are described in popular province as pan nai kambattam sir khas is not decisive of the question unless the lands so called partake of the characteristics of domain or home farm lands
The test to ascertain whether a land is domain or home farm is that accepted by the Judicial Committee in Mallikarjuna Prasad vs Somayya  ie land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season
Whenever a question therefore arises whether a land is private land technically so called as defined in sub clause 1 of clause b to section 310 the presumption is that it is not a private land
The recitals in the leases pattas etc
after 1918 must be excluded and the recitals in similar documents prior to 1918 in them selves are not sufficient evidence
There must be in addi tion direct evidence that these lands were either domain or home farm lands in the sense that they were in their origin lands directly cultivated by the landlord or reserved by him for his direct cultivation
We are not concerned in this case with the question whether ryoti lands could be convert ed into private lands
 The trend not to confine the concept of private lands only to domain or home farm lands but to include in it lands situate outside in which land holder had granted leases or made arrangements for cultivation with a view to resume them for personal cultivation did not find favour in the above three decisions
In Chidambaram Chettiar supra involved lands in Orathur 417 Padugai in Tanjore Palace Estate
The Raja of Tanjore having died without leaving any male issue the East India Company took possession of all his properties including his private property
Later on representation of the senior widow of the late Raja the Government of India in 1962 sanctioned the relinquishment of the whole of the landed property of the Tanjore Raja in favour of the heirs of the late Raja
 The Tanjore Palace Estate thus came into existence
In 1948 the appellant purchased the suit lands situate in Orathur Padugai within Tanjore Palace Estate and instituted suits for possession from the various defendants
The Trial Court having dismissed the suits on the ground that the lands were situated in an estate as defined in section 32d of the Madras Estates Land Act and they were ryoti lands as defined in section 316 in which the defendants have acquired occupancy rights
The Madras High Court having affirmed that decree in appeal the appellant came to this Court contending that the lands did not form an estate  under section 32d because the restoration did not amount to a fresh grant but only resto ration of status quo ante that Orathur Padugai was not a whole village to be an estate and that the widows of the late Raja enjoyed both the varams and the lands purchased by the appellant were private lands under section 310b so that the defendants did not have any occupancy rights therein
Holding that the relinquishment by the Government in 1962 amounted to a fresh grant and that since 1830 onwards Ora thur Padugai was a whole village and therefore an estate their Lordships enunciated the tests as to private land thus Under section 310 of the Act private land comprises of two categories private lands technically so called and lands deemed to be private lands
In regard to private lands technically so called it must be the domain or home farm land of the landholder as understood in law
The mere fact that particular lands are described in popular parlance as pannai kambattam sir khas is not decisive of the ques tion unless the lands so called partake of the characteris tics of domain or home fair lands
In our opinion the cor rect test to ascertain whether a land is domain or home farm is that accepted by the Judicial Committee in Yerlagadda Malikarjuna Prasad Nayudu vs Somayya ILR  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 sea son
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 418 attach to these words the meaning which would be given to them in ordinary English
It seems to us that the sub clause bi of the definition is intended to cover those lands which come obviously within what would ordinarily be recog nised 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 landlord cultivates himself as distinct from land which he lets out to tenants to be farmed
The first clause is therefore meant to include and signify those lands which are in the ordinary sense of the word home farm lands
The other clauses of the definition appear to deal with those lands which would not necessarily be regarded as homefarm 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 be regarded as private lands unless cultivated directly by the landlord for the required period
It seems to us that the definition reads as a whole indicates clearly that the ordinary test for private land  is the test of retention by the landholder for his personal use and cultivation by him or under his personal supervi sion
No doubt such 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 reference to which the only peculiarity is the fact that the landlord owns both the warams in the lands and has been letting them out on short term leases
There must in our opinion be something in the evidence either by way of proof of direct cultivation or by some clear indication of an intent to regard these lands as retained for the personal use of the landholder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Act cannot acquire occupancy rights
