Madhavan Nair, J.
1. The defendants are the appellants. These second appeals arise out of suits filed by the plaintiffs for the recovery of sums of money due for rent in respect of lands in the possession of the defendants. One of the contentions raised by the defendants was that the civil Court had no jurisdiction to entertain the suits, their contention being that the lands in respect of which the suits have been filed form an estate within the meaning of Clause (d), Sub-section 3, Madras Estates Land Act. Section 3(2)(d), Estates Land Act, defines an estate
as a village of which the land revenue alone has been granted in inam to a person not owning the kudivaram, provided that the grant has been made, confirmed or recognized by the British Government or any separated part of such village
2. The law is settled that where a grant in inam is a grant of both the landlord's and the tenant's right in the land or as they are called the melwaram and the kudivaram, the land is not an estate; but if the grant is of the landlord's right or melwaram alone it is an estate; so that the question to be decided is whether the grant is of the land itself or only of the right to the revenue from the land. If it is the former the civil Court has jurisdiction to try the suits. If it is the latter, then the jurisdiction to try them will lie in the Revenue Court. Both the lower Courts held that the grant in this case consisted of both the melwaram and the kudivaram and hence that the civil Court has jurisdiction to try the suits. In second appeal the defendants-appellants contend that this conclusion is wrong and that the lower Court should have held the lands form an estate as contended by them, and this is the only question argued before me. The grant in favour of the plaintiffs' predecessors is evidenced by Ex. A. The terms of the grant are as follows:
Gift deed dated nil. Deed of gift of shrotriem executed and given by Mallavarapu Venkatachellam Garu to Pydimari Dikshatulu on 15th Makha Sudha of Manmatha year, corresponding to the glorious era of Salivahana 1698. Fixing a total annual shrotriem beriz of 120 (one hundred and twenty) Madras star pagodas in respect of M. Chintalapalem Paragane Gudlur inclusive of Sadarvar, Deeva, Tahariar, Divani, Va Nazr, etc., we have settled the shrotriem and made a gift of it in propitiation to God on this auspicious occasion of lunar eclipse with the pouring of water with gold from Fasli 1185. You shall get the lands cultivated extensively year after year, and make them yield, pay as aforesaid, the sircar beriz year after year and enjoy the entire produce realized therefrom as long as the sun and the moon last from son to grandson and so on in succession and be happy. Here enter usual Sanskrit slokas.
3. Both parties agree that the word 'fruits' or 'usufruct' would better represent the original Telugu word than the word 'produce' appearing in the last sentence in the translation. In Somayajulu v. Seethayya AIR 1923 Mad 1, when a grant somewhat resembling the present one in its features, came before this Court for construction the Full Bench held that the words of the grant were equally consistent with the grant of the revenue or of the land itself and that being so, according to the decision in Muthu Goundan v. Perumal Iyer AIR1921Mad115, the presumption was that the grant was of both warams and that therefore the civil Court had jurisdiction to try the suits with respect to the 'grant' in question. This decision was taken in appeal to the Privy Council: see the decision in Seethaya v. Somayajulu AIR1929PC115. By the time the case was disposed of the Privy Council had held in Sivaprakasa Pandara Sannadhi v. Veerama Reddi AIR1922PC292, that there was no presumption either way and that each case must be decided on its own circumstances and on examining the circumstances of the case before them the learned Judges came to the conclusion that the grant in that case was of the melwaram only and that therefore the civil Court had no jurisdiction to try the suits. The decision of the Full Bench was accordingly set aside. This decision of the Privy Council was not in existence when the lower Courts dealt with the present case. Mr. Somayya argues that the lower Courts based their conclusions on the decision in Somayajulu v. Seethayya AIR1923Mad1, and that since the presumption that the grant would consist of both the melwaram and the kudivaram which was the basis of that decision was not accepted by the Privy Council in appeal, the lower Courts' decision in the present case should be set aside following the Privy Council decision in Seethayya v. Suhramanya Somayajulu AIR1929PC115. I am not satisfied that the lower Courts have based their decision on the decision in Somayajulu v. Seethayya AIR1923Mad1.
4. Though there is a reference to it in the first Court's judgment with regard to the meaning of the word 'mouja' which will be referred to later, in the judgment of the appellate Court there is no reference to it at all. It appears to me that both the lower Courts have decided these cases after an examination of the terms of the 'grant' and the circumstances of the case, without in any way being influenced by the now exploded presumption that the grant consists of both the varams which is just what should be done according to the Privy Council decision in Seethayya v. Somayajulu AIR1929PC115. I have referred to this matter at some length as Mr. Somayya's main argument was, that these cases are like the case of Somayajulu v. Seethayya AIR 1923 Mad 1, and as the decision in that case was set aside by the Privy Council, the decisions in these cases also should be set aside following Seethayya v. Subramanya Somayajulu, AIR 1929 PC 115. This result does not necessarily follow.
5. According to Seethayya v. Somayajulu AIR 1929 PC 115, each case should be decided on its own merits. As was done by their Lordships in the appeal before them, I shall now proceed to examine the terms of the document.
