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TMI Blog1970 (11) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion in all the cases that the land-holders failed to establish that they were personally cultivating the lands or intended to resume the lands for personal cultivation. He rejected the claim made on behalf of the landholders except in a single instance. There were appeals preferred to the Estates Abolition Tribunal which reversed the Settlement Officer's findings. The Tribunal held that in all cases the landholders were entitled to the grant of ryotwari pattas as the land was held to be private land within the meaning of Section 3(10)(b)(i) of the Andhra Pradesh (Andhra Area) Estates Land Act. 3. The tenants filed applications under Article 226 of the Constitution questioning the decision of the Estates Abolition Tribunal. There were in all nine writ petitions decided by Chinnappa Reddy, J., by a common judgment. The learned Judge quashed the decision of the Tribunal in all the cases. The ground on which he acted is that the decision of the Full Bench of the Madras High Court in Periannan v. A.S. Amman Kovil [1952-I M.L.J. 71 (F.B.)] (hereinafter referred to as Periannan's case, (which, if held to be good law, would result in the dismissal of the writ petitions), has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 12 years, immediately before the commencement of this Act; and (b) In the case of an estate within the meaning of sub-clause (d) of clause 2 means-- (i) the domain or home-farm land of the landholder by whatever designation, such as Kambattam, khas, sir or pannai land; or (ii) 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 12 years immediately, before the first day of July 1908, provided that the landholder has retained kudivaram ever since and has not converted the land into ryoti land; or (iii) land which is proved to have been cultivated by the land holder 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 1st day of Nov. 1933, provided that the landholder has retained the kudivaram ever since and has not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of time had been transformed into the category of private land. The evidence was considered in detail by Wallis, C.J., who referred to the earliest accounts of the village of the year 1836 to show that the home farm of the zamindar then consisted of only 102 acres and that by the date of the suit the holding has been expanded to cover an area of 800 acres in the village. The accounts of the later years viz., 1866 and 1867 show that only 49 and 54 acres respectively were under cultivation as "kambattam" in those years. The learned Judge applied the rule regarding the onus of proof. He was of opinion that after 1875 when the decision in Chockalinga Pillai v. Vythealinga Pundara Sannady [(1870) 6 M.H.C.R. 161] was rendered, there was an extraordinary increase in the area of land classed as "kambattam". It was held that the zamindar has not shown that he has ever cultivated the lands in dispute in that suit and that on the contrary the evidence was that the lands were always cultivated by tenants. It was on the factual data outlined above that the decision was rendered. The learned Chief Justice observed: "Once it is shown as here that they were a ryoti, down to a certain date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed as feudal lords; nor were they living in mansions. Many of the grantees of the inam villages were common folk to whom notions of high life were foreign. They neither kept manors; nor were they feudal lords 15. The obiter dicta of Seshagiri Ayyar, J., show that his Lordship did not bear in mind some essential or basic features of the permanent settlement to which reference will be made hereafter. 16. In our opininon, it is not possible to regard the pronouncement in Zamindar of Chellapalli v. Somaya [I.L.R. 39 Mad. 341.] as an authority for the proposition that "domain" within the meaning of Sec. 3(10) of the Estates Land Act must be held to mean land around the mansion or home of a lord and appurtenant thereto. The decision did not rest on the interpretation of the word 'domain'. It is also pertinent to note that the observations made by the learned Judges were restricted only to the connotation of the word "domain" There, were no dicta restricting the connotation of the word "home farm". Nor is there any indication in the judgments that the learned Judges thought the two expressions to be inter changeable or indentical in their import. 17. The decision of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendition of the estate the rights of the tenants or mirasadars proprietors other than the Raja were adversely affected. The conclusion therefore was that the lands in question retained their character as holdings of the tenants in which they had occupancy rights. 21. The learned Judges thereafter proceeded to consider the question whether the land which had once been ryoti could have been legally converted into private land and in that context, applied the ratio decidendi in the Challapalli case. On the evidence, they came to the conclusion expressed in the last paragraph of the judgment that there were no materials to show that the lands in question have been cultivated or retained by the landholder. Since from the date of the regrant, there were successive receivers in possession of the estate almost continuously and there was "no evidence" (before the court) that the grantee treated these lands as lands kept for his personal use and occupation or cultivated them under his personal supervision. The decision in the case, therefore, rested on the findings of fact that the land was ryoti at its origin and that after the