Venkataramana Rao, J.
1. These civil revision petitions arise out of a batch of suits instituted by the agraharamdars of Arepalli Taluk, Guntur District, against the tenants for recovery of rents or damages for use and occupation in respect of the holdings in their occupation. All the suits; excepting, one, namely, O.S. No. 153 of 1918 were filed in the District Munsifs Court of Repalli, The said O.S. No. 153 of 1918 was filed in the District Munsif's Court of Tenali.
2. The main question in these suits is whether the Civil Court or the Revenue Court has jurisdiction to take cognisance of them. The allegations in the plaints are that the, agraharamdars own both the melwaram, and the kudivaram, by virtue of the original grant and that at no time the tenants had occupancy rights. The plea of the tenants is that Arepalli agraharam is an estate within the meaning: of the Estates Land Act and their holdings being comprised in the said: estate the Revenue Court only has got jurisdiction to determine the claims, AM the suits, which were filed in the Repalli District Munsifs Court were stayed pending the decision of the Privy Council relating to certain lands in the same agraharam wherein the same question was raised. The said O.S. No. 153 of 1918 reached the stage of second appeal and was pending in the High Court. The decision of the, Privy Council was delivered on February 14, 1929, and it is, reported in Seethayya v, Subramanya Somayajulu (1929) M W.N 553 : 117 Ind. Cas. 507 : AIR 1929 P.C. 115 : 33 C.W.N. 578 : 29 L.W. 804 : 52 M 453 : 31 Bom. L.R 756 : 49 C.L.J. 566 : 56 M.L.J. 730 : 56 I.A. 146 . On a consideration of the original grant their Lordships of the Judicial Committee held that the Arepalli agraharam was an estate within the meaning of Section 3, Clause 2(d) of the Madras Estates Land Act. After the decision of the Privy Council the suits in the District Munsif's Court of Repalli were taken up for hearing and the plaints were directed to be returned for presentation to the proper Revenue Court. There was an appeal to the District Court from his decision. The learned District Judge was of opinion that though oh the question of the construction of the grant the Privy Council decision was conclusive of the rights of the parties the plaintiffs will nevertheless he entitled to allege and prove that they had acquired the kudivaram right in the said lands subsequent to the date of grant. He, therefore, permitted the said contention to be raised and remanded the suits for disposal in the light of the observations contained in his judgment. It may be noticed the same view was taken in S.A. No. 1088 of 1921 which was filed against the appellate decision in O.8. No. 153 of 1928 and the said suit was also remanded for a like purpose. The District Munsif on remand in a very careful and considered judgment came to the conclusion that the agraharamdars did not acquire kudivaram interest subsequent to the grant and the Revenue Court alone bad jurisdiction. But his decision was reversed by the learned District Judge. It is against his decision these revision petitions were preferred in 22 of the suits. Since the filing of these revision petitions it has been brought to my notice that 10 of them have been compromised, namely, the following C.R.P. Nos. 971, 973, 979, 980, 982, 988, 989, 990, 991 and 992 of 1934. Therefore, the main question which falls to be decided is whether the agraharamdars own both the varams by reason of the subsequent acquisition of the kudivaram and the Civil Court has jurisdiction to try the suits. Mr. Satyanarayana Rao who appeared for the petitioners urged that it is unnecessary to go into the merits of these cases on the ground that under the Madras Act XVIII of 1936 which amended the Madras Estates Land Act, they have acquired occupancy rights and the kudivaram is no longer in the agraharamdars and the Revenue Court alone has got jurisdiction. It, seems to me that this contention must prevail. Section 3 of the said Act has now added the following explanation to Section 6 of the Madras Estates Land Act I of 1908.
In relation to any inam village which was not an estate before the commencement of the Madras Estates Land (Third Amendment) Act, 1936, but become an estate by virtue of that Act, or in relation to any land in an inam village which ceased to be part of an estate before the commencement of the Act, the expressions 'now' and 'commencement of this Act' in this sub-section and Exp. (1) shall be construed as meaning the thirtieth day of June 1994, and the expression 'hereafter' in this sub-section shall be construed as meaning the period after the thirtieth day of June 1931.
3. So far as Section 6 of the Act is concerned, it has been held to be retrospective in this sense, namely, that on the date of the commencement of the Act if a tenant was in possession of ryoli land he would acquire occupancy right and the section has been applied to pending litigations where decrees in ejectments had been obtained but no final decree of a competent Court had been passed. In the order of reference to the Full Bench in Gnrakala Kanakiya v. Janardha Padhai 36 M. 439 : 8 Ind. Cas. 736 : (1910) M.W.N. 841 : 9 M.L.T. 64 : 21 M.L.J. 31 Miller and Krishnaswamy Ayyar, JJ. made the following observations in regard to the expression 'every ryot now in possession in the section:
It says the expression 'every ryot now in possession' shall include every person who continues in possession at the commencement of this Act. It seems impossible to resist the conclusion that it was the deliberate intention of the legislature to confer a right of occupancy upon a ryot in possession at the date of the commencement of the Act. Such an interpretation may have the effect of nullifying vested rights under contracts previously entered into. But it is impossible to place the interpretation that ryots in possession of land at the date of the commencement of the Act are entitled to occupancy rights on the mere general principle that a legislative enactment should not be interpreted so as to affect vested rights or to give it retrospective operation by applying it to pending suits. As pointed oat by Bowen, L.J., no doubt as a general-rule a statute does not affect pending proceedings, but that rule is only a guide where the intention of the legislature is obscure, it does not modify the clear words of a statute:' Quilter v. Mapleson (1882) 9 Q.B.D. 672 : 52 L.J. Q.B. 44 : 31 W.R. 75.
