JUDGMENT

1. This civil revision petition has been filed against the decision of the Subordinate Judge of Vizagapatam in A.S No. 145 of 1944 affirming the decree of the District Munsif in a suit for rent for 1939-1940 and 1940-1941 in respect of certain lands situated in the zamindari village of Madgole. The amount of the claim was less than Rs. 500 and hence the case comes to this Court by way of a civil revision petition. The contention of the defendants, here petitioners, is that the lands in respect of which rant is claimed are ryoti lands, that they are tenants with a permanent right of occupancy and that the suit for rent was cognizable only by a revenue Court. The respondents' case, accepted by the Courts below, is that the lands are his private lands and the suit for rent was, therefore, rightly-filed in the civil Court. It is stated for the petitioners that this finding is erroneous and that the lower appellate Court has misdirected itself in law in arriving at this conclusion.

2. There was some discussion at the bar as regards the scope of the revisional jurisdiction of this Court in cases like the present, the respondents' contention being that the findings of the lower appellate Court on the issues of fact and law are not open to review by this Court under Section 115 of the CPC. Reliance was placed on their behalf on the recent decision of the Privy Council in Venkatagiri Iyengar v. H.R.E Board, 1949-1 M.L.J 605 : (A.I.R (36) 1949 P.C 156) where the Board upset the decision of a Division Bench of this Court in the exercise of its revisional jurisdiction, the ground of reversal being that even the misconstruction of a vital document governing the rights and liabilities of the parties was merely an error of law which, however grave, did not justify interference in revision under Section 115 of the CPC. In so holding, the Judicial Committee reiterated their earlier views in Amir Hasan Khan v. Sheo Baksh Singh, 11 Cal. 6 : (11 I.A 237 P.C) and Balakrishna Udayar v. Vasudeva Aiyar, 40 Mad. 793 : (A.I.R (4) 1917 P.C 71). All that the Judicial Committee laid down in this triology of cases was that where a Court had jurisdiction to determine a question of fact or law and it deter, mined that question, it cannot be said that it had acted illegally or with material irregularity, however erroneous its determination might be and the High Court could not correct the error in the exercise of its revisional jurisdiction. The position here is different. The suit was for rent due in respect of lands situate in an “estate” and was tried and decreed by the District Munsif and his decree was affirmed on appeal by the Subordinate Judge. Neither of the lower Courts would have had jurisdiction to try the case unless the lands in question were proved to be “private lands” of the landholder, the presumption being that they are not. The objection here is to the jurisdiction of the lower Courts based both on the character of the Tribunal and the nature of the subject-matter of the dispute and does not rest merely on the ground that the lower appellate Court has erroneously found a fact or point of law, which though essential to the validity of its decree, it was competent to enquire into and decide. If the Court below has, by a decision which is found to be erroneous, given itself jurisdiction to try a suit which it has no power to entertain, this Court can interfere under Section 115 of the CPC. The recent decision of the Judicial Committee referred to above deals with a different situation, namely, an erroneous decision on a question of law after jurisdiction had been legally assumed. Here the very basis and foundation of the jurisdiction of the Court below rests on the correctness of the conclusion of the lower Court as regards the character of the lands in question and if I find that the Courts below assumed jurisdiction to try the suit for rent on an erroneous finding as to the character of the lands, I can interfere under Section 115 of the CPC, see Atchayya v. Venkata Seetharamachandra Rao, 39 Mad. 195 : (A.I.R (2) 1915 Mad. 1223 F.B). Both in Amir Hasan Khan's case, 11 Cal. 6 and in Venkatagiri Iyengar v. H.R.E Board, 1949-1 M.L.J 505 the Subordinate Court had jurisdiction to decide the dispute and while exercising that admitted jurisdiction, came to an erroneous conclusion on questions of law like limitation and the construction of a document. In Balakrishna Odayar v. Vasudeva Iyer, 40 Mad. 793, the District Judge by a misconstruction of a statutory provision had given himself jurisdiction to direct an election to a temple committee. This Court set aside in revision the order of the District Judge accepting the result of the election and recognising and confirming the person elected as a member of the temple committee. The Privy Council held that as a question of jurisdiction was involved, the High Court had power to interfere in revision and reverse the order of the District Judge. Section 115 of the CPC, is intended inter alia to keep subordinate Courts within the limits of their jurisdiction. Neither the trial Court can give jurisdiction to itself nor can the appellate Court give jurisdiction to the trial Court, by an erroneous decision and in either case, this Court is competent to interfere in revision. See a recent decision of the Privy Council in Joychand Lal Balu v. Kamalakshan Chowdry, 1949-2 M.L.J 6 : (A.I.R (36) 1949 P.C 239), reported after the arguments were heard in this case.

