Sadasiva Aiyar, J.
1. These Second Appeals have arisen out of suits brought against the same two defendants. The plaintiffs in these suits are the tenants in a shortriam village called Talambur in the Chingleput Taluq. The plaintiff's case in each suit is that the shrotriam Inam comes under the definition of ' Estate' in the Madras Estates Land Act, and the plaintiff is the occupancy tenant of the lands entered in the A schedule to the plaint and that the plaintiff is entitled to demand from the defendants a pattah containing the terms stated in the 'model' pattah forming the B schedule to each plaint. The defence of the two defendants who are shrotriamdars, is that the plaintiffs have no occupancy rights, that the defendants own both the Melvaram and the Kudivaram rights in the lands in the plaint village, that the village is not an ' estate' under the Madras Estates Land Act, that the provisions of that Act do not apply to the suit lands and that the plaintiffs are not therefore entitled to demand pattahs from the defendants. As regards also the terms to be entered in the pattahs, there was dispute between the plaintiffs and the defendants. The Sub-Collector of Chingleput decided the suits substantially in the plaintiffs' favour, though in respect of the rents to be paid by the plaintiffs, he decided in favour of the defendants' contention, namely, that the plaintiffs were bound to pay waram or share of produce (forty per cent of the produce) as rent and not money rents as contended by the plaintiffs. On appeal, the learned District Judge held that the defendants were not only Shrotriamdars but aiso Mirasidars of the village that while they owned the Melwaram of the village as Shrotriamdars they owned the Kudivaram as Mirasidars, that the plaintiffs had no occupancy right, that the village was not an Estate under Section 3, cl,(d) of the Estates Land Act because the persons to whom the land revenue was granted as Shrotriam Inam by the Government did own the Kudivaram thereof as Mirasidars and that hence the Madras Estates Land Act did not apply to the lands in the village and no suit could be brought under that Act by the tenants to enforce the grant of pattas. On these findings he reversed the Sub-Collector's decisions and dismissed the plaintiffs' suits with costs. The plaintiffs have therefore brought these Second Appeals contending that the village is an 'Estate' under the Madras Estates Land Act and that the plaintiffs have occupancy rights. I think the decision of these cases depends on the answer to the question whether, when the Government granted the Melvaram as Shrotriam Inam to the predecessors-in-title of the six defendants the grantees owned the Kudivaram in the village lands or whether there existed at that time tenants with occupancy rights who owned the Kudivaram in the lands in dispute.
2. These Second Appeals have been fully and ably argued by the learned vakils on both sides and we have been taken through not only the documentary evidence adduced by both parties, but even through much of the oral evidence. The Melvaram of the village seems to have been first granted as Poliagar service Inam by a former Government, probably the Nawab of Arcot, in the 17th century to a person whose family was known as Pothi Reddi family. The evidence further seems to show that Pothi Reddi Nayakan who became the poliagar was known as the Ekabogam Mirasidar of the village and hence must have owned at one time the Kudivaram right in all the village lands.
