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PETITIONER: ALURU KONDAYYA AND ORS.

       Vs.

RESPONDENT: SINGARAJU RAMA RAO AND ORS.

DATE OF JUDGMENT: 20/09/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SIKRI, S.M.

CITATION:  1966 AIR  681            1966 SCR  (2)  92  CITATOR INFO :  R          1983 SC 608  (4)

ACT: Madras  Estates  Land  Act  (1  of  1908),  s.  3  (2)  (d), Explanation  1, as amended by Act 18 of 1936 and Act  (2  of 1945)-Estate-Grant of a named village-If can be presumed  to be of a whole village.

HEADNOTE: In  the  village  of Challayapalam, there  were  six  inams, namely, the Challayapalam Shrotriem and five minor inams but there  was no information as to when the inams were  created and by whom.  In two suits, one filed by the  shrotriemdars, against  the tenants for a declaration that the tenants  did not have occupancy rights in the lands in their  occupation, and the other by the tenants for a declaration that they had occupancy  rights, the question arose whether the  shrotriem was  an "estate" within the meaning of s. 3 (2) (d)  of  the Madras Estates Land Act, 1908, as amended by Act 18 of 1936. The trial court held, on a review of the evidence, that  the grant  was  of the whole village within the meaning  of  the section  and  that  the tenants had  occupancy  rights.   On appeal, the High Court held that the evidence on record  was inconclusive,  that the onus of proving that the ant was  of an estate lay upon the tenants, and that, since the  tenants had  Failed  to discharge the onus, the question  should  be decided against the tenants. In the appeal to this Court by the tenants, the question was : if there was no evidence justifying an inference that  the grant  was of a whole village, whether explanation 1  to  s. 3(2)(d) (added by Act 2 of 1945) gave rise to a  presumption in favour either of the shrotriemdars or the tenants. HELD : The suit of the shrotriemdars must fail, because, the Explanation raises a presumption, where a grant is expressed to  be  of a named village, that the area which  formed  the subject matter of the grant shall be deemed to be an estate. Raising  of  the  presumption is not subject  to  any  other condition.  The legislature has, by the non obstante  clause in the Explanation, affirmed that such presumption shall  be

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raised even if it appears that in the grant are not included certain  lands in the village, which have, before the  grant of the named village been granted on service or other tenure or  have  been reserved for communal  purposes.   The  party contending  that  the grant in question  falls  outside  the definition in s. 3(2) (d), has to prove that case, either by showing that the minor inams not comprised in the grant were created,  contemporaneously with or subsequent to the  grant of the village, by the grantor. [857 D-E; 861 C-E] By enacting the Explanation the intention of the legislature was to declare occupancy rights of tenants in inam villages. It  would be attributing to the legislature gross  ignorance of  local  conditions. if it was held that  the  legislature intended  to place upon the tenant the onus of  establishing affirmatively  that the minor inams were granted before  the grant of the named village and that if he fails to do so his claim  is  liable to fail.  It is  well-nigh  impossible  to discharge  such  a  burden  in normal  cases.   Nor  was  it intended  that,  when  the evidence  was  inconclusive,  the person  who approached the Court for relief must fail,  for, as in the present 842                             843 case,  if the inamdar as well as the tenant sue for  relief, the application of the rule would require the court to adopt the  anomalous  course of dismissing both the  actions.   In cases, which arose after the Amending Act of 1936, reference to  the presumption in s. 23 of the Act would be wholly  out of   place,  the  applicable  presumption  being   the   one prescribed  by Explanation 1. The presumption under  s.  23, that  a  grant in favour of an inamdar was of  the  melvaram only, applied only in cases which arose before the  Amending Act of 1936. [857 G; 858 B; 860 B; 862 F-G] District  Board of Tanjore v. M. K. Noor  Mohammad  Rowther, A.I.R.  1953 S.C. 446 and Varada Bhavanarayana Rao v.  State of Andhra Pradesh, [1964] 2 S.C.R. 501, explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 341 to  343 of 1961. Appeals from the judgment and decree dated September 2, 1955 of  the Andhra Pradesh High Court in Appeals Suits Nos.  342 of 1949, 789 of 1950 and 551 of 1951 respectively. A.   V. V. Nair and P. Ram Reddy, for the appellants. A.  V.  Viswanatha  Sastri,  Alladi  Kuppaswamy  and  M.  S. Narasimhan,  for the respondents Nos.  1 and 2 (in C.A.  No. 341  of 1961) respondents Nos.  1 to 3 (in C.A. No.  342  of 1961) and respondent Nos. 1 to 4 and 6 (in C. A. No. 343  of 1961). The Judgment of the Court was delivered by Shah,  J.  In  these appeals a  common  question--whether  a shrotriem grant of lands known as "Challayapalem  shrotriem" formed  an estate within the meaning of S. 3 (2) (d) of  the Madras  Estates Land Act, 1908-arises.  The Court  of  first instance on a review of the evidence was of the opinion that the grant was of the whole Chellayapalem village within  the meaning  of  s. 3 (2) (d) of the Madras  Estates  Land  Act, 1908,  in force at the relevant time, and that  the  tenants held  rights  of occupancy in the lands held by  them.   The High Court of Madras disagreed with that view and held  that on  the evidence it was not proved that the  original  grant was of a "whole village" or even of a "named village" within the meaning of s. 3 (2) (d) of the Madras Estates Land  Act, 1908,  and the first Explanation thereto, and that the  onus

