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Ramalinga Mudali and anr. Vs. T.S. Ramasami Ayyar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1929Mad529
AppellantRamalinga Mudali and anr.
RespondentT.S. Ramasami Ayyar
Cases ReferredSam v. Ramalinga Mudaliar. It
Excerpt:
- - a jagir was liable to forfeiture on failure of performance of the conditions on which it was granted or on the holders incurring the displeasure of the emperor *jagirs were treated by the inam commission as major inams. 268, the privy council held that marungaparai estate which is an unsettled palaiyam was an hereditary tenure and was like a zamindari. 217, jagir given on condition of enjoyment in the direct male line was held resumable on the failure of such heirs. this distinction was disapproved by srinivasa ayyangar, j. there is not even the grant to him and even if the failure to redeem in later times may be regarded as a grant, it is difficult to describe the whole transaction as a jagir. 31 of 1802 must be taken as constituting a recognition of the villages as inam within.....ramesam, j.1. this is a suit by the plaintiff to eject defendants from the suit lands which are situate in puliyampatti village, chingleput district and for mesne profits. the district judge decreed the suit in respect of items 2 and 3, and as to item 1 he found that the suit is 'premature. the defendants appeal in respect of items 2 and 3 and there is a memorandum of objections by the plaintiff in respect of item 1. we have first to consider the case as regards items 2 and 3. these are survey nos. 986 and 985.2. puliyampatti village in which the suit lands are situate and nombal village together constituted what the plaintiff describes as a sarva inam jagir, and it will be convenient now to refer to the history of this sarva inam jagir.3. the district of chingleput was under the.....
Judgment:

Ramesam, J.

1. This is a suit by the plaintiff to eject defendants from the suit lands which are situate in Puliyampatti village, Chingleput District and for mesne profits. The District Judge decreed the suit in respect of items 2 and 3, and as to item 1 he found that the suit is 'premature. The defendants appeal in respect of items 2 and 3 and there Is a memorandum of objections by the plaintiff in respect of item 1. We have first to consider the case as regards items 2 and 3. These are Survey Nos. 986 and 985.

2. Puliyampatti village in which the suit lands are situate and Nombal village together constituted what the plaintiff describes as a sarva inam jagir, and it will be convenient now to refer to the history of this sarva inam jagir.

3. The District of Chingleput was under the sovereignty of the Nawab of Carnatic up to the year 1763. In that year the Nawab made a grant of these two villages to a lady of the family Khairun-Nissa Begum. Subsequently in the same year 16th October 1763, the Nawab gave a lease of the greater portion of the Chingleput District to the East India Company generally referred to as 'the jagir'. This grant of the Nawab in 1763 was afterwards confirmed by the Moghul Emperor who was still regarded as the overlord of the Nawab in 1768. The East India Company left the jagir in the management of the Nawab himself for some time. But in 1780 the company took the management into their own hands: vide Manual of Standing Information for the Madras Presidency, Ch. 2. p. 44 and p. 54. The facts appear from other books of reference bearing on the History of the Madras Presidency: vide Maclean's Manual of the Administration of Madras, Vol. 1, p. 159 (186), and 65. Aitchison's Vol. 3, p. 378 under Jagir Sircar under the heading Jah. Treaties, Vol. 10, p. 36. From the beginning of Fasli 1191, the villages were leased out on amani system to an Armenian named Khaja Chamier by the Nawab who had purchased the two villages In the year 1779 the Nawab seems to have borrowed a large sum of money from the said Khaja Chamier and in February 1782, he mortgaged the two villages to the said Khaja Chamier for the discharge of his debt: vide Exs. 1 and 1 (a). About the year 1784 the East India Company leased the lands granted to them to one C. Ponnappa Mudaliar. In obtaining possesion of the lands leased out to him, he also attempted to take possession of the two villages which had been mortgaged to Khaja Chamier but he was obstructed by the said Chamier. He then made a complaint of the fact to the committee of the assigned revenues viz., Messrs. Oakley, Haliburton and Moabray. The said Chamier himself seems to have also made a representation to the 'same committee asserting his claim. The matter was investigated by the committee and a report was made to the Governor of Madras in Council, Lord Macartney (Ex. 2). The Government accepted the report of the committee and held that the two villages were not part of the company's jaghir and that Chamier was entitled to them. This was Ex. 2 (a).

4. Some time after there were further assignments of the revenue by the Nawab of Carnatic to the East India Company and by 1801 the East India Company became the sovereign of the whole of the Carnatic. The earlier history of these villages as set forth above also appears from the judgment of Srinivasa Ayyangar, J., in Sam v. Ramalinga Mudaliar [1917] 40 Mad, 664, and in the judgment of Coutts-Trotter, J.., (as he then was) pp. 670-1. Ever since 1782 Chamier Sultan and his successors were in possession of the two villages. In the year 1908, a suit was filed in the District Munsif's Court of Poonamallee by Mr. Sam, the then owner of the villages, to eject certain tenants. This was O.S. No. 562 of 1908. The case came up on second appeal to the High Court as S. A. No. 2037 of 1914. It was disposed of by Coutts-Trotter, J., and Srinivasa Ayyangar, J., and their judgment is reported in Sam v. Ramalinga Mudaliar [1917] 40 Mad, 664, already referred to. That litigation ended in favour of the landlord. Item 2 of the present suit was the subject of that suit along with the other items. After the final decree of the High Court the items which formed the subject of that suit were delivered to the plaintiff-decree-holder. The delivery receipt is Ex. Z dated 28th July 1916.

5. On 21st July following, the tenants executed a muchilika in favour of Mr. Sam for seven items of land in the village of Puliampatti consisting of the three items decreed in the earlier suit and four more items including items 1 and 3 of the present suit. The lands in Puliampatti village are lands particularly fitted for cultivation of betel leaf and they are known as kidangadi. Item 1 of the present suit is known as Veerappan kidangadi, item 2 as Kadambathan kidangadi and item 3 as Baker kidangadi. In Ex. AA it was said that the tenants requested the landlord to lease all the seven kidangadis for fasli 1236 and there is a clause in Ex. AA by which they agree to surrender possession of the lands at the end of the fasli but with a proviso that if there is any betel leaf crop they would deliver the lands only after the lands become vacant. Ex. AA was executed by the present defendants. In 1918, by Ex. HH2, they surrendered 4 of the items including item 2 and in the same year they executed Ex. Y6 for three items including items 1 and 3. This muchilika also contains a clause by which the tenants agreed to surrender the lands at the end of the fasli and not to cultivate the lands without a fresh muchilika. In 1919, Ex. KK, item 2 and another item were taken up by a different tenant, one Ramasami Naidu, containing a similar clause of surrender. On 15th September 1921 the defendants executed Ex. BB for seven items including the three suit items. This muchilika contained terms similar to those already mentioned. Meanwhile, the present plaintiff purchased the villages by a registered sale-deed dated 4th December 1920. Ex. BB was executed in favour of the plaintiff. The present suit is filed on the footing of Ex. BB. As I have already said, item 1 was not decreed by the District Judge and of the other two items so far as item 2 is concerned the appellants can have no case. They were represented in the former litigation of 1908, the present defendant 1 being defendant 1 therein and defendant 2's father being defendant 2 therein. They were ejected from the item and the plaintiff after obtaining possession again leased it to them. The matter is res judicata and this is conceded by the appellants. But there is another larger question of res judicata, namely, whether the subject-matter of issues 1 and 2 should be regarded as res judicata by reason of the former judgement, the same issues being considered and decided in the former litigation. This is a more difficult question and will be discussed later on, the District Judge having found against it. But so far as the particular item of property (item 2) is concerned, the matter is res judicata and the defendants cannot re-agitate the question simply because it is now combined with other items, the present suit is filed in a higher Court. The matters in controversy in this appeal therefore at present relate only to item 3 but they are of great importance.

