1. This suit was brought by the purchaser of the proprietary interest in Pedamamidipalli, a whole village in Elamanchili Zamindari Estate, to eject the defendants who are tenants holding plaint items 1 to 16 which were once part of a darimilla inam, or failing the relief of ejectment, to declare the plaintiff's right to impose full rates of rent on the lands, and to give the plaintiff a decree for recovery of rent at nine bags of grain per acre for three years. The suit lands were granted about 1819 to the defendants' ancestors for rendering karnam service. In 1910, Government purported to enfranchise these lands and the plaintiff filed a suit, O.S. No. 16 of 1911, for setting aside the enfranchisement and for a declaration that the right of resumption rested with him and not with Government. In this suit he was finally successful in the High Court. The present suit is for ejectment of the defendants. The lower Court gave the plaintiff a decree for possession with mesne profits. Defendants 4 to 8, 21 to 34 and 19 appeal.
2. The facts of this case resemble those of Idubilly Siyyaddi v. Sri Rajah Viswaswara Nissanka (1915) 18 MLT 142 with this difference, that there was an admission in that case that prior to the inam grant, the lands were ordinary jeroyati lands, whereas here the question whether the original grant was a grant of land to be held on a favourable rate of rent or a grant of a part of the melvaram, or landlord's share, depends upon the evidence. Beyond the oral evidence of one witness on each side, which is inconclusive, the evidence is entirely documentary. Each side has attempted to draw an inference in their favour from certain ancient documents called yadasts, ghoshparas and bubands marked as Exs. C series. Ex. C-3 is the yadast for fasli 1229 corresponding to the year 1819. This shows an increase of four putties in the total cultivated area of the village. It also shows for the first time the existence of 112 putties of service inam. For the appellant, Mr. Krishnaswami Aiyar argued that a smaller standard of measurement must have been adopted in measuring the lands for this year, and in proof of this theory, he pointed to the excess in the area of village sites, lakes, channels, etc., which are items not likely to be liable to sudden increases. On the other hand, the respondent relies on this document to show that the service inams must have been granted out of land that had been previously lying waste. It is difficult to say which is the right assumption to be made. On the other hand Ex. C-1, the account of cultivation in fasli 1210, shows that the family of Bollapragada Kondraju, who was the defendants' ancestor, possessed two putties of jeroyati land in addition to one-fourth dumbala inam. The Subordinate Judge is in error in his observation that these accounts do not show that Kondraju was cultivating any land in Pedamamidipalli as jeroyati land before the grant.
3. In this state of the evidence, it is argued for the respondent that recent decisions of the Privy Council and of this Court have unsettled the principles upon which Idubilly Siyyaddi v. Sri Rajah Viswaswara Nissanka (1915) 18 MLT 142. and Gajapathi Maharaju Garu v. Sondi Prahlada Bissoyi Ratno (1913) 14 MLT 562 were decided and that now the burden is on the tenant to show that he was granted a right of kudivaram when the inam grant was first made. The most recent decision of the Privy Council is that in P.C. Appeal No. 46 of 1922 in which they say that ' it cannot now be doubted that when a tenant of lands in India sets up a 'defence that he has a right of permanent tenancy in the lands, the onus of proving that he has such right is upon the tenant. ' In Suryanarayana v. Patanna ILR (1918) M 1012 : 1918 36 MLJ 585 the Privy Council laid down that there was no presumption that at the date of the grant of an inam, there were any tenants holding lands with any rights of occupancy by custom or otherwise. It is also true that no permanent right of occupancy arising out of the enactment of Section 6 of the Madras Estates Land Act, Act I of 1908, in favour of holders of ryoti land in an estate can be availed of by holders of service inams, as such lands are expressly excluded by Section 3(16)(c) from the definition of ryoti land so long as the service tenure subsists. Upon resumption of a service inam, if the land is incorporated among the ryoti lands, the person let into possession would acquire an occupancy right by virtue of Section 6. But in the present case with the exception of items 7 and 8, for which the plaintiff says that jeroyati pattas were issued by mistake, there is no admission on the part of the landlord that the lands became ' ryoti' lands when they were dis-annexed from the burden of service. It has, however, been made clear not only in Idubilly Siyyaddi v. Sri Rajah Viswaswara Nissanka (1915) 18 MLT 142 but also in Muthuswami Aiyar v. Nainar Ammal (1917) 7 LW 194 that when a plaintiff seeks to eject a defendant from possession on the ground that the latter is his tenant whose tenancy has been terminated, he. must prove not only that the defendant is his tenant as alleged, if that is denied, but also his right to eject. In order to prove a right to eject, he must necessarily show that the tenancy is a terminable one and has been validly terminated. This onus is unaffected by any defence of permanent rights of occupancy that the defendant may set up but fails to prove. The principle that in a suit for ejectment the plaintiff must first prove his right to eject before the onus is shifted to the defendant to prove that he has a permanent right of occupancy has been recently reaffirmed in Venkatarangayya Appa Rao Bahadur v. Marampudi Bajiraju : (1923)45MLJ238 which was like this a case of a resumption of a service inam.
4. Mr. Ramadoss argued that in the previous suit it was admitted that the land was granted as inam. The suit was between the Zamindar and the Government as to the latter's right to enfranchise and the ryot was only a pro forma defendant. As observed in Gunnaiyan v. Kamakchi Aiyar ILR (1902) M 339. the practice of Government upon enfranchisement is to impose full assessment and not to disturb existing possession. Therefore the use of the word ' land ' in the written statement of the tenant in this suit is inconclusive. In the present case the plaintiff having come into Court with a prayer to be put in possession of lands in defendants' occupation has failed to prove that the defendants are holding those lands upon a tenancy which is terminable and has been determined.
5. The Lower Court was therefore not justified in giving the plaintiff a decree for the first relief asked by him, and the lower Court's decree directing delivery of possession of items I to 16 must therefore be modified. In lieu thereof the plaintiff will have a decree for recovery of the full assessment of the land at the rates to be determined under the seventh issue which the lower Court has left undecided. The appeal is therefore allowed and the suit will be remanded for deciding the seventh issue and giving the plaintiff a decree for rent in accordance with the decision upon the other issues in the case. Costs in this Court to be borne by the respondent. Costs in the lower Court will abide and be provided in the final decree.
Kumaraswami Sastri, J.
6. I agree.