S. Ramachandra Iyer, J.
1. This is an appeal under Section 7(1) of the Madras: Act XXX of 1956 against the declaration made by the Estate Abolition Tribunal, Vellore, that the inam village of Nazarathpet, situate in Sriperumbudur Taluk, Chingleput District, was an inam estate within the meaning of Act XXVI of 1948. The proprietor of the estate is the appellant.
2. The inam Nazarathpet is a Shrotriem inam village granted by the East India Company to one Varadappa Mudali, an ancestor of the appellant. The village is a part of what was originally called Tondamandalam. The regime of the Muhammadan Rulers in the 17th and 18th centuries brought about practically a collapse of the agricultural economy in that part of the country, partly by reason of the unconscionable assessments and demands made by the Rulers or their servants-upon the cultivators, and partly due to devastation by war, famine, etc. Emigration and consequent depopulation followed. It was in that condition that the Nawab of the Carnatic granted to the East India Company in 1750, in recognition of their services, certain villages on the banks of the Palar in Conjeevaram Taluk. Ten years thereafter the entire District of Chingleput was granted by the Nawab as a Jagir to the company; that grant was confirmed by the Mogul Emperor Shah Alam in 1763. The Company, however, did not enjoy the lands granted to them, directly--they leased the lands back to the Nawab himself for a rent, with the result that the features and evils of the revenue system of the Muhammadan Rulers continued to exist. Under that system the Rulers claimed to be proprietors of all lands, and purported to collect rents. The revenue collections were based on certain accounts, known as Dowl accounts, which contained statements of particulars of gross revenue levied from an estate, more often estimates of the amounts which the estate might be expected to yield. It has been stated that such estimates were either absurdly high or equally absurdly low. Under those circumstances there was very little inducement in the ryots or Mirasdars to cultivate. The East India Company itself could not get the stipulated income from the Nawab. In the year 1762, i.e., soon after the grant of the Jagir by the Nawab the East India Company appointed Mr. Bernard, an Engineer, to make a survey of the District, with a view to ascertain its resources and income. Mr. Bernard conducted an elaborate survey, it is said facing great difficulties, and compiled a list giving particulars of the lands-and the average collections for four years from 1762 to 1766. Shortly thereafter, the Company assumed direct management of the Jagir. Their main work was to resuscitate the cultivation of the lands, which had fallen into neglect. They were not slow to realise that their own prosperity was connected with the prosperity of the cultivator, and that it was necessary to bring more lands into cultivation. Two Collectors were appointed for the Jagir with the object of toning up the revenue collection. One of them, Mr. Place, whose name is almost legendary, was a gentleman endowed with extraordinary administrative ability : he set about with earnestness to retrieve the almost extinct Hindu system of the village economy. He restored the office of Nattuwar (an ancient body of persons analogous to the village monegars) for the purpose of supervising the cultivation of the villages He conducted elaborate enquiries about the land revenue system, executed or repaired irrigation works and induced influential persons to bring more lands under cultivation.
3. On 15th November, 1798, Mr. Place granted a cowle to Varadappa Mudali, a. Natluwar, the ancestor of the appellant. Exhibit A-1 is the certified copy of the cowle. The cowle refers to the fact that Varadappa Mudali had been appointed a Nattuwar of the District of Poonamallee, whose duty was to use his influence and endeavour with the ryots of the said District and to extend the cultivation of other lands to the utmost in their power in such manner as might best reward their labours. His further duties were to reconcile the ryots to such improvements as might be directed by the Government, to assist at the time of Jamabundy and act as if he were a liaison officer between the Government and the ryots. As a reward for executing the duties, certain privileges were conferred on the Nattuwar. They were: (1) a Shrotriem grant of four villages, viz., Nazarathpuram, Gavelcherry, Aryapunjari and Alatoor. The grant was subject to a payment of jodi of 130 pagodas. (2) A grant of 43 cawnies of Manyam lands in three villages other than Nazarathpuram. (3) A right to collect 60 per cent, waram upon all cultivation, which the Nattuwar might carry on in ten named villages. Nazarathpuram was also one of the villages included in this category. We shall have to consider the significance of this clause at a later stage of the judgment.
