Full Judgment Text
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PETITIONER:
ALURU KONDAYYA AND ORS.
Vs.
RESPONDENT:
SINGARAJU RAMA RAO AND ORS.
DATE OF JUDGMENT:
20/09/1965
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
SIKRI, S.M.
CITATION:
1966 AIR 681 1966 SCR (2) 92
CITATOR INFO :
R 1983 SC 608 (4)
ACT:
Madras Estates Land Act (1 of 1908), s. 3 (2) (d),
Explanation 1, as amended by Act 18 of 1936 and Act (2 of
1945)-Estate-Grant of a named village-If can be presumed to
be of a whole village.
HEADNOTE:
In the village of Challayapalam, there were six inams,
namely, the Challayapalam Shrotriem and five minor inams but
there was no information as to when the inams were created
and by whom. In two suits, one filed by the shrotriemdars,
against the tenants for a declaration that the tenants did
not have occupancy rights in the lands in their occupation,
and the other by the tenants for a declaration that they had
occupancy rights, the question arose whether the shrotriem
was an "estate" within the meaning of s. 3 (2) (d) of the
Madras Estates Land Act, 1908, as amended by Act 18 of 1936.
The trial court held, on a review of the evidence, that the
grant was of the whole village within the meaning of the
section and that the tenants had occupancy rights. On
appeal, the High Court held that the evidence on record was
inconclusive, that the onus of proving that the ant was of
an estate lay upon the tenants, and that, since the tenants
had Failed to discharge the onus, the question should be
decided against the tenants.
In the appeal to this Court by the tenants, the question was
: if there was no evidence justifying an inference that the
grant was of a whole village, whether explanation 1 to s.
3(2)(d) (added by Act 2 of 1945) gave rise to a presumption
in favour either of the shrotriemdars or the tenants.
HELD : The suit of the shrotriemdars must fail, because, the
Explanation raises a presumption, where a grant is expressed
to be of a named village, that the area which formed the
subject matter of the grant shall be deemed to be an estate.
Raising of the presumption is not subject to any other
condition. The legislature has, by the non obstante clause
in the Explanation, affirmed that such presumption shall be
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raised even if it appears that in the grant are not included
certain lands in the village, which have, before the grant
of the named village been granted on service or other tenure
or have been reserved for communal purposes. The party
contending that the grant in question falls outside the
definition in s. 3(2) (d), has to prove that case, either by
showing that the minor inams not comprised in the grant were
created, contemporaneously with or subsequent to the grant
of the village, by the grantor. [857 D-E; 861 C-E]
By enacting the Explanation the intention of the legislature
was to declare occupancy rights of tenants in inam villages.
It would be attributing to the legislature gross ignorance
of local conditions. if it was held that the legislature
intended to place upon the tenant the onus of establishing
affirmatively that the minor inams were granted before the
grant of the named village and that if he fails to do so his
claim is liable to fail. It is well-nigh impossible to
discharge such a burden in normal cases. Nor was it
intended that, when the evidence was inconclusive, the
person who approached the Court for relief must fail, for,
as in the present 842
843
case, if the inamdar as well as the tenant sue for relief,
the application of the rule would require the court to adopt
the anomalous course of dismissing both the actions. In
cases, which arose after the Amending Act of 1936, reference
to the presumption in s. 23 of the Act would be wholly out
of place, the applicable presumption being the one
prescribed by Explanation 1. The presumption under s. 23,
that a grant in favour of an inamdar was of the melvaram
only, applied only in cases which arose before the Amending
Act of 1936. [857 G; 858 B; 860 B; 862 F-G]
District Board of Tanjore v. M. K. Noor Mohammad Rowther,
A.I.R. 1953 S.C. 446 and Varada Bhavanarayana Rao v. State
of Andhra Pradesh, [1964] 2 S.C.R. 501, explained.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 341 to 343
of 1961.
Appeals from the judgment and decree dated September 2, 1955
of the Andhra Pradesh High Court in Appeals Suits Nos. 342
of 1949, 789 of 1950 and 551 of 1951 respectively.
A. V. V. Nair and P. Ram Reddy, for the appellants.
A. V. Viswanatha Sastri, Alladi Kuppaswamy and M. S.
Narasimhan, for the respondents Nos. 1 and 2 (in C.A. No.
341 of 1961) respondents Nos. 1 to 3 (in C.A. No. 342 of
1961) and respondent Nos. 1 to 4 and 6 (in C. A. No. 343 of
1961).
The Judgment of the Court was delivered by
Shah, J. In these appeals a common question--whether a
shrotriem grant of lands known as "Challayapalem shrotriem"
formed an estate within the meaning of S. 3 (2) (d) of the
Madras Estates Land Act, 1908-arises. The Court of first
instance on a review of the evidence was of the opinion that
the grant was of the whole Chellayapalem village within the
meaning of s. 3 (2) (d) of the Madras Estates Land Act,
1908, in force at the relevant time, and that the tenants
held rights of occupancy in the lands held by them. The
High Court of Madras disagreed with that view and held that
on the evidence it was not proved that the original grant
was of a "whole village" or even of a "named village" within
the meaning of s. 3 (2) (d) of the Madras Estates Land Act,
1908, and the first Explanation thereto, and that the onus
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to prove that the grant was of a whole or of a named village
being upon the tenants in occupation of the lands in
dispute, the claim of the shrotriemdars must succeed. With
certificates granted by the High Court, these three appeals
have been preferred.
Suit No. 42 of 1942 was filed by certain tenants of lands in
the village Challayapalem, District Nellore, for a
declaration that they hold occupancy rights in lands in
their occupation and for an injunction restraining the
shrotriemdars of the village from "inter-
844
fering with their possession". The tenants claimed that
"they and their ancestors" were in possession and enjoyment
of the lands for many years and had been paying rent to the
shrotriemdars, and were dealing with the lands as owners,
that all transactions in the Challayapalem shrotriem were
being on the footing that the village was an "estate" under
the Madras Estates Land Act, 1908, and that in any event the
tenants held permanent rights of occupancy in the lands
acquired in virtue of the provisions of the Madras Estates
Land (Amendment) Act, 1936. This Suit was later numbered 37
of 1947.
