4. These revision petitions came up for hearing in the first instance before a Division Bench consisting of Govinda Menon and Basheer Ahmed Sayeed JJ. and they considered it was desirable that one of the questions involved in the petitions, namely, the construction and applicability of Sub-section (3) of Section 189 of the Madras Estates Land Act should be decided by a Full Bench.
5. The facts necessary for the disposal of this reference are as follows: The plaintiffs are the proprietors of a village called Bommaluru in the Krishna district. They filed suits against the tenants in possession of holdings in the village for an injunction restraining them from removing thepaddy heaps standing on the suit lands until a due division was made of the crop and until the rent in kind payable to the plaintiffs be paid by the tenants-defendants, for effecting a division of the paddy heaps, or in the alternative for payment of the value of the plaintiffs' shares of the crop. The suits were filed in the court of the District Munsif of Bezwada. The tenants pleaded 'inter alia' that Bommaluru was an estate within the meaning of the Madras Estates Land Act and they had occupancy rights therein.
Anticipating this plea, the plaintiffs alleged in their plaint that by reason of the prior decision of the Revenue Divisional Officer, Nuzwid, in M. P. No. 2 of 1938 that the said village was not an estate, which decision was confirmed by the District Collector and the High Court, the contesting defendants were precluded from raising this plea. One of the points for determination, therefore, was:
'Whether this decision in M. P. No. 2 of 1938 of the Revenue Divisional Officer of Nuzwid operates as 'res judicata' as between the parties on the question as to whether the suit land is an estate.'
6. M. P. No. 2 of 1938 was a petition filed by 21 tenants in the village under Section 40 of the Madras Estates. Land Act for commutation of rent. In that petition, the present plaintiffs who were respondents therein, contended that Bommaluru was not an estate. The Revenue Divisional Officer decided that it was not an estate and dismissed the petition. There was a revision petition filed against the order of the Revenue Divisional Officer to the District Collector of Krishna who dismissed it. A civil revision petition was then filed to this court, but this court dismissed it on the ground that a revision petition would not lie to the High Court. The contention of the land-holder is that the above decision of the Revenue divisional officer is binding on the civil court. Reliance is placed on Section 189 (3) of the Madras Estates Land Act. Section 189 runs thus:
'189. (1) A District collector or Collector hearing suits or applications of the nature specified in Parts A and B of the schedule and the Board of Revenue or the District Collector exercising appellate or revisional Jurisdiction therefrom shall hear and determine such suite or applications or exercise such Jurisdiction as a Revenue court.
No civil court in the exercise of its original jurisdiction shall take cognisance of any dispute or matter in respect of which such suit or application might be brought or made.
(2) Decrees and orders passed in the suits and applications referred to in Sub-section (1) shall be subject to appeal as provided in the sixth column of Parts A and B of the schedule.
(3) The decision of a Revenue court or of an appellate or revisional authority in any suit or proceeding under this Act on a matter falling within the exclusive jurisdiction of me Revenue court shall be binding on the parties thereto and persons claiming under them, in any suit or proceeding in a civil court in which such matter may be in issue between them.
(4) The decision of a civil court on any matter falling within its jurisdiction shall be binding on the parties thereto and persons claiming under them In any suit or proceeding before a Revenue court or an appellate or revisional authority in which such matter may be in issue between them.'
An application for commutation of rent under Section 40 of the Act is one of the applications specified in Part B of the schedule to the Act, A District Collector or Collector, therefore, has exclusivejurisdiction to hear the application as a revenue court. The question is whether the finding of the Revenue court that Bommaluru village is not an estate given by it in disposing of such application is binding on the parties in the civil court to which the same issue arises, because of the provision in Section 189(3).
7. The learned Judges referred to two decisions of two Division Benches, dealing with the applicability of Section 189(3) of the Act, as being in conflict with each other, namely, -- 'AIR 1920 Mad 558 (A)' and -- 'AIR 1928 Mad 1122 (B)'. We may observe at the outset that neither of these decisions directly covers the present case. In the said two cases, the decision of the Revenue Court which was relied upon as 'res judicata' in the civil court was in a suit under Section 55 of the Madras Estates Land Act. But there are decisions of Division Benches to which we shall refer later which are directly in point in cases where the prior decision of the Revenue court was on an application under Section 40 of the Act just as in the case before us. In these cases, the learned Judges held that the prior decision would not be 'res judicata'. So far as we are aware, the correctness of these decisions has never been doubted. Therefore, a reference to a Full Bench was not strictly necessary. As the matter, however, is before us, and was fully argued, we think it is desirable to resolve the conflict.