 The concept of home farm does not appear to be much different from that of domain
According to Black s Law Dictionary a farm means body of land under one ownership devoted to agriculture either to raising crops or pasture or both
The word farm means a considerable tract of land or number of small tracts devoted wholly or partially to agri cultural purposesor pasturage of cattle but may also include woodland
The term does not necessarily include only the land 419 under cultivation and within a fence
It may include all the land which forms part of the tract and may also include several connected parcels under one control
According to Collins English Dictionary farm means a tract of land usually with house and buildings cultivated as unit or used to rear livestock
According to Webster s Comprehensive Dictionary International Edition farm means a tract of land forming a single property and devoted to agricultural stock raising dairing and some allied activity
We are therefore of the view that home farm necessarily implies a farm with the home of the landholder
Pollock  Maitland in The History of English Law 2nd Edn
Vol 1 at pp 362 363 describing the manorial arrange ment in England wrote Postponing until a late time any debate as to whether the term manor bore a technical meaning we observe that this term is constantly used to describe a proprietary unit of common occurrence the well to do landholder holds a manor or many manors
Now speaking very generally we may say that a man who holds a manor has in the first place a house or homestead which is occupied by himself his bailiffs or servants
Along with this he holds cultivable land which is in the fullest sense so far as feudal theory permits his own it is his demesne land
Then also as part of the same complex of rights he holds land which is holden of him by tenants some of whom it may be are freeholders holding in socage or by military service while the remainder of them usually the large majority of them hold in villein age by a merely customary tenure
In the terms used to describe these various lands we notice a certain instructive ambiguity
The land that the lord himself occupies and of which he takes the fruits he indubitably holds in demesne  the land holden of him by his freehold tenants he indubita bly does not hold in demesne his freehold tenants hold it in demesne unless indeed as may well be the case they have yet other freeholders below them
But as to the lands holden of him by villein tenure the use of words seems to fluctuate at one moment he is said to hold and be seized of them in demesne at the next they are sharply distinguished from his demesne lands that term being reserved for those portions of the soil in which no tenant free or villein has any rights
In short language reflects the dual nature of tenure in villeinage it is tenure 420 and yet it is not tenure
The king s courts giving no protection to the tenant say that the lord is seized in demesne but the manorial custom must distinguish between the lands holden in villeinage and those lands which are occupied by the lord and which in a narrower sense of the word are his demesne
Describing the field system they wrote  We have usually therefore in the manor lands of three kinds 1 the demesne strictly so called 2 the land of the lord s freehold tenants 3 the villenagium the land holden of the lord by villein or customary tenure
Now in the common case all these lands are bound together into a single whole by two economic bonds
In the first place the demesne lands are cultivated wholly or in part by the labour of the tenants of the other lands labour which they are bound to supply by reason of their tenure
A little labour in the way of ploughing and reaping is not out of the free hold tenants much labour of the many various kinds is obtained from the tenants in villeinage so much in many cases that the lord has but small if any need to hire labourers
Then in the second place these various tenements lie intermingled neither the lord s demesne nor the ten ant s tenement can be surrounded by one ring fence
The lord has his house and homestead each tenant has his house with more or less curtilage surrounding it but the arable por tions of the demesne and of the various other tenements lie mixed up together in the great open fields
 In paragraph 758 of Halsbury s Laws of England 4th Edn Vol 9 on the destruction of customs it is said As manorial customs attached to the tenure as distinguished from the mere locality of the lands it followed that upon the destruction of the tenure by enfranchisement of the lands at common law the customs were also destroyed
A statutory enfranchisement must have effect however in accordance with the terms of the statute and where the statute preserves rights notwithstanding the enfranchisement and the extent of the rights so preserved depended upon custom the custom remains relevant to define the rights preserved by the statute
 421 The basic concept of domain or home farm land and the concept of cultivation as private land by the landholders used in the definition had therefore to be borne in mind in determining private land
The observation of the Division Bench in the impugned Judgment that it is not possible to regard the pronouncement in Zamindar of Chellapalli vs Somayya supra as an authority for the proposition that domain within the meaning of section 3 10 of the Estates Land Act must be held to mean land around the mansion home of lord and appurtenant thereto has therefore to be rejected