3. The crucial question, therefore, in the case is whether the lands in respect of which rent is claimed are “private lands.” If they are, the Courts below would have had jurisdiction to try the suit. In arriving at a conclusion on this question, the Courts below have not disclosed in their judgments whether they had in view the relevant considerations or the governing provisions of the Madras Estates Land Act. This omission is partly responsible for the length of the arguments and of my judgment in this case. It is common ground that the lands are-situate in the zamindari village of Madgole. Section 3(10)(a), Madras Estates Land Act defines “private land” as the domain or home farm land of the land holder by whatever designation known such as kambattam, khas, sir or pannai. The rest of the definition has no application to the present case, because it is not the case of the landlords that the lands have been cultivated as private land by themselves or by their own servants for a continuous period of 12 years immediately before Act I [1] of 1908 came into operation. Under Section 185(2) and (3) of the Madras Estates Land Act, in determining whether any land is the landholder's private land, regard shall be had to the question whether the land was before 1st July 1898 specially let as private land and any other evidence that may be produced. There is a proviso that the land shall be presumed not to be private land until the contrary is proved. There has been, in my judgment, some amount of misconception as regards the meaning of the words “domain” or “home farm land” of the landholder — expressions found in S. 3(10)(a) of the Act. To interpret these words as confined to “land immediately surrounding the mansion or dwelling house, the park or chase of a Lord” which would be the dictionary meaning of these English words, is to the import feudal ideas of medieval England into the system of land tenures in this Court without adequate justification. The English draftsman of the Bill which afterwards became the Madras Estates Land Act as well as the English Revenue Member of the Executive Council of the day who piloted the Bill through the Legislature employed the expression “domain” and “homefarm” as the nearest English equivalents of the Tamil and Telugu words “Pannai” “Kambhattam” “Seri”, etc. It is all very well when talking of the demesne lands of an English Duke of Marquis to use the term as denoting the land appurtenant to the mansion of the lord of the manor. The manorial system was not prevalent in this country. Zamindars lived in cities and forts for reasons of security and their private lands were not confined to the vacant spaces surrounding their palaces or residence. It is a far fetched construction to impute to the Madras Legislature an intention to incorporate the English conception of “demesne land” as a test for differentiating the public domain from private land in a zamindari. I very respectfully venture to think that Wadsworth, O.C.J, unduly narrowed the meaning of the expression “private lands” when he defined it as “land appurtenant to the landholder's residence and kept for his enjoyment and use” and “as land which the landholder farms himself as distinct from land which he leases out to tenants to be farmed.” Jagadesam Pillai v. Kuppammal, I.L.R (1946) Mad. 687 : (A.I.R (33) 1946 Mad. 214). Direct or personal cultivation may be and is often a useful test for determining the character of land in an estate that is to say whether it is private land or ryoti land but leasing by itself is not fatal to the claim that the land in question is private land.

