Judgement

KRISHNA RAO, J. :- These appeals have been preferred by the two defendants from the judgment and decree of the Subordinate Judge, Amalapuram, in O.S. No. 90 of 1949, a suit in ejectment brought in respect of a coconut garden measuring about four acres in extent in the village of Krapa. The plaintiffs are the joint landholders of the village of Krapa, which is admittedly an estate as denned in air Madras Estates Land Act, The first defendant was employed in their service as a tanedar from 1932 to 1947, and the 2nd defendant is his brother.

The plaintiffs case is that the land is private home farm land and that the defendants are trespassers upon it; They alleged that the 1st defendant, was in charge of the land as their tanedar and has set up his brother, the 2nd defendant, to claim occupancy rights in respect of it. The defendants case is that it is ryoti land, that the 1st defendant leased the land to the 2nd defendant in 1933 or 1934 under the instructions of the father of plaintiffs 1 to 3 and the husband of tile, 4th plaintiff, who were the joint proprietors of the estate, for an annual rent of 2,000 coconuts and that in 1938 the father of plaintiffs 1 to 3 and the 4th plaintiff granted him a patta, Exhibit B-5, by virtue of which he is entitled to permanent rights of occupancy in the land.

During the trial, the plaintiff produced accounts showing that the 1st defendant as their agent was collecting every year a Makta of 3,500 coconuts for the land. Thereupon the defendants came forward with the improved story that the rent was originally fixed at 2,000 coconuts and was subsequently enhanced to 3,500 coconuts per year. The 2nd defendant even stated in his evidence that the rent was settled at 3,500 coconuts with the 4th plaintiffs son-in-law Prasada Rao in 1946, which was absurd as Prasada Rao died in 1945.

The plaintiffs also produced a number of applications and other correspondence sent by the 1st defendant between 1942 to 1946, which proceeded on the footing that the suit land was private land, as for instance Exhibit A-19, dated 28th January, 1942, in which the 1st defendant asked for a lease of the suit land for a period of 5 years, Exhibit A-20, a letter, dated 31st July, 1845, in which he claimed to be a lessee from August, 1941 to August 1946, and Exhibit dated 10th October, 1946, in which the 1st defendant proposed that the suit garden may be leased to some person after taking nazarana. These are altogether inconsistent with the defence case that the land was leased to the 2nd defendant from 1933 and a patta was granted to him in 1938.

With regard to the patta, Exhibit B-5, relied upon by the 2nd defendant, there was no reference to it in the Amarakam register of the village nor did it contain some of the particulars found in genuine pattas such as the serial number and the local case payable. On a careful consideration of these features and of the entire evidence, the learned Subordinate Judge found that the suit land is private land that the alleged lease is not true and that Exhibit B-5, is not genuine.

He also found that the 2nd defendant is a mere name lender for the 1st defendant, that the receipts for the payment of rent, Exhibits B-13 and B-16, produced by the 2nd defendant had been brought into existence with the connivance of the 1st defendant and that the 1st defendant alone was in possession of the land having been the agent of the plaintiff. On these grounds, he decreed the suit with costs for eviction against both the defendants and for profits past and future against the 1st defendant alone.

The 1st defendant has preferred the appeal fat. No. 313 of 1951, on the ground that he was not in possession of the land and that he is therefore for mesne profits. The 2nd defendant has preferred the appeal No. 222 of 1951, on the ground that the land is ryoti land in which he is titled to occupancy rights and he is therefore not liable be evicted.

2. Sri D. P. Narayana Rao, the learned counsel for the 2nd defendant has no criticism to offer against the appreciation of the evidence by the learned Subordinate Judge and challenges the finding that the suit land is private land on two grounds. The first contention is that the plaintiffs have not proved that the landholder him self cultivated the suit land for a continuous period of 12 years immediately before the commencement of the Madras Estates Land Act in 1908, and that the land therefore does not come within the definition of private land in clause (a) of section 3 (10) of the Act which applies to this estate.

His second contention is that the land was originally a Darmila inam and that it became ryoti land when it came back to the possession of the landholder.