4. The Nawab of Carnatic relinquished his suzerainty over his territories on 16th. October, 1801 and contented himself with a pension from the East India Company. The Company having become the rulers of the District, set about to evolve a stable land revenue system. They decided to abolish the office of Nattuwar, rewarding; their erstwhile loyal services with certain grants of privileges. Accordingly, the-Government of Madras made a Shrotriem grant to Avallah Mudali (Evalappa Mudali), who evidently succeeded Varadappa Mudali. The subject-matter of the grant were the four villages mentioned as the first of the three items in Exhibit A-1. Exhibit B-6 is the Purwannah, dated 31st August, 1802, granted by Lord Clive to Avallah Mudali. The grant recited that the Government had decided to continue the shrotriem lands specified therein as reward for the previous service rendered by the Nattuwar. The grant was a hereditary one, subject to the payment of 20.8 pagodas. In the Inam proceedings the grant was recognised as confirmed. Exhibit A-4 is the extract from the fair Inam Register. The extent of the inam is mentioned, in accordance with Mr. Barnard's Tarapady Account. The total extent was 277-20 acres, and after deducting poramboke and inams, the remainder of the shrotriem grant was found to be 142-56 acres and a jodi was fixed at 116-1-0, which however was later reduced 113-3-10 by reason of certain acquisitions by the Government. The Inam Register Extract specifically referred to the Purwannah and to Mr. Barnard's Tarapadi in 1774 as written instruments in evidence of the inam. Column 21 stated;
This is a Nat Shrotriem granted in compensation to the party in column 13 (Evalappa Mudali)' on the abolition of the office of Natwar in his family. The inam is valid and personal.
The title deed which followed has been filed as Exhibit B-5 in this case. That acknowledges the title of Evalappa Mudali to the shrotriem village of Nazarathpuram comprising 116-24 acres of wet lands and 24-76 acres of dry lands, subject to a quit rent of in-3-10. It is not disputed before us that the shrotriem grant comprised only a grant of the melwaram and not any portion of the kudiwaram interest in the village.
5. On the passing of Madras Act XXVI of 1948, the Settlement Officer initiated suo motu an enquiry into the nature of the shrotriem Nazarathpuram. By about the same time, proceedings under Act XXX of 1947 had also been initiated. Exhibit B-7 is the order of the Rent Reduction Officer. The order states that there are no ryoti lands in the holdings of the ryots in the village of Nazarathpettai, and that no proceedings tinder the Rent Reduction Act, 1947, could, therefore, be taken. The Settlement Officer acting under Section 9 of Act XXVI of 1948 also found that the village did not. come within the ambit of that enactment, as he found that the kudiwaram in the village was owned by the shrotriemdar at the time when the village was granted as shrotriem to him by the East India Company. From the order of the Settlement Officer the State appealed to the Estates Abolition Tribunal, Vellore. The Tribunal held that the village would be an estate within the meaning of Section 3(2)(d) of Act I of 1908, as it stood before its amendment in 1936, as, in their opinion, certain ryots must have been in possession of the lands in the village at the time of the grant; from that finding it followed that the village was an inam estate, within the purview of Act XXVI of 1948 and it was declared as such. The Inamdar has filed the present appeal against the declaration of the Tribunal.
6. The Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948 was enacted for the purpose of acquiring the rights of the landholders in estates which came within the ambit of that enactment. Under Section 3(b) of Act XXVI of 1948, the entire estate would on notification stand transferred to the Government and vest in them. The estate, for the purpose of that Act, has been defined as a zamindari or under-tenure or inam estate. Nazarathpuram is neither a zamindari nor an under-tenure estate, and the question for consideration in the appeal is whether it is an inam estate. An inam estate has been defined as:
an estate within the meaning of Section 3, Clause (2)(d) of the Estates Land Act, but does not include an inam village which became an estate by virtue of the Madras Estates Land (Third Amendment) Act, 1936.
For ascertaining, therefore, whether an inam village would be an inam estate within the meaning of Section 2(7) of Madras Act XXVI of 1948, it is necessary to refer to the definition of the term 'inam' in Madras Act I of 1908 before its Third Amendment in 1936. Prior to that amendment, Section 3(2)(d) of that Act ran as follows :-
'Estate' means any inam village of which the land revenue alone has been granted in inam to a person not owning the kudiwaram thereof, provided that the grant has been made, confirmed or recognised by the British Government or any separated part of such village.