4. It is unnecessary for the purpose of this case to trace the origin and history of the conception of “private land” in a zamindari. The topic will be found discussed with reference to the different parts of the country in Baden Powell's Land System, Vol. I, pages 166, 167, 449, 515, 695 and Vol. 3 page 624. In the Nor them Circars from which this case comes, home farm lands are sometimes referred to as savaram lands whose origin and characteristics will be found discussed in Lakshmayya v. Varadaraja Apparao, 36 Mad. 168. Suffice it to say that this notion of the private land of a zamindar being confined to land surrounding his residence is not accurate. The distinction between public domain and private land in zamindari areas lay in this, that if land was private land occupancy right could not be acquired in it unless the zamindar himself voluntarily transferred it to the category of ryoti land. “Private land” was the freehold of the zamindar. All other cultivable lands with, in the ambit of the zamindari were ryoti or jereoyiti as they were called in the Northern Circars, i.e, lands which a tenant could occupy on the customary terms and in respect of which he became a co-owner with the zamindar under the common law of the country as developed by the decisions of this Court in Venkatanarasinha Naidu v. Dandamudi Kottayya, 20 Mad. 299 and the Cheekati Zamindar v. Rana Sooru Bhora, 23 Mad. 318 at pp. 325, 326 and embodied later in Madras Act, I [1] of 1908. So far as I know, in no case prior to Zamindar of Chellapalli v. R. Somaya, 39 Mad. 341 : (A.I.R (2) 1915 Mad. 750 P.C), was it suggested that a zamindar's private land must be confined to land surrounding his palace or residence as in the case of demesne land of an English Lord of the manor.

5. Again, it is not an indispensable condition that private lands should be proved to have been cultivated by the land owner himself or his hired labourer within recent times. It is recognised by Sections 19 and 185 of the Madras Estates Land Act that private lands could be leased without impairing their character as private lands. The relations between the lessor and lessee of private lands are governed by the contract of tenancy and not by Act I [1] of 1908. As early as the celebrated case of the Cheekati Zamindar, 23 Mad. 318 at pp. 325, 326, Sir Subramania Aiyar, J. referred to the distinction between the terms of the leases granted in respect of seri lands and pattas granted in respect of ryoti lands. The Judicial Committee in Prasadu Naidu Mallikarjuna v. Somayya, 42 Mad. 400 : (A.I.R (5) 1918 P.C 182), appear to have approved of the observations of Sir John Wallis in Zamindar of Chellapalli v. Somaya, 39 Mad. 341 P.C, that private land is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even when from time to time he demises it for a season. Under Section 3(10)(a) of the Madras Estates Land Act “private land” means lands styled as sir, kambattam, or pannai and also includes, by an extended application, land that had been cultivated by the landholder himself, by his own servants or by hired labour with his own or hired stock for 12 years before Act I [1] of 1903 came into force, even though in its origin it might not have been private land. There are two categories of private lands in zamindari areas contemplated by S. 3(10)(a), namely, private land properly so-called and land deemed to be private land by reason only of direct cultivation by the landholder for 12 years before the Act. In the case of private land strictly so called, leasing does not affect or impair its character as private land. In the case in Chinnarigadu v. Rangayya, A.I.R (22) 1935 Mad. 789, Madhavan Nair, J. held that the lands in question in that case were private lands by reason of their description as “kambattam” and “samasthanam khanigi” in spite of the facts that there was no evidence of direct cultivation by the zamindar at any time, that the lands had been leased to tenants under leases commencing from 1877 and styled as Sagubadi pattas and that the tenants were never turned out of the lands by the zamindar but were allowed to continue in occupation hereditarily. If land had been let specifically as private land before 1898, such letting is relevant and admissible evidence of its character as private land and other evidence to prove its character as private land is also admissible. See S. 185 of Act of 1908. There has been a difference of opinion in this Court as to whether leases subsequent to 1898 are admissible to prove letting as private land, see for example, Chintan Reddi v. Appala Narasimha Raja, 1914 M.W.N 766 : (A.I.R (2) 1915 Mad. 722); Yarlagadda Mallikarjuna v. Subbiah, 39 M.L.J 277 : (A.I.R (7) 1920 Mad. 996); Apparao v. Kaveri, 7 L.W 271; Zamindar of Chellapalli v. Somayya, 39 Mad. 341. The reasoning of the decision of the Judicial Committee in Bindeswari Prasad Singh v. Kesho Prasad, 5 Pat. 634 : (A.I.R (13) 1926 P.C 79), a case decided on the analogous provisions of the Bengal Tenancy Act would seem to render admissions by tenants in leases subsequent to 1898 also admissible in evidence whatever be their probative value.