6. The contention of the appellants is that the suit villages constitute a jagir and therefore they fall within Section 3 (2) (c), Madras Estates Land Act, and this suit for ejectment does not lie in a civil Court, and the defendants would be entitled to occupancy rights. But, if the villages do not constitute a jagir, they are not governed by the Estates Land Act. The first important question therefore arising- for decision is whether the suit villages constituted an unsettled jagir within the meaning of the Estates Land Act. Section 3 (2) (c) refers to an unsettled palaiyam or a jagir. Clauses (a) and (b) refer to a permanently settled estate permanently sub-divided from the main estate. Settled estates or portions of settled estates having thus been dealt with under (a) and (b) Clause (c) refers to an unsettled palaiyam or jagir. It implies that the jagir or palaiyam was capable of being permanently settled but for some reason or other was not so settled. Clause (d) deals with inams and Clause (e) refers to villages held on a permenant under-tenure of the estates referred to in Clauses (a), (b) and (c). If the suit villages constitute an unsettled jaghir, they fall under Clause (c), and then they are governed by the Estates Land Act. It they do not constitute an unsettled jagir, they may be inam villages either falling under Clause (d) or not. In the present case, it appears that from 1824 up to the date of the present suit these two villages were popularly known as Noombal Jagir and the owners of the villages used to be described as jagirdars. But a mere loose description of this kind is not enough to settle the question whether the villages constitute a jagir within the meaning of the Act; the plaintiff while using the word 'jagir' calls them ' inam jagir.' Jagir is defined in Wilson's Glossary thus:

A tenure common under the Mahomedan Government by which the public revenues of a given tract of land were made over to a servant of the State together with the powers requisite to enable him to collect and appropriate such revenue and administer the general Government of the district. The assignment was either conditional or unconditional. In the former case some public service as the levy and maintenance of troops or specified duty was engaged for. The latter is loft entirely at the disposal of the grantee. The assignment was either for a stated time or more usually for the lifetime of the holder lapsing on his death to the State although not unusally renewed to his heir on payment of nazaranna or fine and sometimes specified to be an hereditary assignment etc.

7. In Maclean's Glossary Vol. 3, p. 378, Jagir is defined thus:

A tenure common under the Mahomedan Government by which the revenues of a certain tract of land were made over to a servant of the state, either unconditionally or on the condition of performing some public service such as the levy and maintenance of troops or other specific duty. The assignment was either for a stated term, or more usually for the lifetime of the holder lapsing on his death to the state, although not unusually renewed to his heir on payment of a nazranna or fine and sometimes specified to be an hereditary assignment. A jagir was liable to forfeiture on failure of performance of the conditions On which it was granted or on the holders incurring the displeasure of the Emperor ***** Jagirs were treated by the Inam Commission as major inams.

8. In this presidency we have got jagirs which have been permanently settled under Regn. 25 and also jagirs which have been enfranchised as inams. In the schedule to the Madras Impartible-Estates Act, 2 of 1904 under the heading. ' Salem and South Arcot ' we have got Kurundadai Goundan Jagir, Jadai Goundan Jagir and Arya Goundan Jagir. These are all enfranchised by the Inam. Commissioner in 1868. In the same-schedule under the heading ' North Arcot ' we have got Arni Jaghir which has been permanently settled sometime-after the Act was passed and added to the original schedule in the Act of 1909. Under the same heading we have got a. number of palaiyams, some at least of which are still unsettled. In Narayana v. Chengalamma [1887] 10 Mad. 1, we have got the case of Chitteta palaiyam originally granted for police service not permanently settled under Regn. 25 of 1802 and which continued to be an ' unsettled palaiyam ' until 1865 when it was enfranchised by the Inam Commissioner. In Ramaswani Kavundan v. Tirupathi Goundan : AIR1926Mad1167 , the case came up originally before Devadoss, J., who observes that a village does not become a jagir merely by its being called jagir. On Letters Patent Appeal at p. 17 Wallace, J., agrees with this observation of Devadoss, J. He describes a jagir as:

grant of landed property for life or for a definite number of lives in lieu of pension for services, usually military, rendered to Government in order that the grantee may maintain a certain dignity and state.

9. In Sundararaja Aiyangar's Land Tenure of the Madras Presidency at pp. 216 and 217 he says:

The term was applied to a grant in which the grantee took the place of the ruler and intercepted the khiraj before it reached the; public treasury.

10. Citing Baden Powell's Land Systems of British India, Vol. 1, p. 528, he then observes:

When a tract of country was distant from headquarters and difficult to manage, the State appointed a jagirdar who would collect and appropriate the revenue and in return keep the country in order and maintain a body of troops for local or other service.

11. Citing Baillies' Land Tax he says, ' it was usually granted for military service.' In Ram Narayan Singh v. Ram Saran Lal A.I.R. 1918 P.C. 203 it is observed that a jagir must be taken to be prima facie an estate for life only, though it might possibly be granted in such terms as to make it hereditary. The same decision was arrived at by the Privy Council in Gulabdoss Jagjivandoss v. Collector of Surat [1879] 3 Bom. 186. In the Collecter of Trichinopoly v. Luhkumani (1875] 1 I.A. 268, the Privy Council held that Marungaparai estate which is an unsettled palaiyam was an hereditary tenure and was like a zamindari. In Raja Srinath Ray v. Maharaja Pratab A.I.R. 1923 P.C. 217, jagir given on condition of enjoyment in the direct male line was held resumable on the failure of such heirs. In Sakina Bai v. Fatima Begum A.I.R. 1917 P.C. 94 the Government granted the taluka to be held after the death of Karim Khan as permanent zamindari. In Baden Powell's Land Revenue, p. 116 the author drew the distinction that an in am implied a grant of land with remission partially or totally of the revenue while a jagir was a grant merely of the revenue. This distinction was disapproved by Srinivasa Ayyangar, J., in Sam v. Ramalinga Mudaliar at Order 668 but the grounds of disapproval, namely, that in this presidency an inam was presumed to be the grant of land revenue only cannot now be held to be correct after the decision of the Privy Council in Suryanarayana v. Patana A.I.R. 1918 P.C. 169. So the learned author's distinction must now be taken to be correct. In Raghuji Rao v. Laxmanrao [1912] 36 Bom. 639 the Privy Council observed at p. 658 that saranjam is the Marathi equivalent to the term ' jagir ' and at p.659 they say:

The terms are not mutually exclusive in the sense indicated. The latter term, namely inam, is one of mere generic significance, applicable to a Government grant as a whole.