The case for the appellant was that the village of Nazarathpuram would not be an inam estate, as prior to the grant under Exhibit B-6 Evalappa Mudali, the predeces-sor-in-title of the appellant owned the kudiwaram interest in the entire village. According to the appellant, the village was a Ekabhoga Mirasi village in Chingleput District, at the time of Shrotriem grant, the appellant's family, as the sole Mirasdar of the village, being entitled to and in possession of the kudiwaram rights of all the cultivated lands in the village, and that since that time, the family had, at all times, been in possession and enjoyment thereof by direct cultivation through their own farm servants. In support of the claim, the appellant also produced Exhibit B-2, an extract from the Inam Register, relating to the village in respect of a Manyam, known as Kani Manyam. Kani Manyam, otherwise known as Grama Manyam, is one of the features of the Mirasi tenure, and it is a grant to the Mirasdars of the village, tax free, the Miraidars of the village being entitled to enjoy a share therein in exact proportion to their respective interest in the other lands in the village. It was not disputed before us that Nazarathpuram is one of the Mirasi villages. The villages being in the Chingleput District where that tenure prevails, the indication afforded by the existence of a Kani Manyam would support the case of the appellant, that the village is a Mirasi one. Exhibit B-2 refers to Nazarathupettai Varadappa Mudali as the sole holder of the Kani Manyam. From the fact that no other person is indicated as a joint Mirasdar, it was contended that the entire mirasi right in the village should have been in the family of the appellant. It is the further case of the appellant, that a mirasdar would be the owner of the kudiwaram in the lands in the village and therefore his predecessor-in-title should be held to have been the owner of the entire kudiwaram in the villagS on the date of the shrotriem grant evidenced by Exhibit B-6.
7. Mr. Vedantachariar, the learned Counsel who appeared for the respondents claiming to be ryots in the village, contested the appellant's claim on two grounds:
(i) that a mere description of a person as Ekabogam mirasdar could not prove that he was entitled to the Kudiwaram right in all the lands of the village, and (2) that, under Section 8 of the Madras Estates Supplementary Act XXX of 1956, there was a presumption, until the contrary is proved, that a disputed area was an estate, and that, on the evidence adduced, the appellant should be held to have failed to prove that the village was not an estate.
8. Before considering the contentions raised before us, it is necessary to ascertain the incidents and nature of the tenure obtaining in a mirasi village, and the rights which the mirasdar possessed in the cultivated and cultivable lands in the village. Nazarathpuram is one of the villages in that part of the country which was formerly known as Tondamandalam. The name of the village suggests a Christian origin; presumably the village was named after the incursion into that part of the country of the Roman Catholic settlers from Guntur in the year 1787. From ancient times the agricultural economy of that part of the country was based on what was known as kaniyachi system. Kaniyachi denotes a hereditary right in the land. Its Arabic equivalent is mirasi. Kaniyachidars who are otherwise known as mirasdars claim to be the proprietors of the land. It was open to them to cultivate the lands themselves or through tenants. In the latter case the actual cultivators were called ulkudis or purakudis, the Mohammadan name for them being payakarries. According to the tradition the son of a Chola King, Adondai Chackravarti, who invaded that part of the country, succeeded in subverting or driving out the people who inhabited that country and colonised the conquered territory with a number of Vellala immigrants. In the Manual of North Arcot District by A.F. Cox, at page 115 the origin of the settlers is thus described:
Adondai, after the subversion of the Pallava line, is reputed to have peopled Tondamandalam with 3,000,000 immigrants from the west and south, of whom one-fifth are said to have been of the Vellala caste. The system which he established, called the mirasi system, is the first of which we have any record.
The cultivable lands of the conquered country are said to have been divided among the Vellala immigrants, who were moreover given the title to participate in such communal rights as pasturing cattle or cutting fuel on the village waste lands. The hereditary possession of these lands and privileges belonged to the Vellalas alone, and was originally known by the term kaniyatchi, a word which, after the introduction of the Muhammadan rule, was displaced by the Arabic expression mirasi. The mirasi right of the Vellalas must, however, be distinguished from official mirasi, or the right of village servant to hold land free of rent or on very favourable terms.