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to prove that the grant was of a whole or of a named village being  upon  the  tenants  in occupation  of  the  lands  in dispute, the claim of the shrotriemdars must succeed.   With certificates granted by the High Court, these three  appeals have been preferred. Suit No. 42 of 1942 was filed by certain tenants of lands in the   village   Challayapalem,  District  Nellore,   for   a declaration  that  they hold occupancy rights  in  lands  in their  occupation  and  for an  injunction  restraining  the shrotriemdars of the village from "inter- 844 fering  with  their possession".  The tenants  claimed  that "they and their ancestors" were in possession and  enjoyment of the lands for many years and had been paying rent to  the shrotriemdars,  and were dealing with the lands  as  owners, that  all transactions in the Challayapalem  shrotriem  were being on the footing that the village was an "estate"  under the Madras Estates Land Act, 1908, and that in any event the tenants  held  permanent rights of occupancy  in  the  lands acquired  in virtue of the provisions of the Madras  Estates Land (Amendment) Act, 1936.  This Suit was later numbered 37 of 1947. The  shrotriemdars filed suit No. 2 of 1946 against  fifteen named  defendants  for  a declaration that  the  tenants  in occupation  of  the  lands  in  the  village  did  not  hold permanent occupancy rights.  Later, permission under O. 1 r. 8  Code  of Civil Procedure to sue the named  defendants  as representatives  of  all  the tenants in the  lands  of  the shrotriem  grant was obtained.  In this suit the  shrotriem- dars  did not claim any relief for possession : they  merely sought to reserve liberty to institute separate  proceedings in  that  behalf  -nd claimed that  they  were  entitled  in enforcement  of  notices served upon ten out  of  the  named defendants to call upon them to deliver possession of  lands occupied by them. There was one more suit, No. 93 of 1947, which raised a dis- pute  as to the right of occupancy in a small area  of  land admeasuring  1-90 acres.  The plaintiff in the suit  claimed that he had acquired the right of occupancy by purchase  the original  tenant  of the land. The fourth defendant  in  the suit whowas the principal contesting party claimed that he was a. granteeoccupancy rights from the shrotriemdar. The three suits were tried together.  The tenants claimed in the  principal  suit No. 2 of 1946 occupancy rights  in  the lands hold by them, on three grounds :               (1)that  the tenants of agricultural  lands               were, by immemorial custom of the locality  in               the Nellore District, occupancy tenants;               (2)that   the  tenants  had   acquired   by               prescription or by the doctrine of lost  grant               the rights of permanent occupancy; and               (3)that  the grant was of an estate  within               the  meaning  of s. 3 (2) (d)  of  the  Madras               Estates Land Act, 1908, and the tenants of ,he               lands in the estate were by virtue of s. 6  of               the Act permanent occupancy tenants.                                    845               The  trial Court, relying upon  the  statement               made  in  Boswell’s  Manual  of  the   Nellore               District,    that   the    "tenants.....    of               Chellayapalem  like  their brothers  in  other               villages of this District had right to  occupy               the  land  from generation  to  generation  on               payment  of rent prescribed by  custom",  held               that the tenants’ plea on the first head  must

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             be  sustained.   The High  Court  declined  to               raise  such  a presumption in  favour  of  the               tenants  of the District including tenants  of               the village Challayapalem, and correctness  of               that  view was not challenged in  this  Court.               On  the  second ground, the trial  Court  held               that on the evidence that the tenants’  rights               ’were  independent of prescription", and  that               they had not raised any plea of acquisition of               rights  of occupancy by contract,  express  or               implied.  The High Court observed that on  the               evidence  no "foundation is laid for  invoking               the presumption of lost grant to give a  legal               original,  or lawful title to  long  continued               possession of the land by a particular  tenant               or tenants", and that the plea of  acquisition               of   the   right   of   occupancy   based   on               prescription was not made out.  This plea  was                             also not reiterated before us, and the  appeals               were supported only on the last ground.               The grant was, it appears, made by a  Carnatic               Nawab which is recognised on all hands to be a               shrotriem  grant.  There is, however,  on  the               record  no evidence to prove the date  of  the               grant,  the  names  of  the  grantor  and  the               grantee,  the extent and terms, of the  grant,               the  purpose  and  nature of  the  grant,  and               whether the grant was of kudiwaram as well  as               of   melwaram  or  of  melwaram  alone.    The               original  deed of grant has not been  produced               and  is no other direct evidence of the  terms               of the grant from which the terms of the grant               may  be gathered.  The trial Court  held  that               the later documents, such as the statement  in               the  Inam Enquiry, the Inam Fair Register  and               other documents, conduct of the  shrotriemdars               and  the tenants, and recognition accorded  to               the rights of the tenants viewed in the  light               of  probabilities justified an inference  that               the  grant  was  of  the  whole  village,  but               according  to the High Court the  evidence  on               the record was inconclusive and the case  must               be  decided  against the tenants  because  the               onus to prove that the grant was of an  estate               lay upon the tenants, and that the tenants had               failed to discharge that onus.               The problem must be approached in two distinct               brancheswhether  the  evidence  justifies   an               inference  that  the  grant  was  of  a  whole               village.  and  if there be  no  such  evidence               whether  s. 3 (2) (d) Explanation (1)  of  the               Madras  Estates  Land  Act  gives  rise  to  a               presumption in favour of the shrotriemdars  or               the  tenants.  Between the years 1640 to  1688               the territory which now forms the               846               District of Nellore was under the  sovereignty               of  the  Sultan  of Golkonda.   In  1688  this               territory along with Golkonda passed under the               Moghal  dominion.  After the War  between  the               East  India Company and Sultan Hyder  Ali,  it               was arranged between the Government of  Madras               and  the  Nawab of Carnatic  that  the  latter               should  bear the cost of the military  defence

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             of  the Carnatic region.  The Nawab agreed  to               assign the revenues of the Carnatic region for               a  period  of  five years to  the  East  India               Company, and in pursuance of this arrangement,               the  East  India Company took over  the  admi-               nistration of the Carnatic region in 1790.  On               August  18, 1790 the Board of Revenue,  Madras               issued  instructions  to  the  Collectors   of               Revenue  appointed by the East India  Company,               relating   to   the  administration   of   the               Districts.    Dighton   who  was   the   first                             Collector of the Nellore District unde r the new               dispensation   found  on  enquiry  that   some               villages  in the District had been  alienated.               on   shrotriem   tenure.   He   proceeded   to               investigate  the  title of  the  grantees  and               issued a number of sanads.  During the course,               of   his  management  Dighton   addressed   on               November   13,  1790  to  the   "Chellayapalem               Shrotriemdar  Mutharaju Ramachandrayya  Sthala               Karnai Varu" the following communication :               "You shall pay as per installments varahas 283               (two hundred and eighty three) being the beriz               in   respect  of  your  shrotriem   known   as               Chellayapalem village in Gandavaram Paraganas,               as  entered in the circar  shrotriem  jabitha,               into the Nellore Treasury, obtain receipt  and               happily  enjoy the produce realised from  that               village,  you  shall enjoy happily  by  giving               shares to the kapus as per mamool." Administration  of the territory by the East  India  Company came  to  an end on August 31, 1792.  On July 31,  1802  the East India Company assumed sovereignty over the District  of Nellore and one Travers was appointed Collector in September 1801.   Travers  recognised 207 shrotriem  villages  without disturbing  the arrangements which were then  in  existence, dispensed  with  the duties of sthalakarnams  and  collected quit rent on their inams.  It appears that the shrotriem  of Challayapalem  was  continued under the arrangement  of  the year 1790 which we have set out. Soon after the East India Company took over the  administra- tion  of  what later came to be known as the  Presidency  of Madras,  Regulation 31 of 1802 setting up machinery for  the better  ascertainment  of  titles  of  persons  holding   or claiming  to  hold lands exempt from payment of  revenue  to Government  under grants and for fixing assessment  on  such lands was promulgated.  A register of 847 Inams  in Government Taluks was prepared and in Col.  14  of the  Inam  Register  the Inams registered  pursuant  to  the Regulation  were set out.  In the village Challayapalem  are found   mentioned   in   that   Register-three   Inams   the Challayapalem shrotriem (which is in dispute in the  present case), and two other personal Inams each of an area of  0-93 cents.   Apart from the preparation of this  Inam  Register, nothing substantial was done under the Regulation till 1860. About  the  acting  of the  shrotriemdars  and  the  tenants between 1802 and 1860 there is very little evidence.   There is  no evidence as to when the five minor  inams,  including those two mentioned in the Inam Register, were created,  who paid the revenue, whether tenants were shifted from lands in their  occupation,  or lands originally  not  occupied  were brought  under  cultivation.  In 1860  the  Inam  Commission commenced an inquiry in the Nellore District.  Exhibit B-195

