1. In these appeals a common question - Whether a shrotriem grant of landsknown as Challayapalem Shrotriem formed fan estate within the meaning of s.3 [d] of the Madras Estates land Act, 1908 - arises. The Court of firstinstance on a review of the evidence was of the opinion that the grant was ofthe whole Challayapalem village within the meaning of s. 3  [d] of theMadras Estates Land Act, 1908, in force at the relevant time, and that thetenants held rights of occupancy in the lands held by them. The High Court ofMadras disagreed with that view and held that on the evidence it was not provedthat the original grant was of a whole village or even of a named villagewithin the meaning of s. 3  [d] of the Madras Estates Land Act, 1908, andthe first Explanation thereto, and that the onus to prove that the grant was ofa whole or of a named village being upon the tenants in occupation of the landsin dispute, the claim of the shrotriemdars must succeed. With certificatesgranted by the High Court, these three appeals have been preferred.
2. Suit No. 42 of 1942 was filed by certain tenants of lands in the villageChallayapalem, District Nellore, for a declaration that they hold occupancyrights in lands in their occupation and for an injection restraining theshrotriemdars of the village from interfering with their possession. Thetenants claimed that they and their ancestors were in possession and enjoymentof the lands for many years and had been paying rent to the shrotriemdars, andwere dealing with the lands as owners, that all transactions in theChallayapalem shrotriem were being on the footing that the village was anestate under the Madras Estates Land Act 1908, and that in any event thetenants held permanent rights of occupancy in the lands acquired in virtue ofthe provisions of the Madras Estates Land [Amendment] Act, 1936. This suit waslater numbered 37 of 1947.
3. The shrotriemdars filed suit No. 2 of 1946 against fifteen nameddefendants for a declaration that the tenants in occupation of the lands in thevillage did not hold permanent occupancy rights. Later, permission under O. 1r. 8 code of Civil procedure to sue the named defendants as representatives ofall the tenants in the lands of the shrotriem grant was obtained. In this suitthe shrotriemdars did not claim any relief for possession: they merely soughtto representatives to institute separate proceedings in that behalf and claimedthat they were entitled in enforcement of notices served upon then out of thenamed defendants to call upon them to deliver possession of lands occupied bythem.
4. There was one more suit No. 93 of 1947, which raised dispute as to theright of occupancy in a small area of land admeasuring 1-90 acres. Theplaintiff in the suit claimed that he had acquired the right of occupancy bypurchase from the original tenant of the land. The fourth defendant in the suitwho was the principle on testing party claimed that he was a grantee ofoccupancy rights from the shrotriemdars.
5. The three suits were tried together. The tenants claimed in the principlesuit No. 2 of 1946 occupancy rights in the lands held by them, on threegrounds:
 that the tenants ofagricultural lands were, by immemorial custom of the locality in the NelloreDistrict, occupancy tenants;
 that the tenants had acquiredby prescription or by the doctrine of lost grant the rights of permanentoccupancy; and
 that the grant was of anestate within the meaning of s. 3  [d] of the Madras Estates land Act, 1908,and the tenants of the lands in the estate were by virtue of s. 6 of the Actpermanent occupancy tenants.
6. The trial Court, relying upon the statement made in Boswell's Manual ofthe Nellore District, that the tenants........ of Challayapalem like theirbrothers in other villages of this District had right to occupy the land fromgeneration to generation on payment of rent prescribed by custom, held that thetenants plea on the first head must be sustained. The High Court declined toraise such a presumption in favour of the tenants of the District including tenantsof the village Challayapalem, and correctness of that view was not challengedin this court. On the second ground, the trial court held that on the evidentthat the tenants rights were independent of prescription, and that they had notraised any plea of acquisition of right of occupancy by contract, express orimplied. The High Court observed that on the evidence on foundation is laid forinvoking the presumption of lost grant to give a legal original, or lawfultitle to long continued possession of the land by a particular tenant ortenants, and that the plea of acquisition of the right of occupancy based onprescription was not made out. This plea was also not reiterated before us, andthe appeals were supported only on the last ground.
7. The grant was, it appears, made by a Carnatic Nawab which is recognisedon all hands to be a shrotriem grant. There is, however, on the record noevidence to prove the date of the grant, the names of the grantor and thegrantee, the extent and terms of the grant, the purpose and nature of thegrant, and whether the grant was of Kudiwaram as well as of melwaram alone. Theoriginal deed of grant has not been produced and there is no other directevidence of the terms of the grant from which the terms of the grant may begathered. The trial court held that the later documents, such as the statementin the Inam Enquiry, the Inam Fair Register and other documents, conduct of theShrotriemdars and the tenants, and recognition accorded to the rights of thetenants viewed in the light of probabilities justified an inference that thegrant was of the whole village, but according to the High Court the evidence onthe record was inconclusive and the case must be decided against the tenantsbecause 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.