The basis of the mirasi tenure is said to be an extension of Manu's dictum concerning the light in land, namely,--
that cultivated land is the property of the man who cuts away the wood or who first cleared and tilled it.
That was perhaps also a result of expediency, i.e., to induce the settlers to get attached to their lands by creating a kind of equal proprietorship in them. In the Chingleput District Manual by C.S. Crole, at page 222, the system is described thus:
The basis of the land tenure of this district, then, was not reached by any slow or gradual process of settling down. The ruler was not the result of the formation of political life in this 'instance, but was himself the fountain from which it sprang. He acquired the country as conqueror, he displaced the aboriginal nomads with his colony of farmers, and, from motives of necessity and of policy, he made over to them his right of possession of the soil acquired by conquest retaining for himself the title of nominal lord of it, together with an actual partnership with his subjects in its cultivation.
The tradition as to the origin of the system has however not been accepted as correct in the decision reported in Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 : I.L.R. (1916) Mad. 410 but it cannot be gainsaid that it affords an intelligent explanation for the claims made by the mirasdars as incident to the tenure, several of which have been recognised by the Courts. This system continued during the subsequent centuries till the Muhammadans came, when it received a set-back on account of the rapacity of the rent collectors. The East India Company on assumption of its sovereignty conducted detailed enquiries to which Mr. Place, Mr. Ellis, the two Collectors, and one Mr. Sankariah the Sheristadar contributed a considerable amount of research and study. Their opinions have been published by the Government in the Mirasi papers. Shortly stated, the mirasi tenure is one under which the lands in the village are jointly owned and cultivated by certain individuals known as mirasidars. The rights of the mirasdars are hereditary. In the Land Tenures in the Madras Presidency by Sundararaja Iyengar at page 95, the tenure is described thus:
The distinctive feature of the mirasi tenure, a feature which is as old as the tenure itself and which still survives, is the division of the village into pangus or shares, each made up of lands yielding an equal amount of produce and each including a proportionate share of all the benefits of common, property such as the use of village waste, mines, quarries, fisheries, forests, and pastures. The village is divided into karays, and each karay comprises so many pangus. The lands constituting a pangu are not situated in one place forming a compact whole, but are distributed throughout the village having regard to the superiority and inferiority of the soil, and facilities for irrigation. They comprise both nanja or wet lands, and punja or dry lands, and the possession of a pangu carries also a right to a proportionate share of all the benefits of common property.
In Kumarappa Reddi v. Manavala Goundan (1917) 34 M.L.J. 104 : I.L.R. (1917) Mad. 374 the mirasi right is referred' to as an interest in the village lands, though it need not be a proprietary interest. In Ramalinga v. Ramaswami : AIR1929Mad529 Ramesam, J., observed that the mirasdars themselves were regarded as occupancy tenants, and that their under-tenants, known as payakris,. had in general no occupancy rights.
9. Generally in a mirasi village there are a number of mirasdars. But it may happen that there is only one, either by a process of devolution, purchase or even by a colonisation by a single individual. In that case the mirasdar is known as an ekabogam mirasdar. An ekabogam mirasdar will, therefore, be a single individual or family in possession of all the lands in the village, without sharing it with any other co-sharer. In Muna Muhammad Rowther v. Muthu Alagappa Chettiar (1917) 34 M.L.J. 234 ekabogam is mentioned as a term which was well understood meaning the whole ownership is vested in one individual as opposed to a case of palabogam where the ownership was divided amongst many. In Ramalinga v. Ramaswami : AIR1929Mad529 Ramesam, J., observed' that, where one mirasdar was the sole tenant of the lands in the village, he would, be known as Ekabogam Mirasdar.
