1. This is a Letters Patent Appeal from the judgment of Mr. Justice Jackson. The decree of the trial Court dismissing the suit was confirmed by the Subordinate Judge. In second appeal to this Court, the plaintiff succeeded. The Munsiff as well as the Subordinate Judge found that the defendants have no occupancy rights either under the Estates Land Act or independent of it, but nevertheless dismissed the suit on the ground that the plaintiff did not make out a right to eject. In second appeal, Mr. Justice Jackson accepted the findings of the lower Courts in regard to occupancy rights both within and outside the Act, but differing from the lower Courts held that the plaintiff was entitled to a decree for possession.
2. We have heard an argument from Mr. Venkataramana Rao on the question whether the plaintiff has or has not a right to eject, granting that the defendants are bound by the findings in regard to occupancy rights. On this point, on account of the course we propose to adopt, we wish to express no opinion at present. It is contended for the defendants that on the question of occupancy rights, the findings of the lower appellate Court as they stand, cannot be accepted. The first question in regard to those rights, which the learned Subordinate Judge had to decide was, was the grant made to the inamdar, the plaintiff's ancestor, of both the warams or of melwaram alone? The learned Subordinate Judge whose finding on a question of fact is final, starts the discussion of the evidence with a wrong statement of the law. He says that there is a presumption that an inam grant comprises both the melwaram and the kudiwaram. This is how he states the law:
The decisions of the Privy Council reported in Suryanarayana v. Pothanna (1918) 36 M.L.J. 585: L.R. 45 IndAp 209: I.L.R. 41 Mad. 1012 and Upadrashta Venkata Sastrulu v. Divi Sitharamudu (1919) 37 M.L.J. 42: L.R. 46 IndAp 123 : I.L.R. 43 Mad. 166 are clear authorities to show that the presumption of law in the case of an inam grant was that both melwaram and kudiwaram were granted. These two decisions were discussed in the Full Bench ruling in Muthu Goundan v. Perumal Iyen : (1921)40MLJ429 and the same conclusions were arrived at. It lay, therefore, on the defendants who set up occupancy rights that only the melwaram was given to the original grantee and that they had permanent rights of occupancy in the lands. Such a presumption of law is not rebutted in this case.
3. This was the view of the law taken at that time by the Madras High Court and the Subordinate Judge was bound to give effect to that view. He is not therefore to blame for the course he adopted. But since then, the Privy Council has clearly held, that the view taken by our Court, in the Full Bench case referred to by the Subordinate Judge, is wrong. In Sivaprakasa v. Veeramareddi (1922) 43 M.L.J. 640: L.R. 49 IndAp 286: I.L.R. 45 Mad. 548 the Judicial Committee laid down the law thus in unequivocal terms:
It will be noticed that neither in the case of Suryanarayana v. Pothanna (1918) 36 M.L.J. 585: L.R. 45 IndAp 209: I.L.R. 41 Mad. 1012 nor in Sethuratnam Aiyar v. Venkatachala Goundan (1919) 38 M.L.J. 476: L.R. 47 IndAp 76: I.L.R. 43 Mad. 537 is there a suggestion of a presumption in favour of the inamdar or pattadar on the one side or of the ryot on the other. It was further distinctly pointed out in Upadrashta Ven-kata Sastrulu v. Divi Sitharamudu (1919) 37 M.L.J. 42: L.R. 46 I.A. I.L.R. 43 Mad. 166 the passage already cited that each case must be considered on its own facts.
A Full Bench of the Madras High Court, however, has in a recent case (Muthu Goundan v. Perumal Iyen : (1921)40MLJ429 held that underlying the exposition of their Lordships such an initial presumption is to be inferred. Their Lord' ships cannot help observing that in drawing this inference the learned Judges are clearly in error. Each case must be dealt with upon its own facts, with special regard to the evidence and circumstances therein.
4. The question then is, does the wrong assumption of the lower appellate Court vitiate its finding or not? We entirely agree that it is not incumbent upon the appellate Court to repeat in extenso the arguments of the trial Judge which it accepts. But the party is entitled to a considered opinion of the appellate tribunal. It is not the first Court's view but that of the second Court, that is final if the question is one of fact.
5. In this case, the point is either one of fact or is a mixed question of law and fact. The discussion of the Subordinate Judge is extremely brief and we are not entitled to speculate that, if he had applied the right rule of law, he would still have agreed with the District Munsiff. On the contrary, the Subordinate Judge, while pointing out that the presumption may be rebutted, observes that, on the facts of the present case, it was not. What view he would have taken of the evidence, if he had not approached it from a totally wrong standpoint, we are not in a position to say. First, as regards, therefore, occupancy rights within the Act, we set aside the finding in paragraph 7 of the judgment of the lower appellate Court.
6. Then as regards occupancy rights independent of the Act, the judgment of the Subordinate Judge is equally open to attack. The District Munsiff in a judgment unnecessarily long, devotes several paragraphs to the discussion of the question. Have the defendants made out their case with reference to a lost grant or usage or prescription Under each of these headings he considers the question. The Subordinate Judge completely misunderstands the District Munsiff. There are just three lines in his judgment which bear on this point and his reasoning and conclusion are contained in this short passage. We may quote his very words:
The lower Court also showed in paragraph 22 of its judgment that the defendants could not have obtained permanent rights by prescription. I hold, therefore, that the defendants had no occupancy rights.
7. Is this not a thorough misunderstanding of the judgment of the trial Court? The Subordinate Judge has overlooked the discussion on the question of lost grant as also on the question of usage. Even on the point of prescription, he has nothing more to say than that he agrees with the lower Court. It is impossible to accept this finding as final in a second appeal. We therefore set aside that finding also. We call upon the lower appellate Court to rehear the appeal in regard to these two questions and write a fresli judgment containing findings as regards existence of occupancy rights within and independent of the Act, on the evidence already on the record.
8. Findings shall be returned in six weeks from this date. Objections 10 days thereafter.
9. All the questions that arise in the appeal will be argued on the receipt of the findings.
10. In pursuance of the above order the District Judge of West Godavari submitted the Finding.
11. The Court made the following