Thirupathi Goundan vs Shamanna Goundan and Others

Devadoss, J.—The only question argued in the Second Appeals is whether the respondents have a right of permanent occupancy in the

plaint lands. The question whether the respondents have an occupancy right or not would depend upon the terms of the grant Ex. A and the

subsequent history of the villages granted to Muhammad Mossa Sahib in 1829. Ex. A is the sannad given to Moosa Sahib by the East India

Company, by which two villages were granted to him, in lieu of a money grant, which was made on account of the services rendered by him to the

East India Company. The amount originally granted was Rs. 1,700, being the income of these villages. Moosa Sahib wanted one village to be

granted in lieu of these villages and he was willing to retain one of the seven villages originally granted. The sannad gave him two villages and the

grant comprises not only cultivated portions but all the uncultivated portions as well as waste portions and puramboke etc. This grant was

afterwards confirmed at the time of the inam settlement. The grant was for three generations. The contention on behalf of the appellant is that what

was granted was not an estate and that there were no tenants on the land, at the time, with rights of occupancy and that the subsequent history of

the villages shows that no tenant had occupancy right on the lands. On behalf of the respondents, it is urged that what was granted was an estate,

within the meaning of the Estates Land Act and that as the respondents continued to be in possession, at the time when the Estates Land Act came

into force, by, virtue of Section 6 of the Act, they acquired an occupancy right though they had it not before. The question is not free from

difficulty. Both the lower Courts have found that the respondents have occupancy rights and have decreed their suit.

Ex. A is no doubt favourable to the contention of the respondents. There are two statements in it, which I think to some extent support the

contention of the respondents. One is that the villages were granted in lieu of a money grant and that the beriz of the village was taken into account

in order to determine the income from the villages. The second is the following recital : "" In order to make the ryots and others in the two villages

given as aforesaid to obey your orders, you should publish it as well so as to proclaim it to all."" Prima facie, it would appear there were ryots on

the land in the two villages. If Ex. A had stood alone, it might lend considerable support to the respondents'' contention; but Ex. XIV, the inam

register prepared in 1865, which gives the history of the villages is opposed to their contention. In fasli 1211, the extent of the village is given as

3244-92 acres, of which 72817 were puramboke. Of the remaining 2516-75 acres, the dry land was 1083-52 acres and wet 38-36. Dry waste is

given as 1322-14 and wet waste 72-73. Therefore out of the total, the waste land was more than half of the land in the village excluding the

puramboke. In fasli 1270, the extent of dry cultivation is given as 1191-85 and that of wet cultivation as 62-38 and the extent of the remaining wet

and dry waste is 1262-52 acres. There is a remark on page 4 to the effect that:

The value of the village should be fixed at the beriz of fasli 1261, that is the one fixed by Mr. Phillips and the reason assigned by them is that though

the present cultivation is 2,200 acres, the cultivation is not permanent. It is permanent nowhere and the actual cultivation is not strictly

ascertained.... They are not able to give any reliable account of the past year''s beriz. The villages are held by one of the Jaghirdars on rent from

others and they fixed it at a sum which does not exhibit the actual value of the cultivation.

The villages descended to the heirs of Moosa Sahib and they held the villages in several shares. According to the Muhammedan Law, as

understood by the Kazi, whenever any sharer died without an issue his share lapsed or escheated to the Government. But the Government did not

take over his share, but added the in-come due to his share to the jodi fixed on the villages and the persons in possession were asked to pay to the

Government the income from such share, together with the jodi. It is clear from the statement in the inam register that there was no permanent

cultivation of the land and that the amount of cultivation varied from year to year. This circumstance is strongly opposed to the contention that there

were tenants, with rights of permanent occupancy of the land and the statement that ""the villages are held by one of the Jaghirdars on rent from

others and that they fixed it at a sum, which does not exhibit the actual value of the cultivation"" shows, I think, that the income was derived from the

actual cultivation of the land and not from the tenants, who paid a certain amount to the landlord. It is not suggested that the sharing system

prevailed in this village, in which case it might be that the income varied from year to year, depending upon the cultivation. But the income was only

calculated in money and therefore the statement in the inam register should be considered, as referring to the actual cultivation by the inamdars;

either through their own servants, or by giving leases to people prepared to cultivate the land. Their Lordships of the Privy Council rely upon the

history of an estate, in order to determine the existence or otherwise of permanent occupancy rights. Venkata Sastrulu v. Seetharmudu AIR 1919

P.C. 111. In this case, the history of the two villages affords considerable weight to the contention of the appellant that the respondents hid no

occupancy right. In the first place, there is no evidence that there were any tenants with occupancy rights, at the time of the grant. Secondly, the

evidence of the 5th witness is that he and his ancestors enjoyed the land during the last 70 years.

He gave his evidence in 1919 and 70 years from that date would carry us back to 1849. The grant was made in 1829, and there is no

explanation offered by him, as to how his ancestors came into possession. Thirdly, there is also the evidence supplied by the inam register that the

cultivation was not permanent and that the income varied from year to year.

It is well settled now, that there is no presumption that a tenant has occupancy rights. If the property in dispute is an estate, then u/s 6 of the

Estates Land Act he gets occupancy rights. But where it is not an estate, the onus is upon him to prove that he has occupancy rights. In Nainapillai

Marakayar v. Ramanathan Chettiar AIR 1924 P.C. 65 their Lordships observe:

It cannot now be doubted that when a tenant of lands in India in a suit by his landlord to eject him from them sets up a defence that he has a right

of permanent occupancy in the lands, the onus of proving that he has such a right is upon the tenant.

