Appeal No 424 of 1958
Appeal from the judgment and decree dated April 25 1950 of the Madras High Court in A section No 67 of 1947
K Bhimasankaram and
KR Chaudhuri
for the appellants
T V R Tatachari for respondents Nos 1 to 3
P Ram Reddy for respondent No 9
M R Krishna Pillai for respondent No 24
September 18
The Judgment of the Court was delivered by SHAH J
One Thammiah had two sons Gangaraju and Ramayya and four daughters Ammanna Sesbamma Gangamma and Bbavamma of these the two sons and the daughter Ammanna died during Thammiab s life time
Gangaraju left him surviving his widow Cbetamma and Ramayya his widow Venkamma
Ammanna was survived by her son Rudrayya who was brought up by Thammiah
Thammiah died in 1885 Seshamma in 1904 Gangamma in 1930 and Bhavamma in 1935
After the death of Bhavamma Paddaraju herein after called the plaintiff son  of Gangamma filed Suit No 53 of 1944 in the court of the Subordinate 655 Judge at Rajamundhry against the descendants of Seshamma and Ammanna for a decree for partition and separate possession of a third share in 17 lands described in Schedule B to the plaint as agricultural land and measuring in the aggregate 51 acres 72 cents in Patta No 12 in village Pandalpaka in Pitbapur Zamindari and in Schedule IC  described as three houses with sites thereof in village Pandalpaka
To this suit Jaggarayudu and Paddaraju sons of Venkataraju brother of the plaintiff were impleaded as defendants 31 and 32
The plaintiff claimed that Thammiah owned occupancy rights in the ryoti lands in the Pithapuram Zamindari and that after Thammiab s death the lands were managed with the permission of the plaintiff and his brother Venkataraju in the first instance by the two daughters in law of Thammiah Chetamma and Rammanna son of Seshamma and their possession and management was on behalf of heirs and persons entitled to maintenance out of the estate and that the right to sue for  partition accrued on the death of Bhavamma on March 18 1935
The suit was resisted by the descendants of Seshamma and Annamma principally on the plea that in the lands described in Schedule B Thammiah had not proprietary right and that occupancy right therein accrued to Rudrayya and Veeriah husband of Seshamma by virtue of the Madras Estates Lands Act 1908
It was also pleaded that Thammiah had made an oral will devising his estate in favour of Veeriah who was his illatom son in law and Rudrayya in equal shares
This plea about the oral will was negatived by the Court of First Instance and the High Court and need no longer be consi dered because it is not canvassed be fore us in this appeal
The trial Court held that Thammiah had no proprietary interest in the lands in Schedule B  and on that view decreed the plaintiff s claim for partition of the houses and sites described in Schedule IC  only and awarded a third share to him 656 another third share to Ramanna and the remaining third share collectively to defendants 31 and 32sons of Venkataraju
in appeal the High Court of Madras modified the decree of the trial court holding that in the agricultural lands Thammiah had occupancy rights which on his death devolved on his surviving daughters and directed that those lands be also partitioned and that a third share be awarded to the plaintiff and a third share to defendants 31 and 32 together with mesne profits from March 181935
the date of Bhavammas death
With certificate under article 133 this appeal is preferred by the descendants of Seshamma and Ammanna
The principal question which falls to be determined in this appeal is whether Thammiah had as claimed by the plaintiff occupancy rights in the lands described in Schedule B  or as the contesting defendants contend Thammiah was an annual tenant of the zamindar and that after his death the lands were held on similar tenure by different members of the family of Thammiah and that the occupancy right was acquired by Rudrayya and Veeriah by virtue of the Madras Estates Lands Act 1908
The lands are within a permanently settled zamindari under Madras Regulation XXV of 1802 and it is common ground that Thammiah was cultivating the entire area of the lands during his life time
There is no evidence indicating that his possession was ever disturbed during his life time
There is again no evidence about the commencement of the occupation of Thammiah or his pre decessors  commencement of their occupation is therefore lost in antiquity
The lands are described in the various documents to which we will presently refer as jeeroyati landie  Thammiah as jeeroyati ryot and after his death his daughters in law and grandson Ramanna were similarly described
