1. I have had the advantage of reading the judgment my learned brother has prepared in this case. The main question is whether at the time the defendant was put in possession of the lands they were ryoti lands or the private or kamatam lands of the Zamindar. The 1st defendant's claim to permanent right of occupancy in them is based on Clause 1, Section 6 of the Estates Land Act and for that clause to apply the land.must be a "ryoti land not being old waste". Private land is excluded from ryoti land by its definition in Section 3, Clause (16). It is argued that though these lands were, prior to 1877 or 188o? such as would have fallen within the definition of ryoti lands under the Act they had been effectively converted into kamatam lands before the Act was passed. My learned brother has dealt with this question exhaustively and as I agree with him I do not propose to go over the same ground. In this connection it was argued by the learned vakil for the appellant that the effect of the passing of the Act was to re-convert into ryoti all lands which had been converted previously by the Zamindar from ryoti into kamatam lands except in the one case provided in the proviso to Section 185; he relied upon Sections 8 and 185 for this contention. Here again I agree generally with my learned brother in the view he has adopted of these sections and do not propose to discuss the question at length. We cannot give retrospective effect to the provisions of an Act, especially when to do so will destroy existing rights, unless it is made clear by express language that such effect was intended. I do not read Section 8, Clause (3) as necessarily retrospective in effect. I am of opinion that the Zamindar was at liberty to convert his ryoti lands into kamatam lands before the passing of the Act and in the present case the lands were kamatam lands both at the time of the passing of the Act and when the 1st defendant was given possession. On this view the appeal fails and must be dismissed with costs.
2. The Memorandum of Objections is dismissed with costs.
Venkatasubba Rao, J.
3. The plaintiffs are the Zemindars of North Vallur. They have filed the suit which gives rise to this appeal for a declaration that the suit lands are their private (kamatam) lands and that the 1st defendant has no occupancy rights in them. There is also a prayer that the 1st defendant should be directed to deliver up possession of the lands and to pay mesne profits. According to the plaintiffs, the 1st defendant was appointed an agent at the commencement of Fasli 1327 (1917 A.D.) for the purpose of carrying on the Zamindar's private cultivation on the lands. It is also alleged in the plaint that it was agreed that the 1st defendant's agency should terminate immediately after the harvest of that fasli. The plaintiffs allege that after the harvest the then Zamindar, the plaintiffs' father, took possession of the lands and prepared them for cultivation but died on the 6th June, 1918, that the plaintiffs... after their father's death carried on certain agricultural operations and that soon thereafter the 1st defendant trespassed upon the lands.
4. The suit is resisted on the ground that the lands are ryoti lands within the meaning of the Estates Land Act and that the 1st defendant was admitted as a ryot from the commencement of Fasli 1327. He denies that "he gave up possession at the end of that fasli and states that he continued to occupy the lands in the next fasli with the consent of the plaintiffs' father. In any event he denies that he was bound to quit the land at the end of 1327 and that he acquired permanent rights of occupancy by virtue of the provisions of the Estates Land Act.
5. Two main questions arise in the suit:
(1) Are the suit lands the private lands of the Zamindar, or, are they ryoti lands in which the 1st defendant can acquire rights of occupancy?
(2) If it be found that they are ryoti lands was the 1st defendant admitted to possession as a ryot and if he was not so admitted, in what character did he take possession of the lands?
6. The learned Subordinate Judge has found that the lands are kamatam. He has also found that the 1st defendant took possession of them as the Zamindar's agent. The plaintiffs having succeeded in the suit, the 1st defendant has filed the present appeal.
7. In regard to the original character of the lands there can be no doubt that they were ryoti. The documentary evidence dearly establishes this point. The estate owned two species of kamatam:
(1) Immemorial kamatam;
(2) Lands relinquished by ryots and absorbed into Zamindar's kamatam lands.
8. This distinction is kept in view in the records of the Zamindari and document after document refers to this twofold character of the kamatam lands. It is also proved beyond doubt that the suit lands come under the second category, namely, lands originally ryoti but subsequently incorporated with the Zamindar's private lands. The finding of the Subordinate Judge is, that the suit lands were at their inception ryoti but were subsequently converted into kamatam. This finding is correct and although the plaintiffs' learned Vakil said at first that he would attack it, he subsequently gave up the point and had to concede that he could take no exception to the finding.
9. The lands having thus been proved originally to be ryoti lands, two questions arise:
(1) Could there be a valid conversion before the Estates Land Act came into force of ryoti land into kamatam land?
