Panigrahi, J.:— This appeal arises out of a suit filed by the Zamindar of Shergada Estate for delivery of possession of 39.49 acres of land in village Brahmahatya within the ambit of his zamindari and for other reliefs.

2. The plaintiff's case is that the suit lands bearing survey Nos. 60, 107 and 115 are his ‘hetta’ or private lands and that the defendants No. 6, 7, 8 and 20 took them on lease for Fasli 1348 and entered upon the lands as his tenants, that the lease was renewed by a registered document for the subsequent Fasli, but that at the instigation of one Gobind Pradhan the defendants refused to surrender possession and claimed occupancy rights in them. The dispute between the parties led to initiation of proceedings under Section 145 of the Cr PC, and the Sub-Divisional Magistrate passed an order upholding the possession of the defendants. The plaintiff was, therefore, obliged to file the suit for declaration of his title and for a permanent injunction restraining the said defendants from entering upon the suit lands, or in the alternative, for delivery of possession and for other reliefs. The other defendants are alleged to have combined with defendants Nos. 6, 7, 8 and 20 and prevented the plaintiff from taking possession. The case for the defendants is that the suit lands are not ‘hetta’ lands, and that they have been in their possession from time immemorial as their ‘Jeroyati’ lands. They denied the genuineness and validity of the leases executed by defendants 6, 7, 8 and 20 and denied the right of the plaintiffs to recover possession.

3. The main contention in the suit was whether the suit lands are the private lands of the plaintiff or whether they are Jeroyati lands. The learned Additional Subordinate Judge, on an exhaustive analysis of the large mass of documentary and oral evidence adduced by the plaintiff, came to the conclusion that the suit lands are not ryoti lands of the defendants, but that they are the private lands of the plaintiff, and accordingly decreed the suit.

4. It is enough, for the purpose of this appeal, to examine the evidence referred to by the learned counsel for the appellants, who has very fairly and ably put the case for the defendants. The earliest document on the record is Ex. 1.i, dated 25-7-1879 which is ‘Koshto Muchalika’ executed by some tenants of the village in favour of the manager who had been appointed by the Court of Wards and who was then in charge of the management of the Shergada Estate. This muchalika is in a printed form and contains several clauses, and purports to lease out only the ‘Jeroyati’ lands in the village excluding the Inam, the excess Jeroyati, Banjar and other kinds of lands. Clause (10) of the muchalika specifically says that the ‘Heista’ lands in the village measuring 39 acres 95 cents which the Mustajar alone was entitled to cultivate, would also be cultivated by the executants according to their share in the village. Ex. 1.j/1881, 1.i/1884 and 1.m/1884 are similar muchalikas for Faslis 1291, 1294 and 1295. The plaintiff has also filed Exs. 1, 1.a, 1.b, 1.c, which are muchalikas for the period 1885-1898, and they show that the suit lands were specifically let out as the private lands of the plaintiff. Exs. 1.n, 1.d, 1.e and 1.f are muchalikas for the years 1899 to 1908 and Exs. 1.o, 1.z, 1.p, 1.q, 1.r, 1.g and 1.h for the period 1908 to 1940. All these muchalikas purport to lease out the ryoti lands and the ‘Hetta’ lands separately to the mustajars the stipulation being that the rajabhag in respect of the ryoti lands was to be collected in equal shares and the rent from the ‘Hetta’ lands to be paid at 12/20ths of the yield. In many of these documents the area of the ‘Hetta’ lands is specifically given, but a common feature in all these is that the ryoti lands alone ‘(Fakta-Jeroyati)’ were being leased out to the mustajar at a fixed sum, and the ‘Hetta’ lands were specifically mentioned as having been leased out to the kustajar so that he may either cultivate them himself or get them cultivated and pay rent to the land-holder. Another class of documents exhibited are the sub-leases Ex. 1.s to 1.z executed by the tenants of these lands in favour of the mustajars. Ex. 2 is a sale list showing the leasing out of the ‘Hetta’ lands to the highest bidder for Fasli 1348. Ex. 3, dated 30-9-1931 is a list of the ‘Hetta’ lands relating to the suit village prepared by the then Karanam on the requisition of the Manager. Exs. 4 to 6 are documents relating to the proceedings taken by Government under Section 166 of the Madras Estates Land Act and are of comparatively recent date. Ex. 8, dated 28-8-1896 and Ex. 8(a) dated 22/6/1908 are perpetual lease deeds executed by persons of different villages in favour of the plaintiff-zamindar, by which his private land in other villages was converted into ryoti on payment of a premium and a fixed annual rental. Ex. 9 is the Survey Rent Register of the year 1898, prepared by Government, on the application of the proprietor and the suit plots are registered as ‘Hetta’ belonging to the Zamindar. Ex. 11 series are the accounts of the years 1906 to 1909 maintained by the then mustajars which show that the ‘Hetta’ lands were separately dealt with and that the rent was collected separately for these lands. Ex. 12 is a registered mortgage bond of the year 1898 executed by an adjoining owner of these lands in which these lands are described as ‘Hetta’ and as lying on the boundary of the lands mortgaged.

