1. These are suits to eject defendant in each case from the land held by him in the Inam village of Pathur which is held by plaintiffs Nos. 1 and 2 as Sarva Maniyam Inam. Plaintiffs Nos. 3 and 4 are mortgagees under the 1st and 2nd plaintiffs.
2. According to the plaintiffs, the defendants hold their land on leases granted by the 3rd and 4th plaintiffs for the Fasli years 1311 to 1313. The defendant's case is that 500 kurukam as of land were leased to their ancestors the Nathambadi Christains by the inamdars in 1861 in the names of two persons, Sourimathu and French, on a permanent occupancy-right and that they are not liable to be ejected. The plaintiffs admitted the lease of 1861 but contended that it was made by the above-named two individuals for their own benefit only, that the lease was abandoned by those two individuals and that subsequently different portions of land were leased from time to time to the defendant's ancestors and to the defendants. The plaintiffs say that the defendants have been evicted and were oat of possession daring Fastis 1307 to 1310 and were let into occupation again in Fasli 1311. The lower Appellate Court has found that the letting of 1861 was really made for the benefit of the families of all the Nathambadi Christians and not for the benefit of the Sourimuthu and French alone, and we accept this finding.
3. We also concur with the District Judge in, holding that the lease of 1861, of which Exhibit DD is a copy, conferred a permanent right of occupancy on the lessees. There is no evidence of any express surrender of their rights under Exhibit DD. On the other hand, it is admitted that the defendants were accepting separate pattas from the plaintiffs for different portions of the 500 kurukkams, that the inamdar instituted separate suits' against them for rent and that some of them sued the inamdar separately in 1895 to compel him to give them separate pattas. The District Munsif, who passed a decree in favour of the plaintiffs, observes, in paragraph 12 of his judgment, with reference to the pattas issued to and accepted by the defendants: 'I find that the same land is not cultivated by the same tenant in all Faslis or for any series of Faslis continuously.' He then points out that the extent of the land included in the patta of each ryot varies in different years. In paragraph 16, he says: 'From the above it is seen that the lands included in the pattas form only a portion of the 500 Kurukkams referred to in Exhibit DD., that the defendants have not been in possession of the lands claimed by them uniformly or for any consecutive years.' He furl her observes that the public accounts, Exhibits D series to H series, along with the pattas show that the defendant's possession and enjoyment have not been such as to justify the finding 'that the plaintiffs are not owners of the soil entitled to eject the defendants.' He held that the defendants have for a long time held their lands not under Exhibit DD but under separate leases.
4. It is admitted by (he respondent's Vakil that the lands included in Exhibit DD were sub-divided among themselves by the Natham-badi Christians. The District Judge does not say whether, as apparently found by the Munsif, the Nathambadi Christians are only in possession of a portion of the 500 kuruk-hams. The sub-division of the lands and even the surrender of a portion thereof would not be inconsistent with the defendants' continuing to hold the lands in their occupation on (he terms contained in Exhibit DD, although community of interest may have ceased as between themselves. As no express surrender of the rights under Exhibit DD has been proved, it lies on the plaintiffs to prove that there has been an implied surrender of such rights, by showing that the lands have been held on terms inconsistent 'with the provisions of Exhibit DD. If the same lands have been held by different defendants in different years, this fact would be prima facie evidence of the tenure being inconsistent with the continuarce of the rights under Exhibit DD. Material variations in the extent of the lands held in each year might also lead to the same inference, though such a state of things might also be explicable on the ground suggested by the learned Vakil for the respondents that the pattas for each yea*? were only for the extents cultivated during the year, and it is stated that such is the custom in the zemindary of Ramnad. But these circumstances, which require explanation and are the most important facts relied on in favour of the plaintiffs' case by the Munsif, are not referred to in the judgment of the learned District Judge. He observes that 'in the face of the cowle deed, Exhibit DD, no pattas were necessary' and that 'pattas must have been tendered merely for the convenience of collecting the' rent due from the individual cultivators instead of through the headman mentioned in the lease.' This might be so if the circumstances relied on by the Munsif and already referred to above are properly explained. But no explanation is referred to in the judgment of the lower Appellate Court. The District Judge observes that the suits by parties for separate pattas were dismissed, because 'no patta could be demanded in face of Exhibit DD, the cowle.' It nowhere appears in evidence that this was the ground on which the suits were dismissed. The respondent's Vakil strongly relies on Exhibit IV series as showing that the lands are still held on the terms contained in Exhibit DD. These documents were admitted in evidence by the District Judge, the Munsif having rejected them on the ground that they were unstamped. Our attention is not drawn to any evidence regarding the circumstances under which Ex-hibis IV series came into existence and we are, therefore, unable to come to any definite conclusion regarding the proper inference to be drawn from them.
5. We think, therefore, that it is desirable to have a revised finding on issues Nos. 1 and 2 in the light of the above observations. As Exhibits IV series were not in evidence in the Court of first instance, both parties may be permitted to adduce fresh evidence relating to the circumstances in which they were executed. Mr. S. Srinivasa Aiyangar has raised a new point before us in second appeal, viz,, that under Section 6 of the Estates Land Act., his clients have acquired a permanent right of occupancy even if they had none before and he relies on Clause 4 of the section. We cannot dispose of this contention without findings on the following questions:
(1) Whether the Puthur village is 'an estate' within the meaning of the Act?
(2) If it be an estate whether any and what portions of the lands in suit are ryoti lands?
(3) Whether any and what portions of them are tank-bed lands?
6. Parties may adduce fresh evidence on these issues also.
7. We do not deal with the question of the onus of proof which has been argued before us as it should properly be dealt with by the lower Appellate Court in dealing with those issues.
8. This observation is also applicable to the question what presumptions there may be in favour of either party in the decision of the 1st and 2nd issues raised in the District Munsif's Court.
9. The findings should be submitted within two months after the re-opening of the District Court after the recess. Seven days for objections. As the jurisdiction over the lands to which the suits relate is now vested in the District Court of Ramnad, we direct that the findings called for be submitted by that Court.
10. In compliance with the order, the District Judge of Ramnad submitted the following
1. On issues Nos. 1 and 2, that the suit lands were not the absolute property of plaintiffs and that defendants held them on a permanent tenancy.
2. On the newly-framed issues, his findings were (1) that Puthur village was an estate ' within the meaning of Madras Act I of 1908; (2) that suit lands were ryoti lands except such as were tank-bed lands and (3) that 150 Krukams described in Exhibit DD were tank-bed lands.
3. These second appeals coming on for final hearing after return of the said findings, the High Court delivered the following
11. There is no legal objection to the finding of the lower Appellate Court. We accept it and dismiss the second appeal with costs.