8. The problem must be approached in two distinct branches - Whether theevidence justifies an inference that the grant was of a whole village, and ifthere be no such evidence whether s. 3  [d] Explanation  of the MadrasEstates Land Act gives rise to a presumption in favour of the shrotriemdars ofthe tenants. Between the years 1640 to 1688 the territory which now forms theDistrict of Nellore was under the sovereignty of the Sultan of Golkonda. In1688 this territory along with Golkonda passed under the Moghal dominion. Afterthe War between the East India Company and Sultan Hyder Ali, it was arrangedbetween the Government of Madras and the Nawab of Carnatic that the lattershould bar the cost of the military defence of the Carnatic region. The Nawabagreed to assign the revenues of the Carnatic region for a period of five yearsto the East India Company, and in pursuance of this arrangement, the East IndiaCompany took over the administration of the Carnatic region in 1790. On August18, 1790 the Board of Revenue, Madras issued instructions to the Collectors ofRevenue appointed by the East India Company, relating to the administration ofthe Districts. Dighton who was the first Collector of the Nellore Districtunder the new dispensation found on enquiry that some village in the Districthad been alienated on shrotriem tenure. He proceeded to investigate the titleof the grantees and issued a number of sanads. During the course of hismanagement Dighton addressed on November 13, 1790 to the 'ChellayapalemShrotriemdar Mutharaju Ramachandrayya Sthala Karnai Varu' the followingcommunication:
'You shall pay as per installments varahas 283 [twohundred and eighty three] being the beriz in respect of your shrotriem known asChellayapalem village in Gandavaram paraganas, as entered in the circarshrotriem jabitha, into the Nellore Treasury, obtain receipt and happily enjoythe produce realised from that village, you shall enjoy happily by givingshares to the kapus as per mamool.'
9. Administration of the territory by the East India company came to an endon August 31, 1792. On July 31, 1802 the East India Company assumed sovereigntyover the District of Nellore and one Travers was appointed Collector inSeptember 1801. Travers recognised 207 shrotriem villages without disturbingthe arrangements which were then in existence dispensed with the duties ofsthalakarnams and collected quit rent on their inams. it appears that theshrotriem of Challayapalem was continued under the arrangement of the year 1790which we have set out.
10. Soon after the East India Company took over the administration of whatlater came to be known as the presidency of Madras, regulation 31 of 1802setting up machinery for the better ascertainment of titles of person holdingor claiming to hold lands exempt from payment of revenue to Government undergrants and for fixing assessment on such lands was promulgated. A register ofInams in Government Taluks was prepared and in Col. 14 of the Inam Register theInams registered pursuant to the Regulation were set out. In the villageChallayapalem are found mentioned in that Register - three Inams - theChallayapalem shrotriem [which is in dispute in the present case], and twoother personal Inams each of an area of 0-93 cents. Apart from the preparationof this Inam Register, nothing substantial was done under the Regulation till1860. About the acting of the Shrotriemdars and the tenants between 1802 and1860 there is very little evidence. There is no evidence as to when the fiveminor inams, including those two mentioned in the Inam Register, were created,who paid the levenue, whether tenants were shifted from lands in theiroccupation, or lands originally not occupied were brought under cultivation. In1860 the Inam Commission commenced an inquiry in the Nellore District. ExhibitB-195 is a record of the statement made by the shrotriemdars Muthuraju Subbaraoand Muthuraju Subbarammayya of Chellayapalem. In Col. 6 it is recorded that thegrant was made during the time of the Nawabs for maintenance so as to beenjoyed from son to grandson and so on in succession, and in Col. 7 details ofthe lands are set out. Out of the total area of the land 21 Corrus 12/16 arerecorded as poramboke, 5 Gorrtis and 1* Visas as minor inams, and 126. 3 visasas cultivated lands-dry, wet and garden. The boundaries and particulars of theinam lands are shown as if the inam grant was of the whole village, the descriptionof the boundaries being of lands of other villages to the East, South, West andon the North of lands of military barracks. Income of the shrotriem is fixed atRs. 1,449-5-5 per annum and the total jodi at Rs. 1,225-12-2, leaving a balanceof Rs. 223-9-3 to the shrotriemdars. This statement is described as written andfiled by Muthuraju Subbarao and Subbarammayya shrotriemdars of Challayapalem,and that it was confirmed by the Village Officers. Pursuant to the enquiry madeby the Inam Commissioner entries were posted in the Inam Fair Register. In Ext.A-l which is described as 'an extract from the Register of Inams in thevillage of Chellayapalem shrotriem in the taluk of Nellore' in Col. 21 itwas recited that the shrotriem 'being more than 50 years old could beconfirmed. In the account of Fasli 1221 the income of the shrotriemdars for tenyears previous to that Fasli is given. It is shown in the margin that theshrotriem is rented from Fasli 1263 to Fasli 1287, that is for a period of 25years for the sum of Rs. 244 above the jodi. The cost of the repair to be bornehalf by the tenant and hah* by the shrotriemdars. . . . Almost the whole landis now under cultivation and there is scarcely any room for furtherimprovement. I propose to give a deduction of Rs. 20 on account of the- cost ofrepair which the shrotriemdar will have to pay and adopt the remainder as thevalue of the shrotriem'. In Cols. 10 & 11 it is recorded that the Jnamwas hereditary, but by whom it was granted it was not known. It is commonground that Ext. A-l did not include the area of five minor inams for whichseparate entries Exts. A-2 to A-6 were posted. The total area of the village asthen estimated exceeded 466 acres and Ext. A-l related to 453-06 acres, thebalance being in respect of minor inams. Pursuant to the entries in the InamFair Register, confirmatory title deeds were issued. Exhibits A-2 and A-3relate to devadayam grants : the extent covered by Ext. A-2 is 5-68 acres, andby Ext. A-3 is 2-83 acres. In Cols. 11 & 12 headed 'By whom grantedand written instrument in support of the claim' it is recorded that'the name of the grantor and the written instruments in respect of theclaim 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 isin respect of 0-93 cents and Ext. A-6 also is in respect of 0-93 cents. Herealso it was recorded that the 'grantor's name and the date of the grantare not known.'
