KONDAYYA v. RAMA RAO

ALURU KONDA YY A AND ORS. A _v._ SINGARAJU RAMA RAO AND ORS. _Sep/ember_ 20, 1965 [P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYAT· B t:LLAH, J.C. SHAH ANDS. M. SIKRI, JJ.] _Madras Es;ates_ _Land_ _Act_ (I _of_ 1908), _s._ 3(2) _(d),_ _Explanation_ _I,_ 11' am~ndcd _by_ _Act_ 18 _of_ 1936 _and_ _Act_ (2 _of_ _1945)-Estatc-Grcmt_ _of_ _a_ _named_ _v1Jiage-Jj_ _can be presumed to be_ _of a whole village._ Jn the village of ChaJJayapalarn, there were six inams, namely, the Challayapalam _Shro1rien1_ and five minor inams but there was no infonnation as to when the inams were crealed and by v-·hom. In t\\·o suits, one tiled by the _shrotrietruiars,_ against the tenants for a declaration that the tenant' 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 qucsr1on arO!Je whether the _slzrotrien1_ was an "cstale" vtithin the meaning of s. 3(2)(d) of the Madras Es1atcs 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 tenan:s h,1d occup•D"Y righlS. On appeal, 1he High Court hdd that the evidence on record was inconclusive, that the onus of p'.·o,·ing that the grant was of an estate lay upon the tenants, and th:1t, since the tenanlo; had failed 10 discharge the onus, the question should be decided again,t the IOll&llts. In the appeal to this Court by the tenants, the question \Vas : if there was no evidence justifying an infere;icc that the grant wao; of a whole village, whe1her explanation I lo s. 3(2)(<l) (added by Act 2 of 1945) gave rise to a presump1ion in favour either of the _shrotrierntl11rs_ or the tenants. HELD : The suit or the _shrotriemdars_ must fail, because, the Explanation ra:sc.;; a presumption, v.-here a grant is expressed to be of a named Tillage. that the area which formed the subjecl maller of the groat shall be deemed to he an estate. Raising of the presumption is not subject to any other condition. The le~islalure has, by the _non_ _obsrafJte_ clause in the Explanntion, affirmed that such presumplion shall be raised even if it appears that in the grant arc not included certain lands in the village, which h<lVC, hefore the grant of the named,·iJlagc, been granted on service or other renure or have b~n reserved for communal purposes. llle party contending that the grant in question fall<; outside the definition ins. 3{2l (d). has to prove that case, either by showing that the mi~or inan1s not comprised in the grant were created, contemporaneously \v1th 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 ri~hts of tenants in inam villaj:!CS. It v.rould be attributinA to the le~islature rross i~orance of local conditions. if it was held that the leizislature intended to place upon the tenant the onus of establishing affirfnatively that the minor inams were granted hcfore the arant of 1he named vi!la~e and Iha! if he fails to do so his claim is liable to fnil I• i9 \vell-ni!:!h im'1C1<;sib!e to di!;char_2-! such a burden in normal cues. - Nor was it irltended that, when the evidence was inconclusive, the person who approached the Court for relief must fail, for, as in lhe preseni 842 c D F G II ## KONDAYYA v. RAMARAO _(Shah,_ **J.)** 843 A cue, if the inamdar as well .. 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 Amendmg Act of 1936, reference to the presumption in s. 23 of the Act would be wholly out of place the applicable presumpticm being the one prescnbed by Expla**nation** **I.** **The presumption** **under** **s.** **23,** **that a grant** **in** **favour** **of** **an** **inamdar** wa~ **of the** _**me/varani**_ **only, applied only** **in** **cases** **\Vhich** **arose before** the Amending Act of 1936. [857 G; 858 B; 860 B; 862 F-G] B _District Board_ _of_ _Tanjoro_ v. _**M.**_ _K._ _Noor Mohammad Rowther,_ A.I.R. 1953 S.C. 446 and _V arada Bhavanarayana Rao_ v. _State_ _of Andhra Pradesh,_ [1964) 2 S.C.R. 501, explained. c CIVIL APPELLATE JuRISoJCT!ON: Civil Appeals Nos. 341 to 343 of 1961. Appeals from the judgment andj decree dated September 2, 1955 cf 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 Kuppmwamy_ and _M._ _S._ _Nara-_ **D** _simhan,_ for the respondents Nos. **1** and 2 (in C.A. No. 341 of 1961) respondents Nos. **1** to 3 (in C.A. No. 342 of 1961) and respondent Nos. 1to4 and 6 (in C. A. No. 343 of 1961). The Judgment of the Court was delivered by G **H** **Shah,** **J.