Three documents Exts
D 1 D 2 and D 3which establish that Thammiah was cultivating the lands throw important light on the problem under 657 discussion
Exhibit D 1 is a muchilika dated July St 1 1883 executed by Thammiah in favour of the zamindar
Exhibits D 2 and D 3 are similar muchilikas dated respectively August 10 1884 and July 15 1885
Each of these muchilikas is in respect of the seventeen pieces of lands described in Schedule B  and the cist  settled is Rs 4198 
The terms of the three muchilikas are identical
Thammiah is described in the muchilikas as jeeroyati ryot and the lands are described as jeeroyati pampus
It is recited in the muchilikas I have executed and delivered this muchilika agreeing that I should pay the said cist amount of Rs 4198every fasli according to the instalments mentioned hereunder to the Officials on your behalf and to obtain receipts   that during the last year of the term I should not raise gingelly or chiruyeru crop on these pampus but that I should leave sufficient land for purposes of garden cultivation and seed beds that I should not cut down any kind of trees without your permission that I should not raise permanent gardens or construct houses on these lands without your permission that I should not cause damage to these lands so as to make them unfit for cultivation purposes that if at the of the term you should lease out these pampus to anyone whom you like for a cist amount advantageous to you I should not raise objection thereto that if you had leased out these lands to other ryots for the ensuing year after the expiry of the term and if the said ryots should carry on necessary works for purposes of cultivation during the ensuing year by way of ploughing seed beds sowing seeds and planting tender sugarcane even before the expiry of this term I should leave sufficient land to them without raising any objection whatsoever
 By the covenants of the muchilikas Thammiah had undoubtedly undertaken not to raise certain crops nor to cut trees nor to put up permanent constructions and had also undertaken to give certain facilities to other tenants 658 inducted in the lands by the zamindar
The evidence does not justify the inference that Thammiah was inducted on the land by Ext
There is even no evidence that the land was acquired from the zaminder by the members of Thammiab s family or that the ancestors of Thammiah were not on the land before the zamindari rights accrued to the zamindar
It is also not didputed that land 1 in zamindaries in the Madras Presidency were even held in occupancy right by many ryots before the Madras EstateB Lands Act 1908 was enacted
As observed in Venkata Narasimha Naidu vs Dandamudi Kotayyo1 at 301 that there is absolutely no ground for laying down that the rights of ryots in zamindaries invariably or even generally had their origin in express or implied grants made by the zamindar
The view that in the large majority of instances it originated otherwise is the one most in accord with the history of agricultural land holding in this country
For in the first place sovereigns ancient or modern did not here set up more than a right to a share of the produce raised by raiyats in lands cultivated by them however much that share varied at different
times
And in the language of the Board of Revenue which long after the Permanent Settlement Regulations were passed investigated and reported upon the nature of the rights of ryots in the various parts of the Presidency whether rendered in service in money or in kind and whether paid to rajas jagirdars zamindars poligars mutadars shrotiemdars inamdars or to Government officers such as tehaildars amildars amins or thannadars the payments which have always been made are universally deemed the due of Government 
Therefore to treat such a payment by cultivators to zamindars as rent  in the strict sense of the term and to imply therefrom the relation of landlord and tenant so as to let in the presumption of law that a tenancy in general is one from year to year would be to introduce 1 Mada 299
659 a mischievous fiction destructive of the rights of great numbers of the cultivating classes in this province who have held possession of their lands for generations and generations
 It was also observed in that case at p 303 It thus seem unquestionable that prima facie a zamindar and a raiyat are holders of the melvaram and kudivaram rights respectively
When therefore the former sues to eject the latter it is difficult to see why the defendant in such a case should be treated otherwise than defendants in possession are generally treated by being called upon in the first instance to prove that they have a right to continue in possessions The right to occupy land under the revenue system prevailing in Madras may arise by reason of the customs in the district in which they are situate
