1. The only question argued in the Second Appeals is whether the respondents have a right of permanent occupancy in the plaint lands. The question whether the respondents have an occupancy right or not would depend upon the terms of the grant Ex. A and the subsequent history of the villages granted to Muhammad Moosa Sahib in 1829. Ex. A is the sannad given to Moosa Sahib by the East India Company, by which two villages were granted to him in lieu of a money grant which was made on account of the services rendered by him to the East India Company. The amount originally granted was Rs. 1,700, being the income of these villages. Moosa Sahib wanted one village to be granted in lieu of these villages and he was willing to retain one of the seven villages originally granted. The sannad gave him two villages and the grant comprises not only cultivated portions but all the uncultivated portions as well as waste portions and poramboke, etc. This grant was afterwards confirmed at the time of the Inam Settlement. The grant was for three generations. The contention on behalf of the appellant is that what was granted was not an estate and that there were no tenants on the land at the time with rights of occupancy and that the subsequent history of the villages shows that no tenant had occupancy right in the lands. On behalf of the respondents it is urged that what was granted was an estate within the meaning of the Estates Land Act and that as the respondent continued to be in possession at the time when the Estates Land Act came into force, by virtue of Section 6 of the Act they acquired an occupancy right though they had it not before. The question is not free from difficulty. Both the Lower Courts have found that the respondents have occupancy rights ,and have decreed their suit.
2. Ex. A is no doubt favourable to the contention of the respondents. There are two statements in it which I think to some extent support the contention of the respondents. One is that the villages were granted in lieu of a money grant and that the beriz of the village was taken into account in order to determine the income from the villages. The second is the following recital, ' In order to make the ryots and others in the two villages given as aforesaid to obey your orders, you should publish it as well so as to proclaim it to all. ' Prima facie it would appear there were ryots on the land in the two villages. If Ex. A had stood alone, it might lend considerable support to the respondents' contention but Ex. XIV, the Inam Register prepared in 1865, which gives the history of the villages is opposed to their contention. In Fasli 1211, the extent of the village is given as 324..92 acres, of which 728.17 acres, were poramboke. Of the remaining 2516.75 acres, the dry land was 1083.52 acres and wet 38.36 acres. Dry waste is given as 1322.14 acres and wet waste 72.73 acres. Therefore out of the total, the waste land was more than half of the land in the village excluding the poramboke. In Fasli 1270 the extent of dry cultivation is given as 1191.85 and that of wet cultivation as 62.38 and the extent of the remaining wet and dry waste is 1262.52 acres. There is a remark on page 4 to the effect that ' the value of the village should be fixed at the beriz of Fasli 1261, that is, the one fixed by Mr. Phillips, and the reason assigned by them is that though the present cultivation is 2,200 acres, the cultivation is not permanent. It is permanent nowhere and the actual cultivation is not strictly ascertained....They are not able to give any reliable account of the past year's beriz. The villages are held by one of the Jaghirdars on rent from others and they fixed it at a sum which does not exhibit the actual value of the cultivation. ' The villages descended to the heirs of Moosa Sahib and they held the villages in several shares. According to the Muhammadan Law, as understood by the Kazi, whenever any sharer died without any issue, his share lapsed or escheated to the Government. But the Government did not take over his share but added the income due to his share to the jodi fixed on the villages and the persons in possession were asked to pay to the Government the income from such share together with the jodi. It is clear from the statement in the Inam. Register that there was no permanent cultivation of the land and that the amount of cultivation varied from year to year. This circumstance is strongly opposed to the contention that there were tenants with' rights of permanent occupancy of the land and the statement that ' the villages are held by one of the Jaghirdars on rent from others and that they fixed it at a sum which does not exhibit the actual value of the cultivation ' shows, I think, that the income was derived from the actual cultivation of the land and not from the tenants who paid a certain amount to the landlord. It is not suggested that the sharing system prevailed in this village, in which case it might be that the income varied from year to year depending upon the cultivation. But the income was only calculated in money and therefore the statement in the Inam Register should be considered as referring to the actual cultivation by the inamdars either through their own servants or by giving leases to people prepared to cultivate the land. Their Lordships of the Privy Council rely upon the history of an estate in order to determine the existence or otherwise of permanent occupancy rights. Venkata Sastrulu v. Sitharamudu ILR (1919) M 166 : 37 MLJ 142. In this case the history of the two villages affords considerable weight to the contention of the appellant that the respondents had no occupancy right. In the first place, there is no evidence that there were any tenants with occupancy rights at the time of the grant. Secondly, the evidence of the fifth witness is that he and his ancestors enjoyed the land during the last 70 years. He gave his evidence in 1919 and 70 years from that date would carry us back to 1849. The grant was made in 1829 and there is no explanation offered by him as to how his ancestors came into possession. Thirdly, there is also the evidence supplied by the Inam Register that the cultivation was not permanent and that the income varied from year to year.
