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 section Narasimhan for the respondents Nos 1 and 2 in CA No 341 of 1961 respondents Nos 1 to 3 in CA 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 section 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 section 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 section 3 2 d of the Madras Estates Land Act 1908 and the first Explanation thereto and that the onus 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  1that the tenants of agricultural lands were by immemorial custom of the locality in the Nellore District occupancy tenants 2that the tenants had acquired by prescription or by the doctrine of lost grant the rights of permanent occupancy and 3that the grant was of an estate within the meaning of section 3 2 d of the Madras Estates Land Act 1908 and the tenants of he lands in the estate were by virtue of section 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 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 section 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 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 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 1216 are recorded as poramboke 5 Gorrus and It Visas as minor inams and 126
3 14 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 1449 5 5 per annum and the total jodi at Rs 1225 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
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 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 support of the claim are not known
Sanads in respect of the minor inams were issued because the inams pCI65 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 1449 5 5 per year out of which the revenue payable to the Government was Rs 1225 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 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 section Rama Rao PW 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 casethe 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 vs M K Noor Mohamed Rowther1 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 section 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 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 section 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 AIR 1953 SC 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 section 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 section
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 temporarily settled zamindari which is separately registered in the office of the Collector c any unsettled palaiyam or jagir 854 dany 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 eany 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 vs N Subramanyam1 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 section 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 section 32d 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 ILR 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 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 section 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 section 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 section 32 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 vs Sreemath Satyadhyana Thirtha Swamivaru1
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 15823 acres from which were deducted 2510 acres described as private lands and 54 acres inams of other persons  leaving 1286 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 section 6 of the Act
In that case the boundaries of the agraharam as described in Col 10 in the Inam Register 1 AIR 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 case1
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 section 32
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 case1
But the legislature had used somewhat involved phraseology in enacting the conditions which gave rise to the presumption
If a minor inam was 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 section 6 of the Madras Estates Land Act always lies upon the tenant and it is for the 1 I 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 vs Linga Reddi1 and Ramadhan Chettiar vs State of Madras2 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 vs State of Andhra Pradesh 3  Varada Bhavanarayana Rao vs State of Andhra Pradesh  4   and Addanki Thiruvenkata Thata Desikacharyulu Ayyavarlamgaru vs The State of Andhra Pradesh and Ors5 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 section 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 vs Appalaswami6 Nelluru Sundarama Reddy vs State of Andhra Pradesh 7 State of Andhra Pradesh vs Korukonda Bhattam Appalacharyulu8 and Sri Varadarajaswamivari Temple vs Sri Krishnappa Govinda and others9
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 AIR 1957 AP 63 2 AIR 1958 Mad 104
3 ILR FB4  5 AIR 1964 SC 807
6 ILR 7 ILR FD8 ILR 9 ILR 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 Rao1 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 case3 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 case3 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 section 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 section 32 d
The High Court disagreed with that view
In appeal to this Court Mahajan J on 1 AIR 1957 AP 63
2 AIR 1958 Mad 104
3 AIR 1953 SC 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 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 vs State of Andhra Pradesh and others1 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 section 2 of the Madras Estates Land Reduction of Rent Act 1947 decided that the inam lands covered by the fresh inams were Estates within section 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 section 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 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 sections 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 case2 as not decisive of the question and proceeded to hold 1  2 AIR 1953 SC 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 section 23 of the Act
But as already observed the language used by the Legislature in enacting Explanation 1 to section 32d 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 section 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 section 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 862 ing section 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 section 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 section 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 vs Patanna and Upadrashta Venkata Sastrulu vs Divi Seetharamudu and others2 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 vs Perumpal lyen3 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 vs Veerma Reddi4 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 section 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 section 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 section 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 LR 45
IA 209
3 ILR 2 LP 46 IA 123
4 LR 49 IA 286
863 In our view the following passage from the decision of the Madras High Court in Mantravadi Bhavanarayana and another vs Merugu Venkatadu and others correctly interprets section 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
 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 ILR 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
CA Nos 341 and 343 allowed
CA No 342 remanded


Summary:
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 section 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 section 32d 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 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 section 32 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 section 23 of the Act would be wholly out of place the applicable presumption being the one prescribed by Explanation 1
The presumption under section 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 vs M K Noor Mohammad Rowther AIR 1953 SC 446 and Varada Bhavanarayana Rao vs State of Andhra Pradesh   explained