11. The next public document to which reference may be made is theDescriptive Memoir of Chellayapalem shrotriem village in the Kovur Taluk of theNellore District - Ext. A-7. It recites that the boundary of the village hadremained unchanged by settlement; the area prior to settlement was [omittingfractions] 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 villageby the Settlement. According to the settlement accounts of land, the totalcultivable area was 682 acres, minor inams 18 acres and poramboke 67 acres.Under the head minor inams included in the village were personal Inams 5-08acres. Religious Inams 8-64 acres, village officers 2-87 acres and villageartisans 1-80 acres. Under Ext. A-7 the whole village was described as theChallayapalem shrotriem. Apparently the village was identified with theshrotriem.
12. These are all the extracts from public records which have a bearing onthe principal question in dispute.
13. The plaintiffs in suit No. 2 of 1946 are purchasers under two deedsExts. A-101 and A-102 respectively dated January 14, 1889 and August 7, 1889from the previous holders. They are strangers to the family of the originalgrantees, and it is not surprising that they are not in possession of the deedof grant, and the earlier record relating to the management of the village.
14. Exhibit B-1 the letter addressed by Dighton to the shrotriemdars may atfirst blush suggest that the village was accepted and confirmed as one of theshrotriem village in the Gandavaram Paragana. But Ext. B-1 was not of thenature 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 informationby a Jabitha [list] relating to Circar's shrotriems'. In Boswell's Manualit is recited that Dighton had investigated the title of the inamdars in theDistrict and had granted sanads, but Ext. B-1 did not purport to be aconfirmatory sanad or a fresh grant, or deed embodying the result of anyinvestigation regarding the title of the Mutharaju to the village. Exhibit B-1undoubtedly refers to Mutharaju Ramachandrayya as Chellayapalem shrotriemdarand fixes the revenue at 283 pagodas in respect of your shrotriem known asChallayapalem village. But Dighton was a Collector of Revenue appointed by theEast India Company which was in 1790 not invested with de jure sovereignty overthe region. There is also no record of any enquiry made by Dighton in respectof the Challayapalem shrotriem. The object of the letter Ext. B-l is apparentlytwo-fold : to fix the revenue, and to ensure that the tenants were notsubjected to unlawful exactions. For the latter purpose it was directed thatthe shrotriemdar was to enjoy the produce from the village by giving shares tothe kapus (tenants) as per mamool. Exhibit B-l does not refer to any minorinams, and treats the ChaIIayapa,e;n village as the shrotriem of Muthurajus.
15. The statement of Mutharaju Subbarao and Subbarammayya - Ext. B-195 -Suggest that the original grant was in favour of Mutharaju Sithanna - theirancestor. The statements in col. 6 that the grant is from the Nawab whose nameis 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 originalgrant. It is true that the boundaries of the lands granted are described as ifthe grant was of a whole village, and nothing is mentioned about the origin ofthe minor inams. Exhibit A-1 the Inam Fair Register Extract - is in respect of453-03 acres where as the total area of the village as then measured exceeded46 acres. The area of 13 acres was undoubtedly held by minor inamdars inrespect of which entries Exts. A-2 to A-6 were posted in the Inam FairRegister. Those entire are of no assistance in tracing the source of the minorinams. In each of those extracts under the head. By whom granted and writteninstrument in support of the claim' it is recited that the names of thegrantor and the written instrument in support of the claim 'are notknown'. Sanads in respect of the minor inams were issued because the inamswere found to be more than fifty years old. Inarm in respect of which entriesExts. A-5 and A-6 are posted are found mentioned in the Inam Register preparedunder 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 inamrelating to Ext. A-2 appeared for the first time in Fasli 1211, the inamrelating to Exts. A-5 & A-6 in Fasli 1216, the inam relating to Ext. A-3 inFasli 1250 and the inam relating to Ext. A-4 in Fasli 1260. But the accountsmaintained under Regulation 31 of 1802 were apparently not maintained either regularlyor in respect of all the inams. In the absence of reliable evidence fromentries in these rough accounts, no inference that the minor inams were grantedby the shrotriemars could be made. The name of the grantor is not to be foundin Exts. A-2 to A-6. Exhibit A-7 proves the existence if minor inams, but hasno bearing on the question whether the whole village Challayapalem was grantedin inam.
16. In Exts. A-48. A-49, A-104, A-105 and A-103 the predecessors in interestof the present inamdar had described the village as Challayapalem Shrotriem; inExts. A-102, B-44, B-45, B-12, to B-19, B- 20 to B-43, the present inamdarsgrandfather was a party and therein also the inamdars were described asshrotriemdars of Chellayapalem. There are documents Exts. B- 2, B-3, B-4, B-5to B-6, B-112, & B-116 and other documents in which the village isdescribed as Chellayapalem shrotriem. But these recitals have no evidentiaryvalue in support of the case that the whole village was granted.