** In these appeals a common question-whether a _shrotriem_ grant of lands known as "Challayapalem _shrotriem"_ formed an estate within the meaning of s. 3(2)(d) of the Madrrui Estates Land Act, 1908-arises. The Court of first instance on a review of the evidence was of the opinion that the grant was of the whole Chellayapalem village within the meaning of s. 3(2)(d) of the Madras Estates Land Act, 1908, in force at the relevant time, and that the tenants held rights of occupancy in the lands held by them. The High Court of Madras disagreed with that view and held that on the evidence it was not proved that the original grant was of a "whole village" or even of a "named village" within the meaning of s. 3(2)(d) of the Madras Estates Land Act, 1908, and the first Explanation thereto, and that the onus 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 SUPREME COURT REPORTS [1966] I S.C.R. fering with their possession''. The tenants claimed that "they and A 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 **B** JD the lands acquired in virtue of the provisions of the Madras Estates Lancj (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 C lands in the village did not hold permanent occupancy rights. Later, permission under 0. I r. 8 Code of Civil Procedure to sue the named defendants as representatives of all the tenants in the lands of the _slzrotriem_ gr.int was obtained. Jn this suit the _shrotri:•m-_ _dars_ did not claim any relief for possession : they merely sought to reserve 1'berty to institute separate prcceeJings in that behalf and **D** claimed that they were entitled in enforcement of notices served upon t<!D 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 dispute as to the right of occupancy in a small area of land admeasur- I!. ing 1-90 acres. The plaintiff in the suit claimed that he had acquired the right of occupancy by purcha9C from the original tenant of the land. The fourth defendant in the suit who was the principal contesting pariy claimed that he was a grantee of occupancy righlll 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 held by them, on three grounds : ( 1) that the tenants of agricultural lands were, by immemorial custom of the locality in the Nellore District, occupancy tenants; (2) that the tenants had acquired by prescription or by the doctrine of lost grant the rights of permanent occupancy; and ( 3) that the grant was of an estate within the meaning of s. 3 (2)( d) of the Madras Estates Land Act, 1908, and the tenants of the lands in the estate were by virtue of s. 6 of the Act permanent occupancy tenants. **F** , G II KONDAYYA _V._ RAMA RAO _(Shah,_ _J.)_ 84S A 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 B 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 c D E F G H 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 la~t 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. 1be original deed of grant has not been produced and there 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 ~he tenants viewed in the light of probabiliti~s justified an inference that the grant was of the whole village, but according to the High Court the evidence on the record was inconclusive and the case must be decided against the tenants because the onus to prove that the grant was of an estate lay upon the tenants, and that the tenants had failed to discharge that onus. The problem must be approached in two distinct brancheswhether the evidence justifies an inference that the grant was of a whole village, and if there be no such evidence whether s. 3 (2) ( d) Explanation (I ) 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 SUPREME- COURT REPORT$ [1966] l S.C.R. District of Nellore was under the sovereignty of the Sultan of Gol~ konda. In -1688 this territory along with Golkonda: passea 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 Camatic that the latter should bear the cost of the military defence of the Camatic region. The Nawab agreed to assign the revenues of the Camatic 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 administration of the Carnatic region in 1790. On August 18, 1790 the Board of Revenue, Madras issued instructions to the Collector8 of Revenue appointed by the East India Company, relating to the administration of the Districts. Dighton who was the first Collector A ·B ,_ ##### -. administration of the Districts. Dighton who was the first Collector c of the,Nellore District unoer 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 D _Shrotriemdar_ Mutharaju Ramachandrayya _Sthala Kamai Varu"_ the following co=unication : ' "You shall pay as per instalments _varahas_ 283 (two hundred and eighty three) being the _beriz_ in respect of your _shrotriem_ known as Chellayapalem