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is  a  record  of the statement made  by  the  shrotriemdors Muthuraju   Subbarao   and   Muthuraju   Subbarammanya    of Chellayapalem.  In Col. 6 it is recorded that the grant  was made during the time of the Nawabs for maintenance so as  to be enjoyed from son to grandson and so on in succession, and in  Col.  7 details of the lands are set out.   Out  of  the total  area  of  the land 21 Gorrus 12/16  are  recorded  as poramboke, 5 Gorrus and It Visas as minor inams, and 126. 3- 1/4  visas  as cultivated lands--dry, wet and  garden.   The boundaries and particulars of the inam lands are shown as if the inam grant was of the whole village, the description  of the boundaries being of lands of other villages to the East, South, West and on the North of lands of military  barracks. Income of the shrotriem is fixed at Rs. 1,449-5-5 per  annum and  the total jodi at Rs. 1,225-12-2, leaving a balance  of Rs.  223-9-3  to  the  shrotriemdars.   This  statement   is described  as  written and filed by Muthuraju  Subbarao  and Subbarammayya  shrotriemdars of Challayapalem, and  that  it was  confirmed  by the Village Officers.   Pursuant  to  the enquiry made by the Inam Commissioner entries were posted in the Inam Fair Register.  In Ext.  A-1 which is described  as "an  extract  from the Register of Inams in the  village  of Chellayapalem shrotriem in the taluk of Nellore" in Col.  21 it was recited that the shrotriem "being more than 50  years old  could be confirmed.  In the account of Fasli  1221  the income  of the shrotriemdars for ten years previous to  that Fasli  is  given.   It  is shown  in  the  margin  that  the shrotriem  is rented from Fosli 1263 to Fasli 1287, that  is for  a period of 25 years for the sum of Rs. 244  above  the jodi.  The cost of the repair to be borne half by the tenant and half by the shrotriemdars.  Almost the whole land is now under cultivation and there is scarcely any room for further improvement.  I propose to give a deduction of Rs. 20 on 848 account  of the cost of repair which the  shrotriemdar  will have  to  pay and adopt the remainder as the  value  of  the shrotriem".  In Cols.  10 & 11 it is recorded that the  inam was hereditary, but by whom it was granted it was not known. It is common ground that Ext.  A-1 did not include the  area of five minor inams for which separate entries Exts.  A-2 to A-6  were  posted.  The total area of the  village  as  then estimated exceeded 466 acres and Ext. A-1 related to  453-06 acres,  the  balance  being  in  respect  of  minor   inams. Pursuant  to  the entries in the Inam  Fair  Register,  con- firmatory  title  deeds were issued.  Exhibits A-2  and  A-3 relate to devadayam grants : the extent covered by Ext.  A-2 is 5-68 acres, and by Ext.  A-3 is 2-83 acres.  In Cols.   1 1  &  12 headed "By whom granted and written  instrument  in support  of the claim" it is recorded that "the name of  the grantor and the written instruments in respect of the  claim not  known".  Three other entries in the Inam Fair  Register were  Exts.  A-4, A-5 & A-6.  Exhibit A-4 is in  respect  of land  3-12 acres, Ext.  A-5 is in respect of 0-93 cents  and Ext.   A-6 also is in respect of 0-93 cents.  Here  also  it was  recorded that the "grantor’s name and the date  of  the grant are not known." The  next public document to which reference may be made  is the  "Descriptive Memoir of Chellayapalem shrotriem  village in  the Kovur Taluk of the Nellore District"-Ext.  A-7.   It recites  that  the  boundary of  the  village  had  remained unchanged  by settlement: the area prior to  settlement  was (omitting fractions) 469 acres, and by the settlement it was found to be 767 acres, showing an increase of 298 acres, but "nothing had been merged in this village by the settlement." According  to  the settlement accounts of  land,  the  total

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cultivable  area  was 682 acres, minor inams  18  acres  and poramboke 67 acres.  Under the bead "minor inams included in the  village"  were Personal Inams 5-08  acres     Religious Inams  8-64 acres, Village Officers 2-87 acres  and  village artisans 1-80 acres.: Under Ext.  A-7 the whole village  was described  is the Challayapalem shrotriem.   Apparently  the village was identified with the shrotriem. These are all the extracts from public records which have  a bearing on the principal question in dispute. The  plaintiffs in suit No. 2 of 1946 are  purchasers  under two deeds Exts.  A-101 and A-102 respectively dated  January 14, 1889 and August 7, 1889 from the previous holders.  They are strangers to the family of the original grantees, and it is  not  surprising that they are not in possession  of  the deed  of  grant,  and the earlier  record  relating  to  the management of the village. 849 Exhibit   B-1  the  letter  addressed  by  Dighton  to   the shrotriemdar may at first blush suggest that the village was accepted  and confirmed as one of the shrotriem villages  in the  Gandavaram  Paragana.   But Ext.  B-1 was  not  of  the nature  of a sanad : it did not contain a reference  to  the terms of the grant, the date of the grant, the names of  the grantor  and  grantee,  and was based on  information  by  a "Jabitha  (list)  relating  to  Circar’s  shrotriems".    In Boswell’s Manual it is recited that Dighton had investigated the  title of the inamdars in the District and  had  granted sanads,  but Ext.  B-1 did not purport to be a  confirmatory sanad  or a fresh grant, or a deed embodying the  result  of any  investigation regarding the title of the Mutharajus  to the  village.  Exhibit B-1 undoubtedly refers  to  Mutharaju Ramchandrayya as "Chellayapalem Shrotriemdar" and fixes  the revenue  at 283 pagodas in respect of "your shrotriem  known as  Challayapalem village".  But Dighton was a Collector  of Revenue  appointed  by the East India Company which  was  in 1790 not invested with de jure sovereignty over the  region. There  is also no record of any enquiry made by  Dighton  is respect  of the Challayapalem shrotriem.  The object of  the letter  Ext.   B-1  is  apparently two-fold  :  to  fix  the revenue,  and to ensure that the tenants were not  subjected to  unlawful  exactions.   For the  latter  purpose  it  was directed that the shrotriemdar was to enjoy the produce from the  village by giving shares to the kapus (tenants) is  per mamool.Exihibit  B-1 does not refer to any minor inams,  and treats  the  Challayapalem  village  as  the  shrotriem   of Muthurajus. The  statement -of Mutharaju Subbarao and  SubbarammayyaExt. B-195-suggests  that  the original grant was  in  favour  of Mutharaju Sithanna-their ancestor.  The statements in Col. 6 that  the  grant  is  from  the  Nawab  whose  name  is  not mentioned,  and  in Col. 7 about the details of  the  entire extent of the village, do not furnish any evidence as to the character and extent of the original grant.  It is true that the boundaries of the lands granted are described as if  the grant was of a whole village, and nothing is mentioned about the  origin  of the minor inams.  Exhibit A-1the  Inam  Fair Register  Extract-is in respect of 453-03 acres whereas  the total  area  of the village as then  measured  exceeded  466 acres.   The area of 13 acres was undoubtedly held by  minor inamdars in respect of which entries Exts.  A-2 to A-6  were posted  in the Inam Fair Register.  Those entries are of  no assistance  in  tracing the source of the minor  inams.   In each  of those extracts under the head "By whom granted  and written  instrument in support of the claim" it  is  recited that the names of the grantor and the written instrument  in

