1. Three plaintiffs filed four suits against their tenants, O.S. Nos. 330, 336 and 346 of 1940 on the file of the District Munsiff's Court of Bhimavaram for the eviction of their tenants from their lands, and O.S. No. 25 of 1941 for the recovery of rent. The tenants pleaded that they had occupancy rights in their lands, and that the suits were not therefore maintainable in a Civil Court. The District Munsiff overruled the objections and decreed the suits as prayed for. The tenants appealed against all these decrees. The only point agitated in these appeals is whether the village of Vakapalli, in which the suit lands are situated, is an estate within the meaning of Section 3(2) of the Madras Estates Land Act. The learned Subordinate Judge found that it was and that therefore the suits were not maintainable in Civil Courts. He allowed the appeals and returned the plaints for presentation in a Revenue Court.
2. A common issue to O.S. Nos. 330, 336 and 346 of 1940 was : ' Whether the suit land is a Home Farm land as contended by plaintiff? ' The learned District Munsiff found it unnecessary to decide that question in view of his finding that these lands did not form part of an estate. This question was not considered by the learned Subordinate Judge in appeal ; and it is argued that a finding should be given on that point, even if this Court is disposed to agree with the learned Subordinate Judge on the points decided by him, and that the appeal should be remanded for fresh disposal upon consideration of the question whether the lands were private lands and therefore excluded from the mischief of the Madras Estates Land Act. The learned Subordinate Judge has distinctly stated in paragraph 4 of his judgment that the only point urged before him in the appeals was that the village of Vakapalli was an estate within the meaning of Section 3(2) of the Madras Estates Land Act. It is therefore clear that the plaintiffs did not urge in appeal that, whatever the decision of the learned Subordinate Judge might be on the above question, the lands in question were private lands and that therefore the plaintiffs were entitled to a decree in any case. In view of the fact that this point was not argued by the plaintiffs in the Court below, we are not disposed to allow them to take it in second appeal. Incidentally, that point has not been raised in the grounds of appeal to this Court.
The only question we have to consider, therefore, is that discussed by the learned Subordinate Judge : ' Whether the village of Vakapalli is an estate within the meaning of Section 3(2).' The learned advocate for the respondent has confined his arguments to the question whether it is an estate within the meaning of Section 3(2)(e). If we find that it is an estate within the meaning of that Sub-section, it would be unnecessary for him to argue whether it is an estate by virtue of the provisions of Section 3(2)(d).
3. In order to prove that the mokhasa of which the suit lands formed a part, is an estate within the meaning of Section 3(a)(e), it is necessary for the defendants to prove, (1) that it consisted of one or more villages of an estate, and (2) that the mokhasa was held on a permanent under-tenure.
4. In 1913, the Government enfranchised certain minor inams in the village of Vakapalli as being pre-settlement inams ; and it is argued that if they were pre-settlement inams they would have been excluded in the original grant of the village. It would however be unsafe to accept the order of the Government in 1913 as conclusive proof of the facts assumed by them. We are unable to say from an examination of the documents whether the minor inams within the village of Vakapalli were granted subsequent to the grant of the mokhasa by the zamindar or prior to it. We have therefore to assume, since the burden is on the defendants to show that the jurisdiction of the Civil Court has been ousted, that the grant of the mokhasa was subsequent to the creation of the minor inams. The terms ' whole inam village ', ' whole village ' and 'a village ' have a recognised meaning as referring to the grant of a village in contradistinction to the grant of a minor inam. These words have therefore acquired a technical meaning and are not to be construed narrowly according to their strict etymological meaning. An argument for the narrower meaning was put forward in Narayanaswami Naidu v. Subramaniam (1915) 29 M.L.J. 478 : I.L.R. Mad. 683 where the question was whether under Section 3(2)(d) before the section was amended by the Act of 1936, there could be a grant of a whole inam village if some minor inams had separately been granted. The learned Judges made the following remarks, with which we are in complete agreement:
The definition in Sub-section (2), Clause (d) was obviously intendedto exclude from the defini tion of 'estate' what are known as minor inams, namely, particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries. The latter are know 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, shrotriam and mokhasa villages will be excluded. This certainly cannot have been the intention of the Legislature.