4. The same view was taken in Govinda Parama Guruvu v. Dandasi Pradhavu 20 M.L.J. 528 : 7 Ind. Cas. 74 : (1910) M.W.N. 331 : 8 M.L.T. 135 where before the first July 1908, the date when the Act came into force, the landlord obtained a decree for possession of the ryoti land, Benson and Sankaran Nair, JJ. held it was immaterial that a decree for possession had been already passed. This interpretation was accepted by the Privy Council in Yerlagada Mallikarjuna Prasad Nayudu v. Somayya 42 M 400 : 49 Ind. Cas. 703 : A.I.R. 1918 P.C. 183 : 17 A.L.J. 233 : 36 A.I.R. 257 : 23 C.W.N. 626 : 21 Bom. L.R. 627 : 26 M.L.T. 1 : 30 C.L.J. 77 : (1919) M.W.N. 541 : 10 L.W. 400 : 46 I.A. 44 . Now by virtue of the amendment made by Section 3 of the Amending Act in relation to any inam village which ceased to be part of an estate before the commencement of the Amending Act the expression 'now' and 'commencement' of this Act' in this sub section and explanation shall be construed as meaning the June 30, 1934. This section is prima facie retrospective and there is no saving in regard to pending suits. If on June 30: 1934, a tenant is in possession of land in an matt village which ceased to be part of the estate he will get occupancy right by virtue of Section 6(1). Assuming therefore the contention of the agraharamdars is right that the land ceased to be part of an estate, the petitioners have acquired occupancy rights and they are still in possession. I may usefully refer in this connection to the recent decision of the Privy Council reported in K.C. Mukirjee v. Ramratan Kuer . It was a decision under the Bihar Tenancy Amending Act. In that case their Lordships of the Judicial Committee applied the Amendment Act of 1931 to a case pending before the Privy Council. The landlord in that case sued to eject the defendant on the ground that she had taken a non-transferable holding and therefore he had become entitled to re-enter. The Subordinate Judge who tried the case accepted the plaintiff's contention and gave a decree in his favour electing the defendant. But the High Court took the view that since the transfer the landlord accepted rent and recognised the rights of the transferee and dismissed the suit. The decision of the High Court was pronounced on April 27, 1953, and there was an appeal against the said decision to His Majesty in Council. Pending the appeal to His Majesty in Council the Legislature of Bihar and Orissa passed an Act called the Bihar Tenancy Amendment, Act, 1934, which came into force on June 10, 1935. By Section 26(N), it was provided that:
Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift, or will made before the 1st day of January, 1923.
5. Therefore the question which their Lordships of the Privy Council had to consider was whether this section would apply because if it applied the Act must be deemed to have taken away from the appellant the right which he was proposing to enforce in the appeal before the Privy Council. Their Lordships held his right was so taken away and they made the following observations referring to Section 26(N) of the Act which are pertinent to the case now on hand:
Its provision is that every person claiming an interest as a landlord shall be deemed to have given his consent to every transfer made before January 1, 1923. This is retrospective: the question is not whether the general language shall be taken only in a prospective sense. The object of this section can only be to quiet titles which are more than ten years old and to ensure that if during those ten years the transferee has not been ejected he shall have the right to remain on the land. Within this class the Legislature has not thought fit to discriminate against tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlord and their accrued causes of action were to be abrogated, respect for pending suits over old transfers cannot be assumed.
6. Similarly in the present case the section clearly says that if a person is in possession of land in an inam village on June 30. 1934, he shall be deemed to have acquired occupancy right. The object of this section was in unmistakable terms to confer occupancy right on the tenant in possession of such land and respect for pending suits cannot be assumed. In this view the Revenue Court alone would have the jurisdiction and the decision of the learned District Judge cannot be sustained and it seems to me unnecessary to consider the argument based on Section 13 of the Amendment Act XVIII of 1936. The applicability of Section 3 is not controlled or governed by the said section, as in my opinion apart from Section 13 Section 3 will apply to the cases. All that Section 13 says is that the Act shall apply to all proceedings stayed by Section 127(2) but it does not affect the application of the Act to other cases nor does it affect the retrospective operation of the Act, if the legislature meant the section to be restrospective.