In any event there is no presumption that the holder of the land under a Zamindar is a tenant at will
In each case the rights of the ryot have to be ascertained in the light of the facts proved
In Appa Rau vs Subbanna 1 Muttusami Ayyar and Wilkinson JJ were called upon to consider whether a zamindari ryot could mortgage his interest in his holding
It was observed in that case that  According to the course of decisions therefore in this presidency the landlord may determine the tenancy if there is a contract express or implied by exercising his will in accordance with his obligations that there is no presumption in favour of a tenancy at will that an occupancy right may exist by customs that a pattadar or raiyat in a mitta is entitled to continue in possession so long as he regularly pays rent and has a saleable interest and that by reason of special circumstances in evidence the onus of proof may be shifted even in regard to a permanent occupancy right from the tenant to the landlord
 The court also observed that it would be monstrous to hold that every tenant in a zamindari is presumably a tenant at will
1 1889 1
L R 660 In Vencata Mahalakshmamma vs Ramajogi 1 a zamindar served a notice upon the defendant who was a cultivating ryot in the zamindari calling upon him to deliver possession of his holding and on default of compliance sued to evict him from his holding
The defendant pleaded that he and his ancestors had been jiroyati ryots of the holding from times immemorial
According to the High Court the zamindar having failed to prove that the ryot s tenancy had commenced under the zamindar or his ancestors the suit should be dismissed
The court observed that in cases
in which the raiyats  holding is not shown to have commenced subsequent to the permanent settlement and when upon the evidence it is possibly as ancient as the zamindari itself the principle laid down with reference to tenancies which admittedly commenced under the zamindar had no application and that in such cases it is not unreasonable to hold that the onus of showing that the tenancy commenced under the plaintiff or his ancestors rests on the zamindar and that until he shows it the zamindar may be fairly presumed to have been the assignee of Government revenue and the tenant liable to pay a fair rent and entitled to continue in possession as long as be regularly pays rent
In Yenkata Narasimha Naidu vs Dandamudi Kotayya2 which we have already referred it was held that a ryot in a permanently settled estate is prima facie not a mere tenant from year to year but the owner 1 of the kudivaram right in the land he cultivates and in a suit in ejectment the zamindar is to prove that the kudivaram right in the disputed land subsequently passed to the defendant or some person through whom he claims under circumstances which give the plaintiff the right to eject
 The Court observed that there is no substantial analogy between an English tenant and an Indian ryot for the right of ryots came into existence  2 Mad
661 mostly not under any letting by the Government of the day or its assignees the zamindars but independently of them according to the Indian traditions such right were generally acquired by cultivators entering upon land improving it and
making it productive
After referring to the judgment of Turner C J and Muttusami Ayyar J in Siva Subramanya vs The Secretary of State for India1 that the Hindu jurisprudence rested private property on occupation as owner and to Secretary of State vs Vira Rayan2 that the right to the possession of lands acquired by the first person who makes a beneficial use of the soil it was observed that the well known division in the Madras Presidency of the great interests in land under two main beads of the melvaram interest and the kudivaram interest made the holder of the kudivaram right far from being a tenant of the holder of the melvaram right a co owner with him
In Cheekati Zamindar vs Banasooru Dhora and others3 Shephard J observed at p 322 Many of the occupants of zamindari lands are not tenants in the proper sense of the word and the fair presumption is that when new occupants are admitted to the enjoyment of waste or abandoned lands the intention is that they should enjoy on the same terms as those under which the prior occupants of zamindari lands held
It is open to the zamindar to rebut the presumption