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support  of the claim "are not known". Sanads in respect  of the minor inams were issued because the inams p.C.I./65--11 850 were  found  to  be more than fifty  years  old.   Inams  in respect  of which entries Exts.  A-5 and A-6 are posted  are found   mentioned  in  the  Inam  Register  prepared   under Regulation 31 of 1802, but not the inams in respect of which Exts.  A-2, A-3 and A-4 are issued.  It also appears that in the  Inam accounts, the inam relating to Ext.  A-2  appeared for  the  first time in Fasli 121 1, the  inam  relating  to Exts.   A-5 & A-6 in Fasli 1216, the inam relating  to  Ext. A-3  in  Fasli 1250 and the inam relating to  Ext.   A-4  in Fasli 1260.  But the accounts maintained under Regulation  3 t of 1802 ware apparently not maintained either regularly or in  respect  of all the inams.  In the absence  of  reliable evidence from entries in these rough accounts, no  inference that the minor inams were granted by the shrotriemars  could be  made.   The name of the grantor is not to  be  found  in Exts.   A-2  to A-6.  Exhibit A-7 proves  the  existence  of minor inams, but has no bearing on the question whether  the whole village Challayapalem was granted in inam. In  Exts.  A-48, A-49, A-104, A-105 and A-103 the  predeces- sors-in-interest  of the present inamdar had  described  the village as "Challayapalem Shortriem"; in Exts.  A-102, B-44, B-4-5,  B-12  to B-19, B-20 to B-43, the  present  inamdar’s grandfather  was a party and therein also the inamdars  were described  as "shortriemdars of Chellayapalem".   There  are documents Exts.  B-2, B-3, B-4, B-5, B-6, B-9, B-1 12 &  B-1 16 and other documents in which the village is described  as "Chellayapalem  Shrotriem".   But  these  recitals  have  no evidentiary  value  in support of the case  that  the  whole village was granted. The statements in Ext.  B-195 related only to a part of  the village and that the income realised by the inamdar was  Rs. 1,449-5-5 per year, out of which the revenue payable to  the Government  was  Rs. 1,225-12-2 and the balance  enjoyed  as inam  was  only Rs. 223-9-3.  Exhibit A-1-Extract  from  the Inam  Fair Register-does not lead to the inference that  the area of the entire village was granted.  The  recommendation made by the Deputy Collector was confined to the  shrotriem. The shrotriem was confirmed merely because it was more  than fifty years old, and what was confirmed was not the area  of the entire village, but the shrotriem grant admeasuring 453- 06 acres out of a total area of 466 acres. Evidence on the record about the actings of the shrotiemdars and  the  tenants for the period 1790 to 1862 is  vague  and inconclusive.  It appears from the Inam Register that for  a period  of  25 years the shrotriem was under an  Ijara.  The Inam Fair Register recites that garden lands were  irrigated from the private wells of                             851 the  shrotriemdars.   From the accounts for  Fasli  1216  it appears  that  more  than a hundred acres  were  then  lying uncultivated, but for sometime before 1862 the whole village was under cultivation. On  the other hand there is the evidence that  the  tenants’ successors  were recognised in place of their  predecessors, family  partitions  were  approved,  and  the  shrotriemdars received   their  proportionate  shares  from  the   divided sharers,  and  the  tenants  were  not  disturbed  in  their possession.   Chellayapalem has at all material  times  been included   in  the  list  of  villages  maintained  in   the Collector’s office.  It was within the boundaries which  are not  shown  to have been altered.  A village in  the  Madras

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region is a geographical area of arable and waste lands, and contains the establishment of a karnam, village munsiff  and watchmen,  and Chellayapalem has at all material times  been recognised   as  a  village,  and  has   been   administered accordingly.   Minor inams  were always regarded as  part of the  village, and popularly and even in the  public  records the   village  was  identified  with  the  shrotriem.    The shrotriemdars have failed to produce their books of  account relating  to  their management.  It is however  admitted  by them  that  they were collecting jodi from  the  holders  of minor inams and paying it into the public exchequer.  It was explained by S. Rama Rao P.W. 1 that he "collected the cess" as  a  registered  proprietor  and paid  it  over  into  the treasury, because a demand was made upon him by the  Revenue authorities for the whole amount of land cess due. But  long possession, fixity of rent, assertion of title  in formal  deeds  may not necessarily justify an  inference  of permanent  occupancy rights.  Again the mere fact  that  the village  was treated as one unit for the purpose of  revenue administration  does not justify any positive inference  and the fact that five separate sanads were issued in respect of the  minor inams without any evidence to prove the date  and the terms of the grant leaves the matter in doubt.  Some  of these circumstances may prima facie support the inamdars and the other the tenants, but on a careful review of all  those circumstances, we are unable to disagree with the opinion of the  High  Court that the grant was not proved to  be  of  a whole village. The second branch of the argument must then be considered. The   High Court expressed its conclusion on this branch  of the case as follows :               "Whether  a  tenant raises the plea  that  the               lands  were in an estate and  therefore  ryoti               and  the civil court has no  jurisdiction,  or               the  tenant relies upon the statute in  answer               to  a  suit  by the  landlord  either  for  an               injunction,               852               sent case,the    burden   of   proof    would               undoubtedly be on               the tenantto establish the case which he  put               forward               either  to  exclude  the  jurisdiction  or  to               negative  the  right of  the  plaintiff.   The               burden  will be on him to show that the  grant               was  either  a grant of a whole village  or  a               grant of a named village." In  so enunciating the law, the High Court relied  upon  the judgment  of this Court in District Board Tanjore v. M.   K. Noor  Mohamed Rowther(1) and held that in law the burden  of proving that a particular grant was a grant of an estate lay upon the tenants in all cases, and the tenants having failed to discharge that burden their claim must fail. In  considering  this argument, it is necessary  to  make  a brief  review  of  the  history  of  land  tenures  and  the provisions of the Madras Estates Land Act, 1908 as they were amended  from  time  to  time.   After  the  assumption   of sovereignty in 1801, the East India Company promulgated  the Permanent Settlement Regulation 25 of 1802, which dealt with the  tenure of zamindars in their estates.  This  Regulation was  passed on July 13, 1802 and by s. 4 thereof inams  were exempted  from  its  scope.   On  the  same  date,   another Regulation  31 of 1802 was enacted.  This  Regulation  dealt with  inams  and provided for making rules  for  the  better ascertainment  of titles of persons holding or  claiming  to

