Ramesam, Offg. C.J.
1. These are a batch of second appeals arising out of suits filed by the mirasidars of the village of Sandankadu for ejecting the defendants from the suit lands and for recovering the rent of Faslis 1322 to 1324. The plaintiffs alleged in their plaints that the defendants cultivate the suit land as parakudies under them and failed to pay the rent. The District Munsif of Pattukottai who tried the suit decreed the plaintiffs' suits for ejectment with subsequent mesne profits but disallowed the prior rent. In some of the suits there were appeals to the District Jui3ge. The District Judge of West Tanjore reversed the decrees of the District Munsif in all the appeals except six. Of the six appeals that were not reversed two abated by the death of the appellants. The other four wore dismissed on the merits. In all these six appeals there are no second appeals. In the remaining cases second appeals have been filed by the plaintiffs which are before us for disposal.
2. The history of the village may be shortly set forth. The village of Sandakadu was originally a mirasi village held by the mirasidars like other mirasi villages situated in the Tanjore and Chingleput Districts. The Tanjore District was annexed to the British Dominions in 1799 by a treaty with the then Rajah. Up to that date it was under the administration of its native rulers. During such administration the income derived by the ruler from the Sandankadu village was granted as an inam to his dependants by Thulaja Maharaj. The right to three-fourths share in the melwaram seems to have passed to various parties by subsequent alienations and finally it is now in the hands of the mirasidars themselves. The right to the remaining one-fourth is vested in a charity. The grant of the melwaram was regarded as an inam grant and was dealt with as such by the inam commission in 1860. Exs. WW, WW-a and WW-b are the inam statements and Ex. UU is the inam register. The register shows that there is a fixed jodi payable on the village and that it was held in 32 pangus or shares. Col. 14 shows that in 1809 three persons, Eamchandara Pant, Sub-baiyan and Venkappaiyan, each held eight shares and that the remaining eight shares were held by a chattram. The 32 pangus mentioned earlier apparently represent the shares of the melwaramdars or landlords. Subsequent alienations are also mentioned. The inam was approved and confirmed on a quit rent of Rs. 15. The total extent of the village was 666.21 acres. the poramboke was very small being only Order 1. Of the remainder (66620 acres). 655.58 acres were dry and 10'62 acres were wet. Of the dry portion 63.70 were cultivated and the whole of the remaining dry, i.e. 591.88 acres and the whole of the wet, namely, 10.62 acres, totalling 602.50 remained uncultivated.
3. In 1829 a paimash olungu chitta was prepared for the village. It was there described 'kadarambam (forest tract) strotriem village Santhankadu village.' The chitta shows that it consists of 32 shares, apparently the landlord's shares, and that it was being cultivated as samudayam (in common). This obviously refers to the cultivation by tenants. It then proceeds to describe the pangudars, i.e. persons holding the melwaram and it then proceeds to describe the cultivators and mentions four persons as owners of the kudimiras. It then proceeds to describe the various plots. Plots 1 to 3, 6, 7, 13, 14, 20, 23, 25, 26, 28 and 29 are described as kudimiras samudayam. Some of these are described as actually cultivated by a particular mirasidar and some as cultivable waste.