The shrotriemdars filed suit No. 2 of 1946 against fifteen
named defendants for a declaration that the tenants in
occupation of the lands in the village did not hold
permanent occupancy rights. Later, permission under O. 1 r.
8 Code of Civil Procedure to sue the named defendants as
representatives of all the tenants in the lands of the
shrotriem grant was obtained. In this suit the shrotriem-
dars did not claim any relief for possession : they merely
sought to reserve liberty to institute separate proceedings
in that behalf -nd claimed that they were entitled in
enforcement of notices served upon ten out of the named
defendants to call upon them to deliver possession of lands
occupied by them.
There was one more suit, No. 93 of 1947, which raised a dis-
pute as to the right of occupancy in a small area of land
admeasuring 1-90 acres. The plaintiff in the suit claimed
that he had acquired the right of occupancy by purchase the
original tenant of the land. The fourth defendant in the
suit whowas the principal contesting party claimed that he
was a. granteeoccupancy rights from the shrotriemdar.
The three suits were tried together. The tenants claimed in
the principal suit No. 2 of 1946 occupancy rights in the
lands hold by them, on three grounds :
(1)that the tenants of agricultural lands
were, by immemorial custom of the locality in
the Nellore District, occupancy tenants;
(2)that the tenants had acquired by
prescription or by the doctrine of lost grant
the rights of permanent occupancy; and
(3)that the grant was of an estate within
the meaning of s. 3 (2) (d) of the Madras
Estates Land Act, 1908, and the tenants of ,he
lands in the estate were by virtue of s. 6 of
the Act permanent occupancy tenants.
845
The trial Court, relying upon the statement
made in Boswell’s Manual of the Nellore
District, that the "tenants..... of
Chellayapalem like their brothers in other
villages of this District had right to occupy
the land from generation to generation on
payment of rent prescribed by custom", held
that the tenants’ plea on the first head must
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be sustained. The High Court declined to
raise such a presumption in favour of the
tenants of the District including tenants of
the village Challayapalem, and correctness of
that view was not challenged in this Court.
On the second ground, the trial Court held
that on the evidence that the tenants’ rights
’were independent of prescription", and that
they had not raised any plea of acquisition of
rights of occupancy by contract, express or
implied. The High Court observed that on the
evidence no "foundation is laid for invoking
the presumption of lost grant to give a legal
original, or lawful title to long continued
possession of the land by a particular tenant
or tenants", and that the plea of acquisition
of the right of occupancy based on
prescription was not made out. This plea was
also not reiterated before us, and the
appeals
were supported only on the last ground.
The grant was, it appears, made by a Carnatic
Nawab which is recognised on all hands to be a
shrotriem grant. There is, however, on the
record no evidence to prove the date of the
grant, the names of the grantor and the
grantee, the extent and terms, of the grant,
the purpose and nature of the grant, and
whether the grant was of kudiwaram as well as
of melwaram or of melwaram alone. The
original deed of grant has not been produced
and is no other direct evidence of the terms
of the grant from which the terms of the grant
may be gathered. The trial Court held that
the later documents, such as the statement in
the Inam Enquiry, the Inam Fair Register and
other documents, conduct of the shrotriemdars
and the tenants, and recognition accorded to
the rights of the tenants viewed in the light
of probabilities justified an inference that
the grant was of the whole village, but
according to the High Court the evidence on
the record was inconclusive and the case must
be decided against the tenants because the
onus to prove that the grant was of an estate
lay upon the tenants, and that the tenants had
failed to discharge that onus.
The problem must be approached in two distinct
brancheswhether the evidence justifies an
inference that the grant was of a whole
village. and if there be no such evidence
whether s. 3 (2) (d) Explanation (1) of the
Madras Estates Land Act gives rise to a
presumption in favour of the shrotriemdars or
the tenants. Between the years 1640 to 1688
the territory which now forms the
846
District of Nellore was under the sovereignty
of the Sultan of Golkonda. In 1688 this
territory along with Golkonda passed under the
Moghal dominion. After the War between the
East India Company and Sultan Hyder Ali, it
was arranged between the Government of Madras
and the Nawab of Carnatic that the latter
should bear the cost of the military defence
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of the Carnatic region. The Nawab agreed to
assign the revenues of the Carnatic region for
a period of five years to the East India
Company, and in pursuance of this arrangement,
the East India Company took over the admi-
nistration of the Carnatic region in 1790. On
August 18, 1790 the Board of Revenue, Madras
issued instructions to the Collectors of
Revenue appointed by the East India Company,
relating to the administration of the
Districts. Dighton who was the first
Collector of the Nellore District unde
r the new
dispensation found on enquiry that some
villages in the District had been alienated.
on shrotriem tenure. He proceeded to
investigate the title of the grantees and
issued a number of sanads. During the course,
of his management Dighton addressed on
November 13, 1790 to the "Chellayapalem
Shrotriemdar Mutharaju Ramachandrayya Sthala
Karnai Varu" the following communication :
"You shall pay as per installments varahas 283
(two hundred and eighty three) being the beriz
in respect of your shrotriem known as
Chellayapalem village in Gandavaram Paraganas,
as entered in the circar shrotriem jabitha,
into the Nellore Treasury, obtain receipt and
happily enjoy the produce realised from that
village, you shall enjoy happily by giving
shares to the kapus as per mamool."
Administration of the territory by the East India Company
came to an end on August 31, 1792. On July 31, 1802 the
East India Company assumed sovereignty over the District of
Nellore and one Travers was appointed Collector in September
1801. Travers recognised 207 shrotriem villages without
disturbing the arrangements which were then in existence,
dispensed with the duties of sthalakarnams and collected
quit rent on their inams. It appears that the shrotriem of
Challayapalem was continued under the arrangement of the
year 1790 which we have set out.
Soon after the East India Company took over the administra-
tion of what later came to be known as the Presidency of
Madras, Regulation 31 of 1802 setting up machinery for the
better ascertainment of titles of persons holding or
claiming to hold lands exempt from payment of revenue to
Government under grants and for fixing assessment on such
lands was promulgated. A register of
847
Inams in Government Taluks was prepared and in Col. 14 of
the Inam Register the Inams registered pursuant to the
Regulation were set out. In the village Challayapalem are
found mentioned in that Register-three Inams the
Challayapalem shrotriem (which is in dispute in the present
case), and two other personal Inams each of an area of 0-93
cents. Apart from the preparation of this Inam Register,
nothing substantial was done under the Regulation till 1860.