8. Before we deal with the decided cases on the point, let us look at the language of Section 189(3). That sub-section has of course to be read along with Sub-section (1). Sub-section (1) specifies certain suits and applications in respect of which a revenue court would have jurisdiction. It also declares that no civil court in the exercise of its original jurisdiction shall take cognisance of any dispute or matter in respect of which such suit or application might be brought or made. Therefore, it is clear that it is only in respect of such disputes or matters as are covered by the suits or applications specified in Section 189(1) that the revenue court can be said to have exclusive jurisdiction, that is, jurisdiction to the exclusion of a civil court. Sub-section (3) of Section 189 provides that the decision of a revenue court on a matter falling within such exclusive jurisdiction of the revenue court shall be binding on the parties and their representatives in any suit or proceeding in civil court.
If a particular matter is one which does not fall within the exclusive jurisdiction of the revenue court, then a decision of a revenue court on such a matter, which might be incidentally given by the revenue court, cannot be binding on the parties in a civil court. One practical test would be to determine if that particular matter would not be a matter in respect of which the civil court would have jurisdiction. To give an obvious instance, suppose in a suit under Section 55 for the grant of a patta instituted by a person claiming to be the adopted son of the ryot who was a pattadar, the landlord raises a plea that he is not entitled to the patta because his adoption is not valid. It may be that the revenue court would have to summarily go into the question whether the person suing is or is not the validly adopted son of the previous ryot. Can it possibly be said that the finding of the revenue court on the issue of adoption is binding on the parties in a subsequent suit in a civil court in which the validity of the adoption might fall to be decided? There can be no doubt about the answer.
That is because the dispute as to the validity of the adoption is not a dispute in respect of whicha revenue court has exclusive Jurisdiction. Such a dispute is a matter well within the jurisdiction of , a civil court. Therefore, it cannot be within theexclusive Jurisdiction of the Revenue court, and the decision of such a dispute by a revenue court cannot be binding in a civil court.
9. In -- 'Sitaramayya v. Narasimhalu', S. A. Nos. 1003, 1213 and 1214 of 1916 (Mad) (D) there was an application in the revenue court under Section 40 of the Act for commutation, Incidentally, the right of the tenant to the holding was decided. In a subsequent suit in a civil court by the tenants to set aside an order passed by a criminal court under Section 145, Crl. P. C. confirming the possession of the landholder, the landholder pleaded that the suit lands did not form part of an estate, and that they were his private lands. The tenants contended that the decision of the revenue court on this question was 'res judicata' under Section 189 (3). Seshagiri Aiyar & Napier JJ. held that it would not be.
'Under Section 189 of the Estates Land Act, only those decisions which are entirely within the jurisdiction of the revenue court are binding on the parties thereto in a proceeding in a civil court. The previous proceeding in the revenue court wasunder Section 40. The issue that arose for decision in that suit was as regards the commutation of rent. The right of the tenant or of the landlordto the holding could not be adjudicated upon under Section 40, although incidentally a conclusion may be come to as regards the relationship between the parties. On the other hand, the Estates Land Act leaves it to the civil court to determine the question whether a tenant hasoccupancy right or not. The adjudication of the question of the title of the tenant not being onewithin the exclusive jurisdiction of the revenuecourt, the decision of that court is not 'res judicata' in the subsequent civil proceedings.'
In -- 'Satrucherta Sivaskandamraju v. Venkandhora', S. A. No. 786 of 1919 (Mad) (E), Section 189(3)had to be interpreted with reference to a priorsuit brought in the revenue court for rent allegedto be due from persons on the footing of theirholding jeroyati lands liable to rent under theEstates Land Act. That suit was decided in favourof the defendants in a civil court, in which it wascontended that the prior decision of the revenue court on a question of title was 'res judicata', Thecontention was not accepted.