17. The statements in Ext. B-195 related only to a part of the village andthat the income realised by the inamdar was Rs. 1,449-5-5 per year, out ofwhich the revenue payable to the Government was Rs. 1,225-12-2 and the balanceenjoyed as inam was only Rs. 223-9-3. Exhibit A-1- Extract from the Inam FairRegister-does not lead to the inference that the area of the entire village wasgranted. The recommendation made by the Deputy Collector was confined to theshrotriem. The shrotriem was confirmed merely because it was more than fifty yearsold, and what was confirmed was not the area of the entire village, but theshrotriem grant admeasuring 453-06 acres out of a total area of 466 acres.
18. Evidence on the record about the acting of the shrotriemdars and thetenants for the period 1790 to 1862 is vague and inconclusive. It appears fromthe Inam Register that for a period of 25 years the shrotriem was under anIjara. The Inam Fair Register recites that garden lands were irrigated from theprivate wells of the shrotriemdars. From the amounts for Fasli 1216 it appearsthat more than a hundred acres were than lying uncultivated, but for sometimebefore 1862 the whole village was under cultivation.
19. On the other hand there is the evidence that the tenants successors wererecognized in place of their predecessors, family partitions were approved, andthe shrotriemdars received their proportionate shares from the divided shares,and the tenants were not disturbed in their possession. Chellayapalem has atall material times been included in the list of village maintained in theCollector's office. It was within the boundaries which are not shown to havebeen altered. A village in the Madras region is a geographical area of arableand waste lands, and contains the establishment of a Karnam, village munsif andwatchmen, and Chellayapalem has at all material times been recognised as avillage, and has been administered accordingly. Minor mams were always regardedas part of the village, and popularly and even in the public records thevillage was identified with the shrotriem. The shrotriemdars have failed toproduce their books of account relating to their management. It is howeveradmitted by them that they were collecting jodi from the holders of minor inamsand paying it into the public exchequer. It was explained by S. Rama Rao P.W. 1that he 'collected the cess' as a registered proprietor and paid itover into the treasury, because a demand was made upon him by the Revenueauthorities for the whole amount of land, cess due.
20. But long possession, fixity of rent, assertion of title in formal deedsmay not necessarily justify an inference of permanent occupancy rights. Againthe mere fact that the village was treated as one unit for the purpose ofrevenue administration does not justify any positive inference and the factthat five separate sanads were issued in respect of the minor inams without anyevidence to prove the date and the terms of the grant leaves the matter indoubt. Some of these circumstances may prima facie support the inamdars and theother the tenants, but on a careful review of all those circumstances, we areunable to disagree with the opinion of the High Court that the grant was notproved to be of a whole village.
21. The second branch of the argument must then be considered. The HighCourt expressed its conclusion on this branch of the case as follows:
'Whether a tenant raises the plea that the landswere 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 landlordeither for an injunction,......... or even for a declaration as in the presentcase, the burden of proof would undoubtedly be on the tenant to establish thecase which he put forward either to exclude the jurisdiction or the negativethe right of the plaintiff. The burden will be on him to show that the grantwas either a grant of a whole village or a grant of a named village.'
22. In so enunciating the law, the High Court relied upon the judgment ofthe Court in District Board Tanjore v. M. K. Noor Mohamed Rowther : AIR1953SC446 and held that in law the burden of proving that a particular grantwas a grant of an estate lay upon the tenants in all cases, and the tenantshaving failed to discharge that burden their claim must fail.
23. In considering this argument, it is necessary to make a brief review ofthe 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 ofsovereignty in 1801, the East India Company promulgated the PermanentSettlement Regulation 25 of 1802, which dealt with the tenure of Zamindars intheir estates. This Regulation was passed on July 13, 1802 and by s. 4 thereofinams were exempted from its scope. On the same date, another Regulation 31 of1802 was enacted. This Regulation dealt with inams and provided for makingrules for the better ascertainment of titles of persons holding or claiming tohold, lands exempted from the payment of revenue to Government under grants notbeing Badshahi or Royal and for fixing an assessment on such lands. By s. 15 itwas enacted that a register of inams shall be kept in each zillah of the landsheld exempt from the payment of revenue, and that the register should specifythe denomination of each grant or sanad, the names of the original grantors orgrantees, and the names of the present possessors, with other particulars. Itappears that nothing effective was done to investigate the titles of theclaimants to inams till 1859, when the question of examining their title wastaken up by the Inam Commission. The Inam Commission made inquiries and issuedconfirmatory sanads. We have already referred to Title Deed No. 1762 issued inrespect of the grant in favour of the shrotriemdars.
24. The traditional rights of occupants of land in the southern region wererecorded by the Board of Revenue as early as in 1818 in its proceeding datedJanuary 5, 1818 that :
'The universally distinguishing character, as wellas the chief privilege of this class of people, is their exclusive right to thehereditary possession and usufruct of the soil, so long as they render acertain portion of the produce of the land, in kind or money, as publicrevenue; and whether rendered in service, in money, or in kind, and whetherpaid to rajahs, jageerdars, Zamindars, polygars, motahdars, shrotriemdars,inamdars or Government Officers, such as tahsildars, amildars, aumeens, ortanadars, the payments which have always been made by the ryot are universallytermed and considered the dues of the Government.'