6. The grant purports to be a 'gift of shrotriem.' It refers to a total annual 'shrotriem beriz' of 120 Madras star pagodas and says we have settled the shrotriem and made a gift of it.' A shrotriem grant may be a grant of kudivaram as well as melwaram. Mr. Somayya argues that in this document the word shrotiem' means only a melwaram of 120 Madras star pagodas and that was what was constituted or 'settled' as the shrotriem and gifted to the shrotriemdars. It is difficult to accept this argument. We have to construe the document as a whole. It is clear from the last sentence that the shrotriem beriz' referred to at the commencement is the beriz' or the net revenue which the shrotriemdar has to pay year after year to the sircar. In the context it cannot refer to the melwaram' which is now stated to be the subject of the grant. The last sentence in the document gives a clue as to the meaning of the word 'shrotriem' used in the gift deed. The grantee is directed to get the lands cultivated, pay the sircar beriz year after year and then enjoy the entire 'fruits' realized 'therefrom.' I take it that this means that after paying the sircar beriz what remains of the fruits realized from the village should be enjoyed by the grantee. The expression 'you shall get the lands cultivated' does not necessarily show that the lands were already in the possession of the tenants and the grantee is to get them cultivated by them as contended for by Mr. Somayya. It is quite consistent with the meaning that it was the entire village that was granted under the deed. The grantee being a Brahmin, who does not generally cultivate lands the grantor may well say he should get the lands cultivated by them. However, it is not safe to rely on it as an absolute test.
7. It is next argued that all doubts regarding the nature of the grant are removed because of the letter M' used with reference to Chintampalem, the name of the village, the argument being that 'M' stands for mauza; and mauza according to the decision of the Privy Council in Seethayya v. Somayajulu AIR 1929 PC 115, means a village in which there are present proprietors owning cultivable lands. This argument would be conclusively in favour of the appellants' case if we could so understand the letter 'M.' In the document under construction in Seethayya v. Somayajulu AIR 1929 PC 115 no doubt the letter 'M' appeared in the description of the village and the Privy Council gave it the above interpretation; but it must be remembered that it was 'agreed to' between the parties in that case that the letter 'M' meant mauja: see the judgment of the learned Chief Justice in Somayajulu v. Seethayya AIR1923Mad1 at p. 97 (of 46 Mad,), wherein he says:
it is agreed that the latter 'M,' is an abbreviation for the word 'mauza' or 'mouja.'
8. In the case in Venkata Sastrulu v. Sitaramudu AIR1915Mad727, in which the word 'mauja' was first judicially interpreted by Sadasiva Ayyar, J., the village Billapadu was called by the full name a mauja or mauza,' and so there was no dispute about the word. In the present case the parties are not agreed as to 'what the letter 'M' stands for. As the learned Subordinate Judge points out:
in the absence of any evidence on the point it would be unsafe to act on a mere surmise that 'M' stands for mauza.
9. The present case comes from Nellore whereas the case in Somayajulu v. Seethayya AIR 1923 Mad 1 came from the Guntur District. If the full word 'mauza' had been prefixed, then the appellants' argument would have considerable force. As it is, in the absence of evidence much weight cannot be given to it, especially so when the other contents of the document give a different indication as to the nature of the grant. Mr. Somayya requests that an opportunity may be given to the appellants to give evidence as to the meaning of the letter 'M' used in the document; but no attempt was made in the lower Courts to give evidence on the point; and in second appeal I do not think it would be right to grant the request, especially so as the document taken as a whole leaves no doubt in my mind that what was granted as shrotriem was the entire village and not the melvaram alone.
10. Another circumstance of some importance in construing this document is the fact that the grant was made by Venkatachallam Garu who was at the time of the grant a Foujedar Diwan of the Nellore Taluk under the Nawab Wallajah. Foujedar is an officer in charge of the police, and criminal Judge; and he was also the chief officer and representative of the Nawab in the district with headquarters at Nellore: see p. 482 of the District Manual. He was also the head renter under the Nawab for the district: see p. 490 of the District Manual. In Seethayya v. Somayajulu AIR 1929 PC 115, the grantors were Despandyas who were merely revenue officers or farmers of revenue. The Privy Council pointed out that that being so, the strong probability is that
they granted that which, in their position as Despandyas they would possess, namely, the rights over the revenue.
11. In this case no such inference can be made as the foujedars were not only farmers of revenue, but also executive officers representing the Nawab. Their position would show that they may well have possessed entire villages as their own. No doubt the grant was made to a non-resident Brahmin, but, as pointed out by the Privy Council, this circumstance is by itself by no means conclusive. It has to be understood along with the other circumstances in the case.
12. Reading the document as a whole I think that what was granted under Ex. A was the entire village including the kudivaram in it and not only the melwavam as contended for by Mr. Somayya. The last sentence in the document clearly shows that the shrotriem beriz referred to in the beginning of the grant is only the revenue that the grantee has to pay to the sircar and that the entire village saddled only with the responsibility of paying this revenue was granted to the grantee to be enjoyed for ever. On the whole I agree with the opinion of the lower Courts regarding the construction of Ex. A. The meaning of the grant being clear, I do not think it necessary to examine the documents subsequent to the grant to find out its true nature. The lower Courts have however considered these documents and have come to the conclusion that the inference derived therefrom support the construction of the grant adopted by them. Some of these documents have been brought to my notice also and I may say that I agree generally with the view of the lower Courts in this matter. For the above reasons I hold that the view of the lower Courts that the civil Court has jurisdiction to try these cases, is correct and that the second appeals should be dismissed with costs. Before I conclude I must refer to a statement in the last paragraph of the learned Subordinate Judge's judgment referred to by the learned Counsel for the appellants. In that paragraph it is stated:
It has not been shown how the defendants have acquired permanent occupancy rights by any other means.
13. It is clear, and this is conceded also by Mr. Raghava Rao appearing for the respondents, that this sentence should be deleted as the defendants did not raise this question in the appeal before the lower Court and the plaintiff also did not appeal with respect to it.