3. It is well settled now that there is no presumption that a tenant has occupancy rights. If the property in dispute is an estate, then under Section 6 of the Estates Land Act, he gets occupancy rights. But where it is not an estate the onus is upon him to prove that he has occupancy rights. In Nainapillai Marakayar v. Ramanathan Chettiar ILR (1923) M 337 : 46 MLJ 546 their Lordships observe : ' It cannot now be doubted that when a tenant of land in India in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent occupancy in the lands the onus of proving that he has such a right is upon the tenant. ' That being so, it is for the respondents to prove that they have occupancy rights. It is urged on behalf of the respondents that these villages were granted as jaghir to Moosa Sahib and that therefore these villages formed an estate within the meaning of Section 3 of the Estates Land Act. Mr. Sampath Aiyangar relied upon Section 3, Clause 2 (c), that any unsettled palayam or jaghir is an estate. The Subordinate Judge is of opinion that a jaghir in order to come within the definition of Section 3 must be a jaghir before the time of the East India Company. Without considering whether such an opinion is well founded or not, we have to see whether by the mere use of the word ' jaghir 'the incidents of an estate would attach to any property. It was strongly urged for the respondents that as the word ' jaghir' is used in Ex. A, the sannad, the villages must be considered, as possessing all the incidents of a jaghir. The use of the word l jaghir ' by itself does not signify much. Mr. Justice Coutts Trotter, as he then was, observes in Sam v. Ramalinga Mudaliar ILR (1916) M 664 : 30 MLJ 600 'I have come to the conclusion that these lands, though so described, are not jaghirs within the meaning of the Estates Land Act but are merely ordinary inam. ' We have therefore to see whether these villages form an estate within the meaning of Section 3 of the Estates Land Act apart from the mere use of the word ' jaghir. ' The respondents rely upon the statements in the Salem District Manual which described these villages as jaghir. I do not think that by the mere use of the word ' jaghir' the villages can be said to be an estate.
4. It is next urged for the respondents that if it is not 'jaghir' it must be considered to be an inam within the meaning of Sub-clause (d) of Section 3, Clause 2. In that case, any village of which the land revenue has been' granted in inam to a person not owning the kudivaram thereof would be an estate. To say this is an inam would be begging the question. The question is whether the land revenue alone was granted in this case or whether the land itself was granted. In Mussammat Sakina Bai v. Kaniz Fatima Begam 22 CWN 577 their Lordships of the Privy Council held, 'the word 'jaghir' primarily points to occupancy, though it may be occupancy of an office such as that of Collector of revenue. Where, however, a jaghir held for life only is, as in this sannad, used in contradistinction to an ilaka held as a permanent zamindari, it is an almost necessary inference that the occupancy referred to is occupancy of land. ' By the sannad, not only cultivated land but waste, poramboke, jamabandi, kattumaniam and inam were granted. It is urged by Mr. Ramachandra Aiyar who appears for the appellant that the fact that poramboke and waste land was given shows that it was land that was given and not merely land revenue. He further contends that a good portion of the waste land was brought under cultivation and that it cannot be said there were any tenants with occupancy right on the waste land. That a good deal of waste land was brought under cultivation is clear from Ex. XIV. When waste land was given to the grantee, it cannot be said that land revenue alone was granted. That being so, the grant does not come within) the purview of S.3, Clause 2 (d).
5. It is urged for the respondents that the onus is upon the landlord to show that lands are not subject to occupancy right. That argument assumes that the villages are an estate. If the villages are an estate within the meaning of Clause 3, no doubt the onus would be upon the landlord to show that the lands are not subject to occupancy right; in other words, the lands are not ryoti lands. But in this case we have to determine from the evidence whether the villages are an estate or not. That being so, Sections 23 and 185 of the Estates Land Act do not help him. It is urged by Mr. Ramachandra Aiyar that the original grant of money was about Rs. 1,700, and that the income from the villages was only about Rs. 1,500 and odd, and that in order to make up for the balance waste and other lands were given. That argument receives support from the statement in the Inam Register, 'The only indirect explanation' for his deficiency is found in the reservation of the poramboke lands and resumed kuthu kodigi inams for the use of the Jaghirdar in right as profit.' That waste lands were given to the grantee under Ex. A cannot be disputed. That they could not have been in anybody's possession is apparent. There, is no evidence in this case that there were any tenants at the time of the grant in 1829. It is urged for the respondents that it was not likely that the East India Company's agents cultivated the lands and that there must have been tenants on the land. The mere fact that Government was able to get an income does not show there were tenants with rights of occupancy as in the case of ryotwari land. If it was ryotwari land then pattas must have been issued to the persons in occupation. No such evidence is forthcoming in this case. It is open, no doubt, to the Government to grant a ryotwari village as inam to a person. In such cases, the revenue alone is inam. In the absence of evidence it cannot be presumed from the mere fact that Ex. A speaks of beriz, it must be beriz derived from the tenants with rights of permanent occupancy. The lower Courts have come to the conclusion that the respondents have occupancy right on the ground that the villages were granted as jaghir. They overlooked the fact that the onus is upon the tenants to prove that they have occupancy right. I hold that the villages in question are not an estate within the meaning of Section 3 of the Estates Land Act and that the respondents have no occupancy right in the plaint land. In the result, the appeals are allowed and the judgments of the Lower Courts are set aside and the plaintiffs' suits are dismissed with costs throughout.
6. In S.A. No. 254 of 1922 : The judgments of the Lower Courts are set aside and the case remanded to the Munsif's Court for trial of the remaining issue. The appellant is entitled to his costs in this Court and the Lower Appellate Court. The costs in the Munsif's Court would abide the result of the suit.
7. Appellant will have refund of the Court-fee paid in this Court.