(2) If it was capable of being so converted has such conversion been in fact effected in regard to the suit lands?
10. I shall first deal with the question of law raised. For the plaintiffs it is contended that there was no legal bar before the Estates Land Act was passed, which would prevent Zamindar from converting ryoti land into kamatam land. Mr. Venkataramana Rao, the 1st defendant's learned vakil, strongly contests this proposition.
11. Section 185 of the Estates Land Act has been much commented on by the learned Vakils on both sides. It runs thus:
When in any suit or proceeding it becomes necessary to determine whether any land is the landholder's private land, regard shall be had to local custom and to the question whether the land was before the first day of July, 1898 specifically let as private land and to any other evidence that may be produced, but the land shall be presumed not to be private land until the contrary is shown. Provided that 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 twelve years immediately before the commencement of this Act, shall be deemed to be the landholder's private land.
12. The section, it must be first noted, deals only with the method or proof and does not enact any rule of substantive law. When the question arises, whether a particular plot of land is landholder's private land or not, how is the Court to approach the evidence? The section says that the land shall be presumed not to be private land until the contrary is shown. It refers to specific classes of evidence which may be adduced to show that the land is the landholder's private land. Is the land private land or not at the time of the suit or proceeding referred to in the section? The section does not profess to deal with the nature of the land in the past. Its intention obviously is to provide some tests for helping the Court to decide the nature of the land at the time of the suit or proceeding in which the question is raised. The section does not deal with the point, whether land which was once ryoti could or could not have been converted by the date of the suit into private land. " It has been strongly urged for the defence that the section implies that when the origin of the land is known to be ryoti, it is not open to a party to show that on the date of the suit it was private land. I am unable to impute any such intention to this section. To accept this construction would be to unduly enlarge the scope of the section, which, as I have said, mereiy lays down a rule of evidence and does not profess to enact any rule of substantive law. Now, turning to the proviso, the effect of it is to create an irre-buttable presumption that a certain kind of land shall be private land. If land had been for 12 years immediately before the commencement of the Act, directly cultivated by the landholder (that is, cultivated by his own servants or by hired labour) that land shall be absolutely presumed to be the landholder's private land. Here, again, it must be noticed that this clause is enacted by way of a proviso and not as an exception; so that, it does not follow that land not answering the description in the proviso shall be treated as other than private land.
13. If there is thus nothing in Section 185 to justify the contention that ryoti land could not before the date of the Act be converted into private land, is there any other section in the Act that forbids such conversion? It has been contended for the defence that. Section 8(1) produces such a result. It enacts that whenever before or after the commencement of the Act the entire interests of the landholder and the occupancy ryot have become united in the same person, such person shall have no right to hold the land as a ryot, but shall hold it as a landholder. If the ryot's interest therefore passes to the landholder, the latter shall still hold the land as a landholder only; but there is nothing to prevent private land being held by a landholder. If we turn to the definition of private land m Section 3, Clause 10, we find that " private land " is described as the home farm land of a landholder. There is thus nothing incompatible with the spirit of the Act in a landholder holding private land. In my opinion Section 8(1) does not support the contention of the defendant.