7. However, I will deal with the contention based on Section 13. It is contended by Mr. Somayya that the Amending Act XVIII of 1936 can only apply to pending suits which are stayed under Section 127(2) of the Madras Estates Land Act, Amendment of 1934, and Section 127(2) according to him can only apply to cases where land is comprised in a village which is not an estate within the meaning of Section 3(2)(d) and that as the present agrahrvn was declared to be an estate within the meaning of the said clause, Section 127(2) would have no application to the present suits. It must be said that the argument of Mr. Somayya has great force as the language of the section lend support to that contention. But the question is, what was the intention of the legislature in enacting Section 127, Clause (2) of the Madras Act VIII of 1934. As Lord Halsbury observed ill Herrar v. Rathimines & Rathigar Improvement Commissioners (1892) A.C. 498
The subject-matter with which the Legislature was dealing and the facts existing at the time with respect to which the legislature was legislating, are legitimate topics to consider in ascertaining what was the object and purpose of the legislature in passing the Act.
8. Tthe legislature was contemplating, an amendment in regard to the conferment of occupancy right on the tenants in inam villages. They were fully aware that the land may form part of a village which is not an estate within the meaning of Sub-clause (d), Clause 2 of Section 3 of the Act may have formed part of the village within the meaning of the said clause but has ceased to be part of the estate and they wanted to confer occupancy rights in respect of both classes of lands. The legislature was also aware that in respect of both classes of lands there were pending litigations also. The object of the legislature was that till they carried out the legislation which they had in contemplation, there should not be any final adjudication of the rights of the parties by Courts of law. This object would be thoroughly frustrated if Mr. Somayya's contention is given effect to and the expression 'not being an estate' were held to qualify 'village' and not 'land' in Clause 2 of Section 127 of the Madras Act VIII of 1934. No doubt it is not strictly accurate to talk of any land being an estate. But the expression 'any land in an inam village' might comprise the entire land in an inam village or a part thereof. If it comprises the entire land in an inam village, it would be synonymous with the village. If it is not, it would be part of the said village. If the entire land is to be taken into consideration, there is no incongruity in qualifying the said land by the expession 'not being an estate.' That a separate part of an inam village can be an estate is also contemplated by the legislature (vide Section 50 of the Amending Act). It seems to me the expression 'not being an estate' must be held to govern the land and not only village. If the contention of Mr. Somayya were to be accepted, the Court must in every case come to the conclusion whether it is an estate or not before the amendment can be applied. On tie other hand the object of the legislature was whenever any question of kudivaram right arose with reference to a land in, an inam village, the action should be stayed. In Section 127, Clause 2 of the said Act VIII of 1934 the expression used is 'all proceedings involving a decision whether or not the inamdar has the kudivaram right, in such land' and the the expression' is wide and general. The proviso also seems to indicate that the words 'such land' must only mean any land in an inam village and not any land in an inam village qualified by the expression 'not being as estate.' However it is unnecessary to rest ray decision on this ground since 'I have' already held that the application of Section 3 is not controlled or limited by the application of Section 13 of the Amending Act. Even if my view in regard to the applicability of the Madras. Amending Act XVIII of 1936 is wrong, I am also of the opinion that the case of petitioners on the merits is well founded and I shall proceed to deal with it.
9. The main question in these suits is whether the plaintiffs have acquired the kudivaram right within the meaning of the exception to Section 8 of the Madras Estates Land Act. In the plaints which were originally filed as already stated by me, the case was that by virtue of the grant the plaintiffs are the owners of both the varams. There was no allegation that they acquired the kudivaram subsequent to the date of the grant. In the cases which went up to the Privy Council', two issues were raised namely,
(it) whether or not the plaintiff's predecessor-in-title owned the kudivaram at the time of the grant?
(iii) whether the plaintiffs or their predecessors-in-title subsequently acquired the kudivaram right in the suit land? Mr. Narayana Murthy who appeared for the plaintiffs stated that it was not his case that the plaintiffs predecessor san-title had the kudivaram interest at the time of the grant or that they subsequently acquired the kudivaram right and, therefore, he did not press those issues. In Seethayya v. Subramanya Somayajulu (1929) M W.N 553 : 117 Ind. Cas. 507 : AIR 1929 P.C. 115 : 33 C.W.N. 578 : 29 L.W. 804 : 52 M 453 : 31 Bom. L.R 756 : 49 C.L.J. 566 : 56 M.L.J. 730 : 56 I.A. 146 their Lordships of the Privy Council observed:
In the course of these proceedings the respondents have admitted that they did not own the kudivaram before the grant and that they did not acquire the kudivaram independently of and after the grant. In view of the admissions made for the purposes of these cases that the respondents did not acquire the kudivaram subsequently to the grant, it becomes unnecessary to consider the subsequent acts of the parties and the inferences to be drawn front them.