About the acting of the shrotriemdars and the tenants
between 1802 and 1860 there is very little evidence. There
is no evidence as to when the five minor inams, including
those two mentioned in the Inam Register, were created, who
paid the revenue, whether tenants were shifted from lands in
their occupation, or lands originally not occupied were
brought under cultivation. In 1860 the Inam Commission
commenced an inquiry in the Nellore District. Exhibit B-195
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is a record of the statement made by the shrotriemdors
Muthuraju Subbarao and Muthuraju Subbarammanya of
Chellayapalem. In Col. 6 it is recorded that the grant was
made during the time of the Nawabs for maintenance so as to
be enjoyed from son to grandson and so on in succession, and
in Col. 7 details of the lands are set out. Out of the
total area of the land 21 Gorrus 12/16 are recorded as
poramboke, 5 Gorrus and It Visas as minor inams, and 126. 3-
1/4 visas as cultivated lands--dry, wet and garden. The
boundaries and particulars of the inam lands are shown as if
the inam grant was of the whole village, the description of
the boundaries being of lands of other villages to the East,
South, West and on the North of lands of military barracks.
Income of the shrotriem is fixed at Rs. 1,449-5-5 per annum
and the total jodi at Rs. 1,225-12-2, leaving a balance of
Rs. 223-9-3 to the shrotriemdars. This statement is
described as written and filed by Muthuraju Subbarao and
Subbarammayya shrotriemdars of Challayapalem, and that it
was confirmed by the Village Officers. Pursuant to the
enquiry made by the Inam Commissioner entries were posted in
the Inam Fair Register. In Ext. A-1 which is described as
"an extract from the Register of Inams in the village of
Chellayapalem shrotriem in the taluk of Nellore" in Col. 21
it was recited that the shrotriem "being more than 50 years
old could be confirmed. In the account of Fasli 1221 the
income of the shrotriemdars for ten years previous to that
Fasli is given. It is shown in the margin that the
shrotriem is rented from Fosli 1263 to Fasli 1287, that is
for a period of 25 years for the sum of Rs. 244 above the
jodi. The cost of the repair to be borne half by the tenant
and half by the shrotriemdars. Almost the whole land is now
under cultivation and there is scarcely any room for further
improvement. I propose to give a deduction of Rs. 20 on
848
account of the cost of repair which the shrotriemdar will
have to pay and adopt the remainder as the value of the
shrotriem". In Cols. 10 & 11 it is recorded that the inam
was hereditary, but by whom it was granted it was not known.
It is common ground that Ext. A-1 did not include the area
of five minor inams for which separate entries Exts. A-2 to
A-6 were posted. The total area of the village as then
estimated exceeded 466 acres and Ext. A-1 related to 453-06
acres, the balance being in respect of minor inams.
Pursuant to the entries in the Inam Fair Register, con-
firmatory title deeds were issued. Exhibits A-2 and A-3
relate to devadayam grants : the extent covered by Ext. A-2
is 5-68 acres, and by Ext. A-3 is 2-83 acres. In Cols. 1
1 & 12 headed "By whom granted and written instrument in
support of the claim" it is recorded that "the name of the
grantor and the written instruments in respect of the claim
not known". Three other entries in the Inam Fair Register
were Exts. A-4, A-5 & A-6. Exhibit A-4 is in respect of
land 3-12 acres, Ext. A-5 is in respect of 0-93 cents and
Ext. A-6 also is in respect of 0-93 cents. Here also it
was recorded that the "grantor’s name and the date of the
grant are not known."
The next public document to which reference may be made is
the "Descriptive Memoir of Chellayapalem shrotriem village
in the Kovur Taluk of the Nellore District"-Ext. A-7. It
recites that the boundary of the village had remained
unchanged by settlement: the area prior to settlement was
(omitting fractions) 469 acres, and by the settlement it was
found to be 767 acres, showing an increase of 298 acres, but
"nothing had been merged in this village by the settlement."
According to the settlement accounts of land, the total
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cultivable area was 682 acres, minor inams 18 acres and
poramboke 67 acres. Under the bead "minor inams included in
the village" were Personal Inams 5-08 acres Religious
Inams 8-64 acres, Village Officers 2-87 acres and village
artisans 1-80 acres.: Under Ext. A-7 the whole village was
described is the Challayapalem shrotriem. Apparently the
village was identified with the shrotriem.
These are all the extracts from public records which have a
bearing on the principal question in dispute.
The plaintiffs in suit No. 2 of 1946 are purchasers under
two deeds Exts. A-101 and A-102 respectively dated January
14, 1889 and August 7, 1889 from the previous holders. They
are strangers to the family of the original grantees, and it
is not surprising that they are not in possession of the
deed of grant, and the earlier record relating to the
management of the village.
849
Exhibit B-1 the letter addressed by Dighton to the
shrotriemdar may at first blush suggest that the village was
accepted and confirmed as one of the shrotriem villages in
the Gandavaram Paragana. But Ext. B-1 was not of the
nature of a sanad : it did not contain a reference to the
terms of the grant, the date of the grant, the names of the
grantor and grantee, and was based on information by a
"Jabitha (list) relating to Circar’s shrotriems". In
Boswell’s Manual it is recited that Dighton had investigated
the title of the inamdars in the District and had granted
sanads, but Ext. B-1 did not purport to be a confirmatory
sanad or a fresh grant, or a deed embodying the result of
any investigation regarding the title of the Mutharajus to
the village. Exhibit B-1 undoubtedly refers to Mutharaju
Ramchandrayya as "Chellayapalem Shrotriemdar" and fixes the
revenue at 283 pagodas in respect of "your shrotriem known
as Challayapalem village". But Dighton was a Collector of
Revenue appointed by the East India Company which was in
1790 not invested with de jure sovereignty over the region.
There is also no record of any enquiry made by Dighton is
respect of the Challayapalem shrotriem. The object of the
letter Ext. B-1 is apparently two-fold : to fix the
revenue, and to ensure that the tenants were not subjected
to unlawful exactions. For the latter purpose it was
directed that the shrotriemdar was to enjoy the produce from
the village by giving shares to the kapus (tenants) is per
mamool.Exihibit B-1 does not refer to any minor inams, and
treats the Challayapalem village as the shrotriem of
Muthurajus.