The decision of the High Court of Madras in Chellapalli case was confirmed by the Privy Council in Yerlagadda Mallikarju na Prasad Nayudu vs Somayya supra
The learned Single Judge in the instant case also relied on the observations in Chellapalli s case supra
The learned Single Judge rightly observed that the test laid down by Wadsworth Offg
CJ were approved by the Supreme Court in Chidambaram s case in identical language and that the legislature did not use the word domain or home farm land without attaching to them a meaning and it was reasonable to suppose that they would attach to those words the meaning which would be given to them in ordinary English namely to connote land appurte nant to the mansion of the lord of the manor kept by the lord for his personal use and cultivated under his personal supervision is distinct from land let to tenant to be formed without any control from the lord of the manor other than such control as incident to the lease
We respectfully agree
To this extent the propositions of the learned Judges in Periannan s case supra the tenability of which we doubted can no longer be held to be good law in view of this Court s decision in Chidambaram s case supra and P Venkataswami vs
DS Ramireddy In P Venkataswami vs
DS Ramireddy supra the question was whether the landlord was entitled to ryotwari patta
The High Court applied the tests in Pariannan s case
Referring to the provisions of Sections 13 and 151 of the Estates Abolition Act which we have quoted earlierand reiterating what was said in Chidambaram s case this Court held Thus even on the provisions of the Madras Estat is Land Act 1908 considered by the Madras Full Bench this Court appears to have taken a different view
Apart from this the provisions we are concerned with namely Section 13biii of the Madras Estates Abolition and Conversion into Ryotwari Act 1948 requires as a condition that the landholder has cultivated such lands himself by his own servants or hired labour 
We are unable to agree that the 422 words has cultivated  could imply a mere intention to cultivate
Apart from Article 141 of the Constitution of India we are of the opinion that the decision in Chidambaram and Venka taswarni are in consonance with the objects and purposes of the Estates Land Act the Estate Abolition Act the Inam Abolition and Conversion into Ryotwari Act and the accept ed objectives of the land reforms legislation
We now take up the question as to who were entitled to ryotwari pattas in this case
The landholders admitted that if the Pariannan s tests were not applicable they would not be entitled to ryotwari patta
Even so we proceed to examine the question on the facts on record
As defined in section 315 of the Estates Land Act ryot means a person who holds for the purpose of agriculture ryoti land in an estate on condi tion of paying to the landholder the rent which is legally due upon it
Under the Explanation a person who has occu pied ryoti land for a continuous period of 12 years shall be deemed to be a ryot for all the purposes of this Act
This Explanation was added by the Estates Land Amendment Act 1934 Act VIII of 1934
The conferment of occupancy right on the ryot in ryoti land was an object of the Estates Land Act
The original Section 6 dealing with occupancy right in ryoti land was substituted by Section 5 of the Amendment Act VIII of 1934
Thereafter also it has undergone several amendments
At the relevant time it stood as follows 6
Occupancy right in ryoti land 1 Subject to the provi sions of this Act every ryot 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 section the expression every ryot now in possession  shall include every person who having held land as a ryot continues in possession of such land at the commencement of this Act
Explanation 2 In relation to any inam village which was not an estate before the commencement of the Andhra Pradesh Andhra Area Estates Land Third Amendment Act 1936 but became an estate by virtue of that Act or in relation to any land in an inam village which ceased to be part 423 of an estate before the commencement of that Act the ex pression now  and commencement of this Act  in this sub section and Explanation 1 shall be construed as meaning the thirtieth day of June 1934 and the expression hereaf ter  in this sub section shall be construed as meaning the period after the thirtieth day of June 1934
Explanation 3 In relation to any hamlet or khandriga in an inam village which was not an estate before the commence ment of the Andhra Pradesh Andhra Area Estates Land Amendment Act 1936 but became an estate by virtue of that Act the expressions now  and commencement of this Act  in this sub section and Explanation 1 shall be construed as meaning the Seventh day of January 1948 and the expression hereafter  in this sub section shall be construed as meaning the period after the seventh day of January 1948
Explanation 4 Every landholder who receives or recovers any payment under Section 163 from any person unauthorizedly occupying ryoti land shall be deemed to have thereby admit ted such person into possession unless within two years from the date of receipt of recovery of payment or the first of such payments if more than one he shall file a suit in a Civil Court for ejectment against such person