4. Plots 5 and 22 are described as only cultivable waste without kudimiras samudayam being attached to those numbers. Plots 4, 8 to 12, 15, 17, 21, 24 and 27 are described as immemorial waste. We are now concerned in these appeals with Nos. 11 and 12. The division of a mirasi village into : (1) land actually cultivated; (2) seykal tharisu or land which is cultivable but not cultivated and left waste; and (3) Anadi Karumbi is well known and is referred to in the Full Bench decision in Seshachala Chetty v. Chinnasami A.I.R. 1918 Mad. 827. The land actually cultivated used to be generally cultivated by the mirasidars themselves and even where they let out the land to under-tenants the right to the kudiwaram or kudikanni right is in the mirasidars themselves and the undertenants can put forward no claim to the kudikanni right. In other words, they can have no occupancy rights. But as to the lands which ware not actually cultivated by the mirasidars, but afterwards got into cultivation by the introduction of strangers the mirasidars claimed certain special privileges over such land on the ground that they ware the persons originally entitled to the kudikanni right and that the strangers were introduced into cultivation with their permission. These extra privi-leges claimed by the mirasidars over lands in respect of which new tenants were introduced have been the subject of consideration in various cases. The earliest of these cases is the Full Bench decision in Sakkaji Rau v. Latchamana Goundan (1878) 2 Mad. 149. The judgment in the case was delivered by Turner, C.J., and it was held that whatever rights are customarily enjoyed by the mirasidars over such lands are not lost by pattas being issued to the strangers.
5. It was held that the custom should be inquired into. The matter came up for consideration again before another Full Bench in Seshachala Chetty v. Ghinnasami A.I.R. 1918 Mad. 827. The case came up originally before Sankaran Nair and Sadasiva Ayyar, JJ., who differed, Sankaran Nair, J,, being in favour of upholding the special rights of the mirasidars and Sadasiva Ayyar, J,, being inolined against the mirasidars. The actual dispute in that case related to the nattam land or land fit for house sites over which the mirasidars claimed rights of ownership. The matter was referred to a Full Bench and came before Wallis, C.J., Ay ling and Kumaraswami Sastri, JJ. These learned Judges entered into an elaborate history of the mirasi tenure from the beginning of the century. The judgments are full of quotations from the opinions of various revenue officials who in the course of the century had to express opinions on this matter such as Mr. Ellis, Mr. Sankarayya, Sir Thomas Munro, Mr. Place, Collector of Chingleput, and Settlement Officers, like Messrs. Stuart and Puckle, and resolutions of the Board of Revenue, the Government and the Court of Directors. It is unnecessary to refer to these various opinions in this case. The conclusion to which the learned Judges arrived at in that case was that the mirasidars would still be entitled at this date to such rights as may have been proved to be in their enjoyment by custom or user, and they accordingly called for a finding on the question of the rights of mirasidars over nattam lands by user, and in the particular case the finding was against the mirasidars and their right was finally negatived. The mirasidars claimed various rights at various times. These are all classified in Ayling, J.'s judgment at p. 464.
6. Sometimes in respect of a portion of the land they claimed to hold it free of all land revenue. Another right they claimed was a preferential right to cultivate all cultivable lands and not cultivated or gone out of cultivation (seykal karumbu). In respect of such lands where they were not willing to cultivate and strangers had been introduced, sometimes with their consent and sometimes without their consent by the Government, they claimed certain fees sometimes described as 'thundavaram,' sometimes as 'swayambogum' and sometimes as 'swatantaram'. This is heading (d) of Ayling, J.'s classification at p. 464. But the mirasidars in this case claim it as if it is rent due to them. The claim is based on the theory that the stranger tenants pay their dues to which they are liable in two shares, that is (1) partly as melwaram due to melwaramdars, and this according to the plaintiffs may be regarded as the portion of the rent due to the melwaramdars; and (2) the thunduvaram portion to the mirasidars; and this according to them is the portion of rent due to the mirasidars.