The learned Judges, Ayling and Coutts Trotter JJ. considered the two constructions of the provision (Section 189(3)) put forward by counsel on either aide and adopted what they called the narrower construction of the section, which they thus setout:
'It we look at the words of the section all it does is this. It says that when you get a decisionon a matter exclusively within the jurisdiction of the revenue court its decision on that matter shall operate as 'res judicata' when that exact matter arises again between the parties, that is to say, that in so far as the decision of the revenue court says that rent is due, that conclusion being on an issue which is exclusively within its jurisdiction is final between the parties;hut none of the steps by which it is arrived atand none of the necessary inferences on which alone it can be based can come within the wordsof the section and act as 'res judicata'.'
The learned Judges treated the matter as 'res Integra' and one of first impression. In -- 'AIR 1920 Mad 558 (A)', the prior proceeding in the Revenue court was a suit to enforce the acceptance of patta. The subsequent suit in a civil courtwas by the landlord for ejectment of the tenants It was contended on behalf of the landholder that by reason of the decision of the revenue court in the suit for enforcement of patta the question whether the defendants tenants were entitled to hold the particular lands as ryots must be decided against them as 'res judicata' and reliance was placed on Section 189 (3) of the Act. This contention was rejected by Sadasiva Aiyar and Spencer JJ. Both the learned Judges referred to the two un-reported decisions mentioned above and agreed with them. Sadasiva Aiyar J. after considering the several relevant sections of the Act, came to the conclusion that Section 189(3) was not intended to go beyond Section 11, C. P. C.
Spencer J. dealt with the point thus:
'Next it is argued that since, in such suits, the Collector is bound by the provisions of Section 57 to first inquire whether the defendant is bound to accept a patta and secondly whether the patta tendered is a proper one, and since in Section 51 the local description and extent of the iaod, and all special terms by which the parties are to be bound are some of the details to be contained in the patta, a civil court is precluded from going into the question whether a ryot, who was previously a party to suits for acceptance of patta, has occupancy rights in any portion of the land in that patta. I think the District Munsif has given the correct answer to this argument in paragraph 11 of his judgment. He says: 'in deciding the propriety of the terms of a patta the question of the defendants' occupancy rights does no doubt arise for incidental decision, but it cannot be said that it arises so directly and substantially for decision that the decision thereon by a revenue Court can be said to be 'res judicata' in a subsequent ejectment suit in a civil court where the question may again directly and substantially crop up.'
He stated his conclusion thus:
'In the present case, I am of opinion that the prior decision having been a decision upon an. incidental question as to occupancy rights, and a matter falling within the exclusive jurisdiction of a revenue court, is not binding on the civil court under Section 189 (3), although it did arise in a suit to enforce acceptance of pattas which was exclusively cognisable by a revenue court.'
In -- 'Ramadina Das v. Mundalo', AIR 1921 Mad 473 (P) the learned Judges (Wallis C. J. and Old-field J.) construed Section 189 (3) in the same way. Repelling the contention that the finding of a revenue court on the question whether particular lands are situated in an estate or not is binding in a subsequent suit in the civil court for a declaration that the lands did not form an estate the learned Judges held that the revenue court was not the competent authority to decide finally whether any particular lands constituted an estate or not.
The following observations of the learned Judges are instructive:
'For the purpose of deciding whether it should exercise that jurisdiction, the revenue court like any other court of limited jurisdiction, has to determine whether the facts are such as to give it jurisdiction, just as a Small Cause Court has to determine the question of title to land in a summary action for rent, or for damages for trespass. That decision however will not be binding, as held in the case Just referred to, on a civil court. Supposing that the revenue court in this case decides that the lands are an estate, the present plaintiff the landlord, will be none the less entitled to sue for the old uncommuted rents in the civil court and the civil court will not be bound by the adjudication, if there is one, in the revenue court, and will be bound to reinvestigate the whole matter for itself. Therefore, the finding of the revenue court will not only be not 'res judicata' but it will not have any practical effect between the parties, until the matter is decided in a civil court.'