5. Besides these documents of unimpeachable authenticity the plaintiff examined a number of witnesses to prove that he owns ‘Hetta’ lands in several villages in his Estate, that these lands were being leased out to kustajar? specifically, that the ryots always recognised these lands as the zamindar's private property, and that there was no trouble regarding the ownership of these lands until 1938.

6. On the side of the defendants there is practically no documentary evidence bearing on the point and the oral evidence is to the effect that there are no ‘Hetta’ lands in the village and that all the lands are ‘Jeroyati’. Defendants 6, 7, 8 and 20 did not go into the box to explain how they came to execute muchalikas for the years 1348 to 1349.

7. The learned Subordinate Judge, relying on this evidence, came to the finding that the suit lands had always been treated by local custom as the landlord's private land, that the zamindar had also succeeded in proving that the ‘Hetta’ lands had been specifically let out as such at different times for about thirty years prior to the passing of the Madras Estates Land Act, and for forty years subsequent to that date and that the suit lands satisfied the definition of “private” land in the Madras Estates Land Act.

8. Section 3(10) of the Madras Estates Land Act defines “private” land as follows:

“‘Private land’ means the domain or home-farm land of a land-holder, by whatever designation known, such as kambattam, khas Sir or pannai and includes—

(a) all land which is proved to have been cultivated as private land by the land-holder 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;”

9. Section 185, before its amendment in 1934, contained a proviso which has been embodied in and now forms a part of the definition section in S. 3(10)(a). The proviso reads as follows:

“Provided that all land which is proved to have been cultivated as private land by the land-holder himself, by his own servants or by hired labour with his own or hired stock for twelve years immediately before the commencement of the Act shall be deemed to be the land-holder's private land.”

10. There is thus no difference between the old Act and the amended Act, except that the proviso to Section 185 of the pre-amended Act now forms a part of the definition of “private” land and is numbered as S. 3(10)(a). The definition of private land is by no means happy when it says that private land means the domain or home-farm land of a land-holder, by whatever designation known, such a Kambattam, Khas, Sir, or Pannai. It was very strenously argued by Mr. Pal that, unless the land is the domain or home-farm land of the land-holder, it cannot be private land within the meaning of the Act, irrespective of the name given to it. According to him, unless the land-holder proves that he has cultivated the land himself or by hired labour and the land forms his domain, the Act does not take it within the category of “private” land. This construction, in my opinion, is not only unsound, but is entirely opposed to the history and policy of the Act. It may be that the distinction between ryoti land and private land resembles in many respects the distinction between tenemental lands and the Lord's domain of Feudal Europe. But even the closest possible analogy will not be a sufficient justification for importing idea foreign to the land system of India. This is even more so where the differences between the rights of the Lord in his manor are so fundamental and far-reaching. As Mr. Harrington says (See Harrington's Analysis, Vol. III p. 398):

“It is only by attempting to assimilate the complicated system we find in this country (India) with the simple principles of landlord and tenant in our own, and especially in applying to the Indian system the terms of appropriate and familiar signification which do not, without considerable limitation, properly belong to it, that much, if not all, of the complexity ascribed to the subject has arisen.”