The statement -of Mutharaju Subbarao and SubbarammayyaExt.
B-195-suggests that the original grant was in favour of
Mutharaju Sithanna-their ancestor. The statements in Col. 6
that the grant is from the Nawab whose name is not
mentioned, and in Col. 7 about the details of the entire
extent of the village, do not furnish any evidence as to the
character and extent of the original grant. It is true that
the boundaries of the lands granted are described as if the
grant was of a whole village, and nothing is mentioned about
the origin of the minor inams. Exhibit A-1the Inam Fair
Register Extract-is in respect of 453-03 acres whereas the
total area of the village as then measured exceeded 466
acres. The area of 13 acres was undoubtedly held by minor
inamdars in respect of which entries Exts. A-2 to A-6 were
posted in the Inam Fair Register. Those entries are of no
assistance in tracing the source of the minor inams. In
each of those extracts under the head "By whom granted and
written instrument in support of the claim" it is recited
that the names of the grantor and the written instrument in
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support of the claim "are not known". Sanads in respect of
the minor inams were issued because the inams
p.C.I./65--11
850
were found to be more than fifty years old. Inams in
respect of which entries Exts. A-5 and A-6 are posted are
found mentioned in the Inam Register prepared under
Regulation 31 of 1802, but not the inams in respect of which
Exts. A-2, A-3 and A-4 are issued. It also appears that in
the Inam accounts, the inam relating to Ext. A-2 appeared
for the first time in Fasli 121 1, the inam relating to
Exts. A-5 & A-6 in Fasli 1216, the inam relating to Ext.
A-3 in Fasli 1250 and the inam relating to Ext. A-4 in
Fasli 1260. But the accounts maintained under Regulation 3
t of 1802 ware apparently not maintained either regularly or
in respect of all the inams. In the absence of reliable
evidence from entries in these rough accounts, no inference
that the minor inams were granted by the shrotriemars could
be made. The name of the grantor is not to be found in
Exts. A-2 to A-6. Exhibit A-7 proves the existence of
minor inams, but has no bearing on the question whether the
whole village Challayapalem was granted in inam.
In Exts. A-48, A-49, A-104, A-105 and A-103 the predeces-
sors-in-interest of the present inamdar had described the
village as "Challayapalem Shortriem"; in Exts. A-102, B-44,
B-4-5, B-12 to B-19, B-20 to B-43, the present inamdar’s
grandfather was a party and therein also the inamdars were
described as "shortriemdars of Chellayapalem". There are
documents Exts. B-2, B-3, B-4, B-5, B-6, B-9, B-1 12 & B-1
16 and other documents in which the village is described as
"Chellayapalem Shrotriem". But these recitals have no
evidentiary value in support of the case that the whole
village was granted.
The statements in Ext. B-195 related only to a part of the
village and that the income realised by the inamdar was Rs.
1,449-5-5 per year, out of which the revenue payable to the
Government was Rs. 1,225-12-2 and the balance enjoyed as
inam was only Rs. 223-9-3. Exhibit A-1-Extract from the
Inam Fair Register-does not lead to the inference that the
area of the entire village was granted. The recommendation
made by the Deputy Collector was confined to the shrotriem.
The shrotriem was confirmed merely because it was more than
fifty years old, and what was confirmed was not the area of
the entire village, but the shrotriem grant admeasuring 453-
06 acres out of a total area of 466 acres.
Evidence on the record about the actings of the shrotiemdars
and the tenants for the period 1790 to 1862 is vague and
inconclusive. It appears from the Inam Register that for a
period of 25 years the shrotriem was under an Ijara. The
Inam Fair Register recites that garden lands were irrigated
from the private wells of
851
the shrotriemdars. From the accounts for Fasli 1216 it
appears that more than a hundred acres were then lying
uncultivated, but for sometime before 1862 the whole village
was under cultivation.
On the other hand there is the evidence that the tenants’
successors were recognised in place of their predecessors,
family partitions were approved, and the shrotriemdars
received their proportionate shares from the divided
sharers, and the tenants were not disturbed in their
possession. Chellayapalem has at all material times been
included in the list of villages maintained in the
Collector’s office. It was within the boundaries which are
not shown to have been altered. A village in the Madras
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region is a geographical area of arable and waste lands, and
contains the establishment of a karnam, village munsiff and
watchmen, and Chellayapalem has at all material times been
recognised as a village, and has been administered
accordingly. Minor inams were always regarded as part of
the village, and popularly and even in the public records
the village was identified with the shrotriem. The
shrotriemdars have failed to produce their books of account
relating to their management. It is however admitted by
them that they were collecting jodi from the holders of
minor inams and paying it into the public exchequer. It was
explained by S. Rama Rao P.W. 1 that he "collected the cess"
as a registered proprietor and paid it over into the
treasury, because a demand was made upon him by the Revenue
authorities for the whole amount of land cess due.
But long possession, fixity of rent, assertion of title in
formal deeds may not necessarily justify an inference of
permanent occupancy rights. Again the mere fact that the
village was treated as one unit for the purpose of revenue
administration does not justify any positive inference and
the fact that five separate sanads were issued in respect of
the minor inams without any evidence to prove the date and
the terms of the grant leaves the matter in doubt. Some of
these circumstances may prima facie support the inamdars and
the other the tenants, but on a careful review of all those
circumstances, we are unable to disagree with the opinion of
the High Court that the grant was not proved to be of a
whole village.
The second branch of the argument must then be considered.
The High Court expressed its conclusion on this branch of
the case as follows :
"Whether a tenant raises the plea that the
lands were in an estate and therefore ryoti
and the civil court has no jurisdiction, or
the tenant relies upon the statute in answer
to a suit by the landlord either for an
injunction,
852
sent case,the burden of proof would
undoubtedly be on
the tenantto establish the case which he put
forward
either to exclude the jurisdiction or to
negative the right of the plaintiff. The
burden will be on him to show that the grant
was either a grant of a whole village or a
grant of a named village."
In so enunciating the law, the High Court relied upon the
judgment of this Court in District Board Tanjore v. M. K.
Noor Mohamed Rowther(1) and held that in law the burden of
proving that a particular grant was a grant of an estate lay
upon the tenants in all cases, and the tenants having failed
to discharge that burden their claim must fail.