7. Thus the cultivating tenants are claimed to be tenants both under the melwaramdars and under the mirasidars. The mirasidars claim also other rights over village sites, fisheries and so on which it is unnecessary to refer to in this case. Based on this theory, namely that the defendants are really their own tenants paying a portion of the rent to them in the shape of thunduvaram, the plaintiff-mirasidars claim to be owners of the suit lands and assert that the defendants are mere tenants either at will or from year to year or for a term, as the ease may be, without any occupancy rights. The suit village differs from the villages which were the subject of the litigations in Sakkaji Rau v. Lakshamana Goundan (1878) 2 Mad. 149 and Seshachala Chetty v. Chinnasami A.I.R. 1918 Mad. 827 in one respect. The villages, in those cases are raiyatwari villages, the Government being the landlord to which the assessment is paid by the mirasidars and. other cultivators of the village. Even in suoh villages the mirasidars may be entitled to thunduvaram in respect of the portion of the land not cultivated by the mirasidars. Once the custom is recognized by the Government itself, the thunduvaram or swatantaram is entered as an additional fee due to the mirasidars in the settlement register. Where it is not so entered, if it is still claimed by the mirasidars, it has got to be proved by the mirasidars on the principle laid down in Seshaohala Chetty v. Chinnasami A.I.R. 1918 Mad. 827, like any other right claimed by them. The suit village however is an inam village in this respect differing from the villages dealt with in the two cases mentioned. Thus it combines the characteristics of a mirasi village plus the characteristics of an inam granted prior to the Permanent Settlement either by zamindars or a native ruler as in this case and having been regarded as excluded from the Permanent Settlement of a zamindari in 1802 and afterwards dealt with by the Inam Commission in 1860.
8. In this case the right to the assessment being granted by the Rajah of Tanjore as an inam was so dealt with in 1860 by the Inam Commission but the rights of the mirasidars may be continued as before under the melwaramdar as in the case of ryotwari mirasi villages. It is noticeable that in the case of ryotwari mirasi villages, whatever rights the mirasidars might claim over lands not in their cultivation but in the cultivation of tenants afterwards introduced, the suggestion has never been made that such introduced tenants are not like other ryotwari tenants in the Presidency and have not got occupancy rights. The only disability to which they may be subject is that they might be liable to pay swatantram or thunduvaram to mirasidars or they might have to submit to some kind of preferential right in the mirasidars over nattam, tanks, fisheries, porambokes or sources of irrigation, (as in the case of Damal village which came up before the High Court). But however much they may have to submit to such special privileges claimed by the mirasidars in respect of mirasi lands so far as the lands actually cultivated by them are concerned it has never been suggested that they are liable to ejectment by the mirasidars. I am not aware of any such instance either in the reported decisions or unreported cases. Thus in ryotwari villages the right of the introduced tenants to hold ryotwari lands into which they are introduced without liability to ejectment by the mirasidars or by the Government so long as they are willing to pay the assessment imposed upon them in the last settlement is completely recognized.
9. The question in the present case is : Is it different in the case of mirasi inam villages? Only two such villages have come up before the Courts for decision. In Sivantha Naicken v. Nattu Rangachari (1903) 26 Mad. 371 certain lands which formed part of the immemorial waste were taken up by Government under the Land Acquisition Act. The right to compensation was claimed by the strotriemdars of the mirasi village, i.e. the inamdars. The counter-claimants were the mirasidars who were the cultivators of the actually cultivated land in the village. It was held by Davies and Benson, JJ., that the strotriemdars were entitled to compensation in preference to mirasidars and no portion of the compensation was awarded to the mirasidars. That case proceeded on the footing that the whole right of ownership of the immemorial waste was vested in the strotriemdars or inamdars and not in the mirasidars and we may take it that no kind of preferential right of mirasidars over the immemorial waste was proved in that case. The other case is Natesa Gramani v. Venkatarama Reddi (1907) 30 Mad. 510. That case relates to the right to the water and the poramboke lands in mirasi and inam villages. We have nothing to do with the actual decision in the latter case and it is merely referred to as an example of mirasi inam village that has come up before the Courts.