2 Admission to waste land under a contract for the pasturage of cattle and admission to land reserved bona fide by a landholder for raising a garden or tope or for forest under a contract for the temporary cultivation there of with agricultural crops shall not by itself confer upon the person so admitted a permanent right of occupancy nor shall such land by reason only of such letting or temporary cultivation become ryoti land 3 4 5 and 6 are not extracted Section 6 A which was inserted by the Amendment Act VIII of 1934 provided that a person having a right of occupancy in land does not lose it by subsequently becoming interested in the land as landholder or by subsequently holding land as an ijaadar or farmer of rent
Section 8 provided for merger of occupancy rights and said 424 Whenever before or after the commencement of this Act the occupancy right in any ryoti land vests in the landholder he shall have no right to hold the land as a ryot but shall hold it as a landholder but nothing in this sub section shall prejudicially affect the rights of any third person
2 Whenever before or after the commencement of this Act the occupancy right in any ryoti land vests in any co landholders he shall be entitled to hold the land sub ject to the payments to his co landholders of the shares of the rent which may from time to time payable to them and if such co landholder lets the land to a third person such third person shall be deemed to be a ryot in respect of the land
3 The merger if any of the occupancy right under sub sections 1 and 2 shall not have the effect of converting ryoti land into private land
4 Where after the passing of the Act the inter est of the ryot in the holding passes to the landholder by inheritance the landholder shall notwithstanding anything contained in this Act have the right for a period of twelve years from the date of succession of admitting any person to the possession of such land on such terms as may be agreed upon between them
5 If before the first day of November 1933 the landholder has obtained in respect of any land in an estate within the meaning of sub clause d of clause 2 of Sec tion 3 a final decree or order of a competent Civil Court establishing that the tenant has no occupancy right in such land and no tenant has acquired any occupancy right in such land before the commencement of the Andhra Pradesh Andhra Area Estates Land Third Amendment Act 1936 the land holder shall if the land is not private land within the meaning of this Act have the right notwithstanding any thing contained in this Act for a period of twelve years from the commencement of the Andhra Pradesh Andhra Area Estates Land Third Amendment Act 1936 of admitting any person to the possession of such land on such terms as may be agreed upon between them 425 Provided that nothing contained in this sub section shall be deemed during the said period of twelve years or any part thereof to affect the validity of any agreement between the landholder and the tenant subsisting at the commencement of the Andhra Pradesh Andhra Area Estates Land Third Amendment Act 1936
Section 9 provided that no landholder shall as such be entitled to eject a ryot from his holding or any part hereof otherwise than in accordance with the provisions of this Act
Section 10 made the occupancy rights heritable and transferable providing that all rights of occupancy shall be heritable and shall be transferable by sale gift or otherwise
 If a ryot dies intestate without leaving any heirs except the Government his right of occupancy shall be extinguished but the land
in respect of which he has such right of occupancy shall not cease to be ryoti land
The Estates Abolition Act accepted the same definitions of occupancy right and ryot as in the Estate Land Act
The above provisions conferred permanent heritable and trans ferable right of occupancy on the tenant
This right stemmed from the will of the legislature and involved an element of social engineering through law star pro ratione voluntas populi the will of the people stands in place of a reason
The right of the landholder to keep his private land to himself has therefore to be interpreted in its proper per spective
Statuta pro publico late interpretatur
Statute made for the public good ought to be liberally construed
The concept of past or present intention of the landholder to resume personal cultivation of land let out to a tenant and still in possession of the tenant has to be strictly construed against the landlord and liberally in favour of the tenant
The aforesaid doubtful propositions formulated by the learned Judges in Periannan s case must therefore be held to be erroneous
For the same reason the observation of the Division Bench in this case that the decision in Periannan s case is still good law in face of the decision of this Court in Chidambaram supra and subsequent deci sion in Venkataswami s case supra must be held to be equally erroneous and to that extent must be overruled and the decisions in Zamindar of Chellapalli vs Rajalapati Somayya supra Jagadeesam Pillai vs Kuppammal supra and in Parish Priest of Karayar Parish vs Thiagarajaswami Devasthanam supra must be held to have been correctly decided
We have no doubt that the formation and development of the land revenue system in Madras will justify the view we have taken in the facts of this case
The formation of the Madras Presidency was by 426 successive acquisitions by the East India Company
The State of Andhra Pradesh was curved out of Madras
Baden Powell in Land System of British India Vol
