Case: T.S.P.L.P. Chidambaram Chettiar Vs. T.K.B. Santhanaramaswami Odayar &amp; Others

no question of restoration or revival of any anterior right. The same reasoning applies to the Paimash account dated August 25, 1830, Ex. A-147 which cannot, therefore, be held to be of much relevance in this connection. Reliance was placed on behalf of the appellant on Ex. A-134, the Land Register for Panni-mangalam which shows that in Orathur Thattimal Padugai which consists of Punjais (dry lands) and are rain-fed, the land-holder (the Tanjore Palace Estate) owns both the warams (Iruwaram in vernacular). It was, argued for the appellant that the expression Iruwaram means that the land was owned as Pannai or private land. Reference was made to the record of rights and Irrigation Memoir dated January 13, 1935, Ex. B-8 which shows that the lands are Iruwaram and there are no wet lands. But the use of the expression Iruwaram in these documents is not decisive of the question whether the land is private land of the appellant or not.Under S. 3 (10) of the Act, private land comprises of two 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 land-holder 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 question unless the lands so called partake of the characteristics of domain or home-farm lands. In our opinion the correct test to ascertain whether a land is domain or home-farm is that accepted by the Judicial Committee in Yerlagadda Malikarjuna Prasad Nayudu v. Somayya, ILR 42 Mad 400 = (AIR 1918 PC 182) that is, whether it is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season. The Legislature did not use the words domain or home-farm land without attaching to them a meaning; and it is reasonable to suppose that the legislature would attach to these words the meaning which would be given to them in ordinary English. It seems to us that the sub-clause (b) (i) of the definition is 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 land-holders 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 home farm lands in the ordinary usage of the term; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period. It seems to us that the definition read 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 supervision. No doubt, such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character; but it is not the intention m 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 varams 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 land-holder 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.In the present case there is no proof that the lands were ever directly cultivated by the land-holder. Admittedly, soon after the grant of 1862 the estate came under the administration of Receivers, who always let out the lands to the tenants to be cultivated. In Ex. B-8, the Record of Rights the lands are entered in column 5 as Punja or dry land. In column 4 which requires the entry to be made as private land they are not entered as private lands. It was argued for the appellant that the lands are sometimes called Padugai and that the expression meant that the lands were within the flood bank and forming part of the river bed. But the description of the land as Padugai is not of much consequence because they are also called as Orathur Thottam, thottam, meaning a garden where garden crops are raised to distinguish it from paddy fields. It appears that the lands actually lie between two rivers and comprise more than 100 acres, and by their physical feature cannot he padugai in the sense in which the term is normally used. The argument was stressed on behalf of the appellant that leasing rights of the land were auctioned periodically. But the High Court has observed that one and the same tenant continued to bid at the auction and there was evidence that tenants continued to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease rights did not necessarily deprive the tenants of the occupancy rights which they were enjoying. We accordingly hold that the appellant has not adduced sufficient evidence to rebut the presumption under S. 185 of the Act that the lands in the inam village are not private lands and the argument of the appellant on this aspect of the case must be rejected.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The Government Order, 1862 was therefore a fresh grant due to the bounty of the Government and not because of any antecedent rights in the grantees. It was pointed out that the words relinquished or restored, in the Government Order did not have the legal effect of reviving any such right because no rights survived the act of State. The root of title of the grantees was the Government Order of 1862 and it was therefore held that the restoration amounted to a grant in inam by the British Government within the meaning of the Act. But the question whether with regard to any particular area what was granted in inam is a whole village or less than a whole village is a question that has to be decided with reference to the facts of each particular caseIn our opinion, there is no justification for this argument. On behalf of the respondents reference was made to Ex. A-64, Pannimangalam Vattam Jamabandhi Account individual-war, Fasli 1298 which shows in column No. 3 Orathur Padugai as a village. Similarly, in Ex. A-78 (a), Cess account for Pannimangalam Vattam and Ex. A-79, the Village war Jamabandhi Account Fasli 1309 Orathur Padugai village is shown as a whole village. Exhibit A-82. Village war Jamabandhi Individual war, Fasli 1310, Ex. A-84, Jamabandhi Ghoshpara for the village, Fasli 1311 and Exs. A-153 to A-157 all mention Orathur Padugai as a village. All the leases, lease auctions and receipts given for payment of rent speak of Orathur Padugai as a separate village. Even the sale deeds, Exs. B-6, B-31, B-32 and B-33 contain a recital of Orathur