village in _Gan-_ _davaram_ Paraganas, as entered in the circar _shrotriem_ jabitha, into the Nellpre 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 F to~ end on August 31, 1792. On July 31, 1802 the East India Company assumed sovereignty over the District of Nellorc 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 _stha/akarnams_ and collected quit rent on their inams. It appears G 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 administration 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 revenuG to Government under grants and for fixing assessment .on such lands was promulgated. A register of H ' KONDAYYA V. RAMA RAO _(Shah,_ J.) 847 A .. A loams in Government Taluks was prepared and in Col. 14 of the loam Register the loams 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 loam B Register, nothing substantial was done under the Regulation till 1860. About the actings of the _shrotriemda."s_ 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 1evenue, whether tenants were shifted from lands in their occupation, or c 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 _shrotriemdars_ Muthuraju Subbarao and Muthuraju Subbarammayya 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 D enjoyed from son to grandson and so on in succession, and in Col. 7 details of the lands are set out. Out of the total area of the land 21 _Gorrus_ 12/16 are recorded as _poramboke, 5 Gorrus_ and U _Visas_ as minor inams, and 126. 3! _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 descrip E tion of the boundaries being of lands of other villages to the East, South, West and on the North of lands of military barracks. Income of the _shrotriem_ is fixed at Rs. 1,449-5-5 per annum and the total _jodi_ at Rs. 1,225-12-2, leaving a balance of Rs. 223-9-3 to the _shrotriemdars._ This statement is described as written and filed by F Muthuraju Subbarao and Subbarammayya _shrotriemdars_ of Chal palem _shrotriem_ in the taluk of Nellore" in Col. 21 it was recited G that the _shrotriem_ "being more than 50 years old could be confirmed. In the account of Fasli 1221 the income of the _shrotriem-_ _dars_ for ten years previous to that Fasli is given. It is shown in the margin that the _shrotriem_ is r.~nted from Fasli 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 H 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 B c D E layapalem, and that it was confirmed by the Village Officers. Pur ~uant to the enquiry made by the loam Commissioner entries were pos'ted in the Inam Fair Register. In Ext. A-1 which is described as "an extract from the Register of Inams in the village of Chellaya 848 SUPREME COURT REPORTS [1966] I S.C.R. account of the cost of repair which the _shrotriemdar_ will have to A pay and adopt the remai~der as the value of the _shrotriem"._ In Cols. I 0 & 11 it is recorded that the inam was hereditary, but by whom lt was granted it was not known. It is common ground that Ext. A-I did not include the area of five minor inams for which separate entries Exts. A-2 to A-6 were posted. The total B 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, confirmatory 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. 11 & 12 headed "By whom granted and written instrument in support of the claim" it is record- C cd that "the name of the grantor and the written instruments in respect of the claim not known". Three other entries in the lnam 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 D that the "grantor's name and the date of the grant are not known." The next public document to which reference may be made is the "Descriptive Memoir of Chellayapalem _shrotriem_ village in the Kovur Taluk of the Nellore District"-Ext. A-7. It recites that the boundary of the village had remained unchanged by settlement: the area prior to settlement was (omitting fractions) 469 acres, and by the settlement it was found to be 767 acres, showing an increase of 298 acres, but "nothing had been merged in this village by the settlement." According to the settlement accounts of land, E the total cultivable area was 682 acres, minor inams 18 acres and poramboke 67 acres. Under the head "minor inams included in the F village" were Personal lnams 5-08 acres, Religious Jnams 8-64 acres, Village Officers 2-87 acres and village artisans 1-80 acres. Under Ext. A-7 the whole village was described as the Challayapalem _.rhrotricm._ 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-IOI and A-102 respectively dated January 14, 1881} 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. G #### • H ---~--------------------- KONDAYYA ~.RAMA RAO _(Shah,/.)