3. Now the Mirasi system in the Chingleput District began, according to the traditional authorities, by the act of a Chola king named Kulothunga, whose illegitimate son Adanda conquered the country round Canchipuram. The date of this conquest is variously given as between the eighth and twelfth centuries. The grantees of lands under the Chola king in Mirasi right were all Vellalas. It was intended that they should bring the lands in the villages which were mostly of poor quality under cultivation through their own exertions or through the exertions of Payakaris who were to be settled by the Mirasidars, known in the Hindu Period as Kaniakshikar. The Mirasidar was not expected himself to cultivate the entire area of cultivable lands in the village. The Payakaris whom he introduced for cultivation purposes, if they permanently settled in the village and if they and their descendants enjoyed the same lands as tenants for about 100 years, became by custom and by Hindu Law, Ullkudi Payakaris with permanent rights of occupancy, that is, they acquired what may be called in one sense the Kudivaram right in the lands in their holding. Though they thus ac quired permanent occupancy rights, the original Mirasidar who had obtained,the Kudivaram from the Government was entitled to demand from the Ullkudi Kudivaramdar some Swatantrams including what was called Thunduvaram, the amount of which swathantrams was a certain proportion of the gross produce raised by the Ullkudi tenant. These swathantrams might be looked upon as a fraction of the fruits of the Kudivaram right, which fraction can never be lost by the Mirasidar. Forty per cent, being the Melvaram share and sixty per cent, the Kudivaram share, the Ullkudi Kudivaramdar did not take the whole sixty per cent for himself but gave out of it a percentage as swathantrams to the Mirasidar even after he, the Ullkudi, had obtained the permanent occupancy right in the lands. The above is the conclusion which I have arrived at after anxious consideration of the arguments on both sides and after perusal of the passages in Huddle-stone's papers on Mirasi rights and Crole's Chingleput District Manual and other authorities. (See Huddlestone' Mirasi papers, pages 176, 214, 372, 379 to 384, 395 and 45; Chingleput District Manual, pages 110,138, 312, 213, 300 to 193, 394 and 395).
4. Though the Ullkudi Payakari tenant seems to have obtained a sort of permanent right of occupancy by continual residence in the village and by cultivation of the same lands for three generations, it appears very doubtful whether he could be held to have acquired in former times what is now known as the Kudivaram rights in the lands in his occupation. At page 214 of Mr. Huddlestone's Mirasi papers it is said ' the Ullkudi, on the contrary, holds his lands in a subordinate species of Mirasi and possesses in them no absolute but indefinite property; for, though he cannot transfer them by sale, gift, mortgage or otherwise, yet he cannot be removed from them and they descend like the Kaniyakshi Mirasi of the village to his posterity; he pays the Sirkar Revenue, the Thunduvaram--often no more than a pepper corn--and all dues rendered by the Mirasidars and Puracudis, but he receives none. The Ullkudi Payakaris have, in many places, by gradual encroachment, succeeded in placing themselves in possession of the whole varapat of the village and not infrequently in usurping the Mirasi right: there is a remarkable instance within the limits of Madras of complete usurpation, in which the Gramini Payakaris of the village of Tondiyarpet, after the continued contention of half a century have established themselves in possession of whole Mirasi, though under a decision of the Supreme Court their right has been negatived and 'they are liable to ejectment, on further process.' The question of Mirasi right is a very contested matter. I shall just quote a few passages from Crole's Chingleput District Manual, page 214. ' The question of Mirasi right is without doubt one of considerable difficulty. No proof of this is more conclusive than diametrically opposite opinions regarding it which have been ventilated and upheld by officers of vast ability from the very commencement of our administration. The Madras Government has itself at various times passed orders containing dicta utterly irreconcilable, one with the other, while the Board of Revenue although on the whole more consistently supporting the claims of Mirasidars (Kaniyatchikars) has in hardly any single instance been at one with the Government in the many discussions on this question which have now attained such bulk as to supply Mirasi right with a literature of its own equaled in point of ability and learning by that of few of the many other great and intricate subjects which have from time to time engaged the attention of Indian Administrators.' In going over the bulky reports, proceedings minutes of consultation, and ' orders thereon' not to mention the despatches of the East India Company, nothing strikes the reader more strongly than the change which has come over the nature of the right itself ever since the District was first handed over to the Company. During that period, many portions of the right at one time inherent in it have disappeared owing to the changes produced by flux of time and the altered conditions of the country, while others have been expressly abrogated by Government itself yet this seems generally to have been overlooked and additional perplexity has been thus imported into the discussions of a subject already sufficiently intricate and obscure.'
5. The literature on this subject was recently added to by the pronouncement of my learned brother, Sir C. Sankaran Nair J., in Second Appeal No. 210 of 1911. I also contributed my humble quota in that case by a separate Judgment. By our judgments we have referred the question to a Full Bench and I therefore do not intend to say anything in this case as to the present right of Mirasidars in Ryotwari villages.