In considering this argument, it is necessary to make a
brief review of the history of land tenures and the
provisions of the Madras Estates Land Act, 1908 as they were
amended from time to time. After the assumption of
sovereignty in 1801, the East India Company promulgated the
Permanent Settlement Regulation 25 of 1802, which dealt with
the tenure of zamindars in their estates. This Regulation
was passed on July 13, 1802 and by s. 4 thereof inams were
exempted from its scope. On the same date, another
Regulation 31 of 1802 was enacted. This Regulation dealt
with inams and provided for making rules for the better
ascertainment of titles of persons holding or claiming to
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hold, lands exempted from the payment of revenue to
Government under grants not being "Badshahi" or Royal and
for fixing an assessment on such lands. By s. 15 it was
enacted that a register of inams shall be kept in each
zillah of the lands held exempt from the payment of revenue,
and that the register should specify the denomination of
each grant or sanad, the names of the original grantors or
grantees, and the names of the present possessors, with
other particulars. It appears that nothing effective was
done to investigate the titles of the claimants to inams
till 1859, when the question of examining their title was
taken up by the Inam Commission. The Inam Commission made
inquiries and issued confirmatory sanads. We have already
referred to Title Deed No. 1762 issued in respect of the
grant in favour of the shrotriemdars.
The traditional rights of occupants of land in the southern
region were recorded by the Board of Revenue as early as in
1818 in its proceeding dated January 5, 1818 that :
"The universally distinguishing character, as
well as the chief privilege of this class of
people, is their exclu-
(1) A.I.R. 1953 S.C. 446
853
sive right to the hereditary possession and
usufruct of the soil, so long as they render a
certain portion of the produce of the land, in
kind or money, as public revenue; and whether
rendered in service, in money, or in kind, and
whether paid to rajahs, jageerdars, zamindars,
polygars, motahdars, shrotriemdars, inamdars
or Government Officers, such as tahsildars,
amildars, aumeens, or tanadars, the payments
which have always been made by the ryot are
universally termed and considered the dues of
the Government."
The Legislature with a view to define the relations between
landlords and tenants in inam villages promulgated Madras
Act 1 of 1908. The material part of s. 6 (1) as amended by
Madras Act 8 of 1934 and 18 of 1936 provided
"Subject to the provisions of this Act, every
ryot now in possession or who shall hereafter
be admitted by a landholder to possession of
ryoti land situated in the estate of such
landholder shall have a permanent right of
occupancy in his holding.
Explanation (1).-For the purposes of this sub-
section, the expression ’every ryot now in
possession’ shall include every person who,
having held land as a ryot continues in
possession of such land at the commencement of
this Act.
Explanation (2).-
Explanation (3)..............
Section 3 sub-s. (2) defined the expression "estate" within
the meaining of the Act and insofar as it is material for
this case, it provided as originally enacted
"In this Act, unless there is something
repugnant in
the subject or context-
"Estate" Means
(a) any permanently-settled estate or
temporarily-
settled zamindari,
(b) any portion of such permanently-settled
estate or
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temporarily-settled zamindari which is
separately registered in the office of the
Collector;
(c) any unsettled palaiyam or jagir;
854
(d)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;
(e)any portion consisting of one or more
villages of any of the estates specified above
in clauses (a), (b) and (c) which is held on a
permanent under-tenure."
"Kudivaram" is a Tamil word, which signifies the
cultivator’s share in the produce of land as distinguished
from the landlord’s share received by him as rent, which is
called "melvaram". "Kudivaram" has acquired a secondary
meaning, it means the cultivator’s interest in the land, and
"melvaram" the landlord’s interest in the land. The
definition of "estate" in cl. (d) gave rise to considerable
litigation which called for determination of two questions :
(1) whether there was a grant of the whole village so as to
make the area granted an estate; and (2) whether the
landlord to whom the land was granted owned the "kudivaram".
In cases which came before the Courts it appeared that apart
from the grant which was claimed to be a grant of an estate,
there were in each village other grants, religious, service
and personal, and evidence about the commencement of these
minor grants and the terms on which they were granted was
not forthcoming.
In G. Narayanaswami Nayudu v. N. Subramanyam(1), in a suit
filed by the receiver of the Nidadaole estate for possession
of certain lands the tenant claimed that he had acquired
occupancy rights under s. 6 of the Madras Estates Land Act 1
of 1908. There were in the village minor inams of three
classes : archaka service inams, village service inams, and
dharamdaya inams, and there was no evidence whether the
grant to the plaintiff’s estate of the village was made
first, or whether the minor inams were granted first. It
was contended on behalf of the plaintiff estate that
inasmuch as there were minor inams ’in the village, the
Venkatapuram agraharam could not be said to be "a village of
which the land revenue had been granted as inam within the
meaning of s. 3(2)(d) of the Act". The Court rejected that
contention and observed :
"The definition in sub-section 2, clause (d)
was obviously intended to exclude from the
definition of "Estate" what are known as minor
inams, namely,
(1) I.L.R 39 Mad. 683.
855
particular extents of land in a particular
village as contrasted with the grant of the
whole village by its boundaries. The latter
are known as "whole inam villages". The
existence of "minor inams" in whole inam
villages is very common and if these inam
villages do not come within the definition of
"Estate" almost all the agraharam, shrotriyam
and mokhasa villages will be excluded. This
certainly cannot have been the intention of
the legislature. These minor inams are
generally granted for service to be rendered
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to the village or to the owner and that seems
to be the nature of the minor inams in this
case."
The Court therefore held that s. 3 (2) (d) of the Madras
Estates Land Act excludes from the definition of "estate"
minor inams, and a grant which purports to be a grant of a
whole inam village is an estate within the meaning of cl.
(d) of s. 3 (2), even though it may be found that there are
lands held by grantees under minor inams. The Legislature
in 1936 substituted for cl. (d) of s. 3(2) the following
clause by the Madras Estates Land (Third Amendment) Act, 18
of 1936:
"(d) any inam village of which the grant has
been made, confirmed or recognized by the
British Government, notwithstanding that
subsequent to the grant, the village has been
partitioned among the grantees or the
successors in title of the grantee or
grantees."