14. Mr. Venkataramana Rao next contends that Section 8(3) supports his view. It says that merger of the occupancy right under Sub-sections 1 and 2 shall not have the effect of converting ryoti land into private land. Both sides have argued the case on the footing that as a combined result of several provisions of the Act, ryoti land cannot, subsequent to the Act, be converted into private land. My remarks therefore must be understood as referring only to conversion previous to the Act. Under Section 8(3) the merger by itself cannot convert ryoti land into private land. It does not preclude conversion by acts subsequent to the merger, in other words, while Section 8(3) says that the merger shall not have a certain effect, it does not in addition bay that no act subsequent to the merger shall have the effect of converting ryoti into private land. Next, whatever be the interpretation of Section 8(3), does it have a retrospective effect? Was it intended that land converted into private land in remote antiquity and dealt with as such for centuries, should, the moment the Act was passed, resume its original character and once again become ryoti land One would be disinclined to impute this intention to the Legislature in the absence of clear and unambiguous language. It is urged that the words in Section 8(3) " merger of the occupancy right under Sub-section 1" necessarily import into this clause every qualification mentioned in Clause 1. It is on this basis contended that the words " before or after the commencement of this Act " in Clause 1 should be read as part and parcel of Clause 3. In my opinion, the words in question in Clause 3 can be given full effect by interpreting " merger " In that clause as meaning merger resulting from a union by transfer, succession or otherwise as mentioned in Clause 1. I am unwilling to strain the language of this Sub-section with a view to render it retrospective
15. Mr. Venkataramana Rao has next drawn our attention to Clauses 2 and 4 of Section 8 and contended that they indicate a clear intention to place the ryot in a very advantageous position. That may be so, but it does not follow that the particular advantage now contended for has been conferred upon him. The o,bscure wording of this section of the Act, as in the case of many other sections, has led to a great conflict of opinion, but on the whole 1 have come to the conclusion that the Act does not retrospectively forbid conversion of ryoti into private land. My view receives support from the judgments of Sir John Wallis, C.J. in Zamindar of Chellapalli v. Somayya (1924) ILR 39 Mad 341 : 27 MLJ 718, Napier, J., in Zamindar of Nuzvid v. Lakshminarayana and Spencer, J. in Section A. No. 1765 of 1918. A contrary view was taken by Seshagiri Aiyar, J. who differed from the learned Chief Justice in Zamindar of Chellapalli Somayya (1) and Sadasiva Aiyar, J. who differed from Napier, J. in Zamindar of Nuzvid v. Lakshmwaryana and also by Abdur Rahim and Burn, JJ. in Sreemantha Rajah Yarlagadda MaHikarjtma Prasada Naidu v. Subbiah (1919) 39 MLJ 277.
16. Before concluding this part of my judgment, I must notice one contention raised by Mr. Ramadoss, the learned vakil for the plaintiffs. He argues that before the passing of the Estates Land Act there was no presumption that a tenant had occupancy rights in land in a Zamindarl, that in the present case it has not been proved that tenants had any such rights in the suit land, that it therefore follows that Section 8 which refers to the union of the kudivaram and melvaram interests has no application and that therefore the landholder was competent to treat the land as private land before the date of the Act. He relies for the position that there is no presumption that tenants in Zamindari lands have occupancy rights upon the Privy Council rulings in Suryanarayana v. Patanna (1918) ILR 41 Mad 1012 : 36 MLJ 585 (PC), Venkata Sastrulu v. Seetharamudu (1919) ILR 43 Mad. 166 : 37 MLJ 42 P.C. and Nainapillai Marakayar v. Ramanathan Chettiar (1923) ILR 47 Mad 337 : 46 MLJ 546 (PC) which deal only with inams but the learned vakil contends that the judgments in them contain observations wide enough to apply also to ryots under Zamindars. Mr. Venkataramana Rao's answer is twofold. He says that in the first place the decisions referred to cannot be treated as overruling the view which was expressed in Venkatanarasimha Naidu v. Dandamudi Kotayya (1897) ILR 20 Mad. 299 : 7 MLJ 251 and Cheekati Zamindar v. Ranasooru Dhora (1899) ILR 23 Mad. 318 and which has long prevailed, namely, that there is such a presumption in favour of occupancy rights in Zamindari tracts. Secondly, he urges that even granting that in the lands in question the tenants did not have occupancy rights, the plaintiffs' position is not thereby improved as the Act forbids conversion of any ryoti land into private, land. These contentions raise important questions of law, which, in the view I have taken of the other points, I do not find it necessary to discuss.
17. As ryoti land could in law be converted, before the Estates Land Act came into force, into kamatam land, the next point to be decided is, were the suit lands actually so converted? Sir John Wallis, C.J. in Zamindar of Chellapalli v. Somayya (1914) ILR 39 Mad. 341 : 27 MLJ 718 citing Budley v. Bukhtoo (1871) NW PHCR 203 observes that the test laid down in that case may be accepted, namely, the private land is that which a
" Zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even from time to time he demises it for a season."
This test has been approved by the Privy Council in
Yerlagadda Mallikarjuna Prasad Nayudu v. Somayya (
1918) ILR 42 Mad 400 :
36 MLJ 257 (PC). Now applying that test, I shall proceed to deal with the question, whether the lands were actually converted into kamatam lands. Ex. 23 series are the principal documents that must be considered in this connection. They give us a connected history of the lands in question for a period of twenty years, that is, from the year 1878 to 1897. These are statements relating to collection and arrears of revenue maintained by the estate, and for deciding the point at issue it is necessary to very carefully go through the figures appearing in them and understand their full effect. The first of these series is Ex. 23 (1878-1879). The figures relating to kamatam lands are the following:
Acres 68.21 Immemorial Kamatam.