10. Whether it is a case of ekabogam or palabogam, the mirasdar or mirasdars in a mirasi village would be the persons entitled to the occupancy rights in the lands of the village, the actual cultivators not having any such rights. But it must not be taken that the mirasdars are equivalent to the inamdars of the entire village. Ayling, J. observed at page 463 in Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 : I.L.R. (1916) Mad. 410 mirasi does not imply any general rule of complete ownership of all the lands in the village. Their rights relate only to the occupancy in the lands cultivated by them and certain other rights, which have been established by custom in a particular locality. A mirasi village might be a ryotwari or inam village. The rights of the mirasdars as against the Government in the former and the inamdar in the latter have been the subject-matter of various decisions of this Court. In some of them the rights of the mirasdars. generally and with respect to the particular rights asserted, have been elaborately considered. We shall refer to a few of them presently.
11. In a village there are generally three classes of lands : (1) cultivated lands, (2) saikal karambu that is, cultivable or lands once cultivated and later abandoned and. (3) anadhi karambu, that is, waste lands. The rights of the mirasdars in regard to the latter two classes of cases have very often been the subject of controversy. In Sakkaji Rao v. Latchmana Gaundan I.L.R. (1880) Mad. 149 it was held that there was no law depriving mirasdars of any privileges they might have customarily enjoyed, but that it could not be laid down as a uniform rule that mirasdars were entitled to dues from cultivators holding lands within the area of the mirasi estate under pattas from the Government, and that where the right was claimed by them and such right was denied, there should be an enquiry whether by custom it prevailed in the estate and the mirasdars were entitled to the right claimed. In Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 : I.L.R. (1916) Mad. 410 a controversy arose as to the right of an assignee from the Government to the nattam or house-site; the mirasdars claimed that they were the owners of the site, but the Government denied it. The learned Judges held that, in the absence of proof to the contrary, the presumption would be that the Government and not the mirasdars were the owners of the house-site in the mirasi village, but that it would be open to-them to prove in any particular case that they had right over such lands. Ayling, J., summed up the rights of the mirasdars thus at page 464:
Whatever view is taken of the origin of mirasi tenure (which is entirely a matter of speculation and the privileges it confers, there are undoubtedly certain incidents, which have been claimed as. attaching to it from ancient times, and have to some extent been recognised. They are:
(a) The right to hold his manyam lands free of all payment of land revenue.
(b) The right to hold his patta lands in absolute ownership subject to the payment of such assessment as the State may impose.
(c) A preferential right to cultivation of all lands which have been brought under but have gone out of cultivation [Seykal Karambu).
(d) The right to certain fees (tunduvaram) on lands granted for cultivation to non-miras cultivators (payakaris).
(e) Certain rights over immemorial waste.
(f) Certain rights over lands set apart for various communal or public purposes, e.g., tanks, village site, threshing floor, etc.
Now all these rights may have a common origin in the status of the mirasdar; but none of them necessarily involve another, and, as will be seen, they vary with the description of land to which they relate. Each, as it seems to me, requires to be separately established; and recognition by the-State, whether express or implied, is an indispensable condition for the enforcement of each.
The decisions in Sakkaji Rao v. Latchmana Gaundan I.L.R. (1880) Mad. 149 and Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 : I.L.R. (1916) Mad. 410 related to a mirasi village which came under the ryotwari settlement. Sivanantha-Naicken v. Nattu Ranga Chari I.L.R. (1903) Mad. 371 and Venugopala v. Perumal : AIR1934Mad275 were cases of inam villages. In none of the cases was there any controversy raised that the mirasdar was not entitled to the kudiwaram right in the cultivated lands. In the analysis of the rights of a mirasdar contained in the judgment of Ayling, J. in Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 : I.L.R. (1916) Mad. 410 Clause (a) relates to the kani manyam or samudayam manyam which is granted free of payment of revenue to the mirasdars. Clause (b) refers to patta land, i.e., lands in respect of which ryotwari patta was granted, as the learned Judge was dealing with the case of a ryotwari village. Ryotwari patta would have been granted to them only because the mirasdar happened to be the owner of the occupancy. Correspondingly in the case of an inam village the mirasdar would be entitled to kudiwaram interest in the ryoti lands and the inamdar would be entitled to the melwaram. Substantially the mirasdars of a village would have an absolute heritable and transferable right in the cultivated lands of the village, subject to the payment of assessment to the Government. They have a similar right in