_ 849 A Exhibit B-1 the letter addressed by Dighton to t)le _shrotriemdar_ may at first blush suggest that the village was accepted and con• firmed 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 B by a _"/abitha_ (list) relating to Circar's _shrotriems"._ In Boswell's Manual it is recited that Dighton had invC;Stigated 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 c 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 179<1 not invested with _de jure_ sovereignty over the region. There is also no record of any enquiry made by Dighton i11. respect of the Chal D Iayapalem _shrotriem._ The object of the Jetter 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) as per _mamool._ E Exhibit B-1 does not refer to any minor _inams, and' treats the Challayapaiem village as the _shrotriem_ of Muthurajus. The statement of Mutharaju Subbarao and Subbarammayya-Ext. 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, F 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 whereG as the total area of the village as then measured exceeded 466 acres. Thb 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 df the minor inams. In each of those extracts' under the head "By whom granted and written instrument in supH port 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 iftams were issued because the inams L8Sup, C.I./65-11 A B c D 850 SUPREME COURT REPORTS (1966] l S.C.R. were found to be more than fifty years old. Inams in respect of A 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 1211, the inam relating to Exts. A-5 & A-6 in Fasli 1216, the inam relating to Ext. A-3 B in Fasli I 250 and the inam relating to Ext. A-4 in Fasli 1260. But the accounts maintained under Regulation 31 of 1802 w~re 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 C to be found in Exts. A-2 to A-6. Exhibit A-7 proves the existence of minor inams, but has no tearing on the question whether the whole village Challayap~lem was granted in inam. Jn Exts. A-48, A-49, A-104, A-105 and A-103 the predecessors-in-interest of the present inamdar had described the village as D "Challayapalem _Shortrkm";_ in Exts. A-102, B-44, B-45, 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 _"slzortriemdars_ of Chellayapalcm". There are documents Exts. B-2, B-3, B-4, B-5, B-6, B-9, B-112 & B-1I6 and other documents in which the village is described as "Chellayapalem _Shrotriem"._ But these recitals I. have no evidentiary value in support of the case that the whole village was granted. The statements in Ext. B-195 related only to a part of the village and that the income realised by the inamdar was Rs. 1,449-5-5 per year, out of which the revenue payable to the •· Government was Rs. 1,225-12-2 and the balance enjoyed as inam was only Rs. 223-9-3. Exhibit A-I-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 G was confirmed was not the area of the entire village, but the _shro-_ _triem_ 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 H years the _shrotriem_ was under an _Tiara._ The Inam Fair Register recites that garden lands were irrigated from the private wells of •. ### KONDAYYA _v._ RAMA RAO _(Shah,/.)_ 851 A the _shrotrlemdars._ From the acounts 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 **B** 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 c 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 accordiugly. 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 **D** to produce their books of account relating to their management. It is however admitted by them that they were collecting _jodi_ from the holders of minor inams and paying it into the public exchequer. It was explained by S. Rama Rao P. W. 1 that he "collected the cess" as a registered proprietor and paid it over into the treasury, because a demand was made upon him by the Revenue authorities **E** 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 doe$ not justify any **F** 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 G 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: **H** "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 SUPREME COURT REPORTS [1966) l S.C.R. or even for a declaration as in the pre- A sent case, the burden of proof would undoubtedly be on the tenant to 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 c:ither a grant of a whole village or a grant of a named village." S In so enunciating the law, the High Court relied upon the judgment of this Court in _District