The determination of 'garden land' under the Kerala Land Reforms Act and the Malabar Tenancy Act involves considering the principal user of the land, the requirement of land used principally for growing coconut trees, and the variation of standard acre according to the nature of garden land.

1. The petitioner is coming to this Court a second time against the order of the Land Board fixing the extent of the excess land to be surrendered by him. By the proceedings of the Land Board dated 12-6 -1974 the petitioner was directed to surrender 1.34 acres being the extent of land found in excess of the ceiling area. He filed C. R. P. No. 837 of 1974 before this Court and contended that he is not in possession of any excess land if the lands held by him are properly classified and the ceiling area fixed. His grievance was that an extent of 2 acres 74 cents in Sy. No. 741/2 and 70 cents in Sy. No. 579/8 is only a dry land and not coconut garden as shown in the draft statement. This Court set aside the order of the Land Board for re-consideration in view of the two conflicting reports about the nature of the lands and conversion of some of them after 1-4-1964. On remand the Secretary of the Land Board was deputed to make a local verification and on the basis of bis report a fresh order was passed by the Land Board classifying a major portion of the above land as garden land and fixing the excess land to be surrendered. According to the Land Board, in 70 cents there are 15 bearing coconut trees aged 60 to 75 years, and 11 stumps of coconut trees cut. Ia Sy. No. 741/2, 2 acres 74 cents, there are 88 coconut trees. It is inter-cultivated with rubber plants planted in the year 1970. An extent of 35 cents is cultivated with tapioca and an extent of 4 cents is rocky. From this the Land Board has drawn an inference that' as on 1-4-1964 the principal cultivation in the land was coconut and the principal income from the above property was from coconut trees though tapioca, ginger etc. were also cultivated. Therefore, the entire extent of the above survey numbers excepting 35 cents cultivated with tapioca and 4 cents of rocky portion was treated as coconut garden'.

2. The question is whether this inference is correct in law. 'Garden' is defined in S.2 (15) of the Kerala Land Reforms Act as meaning "land used principally for growing coconut trees, arecanut trees or pepper vines, or any two or more of the same." This definition is more or less a copy of the definition of 'garden land' in S.3 (g) of the Malabar Tenancy Act which reads as follows: -

"Garden land" means any land used principally for growing coconut trees or arecanut trees or both."'

Decided cases are few to illustrate the scope of this definition. In Kunhammad Koya v. Gopala Menon (1942 M.W.N. 667= AIR. 1943 Mad. 181) Somayya J. held that in considering whether a certain land is a garden land or not within the meaning of the Malabar Tenancy Act the principal user of the land as a whole is the test, i.e., whether it was used principally for growing fruit-bearing trees. A plot of land measuring 78' by 881/2' where there were buildings, 7 coconut trees of which 6 were stated to be 50 years old and one 45 years old and a few plaintain trees was held to be not a garden land. The learned judge at page 668 observed thus: -

"On these materials I consider it impossible to sustain the conclusion of the lower court, that the plot 3 as a whole satisfies the terms of S.3 (g). It will be noted that S.3 (g) requires that the land should be used principally for growing fruit-bearing trees. It is clear that so far as the coconut trees are concerned they were all planted more than 45 years ago and having regard to the large area of plot No. 3, the number of the trees is negligible. No coconut trees have been planted during the last 45 years. The plantain trees are 21 in number. In a plot which is principally used as a residential house, there are always a few plantain trees and a few coconut trees and it will be preposterous to say that the whole plot including the building is used principally for growing fruit-bearing trees. If it is the principal user that is to be regarded, the plot as a whole is principally used for residential purposes."

The same learned judge in Gopalan v, Sank