1. The defendant is the appellant. The question in this second appeal is whether the plaintiff, the zamindar, has proved that the suit land is his private home-farm land. The suit village is a separated portion of a main village and covers 300 acres of land, wet and dry. The portion of this village is called Khas Baghayat. These two terms indicate that the land is held by the zamindars and cultivated by themselves for their own benefit. The question whether the land belongs to the zamindar as his private land has to be decided with reference to the burden of proof enacted in Section 185 of the Estates Land Act. That burden lies on the plaintiff and the lower Court has examined the evidence from that standpoint. From the year 1877 onwards the land has been let on lease. We do not know how it was dealt with prior to that year. The lower Court says that during the prior period the zamindar intended to cultivate the land because he dug wells scattered over the land. Apparently from the subsequent history of dealing with the land it does not appear that he carried out his intention of cultivating the land himself, for as already stated we find from 1877 onwards the land was let out on lease to various tenants. There are leases from 1877 to 1891 which contain the description of the land. The land is described in various ways, Kambatam land, Samastanam khanigi and provision also has been made that you can ask for the surrender of the land whenever you like and the tenants should quit at the expiry of the lease. The last description is not found in the leases subsequent to the year 1891. The evidence also shows that the lands have been held by tenants under what is referred to as Sagubadi pattas. The witnesses explain that such pattas are not given to tenants who claim occupancy right in the lands. Apart from these two items of evidence, another item of evidence had been relied on also this is referred to in para. 5 of the appellate judgment which to my mind appears to be the most important item of evidence in the case. The learned Judge says:
There is evidence to show that the zamindar and other persons who had proprietary rights over the village have let the lands year war, taken away lands from the previous cultivators and let them to others and charged rates of rent according to their pleasure, sometimes in kind and sometimes according to the prevailing cash rate in the village (P.Ws 2, 8, 4 and 6).
2. No doubt ryots were not turned out of their lands but were allowed to continue from year to year. From these items of evidence the learned Judge came to the conclusion that the zamindar has succeeded in proving that the lands are his home-farm lands. This finding is objected to by the learned counsel for the appellant on the ground that the inferences drawn from these facts do not warrant the conclusion that the lands are home-farm lands. It was argued that the description of the land as kambatam land in the lease should have been ignored by the lower Court in arriving at its conclusion, and reliance in support of that argument is placed on, the decision in 27 MLJ 7181. This judgment was confirmed by the Privy Council in 42 Mad 4002. Subsequent to the decision in 27 MLJ 718, it is not safe to place absolute reliance on the description ‘kambatam land’ in these lease deeds executed by the tenants to the zamindar.
3. But the decision in 27 MLJ 718, does not go beyond that. It does not say that such leases do not afford any proof at all in support of the claim, for at p. 723 the learned Chief Justice says:
Though the fact that the lands have been let as kambattam is evidence under S. 185 that these are private lands;
and after making such a statement he proceeds to say that in the particular case the evidence cannot be accepted as enabling the Court to come to any definite decision. This case was brought to the notice of the lower Court. It cannot therefore be said that this warning was not present to the mind of the learned Judge when he relied upon the evidence of leases adduced in support of the plaintiff's claim. In the case quoted it was thought that it was necessary that the direct evidence of cultivation should be given to prove that the land in question was private land because it was proved that the land originally was ryoti land. That has not been done in this case. No objection can be taken to the other two items of evidence on which the lower Court has relied for its conclusion. As I have said, the most important piece of evidence is the third item which shows that the zamindar was dealing with the tenants as he liked though he had not been turning them out of the land altogether. It was not contended before me that the only evidence that will prove that the land belongs to the zamindar as his home-farm land is evidence of direct cultivation, for if that is the case there is no such evidence in the case before us. The evidence, such as it is, may be slender but it cannot be said that the learned Judge was wrong in drawing the inference that the zamindar has proved that the land is home-farm land from the evidence adduced. It was also argued that the learned Judge has not recorded a finding that the land is home-farm land at the time of the suit. Strictly speaking the argument is forcible because in para. 8 what the learned Judge says is:
I therefore hold on the question of jurisdiction that village being once the private property of the zamindar, the civil Court is not prevented from entertaining the rent suits.
4. It is said he has found only that it was the private property of the zamindar and it may well be that it is not now at the time of the suit the private property of the zamindar. The argument loses is force because it has not been proved nor has it been found by the learned Judge that at any time the land in question was ryoti land. If that has been done, a definite finding that at the time of the suit the land was home-farm land would necessarily be required having regard to this fact the decision in 52 MLJ 383 does not apply. What the learned Judge purports to find in para. 8 is that the land has always been home-farm and of the zamindar and is also now the home-farm land of the zamindar, as it has not been shown in the course of the suit that at any time it was ryoti land; of the tenants. In these circumstances; I think the finding given in para. 8 may I be considered sufficiently satisfactory to meet the requirements of this argument. On the whole I cannot say that the con-elusion arrived at by the learned Judge; is not warranted by the evidence on which he has based his conclusion. I would therefore accept the finding for the purpose of this second appeal and dismiss the second appeal with costs. C.R.Ps Nos. 540 to 543 of 1931 are dismissed, but there will be no costs in the C.R Ps.
C.R.K/S.R
5. Appeal dismissed.