Board Tanjore_ v. _M. K. Noor_ Mohan~d _Rowther(1)_ and held that in law the burden of proving that a particular grant was a grant of an estate lay upon the tenants in all caaes, and the tenants having failed to discharge that burden their claim must fail. c 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 180 I, the East India Company promulgated thc Permanent Settlement Regulation D 25 of 1802, which dealt with the tcnur~ of zamindars in their estates. ' This Regulation was passed on July 13, 1802 and bys. 4 thereof inams were exempted from its •cope. On the same date, another Regulation 31 of 1802 was enacted. This Regulation dealt with inams and provided for making rules for the b.etter ascertainment of titles of persons holding or claiming to hold, lands exempted JI: from the payment of revenue to Government under grants not being "Badshahi" or Royal and for fixing an assessment on such lands. By s. 15 it was enacted that a register of inams shall be kept in each _zi/lah_ 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 F 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 Comm~ sion made inquiries and issued confirmatory _sanads._ We have G 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 illl proceeding dated Januury _5,_ 1818 that : "The universally distinguishing character, as well as the chief privilege of this class of people, is their exclu (t) A.l.R. 19S3 S.C. 446 H KONDAYYA _V._ RAMA RAO _(Shah,/.)_ A 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 GovernB mcnt 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." 853 The Legislature with a view to define the relations between c landlords and tenants in inam villages promulgated Madras Act 1 of 190\8. The material part of s. 6( 1) as amended by Madras Act 8 of 1934 and 18 of 1936 provided: Section 3 sub-s. (2) defined the expression "estate" within the meaining of the Act and insofar as it is material for this case, it provided as originally enacted : "In this Act, unless there is something repugnant in the subject or context "Estate" Means (a) any permanently-settled estate or temporarilysettled zamindari: "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) . D E F G Explanation ( 3) .- . n ( b) any portion of such permanently-settled estate or H temporarily-settled zamindari which is separately registered in the office of the Collector; ( c) any unsettled palaiyam or jagir; 854 SUPREME COURT REPORTS [1966) l S.C.R. _(_ d) any village of which the land revenue alone has been granted in inam to a person not owning the kudivaram thereof, provided that the grant has been made, confirm,ed, or recognised by the British Government, or any separated part of such village; A ...... ( e) any portion consisting of one or more villages B of any of the estates specified above in clauses (a), (b) and ( e) 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"_ c has acquired a secondary meaning, it means the cultivator's interest in the land, and _"me/varam"_ 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 : (I) 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 0 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 commcnament of these min~r grants and the terms on which they were granted wa·; not forthcoming. E In G. _Narayanaswami Nayudu_ v. _N._ _Subraman.vam(')._ in a suit filed by the receiver of the Nidadaole estate for possession of certain lands the tenant claimed that he had acquired occupancy rights under s. 6 of the Madras Estates Land Act I of 1908. There were in the village minor inams of three classes : _archaka_ F servioc 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 villa!!e, the _Venkarapuram agraharam_ could not be said to be "a village of G which the land revenue had been granted as inam within the meaning of s. 3(2)(d) of the Act". The Court rejected that contention and observed : "The definition in sub-section 2, clau~e _(_ d) was obviously intended to exclude from the definition of H "Estate" what are known as minor inams, namely, (t) 1.L.R 39 Mad. 683. 855 KONDAYYA _v._ RAMA RAO _(Shah,_ /.) 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 seerris to be the nature of the minor inams in this case." A B c The Court therefore held thats. 