12. In fact Srinivasa Ayyangar, J., points out:

Jagirs and Palaiyams were settled by the Inam Commissioner under the inam rules.

13. At p. 671 (of 40 Mad.) Coutts-Trotter, J., also observes that:

Inam is the more generic term, and probably all jagirs are a species of inams though there are many kinds of inam that are not jagirs.

14. As to the statement that all jagirs are a species of inam I would observe that in a very general sense this would be correct. But at the same time we know that some jagirs are settled under the Permanent Settlement Regulation and not as inams and in the language of Section 3.(2) (c), Estates Land Act, a village or villages to be an unsettled jagir must at least be capable of settlement under the Permanent Settlement Regulation. As to the question discussed by Wallace, J., in Ramaswami Kavundan v. Tiruppathi Goundan as to the meaning of the term ' unsettled,' I think it primarily means not settled under Regulation 25 though capable of such settlement. I do not think the word was used with reference to the enfranchisement as an inam. To say that because an inam is not enfranchised it can therefore be described as an unsettled jagir is to give a wide meaning to the term which I do not think was ever intended by the legislature. If this meaning is given to the Clause (c), all unenfranchised inams would be unsettled jagirs, a conclusion which seems to me to be absurd. It seems to me the only proper meaning of Clause (c) is that it refers to an estate in the nature of a zamindari or palaiyam or assignment of land revenue held on military service capable of being permanently settled but for some reasons not so settled. In the case of small parcels of land in any village or an estate consisting of one or two villages it is very difficult to talk of them as jagirs or palayams or a zamindari, especially when the grant is unconnected with any military service or collection of revenue.

15. In the present case whether we regard the original grant to a lady of the Nawab's family or the subsequent mortgage to Chamier Sultan after the property came back to the Nawab, it is very difficult to regard that there is any jagir. In the earliest document we have got on the record Ex. 11, report of the Committee of Assigned Revenues, the committee observed that 'two were inams given to Khairun-Nissa Begum.' This report was accepted in Ex. 11-a. It was suggested in the course of argument that Exs. 11 and 11-a amount to a recognition by the Committee of Assigned Revenues and the British Government of the villages as an inam within the meaning of Clause (d). Mr. Krishnasami Ayyar for the appellant contended that this cannot be, for the British Government at that time were not sovereigns over these two villages as their jagirs did not include them and their report could not be regarded as a decision over these two villages as their jagirs did not include them and their report could not be regarded as a decision over the property of its subject but a friendly decision not claiming the property of a friendly power. This may be so. But anyhow it is important to note that they were then described as inams. Regns. 25 and 31 of 1802 were passed on the same day in 1802. The former provided for the permanent settlement of land held by zamindars after excluding alienated lands. The latter dealt with 3omo of the alienated lands. So far as the Chingleput district was concerned, it validated all the Royal grants (exempt from payment of public revenue) prior to 26th February 1768. The grant of the suit villages (which was not made subject to any payment) was therefore excluded from the permanent settlement and was regarded as an inam validated by the Regn. 31. It could not be dealt with under Regn. 25.

16. It is therefore clear that it was never regarded as a matter capable of permanent settlement under Regn. 25. The Government themselves never described the two villages as a jagir, unlike the case in Ramaswami Kavundan v. Tirupathi Goundan where Wallace, J., observed that the Government in 1829 described the village as a jagir. At this stage it is necessary to remember what the position of Mr. Chamier in 1782 was. He was merely a mortgagee. There is not even the grant to him and even if the failure to redeem in later times may be regarded as a grant, it is difficult to describe the whole transaction as a jagir. There is no question of collection of revenue from a large tract which is hilly or inaccessible, no question of military service and no question of Mr. Chamier being the renter of the revenue. These two villages cover an area of two square miles lying on the side of the road, a few miles from Madras on the way from Madras to Poonamallee. It is impossible to regard these two petty villages as fit for permanent settlement.

17. I therefore come to the conclusion that they do not constitute a jagir within the meaning of Section 3 (2) (c), Estates Land Act. The Regn. 31 of 1802 must be taken as constituting a recognition of the villages as inam within the meaning of Clause (d) and each of these two villages will be an estate within the meaning of the Estates Land Act if the other conditions are satisfied. The question will then arise whether the interest of the tenant has been acquired by the landholder within the meaning of the exception to S. Estates Land Act. My conclusion is supported by the judgment of Coutts-Trotter, J. and Srinivasa Ayyangar, J., in Rama Rao v. Puttayya Goundan [1917] 40 Mad. 654 in so far as I hold that the villages do not constitute a jagir.

18. It will now be convenient to discuss the further history of these villages. As will appear later on they belonged to that class of ryotwari villages which are known as mirasi villages in the Chingleput District with certain peculiarities and special rights in the mirasidars which do not appertain to other ryotwari tenants in the presidency.

19. The incidents of a mirasi tenure are described in the Chingleput Manual, see particularly pp. 215, 230 and 232. The Full Bench decision in Seshachella Chetty v. Chinnaswami [1913] 40 Mad. 410 discussed the incidents of mirasi villages at great length. These special incidents are somewhat varied in different villages. Sometimes the mirasidars have got some special rights over waste lands. Some portion of the village land is joint for all the mirasidars and is known as samudayam. Sometimes they are subject to a payment of kist to Government only if they cultivate and they have got the option to cultivate or not if they like. Where the land not held by the original mirasidars is leased out by Government to new tenants or non-mirasidars, the original mirasidars and their descendants have a right to get some special fee from the new tenants called swatanthrams. The mirasidars themselves are regarded as occupancy tenants and their under-tenants known as payakaris have in general no occupancy rights. The share paid by the payakaris is called thunduvaram. The mirasi-right is held in shares, pangus, sometimes specified lands being allotted to each pangu and sometimes the pangus not being defined with reference to the lands. Where one mirasidar is the sole tenant of all the lands of the village he is then known as egabhogam mirasidar. The muchilikas executed by the tenants in favour of the mirasidar where they indicate absolute rights of the mirasidar are described as swanubhogam muchilikas. Remembering these peculiarities of the mirasi system in our minds we will now proceed to study the history of these villages. (Here the judgment discusses the evidence and concludes). The above history shows that the Armenian mortgagees were originally sharers in the mirasi, that they got assignment of the land revenue from the Nawab and that such an assignment of the land revenue, by way of mortgage cannot be regarded as a jagir but possibly it amounted to an inam grant of the land revenue. As grantee owned a share in the mirasi right, it is not clear that Clause (d) applied. But if it is held that the clause applies on the ground that the grantee owned, if at all, only a partial share and not the whole mirasi right his successors seem to have acquired the complete right to the kudivaram. We do not hear of any other joint mirasidars after 1873 and all the tenants from 1874 up to now have been held to possess no occupancy rights. In these circumstances even if the village at one time fell under Clause (d), the suit lands ceased to be part of an estate within the meaning of the Act by complete acquisition of the rights by Mr. Sam and his successors, for each plot has to be considered separately for the purpose of the exception to Section 8. This is similar to the conclusion arrived at by Coutts-Trotter, and Srinivasa Ayyangar, JJ,, in Sam v. Ramalinga Mudaliar.