10. The question in the cases now before us is whether the mirasidars are entitled to eject the tenants on the immemorial waste land of Paimash Nos. 11 and 12. Such a right to eject can only be claimed on the footing that the plaintiffs are the landlords and the defendants are the tenants. As part of the rant is payable to the melwaramdars, i.e. the inamdars they must be also landlords. But what the plaintiffs say is that assuming the inamdars are landlords the mirasidars are also landlords alongside of the melwaramdars and that in the present case the capacity of the inamdar and the mirasidar is both combined and there is no question of the necessity to obtain the consent of the melwaramdars in exercising the right to eject. It is conceded for the plaintiffs that the melwaramdars themselves as such have no tight to eject. What they claim is that the mirasidars were the persons entitled to eject and in that capacity the plaintiffs seek to exercise the right to eject. They have got to show that the mirasidars also were landlords along with the melwaramdars and that the right to eject is as to mirasidars only. For proving this position the plaintiffs rely upon an old judgment dated 7th July 1848 (Ex. YY). That suit was filed by one Krishnappa Naicken on the allegation that he and defendants 1 to 4 represented the owners of the kudikani right and village samudayam of the village, that defendants 5 to 14 had sometime prior to the suit applied that the jungle land in the village (immemorial waste) may be granted to them for reclamation and cultivation on condition that they should pay every year one pon per veli of the melwaramdars and 23 marakkals of grain and half pon to the mirasidars as mirasivaram. Accordingly the plaintiffs and defendants 1 to 4 and the melwaramdars granted separate cowle deeds to defendants 5 and 6 who represented the other defendants also and got from them counterparts embodying the said terms. Accordingly they prayed for a decree for the share of the amounts due to them as thunduvaram which was the name given to the payment of 23 marakkals of grain and half pon in cash stipulated to be paid to the mirasidars.
11. In that suit defendants 5 to 14 filed written statements admitting the plaint and defendants 1 to 4 contested it; and the learned District Munsif found that they collected the whole income from defendants 5 to 14 and accordingly a decree was passed in favour of the plaintiff against defendants 1 to 4. Defendants 5 to 14 in that suit were all Odayars and it is said for the plaintiffs that they are the ancestors of the Odayar defendants in the present appeals before as. Besides the Odayar defendants there are certain other defendants in these appeals who may be referred to as the Ambalagar defendants. Some of the suits against the Ambalagar defendants have been decreed and they have not come up in second appeal before us. A few of the suits against the Ambalagar defendants have been dismissed and are before us in these second appeals. But the Odayar defendants do not admit that defendants 5 to 14 in that litigation are the ancestors of the present contesting Odayar defendants. A good deal of argument has been addressed to us on the question whether this judgment is admissible in evidence in the present litigation. The District Munsif admitted it and relied upon it as part of the argument supporting the plaintiffs and in para, 11 of his judgment he says:
On perusing this judgment closely it seems to me that the conclusion is irresistible that the predecessors-in-title and ancestors of the present Odayars were granted cowle by the ancestors of the present plaintiffs, Naidus, so that, they, Odayars may reolaim forest waste lands and bring them under cultivation and that the Naidus owned the kudimiras right in the entire village including the suit land in nine pangus or shares. It therefore necessarily follows that the predecessors-in-title of the present Odayars were let into possession of the lands reclaimed by them, the lands now in dispute, by the ancestors of the present plaintiffs.
12. In para. 12 he refers to the contention advanced on behalf of the defendants that the judgment was inadmissible in evidence and he conoludes, para. 12, by saying:
I hold that the judgment is admissible in evidence both as an instance in which plaintiffs' predecessors-in-title asserted their kudikani right under Section 13, Evidence Act, and as containing a recital of the admission of plaintiffs' right by the defendants' predecessors-in-title under Section 85, Evidence Act.
13. On appeal before the District Judge the argument that the judgment was in admissible in evidence was repeated and in para. 7 of his judgment the learned District Judge referring to Ex. YY says:
I think the appellants have made a false move here, and that this judgment, the most important document in the case, really provides the solution of the controversy and that it does so in favour of the appellants,
14. Then he proceeds to deal with this aspect in para. 8 and observes:
My view is based upon the accepted facts of land tenure in this and adjoining districts.
15. In para. 9 he states:
When in ancient records a body of persons is designated as holding the miras or heritable occupancy right in the cultivated lands of the village had that group any occupancy right in the immemorial waste? My answer is in the negative.