3(2)(d) of the Madras Estates Land Act excludes from the definition of "estate" minor inams, and a grant which purports to be a grant of a whole inam village is an estate within the meaning of cl. (d) of s. 3(2), even though it may be found that there are lands held by grantees under D minor inams. The Legislature in 1936 substituted for cl. (d) _1_ of s. 3 (2) the following clause by the Madras Estates Land (Third Amendment) Act, 18 of 1936 : " ( d) any inam village of which the grant has been made, confirmed or recognized by the British GovernE ment, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees." Then came the judgment of the Madras High Court in _Tulabandu Ademma_ _v._ _Sreemath Satyadhyana Thirtha Swami-_ F _varu(')._ 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',_ G but under the head _'Gudicut'_ (the total area of the village) was the entry 158.23 acres, from which were deducted 25.10 acres described as private lands, and 5.4 acres 'inams of other persons' leaving 128.6 acres as the area covered by the grant." In Col. 10 it was stated that there was no _'Chekunama'._ The Court held that the grant being of less than the whole village, the tenant H could not rely on s. 6 of the Act. In that case the boundaries of the _agraharam_ as described in Col. 10 in the Inam Register (I) A.I.R. 1943 Mad. 187. 856 SUPREME COURT REPORTS (1966) I S.C.R. were admittedly the boundaries of the whole village, but in A the view of the Court Col. 10 had to be read in conjunction nith the other columns. There was no evidence whether the other inams were granted before the grant in favour of the _Devasthana_ or after. This case apparently marked a departure from the rule which was enunciated earlier by the Madras High Court in, G. _Narayanaswami Nayudu's_ _case(')._ B The Legislature immediately reacted against this view and enacted, by Madras Estates Land (Amendment) Act 2 of I _945,_ added the following Explanation to cl. (d) of s. 3(2). Explanation (I) 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 br0ught 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. _Narayanmwami's_ _case(')._ 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 Explanat:on (I ) 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 grnnt shall be deemed to be an estate, notwithstanding that it did not include lands granted on service or other tenures or lands reserved for communal purposes. On the true effect of the Explanation there was a sharp conflict of judicial opinion resulting in three distinct views. In one set of cases it was ruled that the burden of proving that a tenant is entitled to permanent rights of occupancy in his holding by virtue of s. 6 of the Madras Estates Land Act always lies upon the tenant, and it is for the (I) I L.R. 39 Mad. 6SJ. c D G II KONDAYYA _V._ RAMA RAO _(Shah,_ J.) 857 A tenant to establish affinnatively that the minor inams in the village were granted before the date of the grant of the named village, and if he failed to do so his claim is liable to fail : see _Rama_ _Rao_ v. _Linga_ _Reddi(')_ and _Ramadhan Chettiar_ v. _State_ _of Madras(')._ 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 B estate, or that it was not of an estate, and the evidence is inconclusive, the person who has approached the Court for relief must fail : see the judgment of Krishna Rao J., in _Nelluru Sundararama_ _Reddy_ v. _State_ _of_ _Andhra Pradesh('); Varada Bhavanarayana_ _Rao_ v. _State_ _of_ _Andhra Pradesh(_ _[4]_ _);_ and _Addanki_ _Thiruvenkata_ _Thata Desikacharyulu Ayyavarlamgaru_ v. _The State_ _of_ _Andhra_ C _Pradesh and Ors.(_ _[5 ]_ _)_ In the third set of cases it was held that the Explanation raises a presumption where a grant is expressed to be of a named village, that the area which fonned 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 D the definition of s. 3(2)(d) of the Act to prove that case either by showing that the minor inams not comprised in the grant were created contemporaneously with or subsequent to the grant of the village by the original grantor : see _Janakiramaraju_ v. _Appala-_ _swami(0); Nelluru Sundarama Reddy_ v. _State_ _of_ _Andhra_ _Pradesh('); State_ _of_ _Andhra Pradesh_ v. _Korukonda Bhattam_ E _Appalacharyulu(')_ and _Sri Varadarajaswamivari Temple_ v. _Sri_ _Krishnappa Govinda and others(_ _[9]_ _)._ In expressing the first view the _non-obstante_ clause in the Explanation was read as prescribing the conditions on proof of which the statutory presumption arises. The Explanation was apparently read as implying that the conditions for the raising of F 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 G of the legislature apparently was to declare rights of occupancy of tenants in inam villages, and it would be difficult to believe that the legislature intended to place upon the tenants onus of proof which in normal cases would be well-nigh impossible to discharge. A large majority of the inams are ancient and the (1) A.l.R. 1957 A.P. 63 (2) A.I.R. 1958 Mad. 104. H (3) l.L.R. [1959] A.P. 337 F.B. (4) [1964] 2 S.C.R. 511. (5) A.I.R. 1964 S.C. 807. (6) I.L.R. (1954) Mad. 980. (1J I.L.R. [1959] A,P. 339 F.B. (8) I.L.R. [1959] A.P. 687. (9) l.L.R. [1958] Mad. 1023 858 SUPREME COURT REPORTS [1966] I S.C.R. 