10. It may be mentioned that the case of the Plaintiffs in those cases as laid in the plaint before it came up to the High Courts. was that the original grant was lost and that the proper inference from all the facts including acts of ownership by themselves and their predecessors was that under the grant they had both varams. Thus various acts including the acts of ownership were relied on for the purpose of establishing that from the inception they have kudivaram interest in them but not that subsequently the plaintiffs acquired them. From the concession made by them it is also-clear that these acts were not relied on: for the purpose of proving that they acquired the kudivaram subsequent to he date of the grant. If the plaintiffs want to rely on the exception to Section 8 of the Act, it is incumbent on the plaintiffs to prove that in a particular plot of land they acquired the kudivaram. It will not, therefore, be permissible for the plaintiffs to rely on any general evidence regarding the acts of ownership in regard to the whole village or in regard to the other plots in the same village. As observed by Venkatasubba Rao, J. in Ramalinga Mudali v. Ramaswamy Aiyar : AIR1929Mad529 .
So far as the exception to Section 8, is concerned, its application depends on the particular fact 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 vary nature of things, cannot apply to other and different plots in the same village.
10. Again as observed by Spencer, J. in Venkatadasu v. Udaiyanarayanem 33 M.L.J. 548 : 41 Ind. Cas. 122 : 8 L.W. 142 : A.I.R. 1918 Mad. 569 .
If the plaintiffs intended to rely on the exception to Section 8 of the Madras Estates Land Act for ousting the jurisdiction of the Revenue Court, it was necessary that they should have advanced a specific case to show by what acts they acquired the kudivaram interest of their ryots and became entitled to both varams.
11. In the present suits even after the plea was allowed to be raised no acts were alleged by which they acquired the kudivaram right nor was it alleged when they acquired such kudivaram right or by whom was such right acquired. As stated by the District Munsif, the argument on behalf of the plaintiffs was that as the plaintiffs were unable at this remote time to prove when or how the kudivaram was acquired and as the subsequent conduct of the agraharamdars showed that they were, in full possession and enjoyment of both the varams, it must be presumed that their acquisition of the kudivaram had a legal origin. The District Judges also remarks that
there is no direct proof in any oft these suits, of. such, acquisition. It is sought to be made cut by the plaintiffs from enjoyment of the properties and the conduct of the parties.
12. It seems to me that this plea ought not to have been permitted at all in the absence of any delinite allegations as to the mode of acquisition. The question is whether there is any room in these cases for the application of this theory of lost grant or the presumption of a legal origin and long-continued enjoyment of both the varams. At the outset I may state that even this theory of lost grant must be made out with reference to facts of each case. The; learned District Munsif dealt with, each case separately and arrived at an independent conclusion in regard to each. But unfortunately though the learned District Judge concurred with the District Munsif in his treatment of the cases he never adhered to it but dealt with the cases together and arrived at conclusions based on facts relating to the entire village. The evidence relied on in proof of the acquisition of kudivaram right falls into two classes (1), general evidence regarding the entite village and the acts of ownership exercised by the agrahramdars, and (2) evidence regarding each holding. The general evidence relied on comprises three independent pieces of evidence, namely (1) evidence furnished by what are called dumbalas which range between 1801 and 1823, (2) evidence furnished by partition proceedings between the agraharamdars in 1859 and 1860, (3) certain land acquisition proceedings wherein the agraharamdars were paid compensation in respect of certain lands in the village. This general evidence as already observed by me is wholly inadmissible and particularly in this case where concession was made that in respect of certain lands in the village the inamdars have not acquired kudivaram interest subsequent to the grant. The general evidence is admissible only if it was intended to prove that in the entire village they acquired kudivaram right subsequent to the grant. In Ramalinga Mudati v. Ramaswamy Aiyar : AIR1929Mad529 Venkatasubba Rao, J. considered the evidence in regard to the whole village because the case there made out was that in regard to the entire village kudivaram was acquired subsequent to the grant. Further the said case can hardly be treated as an authority because it related to a mirasi village where admittedly the mirasidar is the cultivating ryot and the question in that case was whether the zamindar acquired also the rights of the mirasidar. It was not like this case where the cultivating ryots set up occupancy right as against the landlord. However, as the learned District Judge was considerably influenced by this general evidence I shall proceed to deal with the legal inference that can be drawn from the evidence. The Dumbalas are Exs. A to Ex. A-14. Exhibit A relates to Fasli 1192 (i.e. 1782-83) and Ex. A-14 relates to Fasli 1231 (1821-22). The learned District Judge says that
they furnish valuable evidence in favour of the agrahramdars that whatever might have been the state of affairs at the time of the original grant in 1689, there were no tenants with occupancy rights in the lands on the dates of the Dumbalas and far from any of the Dumbalas lending any support to the contention of the ryots, each one of them has got a deadly effect against their case.
