1. This appeal arises out of a suit for the declaration of the plaintiffs' right to the whole minor produce in the villages of Pudur Jaghir, and for injunction and damages. The jaghir of Pudur otherwise known as Ariya Goundan Jaghir is one of the five estates situated in the Kalroyan Hills. The Hills are partly in the Salem District and partly in the South Arcot District. This suit jaghir also is partly in the South Arcot District and partly in the Salem District. The first defendant is the present jaghirdar or the proprietor of the estate: The plaintiff was the lessee for six years from the first defendant of the minor produce of the jaghir under a registered lease-deed, Ex.-A dated 24th August 1908, which took effect from 10th July 1909 to 9th July 1915. The lease has since been extended under another deed dated 5th December 1918, Ex. B, for 25 years, i.e., from 9th July 1915 to 10th July 1920. Defendants Nos. 6 to 63 are the cultivators of the entire lands in the jaghir. They claim a right to the minor produce and defendants Nos. 6 to 63 have entered into an agreement to sell it exclusively to the second defendant. The plaintiff alleges that the action of the defendants amounted to a denial of the plaintiff's right and. caused damage to him and sues for the declaration and the other reliefs already mentioned. The first defendant, Polighar supports the plaintiff.
2. The lands in the jaghir are classified as (1) Olavakkadu that is, actually cultivated, permanently with ploughs; (2) Ponalkadu, i.e., lands under shifting cultivation, (3) Natham, i.e., house sites and backyards, (4) Alankadu, i.e., jungles. The suit was originally for a declaration of the plaintiff's right to the minor produce in all the lands of the jaghir and the defendants have similarly asserted their right to the minor produce in all the lands including even Alankadu. But in the course of the trial before the District Munsif, the defendants have given up their right to the lands comprised in the description Alankadu. Before us the plaintiff has given up the right claimed in respect of Natham, so that the dispute before us relates only to Olavakadu and Ponalkadu lands. Both the District Munsif and the District Judge granted the declaration and injunction prayed for by the plaintiff. As to damages while the District Munsif gave a decree, the District Judge reversed it in appeal. In this second appeal the appellants are either defendants Nos. 3 to 63 or their legal representatives.
3. The revenue of the Polighar is not derived on any system of land assessment. The land which each cultivator cultivates from time to time is not measured and assessed to rent, nor is the value of the produce he raises computed and a share taken by the Polighar. The cultivators pay a plough tax, an impost of Rs. 1-4-0 per plough being collected on the number of ploughs a man uses. They also pay a poll tax levied on the individuals of the male sex. Married men pay Rs. 2 and bachelors annas 8. Bach man cultivates where he likes andasniuch as he likes reclaiming the land by clearing, away the jungle and leaving it for a new-plot when the virgin fertility of the soil is exhausted. Land under such shifting cultivation is known as Ponalkadu. Near, the village some more lands have come under permanent cultivation and these are called Olavakadu, the natural development of shifting cultivation.
4. The first point raised before us by the learned Vakil for the appellants is that the suit jaghir is an estate within the meaning of the Madras Estates Land Act of 1908. The District Munsif held that it is not an estate. On appeal the District Judge thought that it was unnecessary to give any definite finding on this point and he discusses the question of occupancy right on both alternative positions, i.e., whether the Estates Land Act applies or does not apply. An estate is defined in Section 3, Clause (2) of the Estates Land Act. As the suit jaghir is not a permanently settled estate or a temporarily settled zemindary, (or a sub-division of such an estate or zemindary) it does not fall under Clauses (a) and (b). As it is not an unsettled jaghir, it does not fall under Clause (c). Therefore, it does not fall also under Clause (e). The only possible clause under which the suit estate could fall is Clause (d). Clause (d) runs thus:
Any village of which the land revenue alone has been granted in inam to a person not owning the kudivaram thereof, provided that the grant has been made, confirmed or recognised by the British Government, or any separated part of such village,
5. Here there is no grant of a single village but an estate consisting of several villages. The-South Arcot Gazetteer says at page 30 that the Ariya Goundan Estate consists of fourteen villages. Assuming that the fact that the grant was of a number of villages and not of a single village does not stand in the way of their satisfying the definition in Clause (d), we have next to see whether the other parts of the clause are satisfied. The learned Vakil for the appellants points out that the suit estate is a jaghir. It has been (sic) described in the Schedule to the Madras Impartible Estates Act both under the heading of South Arcot and the heading' of Salem. He refers to the decision in Raghbjirao Saheb v. Lakshmanrao Saheb 17 C.L.J. 17 : 39 I.A. 202 (P.C.) whefe their Lordships of the Privy Council say:
The lands had been formerly jaghir. But this term implied no grant of the soil, out a personal grant only pf the revenue to the grantee. The marathi equivalent to the term jaghir, namely, saranjam, came in course of time to be applied to the lands.
