1. These appeals relate to certain gadaba tiradu' lands held by tenants for discharging personal services, such as carrying the zemindar's palanquin on condition of paying an annual kattubadi or favourable rent of Rs. 10. The 1st plaintiff is the zemindar of Sangamvalasa and the relief claimed in the plaints was a declaration that these service inam lands are resumable and a decree for possession, with mesne profits for 1912 and costs and subsequent profits till delivery of possession. The District Munsif granted the plaintiffs decrees accordingly and the District Judge confirmed them on appeal. The question is whether they were right in doing so. Accepting the findings of both the lower Courts that these inams are 'darmil a' inams, in other words, inams granted subsequent to the Permanent Settlement and that they were granted for doing personal service to the zemindar in lieu of wages, which, being findings of fact, are binding on us in second appeal, the question still remains whether the plaintiffs can do more than impose the full assessment on the lands.
2. The plaintiffs having come into Court with a prayer to be put in possession of the lands which have been in defendants' occupation for a number of years, the onus lay on them to establish that they had a right to evict the occupants. Vide Yeddamapudi Lakshmi Narsimha Row v. Repalli Sitaramaswami 19 Ind. Cas. 440 .
3. Resumption means no more than a taking back of that which was once given, and, therefore, the plaintiffs cannot succeed in evicting the defendants unless they are able to show that what was originally granted was not merely a slice of the melvaram or landlord's share of the produce but the land itself. The plaints in these suits negative any presumption in plaintiff's favour on this point. It is stated therein that the lands concerned in these suits were taken out of the class of jirayati' lands and a kattubadi of Rs. 10 was fixed on them in lieu of the cist of Rs. 125 which they were capable of paying. In other words, the difference between Rs. 10 and Rs. 125 represented what was granted to the holders of the inam as a recompense for the services to be rendered by them. In their written statements the defendants pleaded that, even though plaintiffs had a right to resume the plaint lands, they had no right whatever to claim the kudivaram or ryot share. We have not been referred to anything in the evidence tending to show that any right was reserved at the time when the inams were granted beyond the right of resuming the grant. The District Munsif referred to the acquiescence of the defendants in the enhancement of the kattubadi. This implied no more than a readiness on the part of the inamdars to accept a lower rate of remuneration for their services than they had been receiving originally. He refers to certain authorities for the proposition that tenants holding lands on service tenure cannot acquire occupancy rights. This point was not decided in Hurrogobind Raha v. Ramrutno Dey 4 C.K 67 quoted by the District Munsif, but it is unnecessary to go beyond Section 3, Clause 16 (c) of Madras Act I of 1908, which is referred to by the District Judge to show that land held on service-tenure is not included in the definition of ryot land in the Act so long as the service-tenure continues. This is immaterial for the purpose of these suits. The defendants' case is not so much that they have acquired occupancy rights under the Act, as that they possessed such rights when the inams were granted and that they have never lost them since. The plaintiffs brought these suits in a Civil Court to establish and enforce the general rights belonging to them by virtue of the contract subsisting between them and the defendants as to the terms on which the lands were held. If they had sued to eject their ryots on any of the grounds for which ejectment is allowed in the Madras Estates Land Act, they would have been under the necessity of launching their suits in a Revenue Court. In similar cases relating to the resumption of 'darmilla' inams Ayling and Tyabji, JJ., in Karupamaya Ananga Bheema v. Sondi Prahaladha Bissoyi Ratno 21 Ind. Cas. 833 held that the zemindar of Pedgrantees was not entitled to eject the grantees from the lands as a result of such resumption.
4. There the lands were waste and covered with jungle when granted, yet the learned Judges applied the ordinary presumption as to occupancy right which was recognised before the passing of the Madras Estates Land Act in the leading case of Cheekati Zemindar v. Ranasooru Dhora 23 M.K 318. If there was proof that the lands at the time of the grant were already in occupation of the tenant or their predecessors-.in-title as ordinary jirayati ryots, the correctness of the decision would have been in the opinion of the learned Judges self-evident. Here there is an admission that the lands were once ordinary jirayati lands and a total absence of proof that the character of the enjoyment, which the then occupants had in the lands, was at any time lost or altered in the course of its devolution to the present occupants.
5. We cannot, therefore, accept the contention of the respondents' Pleader that the case of Karupamaya Ananga Bheema v. Sondi Prahaladha Bissoyi Ratno 21 Ind. Cas. 833 : (1914) M.W.N. 179 was wrongly decided, nor can we regard the decisions in Sanniyasi Ram v. Zemindar of Salur 7 M.J 268, in Visweswara Nisstnka v. Gorla Budaradu 7 Ind. Cas. 401 and in Forbes v. Meer Mahomed Tuquee 14 W.R. 28 as authorities for the view that resumption implied dispossession from the land, as the point was not expressly raised and decided in those cases and even if it had been raised, it is obvious that the question must depend on what was the contract between the landholder and his tenant in each particular case. In Vadisapu Appandora, v. Vyricherla Veerabhadraraju 12 Ind. Cas. 487 and in Second Appeal No. 2103 of 1913 (unreported), there was a denial by the tenant of his landlord's title, which altered the case.
6. We allow the appeal and direct in modification of the decree of the Court of first instance that the plaintiff in each case be granted a declaration as prayed for and a decree for payment of Rs. 40, being the difference between kattubadi of Rs. 10 and Rs. 50, the cist found by the District Munsif to he payable in the event of the lands being' fully assessed, and that the prayer for possession and subsequent profits be rejected. The parties will give and receive proportionate costs thoughout.