He may show as was shown in Achayya vs Hanumantrayudu 4 that the usual condition of things does not prevail in his estate or he may adduce evidence as to the particular contract made between him and his tenant
In other words he may show that the terms of the contract were different from those which ordinarily prevail between a zamindar and the occupant of zamindari lands
 Subrahmania Ayyar J observed Practically the whole of the agricultural land there 1 mad
2 Mad
3 1899 1
L R 4 1891 1
L R 662 is not cultivated by persons who merely hire it for a limited time
The raiyats most generally hold by no derivative tenure
And even where the right to cultivate passes to them from zamindars the payment made by them in the absence of a contract is regulated by custom in the last resort as provided in section 11 of the Rent Recovery Act
The raiyats are generally entitled to hold the lands for a unlimited time that if as long as they wish to retain it subject to the performance of the obligations incident to the tenure
Nor can it be said that this is true only in regard to so much of the land in the hands of the raiyats as cannot be shown to have been obtained by them from zamindars
For in the case of lands which have been relinquished by the former occupants or which have been lying waste from time immemorial they too when taken up by a raiyat are treated exactly on the same footing as land into the possession of which it is not shown that the raiyat was let in by a zamindar and the raiyat holds possession of them for an indefinite period
In Kumbham Lakshmanna and others
vs Tanjirala Venkateswarlu and Others 1 the Judicial Committee of the Privy Council held that in a suit to eject the tenant of an inamdar from his holding the burden is on the plaintiff to make out a right to evict by proving that the grant included both the melvaram and the kudivaram interests or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease
The dispute in that case was between inamdars and a tenant and had to be decided by the Civil Court for having regard to the definition in a 32 d of the Madras Estates Land Act 1908 the Act did not apply to inamdars
By section 6 of the Act it having been provided that 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 1 1949 L It
76 T A 202
663 all tenants in possession of land at the date on which the Act came into operation were declared to be holders of permanent occupancy rights but the Act did not justify the inference that the holders prior to that date did not and could not hold occupancy rights
The Privy Council was of the view that in any action by an inamdar to evict his tenants and by a zamindar prior to 1908 to evict his raiyats from their holdings the burden was on the plaintiff to make out the right to evict by proving that the grant included both the melvaram and the kudivaram interests or that the holders of land or their predecessors were let into possession by the inamdar or the zamindar under a terminable lease
The Privy Council judgment therefore recorded its approval to the view expressed in the earlier cases to which we have referred
But counsel for the respondents contended that this was not a suit between a zamindar and a ryot and the rule as to the onus of proof in a suit as between a zamindar and a ryot did not apply where the suit was filed by a person like the plaintiff claiming a share in the occupancy right in land in possession of the defendants and unless the plaintiff establishes affirmatively that the common ancestor was before 1908 in possession as an occupancy tenant his suit must fail
We do not think that this is a permissible approach
The presumption which arises in a suit by a zamindar against a ryot for possession of the letter s holding rests not on the narrow ground of burden that whoever alleges title and claims relief on that footing must establish it  the presumption has its roots in the system of land tenure and in custom of the area in which the lands are situate and applies in a suit between persons claiming under the ryot as well as in a suit against the ryot by the zamindar
Counsel for the respondent relied upon certain circumstances which appeared from the evidence 664 as lending support to the plea of the contesting defendants that the lands were not held by Thammiah in occupancy right
Reliance was placed upon the covenant in Exts
D 1 D 2 and D 3 that the zamindar may on the expiry of the year of the muchilika let out the lands to any tenant at cist advantageous to the zamindar
It is true that in Exts