In Lakshmi Narasimham v. Veerabadrudu (1923) 19 L.W. 671 which dealt with a village claimed to be an estate by virtue of Section 3(2)(e), the village consisted of 1781-85 acres, 542.54 acres being poromboke and 50.91 acres minor inams. The learned judges did not discuss the question whether the grant was nevertheless of a whole village ; but in their great experience they assumed that the fact that pre-existing minor inams and porombokes were not granted did not preclude the application of Section 3(2)(e) to the village in question and so held that the land granted formed an estate.
5. It is however argued that recent decisions after the amendment of 1936 of Section 3(2)(d) have changed the law on the subject. The present Sub-section 3(2)(d) refers to an inam village. It was argued in Ademma v. Satyadhyana Thirthq Swamivaru : AIR1943Mad187 that unless every bit of land in the village was included within the grant, the grant could not be of an inam and the land granted could not have formed an estate. In the judgment of the Court, Narayanaswami Naidu v. Subramaniam (1915) 29 M.L.J. 478 : I.L.R. Mad. 683 and Lakshmi Narasimham v. Veerabadrudu (1923) 19 L.W. 671 were not referred to, and the decision was based on an analysis of the evidence and the admission of the learned advocate for the tenants that unless the grant was of the whole of the village it was not an estate. In the cases which followed this decision, there was equally no discussion of Narayana-swami Naidu v. Subramaniam (1915) 29 M.L.J. 478 : I.L.R. Mad. 683 or of Lakshmi Narasimham v. Veerabadrudu (1923) 19 L.W. 671. Mr. Subba Rao, however, analysed Ademma v. Satyadhyana Thirtha Swamivaru : AIR1943Mad187 and the cases which followed it and has satisfied us that they can be distinguished from the present case. In Ademma v. Satyadhyana Thirtha Swamivaru : AIR1943Mad187 , the grant purported to be of 128 acres, excluding 15.10 acres of private land and 5.4 acres of minor inams ; and the learned Judges held that the grant was specifically only of 128 acres and did not purport to be the grant of the village. In Suri Reddi v. Agnihotrudu : AIR1943Mad764 , the learned Judges held that there was no indication that the whole village was granted ; and they referred to the word 'kandrika,' which meant a part of the village. In Venkanna v. Lakshmipathi Raju : (1946)1MLJ300 , the learned Judges found on examining the evidence that there was a subsequent grant of a part of the same village ; and they therefore held that the first grant could not have been of the whole village or it would not have been possible to make the subsequent grant. Even if these decisions had said much more expressly than they have that the grant of a village from which minor inams were excluded was not a grant of the whole village within the meaning of Section 3(2)(d) as amended in 1936, we should still be of opinion that as far as the interpretation of Section 3(2)(e) was concerned, there was no difference of judicial opinion. The distinction between a whole inam village and a minor inam had always been clearly borne in mind in the decisions under this sub-section ; and it has never been held that merely because the grant did not include minor inams it could not have been of the whole village. In the last of these cases, Seshagiri Rao v. Ramayya : AIR1945Mad503 , dealing with a mokhasa in the same zamindari of Nuzvid, Chandrasekhara Aiyar, J., held that the grant was of an estate, because it included the whole village except for a few minor inams and porombokes.
6. The defendants have also to prove, if they are to succeed in their contention that the grant was of an estate within the meaning of Section 3(2)(e) of the Estates Land Act, that the mokhasa was held on a permanent under-tenure. It is conceded by Mr. Satyanarayana Rao for the appellants that the test whether it is held on a permanent under-tenure or not is whether the mokhasa forms a part of the assets of the zamindari. If it does, then that is proof that the mokhasa is held on a permanent under-tenure. If, however, it does not form a part of the assets of the zamindari, then it is not held on a permanent under-tenure. This question largely depends upon another question ; whether the suit grant was of a mokhasa in the strict sense of that word. A mokhasa is defined by Wilson as:
A village or land assigned to an individual either rent free or at a low rent, on condition of service....