Padugai as a separate village. It is manifest therefore that there is sufficient material to show that at least since 1830 onwards Orathur Padugai is a whole village. On behalf of the appellant reference was made to Ex. A-128 and Ex. A-129 dated April 6, 1800 and July 5, 1800. Exhibit A-128 is a letter from the Resident, Tanjore to the Secretary to the Government of Madras in which there is a reference to Pannimungalam. It is stated therein thatthe fields of Pannymungalam to the westward of Tanjore which from time immemorial have been reserved for the pasture of the circar cow do remain in the Rajas possession. There is neither village nor cultivation on these lands.In answer to this letter there is a communication from the Chief Secretary to the Government to the Resident, Tanjore Ex. A-129The Subordinate Judge and the High Court have concurrently come to the conclusion, upon consideration of the evidence, that the lands in suit are not private lands but ryoti lands. On behalf of the appellant Mr. Kesava Iyengar conceded that onus is on the appellant to show that the lands are private lands within the meaning of the Act, but the argument was stressed that the lower courts have failed to take into account certain important documents filed on behalf of the appellant, viz., A-128, A-129 and the Paimash account dated August 25, 1830, Ex. A-147 and the Land Register, Ex. A-134. In our opinion, there is no warrant for the argument advanced on behalf of the appellant. As regards Exs. A-128 and A-129 it is apparent that apart from the question as to the identity of the land, they relate to a period to the grant of 1862 which alone constitutes the root of title of the grantees and there is no question of restoration or revival of any anterior right. The same reasoning applies to the Paimash account dated August 25, 1830, Ex. A-147 which cannot, therefore, be held to be of much relevance in this connection. Reliance was placed on behalf of the appellant on Ex. A-134, the Land Register for Panni-mangalam which shows that in Orathur Thattimal Padugai which consists of Punjais (dry lands) and are rain-fed, the land-holder (the Tanjore Palace Estate) owns both the warams (Iruwaram in vernacular). It was, argued for the appellant that the expression Iruwaram means that the land was owned as Pannai or private land. Reference was made to the record of rights and Irrigation Memoir dated January 13, 1935, Ex. B-8 which shows that the lands are Iruwaram and there are no wet lands. But the use of the expression Iruwaram in these documents is not decisive of the question whether the land is private land of the appellant or not.Under S. 3 (10) of the Act, private land comprises of two 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 land-holder 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 question unless the lands so called partake of the characteristics of domain or home-farm lands. In our opinion the correct test to ascertain whether a land is domain or home-farm is that accepted by the Judicial Committee in Yerlagadda Malikarjuna Prasad Nayudu v. Somayya, ILR 42 Mad 400 = (AIR 1918 PC 182) that is, whether it is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season. The Legislature did not use the words domain or home-farm land without attaching to them a meaning; and it is reasonable to suppose that the legislature would attach to these words the meaning which would be given to them in ordinary English. It seems to us that the sub-clause (b) (i) of the definition is 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 land-holders 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 home farm lands in the ordinary usage of the term; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period. It seems to us that the definition read 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 supervision. No doubt, such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character; but it is not the intention m 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 varams 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 land-holder 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.In the present case there is no proof that the lands were ever directly cultivated by the land-holder. Admittedly, soon after the grant of 1862 the estate came under the administration of Receivers, who always let out the lands to the tenants to be cultivated. In Ex. B-8, the Record of Rights the lands are entered in column 5 as Punja or dry land. In column 4 which requires the entry to be made as private land they are not entered as private lands. It was argued for the appellant that the lands are sometimes called Padugai and that the expression meant that the lands were within the flood bank and forming part of the river bed. But the description of the land as Padugai is not of much consequence because they are also called as Orathur Thottam, thottam, meaning a garden where garden crops are raised to distinguish it from paddy fields. It appears that the lands actually lie between two rivers and comprise more than 100 acres, and by their physical feature cannot he padugai in the sense in which the term is normally used. The argument was stressed on behalf of the appellant that leasing rights of the land were auctioned periodically. But the High Court has observed that one and the same tenant continued to bid at the auction and there was evidence that tenants continued to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease rights did not necessarily deprive the tenants of the occupancy rights which they were enjoying. We accordingly hold that the appellant has not adduced sufficient evidence to rebut the presumption under S. 185 of the Act that the lands in the inam village are not private lands and the argument of the appellant on this aspect of the case must be rejected.