Then came the judgment of the Madras High Court in Tulabandu
Ademma v. Sreemath Satyadhyana Thirtha Swamivaru(1). In
that case the original grant was lost. In Col. 6 of the
statement prepared by the Inam Commissioner in that case, it
was recorded that "the former Zamindars granted the land,
comprised within the ’Chekunama’ for the math. There is no
sanad as it was destroyed by fire. There was no entry under
the heading ’particulars of the inam land mentioned in the
sanad’, but under the head ’Gudicut’ (the total area of the
village) was the entry 158.23 acres, from which were
deducted 25.10 acres described as private lands, and 5.4
acres ’inams of other persons’ leaving 128.6 acres as the
area covered by the grant." In Col. 10 it was stated that
there was no ’Chekunama’. The Court held that the grant
being of less than the whole village, the tenant could not
rely on s. 6 of the Act. In that case the boundaries of the
agraharam as described in Col. 10 in the Inam Register
(1) A.I.R. 1943 Mad. 187.
856
were admittedly the boundaries of the whole village, but in
the view of the Court Col. 10 had to be read in conjunction
with the other columns. There was no evidence whether the
other inams were granted before the grant in favour of the
Devasthana or after. This case apparently marked a
departure from the rule which was enunciated earlier by the
Madras High Court in G. Narayanaswami Nayudu’s case(1).
The Legislature immediately reacted against this view and
enacted, by Madras Estates Land (Amendment) Act 2 of 1945,
added the following Explanation to cl. (d) of s. 3(2).
Explanation (1) read as follows
"Where a grant as an inam is expressed to be
of a named village, the area which forms the
subject-matter of the grant shall be deemed to
be an estate notwithstanding that it did not
include certain lands in the village of that
name which have already been granted on
service or other tenure or been reserved for
communal purposes."
This Explanation was made operative retrospectively from the
date on which Madras Act 18 of 1936 was brought into force.
The Explanation was apparently intended by legislative
process to restore the interpretation which the Madras High
Court had given to the expression "whole village" in G.
Narayanaswami’s case(1). But the legislature had used
somewhat involved phraseology in enacting the conditions
which gave rise to the presumption. If a minor inam was
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proved to be granted prior to the date of the grant, by
virtue of Explanation (1) the grant expressed to be of a
named village had to be regarded as a grant of an estate.
If it was proved that the grantee after receiving the whole
village created minor inams, the grant was of the whole
village and therefore grant of an estate. But where
evidence about the creation of the major and minor inams was
not forthcoming, the question had to be decided on the
presumption that the subject-matter of the grant shall be
deemed to be an estate, notwithstanding that it did not
include lands granted on service or other tenures or lands
reserved for communal purposes. On the true effect of the
Explanation there was a sharp conflict of judicial opinion
resulting in three distinct views. In one set of cases it
was ruled that the burden of proving that a tenant is
entitled to permanent rights of occupancy in his holding by
virtue of s. 6 of the Madras Estates Land Act always lies
upon the tenant, and it is for the
(1) I. L.R. 39 Mad. 683.
857
tenant to establish affirmatively that the minor inams in
the village were granted before the date of the grant of the
named village, and if he failed to do so his claim is liable
to fail : see Rama Rao v. Linga Reddi(1) and Ramadhan
Chettiar v. State of Madras(2) In another set of cases it
was held that where relief is claimed before the Court on
the plea that a grant of land was of an estate, or that it
was not of an estate, and the evidence is inconclusive, the
person who has approached the Court for relief must fail :
see the judgment of Krishna Rao J., in Nelluru Sundararama
Reddy v. State of Andhra Pradesh (3) ; Varada Bhavanarayana
Rao v. State of Andhra Pradesh ( 4 ) ; and Addanki
Thiruvenkata Thata Desikacharyulu Ayyavarlamgaru v. The
State of Andhra Pradesh and Ors.(5) In the third set of
cases it was held that the Explanation raises a presumption
where a grant is expressed to be of a named village, that
the area which formed the subjectmatter of the grant shall
be deemed to be an estate, and it is for the party
contending that the grant in question falls outside the
definition of s. 3 (2) (d) of the Act to prove that case
either by showing that the minor inams not comprised in the
grant were created contemporaneously with or subsequent to
the grant of the village by the original grantor : see
Janakiramaraju v. Appalaswami(6); Nelluru Sundarama Reddy v.
State of Andhra Pradesh (7) State of Andhra Pradesh v.
Korukonda Bhattam Appalacharyulu(8) and Sri
Varadarajaswamivari Temple v. Sri Krishnappa Govinda and
others(9).
In expressing the first view the non-obstante clause in the
Explanation was read as prescribing the conditions on proof
of which the statutory presumption arises. The Explanation
was apparently read as implying that the conditions for the
raising of the presumption were that the grant as an inam is
expressed to be of a named village, and that the other lands
not included in the grant were granted before that date on
service, or other tenure or reserved for communal purposes.
If this be the true effect, the Explanation had little
practical utility. The intention of the legislature
apparently was to declare rights of occupancy of tenants in
inam villages, and it would be difficult to believe that the
legislature intended to place upon the tenants onus of proof
which in normal cases would be well-nigh impossible to
discharge. A large majority of the inams are ancient and
the
(1) A.I.R. 1957 A.P. 63 (2) A.I.R. 1958 Mad. 104.
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(3) I.L.R. [1959] A.P. 337 F.B.(4) [1964] 2 S.C.R. 501.
(5) A.I.R. 1964 S.C. 807. (6) I.L.R. (1954) Mad. 980.
(7) I.L.R. [1959] A,P. 339 F.D.(8) I.L.R. [1959] A.P. 687.
(9) I.L.R. [1958] Mad. 1023
858
records bearing on the commencement, extent and nature of
the grant would invariably be in the possession of the
inamdars. To expect that tenants who are generally
illiterate, and who came to occupy the lands not
infrequently many years after the original grant, would be
able to lead evidence on matters principally within the
knowledge of the inamdars, and information whereof the
inamdars would be interested in withholding, would be to
attribute to the legislature gross ignorance of local
conditions.In terms the presumption arises on proof that the
grant is an inam expressed to be of a named village, and it
arises even if it appears that there have been other minor
inams granted for service or other tenure or have been
reserved for communal purposes. The non-obstante clause in
the Explanation, in our judgment, does not prescribe a
condition for the raising of the presumption. The
presumption arises only when it is proved that the grant is
expressed to be of a named village, and the burden of
proving that the grant is so expressed must lie upon the
party who claims to bring the grant within the exception,
but once it is proved that the grant is expressed to be of a
named village, raising of the presumption will not depend
upon proof that certain lands in the village were granted on
service or other tenure, or were reserved for communal
purposes before the grant of the village.
