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PETITIONER: SUNKAVILLI SURANNA AND OTHERS

       Vs.

RESPONDENT: GOLI SATHIRAJU AND OTHERS

DATE OF JUDGMENT: 18/09/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1962 AIR  342            1962 SCR  (3) 653

ACT: Occupancy   Rights-Ryot  in  possession   before   permanent Settlement-Terms as to commencement of tenancy lost in anti- quity-Presumption  as  to melvaram and  kudivaram-Rights  of ryots in Zmindaries-Madras Estates Land, Act, 1908 (Mad.   1 of 1908), s. 6.

HEADNOTE: 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

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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.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 424 of 1958. Appeal from the judgment and decree dated April 25, 1950, of the Madras High Court in A. S. No. 67 of 1947. K.   Bhimasankaram and..K.R. 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. 1961.   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

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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  18,1935. the  date of Bhavammas death.  With certificate  under  Art. 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.  419/8/-.   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. 419/8/every 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

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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.  D-1.  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   v. Dandamudi  Kotayyo(1)  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) (1897) I.L.R. 20 Mad.a 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

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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 v. 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. 13 Mad. 60. 660 In Vencata Mahalakshmamma v. 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 v. Dandamudi Kotayya(2), 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)  (1897) I.L.R. 20 Mad. 299.                             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 v. The Secretary of State for India(1), that

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the   Hindu  jurisprudence  rested  private   property,   on occupation  as  owner,  and to Secretary of  State  v.  Vira Rayan(2) 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  v. Banasooru  Dhora  and  others(3), 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 v. 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)  (1885) I.L.R. 9 mad. 285. (2)  (1885) I.L.R. 9 Mad. 175. (3)  (1899) 1. L. R. 23 Mad. 318. (4)  (1891) 1. L. R. 14 Mad. 269. 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 s. 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. v. 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.  3(2) (d)  of the Madras; Estates Land Act, 1908, the Act did  not apply  to  inamdars.   By s. 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

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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 v.  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 v. Ramajogi (2), in dealing with a  muchilika executed by a ryot for a period of one year only,  Muttusami

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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) (1871) 6 M. H. C. R. 164. (2) (1892) 1. L. R. 16 Mad. 271. 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 v. Rajalapati Somayya  (3).   The Judicial   Committee   referred   with   approval   to   the observations  of  Wallis, C.J., 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 D.3. 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) [1937] 2 Mad.  L. J. 573. (1914) 27 Mad.  L. J. 718.  (4)  (1871) 6 M. H. C. R.  164. 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.   Ext.   D-5   is   another’ muchilika  executed  on August,, 15, 1893  by  Venkamma  and Chetamma.   Each  of these muchilikas is for period  of  one year.  Ext.  D-5 (a) is a patta executed on October 10, 1893 by  the zamindar corresponding to muchilika Ext.  D-5.   Ex. 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

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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 a,long 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 intended.in 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."  In. 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, 1.899 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  i@.a E2:t.   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 Rs.25 and  240 kunchams  of  white  paddy per year  besides  a  house,  for residence.   This  deed recites that out of  the  estate  of

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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.  So. 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.  Ext. 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.   D-4.  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

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670 1905 it   was   well   known   that   legislation   of   the nature,which  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 lands.for 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 v.  Badankayala  Bhimayya(1), 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  v.  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 v. Kelachina  Venkatasubbarayya  Sastri (3), Devadoss, J., in the course of hearing in appeal called for a finding from the (1) A.I.R 927 Mad. 76. (2)  A.I.R. 1928 Mad. 58. (3)  A.I.R. 1928 Mad. 786. 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-

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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. 3,800-past profits  on  plaintiffs 1/3rd  share  for two years 1940 and 1941 at Rs.  2,280  and past mesne profits on plaintiff’s 1/3rd shares for the  year 1942 at Rs.1,520. 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,  i.e., 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. 673