D 1 D 2 and D 3 it is recited that if at the end of the terms of the muchilika the zamindar should lease out the land to any one for a cist advantageous to hina Thammiah would not object thereto and he further agreed that he would leave sufficient land without raising any objection for the ryot to carry out the necessary work for cultivation during the ensuring year
But such a covenant is by itself not sufficient to justify the inference that the ryot s tenure was precarious
It appears that since the decision of the Madras High Court in Chockaling Pilli vs Vythealinga Pundara Sunnady 1 that neither the rent Recovery Act nor the regulations operated to extend a tenancy beyond the period secured by the express or implied terms of the contract creating it the zamindars were accustomed to take muchilika or other writings from their ryots admitting notwithstanding the true nature of their rights that their tenure was restricted or precarious
In Vencata Mahalakshmamma vs Ramajogi 2 in dealing with a muchilika executed by a ryot for a period of one year only Muttusami Ayyar J observed Neither a patta nor a muchalka granted or executed under Act VIII of 1865 during the continuance of the holding is conclusive evidence that the holding is a tenancy from year to year
A patta or muchalka is ordinarily nothing more than a record of what the tenant has to pay for a particular year with reference to the pre existing relation of landlord and tenant
The fact cannot also be lost sight of that the zamindar is always a man of education status and influence and often exercises 1 2 1892 1
L R 665 revenue power and control over the village records
On the other hand the raiyats are illiterate persons and it would be easy enough to get them sign anything as long as there is no attempt to interfere with their actual occupation and enjoyment of the land
It would be unreasonable therefore to attach any undue important to the recitals of the nature contained in Exts
D 1 D 2 and D 3
The Privy Council in Kumbham Lakshmamma s case referred to the practice among zamindars of taking muchilikas from ryots negativing the existence of the occupancy rights as being prevalent and to the judicial recognition of such a practice in Peravali Kotayya V Pnnopalli Ramakrishnayya 2 and Zamindar of Chella palli vs Rajalapati Somayya 3
The Judicial Committee referred with approval to the observations of Wallis CJ in the latter case to the effect  In this connection it is to be borne in mind that numerous instances have come before the courts in which subsequent to the decision of in inserting in pattas and muchilikas terms negativing the existence of occupancy right
and pointed out that they could not neglect the consideration that a ryot so long as he is not evicted might be prepared to sign anything and that the evidential value of such a contract should be judged accordingly
It is true that if there were some reliable or substantial evidence to show that the tenancy had commenced after the zamindari rights accrued or that otherwise the tenant s right was restricted the value to be attached to the reci tals of the nature set out may be greater  but there are no circumstances in this case lending strength to the recitals contained in Exts
D 1 D 2 and D3
After the death of Thammiah muchilikas were obtained and pattas granted by the zamindar not in favour of the daughters  of Thammiab who were under the Hindu Law his heirs but in favour 1 1949 L R 76 I A 202
2 4 666 of his daughters in law in the first instance and thereafter in favour of one of the daughters in law and Ramanna grandson of Thammiah
These documents are Exts
D 4 D 5 D 5 a D 6 and D 8
Ext 1  4 is a muchilika executed on August 15 1891 by Venkamma and Chetamma daughters inlaw of Thammiah
D 5 is another  muchilika executed on August 15 1893 by Venkamma and Chetamma
Each of these muchilikas is for period of one year
D 5 a is a patta executed on October 10 1893 by the zamindar corresponding to muchilika Ext
exhibit D 6 is a patta executed on May 21 1904 by the zamindar in favour of Chetemma and Ramanna minor by his guardian Veeriah and there is Ext
D 8 which is a patta dated January 16 1906 also in favour of Chetamma and Ramanna
All these muchilikas and pattas related to the same seventeen pieces of land which were originally in the possession of Thammiah and the covenants thereof are identical
It is true that in respect of the first two inuchilikas the ryots were Chetamma
and Venkamma and in Exta
D 6 and D 8 the ryots were Chetamma and Ramanna
Counsel for the defendants asks us to infer from Exts
D 4 to D 8 that the zamindar had at the end of the year for which the muchilikas or pattas were executed exercised his right of eviction and had taken possession of the lands and had given them to other persons of his own choice