6. What however, we have to consider in this case is, whether in 1802, the Ekabogam Mirasidar of the plaint village in the Chingleput Taluk owned the Kudivaram right or whether there were Ullkudi Payakaris then, who could be deemed to have acquired the full Kudivaram rights of that time. I must frankly confess that I was at first rather inclined to hold that the Wullur Sukawasi tenants mentioned in the varachattam of 1772, Ex. LV, might have acquired full Kudivaram rights in 1772 itself and that in any event, they might be presumed to have acquired full Kudivaram right at the time of the Shrotriam grant in 1802. However, after I had recorded a portion of this Judgment I had the great advantage of a perusal of the Judgment prepared in this case by my learned brother and I began to feel doubts about the soundness of my view. It seems to me now that a person cannot be held to own the Kudivaram right in its true and complete sense unless he has also got the power of alienation of his right of occupancy and unless he does not acknowledge himself to be merely the tenant of a person really owning the Kudivaram right. The documentary evidence in this case seems to show that even for several years after 1802 the occupancy tenants of the lands in this village did not claim rights of alienation of their occupancy tenure and that he acknowledged the Shrotriamdar as Ekabogam Mirasidar, that is, that he was the owner of the Kudivaram right in the lands in the village. That even the sub-tenant of a Kudivaram owner might acquire a permanent occupancy right in his sub-tenure has been held by Benson and Sundara Aiyar, JJ., in Venkatachala Goundan v. Rangarainam Aiyar : (1913)24MLJ571 . If it were necessary to decide the question in this case as to whether the plaintiffs have now obtained permanent rights of occupancy in their lands, I would, speak king for myself, feel great difficulty in concurring with the learned District Judge (see paragraph 6 of his Judgment) that the plaintiffs have no occupancy rights having regard to the considered observations in 24 M.L.J. 571. But the only question on which it is necessary to express a finding in this case is, as I said before, whether in 1802 the grantee of the Shrotriam Inam had lost the Mirasi rights by the ullkudi tenants having set up in themselves and enjoyed the Kudivaram permanent occupancy rights, in the full sense, for the required period. As regards inamdars, I think or rather, I hope, that in this Court it has been now settled that the presumption is that at the time of the Inam grant, the inamdar was not the owner of the Kudivaram right notwithstanding the observations in Indety China Nagadu v. Potu Konchi Venltatasubbayya (1910) M.W.N. 639 and Marapu Tharalu v. Telukula Neelakanta Behara I.L.R. (1907) M. 502 from which I have expressed dissent in my Judgment in the recent cases, Suryanarayana v. Potanna (1913) 26 M.L.J. 99. But as regards a Mirasidar to whom an Inam was granted long ago, it cannot be said that there is a presumption against his having also owned the Kudivaram right at the time of such an ancient grant having regard to the history of the Mirasi tenure in the Chingleput District. Whether a Mirasidar in the modern period, that is after 1878, has the Kudivaram right in the waste lands in his village not included in his patta or in the communal sites, is another question. But whether he should be presumed to have lost his Kudivaram right in cultivable lands in 1802 is quite a different question. After anxious consideration I am glad to find myself able to concur in the opinion of my learned brother that the finding of fact by the learned District Judge, limited to the following statement, namely, that the Ekabogam Mirasidar of the plaint village had not lost his original kudivaram rights in the village cultivable lands at the time of the grant to him in 1802 of the Shrotriam Inam, should not be disturbed by us in second appeal.
7. On that finding the Inam does not fall under the definition of an ' Estate' under Section 3, Clause 2(d) of the Madras Estates Land Act and the plaintiffs had no right to bring suits to enforce the grant of pattahs. The right to enforce the grant of pattahs being the right created by a particular statute (Section 55 of the Estates Land Act) to be enforced in a particular class of courts, the civil courts have no jurisdiction to entertain such suits. The second appeals therefore should be dismissed with costs ; but as I said before, it should not be taken by the defendants that these cases have decided the question of the alleged permanent occupancy rights of plaintiffs in their respective holdings.