16. Then he quotes from Mr. Ellis the same passage quoted in Kumaraswami Sastri J's judgment in Seshachala Chetty v. Chinnasami A.I.R. 1918 Mad. 827 In para. 10, after refering to the three kinds of land in a mirasi village, he says:
In 1829, therefore, the owners of the kudirairas samudayam land were not entitled to cultivate or to let out for cultivation the Anadi tarisu.
17. In paras. 11, 12 and 13 he discusses the bearing of Ex. YY on the point now before us. He thinks that the land in the immemorial waste cultivated by defendants 5 to 14 in that suit was outside the land let by the mirasidars in nine pangus and that therefore the lower Court's conclusion that mirasidars possessed the kudikanni for the whole village is erroneous. In para. 14 he also points out the consideration that the kudimirasidars have no occupancy rights in the unreclaimed forest land and that this kind of land is really are the disposal of the ruling power. After disposing of the documents finally in para. 27 he allows the appeals.
18. The question as to the admissibility af Ex. YY has again been fully argued before us. We do not think it is necessary to pronounce any final opinion on this matter. Assuming that the judgment is admissible, we do not think that the plaintiffs' case is advanced very much thereby. Assuming that the plaintiffs' predecessors-in-title had some share in the act of letting to Odayar defendants the kaduvetti or immemorial waste land for the purpose of reclaiming it, this must be regarded only as a part of the customary right peculiar to mirasi villages. Merely on this account it cannot be said that the mirasidars become the landlords. It is admitted on all hands that what is described as the melwarato due on the suit lands is payable only to the melwaramdars. Prima facie therefore the melwaramdars are the landlords of the village. Assuming that some payment described as thunduvaram was due to the mirasidars we cannot regard this payment as indicative of the character of mirasidars as landlords. It must be regarded as the customary payment due to the mirasidars on account of their preferential right in the village. Whatever the origin of this thunduvaram right may be, at the present day it cannot be regarded as more than a customary fee. The position that there is a double set of landlords and melwaramdars getting the melwaram and the mirasidars getting the thunduvaram is practically an impossible position and cannot be worked out to its legal consequences. If both represent the joint landlords, then both should have the right to reject, but it is conceded in this case that the melwaramdars have no right to eject. On what theory can it be said that the mirasidars only are the landlords entitled to eject the tenant? Nor would it be possible to contend that the mirasidars are the sole landlords while recognizing the melwaramdars as entitled to a portion of the rent due to the landlords of the village. The right to the thunduvaram can only be regarded as the present remnant of a customary right, the origin of which is lost in obscurity and cannot be accurately analyzed from the point of view of modern legal notions. In Seshachala Chetty v. Chinnasami A.I.R. 1918 Mad. 827 , Sadasiva Ayyar, J., observes:
In Chingleput the preferential right of the mirasidar aa a legal right to get dharkast grant; from Government for immemorial waste and his-right to swatantarams (calculated as a fraction? of the assessment) when such immemorial waste was allotted to any other person than the mirasidar, these two rights seem to have been recognized till recently and hence the efforts o the mirasidars to claim full ownership rights-have not ceased even after Sivnatha Naioken v. Nattu Rangachari (1903) 26 Mad. 371,
19. This sentence seems to indicate that; the swatantram, (another word for thunduvaram) is merely a consideration? paid to mirasidars for consenting to the immemorial waste being let out toothers when they themselves are unable or unwilling to cultivate it. At pp. 444 to 446, Sadasiva Ayyar, J., says:
But the Revenue Board and the Government, from 1886, were determined, by all legitimate means, to establish the paramount rights. of Government to grant nattam poramboke sites, and also to deny all other rights claimed by the mirasidars, except the right of preference when grants to immemorial waste are made and to obtain swatantrams if grants are made to other than mirasidars, and similar rights.