the kaniachi manyam as an apanage to their miras, free from obligation to pay any assessment to the Government. In addition, certain other rights have been claimed on their behalf from time to time, e.g., right to receive fees, called mera or swantantaram on the produce of all the lands in the village yielding revenue to the Government; a right to receive tundu-waram or short assessment in all produce raised on the lands in the occupation of non-mirasdars. In Sakkaji Rao v. Latchmana Goundan I.L.R. (1880) Mad. 149 a suit was laid by the mirasdars. of a village against a tenant who was let into possession by the Government in a ryotwari village. The mirasdars claimed a right to possession of the property, and arrears of tunduwaram. It was held that the mirasdars were not entitled, apart from custom, to recover the dues by the cultivator holding lands within the areas of the mirasi estate under pattas from the Government, until they were able to prove the custom by which they would be entitled to do so. In Sivanantha Naicken v. Nattu Rangachari I.L.R. (1903) Mad. 371 certain lands forming part of immemorial waste were taken up by the Government under the Land Acquisition Act. The village in the case was a shrotriem inam. In the dispute between the inamdars and the mirasdars for the compensation for the lands acquired, it was held that the shrotriemdars were entitled to the compensation in preference to the mirasdars, as the mirasdars would not be entitled to the waste lands. Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 :I.L.R. (1916) Mad.410 was a case where the dispute was in regard to a nattam poramboke in a mirasi village. The claim of the mirasdars. that the Government could not grant the house-site or the nattam and that they alone had a right to do so was not accepted. In Ramalinga v. Ramaswami : AIR1929Mad529 a dispute arose between the cultivating tenants and the inamdar as to whether the former would be entitled to the occupancy rights. In that case the right of the inamdars had been acquired by the inamdar. It was held that the cultivating tenants would have no right of occupancy, which was a part of the mirasdar's right. In Venugopala v. Perumal : AIR1934Mad275 certain tenants were let into possession of uncultivated lands by the inamdar. The mirasdar claimed that the tenants were liable to pay rent to them, as their own tenants. It was held that the tenants were not liable to be evicted at the instance of the mirasdars, although they would be liable to make customary payments like tunduwaram, etc., to the mirasdars. Narasimha Raghavachari v. The Secretary of State for India in Council (1930) 60 M.L.J. 137 was the case of a ryotwari village where the ekabogam mirasdar claimed a preferential right over the village waste, and to interdict an assignment of the waste lands by the Government in favour of strangers. That claim was negatived. Except the decision in Ramalinga v. Ramaswami : AIR1929Mad529 the other cases referred to above were concerned with the rights of the mirasdars in the uncultivated or waste lands in the village, and it was held that, in the absence of proof of custom as to the extent of those rights, the mirasdars would not be entitled to them. It was, however, recognised in all the cases that mirasdars would be entitled to the kudiwaram interest in the cultivated lands of a village. That matter arose for consideration directly in Ramalinga v. Ramaswami : AIR1929Mad529 where the learned Judges held that the mirasdars themselves should be regarded as occupancy tenants, and their under-tenants, known as payakaris, had in general no occupancy rights. If then, in the present case it is proved that the grantee under Exhibit B-6 was the ekabogam irasdar of the village at the time of the grant, it would follow that he owned the kudiwaram right in the village.
12. We have therefore to consider whether the appellant's predecessor-in-title had the kudiwaram right in all the lands, or whether there were other ryots in the village, when the East India Company made the shrotriem grant in his favour. Exhibit A-1 is the cowle , dated 15th November, 1798 granted by Mr. Lionel Place, the Collector of the Chingleput Jagir in favour of Varadappa Mudali. Village Nazarathpuram was one of the four villages granted in shrotriem right to him thereby. A shrotriem is a grant of land revenue made to servants of the Government as regard for past services. Therefore from the terms of Exhibit A-1 it cannot be held that Varadappa Mudali was the owner of the Kudiwaram at the time. Reliance was, however, placed on other evidence in the case to show that Varadappa Mudali was the ekabogam mirasdar of the village, which would mean that he was exclusively entitled to the kudiwaram right in all the cultivated lands of the village. We shall presently refer to that evidence, after noticing another contention of Mr. V. Vedanta-chariar, based on the recitals of Exhibit A-1. Referring to category 3 of the privileges granted to Varadappa the learned Counsel contended that there must have been in existence some ryots other than cowledar in the village, either at the time of Exhibit A-1 or thereafter. The third item of privilege granted to Varadappa Mudali under Exhibit A-1 runs thus:
Sixty per cent waram upon all cultivation, which you may carry on in the following villages .... Nazarathpuram.