8. The plaintiff brought this suit in the Court of the Sub-Collector of Chingleput under Section 55 of the Madras Estates Land Act to compel his land-lord to grant him a patta admitting his right of occupancy in the land cultivated by him. The Sub Collector found that the plaintiff: was entitled to such a patta and gave him a decree accordingly. In appeal, the District Judge decided that the plaintiff had not proved that the occupancy right lay with him. The Judgment goes further and finds that the land concerned in this suit is not part of an estate as defined in Section 3 of Act I of 1908 and therefore, that the suit was not maintainable in a Eevenue Court.
9. The village of Talambur in the Chingleput District appears to be held by the defendants on Shrotriam tenure. Exhibit II is the original purwanahor grant, dated 1802. From this it appears that the village was previously held on mokhasa tenure on condition of rendering police services. When the mokhasa was converted into Shrotriam in 1802, the services were dispensed with and a money rent was substituted. Afterwards in 1862 the Shrotriam was enfranchised and the title-deed, which is Ex. IX, was granted to the holders.
10. As the respondents have taken the objection in their written statement that this village is not an estate within the meaning of the Act and as the District Judge has found this point in their favour, it becomes necessary for us to decide, in the first place, whether at the time of the original grant the defendants' ancestors were in the eye of Government, persons already owning the Kudi-varam. Mr. Govindaraghava Aiyar for the respondents has strenuously maintained that in the Chingleput District, Mirasi rights carried with them the right of occupation.
11. In Narayanasami Naidu v. Secretary of State for India (1912) 24 M.L.J. 86. the meaning of ' Shrotriam tenure ' is considered and the definition of Shrotriam in Wilson's Glossary is quoted to show that a Shrotriam grant gives no right over the lands and the grantee cannot interfere with the occupants as long as they pay the established rents.' Properly speaking Shrotriam consists of lands or a village held at favourable rate, the land or the revenue being assigned to a Brahmin, or to servants of the Government as a reward for past services. In Venkata Narasimha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur I.L.R. (1905) Mad. 52 the meaning of the word mohhasa is discussed. The definition given in Wilson's Glossary is quoted to show that it is derived from an Arabic word signifying ' to have as one's own ' and that it means ' a village or land assigned to an individual, either rent-free or at a low quit rent, on condition of service.'
12. The grant of the Shrotriam being a grant by Government of a portion of their Melvaram rights to persona already in occupation of the land, a presumption appears to arise that the persons in occupation were, previously to the grant, owners of Kudivaram right. If they were not Kudivaramdars previously it is difficult to understand on what right they were occupying the village. In this connection Ex. IV is a very important document as it purports to be a varachattam or settling of rent for the year 1772, thirty years before the Shrotriam grant was made under Ex. II and shortly after the British Administration began, which dates from 1760 according to the District Manual, page 229. From Ex. IV it appears that two persons, Pothi Reddy and Venkatakristnama Naicken, who are described as kaniyakshi, were cultivating Kambattam or home farm--land and that the other land in the same village was being cultivated by ryots who are described as Ullur Sukavasis. It also appears that out of the total yield of 100 kalams of grain, the Government took 34 kalams 5 marakals and 4 measures as their Melvaram after making all deductions. An important feature of this document is that Kambattam lands and lands cultivated by Sukavasis are put on the same footing. In Wilson's Glossary, at page 492,' Sukavasi Kudiyan ' is defined as one ' who lives by the produce of the rented lands' Kaniyakshi is the proprietor, from Kani, the Tamil for land, and ' adsi' ' andel ' owner, lord. Kaniyakshi became afterwards known as Mirasidar (see pages 211 and 216 of the Chingleput District Manual). Mirasidars had a right to receive Thunduwaram or short assessment on all produce raised on lands in the occupation of non-Mirasidars (page 