The learned Judge fell into a serious error in regard to the import of these documents. If, according to the learned Judge, on the dates of these Dumbalas there were no tenants with occupancy rights it could not be said that there was any acquisition by the landlord of any such occupancy rights. The learned District Judge entirely forgot that the entire area of this inam village was not cultivated Even at the time of the inam settlement as will be seen from Ex. D it will be found that the total extent of the inam village was 2,409 acres whereof 960 acres were cultivated dry and only 84 acres and odd were cultivated wet and the rest of it was uncultivated and waste. Therefore, on the dates of these Dumbalas it is not possible to know how much was cultivated. In the lands which were not cultivated, it cannot be said that there were any tenants with occupancy rights and in these lands there could be no question of any tenants abandoning occupancy rights or the landlord purchasing occupancy rights and any such acquisition thereof by the landlord Unless it is possible to establish that the suit lands were lands which were then under cultivation at the time of the Dumbalas it cannot le said that there was any acquisition of occupancy right subsequent to the date of the grant.
13. Coming to the nature of the dumbalas they do not seem to have any such deadly effect as is attributed by the learned Judge. These dumbalas are only permits to enable the agraharamdar to deal with the produce freed from the burden of paying the dues to the zemindar. The person with whom the zemindar is concerned is only the agraharamdar because he was the person responsible for the payment of the dues to him. The zemindar is not concerned how the produce is distributed between the agraharamdar and the tenants who cultivate the land. The nature of, and the value that should be given to, these dumbalas have been very accurately summed up in a considered judgment of Pandalai, J. in S.A. No. 1592 of 1926 and I am constrained to quote the observations of the learned Judge at considerable length because that judgment has unfortunately not been reported
The dumbalas produced C series and Exs. X and X A covering the pariod of 17-5 to 1836 have been construed by both the lower Courts on the footing that the Privy Council have by a remark in 43 Mad. 166 Venkata Sastrulu v. Seetharamayudu 43 M 166 : 51 Ind. Cas. 304 : 17 A.L.J. 725 : 37 M.L.J. 42 : 21 Bom. L.R. 925 : 26 M.L.T. 175 : 30 C.L.J. 441 : 10 L.W. 633 : 24 C.W.N. 129 : 46 I.A. 123 : 2 U.P.L.R. 16 given dumbalas generally ' the meaning and effect of establishing that the inamdar who is mentioned therein is the owner of both varams. The respondents also rely on it for that purpose. The remark is 'there are also some dumbalas or orders dated in the year 1793 requesting that the plaintiffs' ancestor shall be allowed to reap and enjoy the crops pertaining to Billiapadu.
14. These are dealt with under the category of other confirmatory documents. We are confident that by this remark their Lordships did not intend that wherever dumbalas are found they should have the meaning and effect attributed to them by the plaintiffs, irrespective of any consideration of the nature and object of dumbalas and other facts which establish that the inamdars were not and could not be permitted to remove the whole crop or indeed do anything more than take what as between them and the ryots is due to them; dumabalas are merely part of the machinery of revenue collection when the revenue is calculated on a share of the produce. The revenue being in theory payable in kind by a share of the produce, the zemindar or Government has necessarily to take care that the crop is not before or after harvest removed by any one till the revenue is paid. The local officials having for this purpose detained the crop the dumbala is simply an intimation to them by the zemindar or superior Government revenue official, who has previously received the revenue, that it has been paid or accounted for and that the crop may be permitted to be removed. In short, it simply raises the Government embargo on the produce and permits it to be taken away. By whom and of what? It is natural that the revenue authorities should refer to the person who is bound to pay and has paid the revenue. But it is a misunderstanding of the situation and the document to think that the mention of the inamdar means that the whole produce may be appropriated by him and therefore that he is the full owner of the land and that the tenants have no rights The inamdar is mentioned in the dumbalas because he is the person responsible for the revenue and he in his turn to protect his own interest as well as of the Government to whom he is bound to pay revenue is bound and interested to see that the produce is not taken away by the cultivators till the melwaram out of which both revenue and the inamdar's share has to come is paid.
15. On a reference to the printed records of the case it will be found that the nature of these dumbalas is more or lees similar to that in the present cases. I think the learned District Munsif has correctly appreciated their true legal effect. The partition proceedings are evidenced by Exs. B, B-1, C and C1. So far as these documents are concerned, they can never form the basis of any inference in regard to the title to the kudivaram interest. Whenever there is a partition of an estate among the members of a family, it is usual always to divide the lands which form the estate and not the melwaram. From the description of the land it does not follow that actual lands were divided. In a permanently settled estate for example most of the lands would be in the possession of the tenants except lands which were lying waste and were not cultivated. In the case of lands which are in the possession of tenants when there is division of lands, it only means that the person to whom the lands are allotted will realise the rents and profits from the tenants who are in occupation of the said lands It will be seen from Ex. D that nearly 1400 acres were cot in the cultivation of anybody and there is no evidence in the present suit that the lands which are the subject-master of those suits were not comprised in the lands which were not under cultivation then. It is not possible to draw any inference that there were tenants with occupancy rights in the said lands who had abandoned them or from whom the landlords acquired the kudivaram right.