It is pointed out at page 237 of S. Sundararaja Aiyangar's ' Land Tenures in the Madras Presidency ' relying on Sri Rajah Sobhanadri Apparao Bahadur v. Sri Rajah Venkatanarasimha Apparao Bahadur I.L.R.(1902) Mad. 403:
that mokhasa was a well-known term in the Northern Sircars and that the term itself implied that it was a tenure subject to service. It took this form when it was granted to servants and military chiefs in lieu of pay ; sometimes it was granted to men of high position and influence, whose tenure was of a honorary or almost nominal nature. In some cases, when it was granted to relations of zamindars, no service is specified in the grant, though it is expressed to be for service. In these latter cases they partake of the nature of personal grants.
It is therefore seen that a mokhasa may be either a service grant or a personal grant. It is argued that in the case with which we are dealing, there is no proof of the real reason why the village was granted, and so it is not safe to conclude that it was a real mokhasa grant. Since, however, the word 'mokhasa' has a recognised meaning in the Masulipatam division of the Kistna district as a grant for service rendered and we have no reason for thinking that it was not a mokhasa in the ordinarily accepted sense in that part of the country, it is reasonable to assume that it was. In Lakshmi Narasimham v. Veerabadrudu (1923) 19 L.W. 671 the learned Judges, after careful consideration of the reports of Mr. Taylor, the Inam Commissioner in 1860, to the Board of Revenue and to the orders passed thereon, have extracted the 'following passage from this report:
It was necessary to devote the most careful scrutiny to the above references, as the original nature of those Mokhasas and the circumstance of their being included in the assets of the zamindaries had not been generally understood. The villages of the Zamindari estates are distinguished on the back of the permanent kaul as seri (i.e., under the direct management of the zamindar) Mokhasas and Agraharams. But this distinction affords no ground for classing the Mokhasas with the Lakhiraj lands excluded by the Sannad, whilst a different conclusion is fully established by the accounts upon which the permanent settlement was based and which ought to explain the terms of the kaul. Should the Government concur in the justice of these observations, I submit we possess no reversionary interest in the Mokhasas, nor can we claim to derive a quit rent by their enfranchisement.
The learned Judges went on to say:
It is now clear that these Mokhasas were not excluded from the Zamindari, at the time of the 'Permanent Settlement and that they were treated as part of the Zamindari. They are therefore part of an 'estate ' within the meaning of the Estates Land Act and Civil Courts have no jurisdiction.
In Veeraswami v. Seetharama Kantayya : (1926)51MLJ394 , the learned Judges also relied upon the report of My. Taylor, the Inam Commissioner, and held that the Mokhasas in the Masulipatam Sub-Division of Kistna District were included within the assets of the Zamindari and that therefore they were held on a permanent under-tenure. We are satisfied that the constant description of this village as a mokhasa village in all the documents from 1850 onwards is a sufficient proof that this village is a real Mokhasa and that it was treated by the Government in the same way as the other Mokhasas of Nuzvid. Mr. Subba Rao has filed a petition seeking permission to adduce as proof that this Mokhasa formed part of the estate of the Zamindari of Nuzvid, a Sanad of 1802 of the estate of the zamindari filed in another proceeding in this Court. For reasons given separately, we have admitted that document. It clearly shows--as we should have held even without it--that the village of Vakapalli is one of the Mokhasas of the Nuzvid zamindar.
7. For the above reasons, we agree with the learned Subordinate Judge that the defendants have succeeded in proving that the Vakapalli Mokhasa is an estate and that the suits should therefore have been filed in the Revenue Court.
8. The appeals are dismissed with costs, three sets.