The definition of private land in section 3(10)(a) of the Madras Estates Land Act, 1908, does not require the landholder to prove personal cultivation for a period of 12 years immediately prior to the commencement of the Act. Other modes of proof, such as an intention to cultivate or resume for cultivation, or recognition of absolute ownership by the tenants, may be used to establish that the land is private land.

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