54.17/122.38 Relinquished by ryots (and absorbed into Kamatam).
18. This Exhibit shows that the extent of the village as per survey measurement is acres 3112.29. Several particulars are given as to how various parcels of this land were dealt with. The note towards the end of the document, "Deducting acres 303.91, the remaining acres 1701.88 were given on lease" is very important. The entire kamatam lands measuring 122.38 are included in 303.91 thus showing conclusively that they were treated in a different manner from the lands which are described as having been leased. The effect of this document is clearly to show that the kamatam lands were under the direct cultivation of the Zamindar.
19. As all the exhibits belonging to this series are prepared upon the same basis, a somewhat close examination of the figures in this Ex. 23 (the earliest of the series) may prove helpful in understanding also the other documents comprised in this group.
23. This chart shows that during the period between 1878 and 1895 the suit lands were mostly under the direct cultivation of the Zamindar. We find that in 1887-88 there was a break, the Zamindar cultivating over half of the kamatam lands personally and leasing the rest. The entire lands were resumed by the Zamindar in the next three faslis. Again in 1892-93 and the two succeeding faslis we find that portions were cultivated by the estate directly and portions were leased out.
24. Pausing here for a moment, these facts show that the test laid down by Sir John Wallis, C.J., in Zamindar of Chellapatti v. Somayya (1914) ILR 39 Mad. 341 : 27 MLJ 718 is satisfied in the present case. It is difficult to trace any definite item of the suit lands to a particular plot said to have been relinquished by ryots in any specified year. But it is clearly established that the conversion began at some period anterior to 1878, the date of the first, exhibit of the 23 series. By that time acres 55.17 had been already relinquished and Ex. K shows that some portion of that extent relates to suit lands. The conversion of a large part, at any rate, of the land in question seems to have been effected by 1881-82 when the total of the kamatam lands reached the maximum of 190.89 (23-B). The test is, did the Zamindar cultivate the lands directly, and even if he demised them for a season, did he intend to resume them for direct cultivation? I am satisfied that there was an effective conversion of the suit lands which were originally ryoti, into private or kamatam lands. In this connection I may also notice the evidence afforded by the Estate accounts produced to prove this part of the case. They give some indication of the extent of private cultivation carried on from time to time. They contain reference to ploughs, cattle and farm servants of the Zamindar T-23, T-31, L, T-34, T-39, T-43 and T-53 may be taken as samples of the Estate accounts. The criticism of the learned vakil for the defendant, that there is no mention of the suit lands by name in these accounts is no doubt well founded; but I think though they may not, standing by themselves, be of much use, they possess some value as corroborating Ex. 23 series.
25. In the survey I have made so far, I have dealt with these lands till the year 1895. In 1896 began the partition suit between the North and the South Vallur Zamindars. A Receiver was appointed by Court and all the suit lands were leased by him to Parisi Nagi Chetti (P.W. 4) and Palla-bothu Subbiah under Ex. MM. The lease was given only for a year and the lands were described as the private lands of the Zamindar. These lessees appear to have continued in possession till 1900, that is for the full term during which the Receiver was in office. The land register prepared in 1896, Ex. NN, treats the Zamindar as the pattadar of the suit lands. The suit resulted in a partition and it is somewhat important to note that in the division these lands were treated as the private lands of the estate. They were divided between the two Zamindars, the lands in dispute having fallen to the share of the plaintiffs' father (see Ex. 25)
26. I have so far confined myself to the evidence relating to dealings with the lands previous to 1898, for the last lease to which I have referred, is the lease given by the Receiver in 1896. Section 185 of the Estates Land Act says that when it becomes necessary to determine whether any land is landholder's private land regard shall be had inter alia to the question whether the land was before the 1st of July, 1898 specifically let as private land. Legislation which culminated in the Estates Land Act was for some time in contemplation and it was believed that to forestall it, landholders were anxious to make pelf-serving statements in documents executed during the years that immediately preceded that Act. Although the section merely says that regard shall be had to the manner of letting the land before 1st July, 1898, it seems to follow from this, that evidence of subsequent dealings is by implication excluded. This is the construction I am disposed to place upon the section. If the question is whether a plot of land is ryoti land or private land, the landholder to make out his contention that they are private cannot rely upon leases made subsequent to July, 1898. But, in my opinion, such leases can be put in evidence for the purpose of showing not the character of the land (ryoti or kamatam) but for showing that if the lands had been treated as private lands till 1898, they were not treated differently subsequent to that date. The question may arise in this way ft may be said that the lands were till 1898 kamatam but lost that character subsequent to that date. To rebut such a case, it is certainly open to a landholder to rely upon his subsequent dealings with the land and show that he did not change the character of the land from private into ryoti. This is, I think, the right construction of the section and my view receives support from the observations of Sundara Aiyar, J., in Lakshmayya v. Sri Rajah Varadaraja Apparao Bahadur (1912) ILR 36 Mad. 168 at 175 : 23 MLJ 624.