3 p 5 wrote in 1892 In tracing the progress of the Madras Land Revenue System it will be advisable in the first place to review the gener al course of acquisition by which the Madras district became British and next to describe in a brief and general manner the various stages of the history of the early revenue management
Commencing with the settlement above alluded to in the Baramahal 1792 98 which was soon followed by those of Coimbatore 1799 the ceded districts 1800 and the Carnatik Districts 1801 we shall see how the first raiyatwari system or rather systems were over thrown for a time by an attempt to make a general zamindari settlement 1801 1808 how on the failure of the attempt a proposal for village settlements  in the sense of granting leases for the whole village to a renter a headman or a joint body of inhabitants was tried with various success for a few years and how in the end a raiyatwari assess ment was finally ordered  18 12 18 18
 Ryotwari indicates a system where each field or holding is dealt with separately and where the holder is free to pay the revenue and keep the field or free himself by giving it up as he pleases
The first general acquisition of territory by the East India Company the first from a revenue point of view was the country around Madras known as Jagir  because it was originally granted by the Nawab of the Karnatik as a Jagir the revenue thus assigned was intended as a contribution towards the expenses of the wars undertaken in aid of the Nawab
The next acquisition in point of time was that of the Northern Sirkars often written Circar 
These territories were granted in 1765 by the Delhi Emperor but the Madras Government looking to the practical claim of the Nizam of Dakhan who was hardly even in name subject to Delhi also obtained a grant from him in 1768
The five administrative divisions known to the Mughal system as Sirkar  were those of chicacole chikakol Srikakulam Rajahmundry Rajamahen driveram Eliore Alur Mustafanagar or Kandafiti and Murtazanagar Gantur or Kandavid
Later they formed the districts of Vizagapatam Visakhapatnam Gangam Kishna and Godavari
427 The northern Sikars had been brought under Muhammadan domin ion first in 1471 AD and had various fortunes under the different contending dynasties
In 1687 Aurangazeb s con quest of the Dakhan added them to the Mughal empire and they were ultimately taken over by the Subedar of the Dakhan Nizam ul Mulk nominally from the Emperor Karukhsir in 1713 AD These came at once under British administration
It was found that they consisted 1 of lands settled under zamin dars as in Bengal 2 of haveIi lands those reserved for the support of the royal family and its immediate depend ants and therefore crown  property
Such a state of things invited the application of the Bengal system the zamindars were accordingly left in possession and the haveIi lands were parcelled out and leased to revenue farmers for a term of years
The Jagir lands were in 1780 divided into blocks and put under a similar system of revenue leases
 When the Board of Revenue issued instructions to adopt a system of village lesses so as to prepare for some form of zamindari settlement ie one man should be made answerable for the revenue of each village or other estate after the passing of Permanent Settlement Regulations in Bengal
The Zamindari Regulation No XXV was passed in 1802 and by 1805 introduction of the system was effected
In the Northern Sirkars land was permanently settled with the zamindars and the HaveIi  lands were made into percels or mutthas and sold to the highest bidder
The Mutthadars or Mittadars became the proprietors and permanent settlement holders
Each settlement became an estate
In some districts the poligars  became landlords holding sanad i milkiat i istim rar or title deed of perpetual ownership their estates being called settled polliems 
According to Paden Powell the zamindari estates were found chiefly in the North East ern districts and especially in the Ganjam and Vizagapatam districts
There were also few Feudatory States which paid only a fixed tribute
The village leases continued with some form of joint or individual middlemen with varying periods of 3 to 10 years made with a view to eventual permanency
But the system was not successful
Between the ryotwari and village lease system the general difference was that the ryotwari only assessed the field  or survey unit and left the ryot to hold it or not as he pleased provided he gave notice of his intention in proper time if he kept the field he must pay the assessment that was all
The lease system involved payment of a certain sum for a fixed area whether the land was cultivated or not
It was no use 428 for the middlemen lease holder to throw up his land for that would not relieve him of his contract liability
The idea was to make the villagers jointly and severally respon sible though the lease was to the head inhabitants of each village
Desire was to see a system under which the proprie tary inhabitants at large of each village should enter into engagements with the Government and derive a common and exclusive interest in the cultivation of their lands in proportion of their right of property
Ultimately the Ryotwari system was adopted
The end of the lease proposals and the village system inquiry was that the home authorities as Baden Powell says probably influ enced by the opinion of Munro who visited England in 1807 finally decided for the Ryotwari system as it was believed that the village system failed