16. Then the next piece of evidence relied on is certain land acquisition proceedings. The circumstances under which compensation was awarded to the agraharamdars are not in evidence. They have no bearing on the specific issue in the suits, namely, whether a particular plot ceased to be part of the estate. The fact that with reference to certain lands which formed the subject-matter of the said proceedings, compensation was not claimed by the tenant would not be any evidence in regard to other plots of land. Probably there may be evidence in regard to the question whether the zemindar owned both the varams in the entire estate but that question is not in issue. The above three pieces of evidence each by itself being inconclusive even on the question whether the original grant was of both the varams, taken together are also inconclusive on the said question and it is not safe to rely upon them to establish the subsequent acquisition of kudivaram interest by the inamdar. Therefore if we eliminate them we fall back upon the evidence with reference to each plot. Before dealing with the said evidence, it is necessary to make a few general observations. The lands being prima facie in the Arepalli Agraharam, geographically they are within the ambit of an estate within the meaning of the Estates Land Act. Therefore there is prima facie presumption that in the said lands the tenants have get occupancy rights. The Court therefore has to start with the said presumption in deciding whether the inamdar has got the kudivaram right. Under Section 23 of the Estates Land Act and Section 185 of the said Act the presumption is that land in an estate is a ryoti land. The learned District Munsif has correctly applied the presumption in estimasing the evidence. The learned District Judge has, in my opinion, fallen into an error in thinking that the presumption ought not to be applied. The learned Judge remarks at the end of para. 7:
We have nothing to do with the presumptions laid down in the Act when considering the issue whether such an acquisition has been made.
17. Under the exception to Section 8, Sub-section 2, Clause (d), land in an inam village will cease to be part of an estate if it is proved that the tenants interest in those holdings have been acquired by the inamdar. It is an exception which the landlord will have to make out. The exception is only to the general rule that in every land comprised in an estate, the tenant has got occupancy right. It is not possible to understand how the learned District Judge ignored this elementary rule. The evidence abundantly establishes and it is not challenged before me that the lands were never in the personal cultivation of the agraharmdars. There is no evidence either oral or documentary by which the plaintiffs sought to prove the manner and method of the acquisition of the kudivaram right and no single instance has been proved of a relinquishment by the tenants or of purchase by the inamdar or of inheritance or any other known mode by which the landlord came to acquire the kudivararm right. The sole thing relied on is that the agra-harmdars were dealing with the lands as owners and leasing them from time to time for specific periods. The learned District Munsif disbelieved all the unregistered leases relied on by the plaintiffs. In this the learned District Judge has also concurred. He observes: 'The safe method to adopt with reference to these exhibits is to ignore the unregistered documents altogether'. There remain then the registered leases and other evidence relied on with reference to each of the plots in question. Taking the registered leases they range between 1903 and 1911. The Estates Land Act came into force on July 1, 1903. If before the dates of these registered leases the landlord has not acquired kudivaram right, the execution of these registered leases would not affect their occupancy right if they were in possession of the lands on the date of the commencement of the Act. Therefore it has to be proved apart from these leases whether the landlord has acquired kudivaram right. If so, these leases may be some evidence in confirmation of the said right. It is a well-known fact that the zemindars are inamdars anticipating tenancy legislation had been trying by all possible means to deny occupancy rights to the tenants and to prevent acquisition of occupancy rights by the tenants and for that purpose have been taking muchilikkas with recitals in and by which the tenants stipulate to surrender possession to the landlord at the end of the term. It has always been held that from such a stipulation it is unsafe to presume absence of occupancy right in the tenant. The value of these leases will also be much discountenanced if it is proved that the tenants from whom these leases were taken were in occupation of the said lands on the dates of the said leases. Certain observations in the Privy Council judgments were relied on by Mr. Somayya in this connection. But on a careful perusal of the judgments it will be seen that the observations were made with reference to the particular facts of those cases. For example in Surayanarayana v. Patanna 41 M. 1012 : 48 Ind. Cas. 689 : 25 M.L.T. 30 : (1918) M.W.N. 859 : 23 C.W.N. 273 : 9 L.W. 126 : 29 C.L.J. 153 : 1 U.P.L.R. 11 : 36 M.L.J. 585 : 21 Bom. L.R. 547 : (1919) M.W.N. 463 : 45 A. 209 it was found that the defendants were let into possession by the inamdars under agreements for terms which expired in each case before the suits for ejectment were brought. Similarly in Venkata Sastrulu v. Seetharamayudu 41 M. 1012 : 48 Ind. Cas. 689 : 25 M.L.T. 30 : (1918) M.W.N. 859 : 23 C.W.N. 273 : 9 L.W. 126 : 29 C.L.J. 153 : 1 U.P.L.R.11 : 36 M.L.J. 585 : 21 Bom. L.R. 547 : (1919) M.W.N. 463 : 45 A. 209 it was found that in 1904 all the tenants formally relinquished their lands to the plaintiff and put him into possession thereof and from that date until the tenancies were granted in the year 1907 the property remained vacant, and when the defendants were admitted as tenants, they severally declared that they had no right of occupancy except such as was given to them by the tenancy agreements. Therefore in cases where defendants were let into possession by the inamdar under agreements executed by them the said muchilikkas may be taken into consideration for the purpose of determining whether the landlord or the tenant had the kudivaram right, but when the defendants were not let into possession under those agreements but they were already in possession on the dates when they executed them, the same inference could not be drawn. Again in one place the learned District Judge remarks:
We find the agraharamdars dealing with the lands as if they were their own, dividing them, mortgaging them, selling, exchanging them and letting them for particular periods for specified rents. Effect must be given to this course of known enjoyment of the properties; and under the circumstances it could be given only by presuming that the kudivaram interest in the holding waft; acquired by the inamdars at some date or dates subsequent to the grant.