11. For it is not historically true to say that the zamindar has reserved the private land to himself in the same way as the Lord of the Manor reserved his demesne land when letting out the rest. It is for this reason that the Legislature has been at pains to make the meaning of the term clear by enumerating the various local designations such as Kambattam, Khas, Sir, Pannai. The corresponding terms in the Bengal Tenancy Act are: Khamar and Nijjhote (for Bengal) and Zirat, Sir or Khamat (for Bihar).

12. The history of the origin of private lands takes us back to the times of the pre-Mohammedan period when the Native Chiefs in India had lands held and cultivated by themselves, by members of their families or hired labourers. When the Mohammedan Government reduced these Native Chiefs to the position of Zamindars, it allowed the lands held as Nijjhote to remain in their possession and did not demand any land tax from them. The limit fixed for the extent of revenue from lands in each zamindari was 1/20ths of the entire extent of the zamindari. Thus, the technical meaning assigned to “private” land lies in its reference to land which was, at the creation of estates by the Mohammedan Government, in the direct occupation of the landholder and which was freed from all revenues as remuneration or a part of the remuneration of the zamindar or land-holder for his duties. This was clearly brought out by the Hon'ble Mr. G.S Forbes in introducing the Madras Estates Land Bill, as amended by the Select Committee:

“The term ‘private’ land or ‘homefarm’ is unfortunate as it seems to import merely land in the private occupation of the landholder; and where the Bill imposes restrictions in respect of ‘private’ land, it appears to those who do not fully understand the import of the term as if in some sort of way we were interfering with a person's natural right to take up and use land in his own estate. The distinction obtains primarily in zamindari and jagir estates and its origin is ‘historical.’ These private lands represent the “savaram” lands or allotments, freed from all public charges, which were specifically assigned by the Mussalman Government to the zamindars in making settlements of revenue with them. The savaram lands were the remuneration, or rather part of the remuneration, which the zamindar received for collecting the Government revenue and maintaining public order in the zamindari and rendering such service as the Settlement imposed upon him. They were in a sense his freehold so long as they remained in that category. All other lands were ryoti, or, to use the term in the Northern Districts, jeroyati, that is, lands which a ryot could occupy on the customary terms and the revenue of which was taken into account in determining the annual peshkash which the zamindar bound himself to pay to the Government. This distinction exists wherever the Mohammedan Government held sway from the Himalayas to Cape Comorin. The great importance of maintaining the distinction lies in this, that, if the land is private domain, occupancy rights cannot be acquired in it (except indeed the zamindar voluntarily transfers it to the class of ryoti land). It has, therefore, been the constant endeavour in many estates to claim ryoti land as private domain and so exclude it permanently from the class of land in which occupancy rights can be claimed. There is nothing in this to deprive the zamindar of the power of extending his own cultivation. A zamindar can cultivate any vacant ryoti land he pleases, and so long as he pleases; only the land does not cease to be ryoti and when he gives up the farm and admits a tenant, that tenant becomes a ryot.”

13. Again when the clause was under discussion, he said

“Kambattam or pannai lands are simple descriptive terms to indicate what is meant. These terms have been constantly interpreted. It is really a verbal definition.”

14. In explaining the proviso to S. 185 which was clause 166 in the Bill, Mr. Forbes made the following remarks:

“Perhaps I may explain that the dates have reference to two absolutely different things. The question of user for twelve years refers to cases in which the landholder himself has used the land and cultivated it by his own servants. The period “prior to the first day of July 1898” refers to private land proper, in which there may have been a tenancy. Real pannai land will remain pannai land, ‘whether it is tenanted or not.’ But in order to solve difficulties, it has been declared here, as in several other provinces, that whether the land is really pannai or not, if it has been cultivated as his private land by the zamindar by his own servants or by hired labour, with his own or hired stock for twelve years, it shall be deemed to be his private land. I am not sure that it is not going too far; that is, however, my own opinion. We have followed what has been done in other provinces, where this provision has enabled the landholders, I fear, to convert a good deal of ryoti land into private land. The proviso to clause 166 is entirely in favour of the zamindar. The first part of the clause enables one to ear-mark what is really pannai land, without going back to 1802, or to a period anterior to it, to find out what lands were given by the Mussalman Rulers to the zamindars. The proviso refers to the land which shall be deemed to be pannai land. The first day of July 1898 was taken, because that was the date of publication of the Bill, containing the provision though the date put in that Bill was 1871. The date is very important because it is extremely important that the zamindar should have as little opportunity as possible of converting ryoti into private land. The Select Committee changed 1871 into 1898 because they felt that at any rate from the latter date the zamindars must have known what was in contemplation.”