Hence the Estates Abolition Act protected the rights of the ryots by defining private land on the one hand and preserving the occupancy rights of the ryots on the other
In doing so the two concepts of private land  and ryoti  land along with those of estate  and occupancy  assumed significance
The two villages concerned in the instant case are said to be inam viiages
But the origin of the lands in dispute was admittedly not known
The characteristics of the inam estates and the rights and liabilities of the Inamdars from time to time have therefore to be taken into account
Baden Powell wrote at pp78 80 Vol 3 Section Ill Settlement of inam Claims The Settlement as we have seen only assesses the land under raiyatwari tenure
If however there is land in the village consisting of a few fields or even a division of the village held revenue free or at a reduced rate such an area is shown in the village registers
But it may be that a whole village is inam 
If so it constitute a separate estate like a Zamindari or a pollam  and does not come within the scope of the Settle ment
Government has no claim to the land or to the revenue unless there is a fixed quit rent which is recorded as is the permanently settled revenue or peshkash  of the Zamind ari or pollam estate
There was accordingly a special proce dure under which the right and title of the holders of these favoured estates was elucidated and put on a sound 429 basis and the quit rent Or reduced rate where the estate is not entirely revenue free determined by rule
All native governments were in the habit of reward ing favourites providing for the support of mosques tem ples religious schools shrines and for almsgiving and the maintenance of Brahmans or Muhmmadan saints  C by grant ing the revenue on the land whether they granted the land itself or not The Inam Commission of Madras appointed on 1611
1858 had the task of validating and issuing title deeds for inams lawfully in possession for fifty years and in resuming others or commuting them for money pensions
The Commission dealt with all kinds whether they included right in the lard or only Government revenue they were 1 Inams proper where the land granted was either a field or a village or a group of villages
2 Muhammadan jagirs which were personal grants and might or might not include the land
3 Shrotriyams Srotriyam and agraharams grants certain different classes of Branmans which did not give more than the revenue leaving the land in its original occupancy unless it could be shown that the occupancy was also granted
The following nine kinds of inams classified according to their object or purpose were enumerated 1 For religious institutions and services connect ed therewith
Nearly a million and a half acres were so assigned including temples pagodas and mosques
The largest grants were in the southern districts
2 For purposes of public utility
Such as support of chatrams places where refreshment was given gratuitous ly water pandais drinking places topes or groves flower gardens for temple service mandavanam schools Patshalas for maintaining bridges ponds and tanks etc
430 3 Dasabandham  inams for the construction mainte nance and repair of irrigation works in the Ceded dis tricts in Kistna Nellore North Arcot and Salem
4 To Brahmans and other religious persons for their maintenance called Bhatavritti  and Muhammadan Khairat 
They formed nearly half the inams of the Presidency and covered more than three and a half million acres
5 Maintenance grants for the families of poligars and ancient land officers
These were grants to families of dispossessed poligars in Baramahal and the ceded districts to Kanungos Chingleput and to Deshmukhs etc
6 Lands alienated for the support of members of the family also for religious persons by poligars etc
These were the bisai  bissoye doratanam mukhasa jivitham arearam North Arcot umlikai etc
7 Grants connected with the general police of the country under former rulers Such were kattubadis 
8 Grants to village headmen karnams and village police Gramamaniyam etc 
9 Grants to village artisans where they were not paid by the fees called merai or in addition to them
The Commission also took up enfranchisement of the inams ie to convert into his own private property by payment of a moderate quit rent
From this the inams could be classified as 1 still unenfranchised 2 enfranchised but liable to jodi or quit rent as the case may be 3 enfranchised the rent being commuted or redeemed
The Commission work was closed in November 1869
A member of the Board of Revenue continued thereafter
The nature and histo ry of the inam villages would therefore have been helpful in deciding the claims
It was perhaps easier for the landholders to trace the origin of the inam villages than for the tenants to do so
Admittedly that was not done
We have also considered the question of practice and pre sump 431 tions if any in this regard
By Madras Act VIII of 1865 it was enacted that inamdars and other landholders should enter into written agreements with their tenants the engagements of the land owners being termed pattas and those of tenants being termed Muchlika
The patta should contain amongst other things all other special terms by which it is intended the parties shall be bound
The muckhlika should at the option of the landholders be counterpart of the patta or a simple engagement to hold according to the terms of the patta