In expressing in the cases of Rama Rao(1) and Ramadhan
Chettiar (2) the view that the burden lay upon the tenants
to prove that the grant was of an estate, it was assumed by
the Madras High Court that this Court had rendered a
considered decision in the District Board of Tanjore’s
case(3) that the onus of proving that a grant of land is a
grant of an estate lies upon the tenant. But it appears
that no such decision was given by the Court in that case.
In the District Board of Tanjore’s case(3) the defendant who
had taken a lease for three years of a piece of land
belonging to the District Board claimed that he had acquired
permanent occupancy rights under s. 6 of the Madras Estates
Land Act, because after the expiry of the period of the
lease the Board had not resumed possession. It was the
Board’s case that after expiry of the period of the lease,
the Board bad taken possession of the land and had brought
it under cultivation. The Subordinate Judge held that the
land did not constitute an estate within the meaning of s.
3(2) (d). The High Court disagreed with that view. In
appeal to this Court Mahajan, J., on
(1) A.I.R. 1957 A.P. 63. (2) A.I.R. 1958 Mad. 104.
(3) A.I.R. 1953 S.C. 446.
859
a review of the evidence opined that the grant was not of a
named village, the grant being in terms of areas and not of
a named village, and that there were two grants neither of
which could be called a grant of a village. Chandrashekhara
Aiyar, J., observed that there were two personal grants
under one parvangi to two different persons, and it could
not be said that there was a grant of a whole village or of
a named village. smaller areas having been carved out
therefrom prior to the date of the grant on service or other
tenure, and the remaining part still being recognised and
treated as a revenue unit with a nomenclature of its own.
It is abundantly clear that the Court decided the case on
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evidence and did not place reliance on the onus of proof.
It is true that Mahajan, J., in his judgment has recorded
that:
"It was conceded by . . . the learned counsel
for the respondent that the burden of proving
that certain lands constitute an "Estate" is
upon the party who sets up the contention",
and Chandrasekhara Aiyar, J., observed that
"A small area of 5 acres and 40 cents was
granted under the same grant in favour of
Chinna Appu Moopan. If this conclusion is
correct-and nothing satisfactory has been
urged on the side of the respondents why such
an inference is not open on the entries found
in the Inam Register, the 1st respondent
should fail, as the burden is on him to
establish that what was originally granted was
an ’estate’."
But these observations are not susceptible of the meaning
that when it is proved that an inam is expressed to be of a
named village, the presumption under Explanation (1) does
not arise. Both the learned Judges were of the view that
there was no grant which could be regarded as a grant of a
whole village or a named village, and on that view the true
effect of the Explanation did not fall to be determined.
The concession before the Court by counsel was only that
when a person alleged that certain land was an estate, the
burden of proving that case lay upon him.
The second view minimizes the operation of the statutory
presumption which is expressly enacted by the legislature to
arise on proof that the grant is of a named village. In
terms the Explanation provides that the grant of an area as
a named village shall be deemed to be a grant of an estate.
If the clause prescribes the condition on which the
presumption arises, the onus
860
would be discharged by the presumption on proof that the
grant was of a named village. Adoption of the second view
is likely to give rise to some anomalous situations of which
the present set of cases is a good illustration. For
instance, if the inamdar as well as the tenant sue for
relief in respect of their respective cases, the application
of this rule would require the Court to adopt the somewhat
unusual course of dismissing the cross actions, when
evidence does not justify a positive inference in favour of
either party.
In Varada Bhavanarayana Rao v. State of Andhra Pradesh and
others(1), this Court expressed its preference for the
second view. That was a case in which the appellant held a
major part of certain villages covered by five inam grants.
The Inam Commissioner had granted fresh inam title deeds in
confirmation of the original grants. The Special Officer
appointed by the Madras Government under s. 2 of the Madras
Estates Land (Reduction of Rent) Act, 1947 decided that the
inam lands covered by the fresh inams were "Estates" within
s. 3 (2) (d) of the Madras Estates Land Act, 1908, and
recommended fair and equitable rates of rent for the ryoti
lands in this estate. Subsequently the Government of Madras
by a notification in the Gazette fixed rates of rent in
accordance with this recommendation. The inamdar instituted
an action in the Civil ,Court for a declaration that the
grant was not of an estate within the meaning of s. 3 (2)
(d) of the Madras Estates Land Act. The Trial Court upheld
the contention, but the High Court in appeal reversed that
decision. In appeal to the Supreme Court it was contended
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that there were no materials on the record to prove that the
original grant was of a whole village or of a village by
name, and as the State had failed to discharge the burden of
proving that the land constituted an estate, the action must
be decreed. This Court held that the grant which was later
confirmed by the title deed was of a named village, but on
proof merely that the inam grant was of a named village, a
presumption did not arise that it formed an estate, for the
legislature had not created any special presumption either
way. The question of the onus of proof it was said had to
be adjudged in the light of ss. 101, 102 and 103 of the
Evidence Act, and applying that principle if the plaintiff
failed to prove his claim that land was not an estate, the
appeal should stand dismissed. The Court in that case
regarded the judgment in the District Board of Tanjore’s
case(2) as not decisive of the question, and proceeded to
hold
(1) [1964] 2 S.C.R. 501.
(2) A.I.R. 1953 S.C. 446.
861
on two grounds that the legislature had not provided for
raising a presumption either way. First, that the "language
used in Explanation (1) indicated that the conclusion that
the area was an "estate" can be drawn even where the whole
of the village was not included in the grant, only if it
appeared that the portion not included had already been
gifted and was therefore lost to the tenure," and the other
that when adding the Explanation in 1945, the Legislature
did not think fit to make any change in s. 23 of the Act.