The inference that is sought to be made from this recital is that there should have come into existence other tenants in the village from whom Varadappa Mudali was authorised to collect 60 per cent waram, and it was contended on the basis of such an inference that it was for the appellant to show that no such right was in existence at the time of the Purwana Exhibit B-6. In our opinion, the clause relied on could only relate to the uncultivated lands in the village as it postulated future cultivation. We have already shown, by a reference to the decided cases, that the Government of the country would have a right to grant such lands to persons other than mirasdars, subject to the right of the mirasdars, if any, only to collect tunduwaram or other warams from the tenants of the Government. But the clause in Exhibit A-1 places Varadappa Mudali in a better footing. That recognized that it was Varadappa that was to carry on cultivation but imposed only a restriction on the rent to be collected by him if he were to let in tenants. Even assuming that Exhibit A-1 recognised a right in the tenants that were later on to be let into possession, the evidence afforded by the document would only show that certain lands remained uncultivated in the village, in which the Government of the country desired that there should be cultivation. It cannot prove that there were any other kudiwaramdars or even that if new tenants were introduced in the lands by Varadappa Mudali, they would obtain kudiwaram or mirasi right in the lands. There is no evidence to show that any tenants have been let into possession. The absence of any reference in the Purwana Exhibit B-6 to the existence of any tenants would indicate that there was none. Exhibit B-2 is an extract from the Fair Inam Register, relating to kani inam, an extent of 8-37 acres in Nazarathpettai village. Column 6 of the document shows that the inam was supported by Tarapadi and Dowle Accounts as the kani inam of Evalappa Mudali, and that the then holder was Nazarathapettai Varadappa Mudali. The inam was confirmed by the British Government, and a title deed was issued In a case where there were more than one mirasdars in a village, kani manyam would have been jointly owned by all of them in proportion to their interest in the other lands in the village. Exhibit B-2 would, therefore, show that the village was mirasi village, and that the mirasdar was granted, in accordance with custom, the kaniachi maniam, and that Evalappa Mudali was the sole mirasdar of the village. The contention of the learned Advocate for the respondents was that the mere fact that a kani manyam was granted to predecessor-in-title of the appellant, or that he was described as ekabogam mirasdar of the village, would not establish the mirasi tenure in the village. The learned Advocate relied, in this connection, on the judgment of Rajagopala Ayyangar, J., in W.P. No. 99 of 1951. That was a petition under Article 226 of the Constitution to quash the order of the Estates Abolition Tribunal. The Tribunal had held, on a consideration of the evidence, that it was not proved that the shrotirem grant in that case was of both the warams. The learned Judge held that, having regard to the finding of fact arrived at by the Tribunal, there was no case for interference under Article 226 of the Constitution, on the mere ground that expressions like 'mirasi' were used or on proof of payment of tunduwaram by the ryots. We agree with the learned Judge that a mere recital in a document, that a person was a ekabogam mirasdar or the mere fact that he was the sole owner of kaniachi manyam at a given time, would not necessarily show that he was the owner of the entire kudiwaram in the village at the time of a shrotriem grant to him. We are not, however, hampered in this case by the limitations of the exercise of jurisdiction under Article 226 of the Constitution, as the matter is brought up in an appeal before us. What we have to consider is the evidence. The documents to which we have made reference show that Varadappa was the ekabogam mirasdar. Exhibit B-1 is an extract from Paimash Register, which was compiled in the year 1839. That describes Varadappa Mudali as shrotriemdar and ekabogam mirasdar of the village. Mr. Vedantachariar commented on the fact that the document refers to a kaipathu and varapathu lands, and that those terms would imply the existence of ryots. The contention however, is based on an inaccurate translation of the Paimask Register which is in tamil. We have looked into the original. There is no reference in the original tb kaipathu or varapathu lands. But we do find that various survey numbers are referred to therein as bounded by ryoti lands. A rycti land is a cultivable land. The Paimash Register was compiled long before the Madras Estates Land Act, and the significance which is now attached to the term ryoti