But it is difficult to draw that inference in the absence of any reliable evidence that the zamindar had evicted ryots who had executed the muchilikas and had then inducted fresh ryots on the land
The reason why Venkamma was omitted after 1893 from the muchilikas and pattas of the land and in her place Ramanna was substituted will be presently mentioned
After the death of Thammiah his rights in the land would undoubtedly devolve by the law of inheritance upon his surviving daughters with limited interest
But the fact that muchilikas were taken from persons who were strictly not heirs according to Hindu law but were still 667 representatives of the family will not justify an inference that the right of the original ryots were extinguished and fresh rights in favour of persons who executed muchilikas were created
The two daughters in law Chetamma and Venkamma after the death of Thammiah continued to live in the
family house together with Sesharama
Veerayya and Rudriah and it is not unlikely that the zamindar regarded the two daughters in Law as representatives of the family and took muchilikas from them
there is no warrant for the inference that they were inducted on the land in independent right by the zamindar arid not as representatives of the descendants of Thammiah
The learned Judges of the High Court observed that in 1895 when Ext
D 4 was executed in country parts like Pandalpaka it is too much to assume such a second knowledge of Hindu law
Besides Venkamma and Chetamma were admittedly living along with Veerliah and Rudrayya and Ramanna and Bhavamma during Thammiah s life time and continued to live in that some house after his death 
So we have no doubt that the Maharaja of Pittapur the zamindar never intendedin the least to take away the B Schedule lands from Tammayya s heirs and given them to Venkamma and Chittemma who were not heirs and we hold that he renewed the patta in favour of these two windows as they were considered by him to be representing Tammayya s estate being his widowed daughters in law
our view this in the circumstances of the case is a correct inference
It appears that after 1895 there arose disputes between Veeriah and Venkamma and it was arranged to provide maintenance to Venkamma out of the estate of Thammiab
 Ext
P 1 dated May 16 1899 records the terms on which maintenance was granted
This document has a very importal Lt bearing on the question which falls to be decided in this appeal
1 b is received ia E2t
P 1 that all the properties of Thammiah had devolved after 668 his death upon his dowbitras daughter s sons Rudriah and Ramanna and that the two dowhitras were bound to maintain the widowed daughters in law Chetamma and Venkamma and that accordingly they were being  maintained but a Venkamma was unwilling to live in the family house it
Was decided to give her for maintenance expenses Rs25 and 240 kunchams of white paddy per year besides a house for residence
This deed recites that out of the estate of Thammiah the two widows Chetamma and Venkamma were in fact being maintained that the estate was inherite I by Rudriah and Ramanna and recognises the right of the widows to receive maintenance out of the estate
There is no evidence on the record that besides the lands mentioned in Schedule B  there was any other agricultural land of which Thammiah was possessed and which had devolved upon Rudriah and Ramanna
It is admittedly out of the property of Thammiah which had devolved upon Rudriah and Ramanna that maintenance was agreed to be given and if Thammiah was not possessed of any property other than the lands in Schedule B  Ext
P 1 must lend strong support to the inference that the lands in Schedule B  were regarded at the date of the maintenance deed as belonging to the estate of Thammiah out of which Venkamma was entitled to maintenance
The assumption that the property had devolved upon Rudriah and Ramanna is evidently not true
long as the daughters or any of them were alive they were according to the Hindu law applicable to the Madras Presidency owners though for their lifetime only of the estate left by Thammiah
P 1 does therefore land support to the case of the plaintiff that the property was regarded as belonging to the family in which all persons who were living in the house of Thammiah including the two daughters in law had interest
After
maintenance was provided to Venkamma by Ext
P 1 her name was omitted from the muchilikas and the pattas subsequently Pattas D 6 and 669 D 8 are as we have already stated in favour of Chetamma and Ramanna
It is true that rent was enhanced by the zamindar from time to