15. It will thus be seen that “private” lands had their origin in the grant or creation of estates by the Mussalman Government. Mr. Grant in his evidence before the House of Commons, said that the zamindars,

“have certain specific allotments of landed property called Nowcar or means of subsistence included in their respective jurisdictions such property being always of comparatively small extent, seldom more than 1/20th part of the Zamindari, when rightfully held, and invariably annexed to the patent office of Zamindar”

16. Vide Harrington's Analysis, Vol. III, p. 361. This, he considers, to be a reward for the services performed by the Zamindar other than that of collecting revenue for which, he says, the zamindar received another commission of 5 per cent, deducted from the gross revenue (fifth Report, Vol. III, pp. 360, 467, 475). It will thus be noted that what is called ‘private’ land in the Estates Land Act is the creation of the Mussalman Government and that is what Mr. Forbes meant when he said that “its origin is historical.” Mr. Grant, in his political survey of the Northern Circars, puts the same thing more forcefully thus:

“It has been asserted, and we presume to think on grounds admitting of political administration, that no one tribe of Hindu landholder jointly or severally within the Sircars, or the whole of them collectively, under whatever denomination (except the ancient Rajas of the country who have been particularised as the descendants of the Royal Family of Orissa or the Gajapatis) have, in right, form or fact, the smallest pretensions to any territorial property beyond the extent of their specified official domains called savaram making scarcely 1/20th part of the local civil jurisdiction committed to their management by the sovereign proprietory Government.”

(Fifth Report, Vol. II, p. 237).

17. The Act not only recognises such lands as had already been assigned by the Mohammedan Government as the official domain or savaram and labelled them private lands, but also created another kind of private lands which is defined in the proviso to S. 185 of the Act. The proviso indicates that

“all land which is proved to have been cultivated as private land by the land-holder himself, by his own servants or 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.”

18. Thus, lands which were proved to have been, cultivated by the landholder for twelve years, prior to the commencement of the Act, were artificially given the status of private lands, whether really they were so or not, they were thus created by a fiction of the law.

19. There are therefore two classes of ‘private’ lands specified under the Act, viz.; (I) private lands strictly so called and known as Khas, Kambattam, Sir, Pannai or Hetta, as defined under S. 3(10); and (II) fictitious private lands described in the proviso to S. 185 of the Act. The second category of private land can exist in all estates, whether ancient or modern, whether created by the Mussalman Government or by the East India Company. To determine whether any disputed land is of the second class or not, it is necessary to prove that the landholder himself cultivated the land either by his own servants or by hired labour for twelve years immediately before the commencement of the Act. But to determine whether a disputed land is of the first category; of private land may not be so easy as its origin is historical and dates back to the pre-British period. Realising this difficulty the Legislature has laid down certain rules for determining this, in the substantive portion of S. 185. These rules are: (1) Local custom; (2) Whether the land was, before the first day of July 1898, specifically let out as private land; (3) Any other evidence. Every land within an estate is presumed to be ryoti, and the burden lies on the zamindar who wants to take it out of the category of ryoti land and claim it as his private land. If the land-holder succeeds in proving any of the matters referred to in S. 185 of the Act, the burden of proof is shifted on to the shoulders of the ryot who should prove that in 1802, or prior to it, the land was not real savaram land, or that on some former occasion the land was the occupancy land of some ryot, or offer any other similar evidence. If he proves these facts, the land will be held to be not private land. Mr. Forbes, therefore said that

“the period prior to the 1st July 1898 refers to private land proper in which there may have been a tenancy. Real pannai land will remain pannai land whether it is tenanted or not.”