3. We see no substance in either of these contentions. clause (a) of s. 3 (10) is in the following terms:

" Private land.

(a) in the case ................ of an estate within the meaning of sub-cls. (a), (b), (c) or (e), of Cl. (2), means the domain or home-farmland 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 conmencement of this Act".

4. It is manifest from the word includes which precedes the latter portion of the definition that land which has 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 12 years immediately before the Act is only one of the categories of private land. It is not necessary that in every case of land claimed to be private land the landholder should show that he has himself cultivated it for a continuous period of 12 years until 1908.

The matter was exhaustively considered by a Full Bench of the Madras High Court in Periannam, v. Airavadeeswarar Soundaranayagi Amman Koil, 1952-1 Mad LJ 71: (AIR 1952 Mad 323) (A), Satyanarayana Rao J., who delivered the leading Judgment summarised his conclusions thus:

"(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.

(2) Even if the nature, of the land is not known, continuous cultivation for the required period of 12 years before the commencement at the Act would conclusively establish that the land is private land.

(3) 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.

(4) Cultivation of the lands or leasing of the lands under short term leases may be one mode of proof.

(5) An intention to cultivate or resume for cultivation is also a test to decide that the land is private land and such intention may be established by any other means, hot necessarily by cultivation and by cultivation alone.

(6) The essence of private land is continuous course of conduct on the part of the landholder asserting and acting oil the footing that he is the absolute owner thereof and recognition and acceptance by the tenants that the landholder has absolute right in the land.

(7) Mere proof that the landholder is the owner of both the warams is not sufficient to prove that the land is private land." Here there is absolutely no evidence that the land was ryoti at its inception. On the other hand there is a considerable volume of evidence to show that it was treated as the private land of the landholders that they were granting it on short term leases with varying rents to different persons and frequently themselves supervising the agricultural operations on the land. Exhibits A-77 to 79, A-34, B-17, A-2 to A-4, A-31, A-5 and A-11 are the leases or correspondence showing these facts prior to the 1st defendant becoming tanedar and Exhibits B-9, B-1, B-2, B-13, B-3 and A-67 are some of the documents after the 1st defendant became the tanedar.

It is unnecessary to refer to these documents in detail, because we have already indicated that the contention that in every case of private land the landholder has to prove personal cultivation for a period of 12 years immediately prior to the commencement of the Act on 1st July, 1908, is legally untenable.

5. The contention that the land was orisignally a Darmila inam is based on certain observations in the Judgments, Exhibits A-63 and A-64. In the lower Court, the defendants position was that these Judgments did not relate to the suit land. But in this Court, the contention on their behalf is that the Judgments support their case that the suit land is ryoti land. The judgments relate to a suit filed in 1909, in the Court of the District Munsif, Amalapuram, by the predecessors-in-title of the plaintiff for the eviction of the tenants from the suit land on the footing that it was private land. Exhibit A-63 is the Judgment of the District Munsif in that litigation and shows that the suit was decreed for eviction and for rent and future profits.

Exhibit A-64 is the Judgment of the Subordinate Judge on appeal confirming the decree of the District Munsif. In the course of discussing the evidence, there were observations in the Judgments that the suit land is a Darmila inam. The learned counsel relies on these observations for his argument that when the Darmila inam was purchased by the landholder, it became ryoti land. But it is difficult to see how the observations in the Judgments can be treated as evidence in the present suit, for proving that the suit land was originally a Darmila inam as the evidence referred to in these Judgments has not been filed in the present suit.

Moreover, the Judgments themselves show that the land was originally private land, which was granted rent free to the inamdar. The very contention that it was ryoti land on the same ground as now urged was put forward there and was negatived by the Subordinate Judge in Exhibit A-64, in which he held that it was private land. Hence we have no hesitation in rejecting the appellants contention that the suit land is ryoti land.