regrant there was no proof of cultivation by the landholder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remuneration took different forms. They were paid a fraction of the melwaram which was often supplemented by grants of land. The Fifth Report on the Affairs of the East India Company (Firminger's Edition), Vol. III gives a vivid account of the position, functions and responsibilities of the middlemen called Desmook, Zemindar, Chowdary or Crory, etc. The lands granted to them towards remuneration were dispersed throughout the district in their charge so as to make their presence necessary everywhere and to give them local attachment and induce them to put forth better efforts in the general superintendence and effective discharge of their duties. The lands granted to them were held by them as absolute property which they could let out to tenants or cultivate personally by themselves or through their sevants. When let out to tenants the latter did not hold them on the same terms and tenures as to right of occupancy which are the incidents of other lands held by tenants. It was a recognised practice that so far as the lands granted to the Zamindars for their remuneration were concerned, there was no indispensable requirement that the Zamindar himself should keep them in his perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the commencement of the Act was to retain that character for ever. 28. As stated already, the only instance of conversion of ryoti land into private land recognised by the Act was by the proof of personal cultivation by the landholder for a continuous period of not less than 12 years prior to the commencement of the Act. This provision was embodied in Sec. 185 of the Act which enacted that all ??? is proved to have been cultivated as private land by the land holder in the manner specified there in immediately before the commencement of the Act shall be deemed to be the landholder's private land. The test of private cultivation thus became relevant only with reference to the process of conversion of ryoti land into the category of private land. On a consideration of the provisions of the Act of 1908, it is evident that the mandatory requirement of proof of personal cultivation was applicable only to cases where the controversy was whether a conversion from the ryoti tenure has taken place so as to effect the incidents of ryoti tenure. In other cases, proof of personal cultivation could undoubtedly be used as a very cogent piece of evidence to prove that the land in dispute w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omain" is specialty noticed it is not that the word "home farm" has been ignored by the learned Judges. It will be seen from the discussion in that case that the word "home farm" has not been confused with "domain" but interpreted and given effect to with reference to the land in question in that case. The question in that case in fact arose with reference to other than domain land, i.e., land situated far away from the dwelling house of the zamindar and actually in a village of the zamindari known as Iyanki different to the village Chellapalli in which the dwelling house of the Zamindar was situated". 32. The learned Judge emphasized and in our opinion very appropriately and with unmistakable precision that "in that case (Chellapalli case) as well as in other cases in which the question of the character of the land as private or ryoti arose with reference to the lands situated far away from the dwelling house and in other villages" within the estate of the Zamindar. 33. We think it necessary to stress, as Raghava Rao, J, did, that in the Chellapalli case "it was not the word "domain" but the word "home-farm" that fell to be applied to the land in question, and the test of direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere, more often than now, situated far away from the villages granted to them. It is almost fantastic to describe the residences of such grantees as manor houses or to describe them as feudal lords. All these considerations inevitably lead to the conclusion that the dicta in the Challapalli case about the meaning of the word "domain" which were made in respect of a big Zamindari estate and long before the amendment in 1936 of Sec. 3(10) cannot be applied, without, doing violence to the intendment of the legislation, to private land comprised in inam estates. The observation of Wadsworth, officiating C.J., quoted earlier proceeded on the misconception that the words "domain" and "home farm" are synonymous in their import. The learned Judge also failed to appreciate that the word "domain" understood in a limited sense in respect of the large permanently settled estate, is totally inappropriate in respect of the grantees of inam estates. There is as little similarity between the Zamindars of permanently settled estates and the inam grantees as there is between chalk and cheese. 36. Certain other observations made by the same learned Judge also reveal confused thinking. Having observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the zamindars were included in the assets of the estate for fixing the 'peishkush'. 41. When the Estates Land Act of 1908 was enacted, the classification mentioned above was given statutory recognition. In order to check the unauthorised seizure of the 'ryoti land' by landholders, the Act placed an embargo on prospective Conversion. Land which was shown to have been 'ryoti' could not be converted into private land, the only exception was that the statute allowed proof of conversion before the commencement of the Act. The mode of proof prescribed by the statue was stringent and the only permissible mode of proof of conversion was of personal cultivation for a minimum period of 12 years dating back from the commencement of the Estates Land Act. 42. In order to preserve the pre-existing rights of the landholders to private land provision was made in the Act; Sec. 3(10) and 185 were the provisions that regulated and defined the right to private land. Sec. 185 as it stood even in the unamended form allowed proof of the nature of the land by local custom, and by any other piece of evidence deemed relevant. The Section also allowed proof of letting specifically as private land. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land tenures makes it abundantly clear that the grantees of inam villages were ordinary citizens whose status can hardly stand comparison with the position held by the zamindars of permanently settled estates. The position, therefore, is that, even if the word "domain" was rightly understood in regard to permanently settled estates in the limited sense of land appurtenant to the landholder's residence, this concept can hardly hold good in regard to the persons who, in most cases, were non-resident grantees of the villages concerned. That the observations expounding the meaning of the word "domain" related to a permanently settled estate of a large size and that such a concept is incongruous in relation to grants of inam villages has been overlooked in later decisions which sought to apply the mansion house test to inam estates as well. 48. The propositions laid down in periannan's case rest on the antithesis between land which is proved to have been ryoti in the distant past and land in respect of which no such proof is forthcoming. The crux of the matter was deemed to be whether a given piece of land was at an anterior point of time proved to have been held by tenants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e then by any subsequent decisions of the High Court of Madras or Andhra Pradesh. As pointed but above, the ratio of Periannan's case rests upon the fundamental premise that land which was once shown to be ryoti cannot be held to be private land except on proof of conversion before the commencement of the Act. The broad division made by the majority decision is between land which was undoubtedly ryoti formerly and land in respect of which there is no such proof. In regard to the latter category, the mere fact that the landholder is the owner of both the warams is not regarded ipso facto as proof of the nature of the land being private. In other words, the proof that the landholder is the owner of both the warms is not necessarily indicative of the nature of the land being private. Periannan's case laid down that an intention to cultivate or to resume the land for cultivation is the essence of "private land". This conduct may be manifested by any of the modes of proof indicated in Sec. 185. In our opinion, the approach made by the Full Bench is not only consistent with the history of land tenures and the objects of the legislation but is also based on a reasonable, fair and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the two courts below which concurrently held that Orathur Padugai was a whole village and a named one and therefore, an estate within the meaning of the Estates Land Act. The contention to the contrary urged before the Supreme Court was rejected in these observations, at p. 572: "It is manifest therefore that there is sufficient material to show that at least since 1830 onwards Orathur Padugai is a whole village." 53. After a review of the evidence the finding that Orathur Padugai was a whole village and therefore constitutes an estate, was confirmed by the Supreme Court. 54. The further question was whether the lands in dispute were private lands on this part of the case again, the Supreme Court proceeded on the basis of the concurrent findings of the Subordinate Judge and the High Court that the lands in suit were ryoti lands at the earliest known point of time. The position, therefore, is that the lands in dispute come within the first category envisaged in Periannan's case, On the factual finding that the lands in question were proved to have been ryoti, the only question was whether the requirement of personal cultivation as laid down by the Full Bench was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivate lands in which a tenant under the Act cannot acquire occupancy rights". 57. The next sentence in the judgment reads as follows:-- "In the present case there is no proof that the lands were ever directly cultivated by the land holder" 58. The test of direct cultivation was applied by the Supreme Court because the question in controversy was whether there was a conversion of land which was once ryoti into the category of private land. In such a situation, it is undeniable that the only test that can be applied is the test of direct cultivation and it was on the application of that criterion that the case was decided by the Supreme Court. It is evident that what was actually decided in the case was whether on the evidence in the case there was sufficient proof of conversion of ryoti land to the other category. We are not persuaded that there is any incompatibility between the ratio of the decision of the Supreme Court and the propositions formulated by the majority of the Full Bench. 59. The last sentence in the long extract from the judgment of the Supreme Court is unambiguous. To prove that land is private land, evidence is permissible of either direct cultivation or some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed reliance do not constitute the ratio decidendi of the case. 62. Our learned brother took note of the fact that in the judgment of the Madras High Court which was taken on appeal to the Supreme Court, Periannan's case was relied upon and referred to in more than one place. He added: "Distinguished counsel from Madras, learned in this particular branch of the law, appeared before the Supreme Court and it is impossible to think that the decision in Periannan's case was not placed before their Lordships of the Supreme Court and was not considered by their Lordships". 