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hold,  lands  exempted  from  the  payment  of  revenue   to Government  under grants not being "Badshahi" or  Royal  and for  fixing  an assessment on such lands. By s.  15  it  was enacted  that  a  register of inams shall be  kept  in  each zillah of the lands held exempt from the payment of revenue, and  that  the register should specify the  denomination  of each  grant or sanad, the names of the original grantors  or grantees,  and  the names of the  present  possessors,  with other  particulars.  It appears that nothing  effective  was done  to  investigate the titles of the claimants  to  inams till  1859, when the question of examining their  title  was taken  up by the Inam Commission.  The Inam Commission  made inquiries  and issued confirmatory sanads.  We have  already referred  to  Title Deed No. 1762 issued in respect  of  the grant in favour of the shrotriemdars. The traditional rights of occupants of land in the  southern region were recorded by the Board of Revenue as early as  in 1818 in its proceeding dated January 5, 1818 that :               "The universally distinguishing character,  as               well  as the chief privilege of this class  of               people, is their exclu-               (1)   A.I.R. 1953 S.C. 446                                    853               sive  right to the hereditary  possession  and               usufruct of the soil, so long as they render a               certain portion of the produce of the land, in               kind or money, as public revenue; and  whether               rendered in service, in money, or in kind, and               whether paid to rajahs, jageerdars, zamindars,               polygars,  motahdars, shrotriemdars,  inamdars               or  Government Officers, such  as  tahsildars,               amildars,  aumeens, or tanadars, the  payments               which  have always been made by the  ryot  are               universally termed and considered the dues  of               the Government." The Legislature with a view to define the relations  between landlords  and tenants in inam villages  promulgated  Madras Act 1 of 1908.  The material part of s. 6 (1) as amended  by Madras Act 8 of 1934 and 18 of 1936 provided               "Subject to the provisions of this Act,  every               ryot now in possession or who shall  hereafter               be  admitted by a landholder to possession  of               ryoti  land  situated in the  estate  of  such               landholder  shall  have a permanent  right  of               occupancy in his holding.               Explanation (1).-For the purposes of this sub-               section,  the  expression ’every ryot  now  in               possession’  shall include every  person  who,               having  held  land  as  a  ryot  continues  in               possession of such land at the commencement of               this Act.               Explanation (2).-               Explanation (3).............. Section 3 sub-s. (2) defined the expression "estate"  within the  meaining of the Act and insofar as it is  material  for this case, it provided as originally enacted               "In  this  Act,  unless  there  is   something               repugnant in               the subject or context-               "Estate" Means               (a)   any   permanently-settled   estate    or               temporarily-                settled zamindari,               (b)   any portion of such  permanently-settled               estate or

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             temporarily-settled    zamindari   which    is               separately  registered  in the office  of  the               Collector;               (c)   any unsettled palaiyam or jagir;               854               (d)any  village of which the  land  revenue               alone has been granted in inam to a person not               owning  the kudivaram thereof,  provided  that               the   grant  has  been  made,  confirmed,   or               recognised  by the British Government, or  any               separated part of such village;               (e)any  portion consisting of one  or  more               villages of any of the estates specified above               in clauses (a), (b) and (c) which is held on a               permanent under-tenure." "Kudivaram"   is   a  Tamil  word,   which   signifies   the cultivator’s  share in the produce of land as  distinguished from the landlord’s share received by him as rent, which  is called  "melvaram".   "Kudivaram" has acquired  a  secondary meaning, it means the cultivator’s interest in the land, and "melvaram"  the  landlord’s  interest  in  the  land.    The definition of "estate" in cl. (d) gave rise to  considerable litigation which called for determination of two questions : (1) whether there was a grant of the whole village so as  to make  the  area  granted  an estate;  and  (2)  whether  the landlord to whom the land was granted owned the "kudivaram". In cases which came before the Courts it appeared that apart from the grant which was claimed to be a grant of an estate, there were in each village other grants, religious,  service and  personal, and evidence about the commencement of  these minor  grants and the terms on which they were  granted  was not forthcoming. In  G. Narayanaswami Nayudu v. N. Subramanyam(1), in a  suit filed by the receiver of the Nidadaole estate for possession of  certain  lands the tenant claimed that he  had  acquired occupancy rights under s. 6 of the Madras Estates Land Act 1 of  1908.   There were in the village minor inams  of  three classes : archaka service inams, village service inams,  and dharamdaya  inams,  and there was no  evidence  whether  the grant  to  the plaintiff’s estate of the  village  was  made first,  or whether the minor inams were granted  first.   It was  contended  on  behalf  of  the  plaintiff  estate  that inasmuch  as  there were minor inams ’in  the  village,  the Venkatapuram agraharam could not be said to be "a village of which  the land revenue had been granted as inam within  the meaning of s. 3(2)(d) of the Act".  The Court rejected  that contention and observed :               "The  definition in sub-section 2, clause  (d)               was  obviously  intended to exclude  from  the               definition of "Estate" what are known as minor               inams, namely,               (1)   I.L.R 39 Mad. 683.                                    855               particular  extents  of land in  a  particular               village  as contrasted with the grant  of  the               whole  village by its boundaries.  The  latter               are  known  as  "whole  inam  villages".   The               existence  of  "minor  inams"  in  whole  inam               villages  is  very common and  if  these  inam               villages do not come within the definition  of               "Estate" almost all the agraharam,  shrotriyam               and  mokhasa villages will be excluded.   This               certainly  cannot have been the  intention  of               the   legislature.   These  minor  inams   are               generally  granted for service to be  rendered