18. To my mind this is a sweeping observation made by the learned Judge hot borne out by the evidence on record, at any rate so far as the particular plots in these civil revision petitions are concerned. From the; analysis given by Mr. Somayya I find that only in two suits there was either a mortgage or sale. In C.R.P. No. 985 there are two registered mortgages and in C.R.P. No. 985 there are two registered mortgages and in C.R.P. No. 984 there are two registered mortgages and one sale. I will deal with the evidentiary value of those documents in dealing with the particular case. But beyond these so called mortgages or sales there is no other evidence of mortgages, sales, or exchanges. I do not know what the learned Judge means by saying the inamdars divided the lands. That observation can have relevancy only if we are dealing with the question whether in the entire village the inamdars had the kudivaram or acquired the kudivaram right but it will have DO bearing on the question whether in a particular plot of land the inamdar acquired the kudivaram right unless there is evidence that that particular plot of land happened to be the subject of division among the agraharamdars. There is another observation which the learned Judge makes which requires some notice, namely:
There is not a single instance of any sale of the lands by any one of the so-called tenants and no documentary proof of any partition of the lands in the same family. Oral evidence there is of the tenants themselves to the effect that they divided such end such lands in such and such a manner without any reference to the agrharamdars or their rights; but such oral evidence has no value in the face of the documents that have been produced by the plaintiffs.
19. The proof of alienations of lands in the possession of tenants is given for the purpose of probabilising the existence of kudivaram right in the tenant, but the absence of it could not be taken as negativing occupancy right. Where land has been in the possession of a particular family for a considerable period say 30 or 40 years, and if the said family was not in need to mortgage or sell a land, it is preposterous to expect any sale or mortgage in the said family. I think possession for a considerable length of time should ordinarily be taken as dispensing with such a proof. In most cases it may not be possible to have them though it is desirable or it might be good if such evidence was forthcoming and the absence of such evidence should not be taken as a factor in negativing occupancy right.
20. Now I shall proceed to take up each of the cases. As I already stated the learned District Munsif examined each case on its own merits and gave findings with reference to each. But the learned District Judge has not done so and this failure considerably vitiates his judgment and therefore 1 feel at liberty to go into the evidence especially when the matter involves a question of jurisdiction to find out whether the view of the learned 'District Munsif is correct.
21. C.R.P. Nos. 972 and 981. These two revision petitions relate to the same land, Eliminating the unregistered, leases there is only the registered lease which is Ex. H dated March 22, 1904, for a period of 8 years commencing from 1904. As pointed out by the learned District Munsif there is no surrender clause in this document whereas in the unregistered lease sought to be given in evidence, such a clause was put in. The learned District Munsif after a careful consideration of the evidence and especially Exs. VI and XVI, came to the conclusion that the defendants were in possession of the stilt lands even before the lease deed, Ex. H that the unregistered leases are not genuine and were only brought about to create evidence in favour of the agraharamdars. The learned District Judge in regard to these cases has not upset the finding in regard to the question of possession. Therefore there is no evidence in this case that the agraharamdars were dealing with the land as their own nor was there anything to found from long enjoyment the inference of such a right.
22. C.R.P. Nos. 974 and 983. There are only two documents in these cases, as registered lease for 5 years from 1906 to 1910 and water application dated March 30, 1904. Besides these there is absolutely no evidence on which to find the aquisition of any kudivaram right.
23. C.R.P. No. 975: There are three registered leases relied on, the earliest commencing from 1896. The finding of the learned District Munsif is that from the time of their forefathers the defendants have been in enjoyment of these lands. In the face of this finding which has not been disturbed by the learned District Judge, it is not possible to give any value to the registered leases and there is no other evidence on which the acquisition of kudivaram right can be found in favour of the landlord.
24. C.R.P. Nos. 976 and 978: In both these cases the registered leases are only in 1911 long after the Estates Act came into force. Besides these, there is no other evidence. On the other hand the learned District Munsif finds that there is evidence that the defendants have been occupying and cultivating the lands from time immemorial and there is no other evidence on which to find the acquisition of kudivaram right in favour of the landlord.