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 A B c ### of proving that the grant is so expressed must lie upon the party who claims to bring the grant within the exception, but once D 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_ _Ran(')_ and _Ramadhan_ _Che11iar(')_ the view that the burden lay uoon the tenants to prove that the grant was of an estate, it was assumed by the Mad-as Hi~h Court that this Court had rendered a considered decision in the _District_ _Rowd_ _of_ _Tanjore's ca,c(_ _[3 ]_ _)_ that the onus of proving that a grant of land is a grant of an estate lies upon the tenant. But it appears that no such decision was given by the Court in that case. In the _District Board of Tanjore's_ cme( [1 ] ) the defendant who had taken a lease for three years of a piece of land belonging to the District Board claimed that he had acquired permanent occupancy rights under s. 6 of the Madras Estates Land Act, because after the expiry of the period of the lease the Board had not resumed possession. It was the Board's case that after expiry of the period of the lease. the Board had taken possession of the land and had brought it under cultivation. The Subordinate Jud~e held that the land did not constitute an estate within the mea-ning of s. 3(2)(d). The Hi~h Court disagreed with that view. In appeal to this Court Mahajan, J., on (I) A.l.R. t957 A.P. 63. (2) A.l.R. t958 Mad. 104. (3) A.l.R. 1953 S.C. 446. G H KONDAYYA _v._ RAMA RAO _(Shah,/.)_ ssg. 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 Chandra~ekhara 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 Cou!t 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 minimi:res 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. ' A B c D F G II 860 SUPREME COURT REPORTS [1966] I S.C.R. 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_ _BhavafU.lrayana_ _Rao_ v. _State of Andhr:i_ Prad~s/1 _and_ _others(_ [1] ), this Court expressed its preference for the second view. That was a case in which the appellant held a major part of certain villages covered by five inam grants. The Inam Commissioner had granted fresh inam title deeds in confirmation of the original grants. The Special Officer appointed by the Madras Government under s. 2 of the Madras Estates Land (Reduction of Rent) Act, 1947 decided that the inam lands covered by the fresh inams were "Estates" within s. 3(2)(d) of the Madras Estates Land Act, 1908, and recommended fair and equitable rates of rent for th~ _ryori_ 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 grnnt was not of an estate within the meaning of s. 3 (2) ( d) of the Madras fatale; Land Act. The Trial Court upheld the contention, but the High Court in appeal reversed that deeisio.:. 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 discha,ge 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 or ss. I 0 I, 102 and I 03 of the Evidence Act, and applyi:ig that principle if the plaintiff failed to prove his claim that land was not an estate, the appeal should stand dismissed. The Court in that case regarded the judgment in the _District Board of Tanjore's_ _case(')_ as not decisive of the question, and proceeded to hold (I) [t964] 2 S.C.R. Sul. (2) A.l.R. 1953 S.C. 446. A B I) # G H KONDAYYA _v._ RAMA RAO _(Shah,!.)_ 861 A 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 B tenure," and the other that when adding the Explanation in 1945, the Legislature did not think fit to make any change in s. 23 of the Act. But as already observed, the language used by the Legislature in enacting Explanation (1) to s. 3(2) (d) expressly directs a c 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 '. D even if it appears that in the grant are not included certain lands in the village which have before the grant of the named villago been granted on service or other tenure or have been reserved for communal purposes. The presumption, it is true, is not 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 E mentioned in the _non-obstante_ clause. Section 23 was added by s. 5 of the Madras Estates Land (Third Amendment) Act 18 of 1936. It reads : "Where in any suit or proceeding it becomes neces 1<' sary to determine whether an inam village or a separated part of an inam village was or was not an 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 G estate." The presumption under s. 23 in terms applies only to cases in which the question whether an inam village was an estate before the commencement of the Madras Estates Land (Third Amendment) Act, 1936. Under the Act, before it was amended in JI 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** SUPREME COURT REPORTS [ 1966] I S.C.R. ing **s.