63. Although there was no specific reference in the judgment of their Lordships of the Supreme Court to Periannan's case, the doctrine of implied overruling was held to be applicable by Chinnappa Reddy., J., because he thought that it was impossible to reconcile propositions (4), (5) and (6) in Periannan's case with the observations of the Supreme Court. We do not read the observations of their Lordships of the Supreme Court in the same sense as was done by our learned brother. We are clearly of opinion that their Lordships of the Supreme Court propounded a dual test of direct cultivation or som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so in an unambiguous manner so that the decision overruling an established precedent might be applied with certainty and precision. One can understand implied overruling of an inconspicuous decision which made little or no impact on the current of case law. We are reluctant to endorse the view that the decision of a Full Bench was not referred to for fear of "burdening the judgment" but was advisedly intended to be overruled in an implied manner without the courtesy of even a cursory reference to it. The doctrine of implied overruling if applied in that manner will carry us into a foggy region where one will have to grope in a sphere where nothing is transparent and no firm foot hold exists because a glowing precedent is thrown away and one has to drift in conditions where visibility is very poor. 67. It would not be a fair inference to hold that because of one or two observations that the Supreme Court intended to overrule by implication the decision of a Full Bench on the basis of which innumerable transactions must have been brought about. The doctrine of implied overruling can be resorted to only when there is no means of reconciling two pronouncements. An over-ruling is impli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides". 70. We are of opinion that in the first place the observations of their Lordships of the Supreme Court are in accord with the rule in Periannan's case. Secondly, even if some of the dicta in the judgment of their Lordships of the Supreme Court suggest a contrary principle the effect of the entire observations does not support the contention that Periannan's case had been impliedly over-ruled by the Supreme Court. 71. The result is that these appeals have to be allowed and the decision of the Tribunal restored with costs. Advocate's fee Rs. 100/- in each case. The Estates Abolition Tribunal or the Settlement Officer not having been contesting parties are not liable for costs. 72. W.P. No. 4947 of 1968. In this writ petition, the question is whether the Estates Abolition Tribunal has applied the correct test for determining whether the land in dispute is private land. Proceedings were initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in Periannan's case in circumstances analogous to the facts of the present case. However, instead of giving effect to the principles that emerge from the decision in Periannan's case and the decision of Satyanarayana Raju, J., in Chitteyya v. Ghantayya [1961 (II) An. W.R. 316], the Tribunal thought that certain dicta Lakshmanna v. Venkateswarlu [I.L.R. 1950 Mad. 567] govern the case on hand. 76. It is submitted on behalf of the petitioner that the reliance on the decision in Lakshmanna v. Venkateswarlu [I.L.R. 1950 Mad. 567] is misconceived. In that case, the question did not relate to a controversy about private land in an estate. The observations made by the Privy Council relate to a case where the question was whether occupancy right was established in regard to a minor inam. There can be little doubt that the instant case has to be decided with reference to the decision in Periannan's case. 77. Satyanarayana Rao, J., and Viswanatha Sastry, J., accepted the principle that admissions in kabuliats regarding the character of the land made in deeds of lease subsequent to 1918 are relevant and admissible in evidence. The decision in Periannan's case was subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the landholder and the tenants which goes to show that the landholder retained the lands for his own use. There are clear acknowledgments by the tenants of the landholder's right to terminate the leases and to cultivate the land as his own. 81. The Tribunal confirmed the decision of the settlement Officer that the landholder was entitled to the grant of ryotwari patta. With reference to item 2 the evidence has been discussed separately by the Tribunal and on a review of the evidence, the Tribunal came to the conclusion that there was change in the personnel of tenants from time to time as also in the quantum of the rent payable under each of the leases. There was an undertaking on the part of the tenant to surrender possession of the land after the expiry of the term of the lease. The Tribunal thought that the cumulative effect of the documents reviewed by it furnishes sufficient proof that the land was dealt with as private land of the landholder. Likewise with reference to item 3, the matter was considered with reference to the evidence on record and the Tribunal came to a similar conclusion. 82. In view of the legal position outlined by us in the earlier part of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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