6. The next contention of Sri D. P. Narayana Rao is that, although the land is private land the 2nd defendant has been a tenant since 1934. He points out that the documentary evidence produced on the side of the plaintiffs shows that they granted leases upto 1932 and does not show who was the tenant in possession thereafter. As the letters Exhibit B-9, dated 10th August, 1934, B-l dated 6th September, 1934, and B-2, dated 14th October 1934, sent on behalf of the plaintiffs to the 1st defendant instructed the latter to lease the land.

The learned counsel invites the inference that the 1st defendant must have given the lease to the 2nd defendant. But the 1st defendants own letters Exhibits A-19 to A-23 and A-30 to the 4th plaintiff conclusively show that he did not lease the garden, at any rate till about the end of 1946, but was managing it himself on behalf of the plaintiffs. It was only in January, 1947, as seen from his letter Exhibit A-25, that he appears to have conceived the idea of setting up the 2nd defendant as a tenant with occupancy rights probably in view of the impending legislation for the abolition of the estates.

If the 1st defendant has leased the suit land to his own brother, the 2nd defendant, he would have reported the fact to the plaintiffs and there would have also been entries in the accounts submitted by him showing his collection of rents from the 2nd defendant. But this evidence is altogether wanting. The learned Subordinate Judges finding that the land is not ryoti land and that the 2nd defendant is not a tenant is clearly correct and is confirmed.

7. Finally, Sri D. P. Narayana Rao contends that the suit is not maintainable as the estate was taken over by the Government under the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948). He refers to sections 3, 12 and 56 of the Act and urges that the entire estate including the private lands vests in the Government with effect from the notified date, that the plaintiffs are entitled only to the grant of ryotwari patta in respect of their private lands and that the dispute as to their right to a patta falls within the exclusive jurisdiction of the tribunals set up under S. 56.

This contention is based on a mis-reading of the relevant sections. Under proviso (ii) to S. 3 (d), the Government shall not dispossess a landholder of any land in any estate in respect of which they consider that he is prima facie entitled to a ryotwari patta pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it as to whether he is actually entitled to such patta. If the suit land is a private land of which the landholder is entitled to possession under the said proviso he is entitled to continue in possession.

The Government is not entitled to dispossess him and he is surely entitled to evict any trespasser from the land. There is nothing in the Act to support the view that the landholder has no right to possession of private land until he gets a ryotwari patta in respect of it under S. 12. As regards S. 56 the learned counsel apparently refers to Cl. (c) of sub-s. (1) which says that any dispute as to who is the lawful ryot in respect of any holding shall be decided by the Settlement Officer.

But the word ryot has the same meaning as under the Madras Estates Land Act, 1908, and the question as to who is a ryot can arise only in respect of ryoti land. Once the land is private land the question as to who is the lawful ryot in respect of it does not arise and the matter does not, therefore, fall within the jurisdiction of the special tribunals set up under the Act. We are of the opinion that Act XXVI of 1948, is no obstacle to the maintainability of the suit.

8. Sri V. Parthasarathi, the learned counsel for the 1st defendant, contends that there is no evidence establishing that the 1st defendant was in possession of the suit land and that the lower Courts decree making him liable for mesne profits is therefore erroneous. There can be no doubt, as observed by the learned Subordinate Judge that the 2nd defendant was merely a name lender for the 1st defendant. The learned Subordinate Judge has pointed out how particulars relating to the leases and the payments of rent put forward in the written statement were correctly reproduced in the evidence only by the 1st defendant and how the 2nd defendant appeared to be ignorant of them. As regards the point taken by the counsel that there is no definite evidence about the 1st defendants possession, P. W. 2, has definitely stated, "Defendant (1) is in possession of the garden now."

P. Ws. 3 and 5 have stated that the 1st defendants (Paka or shed) was in the suit garden. Against the background of the 1st defendant having managed the lands on behalf of the plaintiffs and subsequently set up the 2nd defendant as a name lender to claim occupancy rights, we see no reason to doubt the truth of the above-mentioned evidence, that he is in possession. He ceased to be the agent in 1947 and the decree for mesne profits relates to the subsequent period. We must therefore negative the contention that the 1st defendant is not liable for the mesne profits decreed. Both the appeals fail and are dismissed with costs.

Appeals dismissed.