S. Ramachandra Iyer, C.J.
(1) Three temples situate in the village of Vangarai in Sirkali Taluk, Tanjore Dt. represented by their trustees instituted a suit which has given rise to this appeal for an injunction restraining the respondents 1 to 4, from interfering with their possession and enjoyment of the suit properties. The suit was later converted into one for recovery of possession. The properties which form the subject matter of the suit consist of three items covering in all an extent of two acres. Out of this one acre was claimed by respondents 1 and 2 as pertaining to carpenter manyam and the remaining extent was claimed by respondents 3 and 4 as a grant to the village barber for rendering certain services. It is not disputed that the respective respondents are residing in he village and serving as carpenters and barbers. The properties originally formed part of the village samudayam and it is now found and that finding has not been challenged before us, that they at an unknown period wee given by the villagers to the carpenter and the barber for their services to the village community. Notwithstanding this, patta for the lands continued to remain the names of the co-shares.
The kist due thereon was also paid by them. Recently, during the year 1955 disputes arose between the co-shares and respondents 1 to 4; the former purported to dedicate the property covered by the suit to the village temples, namely, the appellants herein. Patta for the lands was also transferred in the names of the temples. Respondents 1 to 4 who were in possession of the lands apprehending that he corps standing on the lands would be removed by the trustees of the temple filed O. S. 33 of 1956 on the file of the District Munsif Court, Sirkali, for an injunction against the latter restraining them from so doing. That suit was contested. On 29-1-1957, the suit was dismissed, with costs as not having been pressed. It is now pertinent to say that the relief claimed in that suit related only to the single crop standing on the lands and no question of title was involved in the case. Presumably by the time the respondents intimated to the court that hey wee not pressing their suit the apprehended mischief had ceased to worry the artisans. That must have induced them to withdraw the suit. Shortly after the disposal of the suit the appellants instituted the suit that has given rise to this appeal for injunction against respondents 1 to 4 pleading their own title and stating that the respondents were let into possession of the lands by the predecessors-in-title of the co-shares, landlords only five years previous thereto under a permissive title and that they had surrendered possession in the year 1957 and that therefore, they had no further right to disturb the appellants' lawful possession.
Respondents 1 to 4 contested this claim pleading that they had been in possession of the properties form the time of their ancestors; they also denied the title of the appellants to the property. The trial court upheld the title of the appellants. It however found that the appellants had no possession of the property and it passed a decree for possession in their favour. This decree was set aside by the learned Subordinate Judge of Kumbakonam to whose file the appeal had been transferred. The appellate court held that there had been no valid or lawful dedication by the co-shares, landlords of the lands in favour of the appellants and that the lands being manyam given to the contesting respondents as artisan service inams, they could not be evicted from their possession as they had the right to remain on the property so long as they rendered service to the villagers. This view has been accepted on second appeal by Venkataraman J. But the learned Judge gave a certificate under Cl. 15 Letters Patent for a further appeal. Hence this appeal.
(2) Sri T.S. Kuppuswami Iyer, appearing for the appellants, first contended that as the lands were given to the ancestors of respondents 1 to 4 in lieu of wages for services rendered by them they should be regarded as manyam or inam grants for services and hat it should be open tot he co-shares, the grantors, to recover possession of the lands, whenever they chose, the grant in essence being one for service which could be dispensed with by the villagers. In support of that contention learned counsel relied upon the decision of Venkatasubba Rao J., in Thiruvenkatacharlu v. Sahi Altoo Sahib, 50 MLJ 251: AIR 1926 Mad 511 where the learned Judge pointed out the distinction between two types of grants, namely (1) that was made in lieu of wages for services to be rendered and (2) possessory grant subject to the condition of the performance of service. The contention on behalf of the appellants, as we said is, that having regard to the admissions on the part of the respondents, the grant in the present case should be regarded as one coming under the first category; that therefore it was open to the landlord to terminate the services of the respondents at their pleasure and make over the lands tot he temples.
(3) As pointed out by Venkataraman J., this case was not put forward either in the pleadings or before the courts below. The learned Judge, therefore, held that it was not open to the appellants to start a new case at the stage of the second appeal. But the learned judge did not dispose of the appeal on this narrow ground alone. He held that even if they wee permitted to raise such a case, it has to fail for the reason that he appellants had failed to make out the right to resumption.
(4) In 50 MLJ 251: AIR 1926 Mad 511 a distinction was, no doubt, made between two types of service inams referred to above and the right of the grantor to resume in each case was also discussed. It was further held that where the question arose as to the class to which a specified grant belonged, there could be no presumption that it was made in lieu of wages for service and the onus should be on the person claiming resumption. Venkataraman J's decision accords with this principle. In our view that decision would have no application to the present case, for the reason to be referred to later. The contention urged on behalf of the appellants proceeds on the basis that the grant in favour of the respondents predecessors-in-title was an inam. Venkataraman J., too appears to have thought it was so.