6. In the light of the above principles, I have to consider whether the lands with, which we are concerned in this suit are private lands. The lands are situate in the village Madgole itself and have been referred to as part of the Rajuseri lands of the Madgole zamindar in several documents dating from 1877 to 1939. This would show prima facie that the lands were regarded as the seri or private land of the Raju, i.e, Zamindar of Madgole. It may be that the expression “seri” is used in different senses in different parts of the Northern Circars, and that the use of the term 11 seri in documents would not conclude the matter. See, Lakshmayya v. Varadaraja Apparow, 36 Mad. 168 : (17 I.C 353), Seshayya Garu v. Rajah of Pitapur, 31 M.L.J 214 : (A.I.R (4) 1917 Mad. 649) and Apparao v. Sreeram Reddi Sanyasayya, 69 M.L.J 25: (A.I.R (22) 1935 Mad. 583). But the documents filed in the case show, in my opinion, that the expression “seri” was used to denote the private land of the Madgole zamindar.

7. Exhibit P-4, dated 6th March 1877 is a usufructuray motgage for Rs. 4,500 of “Rajuseri” lands of which the suit lands form a part. The lands are described as “our private seri form a very long time till now.” The mortgagee is empowered either to lease out the said land or carry on private cultivation. Exhibit p. 5, dated 25th August 1892 is a permanent cowle of the suit lands and the rest of the “Rajuseri” lands granted by the zamindarini of Madgole to Venu gopala Bhupathi the predecessor-in-title of the plaintiffs. The rent fixed is Rs. 150 per annum and the grantee was authorised to enjoy the lands permanently either by cultivating himself or leasing them out. Exhibit P-5 recites that the lands had been granted under yearly leases for the previous year and for the current year to three individuals and that the lands had been in the possession of the grantor till then. Exhibit P-7, dated 21st May 1893 is a deed of relinquishment executed by the three lessees referred to in Ex. P-5 in favour of the grantee Venugopala Bhupathi on receipt of a sum of Rs. 600 for the crops on the land and the cultivation expenses incurred by the lessees. This document recites that the lands are to be taken back to the “sontha seri” of Venugopal Bhupathi. These are also the documents prior to 1898 and the recitals therein show that the lands in question were regarded as the private lands of the Madgole zamindar.

8. After Venugopala Bhupathi got the lands under the permanent cowle Exs. P. 5, there are two kadapas Exs. P-8 and D 10, dated 26th June 1901, each in respect of a portion of the Rajuseri lands for a period of five years executed in his favour by certain lessees. The recital in these two documents is that the lessees were to carry on cultivation according to custom and that if Venugopala Bhupathi, the lessor, notified at the end of any Telugu year within the period of five years, his intention to resume direct cultivation of the land, the lessees would surrender possession to him without reference to the term of the lease. The term of the Kadapas Exs. P. 8 and D-10 expired in 1906 and no lease of the land from 1906 to 1917 is put in evidence. There is a cowle Ex. D-1, dated 20th April 1947 for one year executed by Venugopala Bhupathi in respect of a portion of the Rajuseri lands which are described as sarva, mokhasa. The lands are referred to as being in the cultivation of the lessor. Objection was taken to the identity of this document and nobody connected with it has been examined to prove the nature or the enjoyment by the lessee under this lease deed though such evidence was stated to be available.

