(Delivered by Somayya, J.)

The suits giving rise to these two second appeals were filed under S. 55 of the Madras Estates Land Act to compel the defendants to issue pattas to the appellant who was the plaintiff in the trial Court. His suits were dismissed by both the lower Courts and hence the second appeals. The appellant's case is that Mahalinga Iyer who was the owner of a half share in the village of Kilayur leased certain lands to him and that he has been enjoying these lands as lessee for nearly 25 years before suit. He therefore acquired occupancy rights and as a ryot he filed the two suits under S. 55 of the Act to compel the landholder to issue a patta to him.

The defence is that the appellant was not a ryot of the lands involved in these two suits and that further they are the private lands of the respondent. On both the points, the lower Courts held against the appellant. These suits were tried along with three other suits which gave rise to second appeals Nos. 971, 974 and 977 of 1944 which we have disposed of to-day. Considerable confusion has arisen by the fact that all the suits were tried together. The appellant supported the case of the plaintiffs in the other suits and was examined as P.W 2. In his evidence he merely referred to Exs. M to Y-1 and stated that Ex. M was a letter written to him by Mahalinga Iyer in 1931, that Ex. N was a similar letter of 1932, that Ex. O series five in number were of 1933, Exs. P and P-1 were of 1934, Ex. Q and Q-1 of 1935, Ex. R to R-4 of the year 1936, S to S-5 of 1937, T and T-1 of 1938, U to U-2 of 1939 and W and W-1 of the year 1940. Ex. Y and Y-1 are the suit notices that were given by the appellant one to Lakshmana Ayyar and the other to one Srinivasa Iyer. Beyond the reference to these documents in the way just set out, the appellant as P.W 2 merely stated that he has been in enjoyment of the suit lands as a lessee for 25 or 26 years. The trouble is that a mere perusal of these documents does not show that they refer to the lands in Kilayur and much less to the lands involved in these two suits. The appellant was admittedly the lessee of Mahalinga Iyer of lands situated in other villages. Mahalinga Iyer apparently owned certain lands in Umayalpuram and in some other villages. The appellant was a lessee of Mahalinga Iyer's lands in other villages as well. In fact Ex. S-2 shows that in respect of Umayalpuram lands held under Mahalinga Iyer the appellant had to pay a rent of 60 kalams of paddy. The appellant and his advisers seem to have overlooked the necessity of connecting these documents with the lands in suit which are situated in Kilayur. The lower Courts were not satisfied that these letters really refer to suit lands. If that conclusion is accepted there is an end of the appellant's case.

There is some force in the argument of Mr. Swaminatha Iyer that these documents were assumed by both the parties to refer to the suit lands. We prefer to proceed on the footing that they refer to the suit lands and in the view that we take of the other question it is really unnecessary to decide whether these letters refer to the suit lands. We are in agreement with the finding of the lower Courts that these lands are really private lands as defined in S. 3(10)(b)(iv) of the Madras Estates Land Act as amended by the later Acts. Under the Act as it stood in 1908, lands in which tenants did not get occupancy rights were dealt with in several sections and different tests were laid down in cases of different classes of estates. One class of estates under the Estates Land Act consists of whole inam villages which are not parts of zamindaries. S. 3(2)(d) defines such estates as:

“any village of which the land revenue alone has been granted in inam to a person not owning the kudivaram thereof provided that the grant has been made, confirmed or recognised by the British Government, or any separated part of such village.”

Section 3(10) defined ‘private land’ as meaning the domain or homefarm land of a landholder by whatever designation known such as Kambattam, Khas, Sir, or Pannai. S. 19 of the Act declared:

“Except as otherwise specially provided in this Act, the relations between a ryot and his tenants, or between a landholder 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.”

Section 6 which conferred occupancy rights was confined to the case of ryoti lands in an estate. Leaving out unnecessary words, S. 6, Cl. (1) says that,

“every ryot now in possession or who shall hereafter be admitted by a landholder to possession of ryoti land shall have a permanent right of occupancy,”

and ryoti land was defined by S. 3 thus:

“ryoti land means cultivable land in an estate other than private land.”