25. The Legislature with a view to define the relations between landlordsand tenants in inam villages promulgated Madras Act 1 of 1908. The materialpart of s. 6  as amended by Madras Act 8 of 1934 and 18 of 1936 provided:
'Subject to the provisions of this Act, every ryotnow in possession or who shall hereafter be admitted by a landholder topossession of ryoti land situated in the estate of such landholder shall have apermanent right of occupancy in his holding.
Explanation  - For the purposes of this sub-section, the expression everyryot now in possession shall include every person who, having held land as aryot continues in possession of such land at the commencement of this act.
Explanation  :-
Explanation  :-
26. Section 3 sub-s.  defined the expression ' estate' withinthe meaning of the Act and insofar as it is material for this case, it providedas originally enacted:
'In this act, unless thereis something repugnant in the subject or context-
'Estate ' Means -
[a] any permanently - settledestate or temporarily-settled Zamindari.
[b] any portion of suchpermanently-settled estate of temporarily- settled Zamindari which isseparately registered in the office of the Collector;
[c] any unsettled palaiyam orjagir;
[d] any village of which theland revenue alone has been granted in inam to a person not owning thekudivaram thereof, provided that the grant has been made, confirmed, orrecognised by the British Government, or any separated part of such village;
[e] any portion consisting ofone or more villages of any of the estates specified above in clauses [a], [b]and [c] which is held on a permanent under-tenure.'
27. Kudivaram is a Tamil word, which signifies the cultivator's share in theproduce of land as distinguished from the landlord's share received by him asrent, which is called melvaram Kudivaram has acquired a secondary meaning, itmeans the cultivator's interest in the land, and melvaram the landlord interestin the land. The definition of estate in Clause [d] gave rise to considerablelitigation which called for determination of two questions :  whether therewas a grant of the whole village so as to make the area granted an estate; and whether the landlord to whom the land was granted owned the Kudivaram. Incases which came before the courts it appeared that apart from the grant whichwas claimed to be a grant of an estate, there were in each village othergrants, religious, service and personal and evidence about the commencement ofthese minor grants and the terms on which they were granted was notforthcoming.
28. In G. Narayanswami Nayudu v. N. Subramanyam I.L.R. 39 Mad. 683., in asuit filed by the receiver of the Nidadaole estate for possession of certainlands the tenant claimed that the acquired occupancy rights under s. 6 of theMadras Estates Land Act 1 of 1908. There were in the village minor inams ofthree classes: Archaka service inams, village service inams, and dharamdayainams, and there was no evidence whether the grant to the plaintiffs estate ofthe village was made first, or whether the minor inams were granted first. Itwas contended on behalf of the plaintiff estate that inasmuch as there wereminor inams in the village, the Venkatapuram agraharam could not be said to bea village of with the land revenue had been granted as inam within the meaningof s. 3 [d] of the Act. The court rejected that contention and observed:
' The definition in sub-section 2, clause [d] wasobviously intended to exclude from the definition of ' Estate ' whatare known as minor inams, namely particular extents of land in a particularvillage as contrasted with the grant of the whole village by its boundaries.The latter are known as whole inam village. The existence of minor inams inwhole inam villages is very common and if these inam villages do not comewithin the definition of Estate almost all the agraharam, shrotriyam andmokhasa villages will be excluded. This certainly cannot have been theintention of the legislature. These minor inams are generally granted forservice to be rendered to the village or to the owner and that seems to be thenature of the minor inams in this case.'
29. The court therefore held that s. 3  [d] of the Madras Estates landAct excludes from the definition of estate minor inams, and a grant whichpurports to be a grant of a whole inam village is an estate within the meaningof Clause [d] of s. 3, even though it may be fond that there are lands held bygrantees under minor inams. The Legislature in 1936 substituted for Clause [d] ofs. 3  the following clause by the Madras Estates Land [Third Amendment] Act,18 of 1936 :
' [d] any inam village of which the grant has beenmade, confirmed or recognized by the British Government, notwithstanding thatsubsequent to the grant, the village has been partitioned among the grantees orthe successors entitle of the grantee or grantees.'
30. Then came the judgment of the Madras High Court in Tulabandu Ademma v.Sreemath Satyadhyana Thirtha Swamivaru A.I.R. 1943 Mad. 187 In that casethe original grant was lost. In Col. 6 of the statement prepared by the Inamcommissioner in that case, it was recorded that the former Zamindars grantedthe land, comprised within the Chekunama for the math. There is no sanad as itwas destroyed by fire. There was no entry under the heading particulars of theinam land mentioned in the sanad, but under the head 'Gudicut' [the total areaof the village] was the entry 158.23 acres, from which were deducted 25.10acres described as private lands, and 5.4 acres inams of other persons leaving128.6 acres as the area covered by the grant. In Col. 10 it was stated thatthere was no Chekunama. The court held that the grant being of less than thewhole village, the tenant could not rely on s. 6 of the Act. In that case theboundaries of the agraharam as described in col. 10 in the Inam Register Wereadmittedly the boundaries of the whole village, but in the view of the CourtCol. 10 had to be read in conjunction with the other columns. There was noevidence whether the other inams were granted before the grant in favour of theDevasthana or after. This case apparently marked a departure from the rulewhich was enunciated earlier by the Madras High Court in G, NarayanaswamiNayudu's case I.L.R. 39 Mad. 683
31. The Legislature immediately reacted against this view and enacted, byMadras Estates Land [Amendment] Act 2 of 1945 added the following Explanationto Clause [d] of s. 3 . Explanation  read as follows:
'Where a grant as an inam is expressed to be of anamed village, the area which forms the subject-matter of the grant shall bedeemed to be an estate notwithstanding that it did not include certain lands inthe village of that name which have already been granted on service of othertenure of been reserved for communal purposes.'