(5) But it is well settled that the inam can only be a grant by the State or Sovereign. When a private individual, particularly in a ryotwari area, grants a property under an arrangement, it can never be regarded as an inam. In the present case it is admitted that the lands in question belonged to the co-shares as samudayam property and that at some point of time they gave these land to the village artisans, namely, the carpenter and the barber. What the terms of the grant were we have no means of finding out. The grant in the instant case which is one by the villagers, which does not carry with it a grant of the assessment on the land cannot be regarded as an inam. In Soundararaja Iyengar's book on Land Tenures the generic name manya is given to grants of land or land revenue--see page 77. at page 191 the learned author state:--
'The existence of beneficial tenures known originally by the Sanskrit name manyams and latterly by he Arabic term Inams after the Muhammadan conquest can be traced to a remote antiquity in India.'
Again at page 194:
'The term Manya is now applied in South India to land held either at allow assessment or altogether free in consideration of services done to the State or the country as in the case of village servants.' It is apparent from the very character of the grant as manyam, that it must have been made by the State or Sovereign, for none else can remit an assessment wholly or in part. But in a case lieu of the present where the private owners make a grant of the lands to certain village artisans in lieu of wages for service it cannot be treated as inams for there is not grant of revenue either in whole or part by the Government. It is true that the respondents at an earlier stage admitted that he lands wee held by them as manyam, but the fact the party calls it a manyam cannot invest it with a character which it does not possess, that is, a grant of revenue. Indeed it is not he case of the appellants that he grant was made by the sovereign power. Under the circumstances we can only treat the right of the respondents to remain on the lands as one under an arrangement that was entered into between the villagers on the one hand and the artisans on the other. If some years after the arrangement has been entered into, the villagers want to evict the service-holders and recover possession of the lands given tot hem in lieu of wages for service. It will be for them to make out that the arrangement was a terminable one and that it had been terminated in the manner stipulated or as provided bylaw. In other words the suit being one in ejectment, the burden will be upon the plaintiffs to prove that they had the right to evict.
In Lakshmanna v. Venkateswarlu a question arose as to the maintainability of the suit in ejectment by a minor inamdar as against his tenants. The tenants resisted the suit not he ground that they had kudiwaram interest in the land. The Privy Council while holding that there was no presumption in favour of the holder of the minor inam that he had both the melwaram and kudiwaram interest, dismissed his suit on the ground that he burden will be upon him to make out a right to evict by proving that the grant included both the melwaram and kudiwaram interests or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease or arrangements.
(6) There has been no attempt in the present case to prove that he original arrangement was a terminable one. In this view we are of the opinion that he conclusion reached by the learned Judge could not be assailed.
(7) Mr. Kuppuswami Iyer, then referred us tot he decision in Rajagopala v. Maruthamuthu : AIR1933Mad668 and placed considerable reliance on the observations of Sundaram Chetti J., to the effect that in the absence of a grant the existence of patta and kist receipts in the name of a particular person would be strong evidence that the property belonged to him. We are unable to see how that principle can have nay application tot he present case. It is true that he patta for the lands was originally in the names of the co-shares landlords. Admittedly there was a right to enjoyment created by these every land holders in favour of the village artisans since loan time past. It, now, the villagers want to go behind that arrangement and attempt to recover possession of the property it will be for them to prove what the terms of the arrangement were. The fact that they had title to the property could not be sufficient in the circumstances to prove their right to evict, for the respondents could not be regarded as trespassers.
(8) It was then argued that inasmuch as the respondents' suit O. S. 33 of 1956 had been dismissed as not pressed, they would be precluded from agitating their title to the property in the present suit as they would be barred by res judicata. Support for this contention as sought form a recent decision of the Supreme Court in Daryao v. State of U. P. : 1SCR574 . As we indicated earlier, the previous suit prayed a limited relief for protecting he respondents' right to the standing crops not the land. The suit was one for injunction and the plaint therein did not raise any question as to denial of title by the defendants. It can, therefore, he said that the decision in that case, was concerned more with the possessory right of the respondents and did not involve the determination of any question as to title. It is further highly probable that the suit was not pressed because relief by way of injunction was found to be unnecessary. Under those circumstances, we cannot regard the decision in the previous suit as adjudication of the respondents' right or want of authority to remain in possession of the property. This would be so, notwithstanding the fact that costs had been decreed to the appellants as against the respondents. The appeal therefore fails. There will be no order as to costs.
(9) Appeal dismissed.