20. A private land may be converted into ryoti land by the land-holder, as has been done in this estate, under exts. 8 and 8(a). But the acquisition of a ryoti interest in ryoti land will not convert the character of the land into private land. Section 8 of the Act prevents a merger of the interests. The lessee of the private land is called a tenant of the private land as distinct from a ryot of a ryoti land. Section 19 specifically prevents accrual of any right in a tenant of the private lands of the zamindar. Section 19 says:

“Except as otherwise specially provided in the-Act the relations between a ryot and his tenants, or between a land-holder and a tenant of his private land, and the rights of any other owners of land are not regulated by the provisions of this Act.”

21. The argument of the appellant that, in the absence of evidence of self-cultivation by the zamindar no land can come within the definition of private land cannot, therefore, be accepted if the land falls within the first category.

22. Mr. Pal laid considerable stress on the meaning assigned to the word “domain” in the Encyclopaedia Brittanica as meaning land retained by the Lord of the Manor for his own use and occupation” and would restrict the meaning to land immediately surrounding the mansion or dwelling house of the lord. This restricted use of the word was accepted by Seshagiri Ayyar, J. in the ‘Zamindar of chelapalli v. Somayya’ 39 Mad 341. The learned Chief Justice, delivering the leading judgment in this case, however, relied upon the test laid down in ‘Budley v. Bukhtoo’ (1871) 3 NWP HCR 203, and held that Sir land is land which a zamindar has cultivated himself and intends to retain for resumable cultivation by himself even if from time to time he demises it for a season. It is to be noted that in the Madras case the land was ryoti land at its inception and the claim made on behalf of the zamindar was that he had since converted it into private land. This case which was later affirmed by the Judicial Committee of the Privy Council in ‘Mallikarjuna prasada v. Somayya’, 42 Mad 400, can hardly help the appellant in the case before us, since there is absolutely no proof that the land was at any time ryoti and all the evidence adduced goes to show that for at least 70 years the land has been regarded and recognised by both parties as the Hetta or private land of the zamindar.