10. It is now necessary to deal with the decision in -- 'AIR 1928 Mad 1122 (B)' which sounded a different, note. It was there held by Phillips and Madhavan Nair JJ. that the decision of a Revenue court in a suit by a tenant, under Section 55 of the Act that he was not entitled to demand a patta was 'res judicata' in a suit instituted by the tenant in a civil court to recover possession of the land on the ground that he was the occupancy tenant, because of the provisions of Section 189 (3) of the Act. Phillips J. who delivered the judgment of the Court referred to -- 'AIR 1920 Mad 558 (A)', S. A. Nos. 1002, 1213 and 1214 of 1916 (Mad) (D) and -- 'AIR 1921 Mad 473 (F)', but he distinguished them on the ground that the circumstances were not the same' in those cases. Referring to the latter two cases, via., -- 'AIR 1921 Mad 473 (F)' and -- 'S. A. Nos. 1002, 1213 and 1214 of 1916 (Mad) (D)' the learned Judge said:
'In all these cases it is clear that the question decided in the revenue court was not one falling within its exclusive jurisdiction so far as those suits were concerned.'
He, however, recognised that the facts in -- 'AIR 1920 Mad 558 (A)' were very similar to the facts in the case before him. But, in his opinion, Sadasiva Aiyar J.'s judgment was based on a misapprehension that Section 11, C. P. C. is not applicable to proceedings under the Estates Land Act. Referring to the judgment of Spencer J. the learned Judge said:
'Spencer J. no doubt held that the decision as to title in the revenue court was a decision on an incidental matter inasmuch as the patta had been ordered and its provisions were settled. If in the present case the decision as to the occupancy right of the plaintiff can be deemed to be on an incidental matter, I entirely agree that it would not constitute 'res judicata' in subsequent civil proceedings. I am however of opinion that it is not a decision on a mere incidental matter but a decision on a matter falling within the exclusive jurisdiction of the revenue court.'
It was evidently argued before him that a suit would lie in a civil court to establish an occupancy right. Phillips J. did not deny this, but he thought that consequent on a declaration of a right of occupancy the plaintiff would be entitled to the further relief of grant of patta, and if he asked for the further relief he would have to be referred to a revenue court, and if he failed to ask for such relief the court would not grant a bare declaration. With great respect to the learned Judge, there, is a fallacy in this reasoning. The proviso to Section 42 of the Specific Relief Act would not apply when the further relief consequent on the declaration is a relief which cannot be sought in a civil court. The plaintiff in such a case cannot be said to be 'able to seek further relief'.
Moreover there is nothing to prevent a civil court declaring his right of occupancy and referring him to a revenue court for any further relief. We agree with Spencer J. that the dispute as to occupancy right and the question whether the lands are situated in an estate or not are not matters falling within the exclusive jurisdiction of the Revenue court, and we differ with respect from Phillips J. Once such matters are deemed to be Incidental matters, Phillips J. himself agrees thata decision on such a matter would not constitute 'res judicata' in subsequent civil proceedings.
11. In -- 'Muthu Vijiaraghunatha v. Venkatachalam Chettiar' : AIR1934Mad551 Jackson. J. construed Section 189(3) thus:
'Under Section 189(3) Madras Estates Land Act, the decision of a Revenue court on a matter within is exclusive jurisdiction shall be binding in any civil suit. That is to say that the Legislature has provided a cheap and speedy final settlement of such rent disputes as are within the exclusive jurisdiction of the Revenue Court, but of course never intended that larger questions of title and so forth should be summarily settled in this fashion. No doubt in settling a rent dispute a revenue court may have to consider a question of title. Its decision as regards the rent sued for will be final, but as regards the title, a matter which obviously is not within its exclusive jurisdiction, its decision will not be final.'
He followed the rulings in -- 'S. A. No. 786 of 19 19 (Mad) (E)' and -- 'AIR 1920 Mad 553(A)'. The decision in -- 'AIR 1928 Mad 1122(B)' was distinguished by him thus:
' 'AIR 1928 Mad 1122 (B)' is no departure from the other Madras rulings, because there the 'ratio decidendi', is that because the decision as to occupancy right is on a matter falling within the exclusive jurisdiction of the revenue court therefore it is 'res judicata'.'
While we agree with Jackson J. in his construction of Section 189 (3) we cannot agree with him that -- 'AIR 1928 Mad 1122 (B)' is no departure from the other Madras rulings. In our opinion, the decision of a revenue court as to occupancy right is not on a matter falling within its exclusive jurisdiction and therefore it is not 'res judicata' in a subsequent civil proceeding. In -- 'AIR 1947 Mad 276 (C)' the conflict between -- 'AIR 1920 Mad 558 (A)' and -- 'AIR 1928 Mad 1122 (B)' was. noticed but the learned Judges thought that it was quite unnecessary to consider the conflict.