20. The respondent argued that the question whether the village of Noombul and Puliyambattu amounted to an unsettled jagir within the meaning of Clause (c) or not is res judicata by reason of the findings in the former litigation which went up to the High Court and is reported in Sam v. Ramalinga Mudaliar. The District Judge held that the former litigation began in the District Munsif's Court and that Court is not competent to try the present suit which was filed in a District Court. Mr. Varadachari, the learned advocate for the respondent, argued that the present suit also ought to have been filed before the District Munsif and the District Munsif was really competent to try the suit. He contended that the suit is in substance a suit for ejectment against the tenants who were holding over beyond the period mentioned in the muchilika, Ex. BB, and the proper Court-fee for such a suit was that provided under Section 7 (11) (cc), Court-fees Act, according to which Court-fee is payable on the value of one year's rent. But Mr. Krishnaswami Ayyar who appears for the appellant argues that this suit is not a mere suit for ejectment but it also contains a prayer for a declaration that the plaintiff is the absolute owner of the suit property and in such a case Section 7 (4) (c) would apply to obtain a declaratory decree or order where consequential relief is prayed for. In all such cases the plaintiff has to state the amount at which he values the relief sought. In the present case the plaintiff having chosen to value the relief sought at Rs. 20,000 he ought not now be allowed to argue that he could have valued it less. If prayer for the declaration can be regarded as an idle declaration, Mr. Krishnaswami Ayyar's argument cannot be accepted. The Full Bench decision in Ramachandra Ayyar v. Noorulla Sahib [1907] 30 Mad. 101 (F.B.), is authority for holding that an unnecessary prayer for a declaration may be ignored. In that case the Full Bench held that the suit was of a Small Cause nature in spite of the declaration. There may, of course, be cases where the object-matter of the declaration is of a wider scope than the object matter of the consequential relief. In such cases the declaration cannot be regarded as a mere unnecessary or idle addition and then the plaintiff must give a valuation to the declaration and the consequential relief. He has to state it according to his own estimate and the case would fall under Section 7 (4) (c), Court-fees Act. In the present case, the plaintiff instead of merely claiming to be the landlord wanted a declaration of his title also and this cannot be regarded as an unnecessary declaration. Assuming there is some res judicata, it can be only so far as the former judgment decided that the suit lands did not constitute a jagir. The further question whether the suit lands would fall under Section 3 (2) (d) and within the exception to Section 8 has to be dealt with by us and decided.

21. Another point argued by Mr. Varadachari is that the defendants are estopped from raising the question that the suit lands are governed by the Estates Land Act, having submitted to the decision in the former case and having obtained a muchilika Ex. BB not only for the lands covered by the former judgment but also for additional lands treating them all on the footing that they are not governed by the Estates Land Act, his conduct practically amounting to the representation that he will not raise the point over again. It is true that under the Estates Land Act if the lands are lands in an estate a tenant cannot contract out of his occupancy rights, that is, however much he may contract to surrender the land at the end of the period of a muchilika such a clause would be void and in spite of the clause he can continue in possession: vide Section 187 (1) (g), Estates Land Act, But that is not the question involved in the points raised by Mr. Varadachari. In a case where the question whether the land is an estate or not is itself in dispute and the dispute has been settled by a Court of law against the contention of the tenant that the land is in an estate and, therefore, prima facie the Estates Land Act does not apply and the tenant can derive the benefit of the Act only by re-agitating the doubtful question over again on the ground that the former decision is not res judicata and is otherwise erroneous his conduct would amount to representation where he said that he will not re-agitate the point but submit to the decision and surrender the land at the end of the term and does not contravene the provision of Section 187 (g), and it seems to me the estoppel operates. In Midnapur Zamindary Co. v. Naresh Narayan Roy A.I.R. 1922 P.C. 241, the Judicial Committee held that where there is a former judgment against the appellants holding that they had no occupancy rights though the matter was not res judicata, it created a paramount duty on the appellants to displace the finding. In Kamaraju v. Venkatalaksh mipathi A.I.R. 1925 Mad. 1043, it was held by my Lord the Chief Justice and Srinivasa Ayyangar, J., that while a person cannot relinquish his reversionary right he can relinquish his right to say that the properties in dispute form part of the reversionary estate, and having made such an admission for consideration he cannot go back upon it. Similarly, though a tenant can never be estopped from claiming occupancy rights in respect of land in an estate by reason of the statute he will be estopped from saying that the land is in an estate if he has previously taken it on the footing that it is not an estate. It may be that the estoppel extends only up to his surrendering vacant possession; after he surrenders he may agitate any question he likes: Cabbe on 'Estoppel' (p. 25), But he cannot keep the possession which he obtained by representing that he will not claim the land to be in an estate. In Secy. of State v. Krishnamoni Gupta [1902] 29 Cal. 518, it was held that the plaintiff having acquiesced in the former decision of 1859 that the land belonged to Government and having taken the land from Government on that footing they are bound by that acquiescence and no ground has been shown for relieving them from the consequence of that acquiescence. In Munisami Chetty v. Maruthammal [1911] 34 Mad. 211, it was held that an executor who has accepted the office of executor and acted as such is estopped thereby from setting up adverse title to the property disposed of by the will: see also Foa on 'Landlord and Tenant,' edn. 6, p. 522 and Bigelow on 'Estoppel' edn. 6, pp. 565 and 599.

22. The respondent relies on the decisions on (1895)2 Ch. 273 A.C. 144. I do not think these cases help the respondent's contention. He then relied on In Re: Anderson Pegler v. Gillatt [1905] 2 Ch. 70. There it was held that a person getting into possession of one property under a valid disposition of a will and another property under an invalid disposition is not estopped from raising his own title as to the second property. I think that case is distinguishable from the case of a tenant. The same remark applies in In re Coole Coole v. Flight [1922] 2 Ch. 536. In this case the decision in Board v. Board [1873] 9 Q.B. 48, was distinguished. But I do not think they are applicable to the case of a landlord and tenant, In my opinion the defendants (appellants) are also estopped from raising the question that the suit lands are in an estate so long as they keep possession under the muchilika Ex. BB and have not surrendered vacant possession : see Baliaram Giri v. Wasudeo [1898] 22 Bom. 348. I would, therefore, dismiss the appeal with costs.