But as already observed, the language used by the
Legislature in enacting Explanation (1) to s. 3(2)(d)
expressly directs a presumption to be raised. That
presumption arises when it is proved that a grant as an inam
is expressed to be of a named village, the area which forms
the subject-matter of the grant shall, be deemed to be an
estate. Raising of the presumption is not subject to any
other conditions. The Legislature has by the non-obstante
clause affirmed that such presumption shall be raised even
if it appears that in the grant are not included certain
lands in the village which have before the grant of the
named village been granted on service or other tenure or
have been reserved for communal purposes. The presumption,
it is true, is riot a conclusive presumption : it is a
presumption of law, and is rebuttable. It may be rebutted
by proof of other facts, but not the facts mentioned in the
non-obstante clause.
Section 23 was added by s. 5 of the Madras Estates Land
(Third Amendment) Act 18 of 1936. It reads :
"Where in any suit or proceeding it becomes
necessary to determine whether an inam village
or a separated part of an inam village was or
was not ,in estate within the meaning of this
Act as it stood before the commencement of the
Madras Estates Land (Third Amendment) Act,
1936, it shall be presumed, until the contrary
is shown, that such village or part was an
estate."
The presumption under s. 23 in terms applies only to cases
in which the question whether an inam village was an estate
before the commencement of the Madras Estates Land (Third
Amendment) Act, 1936. Under the Act, before it was amended
in 1936, a grant of a village could be deemed a grant of an
estate where only melvaram was granted to the inamdar and
not where both the melvaram and the kudivaram were granted.
By enact-
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862
ing S. 23 the Legislature intended to declare that in
determining whether under a grant of an inam village both.
varams were granted or only the melvaram was granted, it
shall be presumed, until the contrary was shown, that such
village or part thereof was an estate, that is, only the
melvaram was granted. Under the Act before its amendment,
one of the conditions of the applicability of s. 3 (2) (d)
was that the grant in favour of the inamdar was only of the
melvaram, and that it did not include the kudivaram, and the
Legislature by s. 23 as amended provided that in dispute
arising between the landlord and tenant whether an inam
village was or was not an estate, it was to be presumed that
it was only of the melvaram. Enactment of this section was
apparently found desirable ’because of certain decisions of
the Judicial Committee. In Suryanarayana v. Patanna and
Upadrashta Venkata Sastrulu v. Divi Seetharamudu and
others(2), the Judicial Committee expressed the view that
where, there was no evidence of the terms oil an ancient
grant, there was no presumption that it was of melvaram
alone. The High Court in Mulhu Goudan v. Perumpal lyen(3)
held that the ground on which the decisions of the Judicial
Committee Proceeded, though it was not necessary for the
purpose of those cases to so decide, a presumption that the
grant was of both the varams was deducible. The Judicial
Committee overruled this decision in Chidambara Sivaprakasa
Pandara Sannadhigal v. Veerma Reddi(4), and held that in
each case the question was one of fact to be determined on
the evidence. The legislature then intervened and enacted
the presumption applicable only to cases arising under the
un-amended Act. Undoubtedly in cases arising under amended
Act, the conditions on which the presumption will arise are
prescribed in the Explanation (1). The language use by the
Legislature in the amended s. 23 clearly shows that the
section was not intended to deal with cases arising under
the Madras Estates Land Act as amended by Act 18 of 1936.
Any reference in S. 23 to a presumption in respect of cases
arising after cl. (d) as recast by Act 18 of 1936 would have
been wholly out of place. There were two presumptions which
applied to different situations. In cases which arose
before the Amending Act of 1936 the presumption under s. 23
applied : in cases which arose since the amendment of 1936
the presumption prescribed by the Explanation (1) applied.
This is so, because the Explanation though enacted by Act 2
of 1945 has been brought into force since the date on which
the amending Act of 1936 became operative.
(1) L.R. 45. I.A. 209.
(3) I.L.R. 44 Mad. 538.
(2) L.P. 46 I.A. 123.
(4) L.R. 49 I.A. 286.
863
In our view the following passage from the decision of the
Madras High Court in Mantravadi Bhavanarayana and another v.
Merugu Venkatadu and others(") correctly interprets s. 3 (2)
(d)
"It is now settled law that by reason of the
amendment made in 1945, which added an
explanation to section 3 (2) (d) of the Madras
Estates Land Act and numbered it as
explanation 1, a grant constitutes an estate
if it is expressed to be a named village
irrespective of the fact that some of the
lands in the village had already been granted
on inam or service grants, or were reserved
for communal purposes."
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We do not deem it necessary to decide whether the suit for a
mere declaration that the tenants were not occupancy tenants
at the instance of the shrotriemdars, after determining the
tenancy of some of the tenants was maintainable. The High
Court has dismissed the suit against defendants 1 to 10 who
were served with notices to quit, but against whom the
shrotriemdars did not claim a decree for possession. There
is no appeal by the shrotriemdars before us against
defendants 1 to 10, and in any event on the view taken by
us, the suit of the shrotriemdars must fail in its entirety.
In Appeal No. 342 of 1961 the decision recorded by us on the
principal question does not put an end to the litigation.
The dispute arose between two rival claimants to the rights
of occupancy of land. The respondent in this appeal claims
that he is a transferee of the original tenant, and the
appellant claims to have acquired the rights of occupancy
from the shrotriemdar. In suit No. 93 of 1947, four
substantive issues were raised, and the issues are discussed
in paragraphs 106 to 120 of the judgment of the Trial Judge.
The High Court did not separately deal with those issues,
but decided Appeal No. 789 of 1950 on the view of the law
which it declared in the principal appeal. We have
disagreed with the High Court for reasons already set out
and the other issues which have not been tried by the High
Court have now to be tried.
On the view taken by us Civil Appeal No. 341 of 1961 will be
allowed, and the decree passed by the High Court set aside
and the decree passed by the Trial Court restored with costs
throughout. In Civil Appeal No. 343 of 1961 also the decree
passed by the High Court will be set aside and the suit
decreed
(1) I.L.R. [1954] Mad. 116.
864
with costs throughout. There will be one hearing fee in
this Court.
In Civil Appeal No. 342 of 1961 arising out of Appeal No.
789 of 1950 from suit No. 93 of 1947, tile appeal will be
remanded to the High Court with a direction that the
questions which remain to be determined will be decided
according to law. No order as to costs in Appeal No. 342 of
1961.
C.A. Nos. 341 and 343 allowed.
C.A. No. 342 remanded.
865