Therefore, if a certain land in an estate was private land, the person let into possession as a tenant of such land did not get occupany rights. This provision is common to all the different classes of estates defined in S. 3(2). In respect of whole inam villages which were estates under S. 3(2)(d) the Exception to S. 8 of the Act provided that where before or after the commencement of this Act the kudivaram interest in any land comprised in an estate falling under S. 3(2)(d) was acquired by the inamdar such land shall cease to be part of the estate. In the, case of villages which were estates under S. 3(2)(d), if the inamdar acquired the kudivaram interest in some lands whether before or after the commencement of the Act, those lands were thereafter not parts of the estate though they may be situated geographically within the ambit of the village. As is well known the mere fact that a certain land is within the geographical limits of the estate does not mean that it is part of the estate. In such lands, therefore, the tenant did not get occupancy rights. Chap. 12 of the Act dealt with the private lands of a landholder. S. 185 of the Act laid down certain rules of evidence to enable Courts to determine whether any land was the private land of the landholder. It enacted that in determining whether any land was the private land of the landholder, regard should be had to the 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 should be presumed not to be private land until the contrary was shown. A proviso was added that all land which was proved to have been cultivated as private land of 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 should be deemed to be the landholder's private land.

Pausing here, if a particular land was shown to be the domain or home-farm land of the landholder known as Kambhattam, Khas, Sir or Pannai, it was at the absolute disposal of the land-holder. Even if it was not shown to be such land if the landholder had cultivated the land himself by his own servants or by hired labour for twelve years immediately prior to the commencement of the Act, i.e, prior to the first July 1908 the lands should be deemed to be private land in which the tenants got no occupancy rights. In addition to these two categories, the Legislature enacted in S. 185 that if certain lands were let specifically as private land before the first July 1898 that fact might be taken into consideration along with any other evidence. Regard was also to be had to the local custom. In the case of an estate under S. 3(2)(d), there was the further provision enacted in the Exception to S. 8 that where the inamdar acquired the kudivaram whether before or after the Act he was the absolute owner of those lands; in fact those lands ceased to form part of the estate. We had thus to go to several sections to determine whether a tenant let into possession of a certain land was entitled to an occupancy right therein.

When the Act was amended piecemeal between 1934, and 1936, a more rational regrouping of the various sections was adopted and in the Act as it now stands, different kinds of lands in which the tenants do not have occupancy rights are all brought in under S. 3 Cl. 10. S. 3(10) consists of two Cls. (a) and (b). Cl. (a) deals with estates which fall under S. 3(2)(a), (b), (c) or (e) i.e, estates which are not covered by S. 3(2)(d). In the case of these estates private land is defined by S. 3(10)(a) to mean the domain or home-farm land of the landholder by whatever designation known such as Kambhattam, Khas, Sir or Pannai and to include all land which is proved to have been cultivated as private land of the landholder himself or by his own servants or by hired labour with his own hired stock for a continuous period of twelve years immediately before the commencement of the Act. This, it will be observed, is bringing a portion of the old S. 185 into S. 3(10). S. 3(10)(b) defines private land in the case of an estate falling within S. 3(2)(d), i.e, whole inam villages. Here we have four sub-clauses defining different categories of private land in such villages. The first Sub-Cl. (1) ‘private land’ means the domain or homefarm land of the landholder, by whatever designation known such as Kambhattam, Khas, Sir or Pannai.

The second sub-clause relates to lands which are proved to have been cultivated as private land by the landholder himself for a continuous period of twelve years prior to the first July 1908. There is a proviso added in these words “provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land.” Cl. (iii) provides that private land also includes land which is proved to have been cultivated 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 first day of November 1933 provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land. The fourth sub-clause includes in the definition of private land those lands in which the kudivaram was acquired by the landlord prior to the first day of November 1933 for valuable consideration provided the landholder retained the kudivaram and did not convert it into ryoti land and provided further that where the kudivaram was acquired at a sale for arrear of rent, the land shall not be deemed to be private land unless it was proved that it was cultivated by the landholder himself, by his own servants or by hired labour for a period of twelve years before the commencement of the Third Amending Act of 1936. This definition is an attempt to save some of the rights of the holders of whole inam villages which were not estates prior to the Amending Act and which became estates by reason of the Amending Act of 1936. Even under the Amended Act as it now stands, the rule of evidence enacted in the old S. 185 is retained and some further rules of evidence are enacted in S. 185 in cases of estates falling within S. 3(2)(d). Further we have two new sections added, 185-A and 185-B.

The question to be decided in this case is whether the lands in question are private lands within the meaning of S. 3(10)(b)(iv). It is not the case of the landholder respondent that his case is covered by Cl. 1, 2 or 3 of S. 3(10)(b) and reliance is placed only on Cl. (iv). The relevant wording of that clause to be considered is whether the suit land is

“land the entire kudivaram in which was acquired by the landholder before the first day of November 1933 for valuable consideration from a person owning the kudivaram but not the melwaram provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land.”