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             to the village or to the owner and that  seems               to  be the nature of the minor inams  in  this               case." The  Court  therefore held that s. 3 (2) (d) of  the  Madras Estates  Land Act excludes from the definition  of  "estate" minor  inams, and a grant which purports to be a grant of  a whole  inam village is an estate within the meaning  of  cl. (d) of s. 3 (2), even though it may be found that there  are lands  held by grantees under minor inams.  The  Legislature in  1936  substituted for cl. (d) of s. 3(2)  the  following clause by the Madras Estates Land (Third Amendment) Act,  18 of 1936:               "(d)  any inam village of which the grant  has               been  made,  confirmed or  recognized  by  the               British   Government,   notwithstanding   that               subsequent to the grant, the village has  been               partitioned   among   the  grantees   or   the               successors   in  title  of  the   grantee   or               grantees." Then came the judgment of the Madras High Court in Tulabandu Ademma  v.  Sreemath Satyadhyana Thirtha  Swamivaru(1).   In that  case  the original grant was lost.  In Col. 6  of  the statement prepared by the Inam Commissioner in that case, it was  recorded that "the former Zamindars granted  the  land, comprised within the ’Chekunama’ for the math.  There is  no sanad as it was destroyed by fire.  There was no entry under the  heading ’particulars of the inam land mentioned in  the sanad’, but under the head ’Gudicut’ (the total area of  the village)  was  the  entry  158.23  acres,  from  which  were deducted  25.10  acres described as private lands,  and  5.4 acres  ’inams of other persons’ leaving 128.6 acres  as  the area  covered by the grant." In Col. 10 it was  stated  that there  was  no ’Chekunama’.  The Court held that  the  grant being  of less than the whole village, the tenant could  not rely on s. 6 of the Act.  In that case the boundaries of the agraharam as described in Col. 10 in the Inam Register (1)  A.I.R. 1943 Mad. 187. 856 were admittedly the boundaries of the whole village, but  in the view of the Court Col. 10 had to be read in  conjunction with  the other columns.  There was no evidence whether  the other  inams were granted before the grant in favour of  the Devasthana   or  after.   This  case  apparently  marked   a departure from the rule which was enunciated earlier by  the Madras High Court in G.  Narayanaswami Nayudu’s case(1). The Legislature immediately reacted against this view and enacted,  by Madras Estates Land (Amendment) Act 2 of  1945, added  the  following  Explanation to cl. (d)  of  s.  3(2). Explanation (1) read as follows               "Where  a grant as an inam is expressed to  be               of  a named village, the area which forms  the               subject-matter of the grant shall be deemed to               be  an estate notwithstanding that it did  not               include  certain lands in the village of  that               name  which  have  already  been  granted   on               service  or other tenure or been reserved  for               communal purposes." This Explanation was made operative retrospectively from the date on which Madras Act 18 of 1936 was brought into  force. The  Explanation  was  apparently  intended  by  legislative process to restore the interpretation which the Madras  High Court  had  given to the expression "whole  village"  in  G. Narayanaswami’s  case(1).   But  the  legislature  had  used somewhat  involved  phraseology in enacting  the  conditions which  gave  rise to the presumption.  If a minor  inam  was

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proved  to  be granted prior to the date of  the  grant,  by virtue  of  Explanation (1) the grant expressed to be  of  a named  village had to be regarded as a grant of  an  estate. If it was proved that the grantee after receiving the  whole village  created  minor inams, the grant was  of  the  whole village  and  therefore  grant  of  an  estate.   But  where evidence about the creation of the major and minor inams was not  forthcoming,  the  question had to be  decided  on  the presumption  that the subject-matter of the grant  shall  be deemed  to  be an estate, notwithstanding that  it  did  not include  lands granted on service or other tenures or  lands reserved  for communal purposes.  On the true effect of  the Explanation  there was a sharp conflict of judicial  opinion resulting  in three distinct views.  In one set of cases  it was  ruled  that  the burden of proving  that  a  tenant  is entitled to permanent rights of occupancy in his holding  by virtue  of s. 6 of the Madras Estates Land Act  always  lies upon the tenant, and it is for the (1)  I. L.R. 39 Mad. 683.                             857 tenant  to establish affirmatively that the minor  inams  in the village were granted before the date of the grant of the named village, and if he failed to do so his claim is liable to  fail  :  see Rama Rao v.  Linga  Reddi(1)  and  Ramadhan Chettiar  v. State of Madras(2) In another set of  cases  it was  held that where relief is claimed before the  Court  on the  plea that a grant of land was of an estate, or that  it was not of an estate, and the evidence is inconclusive,  the person  who has approached the Court for relief must fail  : see  the judgment of Krishna Rao J., in Nelluru  Sundararama Reddy v. State of Andhra Pradesh (3) ; Varada  Bhavanarayana Rao  v.  State  of  Andhra  Pradesh (  4  )  ;  and  Addanki Thiruvenkata  Thata  Desikacharyulu  Ayyavarlamgaru  v.  The State  of  Andhra Pradesh and Ors.(5) In the  third  set  of cases it was held that the Explanation raises a  presumption where  a grant is expressed to be of a named  village,  that the  area which formed the subjectmatter of the grant  shall be  deemed  to  be  an  estate, and  it  is  for  the  party contending  that  the grant in question  falls  outside  the definition  of  s. 3 (2) (d) of the Act to prove  that  case either by showing that the minor inams not comprised in  the grant  were created contemporaneously with or subsequent  to the  grant  of  the village by the original  grantor  :  see Janakiramaraju v. Appalaswami(6); Nelluru Sundarama Reddy v. State  of  Andhra  Pradesh (7) State of  Andhra  Pradesh  v. Korukonda     Bhattam     Appalacharyulu(8)     and      Sri Varadarajaswamivari  Temple  v. Sri Krishnappa  Govinda  and others(9). In expressing the first view the non-obstante clause in  the Explanation was read as prescribing the conditions on  proof of which the statutory presumption arises.  The  Explanation was apparently read as implying that the conditions for  the raising of the presumption were that the grant as an inam is expressed to be of a named village, and that the other lands not  included in the grant were granted before that date  on service, or other tenure or reserved for communal  purposes. If  this  be  the true effect, the  Explanation  had  little practical   utility.   The  intention  of  the   legislature apparently was to declare rights of occupancy of tenants  in inam villages, and it would be difficult to believe that the legislature intended to place upon the tenants onus of proof which  in  normal  cases would be  well-nigh  impossible  to discharge.   A large majority of the inams are  ancient  and the (1) A.I.R. 1957 A.P. 63  (2) A.I.R. 1958 Mad. 104.