23. C.M.P. Nos. 4849 and 4850 'of 1928. These petitions have been filed for the admission of fresh documents in appeal. The former was by the appellant and the latter was by the respondent. The respondent presses the latter only if the former is allowed. The appellant wishes to exhibit the report of the kanungoos upon which Ex. 11 was founded. The document has been summoned for by us from the Board of Revenue and a typed copy of it has been sent up by the Board of Revenue as the document is in a condition not permitting of being sent up or being handled. The kanungoos' report says that the villages were granted as 'jagir.' The respondent wants to rely upon the use of the word 'jagir.' The document is admitted. But Ex. 11 chooses to describe the village as inam. In the second petition the respondent wants to have the document dated 30th April 1838 sent by Mr. A. Maclean, the Collector of Chingleput, to the Secretary, Board of Revenue. Here we have got the words:

Looking to the peculiar circumstances under which the inam tenure wa3 abrogated by the Nawab Walaja (if that were really the case).

24. The document is admitted and I think it only strengthens the conclusions I have already arrived at that the villages must be regarded as an inam and not as jagir.

25. The memorandum of objections is not pressed and is, therefore dismissed. But we make it clear that we find that item 1 stands on the same footing as item 3 in all respects and the plaintiff's suit is dismissed only on the ground that it was premature No costs as to memo of objections.

Venkatasubba Rao, J.

26. This suit relates to certain lands in the village of Puliampatti situate in what is known as the Noombal Jagir in the district of Chingleput. The plaintiff calls himself the Jagirdar of Noombal and the suit is filed against two defendants, Ramalinga and Velu. The present plaintiff became by a recent purchase, one of 1920, the owner of the jagir and on 15th September 1921 the two defendants executed in his favour a muchilika (Ex. BB) in respect of 7 betel plots (called Kidangadies) in the said village Puliampatti. It will be well perhaps to give the names of the 7 kidangadies. They are:

1. Kariamanickam,

2. Pinnamaram,

3. Velivoram,

4. Veerappan,

5. Kadapetham,

6. Baker,

7. Seethevi.

27. I may mention that these are the only betel plots in the village.

28. The muchilika says that the lease is to be in force for one fasli. It describes the lands as belonging to the jagirdar and the tenants expressly agree, to surrender the plots at the end of the fasli; but it is stipulated that if there happens to be a betel crop on any plot, the said land is to be delivered only at the end of the fasli during which the harvest is completed. Although the lease comprises, as I have said, all the 7 plots, the plaintiff seeks to recover in this suit possession only of plots 4, 5 and 6, namely Veereppan, Kadapetham and Baker. The District Judge has dismissed the suit in regard to the first plot on the ground that there was a betel crop on that land and the suit was to that extent premature. He has found that the plaintiff is entitled to eject the defendant from items 2 and 3. The defendants in the appeal urge that they are not liable to be ejected from these two plots and the plaintiff has filed a memorandum of objections in which he states that his suit ought to have been decreed even in respect of the first item.

29. The main defence to the suit is, that the village, of which the plaint lands are a part, forms an estate within the meaning of the Estates Land Act and that therefore no civil Court has jurisdiction to try the suit. This contention raises not only the question of jurisdiction, but necessarily involves that the defendants are entitled to occupancy rights. They plead further that they have rights of occupancy independent of the Estates Land Act. We have therefore to decide:

(1) Is the suit village an estate?

(2) Have the defendants occupancy rights independent of the Estates Land Act?

30. There is another question that is raised, namely, that the suit is barred by res judicata. The facts bearing on this point are the following : The plaintiff's predecessor-in-title filed a previous suit (O.S. No. 562 of 1908 in the Court of the District Munsif of Poonamallee) against inter alia defendant 1 and Vaidyanatha, the father of the 2nd. The plaintiff in that suit claimed to eject the defendants therein from three of the seven betel plots. namely:

1. Kadapetham. 2. Seedevi and 3. Velivoram (being 5th, 7th and 3rd of those mentioned above). The same defence was then put forward as at present. It was then finally found by the High Court that the plea raised was untenable and a decree was passed in favour of the then plaintiff. The judgment of the High Court : (Ex. FF-3 Sam v. Ramalinga Mudaliar, was delivered on 18th February 1916. The decree was executed and the plaintiff in that suit obtained possession of the three plots through Court on 28th July 1916. He then let on 31st July 1916 all the 7 betel plots including the three, the subject matter of the previous suit, to two persons (1) Ramalinga, defendant 1 in that action and (2) Vel Murugappa, a stranger, taking from them a muchilika of that date Ex. AA. This was followed by several muchilikas with which we are not concerned. We finally come to the suit muchilika (Ex. BB) dated 15th September 1921, which was executed by (1) Ramalinga defendant 1 in the previous suit and (2) Velu, the son and the legal representative of Vaidyanatha, defendant 2 in that suit. The parties to the present suit are thus the same as those to the previous action or their representatives. It is contended for the plaintiff that the previous decision operates as res judicata. From what I have stated it will be seen that there is one item common to the two suits, namely, Kadapetham (the 5th of the seven items mentioned above). There can be no question that so far as this item is concerned, the present plea is barred by res judicata. The previous decision declared that the defendants are not entitled to occupancy rights in that item and they are bound by that decision. This is not disputed by the appellants and the lower Court's judgment cannot, in any event be attacked so far as this item is concerned. The appeal, therefore, must be dismissed to this extent. The items which remain therefore to be considered, are Veerappan and Baker kidangadis (the first and the last of the three items mentioned in the plaint). The question is : is the suit barred by res judicata so far as these items are concerned?

31. Under Section 11, Civil P.C. a previous decision cannot operate as res judicata, unless the first Court was competent to try the subsequent suit or the suit in which the issue has been subsequently raised. For the defendants it is urged, that the District Munsif's Court which heard the previous suit, is not competent to try the present suit which the plaintiff himself values at over Rs. 20,000, which fact alone enabled him to file it in the District Court. This argument being prima facie sound the question is: is there anything to show that the present suit is nevertheless one, which in substance, falls within the jurisdiction of a Munsif's Court? It seems to me that it does not. The plaintiff contends that this is in effect a suit by a landlord against a. tenant, for the recovery of immovable property, and that the section of the Court-fees Act applicable is Section 7 (xi) (c). In that case, the value of the suit for the purpose of the Court-fee as well as for determining the tribunal which has jurisdiction to try it, is the amount mentioned in that subsection, namely, the rent of the property payable for the year preceding the date of the plaint. If the suit is to be valued on that footing, there can be no doubt that a Munsif's Court has jurisdiction. But now let us turn to the plaint to see what the reliefs are that the plaintiff has asked for. He prays inter alia for two distinct reliefs.

(1) Declaration that he is the absolute owner of the property:

(2) Recovery of possession.

32. I do not think a suit of this nature can be said to be merely a suit by a landlord against a tenant for recovery of immovable property. A prayer for declaration of title is clearly outside the scope of such a suit. A suit for possession may be based on a specific tenancy pleaded in the plaint or on the more general ground of ownership. In a suit based on tenancy pure and simple, the plaintiff seeks to get a decree solely by relying on the rule of estoppel. He says to the defendants in effect : ' You admitted my right; you are now estopped from denying it.' In such an action the trial is confined to the sole question, is the defendant the plaintiff's tenant or not? But there is nothing in law which compels a person when suing his tenant to restrict himself to this ground. He may raise a larger question in the suit, the question of his ownership, and in that event, whether the particular tenancy set up is proved or not, he may obtain a decree in ejectment on proving title.