That being so, it is for the respondents to prove that they have occupancy rights. It is urged on behalf of the respondents that these villages were

granted as jaghir to Moosa Sahib and therefore these villages formed an estate, within the meaning of Section 3 of the Estates Land Act Mr.

Sampath Aiyangar relied upon Section 3, Clause 2(c) that any unsettled palayam or jaghir is an estate. The Subordinate Judge is of opinion that a

Jaghir, in order to come within the definition of Section 3 must be a Jaghir before the time of the East India Company. Without considering whether

such an opinion is well-founded or not, we have to sea whether by the mere use of the word ''Jaghir'', the incidents of an estate would attach to any

property. It was strongly urged for the respondents that as the word ''Jaghir'' is used in Ex. A, the sannad, the villages must be considered as

possessing all the incidents of a Jaghir. The use of the word ''Jaghir by itself'' does not signify much. Mr. Justice Coutts Trotter as he then was,

observes in Sam v. Ramalinga Mudahar (1917) 40 Mad. 664

I have come to the conclusion that these lands, though so described, are not Jaghirs, within the meaning of the Estates Land Act, but are merely

ordinary inam.

We have, therefore, to see whether these villages form an estate, within the meaning of Section 3 of the Estates Land Act, apart from the more

use of the word ''Jaghir''. The respondents rely upon the statements in the Salem District Manual, which describe these villages as Jaghir. I do not

think that by the mere use of the word ''Jaghir'', the villages can be said to be an estate.

It is next urged for the respondents that if it is not a Jaghir it must be considered to be an inam within the meaning of Sub-clause D of Section 3,

Clause 2. In that case, any village of which the land Revenue has been granted in inam to a person not owning the kudivaram thereof would be an

estate. To say this is an inam would be begging the question. The question is whether the land revenue alone was granted in this case, or whether

the land itself was granted. In Mt. Sakina Bai v. Kaniz Fatima Begam AIR 1917 P.C. 94 their Lordships of the Privy Council held:

the word, ''Jaghir'' primarily points to occupancy, though it may be occupancy of an office, such as that of Collector of revenue. Where, however,

a Jaghir held for life only is, as in this sannad, used in contradistinction to anilaka, held as a permanent Zamindari, it is an almost necessary inference

that the occupancy referred to is occupancy of land.

By the sannad, not only cultivated land but waste, puramboke, Jamabandi, Kattumaniam and the inam were granted. It is urged by Mr.

Rimachandra Aiyar, who appears for the appellant, that the fact that puramboke and waste land was given shows that it was given and not merely

land revenue. He further contends that a good portion of the waste land was brought under cultivation and that it cannot be said that there were

any tenants with occupancy right on the waste land. That a good deal of waste land was brought under cultivation is clear from Ex. XIV. When

waste land was given to the grantee, it cannot be said that land revenue alone was granted. That being so, the grant does not come within the

purview of Section 3, Clause 2(d).

It is urged for the respondents that the onus is upon the landlord to show that lands are not subject to occupancy right. That argument assumes

that the villages are an estate. If the villages are an estate within the meaning of Clause 3, no doubt the onus would be upon the landlord to show

that the lands are not subject to occupancy right: in other words, the lands are not ryoti lands. But in this case, we have to determine from the

evidence whether the villages are an estate or not. That being so, Sections 23 and 185 of the Estates Land Act do not help him. It is urged by Mr.

Ramachandra Aiyar that the original grant of money was about Rs. 1,700, and that the income from the villages was only about Rs. 1,500 and

odd, and that in order to make up for the balance, waste and other lands were given. That argument receives support from the statement in the

inam register:

The only indirect explanation for his deficiency is found in the reservation of the puramboke land and resumed kuthu kodigi inams for the use of the

Jaghirdar in right as profit.

That waste lands were given to the grantee under Ex. A cannot be disputed. That they could not have been in any body''s possession is

apparent. There is no evidence in this case, that there were any tenants at the time of the grant in 1829. It is urged for the respondents that it was

not likely that the East India Company''s agents cultivated the lands and that there must have been tenants on the land. The mere fact that

Government was able to get an income does not show there were tenants, with rights of occupancy, as in the case of Ryotwari land. If it was

ryotwari land, then pottahs must have been issued to the persons in occupation. No such evidence is forthcoming in this case.

It is open no doubt to the Government to grant ryotwari village, as inam to a person. In such cases, the revenue alone is inam. In the absence

of evidence, it cannot be presumed from the mere fact that Ex. A speaks of beriz, it must be beriz derived from the tenants with rights of permanent

occupancy. The lower Courts have come to the conclusion that the respondents have occupancy right, on the ground that the villages were granted

as Jaghir. They overlooked the fact that the onus is upon the tenants to prove that they have occupancy right. I hold that the villages in question are

not an estate, within the meaning of Section 3 of the Estates Land Act and that the respondents have no occupancy right in the plaint land. In the

result, the appeals are allowed and the judgments of the lower Courts are set aside and the plaintiffs'' suits are dismissed with costs throughout.

S.A. No. 254 of 1922.

The judgments of the lower Courts are set aside and the case remanded to the Munsif''s Court, for trial of the remaining issue. The appellant is

entitled to his costs in this Court and the Lower Appellate Court. The costs in the Munsif''s Court would abide the result of the suit.

Appellant will have the refund of the Court fee paid in this Court.