32. This Explanation was made operative retrospectively from the date onwhich Madras Act 18 of 1936 was brought into force. The Explanation wasapparently intended by legislative process to restore the interpretation whichthe Madras High Court had given to the expression whole village in G.Narayanswami's case. But the legislature had used somewhat involvedphraseology in enacting the conditions which gave rise to the presumption. Ita minor inam was proved to be granted prior to the date of the grant, by virtueof Explanation  the grant expressed to be of a named village had to beregarded as a grant or an estate. If it was proved that the grantee afterreceiving the whole village created minor inams, the grant was of the wholevillage and therefore grant of an estate. But where evidence about the creationof the major and minor inams was not forthcoming, the question had to bedecided on the presumption that the subject-matter of the grant shall be deemedto be an estate, notwithstanding that it did not include lands granted onservice or other tenures or lands reserved for communal purposes. On the trueeffect of the Explanation there was a sharp conflict of judicial opinion resultingin three distinct views. In one set of cases it was ruled that the burden ofproving that a tenant is entitled to permanent rights of occupancy in hisholding by virtue of s. 6 of the Madras Estates Land Act always lies upon thetenant, and it is for the tenant to establish affirmatively that the minor mamsin 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. LingaReddi A.I.R. 1957 A.P. 63 and Ramadhan Chettiar v. State of Madras A.I.R.1958 Mad. 104 In another set of cases it was held that where relief isclaimed before the Court on the plea that a grant of land was of an estate, orthat it was not of an estate, and the evidence is inconclusive, the person whohas approached the Court for relief must fail: see the judgment of Krishna RaoJ., in Nelluru Sundararama Reddy v. State of Andhra Pradesh I.L.R. (1959) A.P 337Varada Bhavanarayana Rao v. State of Andhra Pradesh : 2SCR501 ; and Addanki Thiruvenkata Thata Desikacharyulu Ayyavarlamgaru v. TheState of Andhra Pradesh and Ors. : AIR1964SC807 In the third set ofcases it was held that the Explanation raises a presumption where a grant isexpressed to be of a named village, that the area which formed thesubject-matter of the grant shall be deemed to be an estate, and it is for theparty 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 inamsnot comprised in th6 grant were created contemporaneously with or subsequent tothe grant of the village by the original grantor : see Janakiramarafu v.Appala-swami I.L.R. (1954) Mad. 980. Nelluru Sundarama Reddy v. State ofAndhra Pradesh I.L.R. (1959) A,P. 339 State of Andhra Pradesh v.Korukonda Bhattam Appalacharyulit I.L.R. (1959) A.P. 687 and SriVaradarajaswamivari Temple v. Sri Krishnappa Govinda and others I.L.R. (1958).Mad. 1023
33. In expressing the first view the non-obstante clause in the Explanationwas read as prescribing the conditions on proof of which the statutorypresumption arises. The Explanation was apparently read as implying that theconditions for the raising of the presumption were that the grant as an inam isexpressed to be of a named village, and that the other lands not included inthe grant were granted before that date on service, or other tenure or reservedfor communal purposes. If this be the true effect, the Explanation had littlepractical utility. The intention of the legislature apparently was to declareright of occupancy of tenants in inam villages, and it would be difficult tobelieve that the legislature intended to place upon the tenants onus of proofwhich in normal cases would be well night impossible to discharge. A largemajority of the inams are ancient and the records bearing on the commencement,extent and nature of the grant would invariably be in the possession of theinamdars. To expect that tenants who are generally iliiterate, and who came tooccupy the lands not infrequently many years after the original grant, would beable to lead evidence on matters principally within the knowledge of theinamdars, and information whereof the inamdars would be interested inwithholding, would be to attribute to the legislature gross ignorance of localconditions. In terms the presumption arises on proof that the grant is an inamexpressed to be of a named village, and it arises even if it appears that therehave been other minor inams granted for service or other tenure or have beenreserved for communal purposes. The non-obstante clause in the Explanation, inour judgment, does not prescribe a condition for the raising of thepresumption. The presumption arises only when it is proved that the grant isexpressed to be of a named village, and the burden of proving that the grant isso expressed must lie upon the party who claims to bring the grant within theexception, but once it is proved that the grant is expressed to be of a namedvillage, raising of the presumption will not depend upon proof that certainlands in the village were granted on service or other tenure, or were reservedfor communal purposes before the grant of the village.