12. In our view, -- 'AIR 1928 Mad 1122 (B)' was wrongly decided and is opposed to a considerable body of judicial opinion in our court. With respect, we agree with the interpretation of Section 189 (3) of the Madras Estates Land Act adopted by successive Bench decisions already mentioned above, namely, that it is only in respect of disputes or matters exclusively within the Jurisdiction of a revenue court that its decision would be binding on the parties in a subsequent civil proceeding and not its decision on incidental disputes or matters which arise in the course of adjudicating on the disputes and matters falling exclusively within its jurisdiction. Applying this principle to the cases before us, there can be no doubt that the decision of the Revenue court on the question whether Bommaluru village is an estate or not in the prior commutation application cannot be binding in the subsequent civil suits.
13. The civil revision-petitions will be posted in due course before the Division Bench for disposal of the other questions arising therein.
14. (After the expression of the Opinion of the Full Bench, this petition having stood over for consideration the court delivered the following Judgment): (Delivered by Basheer Ahmed Sayecd J.:) (12-12-53). These civil revision-petitions are now before us after the decision of the Pull Bench in -- 'Bhava-narayana v. Venkatadu' : AIR1954Mad415 , on the reference made to it on the question of the construction and the applicability of Sub-section 3 ofSection 189 of the Madras Estates Land Act, for being disposed of on the other questions involved in these petitions.
15. The questions now before us are: (1) whether the suit lands constitute an 'estate' as deiin-ed in the Madras Estates Land Act and (2) whether the defendants have got any occupancy rights in thesame. The contention of the learned counsel for the petitioners is that Bommaluru Mokhasa Village was a pre-settlement inam and the grant of this inam was nut of a whole village but only of something less than a village and, therefore, it is not an 'estate' under the Madras Estates Land Act. Mr. Narasaraju the Advocate General of Andhra appearing on behalf of the petitioners urges that the suit lands were granted as an inam by the zamindar and that at the time when he was granting the suit lauds he had reserved to himself certain lands which formed part of the village and later on granted the said lands so reserved by him as a Khandrika. He, therefore, argues that neither the grant of the Mokhasa which was not of a whole village nor the grant of the Khandrika will entitle the suit lands to be treated as an inam of the whole village. Consequently, he urges that the amending Ace of 1945 will not be applicable to the facts of the present case.
16. His further point is that there is direct evidence furnished by the documents filed in the suits to show that the original grant was not of a whole village but only that of a part of a village. For this contention, in the first place, he relies, upon Ex. P. 9. Ex. P. 9 is an extract from the Inam register. This extract shows that the grant was a pre-settlement inam in which the Government had no right of reversion. At the time of the permanent settlement, all Mokhasas in the Nuzvid zamindari were taken into account, and consequently, the right of reversion in the Government could not exist. Besides, a reading of column 22 of the inam register would show that the Government also ruled out the possibility of any enfranchisement of the inam, and, actually, proceedings in connection therewith were cancelled. The inams mentioned in column 3 of Ex. P. 9 together With the extents mentioned in columns 4 and 5 do not seem to be part of the Mokhasa, These are inams which have been pre-existing and they have been excluded from the grant. If the inams preexisted and if they had actually been excluded from the grant, then it cannot be said that the grant was that of a whole village. Ex. D. 10, D. 11 and D. 12 which relate to the Nuzuid zamindari definitely point to the fact that Bommaluru Mokhasa was not excluded from the permanent settlement.
In addition to these, Mr. Narasaraju has invited our attention to the decisions in -- 'Sadasivarayudu v. Venkataswami', AIR 1932 Mad 289 (I);--'Sesha-giri Rao v. Rammayya', AIR 1945 Mad 503 (J) and-- 'Bapiraju v. Vallayya', AIR 1948 Mad 213 (K), in which it has been held repeatedly that, in the Nuzuid zamindari, at the time of the permanent settlement, all the Mokhasas including Bommaluru were included. The decisions we have cited above are only the last of the series of the decisions, for, there have been many other decisions which have gone before these decisions commencing from --'Sree Rajah Venkatarangayya v. Appalaraju', 20 Mad LJ 728 (L).