220). Thunduvaram is defined at page 265 as the fixed percentage of the Kudivaram which by agreement or custom was due to the Mirasidars on all lands cultivated by Payakaris. At page 223 the opinion of Mr. Place that the Mirasidar had an undoubted hereditary property in the soil which he derived originally from the sovereign is quoted. In the papers on Mirasi right compiled by Government in 1862, Kaniyakshi is described at page 372 as ' free hereditary property in the land.' Mirasi is the name by which it came to beknown, a word of Arabic derivation introduced by the Mahomedans soon after their conquest of the Deccan and denoting hereditary property in general. Mirasi is defined by Mr. Ellis at page 176 as a general term used to designate a variety of rights, all more or less connected with the proprietary possession or usufruct of the soil or of its produce and by Sankarayya in similar terms at page 218. Thundu varam is defined at page 380 as that which remains to the Mirasidars of the rent paid by the payakaris after the liquidation of the land tax. If the Mirasidars failed to cultivate for a year, the Mirasi right was not forfeited to the sirkar, but the Government could select a tenant and confirm him in possession by issuing a cowle (pages 221 and 384). It thus appears that the Mirasidar was the person who got lands cultivated and let tenants into possession. In Sir Thomas Munro's minute, the right of a Mirasidar to cultivate the land is recognised. It is also noted that if he fails to pay the public assessment his land is liable to sale but the Mirasidars possessed the privilege for some years more or less of recovering his land from the tenant let in by the Government on his consenting to pay the rent. The history of Mirasi tenure after the British occupation appears in pages 300 to 303 of the Chingleput District Manual. Their privileges were continually encroached upon but it appears that these encroachments did not commence before the 19th-century. In 1802 when this Shrotriam grant was made, there is thus every reason to presume that the Mirasi right in the defendant was unimpaired. Mr. Baden Powell in his book on the Indian Village Community observes at page 365 that there cannot be the smallest doubt that, if the Mirasi village claims were anything at all, they were claims which originally, at any rate, constituted the holders jointly according to their shares, the proprietors of the villages exactly as much co-sharers were in other parts of India.
13. At page 369 he states: ' The produce, if there is no Mirasi class, is simply divided into the Melwaram, the state share, and the Kudivaram or occupant's share, that is to say, after the fees (Meras) or the village servants, watchmen, etc, etc., have been satisfied out of the grain heaps. When there is a body of Mirasi proprietors, then there are three instead of two to share. Melvaram, as before, is the Royal share ; Thunduvaram is the landlord's, as before. This division of the varam into three portions is well recognised in the judgment of Collins, C.J., and Muthuswami Aiyar J., in Chidambara Pillai v. Thiruvengadathiengar (1896) 7 M.L.J. 1 but the proprietor's share is there called Miras waram instead of Thunduwaram. This Thunduwaram or Mirasi waram being paid by the payakaris to the Kaniyakshdar or Mirasidar out of the Kudivaram raised upon lands leased out for waram and the Mirasidar taking the whole of the Kudivaram for his pannai lands cultivated by his own labour and the labour of farm-servants who were paid wages in grain, it is plain that the Mirasidar of such a whole village cannot be described as a person not owning the Kudivaram in 1802. For the purpose of considering who was the owner of the Kudivaram in a village of the class of the four villages granted as Shrotriam under Exhibit II it is necessary to treat the village as a whole, for the portions of estates or of villages which under Section (3)(2)(b) and (c) are not portions of villages falling under (d) class. In Exhibit V an ancient cadjan without date, Pothi Reddi and Venkatakrishnama Naicken appear as gramathars or villagers, which appears to have been an equivalent to Mirasidars. It is significant that in the chittas (Exhibit XI series) a deduction is made for Thunduvaram not only in the Kambatham lands of the Shrotriamdars in pattas 1 and 2 but also in the fifth patta, which contains lands cultivated by one of the other ryots of the