Both the lower Courts have found that the documents exhibited for the respondents prove the acquisition of the kudivaram right by the landholder. Under the Exception to S. 8 of the Act of 1908, the suit lands ceased to form part of the estate and under the Amendment Act, they are private lands under the sub-clause just mentioned.

The identity of the properties covered by the sale deeds produced by the respondents with the lands in question was disputed. But on a reference to the plaint filed by the appellant we find an express admission that the kudivaram interest in the suit lands originally belonged to various persons and that they were acquired by the defendants' predecessors-in-title in the course of several years by purchase from the other kudivaramdars in discharge of arrears of rent and also for other consideration. The sale deeds produced show that in several cases, a small portion of the consideration was the arrears of rent due and that the major portion of the consideration was cash paid. In view of the admission contained in paragraph 3 of the plaint, it is unnecessary to go into the various sale deeds in detail. The conclusion must therefore be that the landholder purchased the kudivaram from the persons who owned that right for arrears of rent and also for other valuable consideration.

The next argument is based upon the proviso in the clause that the land-holder should have retained the kudivaram ever since and should not have converted the land into ryoti land. It is urged that the fact that the lands have been leased to the appellant for the last 25 years proves that the landholder has not retained the kudivaram and that he has converted them into ryoti land. There are no materials placed before us to show that the lands were ever converted then into ryoti land. Conversion of private land into ryoti land may be by express grant as in the case which arose for consideration before a Full Bench of this Court in Chelikani Kondayya Rao v. Uppalapati Naganna(1) or possibly by leasing them along with admitted ryoti lands under a single patta with terms which are inconsistent with the landlord's absolute right in them. There is no document in favour of the appellant. There is not even a single kist receipt produced. Exs. M to Y are merely letters demanding the delivery of a certain quantity of paddy which was apparently the rent payable by the appellant. No doubt the appellant has been allowed to be in possession for nearly 25 years but as has been pointed out by this Court more than once, this may be due to the landlord's desire to retain a good tenant. This circumstance by itself cannot be taken as amounting to a conversion of private land into ryoti land, nor can it in our opinion, be taken to indicate that the landholder has not retained the kudivaram interest in him. Whether the retention of the kudivaram and the non-conversion of the land into ryoti land are regarded as two distinct conditions to be fulfilled or as meaning the same thing, it is clear that, in this case, there has been no conversion and there is no indication that the landholder Mahalinga Ayyar ever intended to part with the kudivaram right. All that appears is that he has allowed the defendant to cultivate the land for a number of years.

The expression “kudivaram” has been the subject of consideration in several cases. In Suryanarayana v. Patanna(2) the Judicial Committee observed thus:

“The term ‘kudivaram’ is not defined in the Act. It is a Tamil word, and literally signifies a cultivator's share in the produce of land held by him as distinguished from the landlord's share in the produce of the land received by him as rent. The landlord's share is sometimes designated ‘melwaram’. The ‘kudivaram interest’ an expression occurring in S. 8 of the Act is apparently understood by the High Court at Madras as meaning a right to occupy land permanently.”

The expression retention of kudivaram must be understood to mean the retention of the right to cultivate which means that the landholder may, if he chooses, take back the land and cultivate it himself. On the facts of this case, we hold that the landholder retained the right to cultivate or in other words that he retained the kudivaram. The expressions used in the letters relied upon by the appellant show that Mahalinga Aiyer treated himself as the absolute owner of these lands and that he treated the appellant as a mere tenant whom he could eject at will.

Then the question is whether the further proviso to S. 3(10)(b)(iv) applies to this case and that proviso runs as follows:

“Provided further that, where the kudivaram was acquired at a sale for arrears of rent the land shall not be deemed to be private land unless it is proved to have been cultivated by the landholder himself, by his own servants or by hired labour………”

If the acquisition of the kudivaram is within the proviso, then the land will not be considered to be private land, but the landholder will have the limited right conferred by S. 185-A and 185-B. The proviso applies if the kudivaram was acquired at a sale for arrears of rent. This expression seems to us to contemplate a sale held by a Court or revenue officer acting under the powers conferred by law and not a private sale by the owner of the kudivaram. Purchase by a private sale can hardly be termed an acquisition “at a sale for arrears of rent.”

These second appeals fail and are dismissed with costs.

N.R.R