23. Our attention was also invited to the cases reported in ‘Veerabhadrayya v. B. Naganna Naidu’ 50 Mad 201 : AIR (14) 1927 Mad 41, ‘Apparao v. Sreerama Reddi Sanyasayya’, AIR (22) 1935 Mad 583, ‘Chinnarigadu v. Kotigiri Rangiah Chetty’, AIR (22) 1935 Mad 789 and ‘Zamindar of Nuzvid v. Lakshminarayana’ 45 Mad 39. The latest case on the subject is the Tanjore Palace case reported in ‘Jagadeesam Pillai v. Kuppammal’ (1946) 1 Mad LJ 23 containing a judgment of Wadsworth and Koman, JJ. The earliest case on the subject is ‘Chintam Reddi v. Appalu Narasimha Raja’, 1914 Mad WN 766 to which Wallis, J., (as he then was) was a party and where it was observed that the fact that the land had been let as private land in the years immediately preceding 1898 is some evidence that it was private land and that it has to be considered with the evidence of local custom and all other evidence in the case. In the Chellapali case Wallis, J., pointed out that the Zamindars in the Circars succeeded in inserting in the pattas and muchalikas terms negativing the existence of occupancy rights subsequent to the decision in ‘Chokkalingam Pillai v. Vythealinga Pundara Sunnady’ 6 Mad HCR P. 164, and that one way of effecting this purpose is to deal with the land as Kambattam or home-farm land. It was for this reason that the Estates Land Act like the other Provincial Tenancy Acts, enacted that lands could not be claimed as private lands unless they had been so let out prior to a certain date mentioned in the Act. In the Chelapalli case (39 Mad 341) the earliest accounts of the village of the year 1836 showed that it contained only 102 acres of Savaram or private lands in which the suit-lands were not included and that 800 acres had been classed as Kambattam at the time of the suit. In these circumstances, the learned Chief Justice held that merely to call the lands Kambattam and let them on terms which negatived occupancy rights, with a view to preventing the assertion of such right, is not sufficient to convert them into private lands within the meaning of the definition. This case, therefore, is no authority for the very broad proposition urged by Mr. Pal that in no case can lands be called private lands unless the zamindar proves that he has himself cultivated them. In ‘Mallikarjuna v. Subeiah’ 39 Mad LJ 277, Abdur Rahim, J. had to deal with lands that were admittedly ryoti in 1864 and that, in consequence of a violent cyclone and the action of the sea the lands could not be cultivated. The Zamindar claimed to have taken up the cultivation himself and from 1873 let out the lands as Kambattam. But no accounts were produced to prove that he ever reclaimed any portion of them or cultivated the lands himself. Relying on the Chellapalli case, Abdur Rahim, J. held that the plaintiff had failed to establish that the lands were private lands. In 45 Mad 39, Napier J., relying on ‘Chintam Reddi v. Narasimha Raju’ 1914 Mad WN 766, preferred to follow the view of the learned Chief Justice and declined to adopt the reasoning of Seshagiri Ayyar, J. In that case the ryot had surrendered his right of occupancy and it was proved that the land was being cultivated for ten years prior to the date of the suit in 1915. It was also found that in 1897, eleven years prior to the passing of the Act, they were let as Kambattam lands and continued to be so let until 1905 when the landlord took them under personal cultivation. It was held by Napier, J., that the land was private land of the landlord. Sadasiva Ayyar, J., however, who was a party to the decision in this case preferred to follow the view of Seshagiri Ayyar, J. and held that if a land is proved to have once been ryoti land, it could never be treated afterwards as having been converted into Kambattam land, either by surrender or relinquishment, except in the single case mentioned in the proviso to Section 185 of the Madras Estates Land Act, namely, except where the landholder has by his own servants or hired labour, with his own or hired stock, cultivated the land as private land for twelve years immediately preceding the commencement of the Act. In a later decision of the same Court reported in ‘Veerabhadrayya v. B. Naganna Naidu’ 52 Mad LJ 38, Venkatasubba Rao, J. preferred to follow the opinion of Sir John Wallis, C.J, in the Chellapalli case and of Napier, J., in the Nuzvid case quoted above, and declined to follow the view of Seshagiri Ayyar, J. But in all these cases it will be noticed that the discussion proceeded on whether the land, which was admittedly once ryoti, could be converted into private land and what would be the effect of S. 8 upon such conversion. Nowhere is it laid down that unless the land is proved to have been cultivated by the Zamindar himself it cannot be regarded as private land. In AIR (22) 1935 Mad 789’, Madhavan Nair, J. sitting as a single Judge, upheld the inference drawn by the lower Courts that the lands in suit were the zamindar's home-farm from the fact that the zamindar had been letting on lease the suit lands from 1877 to tenants on Sagubadi pattas which were not ryotwari pattas, ordinarily given to ryots, and was dealing with them as he liked though they had never been turned out of the lands altogether. There was no evidence at all of direct cultivation by the zamindar in this case. In the Tanjore Palace case reported in (1946) 1 Mad LJ 23’ the learned officiating Chief Justice, delivering the leading judgment of the Court, observed:

“No doubt such lands may be let on short leases for the convenience of the land-holder, without losing their distinctive character.”

24. This was a case of private lands in an mam, village, which by the amendment of 1936, became an estate and came within the definition of S. 3(10)(b). All these cases were reviewed in a Full Bench case of the Madras High Court reported in ‘Bandaru Jogi v. Seetharama Murthi’, ILR (1948) Mad 223. The point for decision was whether ryoti land could be converted into private land prior to the passing of the Estates Land Act, and overruling the opinion of Venkatasubbarao, J., in ‘50 Mad 201’, the Full Bench held that sub-ss. (1) and (3) of S. 8 are operative as regards the pre-Act and post-Act conversions. A pre-Act merger did not occasion a conversion to private land but the land remained ryoti until the Act came into force. In the case before the Full Bench the land was ryoti land up to 1902 and the land-holder had cultivated it for six years before the commencement of the Act. This was not sufficient to convert it into private land and his letting of the land as private land thereafter did not confer that character upon it. It was accordingly held that the land still remained ryoti land.