time under the muchilikas
During the life time of Thammiah the annual rent was Rs 419 8 0 and it remained unchanged but after his death the rent even though the area 0f the land continued to be  the same was enhanced to Rs 481 8 0 under Ext
There is some error in totaling tip the amount of rent but the enhancement of rent by Rs 52 is substantially the result of alteration of rent of Sr No 315
Originally the rent of Sr No 315 was Rs 29 3 9 it was enhanced to Rs 81 3 9
under Ext
D 5 the rent is Rs 537 it should have been Rs 473 but that again is the result of some error in totaling the only enhancement being in respect of No 358 which was increased from Rs 5 to Rs 6 8 0 In Ext D 6 of the year 1904 the rent of this land was enhanced to Rs 60 8 0 and rent in respect of Sr No 315 was enhanced to Rs 91 3 9
The High Court has held that this enhancement of rent of the two lands Nos 315 and 358 was presumably because the lands were irrigated and having regard to the circum stances we think the inference of the High Court is correct
Enhancement of rent of the lands from time to time does not lend support to the inference that fresh pattas and muchilikas were not in recognition of the previous rights
It is pertinent to note that in the records of the zamindar all the muchilikas in respect of the lands bore No 12 during the life time of Thammiah and after his death they bore No 23
The circumstance that the same area of land remained in the occupation continuously of the family of Thammiah under Exts
D 1 to D 8 for a period exceeding 25 years also lends support to the plea of the plaintiff
It is true that by his notice Ext
D 7 the zamindar called upon Ramanna and Chetamma to vacate
the kumatam which term is translated by the learned counsel for the respondent as home farm lands of the extent of 51 acres 72 cents
But by the year 670 1905 it was well known that legislation of the naturewhich was ultimately enacted as the Madras Estate Land Act 1908 was on the legislative anvil and no reliance can be placed upon the statements made in the notice which does not appear to have been followed by proceedings for enforcement of the claim to possession
It is common wound that on January 16 1906 the zamindar issued in favour of Chetamma and Ramanna a patta in respect of the same landsfor an annual rental of Rs 578 4 0 rent having been enhanced in respect of Sr No 46 and 358 only
The High Court placed strong reliance upon the circumstances that in all the muchilikas and pattas the lands were described as jeroyati lands and the tenants were described as joroyati ryots
The High Court observed that jeroyati ryot was a well known term indicating prima facie posses sion of occupancy rights
However the state of the authorities in the Madras High Court to which cur attention his been invited does not justify as in expressing any definite opinion on that plea
In Zamindars of Bodokimidy vs Badankayala Bhimayya1 Curgenven J held that the phrase on jirayati tenure  is only used where occupancy rights exist
But beyond the bare statement in the judgment that the phrases on jirayati tenure being so far as my experience goes only used where occupancy rights exist there is no further elaboration in the judgment
In Ivaturi Lingayya Ayyavaru vs Kandula Guningiah 2 Wallace J without referring to the earlier judgment of Curgenven J observed that the term jeroyatidar did not imply that the executant was an occupancy ryot
Here also no reasons appear to have been given in support of the view
In Dadamudy Tatayya vs Kelachina Venkatasubbarayya Sastri 3 Devadoss J in the course of hearing in appeal called for a finding from the 1 AIR 927 Mad
2 AIR 1928 Mad 58
3 AIR 1928 Mad
671 trial Court as to the meaning of the word jeroyati as used in the Vuyyur Zamindari and as to the meaning of the expression savaram jeroyiti used in documents in that estate
The Subordinate Judge recorded evidence on the question referred to him and observed after referring to Brown s Dictionary and Wilson s Glossary that the word  jeroyiti land may mean cultivable or arable land but it was only the context that must decide which meaning was to be given to the word
He also observed that the word  jeroyiti especially when prefixed to the word  right or hakku had come to mean rights of occupancy
This report of the Subordinate Judge it appears was accepted by the High Court
These are the only decisions of the Madras High Court to which our attention was invited
The task of this Court in ascertaining the special meaning which an expression used in the revenue administration and by the residents of a certain area has acquired is indeed difficult