34. In expressing in the cases of Rama Rao A.I.R. 1957 A.P. 63 andRamadhan Chettiar A.I.R. 1958 Mad. 104 the view that the burden lay upon thetenants to prove that the grant was of an estate, it was assumed by the MadrasHigh Court that this court had rendered a Considered decision in the District Boardof Tanjore's case : AIR1953SC446 that the onus of proving that a grantof land is a grant of an estate lies upon the tenant. But it appears that nosuch decision was given by the court in that case. In District Board ofTanjore's case the defendant who had taken a lease for three years of a pieceof land belonging to the 'District Board claimed that he had acquiredpermanent occupancy right under s. 6 of the Madras Estates Land Act, becauseafter the expiry of the period of the lease that Board had not resumedpossession. It was the Board's case that after expiry of the period of thelease, the Board had taken possession of the land and had brought it undercultivation. The Subordinate Judge held that the land did not constitute anestate within the meaning of s. 3(2)(d). The High Court disagreed with thatview. In appeal to this Court Mahajan, J., on a review of the evidence opinedthat the grant was not of a named village, the grant being in terms of areasand not of a named village, and that there were two grants neither of whichcould be called a grant of a village. Chandrashekhara Aiya, J observed thatthere were two personal grants under one Parvangi to two different persons, andit could not be said that there was a grant of a whole village or of a namedvillage, smaller areas having been carved out therefrom prior to the date ofthe grant on service of other tenure, and the remaining part still beingrecognised and treated as a revenue unit with a nomenclature of its own. It isabundantly clear that the court decided the case on evidence and did not placereliance on the onus of proof. It is true that Mahajan J, in his judgment hasrecorded that :
'It was concededby........................ the learned counsel for the respondent that the burdenof proving that certain lands constitute an Estate is upon the party who setsup the contention. :
and Chandrashekhara Aiyar, J.observed that :
'A Small area of 5 acres and40 cents was granted under the same grant in favour of Chinna Appu Moopan. Ifthis conclusion is correct - and nothing satisfactory has been urged on theside of the respondents why such an inference is not open on the entries foundin the Inam Register, the 1st respondent should fail, as the burden is on himto establish that what was originally granted was in estate.
35. But these observations are not susceptible of the meaning that when itis proved that an a inam is expressed to be of a named village, the presumptionunder Explanation  does not arise. Both the learned Judges were of the viewthat there was no grant which could be regarded as a grant of a whole villageor a named village, and on that view the true effect of the Explanation did notfall to be determined. The concession before the Court by counsel was only thatwhen a person alleged that certain land was an estate, the burden of provingthat case lay upon him.
36. The second view minimizes the operation of the statutory presumptionwhich is expressly enacted by the legislature to arise on proof that the grantis of a named village. In terms the Explanation provides that the grant of anarea as a named village shall be deemed to be a grant of an estate. If theclause prescribes the condition on which the presumption arises, the onus wouldbe discharged by the presumption on proof that the grant was of named village.Adoption of the second view is likely to give rise to some anomalous situationsof which the present set of cases is a good illustration. For instance, if theinamdars as well as the tenant sue for relief in respect of their respectivecases, the application of this rule would require the Court to adopt thesomewhat unusual course of dismissing the cross actions, when evidence does notjustify a positive inference in favour of either party.
37. In Varada Bhavanarayana Rao v. State of Andhra Pradesh and Others : 2SCR501 , this court expressed its preference for the secondview. That was a case in which the appellant held a major part of certainvillages covered by five inam grants. The Inam Commissioner had granted freshinam title deeds in confirmation of the original grants. The Special Officerappointed 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 freshinams were Estates within s. 3 [d] of the Madras Estates Land Act, 1908, andrecommended fair and equitable rates of rent for the ryoti lands in thisestate. Subsequently the Government of Madras by a notification in the Gazettefixed rates of rent in accordance with this recommendation. The inamdarinstituted an action in the Civil Court for a declaration that the grant wasnot of an estate within the meaning of s. 3  [d] of the Madras Estates LandAct. The Trial Court upheld the contention, but the High Court in appealreversed that decision. In appeal to the Supreme Court it was contended thatthere were no materials on the record to prove that the original grant was of awhole village or of a village by name, and as the State had failed to dischargethe burden of proving that the land constituted an estate, the action must bedecreed. This Court held that the grant which was later confirmed by the titledeed was of a named village, but on proof merely that the inam grant was of anamed village, a presumption did not arise that it formed an estate, for thelegislature had not created any special presumption either way. The question ofthe onus of proof it was said had to be adjudged in the light of Sections 101, 102and 103 of the Evidence Act, and applying that principle if the plaintifffailed to prove his claim that land was not an estate, the appeal should standdismissed. The Court in that case regarded the judgment in the District Boardof Tanjore'a case : AIR1953SC446 as not decisive of the question, andproceeded to hold on two grounds that the legislature had not provided forraising a presumption either way. First, that the 'language used inExplanation (1) indicated that the conclusion that the area was an'estate' can be drawn even where the whole of the village was notincluded in the grant, only if .if appeared that the portion not included hadalready been gifted and was therefore lost to the tenure,' and the otherthat when adding the Explanation in 1945, die Legislature did not think fit tomake any change in s. 23 of the Act.
38. But as already observed the language used by the Legislature in enactingExplanation  to s. 3 [d] expressly directs a presumption to be raised.That presumption arises when it is proved that a grant as an inam is expressedto be of a named village, the area which forms the subject matter of the grantshall be deemed to be an estate. Raising of the presumption is not subject toany other conditions. The legislature has by the non-obstante clause affirmedthat such presumption shall be raised even if it appears that in the grant arenot included certain lands in the village which have before the grant of thenamed village been granted on service or other tenure or have been reserved forcommunal purposes. The presumption, it is true, is not a conclusivepresumption; it is a presumption of law, and is rebuttable. It may be rebuttedby proof of other facts, but not the facts mentioned in the Non-obstanteclause.