20. I have already mentioned that in Ayling, J's judgment at p. 465 the right to thunduvaram is described as
the right to certain fees (thunduvaram) on, lands granted for cultivation to non-mirasi. cultivators (piakaris).
21. At p. 487 he observes:
This brings us to the subject of 'thunduvaram' or swatautrams. The right of the mirasidar to collect something from non-mirasidars holding lands directly under Government has, undoubtedly been reoognised by Government and is so recognised even in the present settlement.... So far as Government is concerned this matter is concluded; though according to Mr. Stuart the fees are rarely paid in practice at the present day, and the Courts have held so long ago as 1875 that the right to collect them ia not to be taken as a necessary incident of mirasi right, but has to be established by reference to the custom of each village : vide Sakhaji Rau v. Latchamana Qoundan (1878) 2 Mad. 149. The fees, in fact, seem to be a sort of compensation for the waiving of the mirasidars' preferential right of cultivation and nothing more.
22. This quotation shows that thunduvaram is nothing but a customary fee paid to the mirasidars as compensation for their waiving their preferential right. Even in Kumaraswami Sastri, J's judgment which is the judgment most favourable to miraaidars the following passage occurs at p. 499:
As regards waste they (the Board of Revenue) observe as follows : 'The mirasidar has also au interest in the waste land, and a right to a merah or fee when, being unable to cultivate himself, he gets a tenant who shall cultivate it, and pay the usual rent to Government. This is fair; he has his fee for the service he performs; but if the mirasidar neglects or refuses to get a tenant for the waste and Sirkar is obliged to find one himself, to keep up or increase the revenue of the village, the mirasidar has no right to the fee; it may be either added to the rent payable by the tenant, or may be given up to him as an encouragement to him to extend the cultivation.
23. So early as 1820, therefore, the view prevailed that the thunduvaram or special payment made to the mirasidars was really for the service they rendered in procuring a tenant and did not represent a portion of the rent due to a landlord. The word 'rent' was confined to the payment made to Government and in the case of an inam village would apply correspondingly to the payment payable to the inamdar or the strotriemdar. At p. 502, referring to the letter oE the Collector of Chingleput in 1839, he says:
In his opinion the proprietary right of the mirasidars did not extend to immemorial waste lands and they had no prescriptive right to oust paikari cultivators from lands which were given to them by Government owing to the mirasidars not having cultivated them. He, however, admitted the mirasidars' right to thunduvaram, awatantrams, etc., in the sekyal lands and suggested that paikari ryots, introduced by the Government, should he secured in their right of occupancy on paying to Government the Government's dues and the mirasidar'a fees.
(the last word obviously referring to thunduvaram). At p. 507 we have got a quotation from the proceedings of the Board of Revenue in 1892 as follows:
Briefly, the system, as it at present exists, rests on the claims of the mirasidars to all the waste lands in their villages and to the levy o swatantram or fees from paikaris or non-mirasidars who may take up land for cultivation. This claim was fully recognized in the new settlement carried out in 1876-78 and after full consultation with mirasidars, a memorial fee (swatantram), fixed at an average rate of two annas on every rupee of Government assessment, was declared to be leviable by the mirasidars not only on every field lying waste in each village, but also on all lands now held by the mirasidars themselves and included in their pattas, should such lands be subsequently relinquished and taken up by a non-mirasidar. The fee claimable on each field was duly entered in the settlement registers against every field liable to it. The only lands against which fees were not entered were those which had already been obtained by strangers and which were held under lease or patta from Government.
24. Similarly at p. 508 we have:
The chief point of difference between these special rules and those prescribed for other districts, apart from the fact that any land in Chingleput obtained by a non-mirasidar must pay two annas in the rupee of assessment as a memorial fee to the mitasidars is....
25. At p. 509 we have got Mr. Stuart's proposals of 1909 relating to the fixed fee of two annas in the rupee. In 1909 Government passed orders that a foot-note should be made in the settlement registers to the following effect that,
the right of the mirasidars to levy a fee at the rate of two annas in the rupee of assessment of both dry and wet lands has been recognised by Government except in the case of the undermentioned fields which are free of swatantrams.