17. In the Full Bench Judgment in : AIR1954Mad415 , to which both of us were parties, the principles which are to govern the determination as to whether the grant of an inam is an 'estate' within the meaning of Section 3(2)(d) of the Madras Estates Land Act have been fully discussed and it has been held that:
'The crucial test to find out whether the subject-matter of a grant fans within the definition of an 'estate' in Section 3(2)(d) of the Act is whether at the time of the grant, the subject-matter was a whole village or only part of a village. If at the time of the grant it was only part of a village, then the amending Act 2 of 1945 makes, no difference to this and such a part would not be an 'estate' within the meaning of the term. But if the grant was of the whole village and a named one, then it would be an 'estate'.'
18. Applying this test, since, in the present case, the subject-matter of the grant is not a whole village but only part of a village excluding the lanas reserved for himself by the zamindar and also because of the fact that the inams already granted were not included in the grant of the Mokhasa of Bommaluru, the explanation (1) to Section 3(2)(d) will not apply to this inam and, therefore, the subject-matter of the grant cannot be an 'estate'. In view of the fact that the inams already granted were not included in the grant of the Mokhasa in question and that there were also other minor inams in the Mokhasa and the grant itself was not of an entire named village, we cannot hold that, the extent of land granted in this village would fail within the meaning of Section 3(2)(d) read with Explanation 1 to that section. The preexisting inams which have not been included in the grant of the Mokhasa will certainly preclude the grant of the Mokhasa from being that of an entire or whole village,
It is sufficient in this connection to refer to the decisions of this court in -- 'Tulabandu Adenima v. Satyadhyana Thirtha Swamivaru', AIR 1943 Mad 187 (M) and also --- 'Venkanna v. Lakshmipathi Raju', AIR 1946 Mad 409 (N), which are to the effect that where the zamindar is found to have granted some years later some portion to another person for his own benefit out of the lands reserved by him, it could only mean that the earlier grant was not of the whole village and the amending Act of 1945 could not apply to make the lands-under the earlier grant an 'estate' the tenants whereof could have permanent occupancy rights.
19. The documentary evidence in this case does not show that the extent granted as Mokhasa excluded merely lands which have already been granted on service or other tenures or have been reserved for communal purposes so as to attract the language of explanation 1 to Section 3(2)(d) of the Act and make the grant of the Mokhasa an 'estate' within the meaning of that section. On the other hand, in the present case, certain lands have been reserved by the zamindar at the time of the grant of the Mokhasa, and these lands have not been granted a service tenure or other tenure or for other communal purposes but they have been granted as a Khandriga as could be gathered from Ex. P. 1, the sanad for the said Khandriga, dated 30-11-1814. This sanad read with Ex. P. 1 (a), the Checknama shows that certain lands were carved out of the original village and were regranted as a Khandriga; Ex. P. 1(a) the Checknama also fixes the extent of the land granted as Khandriga and its boundaries. Exhibit P. 15 which is the judgment in the civil suit O. S. No. 182 of 1913 confirmed by the High Court and which decision became final, also points to the fact that the Khandriga granted was not a separate village but that it was a part of Bornmaturu village proper.
The finding of the Sub-Court is to the effect:
'The qualifying epithet found in Ex. A. 1, that it was in amani would suggest that while the main portion of Bommaluru village was held as a mokhasa, the rest of it was under the direct management of the zamindar and (later on became a Khandrika or a) revenue free village toy virtue of the grant. The contention that it was a separate village before the grant is therefore manifestly untenable especially in view of the necessity for localising its boundaries by means of a chekunama Ex. B.'
Paragraph 15 of Ex. P. 14 which is a Judgment by the District Munsif in respect of the Khandriga granted by the Nuzvid Zamindar and which appears also to have become finalised between the parties points to the fact that the documentary evidence unmistakably showed that the lands forming the village or Kandrika were amani and were gifted to the defendants' ancestors on condition that 50 pagodas should be paid to the Nuzvid zamindar and that year after year the grantee was getting the harvest done and taking the produce.