** 23 the Legislature intended to declare that in detennining whether under a grant of an inam village both _varams_ were granted or only the _melrnram_ was grantej, it shall be presumed, until the contrary was shown, that such village or part thereof was an estate, that is, only the _melvaram_ was granted. Under the Act before its amendment, one of the conditions of the applicability of s. 3(2) (d) was that the grant in favour of the inamdar was only of the _melvaram,_ and that it did not include the _kudi-_ _varam,_ and the Legislature by s. 23 as amended provided that in dispute arising between the landlord and tenant whether an inam village was or was not an estate, it was to be presumed that it was only of the _melvaram._ Enactment of this section was apparently found desi·able because of certain decisions of the Judicial Committee. In _S11ryannrayana_ v. _Patanna(1)_ and _l/padrashta_ _Venkata_ _Sastru!11_ v. _Divi_ _Seetharam11d11_ _and 01/iers('),_ the Judicial Committee expressed the view that where there was no evidence of the terms of an ancient grant, there was no pre,umption that it was of _me/varam_ alone. The Madra' High Couct in _Muthu Goudan_ v. _Peruma/ lven(')_ held that the ground on which the decisions of the Judicial Committee p;oceeded, though it w~ not necessary for the pU'JlOSe 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 _Ch'dambara_ _Sivaprakam Pandara Sannadhigal_ v. _Veerma_ _Reddi('),_ 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 ap:>licable only to cases arising under the unamended Act. Undoubtedly in cases arising under amended Act, the conditions on which the presumption will arise arc prescribed in the Explanation (I ) . The language used by the Legislature in the amended s. 23 c!early shows that the section was not intended to deal with cases arising under the Madras Estate.q Land Act as amended by Act 18 of 1936. Any reference in s. 23 to a presumption in respect of cases arising after cl. ( d) as A **B** c I) **E** F G **H** recast by Act 18 of 1936 would have been wholly out of place. There were two presumptions which applied to different situations. In cases which arose before the Amending Act of 1936 the presumption under s. 23 applied : in cases which arose since the amendment of 1936 the presumption prescribed by the Explanation (I) 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. ---·---- - -···--- (I) L.R. _45._ I.A. 2·l9. (2l L. n. 461.A. 123. (3) I.LR. 44 Mad. _538._ (4) L.R. _49_ I.A. 286. ... (2l L. n. 461.A. 123. (4) L.R. _49_ I.A. 286. .. KONDAYYA V. RAMA RAO _(Shah,/.)_ 863 A In our view the following passage from the decision of the Madras High Court in _Mantravadi Bhavanarayana and another_ v . _Merugu Venkatadu and others(')_ correctly interprets s. 3(2)(d): "It is now settled law that by reason of the amendment made in 1945, which added an explanation to B 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." c 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 _shrotrlemdars,_ 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 D 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 . E 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 occu· pancy 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._ F 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 G 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 H throughout. In Civil Appeal No. 343 of 1961 also the decree passed by the High Court will be set aside and the suit decreed (I} I.L.R. [1954] Mad. 116. 864 SUPREME COURT REPORTS [1966] I S.C.ll. " : ' with costs throughout. There will be one hearing fee in this A Court. In Civil Appeal No. 342 of 1961 arising out of Appeal No. 789 of 1950 from suit No. 93 of 1947, the appeal will be romanded to the High Court with a direction that the question1 which remain to be determined will be decided according to law. B No order as to costs in Appeal No. 342 of 1961. _C.A. Nos._ 341 _and_ 343 _allowed._ _C.A. No._ 342 _remanded._ ###### • .. '