land 'would not attach-to them with all its implication, e.g., the existence of a ryot with permanent rights of occupancy. The entries in Exhibit B-1 would only mean that the lands dealt with were cultivable or cultivated lands, and there can be no implication that the tenants had any occupancy rights therein. Quite recently the Rent Reduction Officer found that there were no ryoti lands or holdings of ryots in the village.. If really there had been some, ryots with occupancy rights in the lands of the village, one would have expected some evidence of transactions by them dealing with their kudiwaram right in the lands by way of sale, mortgage, lease, etc. No such evidence has been produced. There is no evidence of any transaction in which any ryot in the village ever asserted his right to the kudiwaram. It should be remembered that, since the time of the assumption of the jagir in Chingleput, elaborate enquiries and proceedings were going on in regard to mirasi rights in Chingleput village. A number of litigations cropped between the mirasdars and tenants wherein rights were asserted and denied. Significantly enough, there has been no case, of any opposition to the Shrotriemdars enjoyment or any assertion by a ryot in the Nazarath-pettai village. Exhibit B-31 is a rental agreement in favour of Varadappa Mudali executed by one Appu Lala. That is dated 20th February, 1884. Exhibit B-4 is a similar agreement executed on 7th October, 1903 by one Munisami Pathar in favour of Evalappa Mudaliar, son of Varadappa Mudali. In both these documents, the landlord is described as an ekabogam mirasdar. The evidence in this case is, therefore, consistent only with the predecessors-in-title of the appellant having been exclusively the mirasdar of the village. Mr. Vedantachariar referred us to a recent unreported decision in A.S. No. 209 of 1947, etc. In that case there was evidence in the grant itself to show that there were kapus or cultivating tenants in the village.
13. In Chinnan v. Kondam Naidu (1913) 26 M.L.J. 169 there was a shrotriem grant of 1802, the grantee being a mirasdar. It was held that, where there was nothing to show that the grantee had lost the kudiwaram right which prima facie vested in the mirasdar, the village could not be held to be an estate within the meaning of Section 3, Clause (2)(d) of the Estates Land Act. Spencer, J., observed that encroachments on the mirasdar's rights took place only in the 19th century, and the probabilities were that in the year 1802 the mirasdars owned also the kudiwaram right in the village.
14. The learned Counsel for the respondents ryots next contended that, although there was no evidence in the case about the existence of any ryots in the village at the time of the grant, the possibility of a ryot having been there at the time of the inam grant could not be ruled out, and that, therefore, it should be held that the appellant had failed to discharge the onus of proving that lay on him, rebutting the presumption that was raised against him under Section 8 of Act XXX of 1956. In our opinion, it is not correct to state that a landlord who asserts that he had kudiwaram right in the village at the time when the grant of melwaram was made to him, should prove that fact beyond a possibility of its being otherwise. It is well settled that when the entire evidence is before the Court, the question of onus is of little importance, except when the evidence is equally balanced or equally untrustworthy. The presumption under Section 8 will, no doubt, come to the aid of the respondents, if the Court is unable to find one way or the other on the evidence. But, where evidence is adduced in a case, and such evidence if accepted would be sufficient to displac6 the presumption, the case had got to be decided on the evidence in the light of the probabilities, and it cannot be rejected on the ground of the possibility of a different state of things existing. To do so would amount to a rejection of proof on the basis of a speculation.
15. The evidence in the present case shows that Varadappa Mudali was the ekabogam mirasdar of the village, which would mean that he was the person solely entitled to the kudiwaram interest in all the cultivated lands in the village at the time when the shrotriem grant was made. That evidence, which is not contradicted by any other evidence, should be held to have rebutted the presumption under Section 8 of Act XXX of 1956. We are, therefore, of opinion that the conclusion arrived at by the Tribunal cannot be supported, and that the village of Nazarathpettai was not an estate coming within the provisions of Section 3(2)(d) of the Madras Estates Land Act, as it stood before its Third Amendment in 1936, and that it would not, therefore, constitute an inam estate within the meaning of Act XXVI of 1948. The appeal is allowed. The appellant, will be entitled to his costs.