In the instant case the pattas and the muchlikas are not claimed to have shown anything to establish the lands to be private lands
Only the facts of occasional change of tenants and rents have been shown
The Privy Council in Suryanarayana vs Patanna 1918 41 ILR Madras 10 12 where the decision of the appeal mainly depended on the question whether the Agraharam Village of Korraguntapalem in the Northern Circars of then Presidency of Madras was an estate observed that the term kudivaram is not defined in the Act
It is a tamil word and literally signifies a cultivator s share in the produce of the land held by him as distinguished from the landlord s share in the produce of the land received by him as the rent
The landlord s share is sometimes designated melvaram The Privy Council held that there was no presumption of law to the effect that in the case of an inamdar it should be presumed in the absence of inam grant under which he held that the grant was of the royal share of the revenue only
In their Lordships  opinion there is no such presump tion of law
But a grant of a village by or on behalf of the Crown under the British rule is in law to be presumed to be subject to such rights of occupancy if any as the cultiva tors at the time of grant may have had
 As against the above we now have the statutory presumptions in Section 1853 of the Estates and Act namely that the land shall be presumed not to be private land until the contrary is proved and in case of estate within the meaning of sub clause d of clause 2 the second proviso i and ii
This evolution of the land revenue system concerned is likely to remind one of what Sir Henry Maine showed in his Ancient Law that in early times the only social brother hood recognised was that of kinship and that almost every form of social organisation tribe guild and religious fraternity was conceived under a similitude of it
Feudal ism converted the village community based on a real or assumed consanguinity of its members into the fief in which the relations of tenant and lord were those of contract while those of the 432 unfree tenant rested on status
 It also reminds one what was said in the context of rights over land This earth says Jagannatha is the cow which grants every wish she affords property of a hundred various kinds inferior if the owner need the assent of another proprietor superior if his right precede assent while she deludes hundred owners like a deceiving harlot with the illusion of false enjoy ment for in truth there is no other lord of this earth but one the Supreme Lord
 For the foregoing reasons we set aside the impugned Judgment restore that of the learned Single Judge and allow the appeals
We leave the parties to bear their own costs in these appeals
RSS Appeals allowed


Summary:
Several persons attacked and seriously injured one M
After assaulting him the assailants were carrying him away when M s brother R came to rescue him and in self defence shot dead one of the assailants and carried M away
For the assault on M eight persons including the appellants were tried for offences under 1 CBNS 161 1862133 RR 311
725 sections 148 307 and 364 both read with sections 140 and 34 Of the Indian Penal Code
At the trial R was cited as a witness by the prosecution but R refused to give evidence claiming protection under article 20 Of the Constitution
The Sessions judge upheld R s objection and the prosecution gave him up as a witness
After trial the Sessions judge acquitted four of the accused but convicted the appellants and one other person
In appeal before the High Court the appellants urged that the Sessions judge was wrong in holding that R was entitled to the protection of article 2o and that the trial was vitiated by this decision whereby the accused had been deprived of the benefit of R s evidence
The High Court was of the view that if R had been compelled to give evidence he would not have supported the prosecution but whatever he would have stated would not have rebutted the convincing testimony of the other witnesses and that therefore the failure to examine R did not in any way affect the ultimate decision of the case
The High Court apparently had section 167 Of the Evidence Act in view
In the result the High Court upheld the convictions
The appellants appealed and contended that the view of the High Court was not justified by section 167 and that the trial was not fair as R a material witness had been kept out of Court
Held that the trial was not vitiated by the failure of the prosecution to examine R as a witness
Section 167 did not help the appellants as it was not a case in which evidence could be said to have been rejected within the meaning of that section
Further R was not a witness material to the prosecution inasmuch as he arrived on the scene after the assault was over and it was not necessary for the prosecution to examine him to ensure a fair trial
Where a material witness has been deliberately or unfairly kept back a serious reflection is cast on the propriety of the trial and the validity of the conviction resulting from it may be open to challenge
The test whether a witness is material is whether he is essential to the unfolding of the narrative on which the prosecution is based and not whether he would have given evidence in support of the defence
Habeeb Mohammad vs The State of Hyderabad 1954 SCR 475 Stephen Seneviratne vs The King AIR 1936 PC 289