1. The learned Subordinate Judge has held that the plaintiff, an agraharamdar, should have sued to eject his tenant the defendants, in a Revenue Court, not before the District Munsif, on the ground that the suit village is an estate. The appeal has been argued on the grounds that (1) the burden of proof regarding the character of the suit village was imposed on the plaintiff wrongly, (2) there was, in any case, a failure to consider material evidence.
2. The plaintiff does not rely on Section 8, Estates Land Act; and the question therefore is only whether his village is an estate within the meaning of Section 3(2)(d); that is whether (1) the land revenue alone has been granted in inam, (2) the grantee was a person not owning the kudivaram. Now, if the nature of his tenure were under consideration with direct reference only to his right to sue in ejectment, there is no doubt that the authorities cited by the lower Court would have been in point and its conclusion correct. But the dispute at present is as to jurisdiction and as to it the first rule is that the party seeking to oust the jurisdiction of the ordinary Civil Courts must establish his right to do so. This is recognised in Indety China Nagadu v. Potu Konchi Vcnkatasubbayya (1910) 1 M.W.N. 639 a case closely resembling the present and Virabhadrayya v. Sonti Venkanna (1913) 24 M.L.J. 669. This rule is founded on clear and general considerations, and distinct reason must be required to justify departure from it. Of course, as observed in the second decision referred to, 'an anomaly seems apparently to exist in the onus being placed on different parties in the same suit for the purpose of deciding the question of jurisdiction and for deciding the question of the landlord's right to eject.' And this led one of the learned Judges in Suryanarayana v. Potanna : (1914)26MLJ99 to describe this distribution as 'a little too fine and far-fetched,' whilst the other thought it necessary to explain it. In doing so he first, as I understand him, accepted the validity of the general rule, as above stated; but he then referred to the presumption 'which Courts have recognised about grants from the Crown being grants of the revenue only' as sufficient to turn the scale in the defendant's favour in the absence of other ground for an affirmative conclusion. If this means only that proof or an admission of the inam character of the village will raise a presumption that the first requirement of Section 3(2)(d) has been complied with, i.e., that the grant was of the land revenue alone, it may be accepted. And it is probable that this interpretation is correct since such a presumption was a sufficient ground of decision in the case then under disposal, one in which plaintiff relied only on pleas that his grant included both melvaram and kudivaram or in the alternative that he had subsequently acquired the latter. These alternatives alone were considered in Venkata Sastrulu v. Sitaramudu : (1914)26MLJ585 , and only the second of them in Ponnusamy Padayachi v. Karuppudayan (1911) 26 M.L.J., 285, the judgment of Miller, J., stating expressly that the first of them as well as the alternative relied on in the present case, and the plaintiff's ownership of the kudivaram prior to the grant, were negatived by the circumstances. All these cases in fact differed from the present because the question in them was only of the extent of the grant or the plaintiff's subsequent acquisition of the kudivaram not of its ownership at the date of the grant, regarding which plaintiff here admits nothing, arguing that it is for the defendant to prove that it was not his.
3. The reply attempted to this argument is that the point is covered by a presumption which must be drawn in the defendant's favour. But it has not been shown how such a presumption can be justified on its merits or supported by authority. On the merits it is not clear that there is any necessary or probable connection between the grant of an agraharam and the -grantee's possession prior to it of any right in the land; and if it is contended that the reasons against presuming a grant of the kudivaram to non-resident Brahmans are valid also against a presumption that they did not own the kudivaram at its date, the answer is that in the present case the non-residence of the plaintiff's ancestor, the grantee, has yet to be proved and that, when the defendants have proved it, it will no doubt afford a ground of decision. As regards authority no recognition of the presumption proposed is to be found or is to be expected in the majority of the cases already referred to, since it was unnecessary for their decision. On the other hand the learned Judges responsible for Virabhadrayya v. Sonti Venkanna (1813) 24 M.L.J. 659 said: 'It is not easy to hold that such a presumption is justifiable.' And its legitimacy was negatived directly in Indety China Nagadu v. Potu Konchi Venkatasubbayya (1910) 1 M.W.N. 639. Adequate reason for dissent from these two decisions has not been shown. The conclusion entailed is in accordance with Indety China Nagadu v. Potu Konchi Venkatasubbayya (1910) 1 M.W.N. 639 that the lower Court erred in imposing the burden of proof on the plaintiff in respect of the second question arising under Section 3(2)(d), that relating to the ownerships of the kudivaram at the data of the grant of the inam.
4. The lower Court's decision must therefore be set aside. It must readmit the appeal and dispose of it in the light of the foregoing observations. Provision for costs in this Court will be made in its final decree in accordance with the result. In these circumstances it is unnecessary to deal with the other ground argued in this Court, that material evidence was not considered.