25. C.R.P. No. 977: In this case the only material piece of evidence is a registered lease commencing from 1907 and the learned District Munsif did not believe the evidence, of the plaintiff that defendants were let into possession under the document for the first time. There is no positive evidence on behalf of the landlord with reference to this plot of land showing long enjoyment on which to find any acquisition of occupancy right.
26. C.R.P. No. 987: There are two leases relied on in this case. The first is of 1903 and the second is of 1913. The learned District Munsif finds that the evidence unmistakably shows that the defendants and their ancestors have been in possession of some of these lands and cultivating them and he does not act on the evidence of P.W. No. 6. There is no reliable evidence on behalf of the plaintiffs to negative the case set up by the defendants.
27. C.R.P. Nos. 985 and 986: The District Munsif in paras. 143 to 145 of his judgment has carefully discussed the evidence relating to the lands comprised in these two cases. There are two mortgage deeds Ex 8 dated January 21, 1886 and Ex. BB-dated January 4, 1906. As pointed out by him there is no reliable evidence to show that the lands were put in possession of the mortgagees, and there is a considerable body of evidence on the defendant's bide to show that the defendants and their predecessors-in-title have been in possession of these lands and enjoyment of the same from time immemorial. So far as the other evidence in the case is concerned, they are unregistered leases and water applications. The unregistered leases could not be relied on. So far as the registered lease is concerned, it was taken on November 16, 1903. I have already shown the evidenciary value to be attributed to these leases in cases where the persons from whom they were taken were already in possession of the lands. The water applications cannot carry the case of the zamindar very much in the absence of other positive evidence in the case. It seems to me that on a consideration of the entire evidence relating thereto the plaintiffs have not proved that they acquired kudivaram right in the said lands.
28. C.R.P. No. 984: In this case there is a registered mortgage deed dated 1906. There are also registered leases besides water applications. But it has been established beyond doubt in this case that the defendants and their ancestors have been in possession of these lands and have been cultivating them from a very long time. In the fact of this evidence, the evidentiary value of the said mortgage and leases cannot be very much and the conclusion reached by the learned District Munsif is correct. Thus on the entire review of the evidence the learned District Munsif came to the conclusion that as regards the personal cultivation of the plaintiffs it was impossible to believe their evidence and he observed
Not one of the farm servants whom they had employed or engaged has been examined. Wherever there is a gap, the plaintiffs have come in with an allegation of personal cultivation. I refuse to believe their evidence that they had at any time personal cultivation of these lands.
29. Then later on he summed thus:
Having regard to the evidence of both the plaintiffs and the defendants, oral and documentary, I have absolutely no hesitation in finding that the defendants and their ancestors have been in possession of and cultivating the suit lands from a time beyond memory.
30. The criticism of the learned Judge on these observation and findings is to this effect:
The learned District Munsif points out that not a single farm servant has been called by; the plaintiffs to depose to the truth of this fact and that no scrap of paper in the shape of accounts has been produced to probabilise the story. In this connection, we should not forget however, the possibility that if the servants or labourers under the agrakaramdars had been called, their evidence would have been attacked as tainted and interested and unworthy of any belief whatever. We should also remember that except the emphatic assertions of the defendants that they have been in possession from time immemorial of the suit lands, there is absolutely nothing on their side to show that they are the owners of the kudivaram and not mere cultivating tenants.
31. In my opinion this criticism is pointless. The learned District Judge has not met the comment of the District Munsif about the absence of evidence by observing that if such evidence had been produced, it would not have been believed. It is one thing to say that there is no evidence and another thing to say that the evidence, if adduced, could not be believed. If such evidence is tendered, it is for the Court to give effect to the value of the evidence and the Court cannot by anticipation say that such evidence cannot but possibly be untrue. Again I do not understand, what the learned District Judge means by saying that the evidence of the defendants points to only showing them as mere cultivating tenants and not owners of the kudivaram. If from time immemorial the defendants and their ancestors have been in possession of the lands cultivating them, I do not see what more should the defendants establish in proof of the ownership of the kudivaram right. If they have got any other evidence, it may go to support their case. According to the theory of lost grant which, the learned Judge has set before himself in the beginning of his judgment that from long possession one could presume a legal origin in favour of the exercise of a proprietary right, I do not see why the learned District Judge should fail to give effect to it in the case of the defendants. Lower down he sought to discountenance the long possession of the defendants by observing that they have not produced a single instance of the sale of the lands by any of the so-called tenants. I have already shown what weight should be given to the observations of the learned Judge in this behalf.
32. Thus on a consideration of the entire evidence I am of the opinion that the conclusions reached by the learned District Munsif are right. I, therefore, allow the above revision petitions and reverse the decision of the learned District Judge and restore that of the District Munsif with costs both here and in the Court below.
33. C.R.P. Nos. 971, 973, 979, 980, 982, 988, 989, 990, 991 and 992 of 1934 are not pressed and are dismissed as withdrawn and there will be no order as to costs.