33. Now in the light of these observations, let us examine the plaint. The plaintiff in this case seeks a declaration of his title and asks for possession. In the body of the plaint, there is a specific tenancy set up and the plaintiff, if he chose, might have confined his action to this sole ground. But that is not what he in fact has done. I am, therefore, of the opinion that it was not through any inadvertance that the plaintiff valued his suit under Section 7 (iv) (c). That subsection says that where the suit is to obtain a declaratory decree plus consequential relief, the Court-fee is to be computed according to the amount at which the relief sought is valued in the plaint. If all the parts of the section are read in their entirety, it will be seen that the expression ' the relief sought ' refers to the whole relief asked for, namely, the declaratory decree along with consequential relief. The suit being, therefore to obtain that relief (declaratory decree plus consequential relief), it was open to the plaintiff to place upon it his own valuation. He chose to value the relief at Rs. 20,000 and filed the suit in the District Court. The suit, having regard to the prayers contained in the plaint, has, in my opinion been rightly valued. Then remains the question, is the prayer relating to. the declaration an idle or unnecessary prayer? In my opinion it is not. If a decree is passed against a tenant solely on the ground that he is estopped from denying his landlord's right, who prevents him from surrendering the property and then setting up his paramount title? Take a case where the tenants set up occupancy rights, as has been done in the present case. If the decree rests merely on the rule of estoppel, after delivering up the property to the landlord, the tenants may claim occupancy rights and litigate that question in a subsequent suit. But if the decree itself negatives the occupancy rights set up by the tenants, that finally precludes them from ever raising or agitating the point again. I, therefore, overrule the plaintiff's objection that the suit is barred by res judicata.

34. Granting for a moment that the plaintiff's contention regarding res judicata. is sound, it can relate not to any entire issue in the case, but only to a part of it. In the previous suit, the question that arose for decision was : Were the lands the subject matter of that suit, lands in an estate? The tenants contended that Puliampattu, the village in question, was an unsettled jagir within the meaning of Clause (c), Sub-section (ii), Section 3, Estates Land Act. The decision in that case negatived that contention, but it does not follow that the wider question: whether the suit village is an estate or not, was decided. The learned Judges, having held that it was not an ' unsettled jagir ' under Clause (c), refused to decide whether it was an inam within the meaning of Clause (d). Even if the plea of res judicata prevails we have yet in this suit to decide that question. Srinivasa Ayyangar, J., observes in his. judgment:

If, therefore, the villages of Noombal and Puliampattu do not form an unsettled jagir within the meaning of Clause (c), it is immaterial to determine whether they fall under Clause (d), for if they do, so far as the suit lands are concerned, they cease to form part of an estate by virtue of the exception to Section 8.

35. The observations of the learned Judge,. Mr. Justice Coutts-Trotter (as he then was) are to the same effect, though not so explicit. So far as the exception to Section 8 is concerned, its application depends on particular facts connected with each separate plot in the village. The decision, therefore, that certain proved facts brought a specific plot within that exception is a decision which, in the very nature of things cannot apply to other and different plots in the same village. The plots with which we are now concerned are Veerappan and Baker kidangadis and they were not the subject of adjudication in the previous case. Assuming, therefore, that the plea of res judicata is sound, it cannot avail the plaintiff except to a limited extent. But, as I have held, the plea is wholly untenable and must accordingly be overruled.

36. Issue 7 raises a question of estoppel. In view of my decision in regard to the other points raised in the case, it is unnecessary to decide this question and I, therefore, do not propose to deal with it.

37. Coming now to the main issue in the case, whether the Court has jurisdiction and whether the defendants have occupancy right I shall first briefly state my conclusions before stating my reasons in support of them. I am disposed to agree with the learned Judges in the previous suit and reject the defendants' contentention to the effect that the suit village is an unsettled jagir, within Clause (c). I am, however, of the opinion, that it is nevertheless an estate being an inam, within the meaning of Clause (d); that is to say, I hold that the land revenue alone of the village was granted in inam to a person, not then owning the kudivaram and I further hold that the grant has been recognized by the British Government with the result, that every requirement of Clause (d) is satisfied. Next I hold that the two plots with which we are concerned, namely, Veerappan and Baker kidangadis fall within the exception to Section 8 as they have ceased to form an estate by reason of the fact that the kudivaram interest in them has been acquired by the inamdar. I shall show by reviewing the evidence on the point, that he acquired the mirasi rights in the plots and that the tenants have, therefore, no rights of occupancy either under, or outside of the Act.

38. Let us now look at the history of this holding. When Mahamed Ali was the Nawab of the Carnatic, he granted an inam (I am using the word in its generic sense) of certain villages including Noombal and Puliampattu (in what is now known as the Chingleput district) to a lady of his family, Khairunnissa Begum. In the same year, but shortly' afterwards, he granted to the East India Company, a tract of territory wherein the said villages were situate. The grant to the company is generally known as ' Jagir Circar ' (Maclean's Manual of the administration of the Madras Presidency, Vol. 3, p. 378.) One of the questions raised in the suit is, when did Mahamed Ali cease to be the sovereign authority in respect of the territory ceded to the British on 16th October 1763 when the jagir grant was made or on 31st July 1801, when he finally renounced Civil and Military Government of the Carnatic and accepted a stipendiary provision? See Aitchison's Treatise Vol. 10 pp. 2 and 5. In the judgment of Srinivasa Ayyangar and Coutts-Trotter, JJ., to which I have already referred (Ex. F. F. 3 reported in 40 Mad. 664), it appears to have been assumed that in respect of the Jagir Circar the Nawab ceased to be a ruling sovereign from the moment of the grant to the East India Company. In the present appeal, both sides have contended that this is a wrong assumption and that Mahamed Ali's sovereignty even over this tract came to an end only in 1801 when he finally renounced the entire Government of the Carnatic. I am disposed to doubt whether as a fact of history this contention is correct : See Maclean's Manual, Vol,; Chronological Tables at pages 1591 and 1881. But I am prepared to assume that he at that time possessed sovereign authority over this tract, for in my opinion this fact makes no difference. To continue my narrative, the Nawab some time prior to 1781 (the date is not known) purchased the villages back from the lady and became its owner.