25. The true test in determining the character of the land in such cases is to see whether the land-holder intended that he should exercise proprietary right over the land, as and when he pleased, although he may have let it out to tenants from time to time. In ‘Nilmoni Chakravarti v. Baikunthanath’, 17 Cal 466, which was a case under Section 120(2) of the Bengal Tenancy Act corresponding to Section 185 of the Madras Estates Land Act, the Calcutta High Court held that the Legislature in fixing the second day of March 1883 (first day of July 1898 in the case of the Madras Estates Land Act) declared the latest date on which there should be free action on the part of the Zamindars to assert their private rights so as to prevent the accrual of special tenancy rights. It was accordingly declared that it was a material point in the consideration of such a matter, like the one raised in appeal before us, whether the particular lands were, before the 1st July 1898, specifically let as the proprietor's private land.

“From this we may take it that it was intended that regard should be had to any declaration made before that day by the landlord and communicated to the tenants in respect of the reservation of the proprietor's right over the land as private land.”

26. On a review of the authorities, it is clear that what the plaintiff is required to prove in a case like this is either that the land is his. (private land, as such, falling within the definition of S. 3(10)(a), or that he had been cultivating it as his private land either himself or by his own servants, for a continuous period of 12 years before the commencement of the Act. In the case before us, all the evidence, adduced goes to show that the land is of the first category. It has been proved that there is a local custom in the Estate whereby the land-holder's right to let out the private lands on his own terms is recognised and this has been proved by the muchalikas some of which were executed by the defendant's ancestors prior to the Act and some by the defendants themselves subsequent to the Act, besides a large body of oral evidence on the point. It, has also been proved that the lands had been specifically let as private land to the mustajars of the ‘Jeroyati’ lands prior to the 1st July 1898, the land-holder thereby declaring that he intended to treat the lands as his private lands, and this was known and communicated to the tenants in their dealing with the mustajars who took these lands on lease. There is besides a ‘mass of other evidence” as the learned Sub-ordinate Judge describes it, pointing the same way. The Survey Register compiled on 30-12-1898 shows that these lands had been surveyed and registered as the private lands of the Zamindar after notice to the tenants, and no objection was taken during survey by the ryots claiming these lands as their ryotj lands. There is also the preliminary Record-of-Rights Register (Ex. 6) and the order of the Assistant Settlement Officer (Ex. 15) which go to show that the claim made by the defendants is untenable. Their own admission in the earlier Muchalikas that the land is the proprietor's private land, as well as in the survey operations prior to 1900, is evidence that the land is of that character. The learned Subordinate Judge was right in admitting such evidence—See ‘Bindeshwari v. Keshao Prasad’, 5 Pat 634. As was held in ‘Santokki v. Rameshwar Singh’, 7 Pat 187, “the presumption that all lands within an estate are ryoti is a rebuttable presumption” is the proprietor can show that though he has never cultivated the lands himself, it is nevertheless his private land. The very fact that the entire block of lands in which the Hetta lands are situated is known as “Hetta Pahado” is itself evidence that the zamindar's claim is true. Mr. Pal's argument that the name is merely historical and conveys no significance does not explain how, why and when the lands came to be known as ‘Hetta’ lands.

27. I have, therefore, no hesitation in arriving at the conclusion that the plaintiff has succeeded in proving his claim and that the learned Trial Judge has come to a correct finding on the facts. The judgment and decree of the lower Court is affirmed and this appeal is dismissed with costs.

Ray, C.J:— I agree.

Panigrahi, J.:— After this judgment had been ready Mr. Pal brought to our notice the provisions of the Orissa Tenants' Protection Act (Act III(3) of 1948) and pleaded that his clients are entitled to protection under the provisions of this Act. He particularly relief upon the definition of “tenant” which is as follows:

“‘Tenant’ means a person, who under the system generally known as Bhag, Sanja, Kata or such similar expression, cultivates the land of another person on condition of delivering to that person………”

28. The plaintiff's case was that the defendants other than 6, 7, 8 and 20 are trespassers and that defendants 6, 7, 8 and 20 were tenants in 1938 and 1939 and that at the expiry of the lease they refused to surrender the land and claimed independent title. It cannot therefore be said that they are persons cultivating the land of the plaintiff on condition of delivering to him either a share of the produce or any other rent. We have held, agreeing with the learned Subordinate Judge that they are not ryots and that the land is not ryoti land. The defendants are therefore not entitled to any protection given under the Act.

Ray, C.J:— I agree.

R.G.D

29. Appeal dismissed.