The documents also indicated that the lands were not leased but were under the personal or private management of the zamindar and that they were parcelled out from the main village of Bommaluru and were constituted into an Agraharam. Therefore, the existence of this Kandriga which was granted from out of the lands reserved by the zamindar would make it quite indisputable that the Mokhasa granted earlier was not of a whole village but that it was only of part of a village, the lands comprised by the later Khandriga having been carved out of the original village. On a consideration of this documentary evidence, we are of the opinion that the Mokhasa in question is not an 'estate' within the meaning of Section 3(2)(d) read with explanation 1 thereto.
20. As against these, it is the contention of the learned counsel, Mr. P. Somasundaram appearing for the respondents that this Mokhasa in question was granted in 1785 and that it could not be other than an 'estate' within the meaning of Section 3(2)(d) read with the explanation. He relies upon the concurrent finding of the courts below that it has been treated as a separate village. He relies on Ex. D. 9, the sanad granted on 8-12-1802, which points to the fact that one of the Mokhasa villages is held as an estate and that that should be enough to bring it within the scope of Section 3(2)(d) read with explanation 1 thereto, if it was such a village on the date when the Estates Land Act came into effect. It is true that in Ex. D. 9, the word 'village' is used in respect of certain Mokhasas but in the same exhibit we find that other mokhasas are not described as villages. The mere fact that this Ex. D. 9 contains a list of villages in the zamindari of the six paraganas of Nuzvid in the Kondapalli Circar, that, under each Parganna, various categories of villages are given, namely, Sheri villages, Serva Agfaharams, Kottubadi Mokhasas, Kattupadi agraharams, Doroboast Agraharams, Mokhasa villages etc., and that Bommaluru occurs under the category of 'Bilmukta Mokhasa' is not conclusive of the fact that the Mokhasa of Bommaluru was the grant of an entire village without any reservation by the zamindar as appears from the Khandrika carved out from the said village.
This Ex. D. 9 seems to be only evidentiary of the fact that the revenue authorities' treated this grant of the Mokhasa as a revenue village for their revenue purposes and such treatment by the revenue authorities will not, by any means, establish the fact that the grant itself was that of a whole village as contemplated by Section 3(2)(d) of the Madras Estates Land Act. We do not think that the treatment of the Mokhasa of Bommaluru as a village by the revenue authorities is quite relevant to decide the question as to whether the grant was of a whole or a named, village as required by Section 3(2)(d) and explanation 1 thereto. We have I in fact, to look to the original grant in order to ascertain what exactly is the character of the grant. But, in this case, the original grant is not available and the learned counsel for the respondents would argue that since there is no original grant for us to interpret, the conduct of the parties may be quite relevant.
According to him, the conduct of the parties shows that they have been quite conscious that Bommaluru was an 'estate' within the meaning of the Madras Estates Land Act. He relies upon the decision in -- 'Sankaranarayana v. Board of Commra. for H. R. E.. Madras' . We do not think that the conduct of the parties in this case is conclusive enough in a matter like this where the nature of the grant and the subject matter have to be construed in the light of the documents available in the case. We are not sure that the decision cited by the learned counsel applies to the facts of the present case. The learned counsel for the respondents also relies upon the fact that in 1888 the accounts of the Mokhasa village show that the Mokhasa village in question is a separate village. In particular he relies upon Ex. D. 10 which is the correspondence that passed between the various authorities of the Revenue department and the Government. It may be mentioned that Exs. D. 10 to D. 12 do not show that the grant was of a whole village although the word 'village' is used in those exhibits. It may also be mentioned in this connection that Taylor's report did not purport to enquire into the character of the grant of the Mokhasa as to whether it was of a whole village or a part of the village.
Mr. Taylor was not really concerned at the time with the tenure of the grant of the inam. All that Exs. D. 10, D. 11 and D. 12 would point to is that the Mokhasa was not excluded from the permanent settlement and that the Government's right of reversion to the mokhasa villages did not exist. The mere description 'Mokhasa village or villages' in the correspondence does not point to anything in the direction of the character of the grant of the Bommaluru village so as to attract the definition of the estate as contained in the Estates Land Act.