39. It is suggested for the plaintiff that, as this acquisition was by a ruling prince, the land was no longer subject to any kind of tenure and became ordinary property. Granting that Mahamed Ali was the ruler of the tract in question on that date the transaction is described in the documents, as a purchase and not as a resumption, and it would be a legitimate inference that he acquired the villages as his private property. In that event, it would retain its original character and still be an inam or a Jagir (as the case may be) in his hands. After the Nawab acquired the villages in this, way, he 'mortgaged them with one Chamier Sultan, the predecessor-in-title of the plaintiff. The transaction is evidenced by and order issued by the Nawab to the tenants dated 15th February 1782, (Ex. 1) and by a muchilika of the same date executed by Chamier in favour of the Nawab (Ex, l-A). Mr. Varadachariar the learned Counsel for the plaintiff, contends that the land acquired by the ruler, having become ordinary land, freed from the incidents of tenure land the transaction with Chamier Sultan is nothing more and nothing less than a mortgage pure and simple. If this be so, he argues there can possibly be no question of the land being an estate. I may mention that as between the Nawab and Chamier Sultan, the latter in course of time, became the full owner of the property. It is on these facts that the question has to be decided. What is the nature of the grant? For the tenants it is argued that original grant to the lady was a jagir grant (as distinguished from an inam grant) and that the land retained that character subsequently throughout. It is urged for the plaintiff, on the other hand as I have said above, that the transaction between the Nawab and Chamier Sultan was a mortgage pure and simple, a dealing by a debtor with his creditor, in respect of property subject to no tenure and that the question of a grant does not therefore arise at all. This contention, as I have shown, is untenable. In the alternative the plaintiff maintains that the grant was not a jagir grant but a grant in inam. Before deciding the question whether this particular grant is an inam grant or a jagir grant, I must first examine the sense in which these words (jagir and inam) are used in Section 3, Estates Land Act.

40. Section 3 (2) refers to permanently settled estates, unsettled palaiyams and jagirs and inam grants. The question is: is there a distinction between 'jagir' and ' inam ' as used in this section? The word ' inam ' is a more generic term and jagirs are only a species of inams; so that, every jagir is an inam though every inam is not necessarily a jagir. The ' permanently settled estates ' referred to in Clause (a) comprise zamindaris, jagirs, mitta and palaiyams: see Section 4, Madras Act 1894, Proprietary Estates Village Service Act. Now, these various kinds of holdings may be settled by the Government under the Permanent Settlement Regulation (Regn. 25 of 1802). If they are so settled, they become ' permanently settled estate ' under Sub-clause (a). The legislature deals with ' unsettled paliyams or jagirs ' in Sub-clause (c). The difference then between palaiyams and jagirs included in the terms ' permanently settled estate ' in Sub-clause (a) and ' unsettled palaiyams or jagirs ' referred to in Sub-clause (c) is that while the former have been settled under the regulation the latter have not been so settled; but otherwise, they are identical. The antithesis is between the word 'settled ' in Sub-clause (a) and the word ' unsettled ' in Sub-clause (c). In what sense then is the word ' jagir ' used in Sub-clause (c), in the generic sense of an inam or in a more; restricted sense? To answer this question, it is relevant to enquire, under the general revenue policy that obtains in this province, is it every inam that is regarded as being capable of being dealt with under Regn. 25 or is it only inam of a particular kind. As Srinivasa Ayyangar, J,, points out in the judgment I have-already referrd to Sam v. RamalingaMudaliar (1):

It is difficult, if not impossible, to frame a definition or ever give a description of jagir so as to distinguish it from an ordinary inam as many jagir grants were mere presents to individuals while many service grants are called inams.

41. But still, there can be no doubt that the word ' jagir ' in the section is used in a limited sense. In Wilson's Glossary the word jagir is described as a tenure common under the Mahomedan Government where the grantee of the public-revenue was clothed:

with the powers requisite to enable him to collect and appropriate such revenue and administer the general revenue of the district.

42. Similarly, in Maclean's Manual, Vol. 3 jagir is defined as a tennre common under the Mahomedan Government by which the revenues were made over

either unconditionally or on the condition of performing some public service such as the levy and maintenance of troops or other specified duty (p. 878).

'The term jagir literally means ' place-taken (and was applied to a grant in which the grantee took the place of the ruler and intercepted the khiraj before it reached the public treasury. (Sundararaja's Aiyyangar' Land Tenures in the Madras Presidency, 2nd Edn., p. 217). The learned author then observes that the position occupied by the jagirdar was not dissimilar to that occupied by Hindu chiefs in the frontier territory. He compares a jagir grant to zamindari-grant and says:

In both cases, an individual was interposed between the sovereign and the actual cultivator p. 218.

43. Later on he remarked:

Both the zamindar and jagirdar were in some cases representatives of ancient sovereigns of the country and their administrative authority varied with their origin.

44. The position of the palayagars again in some parts of the country resemble that of the hill zamindars of the Northern Circars. They were military captains of different degrees, power and consequence. To a palaiyam grant in the Madura District 'were attached three obligations, to preserve the King's peace, to maintain and furnish the necessary fixed number of troops and to pay a tribute annually to the king's treasury : Sundararaja Aiyangar's Land Tenures, pp. 111 and 113) The feature common to these various kinds of holdings is, that that the grantee is possessed of some sovereignty rights whether delegated or usurped. A jagir grant was also made as remuneration for officers employed in the Civil, Revenue or Police Departments of the State: Sundararaja Aiyangar's Land Tenures, p. 217. It may therefore be fairly assumed from the grouping of jagirs along with zamindari' and palaiyams, that the term 'jagirs' is used in the section in the more restricted sense above mentioned. It is no doubt true that jagirs were sometimes granted as a moans of support to the relations of the Emperor. Sundaraja Aiyangar's Land Tenures, p. 218. Bat it is not in this sense that the word 'jagir' is used in the Estates Land Act, in the particular collation which occurs there. An inam, in its extended sense means gift or a reward, a mere benefaction, due to the bounty of the munificence of the grantor. The revenue policy generally pursued in this Presidency shows that steps are not taken to settle such inams under the Permanent Settlement Regulation. I am therefore disposed to accept Mr. Varadachari's contention and hold, agreeing with Srinivasa Ayyangar, J., in Sam v. Ramalingo, Mudaliar (1) that the word 'jagir' in Section 3, Estates Land Act, is used in this limited sense. Mr. Krishna-swami Aiyar replies that it is a mistake to suppose that there is a fixed revenue policy and refers to jagirs (for instance Kalyerayan Jagirs in the South Arcot District) which have not been dealt with under the permanent Settlement Regulation, but have, on the other hand, been enfranchised under the Inam Rules. True but still in understanding the word 'jagir' as used in the section one must have regard to the general, though not absolutely fixed, revenue policy of the Government. Moreover, though some jagirs have been dealt with under the inam rules, we have not been referred to any converse case. where inams have been permanently settled under the Regulation. I may in this connexion quote a passage from my judgment in Appeals Nos. 327 to 332 of 1926.

The word 'permanently settled estates in Clause (2) (a) are wide enough to cover jagirs. It is open to the Government to settle a jagir falling under Clause (c) under Regn. 25 of 1802, in which case, it becomes a permanently settled estate under Clause (a); it is similarly open to them (though perhaps this is more usual) to enfranchise the jagir as an inam under the Inam Rules, in which case, it falls under clause (d) provided the other condition mentioned in that clause is satisfied, regarding the grant of the melvaram being to a person not owning the kudivaram.