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(3) I.L.R. [1959] A.P. 337 F.B.(4) [1964] 2 S.C.R. 501. (5) A.I.R. 1964 S.C. 807.     (6) I.L.R. (1954) Mad. 980. (7) I.L.R. [1959] A,P. 339 F.D.(8) I.L.R. [1959] A.P. 687. (9)  I.L.R. [1958] Mad. 1023 858 records  bearing on the commencement, extent and  nature  of the  grant  would  invariably be in the  possession  of  the inamdars.    To  expect  that  tenants  who  are   generally illiterate,   and   who  came  to  occupy  the   lands   not infrequently  many years after the original grant, would  be able  to  lead evidence on matters  principally  within  the knowledge  of  the  inamdars, and  information  whereof  the inamdars  would  be interested in withholding, would  be  to attribute  to  the  legislature  gross  ignorance  of  local conditions.In terms the presumption arises on proof that the grant is an inam expressed to be of a named village, and  it arises  even if it appears that there have been other  minor inams  granted  for  service or other tenure  or  have  been reserved for communal purposes.  The non-obstante clause  in the  Explanation,  in  our judgment, does  not  prescribe  a condition   for  the  raising  of  the   presumption.    The presumption arises only when it is proved that the grant  is expressed  to  be  of a named village,  and  the  burden  of proving  that  the grant is so expressed must lie  upon  the party  who claims to bring the grant within  the  exception, but once it is proved that the grant is expressed to be of a named  village, raising of the presumption will  not  depend upon proof that certain lands in the village were granted on service  or  other  tenure, or were  reserved  for  communal purposes before the grant of the village. In  expressing  in  the cases of Rama  Rao(1)  and  Ramadhan Chettiar  (2) the view that the burden lay upon the  tenants to prove that the grant was of an estate, it was assumed  by the  Madras  High  Court  that this  Court  had  rendered  a considered  decision  in  the District  Board  of  Tanjore’s case(3)  that the onus of proving that a grant of land is  a grant  of  an estate lies upon the tenant.  But  it  appears that  no such decision was given by the Court in that  case. In the District Board of Tanjore’s case(3) the defendant who had  taken  a  lease  for three years of  a  piece  of  land belonging to the District Board claimed that he had acquired permanent occupancy rights under s. 6 of the Madras  Estates Land  Act,  because after the expiry of the  period  of  the lease  the  Board had not resumed possession.   It  was  the Board’s  case that after expiry of the period of the  lease, the  Board bad taken possession of the land and had  brought it  under cultivation.  The Subordinate Judge held that  the land  did not constitute an estate within the meaning of  s. 3(2)  (d).   The High Court disagreed with  that  view.   In appeal to this Court Mahajan, J., on (1) A.I.R. 1957 A.P. 63.      (2) A.I.R. 1958 Mad. 104. (3)  A.I.R. 1953 S.C. 446.                             859 a review of the evidence opined that the grant was not of  a named village, the grant being in terms of areas and not  of a  named village, and that there were two grants neither  of which could be called a grant of a village.  Chandrashekhara Aiyar,  J.,  observed that there were  two  personal  grants under  one parvangi to two different persons, and  it  could not be said that there was a grant of a whole village or  of a  named  village.  smaller areas  having  been  carved  out therefrom prior to the date of the grant on service or other tenure,  and the remaining part still being  recognised  and treated  as a revenue unit with a nomenclature of  its  own. It  is abundantly clear that the Court decided the  case  on

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evidence  and did not place reliance on the onus  of  proof. It  is true that Mahajan, J., in his judgment  has  recorded that:               "It was conceded by . . . the learned  counsel               for the respondent that the burden of  proving               that  certain lands constitute an "Estate"  is               upon the party who sets up the contention", and  Chandrasekhara Aiyar, J., observed that               "A  small  area of 5 acres and  40  cents  was               granted  under  the same grant  in  favour  of               Chinna  Appu  Moopan.  If this  conclusion  is               correct-and  nothing  satisfactory  has   been               urged on the side of the respondents why  such               an inference is not open on the entries  found               in  the  Inam  Register,  the  1st  respondent               should  fail,  as  the burden  is  on  him  to               establish that what was originally granted was               an ’estate’." But  these observations are not susceptible of  the  meaning that when it is proved that an inam is expressed to be of  a named  village, the presumption under Explanation  (1)  does not  arise.  Both the learned Judges were of the  view  that there  was no grant which could be regarded as a grant of  a whole village or a named village, and on that view the  true effect  of  the Explanation did not fall to  be  determined. The  concession  before the Court by counsel was  only  that when  a person alleged that certain land was an estate,  the burden of proving that case lay upon him. The  second  view minimizes the operation of  the  statutory presumption which is expressly enacted by the legislature to arise  on  proof that the grant is of a named  village.   In terms the Explanation provides that the grant of an area  as a named village shall be deemed to be a grant of an  estate. If  the  clause  prescribes  the  condition  on  which   the presumption arises, the onus 860 would  be  discharged by the presumption on proof  that  the grant  was of a named village.  Adoption of the second  view is likely to give rise to some anomalous situations of which the  present  set  of cases is  a  good  illustration.   For instance,  if  the  inamdar as well as the  tenant  sue  for relief in respect of their respective cases, the application of  this rule would require the Court to adopt the  somewhat unusual  course  of  dismissing  the  cross  actions,   when evidence does not justify a positive inference in favour  of either party. In  Varada Bhavanarayana Rao v. State of Andhra Pradesh  and others(1),  this  Court  expressed its  preference  for  the second view.  That was a case in which the appellant held  a major part of certain villages covered by five inam  grants. The Inam Commissioner had granted fresh inam title deeds  in confirmation  of the original grants.  The  Special  Officer appointed by the Madras Government under s. 2 of the  Madras Estates Land (Reduction of Rent) Act, 1947 decided that  the inam lands covered by the fresh inams were "Estates"  within s.  3  (2)  (d) of the Madras Estates Land  Act,  1908,  and recommended  fair and equitable rates of rent for the  ryoti lands in this estate.  Subsequently the Government of Madras by  a  notification in the Gazette fixed rates  of  rent  in accordance with this recommendation.  The inamdar instituted an  action  in the Civil ,Court for a declaration  that  the grant  was not of an estate within the meaning of s.  3  (2) (d) of the Madras Estates Land Act.  The Trial Court  upheld the  contention, but the High Court in appeal reversed  that decision.   In appeal to the Supreme Court it was  contended