39. Section 23 was added by s. 5 of the Madras Estates Land [ThirdAmendment] Act 18 of 1936. It reads:
'Where in any suit or proceeding it becomesnecessary to determine whether an inam village or a separated part of an inamvillage was or was not an estate within the meaning of this act as it stoodbefore the commencement of the Madras Estate Land [Third Amendment] Act, 1936,it shall be presumed, until the contrary is shown, that such village or partwas an estate.'
40. The presumption under s. 23 in terms applies only to cases in which thequestion whether an inam village was an estate before the commencement of theMadras Estate Land [Third Amendment] Act, 1936. Under the Act, before it wasamended in 1936, a grant of a village could be deemed a grant of an estatewhere only melvaram was granted to the inamdar and not where both the melvaramand the kudivaram were granted. By enacting s. 23 the Legislature intended todeclare that in determining whether under a grant of an inam village bothVarmas were granted or only the melvaram was grand, it shall be presumed, untilthe contrary was shown, that such village or part thereof was in estate, thatis, only the melvaram was granted. Under a the Act before its amendment, one ofthe conditions of applicability of s. 3  [d] was that the grant in favour ofthe inamdar was only of the melvaram, and that it did not include thekudivaram, and the legislature by s. 23 as amended provided that in disputearising between the landlord and tenant whether an inam village was or was notan estate, it was to be presumed that it was only of the melvaram. Enactment ofthis section was apparently found desirable because of certain decisions of theJudicial Committee. In Suryanarayana v. Patanna L.R. 45. IndAp 209 andUpadrashta Venkata Sastrulu v. Divi Seetharamudu and others L.R. 46 IndAp123, the Judicial Committee expressed the view that where there was noevidence of the terms of an ancient grant, there was no presumption that it wasof melvaram alone. The Madras High Court in Muthu Goudan v. Perumal IyenI.L.R. 44 Mad. 538 held that the ground on which the decisions of theJudicial Committee proceeded, though it was not necessary for the purpose ofthose cases to so 'decide, a presumption that the grant was of both the varamswas deducible. The Judicial Committee overruled this decision in ChidambaraSivaprakasa Pandora Sannadhigal v. Veerma Reddi L.R. 49 IndAp 286, and heldthat in each case the question was one of fact to be determined on theevidence. The legislature then intervened and enacted the presumptionapplicable only to cases arising under the un-amended Act. Undoubtedly in casesarising under amended Act, the conditions on which the presumption will ariseare prescribed in the Explanation (1). The language used by the Legislature inthe amended s. 23 clearly shows that the section was no* intended to deal withcases 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 Clause(d) as recast by Act 18 of 1936 would have been wholly out of place. There weretwo presumptions which applied to different situations. In cases which arosebefore the Amending Act of 1936 the presumption under s. 23 applied : in caseswhich arose since the amendment of 1936 the presumption prescribed by theExplanation (1) applied. This is so, because the Explanation though enacted byAct 2 of 1945 has been brought into force since the date on which the amendingAct of 1936 became operative. In our view the following passage from thedecision of ten-Madras High Court in Mantravadi Bhavanarayana and another v.Merugu Venkatadu and others I.L.R. (1954) Mad. 116 correctly interprets s.3(2)(d):
41. In our view the following passage from the decision of the Madras HighCourt in Mantravadi Bhavanarayana and another v. Merugu Venkatadu and otherscorrectly interprets s. 3  [d] :
'It is now settled law that by reason of theamendment made in 1945, which added an explanation to section 3  [d] of theMadras Estates Land Act and numbered it as explanation 1, a grant constitutesan estate if it is expressed to be a named village irrespective of the factthat some of the lands in the village had already been granted on inam orservice grants, or were reserved for communal purposes.'
42. We do not deem it necessary to decide whether the suit for a meredeclaration that the tenants were not occupancy tenants at the instance of theshrotriemdars, after determining the tenancy of some of the tenants wasmaintainable. The High Court has dismissed the suit against defendants 1 to 10who were served with notices to quit, but against whom the shrotriemdars didnot claim a decree for possession. There is no appeal by the shrotriemdarsbefore 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.
43. In Appeal No. 342 of 1961 the decision recorded by us on the principalquestion does not put an end to the litigation. The dispute arose between tworival claimants to the rights of occupancy of land. The respondent in thisappeal claims that he is a transferee of the original tenant, and the appellantclaims to have acquired the rights of occupancy from the shrotriemdar. In suitNo. 93 of 1947. Four substantive issues were raised, and the issues arediscussed in paragraphs 106 to 120 of the judgment of the Trial Judge. The HighCourt did not separately deal with those issues, but decided Appeal No. 789 of1950 on the view of the law which it declared in the principal appeal. We havedisagreed with the High Court for reasons already set out and the other issueswhich have not been tried by the High Court have now to be tried.
44. 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 theTrial Court restored with costs throughout. In Civil Appeal No. 343 of 1961also the decree passed by the High Court will be set aside and the suit decreedwith costs throughout. There will be one hearing fee in this courts.
45. In Civil Appeal No. 342 of 1961 arising out a Appeal No. 789 of 1950from suit No. 93 of 1947, the appeal will be remanded to the High Court with adirection that the questions which remain to be determined will be decidedaccording to law. No order as to costs in Appeal No. 342 of 1961.
46. C. A. Nos. 341 allowed. C. A. No. 342 remanded.