27. I shall therefore examine the documents subsequent to 1898 with a view to find out whether the lands which were kamatam on that date preserved that character afterwards or again became converted into ryoti. In 1900 after the Zamindar took possession in pursuance of the partition decree, he leased the suit lands to one Y. Ramiah. The lease was for a term of ten years. The lease deed Ex. DD recites that the lands are kamatam, that the lessee shall possess no jeroyiti right, and that he shall surrender the land at the end of the period. Though the lease was for 10 years the lessee surrendered the land on the expiry of the third year and the Zamindar thereupon had an auction held and granted the lease to one Bonda Ramiah who was the highest bidder. The lease is marked as.GG-2' and contains provisions similar to those in the previous lease, Ex. DD. There are in this document also recitals to the effect that the land is kamatamand chat the lessee shall have no jeroyiti right and shall deliver up the lands at the end of the period. When this lessee's term expired, an auction was held in the year 1909. It was mentioned in the Zamindar's hookum or order, Ex. B, that the lease would not confer upon the lessee any rights in the property and the sale was made expressly subject to this condition. Whereas on each of the two previous occasions (in the case or Y. Ramiah and B. Ramiah) the lease was of the entire land, on this occasion different parcels were leased to different individuals and Exs. C to C-4). are some of the lease deeds executed by the highest bidders at the auction. Care was again taken to insert in these deeds recitals that the lands were kamatam, that the lessees could acquire no jeroyiti rights and were bound to deliver up the lands at the end of the term. In 1910 when the terms of these leases expired, a similar process was gone through and fresh leases were executed. This state of things continued till 1912.
28. From this time onward, direct evidence is lacking in regard to the Zamindar's dealing with the land. Thentu Lakshamanna was allowed to cultivate it from 1912 and his connection with it ceased in 1917 when it was given over to the 1st defendant. In the case of these two individuals, there was no document taken or executed which would show the terms on which they were admitted to the land. This circumstance has led to much controversy in regard to the nature of their interest in the property, and I shall presently discuss the points raised in this connection. But for the present it is sufficient to point out that the dealing with the land by the Zemindar has not been such as to convert what was at the commencement of 1912 kamatam land into ryoti land. My conclusion therefore on this part of the case is, that when the 1st defendant obtained this land in 1917 the land was the private land of the Zamindar in which the 1st defendant could acquire under law no occupancy rights.
29. On the point whether the Zamindar directly cultivated the land, a great deal of oral evidence has been adduced. It has been very fully analysed by both the learned vakils and discloses many contradictions and discrepancies. As a matter of fact, the plaintiffs' oral evidence on this point runs counter in some places to the documentary evidence which I have discussed. I may say that in general the witnesses speak to there being direct cultivation, so far corroborating the documentary evidence on the point, but in regard to details their evidence is worthless. The point, however, has mainly to be decided with reference to the documents filed and I have already said that they clearly establish the plaintiffs' case.
30. I have held that ryoti land could, before the Estates Land Act came into force, be converted into private land. I have further held that the plaintiffs have made out that the suit lands which were originally ryoti had been so converted. I have also pointed out that the suit lands which had become private lands before the Act was passed, continued to be so treated till 1917 when the 1st defendant was admitted to possession. These findings are sufficient to lead to a dismissal of the appeal as the 1st defendant's case that he acquired occupancy rights thus entirely fails
31. I have now dealt with all the principal points raised. As I have held that in 1917 when the 1st defendant was admitted into possession, the lands were the private lands of the Zamindar, the question is of no importance, namely, whether he trespassed in 1918 or he held over after his term expired at the end of 1917.
32. In regard to the mesne profits claimed, it has not been shown that the amount awarded is excessive. In the result, the appeal is dismissed with costs.
33. The memorandum of objections is dismissed with costs.