If the expression jeerayot is a local variation of Zeerait used in the revenue administration especially in Northern India it may mean  assessed land or agricultural land
On the material placed we are unable to express any definite opinion on this part of the ease of the plaintiff
To summarise there is no evidence to show that occupation of the lands by Thammiah commenced under the zamindar  and there is no evidence as to the terms on which Thammiah or his predecessors were inducted on the lands the commence ment of the tenancy and the terms there of are lost in antiquity but Thammiah and his descendants are proved to have continued in possession of land uninterruptedly till the enactment of the Madras Estates Land Act 1908
In the light of the presumption that the zamindar is unless the contrary is proved the owner of the melvaram and the ryot the owner of the kudivaram the inference is irresistible that Thammiah was the holder of the 672 occupany rights in the lands and that these rights devolved upon
his successors and that the occupancy rights in the lands were not acquired by virtue of the provisions of Madras Act 1 of 1908
Before parting with the case a minor question relating to mesne profits awarded to the plaintiff and defendants 31 and 32 must be mentioned
By his plaint the plaintiff claimed mesne profits in respect of his share for three years prior to the date of the suit
He valued the claim for mesne profits at Rs 3800 past profits on plaintiffs 13rd share for two years 1940 and 1941 at Rs 2280 and past mesne profits on plaintiff s 13rd shares for the year 1942 at Rs1520
The trial court dismissed the plaintiff s suit as to his share in property described in Schedule B 
The High Court in awarding a third share to the plaintiff and another third share to defendants 31 and 32 collectively also awarded past mesne profits from the 18th of March 1935 ie the date of the death of Bhavamma alone with future mesne profits regarding the shares in the B and the C Schedules properties
But the High Court could not award mesne profits prior to August 1940 which had never been claimed by the plaintiff in the suit
We therefore modify the decree of the High Court and direct that mesne profits 1940
Subject to that modification the decree passed by the High Court is affirmed and the Appeal is dismissed with costs payable by the contesting defendants to the plaintiff
Appeal dismissed subject to modification


Summary:
The lands in question which were within the permanently settled Zamindari in the then presidency of Madras belonged to T who during his lifetime was cultivating the lands
He died in 1885 leaving behind inter alia three daughters
After the death of the three daughters the last having died in 1935 the sons of one of them instituted a suit against the descendants of the other two for partition and separate possession of a third share inter alia in the lands in question on the footing that T owned occupancy rights in the lands
The suit was resisted on the plea that T had no proprietary right in the lands that he was only an annual tenant of the Zamindar that after his death the lands were held on similar tenure by different members by his family and that occupancy rights were acquired by those members of his family who were in possession of the lands when the Madras Estates Land Act 1908 came into force in 1908
There was no evidence to show that the occupation of the lands by T commenced under the Zamindar nor was there any evidence as to the terms on which he or his predecessors were inducted on the lands the commencement of the tenancy and the terms thereof being lost in antiquity but he and his descendants were proved to have continued in possession of the lands uninterruptedly till the enactment of the Madras Estates Land Act 1908
Held that in cases in which a ryot s holding is not shown to have commenced subsequent to the permanent settlement the presumption is that Zamindar was only the holder 654 of the melvaram being the assignee of the Government revenue and that the kudivaram in the land belonged to the ryot who Was entitled to continue in possession as long as he paid the rent regularly and that this principle was applicable equally in a Suit between persons claiming under the ryot as in a suit against the ryot by the Zamindar
Case law relating to the rights of ryots in Zamindaries in the Madras Presidency reviewed
Held further that T was the holder of the occupancy rights in the lands  that these rights devolved upon his successors and that the said occupancy rights were not acquired by virtue of the provisions of the Madras Estates Land Act 1908