26. At p. 516 we have got a quotation from Turner, C.J's judgment in an original side suit (C.S. No. 128 of 1882) as follows:
When pattas were granted to strangers, the mirasi right was not altogether lost and in some villages the mirasidars succeeded in obtaining from the ryots introduced by Government recognition of their interest in the soil by payment of small cesses.
27. Obviously the word 'cesses' is really intended to apply to thunduvaram. In Sakkaji Rau v. Latchamana Goundan (1878) 2 Mad. 149 we have got this observation:
With regard to the poramboke and immemorial waste, their right extended to further than to the privilege of grazing their cattle on them, when waste and receiving the 'coopatums' when cultivated.
28. The 'coopatum' here referred to m probably the same as swatantram or thunduvaram.
At p. 159:
In view of this consequence of the refusal to recognise the claim of the mirasidar, it was proposed that, in future, with the grant of a patta to a ryot, introduced by the state, an agreement should be taken from him in which the amount and the nature of the swatantrams or fees immemoriably to the mirasidar by the cultivator, and his liability to pay them should be clearly set forth.
29. And even if Ex. YY is admitted it shows nothing more than that the mirasidar rendered his share of help in obtaining a new tenant and introducing him on the kaduvetti or immemorial waste land, for the purpose of reclamation. Whatever help he might have rendered the melwaramdar only must be regarded as a landlord and the mirasidar cannot be regarded as a landlord. My conclusion therefore having regard to the nature of the mirasi tennre and its incidence, is that the plaintiff mirasidars in so far as they are mirasidars cannot be regarded as landholders and are not therefore entitled to eject the newly introduced tenants. We have in addition the following further considerations. There is no particular reason why tenants introduced into uncultivated lands in the mirasi inam villages should stand on a different footing from tenants introduced into such lands in mirasi ryotwari villages. At any rate if it is intended that they should be introduced with different incidents, the thing ought clearly to appear. What is it we have got in this particular case? In the whole of the last century the Odayar defendants never executed muohilikas with a stipulation that they would give up the land at the end of the term. It is the presence of such muchilikas that has been regarded as a sure indication of the right of a landholder to eject the tenants ide P.C. decisions in Suryanarayana v. Pattanna A.I.R. 1918 P.C. 169 and Venkata Sastrulu v. Seetharamudu A.I.R. 1919 P.C. 111. In the present case it is not that such muchilikas are absent even for a brief period of time. We never have got instances of such muchilikas through the whole century which, in my opinion, would be practically conclusive of the consciousness of all parties in these cases that all the newly introduced tenants whether their rights are less than mirasidars or equal to theirs, were certainly not regarded as ejectable at the option of the mirasidars or of anybody.
30. It is unnecessary to consider the question whether the suit villages would fall under Section 3(2)(d), Estates Land Act, if being agreed by both parties that the matter might be left open. The appellants ask for a decree at least for the amount of swatantrams due to them. The plaint makes no reference to swatantrams but only makes reference to rent and there was no opportunity for the defence to plead to a claim for swatantram. It is futile to contend that the claim in the plaint being for a larger amount and that for the swatantram being for a small amount, the latter claim may well be decreed in these suits. Though the amount claimed in the plaint may be larger than the amount of thunduvaram, its character may be different. If the claim is made only as for rent, that will lead us to the question whether the suit village is governed by the Estates Land Act, and whether the claim can be made only in a Revenue Court. As that part has been left open, it is not permissible to us to consider the claim as one for rent. As a claim for swatantram it was not mentioned in the plaint and therefore we cannot consider it now. The result is that the second appeals so far as the Odayar defendants are concerned, are all dismissed with costs. The pleader's fee is fixed at Rs. 20 for each Odayar second appeal in which appearance has been entered. Costs of printed papers to be allowed in one in Odayar appeals.