9. On 22nd March 1932, Venugopal Bhupathi and his sons usufructuarily mortgaged a two-third share of the Rajuseri land under Ex. P-10 and executed a simple mortgage in respect of a third share under Ex. P-12, dated 7th June 1922. There was a further simple mortgage of the entire land under Ex. P-12(c), dated 20th October 1924 and a usufructuary mortgage of the one-third share under Ex. P-11, dated 23rd February 1927 by Venugopal Bhupathi and his sons. Under Ex. P-1, dated 22nd March 1939, that part of the Rajuseri lands which is now in question, was purchased by the present plaintiff while other portions of the said lands not in question in this suit, were purchased under Exs. P-13 and P-14. On 29th April 1939, the defendants in the present suit executed a Kadappa Ex. P.2 in favour of the plaintiffs for a period of one year. It is on foot of this Kadapa that the present suit for rent, for 1939-1940 is filed along with a claim for damages for use and occupation for the subsequent period.

10. It in admitted by the contesting defendant examined as D.W 1 in the case that the lands in question were personally cultivated by the usufructuary mortgagees under Exs. P-10 and P-11 and that subsequent to the sales in their favour by Venugopal Bhupathi, the vendees were themselves cultivating the lands personally except Eamu Naidu who used to lease out a portion of the land purchased by him but not the lands now in question. Mr. Venkatesam, the learned counsel for the respondents, naturally laid great stress on this evidence of the defendant himself as showing personal cultivation by the landholder for a period of about 17 years, immediately preceding the Kadapa Ex. P-2. There is also other oral evidence to the same effect to which it is unnecessary to refer in view of the defendant's own statement.

11. Thus, there is documentary evidence dating from a period anterior to 1898 showing the land in question was dealt with as private land. There have been yearly leases and term leases now and then since 1891. The leases, however, are not continuous. The tenants have changed as well as the rents payable in respect of the lands. These leases certainly indicate that the landholder continued to deal with the lands as private lands liable to be reduced to his physical possession whenever he required them for his own personal cultivation. From 1922 till 1929, there has been personal cultivation by the mortgagees and vendees from the original landholder. On this evidence, I am unable to say that the Courts below erred in law in arriving at the conclusion that the lands in question were private lands.

12. In view of my conclusion that the lands are private lands, it is unnecessary for me to consider at length two other questions which were argued at the bar. Mr. Ramanarasu for the petitioners contended that the most that could be claimed for the plaintiffs in this case is that the grant in favour of Venugopal Bhupathi under Ex. P-5 of 1892 was of both the warams. In that event, the grantee and his successor-in-title would be “landholders” within the meaning of Section 3(5) of the Madras Estates Land Act and the present suit for rent would lie in the Revenue Court. He relied on the decisions in Brahmmayya v. Achiraju, 45 Mad. 716 : (A.I.R (9) 1922 Mad. 373 F.B) and Narayanaraju v. Suryanarayadu, I.L.R (1940) Mad. 1 : (A.I.R (26) 1939 P.C 244), in support of his contention. Mr. Venkatesam for the respondents contended that even on the assumption that the zamindarini of Madgole merely owned both the warams in the Rajuseri lands and that the lands were not private lands, the grantee Venugopal Bhupathi became a ryot under the terms of Ex. P-5 and the subsequent acquisition of the melwaram interest under the terms of the compromise-Ex. P-7 would not affect his status as a ryot. He referred to the decision in Manikyambu v. Malayya, 47 Mad. 942 : (A.I.R (11) 1924 Mad. 782). He contended that under Section 19 of the Estates Land Act, the relationship between a ryot and his lessee is not governed by the Act, but by the terms of their contract.

13. In view of my conclusion that the lands in question are private lands, it is unnecessary to refer to these contentions further.

14. I hold, therefore, that the conclusion of the Courts below that the lands in question in this suit are private lands is supported by the evidence in the case and is not shown to be erroneous in law. I dismiss the civil revision petition with costs.

C.R.K/D.R

15. Revision petition dismissed.