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that there were no materials on the record to prove that the original  grant  was of a whole village or of a  village  by name, and as the State had failed to discharge the burden of proving that the land constituted an estate, the action must be decreed.  This Court held that the grant which was  later confirmed  by the title deed was of a named village, but  on proof  merely that the inam grant was of a named village,  a presumption did not arise that it formed an estate, for  the legislature  had not created any special presumption  either way.   The question of the onus of proof it was said had  to be  adjudged  in the light of ss. 101, 102 and  103  of  the Evidence  Act, and applying that principle if the  plaintiff failed  to prove his claim that land was not an estate,  the appeal  should  stand  dismissed.  The Court  in  that  case regarded  the  judgment in the District Board  of  Tanjore’s case(2)  as not decisive of the question, and  proceeded  to hold (1) [1964] 2 S.C.R. 501. (2) A.I.R. 1953 S.C. 446. 861 on  two  grounds that the legislature had not  provided  for raising a presumption either way.  First, that the "language used  in Explanation (1) indicated that the conclusion  that the  area was an "estate" can be drawn even where the  whole of  the  village was not included in the grant, only  if  it appeared  that  the portion not included  had  already  been gifted and was therefore lost to the tenure," and the  other that  when adding the Explanation in 1945,  the  Legislature did not think fit to make any change in s. 23 of the Act. But   as  already  observed,  the  language  used   by   the Legislature  in  enacting  Explanation  (1)  to  s.  3(2)(d) expressly   directs  a  presumption  to  be  raised.    That presumption arises when it is proved that a grant as an inam is expressed to be of a named village, the area which  forms the  subject-matter of the grant shall, be deemed to  be  an estate.   Raising of the presumption is not subject  to  any other  conditions.  The Legislature has by the  non-obstante clause  affirmed that such presumption shall be raised  even if  it  appears that in the grant are not  included  certain lands  in  the village which have before the  grant  of  the named  village  been granted on service or other  tenure  or have been reserved for communal purposes.  The  presumption, it  is  true,  is riot a conclusive presumption :  it  is  a presumption  of law, and is rebuttable.  It may be  rebutted by proof of other facts, but not the facts mentioned in  the non-obstante clause. Section  23  was added by s. 5 of the  Madras  Estates  Land (Third Amendment) Act 18 of 1936.  It reads :               "Where  in any suit or proceeding  it  becomes               necessary to determine whether an inam village               or a separated part of an inam village was  or               was not ,in estate within the meaning of  this               Act as it stood before the commencement of the               Madras  Estates  Land (Third  Amendment)  Act,               1936, it shall be presumed, until the contrary               is  shown,  that such village or part  was  an               estate." The  presumption under s. 23 in terms applies only to  cases in which the question whether an inam village was an  estate before  the commencement of the Madras Estates  Land  (Third Amendment) Act, 1936.  Under the Act, before it was  amended in 1936, a grant of a village could be deemed a grant of  an estate  where only melvaram was granted to the  inamdar  and not where both the melvaram and the kudivaram were  granted. By enact-

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862 ing  S.  23  the Legislature intended  to  declare  that  in determining  whether under a grant of an inam village  both. varams  were  granted or only the melvaram was  granted,  it shall  be presumed, until the contrary was shown, that  such village  or  part thereof was an estate, that is,  only  the melvaram  was granted.  Under the Act before its  amendment, one  of the conditions of the applicability of s. 3 (2)  (d) was that the grant in favour of the inamdar was only of  the melvaram, and that it did not include the kudivaram, and the Legislature  by  s. 23 as amended provided that  in  dispute arising  between  the landlord and tenant  whether  an  inam village was or was not an estate, it was to be presumed that it was only of the melvaram.  Enactment of this section  was apparently found desirable ’because of certain decisions  of the  Judicial  Committee.  In Suryanarayana v.  Patanna  and Upadrashta   Venkata  Sastrulu  v.  Divi  Seetharamudu   and others(2),  the Judicial Committee expressed the  view  that where,  there  was no evidence of the terms oil  an  ancient grant,  there  was no presumption that it  was  of  melvaram alone.   The High Court in Mulhu Goudan v. Perumpal  lyen(3) held that the ground on which the decisions of the  Judicial Committee  Proceeded,  though it was not necessary  for  the purpose of those cases to so decide, a presumption that  the grant  was of both the varams was deducible.   The  Judicial Committee overruled this decision in Chidambara  Sivaprakasa Pandara  Sannadhigal  v. Veerma Reddi(4), and held  that  in each  case the question was one of fact to be determined  on the  evidence.  The legislature then intervened and  enacted the  presumption applicable only to cases arising under  the un-amended Act.  Undoubtedly in cases arising under  amended Act, the conditions on which the presumption will arise  are prescribed in the Explanation (1).  The language use by  the Legislature  in  the amended s. 23 clearly  shows  that  the section  was not intended to deal with cases  arising  under the  Madras Estates Land Act as amended by Act 18  of  1936. Any reference in S. 23 to a presumption in respect of  cases arising after cl. (d) as recast by Act 18 of 1936 would have been wholly out of place.  There were two presumptions which applied  to  different  situations.  In  cases  which  arose before the Amending Act of 1936 the presumption under s.  23 applied  : in cases which arose since the amendment of  1936 the  presumption prescribed by the Explanation (1)  applied. This is so, because the Explanation though enacted by Act  2 of 1945 has been brought into force since the date on  which the amending Act of 1936 became operative. (1)  L.R. 45.  I.A. 209. (3)  I.L.R. 44 Mad. 538. (2) L.P. 46 I.A. 123. (4) L.R. 49 I.A. 286.                             863 In  our view the following passage from the decision of  the Madras High Court in Mantravadi Bhavanarayana and another v. Merugu Venkatadu and others(") correctly interprets s. 3 (2) (d)               "It  is now settled law that by reason of  the               amendment   made  in  1945,  which  added   an               explanation to section 3 (2) (d) of the Madras               Estates   Land   Act  and   numbered   it   as               explanation  1, a grant constitutes an  estate               if  it  is  expressed to be  a  named  village               irrespective  of  the fact that  some  of  the               lands in the village had already been  granted               on  inam or service grants, or  were  reserved               for communal purposes."

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We do not deem it necessary to decide whether the suit for a mere declaration that the tenants were not occupancy tenants at the instance of the shrotriemdars, after determining  the tenancy  of some of the tenants was maintainable.  The  High Court has dismissed the suit against defendants 1 to 10  who were  served  with  notices to quit, but  against  whom  the shrotriemdars did not claim a decree for possession.   There is  no  appeal  by  the  shrotriemdars  before  us   against defendants  1 to 10, and in any event on the view  taken  by us, the suit of the shrotriemdars must fail in its entirety. In Appeal No. 342 of 1961 the decision recorded by us on the principal  question does not put an end to  the  litigation. The dispute arose between two rival claimants to the  rights of occupancy of land.  The respondent in this appeal  claims that  he  is a transferee of the original  tenant,  and  the appellant  claims to have acquired the rights  of  occupancy from  the  shrotriemdar.   In  suit No.  93  of  1947,  four substantive issues were raised, and the issues are discussed in paragraphs 106 to 120 of the judgment of the Trial Judge. The  High Court did not separately deal with  those  issues, but  decided Appeal No. 789 of 1950 on the view of  the  law which  it  declared  in  the  principal  appeal.   We   have disagreed  with the High Court for reasons already  set  out and  the other issues which have not been tried by the  High Court have now to be tried. On the view taken by us Civil Appeal No. 341 of 1961 will be allowed,  and the decree passed by the High Court set  aside and the decree passed by the Trial Court restored with costs throughout.  In Civil Appeal No. 343 of 1961 also the decree passed  by  the High Court will be set aside  and  the  suit decreed (1)  I.L.R. [1954] Mad. 116. 864 with  costs  throughout.  There will be one hearing  fee  in this Court. In  Civil Appeal No. 342 of 1961 arising out of  Appeal  No. 789  of 1950 from suit No. 93 of 1947, tile appeal  will  be remanded  to  the  High  Court with  a  direction  that  the questions  which  remain to be determined  will  be  decided according to law. No order as to costs in Appeal No. 342  of 1961. C.A. Nos. 341 and 343 allowed. C.A. No. 342 remanded. 865