village. It is right to receive Thunduvaram that distinguishes the Mirasi ryots from the other Payakari ryots of the village. It is a symbol of this Kudikani right. It appears to represent an acknowledgment of the cultivator that the Mirasidar has the power to disposal of the lands in the village. Later, in Exhibits A, VI and XVI the village is described as Ekabogam Miras, which means an priginal Miras not divided into several pangus or shares. Unlike the case of some Shrotriams, it is clear that here the original grantees were not Brahmins and that they were cultivating as many village lands as they could by their own labour and the labour of their farm sevants and giving out the rest to payakaris as undertenants. Exhibits IV mentions the quantity of grain that goes to the padiyal: It also mentions that a certain quantity is given to the ryot. The word Kudivaram may be used in two senses (1) the right of occupancy, (2) the share of produce which the cultivator, whoever he may be, actually gets. Here it is used in the latter sense. In Section 3, Clause (2)(d) of the Act it is used in the former sense. There is nothing to show that this Kudi or ryot had the right of Kudivaram or Kudikani of the village. In fact, the respondents have not attempted to show how the tenants came into possession of their lands. It is possible and even probable that they have since acquired occupancy rights ; but in 1802 I consider that the probabilities were that the Mirasidar had the Kudivaram right. The pattas show that the Mirasidars were cultivating part of the village as Kambattam and the rest through Sukavasis. The fact that the Sukavasis were termed Ullur Sukavasis means that they were residents in the village as distinguished from Purakudis brought from other villages. (See page 212, Chingleput District Manual). In Chidambara Pillai v. Thiruvengadathaiengar (1896) 7 M.L.J 1, the Mirasidar was recognised as having a title to the Mirasi waram as distinguished from Melvaram or Government share of the produce, and it is observed by Muthuswami Aiyar J., 'Ordinarily the Mirasidar or proprietor in taraf village has the right of cultivation also and he is therefore at liberty to arrange for it from time to time either by granting leases or letting it to parakudis for warm or under what is usually called pannai system by means of labourers who are paid wages in grain. ' This must be regarded as an authority on the customary rights of the Mirasidar class even in a non-taraf village when the Mirasidar has come to hold the whole village by virtue of a grant, in addition to his original Miras. In Venkatachala Goundan v. Rangaratnam : (1913)24MLJ571 which follows the decision in Veerana Ambalam Peria Kampalam Ambalam v. Annaswami Aiyer (1911) 24 M.L.J. 845 and also in Krishnasami v. Varadaraja I.L.R. (1880) M. 345 occupancy right was found to exist in the tenants under certain Mirasdars in ryotwari villages. But these were cases of land holders suing in a Civil Court to eject their tenants on the ground that they had now no occupancy rights. The burden of proving that the plaintiffs had a right to evict lay heavily on them. The observations made by the learned Judges who tried those appeals are applicable to the particular facts that appeared in the findings and evidence in those cases. In the particular circumstances of the present case I find nothing to negative the presumption that the Kudivaram right existed at the commencement of the nineteenth century in Kaniyakshidars or Mirasars who held the Mokhasa subsequently converted into a Shrotriam village. I am, therefore, of opinion that that the District Judge was right in dismissing the suit on this ground. The Sub-Collector did not pronounce an opinion on this point.
14. Suits to compel acceptance of pattah could not be brought in an ordinary Civil Court. Therefore the plaints could not be returned for presentation in the proper Court and they were rightly dismissed The present appeal must be dismissed with costs.
15. In this view of the case, I find it unnecessary to express an opinion whether the plaintiff or his predecessors acquired occupancy rights subsequent to the original grant of the Shrotriam which was the subject of much able argument. I consider it advisable to express no opinion on this point as it may be the subject of further litigation in a Civil Court at some time or other.
16. S.A. 1717 to 1756 will follow this Judgment.