45. My conclusion therefore is that the word 'jagir' is used in the mere restricted sense in Section 3.

46. Mr. Krishaswami Aiyar for the defence argues that jagir and inam are indistinguishable and that where the holding has long been known as a jagir, it must be treated as such for the purposes of the Act. I may at once mention that though the suit villages are generally described as jagir in numerous documents they are also sometimes described as inam. In the kanungo's report (admitted in appeal) on which the recomendation of the Commitee of Assigned Revenues was based the villages were no doubt termed as jagir : but the committee itself calls them inams. And again in the Collectors' Reports dated 30th April 1836 (also admitted in appeal) the term used is 'inam.' However this may be, I am not prepared to accept the description of the holding as a decisive test. The jagir is a more dignified term and there may be a tendency to adopt it to improve the status of the grantee.

47. Then comes the question, is the grant to Khairunnissa a jagir grant or a grant in inam for, it is this grant that is material, as the property, as I have said has throughout retained its original character. The grant was to a lady of the Nawab's family, a gift made to a private individual for her subsistence. Such a grant cannot be termed a jagir grant within the meaning of Section 3 of the Act. Sub-clause (c) does not therefore apply.

48. It then follows that it was a grant in inam. That it was to a person not owning the kudivaram cannot be seriously disputed : see the judgment of Srinivasa Aiyangar, J., in Sam v. Ramalinga Mudaliar (1). The thakeed issued by the Nawab (Ex. 1) shows very clearly that even in 1782 there were ryots in occupation of the land. Chamier Sultan is enjoined to 'continue to give the ryots etc. their due share according to the usual custom.' There is an allusion to the ryots and other persons whose interests Chamier Sultan was required to protect.' Thus, of the conditions mentioned in Sub-clause (d) two are satisfied, namely, that the grant was in inam and secondly that the grantee was a person not owning the kudivaram. There is a third condition that has to be fulfilled, namely:

That the grant has bean made, confirmed or recognised by the British Government.

49. The grant was in this case neither made nor confirmed by the British Government The question is, was it recognised by that Government? To deal with the question, I must state a few further facts in connexion with the history of this jagir. The tract of land that was ceded to the East India Company in 1763 was leased by them to one Ponnappa Mudali, who appears to have claimed rights under his lease, in Noombal and other villages which had been made over to Chamier Sultan. There was then a body known as 'The Committee of Assigned Revenues' which had been appointed by the Bast India Company. Representations were made to that body both by Ponnappa and Chamier Sultan. The Committee after investigation reported to the East India Company that the jagir granted to them was exclusive of the villages which 'had been previously given over to the lady mentioned above. (Ex. 2 dated 15th February 1784). Thereupon, the Government wrote to the Committee stating:

As these villages therefore could never have been supposed to constitute part of the farm of the seven magans (as the. tract was then known), they must be excepted in the renter's cowle and he must be made acquainted of our having admitted Mr. Chamier's claim to them : Ex. 11-A, dated 20th February 1784.

50. Now, does this proceeding amount to a recognition under Sub-clause (d)? This question was left open in the judgment reported in Sam v. Ramalinga Mudaliar. It is unnecessary to decide whether this particular act constituted recognition, for, in my opinion, there is a surer ground, on which I can hold that the grant has been recognized. The grant to Khairunnissa was not a grant made by a previous zamindar but was a royal or badshahi grant. By the preamble to Madras Regn. 31 of 1802 all royal grants must be deemed to have been recognized. It runs thus:

Whereas the ruling power of the provinces now subject to the Government of Fort St. George has, in conformity to the ancient usages of the country, reserved to itself and has exercised the actual proprietary right of lands of every description; and whereas, consistently with that principle, all alienations of land, except by the consent and authority of the ruling power are violations of that right; but whereas considerable portions of land have been alienated by the unauthorized encroachments of the present possessors, by fraudulent means; and whereas the permanent settlement of the land has been made exclusive of alienated lands of every description, it is expedient that rules should be enacted for the better ascertainment of the titles of persons holding, or claiming to hold, lands exempted from the payment of revenue to Government under grant not being badshahi or royal and for fixing an assessment on such lands of that description as may be-come liable to pay revenue to Government; wherefore the following rules are enacted for that purpose.

51. Further, this grant must be deemed to have been also recognized under Section 2 of the same regulation. It says inter alia that all grants made prior to 26th February 1768 in the lands called the Company's jagir shall be deemed to be valid and all persons holding such lands shall continue to hold them without let or molestation. The present grant having been made in 1763 clearly comes within this section.

52. I am, therefore, of the opinion that this grant has been recognized by the British Government and that the village is an estate within Sub-clause (d).

53. If the village is an estate by reason of its being an inam under Sub-clause (d) the question arises. Do the suit lands fall within the exception to Section 8 that is to say, have these specific plots ceased to be part of the estate, by reason of the fact that the kudivaram interest in them has been acquired by the inamdar? A point to note in connexion with this part of the case is, that the village or group of villages with which we are concerned, is in the district of Chingleput, where the mirasi tenure prevailed. The defendants do not claim to be mirasidars. Their claim is based upon the fact that they have been cultivating tenants long in occupation of the suit land. I shall now proceed to show that the kudivaram which originally vested in the body of men known as mirasidars, was, in course of time, acquired 'by the jagirdar. For this purpose, the voluminous documentary evidence filed in the case has to be minutely examined. It ranges over a long period, but on a close analysis, the conclusion is irresistible that the inamdar became gradually the owner of both the warams. I shall discuss these documents under four headings. * * *

54. I have now fully dealt with the documents that relate to the suit village and more particularly to the betel plots in that village. To sum up their effect : they show, that for about 100 years the jagirdar repeatedly asserted his right to both the warams, that this right was sometimes denied by the tenants, the dispute was carried both to the revenue and the civil Courts and that the right claimed by the jagirdar was almost uniformly upheld by those tribunals. They further show that the jagirdar evicted old tenants and put in new ryots in their places and that in the muchilikas executed from time to time, the tenants submitting to the judgments of Courts, made admissions recognizing the jagirdar's right and undertaking to surrender the lands on the expiry of stated periods. In the face of these facts, it is impossible to hold that, in respect of the suit betel plots, the tenants have occupancy rights. The suit village is a mirasi village and the mirasi right, by whomsoever it was originally enjoyed, became, in course of time, vested in the jagirdar, though it is impossible to say when and how he acquired it.

55. I have already held that the suit village is an estate within the meaning of Section 3 (2) (d), Estates Land Act. The betel plots (Veerappan and Baker Kidandadis) to which alone our attention, as I have said, must be confined, were originally thus plots of land in an estate; but by operation of exception to Section 8, the kudivaram interest in them having, as I have said, been acquired by the inamdar, these plots have now ceased to be parts of the estate. The defendants' contention therefore, fails both under the Act and independent of it. The result is, the appeal is dismissed with costs.

56. In regard to the memorandum of objections which relate to the first suit item, namely, Veerappan Kidangadi, I have held that it stands on the same footing as Baker Kidangadi. The learned District Judge has refused to pass a decree for possession of this plot on the sole ground that the suit is premature in regard to it and as the memorandum of objections is not pressed, I accept that finding and dismiss the memorandum.


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