31. It is contended that so far as the Ambalagar defendants are concerned those second appeals ought to be allowed. These are second appeals Nos. 1820, 1847, 1848 and 1849 of 1925 (Appeals Nos. 176 of 1922, 216 of 1922, 218 of 1922 and 219 of 1922). The learned District Judge differentiated these cases from other Ambalagar oases in which he dismissed the appeals on the ground that, whereas the muchilikas were executed in the other cases by the actual contesting defendants, in these cases the muchilikas were not executed by the contesting defendants. It is now contended before us that even in these cases muchilikas were executed by some other defendants. These are Exs. Z, Z-1, Z-4, but it appears that the defendants who executed these muchilikas did not contest the former suits and decrees were obtained against them at one time (vide Ex. EEE series) though they have now joined the other defendants in contesting these suits. We need not pay any attention to their conduct. What is important is that so far as the other contesting defendants are concerned it does not appear that they executed any muchilika or any decree was obtained against them; nor does it appear that their consent was obtained when the muchilikas were executed though it appears that they were members of a joint family. The contesting defendants now say that the other defendants executed the muchilikas in collusion with the plaintiffs and that the muchilikas were not executed in the character of manager of the joint family. Apparently this was what was meant by the learned District Judge when he said that 'such muchilikas' have been executed by the defendants only in some cases. Having regard to these circumstances, we do not think we are justified in interfering in these four second appeals. It is suggested by the respondents that even the other appeals ought not to have been dismissed by the learned District Judge but, as no second appeals have been filed before us we cannot consider this contention. The result is that even these second appeals in respect of Ambalagar defendants are dismissed with costs. Costs in two second appeals to be distributed between all the four costs of printed papars in one of these appeals will be allowed.
Yenkatasubba Rao, J.
32. We have been referred in the interesting arguments of the learned Counsel, to the various opinions expressed in regard to mirasi rights by writers and officers of Government from time to time; but it seems to me that while they undoubtedly possess great historic value, it is unnecessary to travel at the present day beyond the cases decided by our Court. If the previous judgment is excluded from the evidence, the plaintiffs have not even the semblance of a case; but granting that it is legally admissible, even then I fail to see how it can avail them in the least. They must establish one of two things in order to succeed; either that the plots in question, admittedly part of the anadi karambu, were originally taken up for cultivation by the mirasidars, who for the purpose of getting them actually cultivated, let them to the defendant's ancestors as undertenants or that the mirasidars have rights of property in the anadi karambu. In the light of the decisions, it is impossible to hold that the plaintiffs have succeeded in showing that they have any such proprietary right, nor can any under, letting be possibly inferred from the so-called admission of the defendant's ancestors, contained in the judgment in question. On the contrary, the use of the word 'thunduvaram' clearly negatives any such arrangement. That word has been understood as meaning 'fees on lands granted for cultivation to non-mirasi cultivators.' Seshachala Chetty v. Chinnasami A.I.R. 1918 Mad. 827, Ayling, J., points out that:
The fees, in fact, seem to be a sort of compensation for the waiving of the mirasidars' preferential right of cultivation and nothing more : p. 487.
33. It is needless to refer in any detail to the other authorities to which we have been referred, such as Sakkaji Rau v. Lakshmana Goundan (1878) 2 Mad. 149, Sivanatha Naicken v. Nattu Bangachari (1903) 26 Mad. 371 and Kumarappa Reddi v. Manavala Goundan A.I.R. 1918 Mad. 1. I may however point out that in Sivanatha Naicken v. Nattu Rangachari (1903) 26 Mad. 371, as in the present case, the question arose in regard to lands in an inam village. In the view I am taking, it is unnecessary to decide whether the judgment in question is admissible or not, and I therefore express no opinion on the point. The view taken by the lower appellate Court is clearly right and the second appeals fail. I agree in the orders proposed by the learned Officiating Chief Justice.