21. It is next argued by the learned counsel for the respondents that even if the subject matter of the grant in question does not fall within the scope of Section 3(2)(d) and the explanation (1) thereto, the subject matter will come within the meaning of Section 3 (2) (e) and, since Bommaluru Mokhasa has been treated as a separate village and since it is also part of a bigger whole, namely, the zamindari, it must be construed as an 'estate' falling within the scope of the Act. It is stated that, since Bommaluru Mokhasa village is a part of the zamindari of the Nuzvid zamindar, it could also be brought within the scope of Section 3(2)(a) of the Act. We do not think that there is any force in this contention. It is contended that since the right of reversion vests in the Zamindar and since it is part of the zamindari, the fact that the grant was made prior to the permanent settlement will not make any difference and that it would come under the definition of the 'estate' as contained in Section 3(2)(a). We are unable to agree with this argument of the learned counsel. By no means, could this Bommaluru village be a permanently settled estate or a temporary settled zamindari as is the definition contained in Section 3(2) (a).
22. As regards the applicability of Section 3(2)(e),the learned counsel contends that Section 3(2)(e) only states that any portion consisting of one or more villages of any of the estates specified in Clauses (a), (b) and (c) which is held on a permanent undertenure should be an estate, that in this case, Bommaluru village is a village and is a part of the estate of the zamindari and that therefore it should be considered as an 'estate'. This argument, commits, in our opinion, the fallacy which is contained in the assumption that Bommaluru village is a whole village. The learned counsel stresses the omission of the word 'grant' in Section 3(2)(e) and urges that while the word 'grant' occurs in Section 3(2)(d), it does not find a place in Section 3(2)(e) and that therefore it is enough if it is a village on the date when the Madras Estates Land Act came into force.
We have already considered Sub-clause (19) of Section 8 which defines the word 'village' and it is difficult for us to agree with the learned counsel for the respondents that though this definition of village may not be pressed into service in relation to Section 3(2)(d) it can be relied upon in relation to the interpretation of Section 3(2)(e) and the subject matter of the grant in question can be construed to be that of a whole village. We do not think that the omission of the word 'grant' in Section 3(2)(e) makes any difference to the determination of the question as to whether the subjectmatter of the grant in the present case is a whole village. It cannot be denied, in our opinion, that, even for purpose of considering the subject matter of the grant to be an 'estate' under Section 3(2)(e), it must in the first place, be any portion consisting of one or more villages of any of the estates specified in Clauses (a), (b) and (c) and, in the next place, it must be held on a permanent undertenure. The holding of one or more villages forming part of an estate on permanent undertenure would itself imply that there should be a grant.In order to bring the village within the scope ofSection 3(2)(e), there must be not merely a zamindari, or an estate, within the meaning of sub-clauses(a), (b) and (c) but there must also be a permanentundertenure of one or more villages.
In other words, it is argued that a post-settlement grant out of the zamindari will nevertheless be an 'estate' if it is separately registered under Section 3(2)(b) even if it be merely a part of the zamindari. There is no evidence here that this Mokhasa village is separately registered in the office of the Collector. It is also not the case that this Mokhasa village is a part of any unsettled palayam or jagir. As has been held in -- 'AIR 1948 Mad 213 (K)', the necessity that the grant should still be that of a whole village is, by no means, obviated by the language used in Section 3(2) (e) of the Madras Estates Land Act. In our opinion Section 3(2)(e) requires that the grant should be that of a whole village if it is to be an estate within the meaning of that section and we do not think that the respondents have succeeded in proving in this case that the grant in respect of Bommaluru village is that of a whole village.
In our opinion the ruling in -- 'Janakirama v. Jagani Gopalam' : AIR1952Mad224 (P) applies to the facts of the present case so far as Section 3(2)(d) is concerned and the Bommaluru Mokhasa village is neither an estate under Section 3(2)(d) nor under Section 3(2)(e) of the Madras Estates Land Act. The respondents have not shown that the grant was that of an entire village in order to entitle them to occupancy rights in the lands comprised within the Mokhasa and it does not come within the scope of the Madras Estates Land Act.
23. In the result, these civil revision petitions are allowed with costs. Before leaving this case, we have to point out, that had the learned advocate for the respondent, when the case was referred to the Full Bench, brought to our notice, the cases which he cited before the Full Bench, we might not have referred the matter to the Full Bench and therefore the remarks by the Full Bench 'therefore a reference to the Full Bench was not strictly necessary' would not have been made. Before us only two decisions were cited and the learned advocates on either side suggested a reference to a Full Bench. As the court cannot be expected to refer to cases not cited before it, the suits will be remanded for further trial on the other issues not disposed of by this court.