6. He also refers to Baden Powell and5 Logan's Salem Manual (II). The suit estate, was enfranchised in 1866. (See Exs. C and D). Exhibit D is headed 'account relating to the villages which have been assigned and, are being enjoyed by Polighar, Ramappa Ariya Goundan.' Column 3 refers to the 14 villages which are enjoyed in the hilly tracts. In col. 12 we have got 'There is a no documents of title.' There is a footnote as follows:
'As the said 14 villages are situate on the hills, they have never been surveyed and no thiva has been fixed'. Exhibit C is the inam register and there is a foot-note in it similar to that in Ex. D column 3 is headed 'The annual income derived from the 14 villages in the hilly tracts of Kallakurichi Taluk'. In col. 1 the plough tax and the poll tax are mentioned. In column 22 the entiy is: 'In the absence of any accounts showing the area of the villages and their assessment, the only course is to adopt the revenue' raised by the Polighar as the assessment on the villages.
7. These documents, Exs. C and D, do not refer to the suit estate as a jaghir, nor is there any trace in them of the fact that only the revenue of the hills was granted as inam to the original grantee. As the District Judge observes much reliance cannot be placed on a name especially where the earlier history of the jaghir is involved in considerable obscurity. The District Munsif thought that the original grantee was a bandit of a robber chief; but as already observed we have no information as to the origin of the estate except that Ariya Goundanj held no kaiali under the Government, but he paid a small nazzar or peshkash of Rs. 37-5-2 which was probably imposed in consequence of his holding no office. On these facts I am unable to distinguish this case from the case in Suryanarayana v. Patana 21 Bom. L.R. 517 : (1919) M.W.N. 463 (P.C.) and the entries in Exs. C and D of this case from Oake's Inam Register of that case (see page 1020) Page of 41 M.--[Ed.]. If so all the 14 villages must be regarded as granted to the original grantee and Clause (d) becomes inapplicable. But assuming for a moment that the grant was of the revenue and not the villages, the next question is whether the grant was to a person 'not owning the kudivaram thereof'. The burden of proving this is upon those who contend that the Estates Land Act is applicable. Vide Nainapillai Marakayar v. Ramanathan Chettiar 31 M.L.T. 10 : (1924) M.W.M. 293 28 C.W.N 809 : 51 I.A. 83 : L.R. 5 A. (P.C.) 33 . There is no evidence in the case, nor can there be having regard to the history of the estate and the only information we have about the suit estate. In these circumstances it is difficult to hold that it has been proved that the suit estate is an estate to which the Estates Land Act applies.
8. The learned District Judge considered the question whether the defendants paid any rent to the jaghirdar and whether the relationship of landlord and tenant existed between the jaghirdar and the cultivating defendants; and he found that so far as Olavakadu lands were concerned there can be no occupancy right in them. As to Ponalkadu lands in connection with this point the defendants relied on two former judgments of this Court, Ex. XVI and XVIIL. Exhibit XVIII was the only judgment considered by the District Judge. The District Judge after quoting the judgment of the High Court says, 'The actual circumstances of those suits are not disclosed.... In any case it has no application here, where the poll-tax is not the equivalent of rent.' Exhibit XVIII was a judgment in a batch of second appeals which arose in Salem District where a number of suits were filed for enforcing acceptance of pattas, the plaintiff being a mortgagee from Annamalai Goundan, the owner of Chinna Kalrayan Nad which is also one of the estates mentioned in the schedule to the Madras Impartible Estates Act under the heading of Salem. On a perusaL of the South Arcot Gazetteer page B, we find that the nature of the jaghir in South Arcot or Salem is practically the same. It is observed that 'a great part of the Kalrayans is indeed situated within the Salem District and the boundary line between the latter and South Arcot passes along the top of them,'. Then the author gives the tradition of the five brothers dividing the hills among themselves, then he observes: 'The south and south-western parts which happen to be the highest of the whole; were taken by Peria Kalvi Rayan and so were called after him the Periya. Kalvi Rayan or Periya Kalrayan Hills, the' lower slopes to the west of Salem, which chance to be the less elevated part, similarly became the Chinna Kalrayan Hills.... Ariya Goundan becoming the name of the northern part of the range.'
9. Thus there is no doubt that the Chinna Kalrayan Hills and the suit jaghir were similar in tenure; and Ex. XVIII which related to the former shows that the High Court regarded the relationship between the cultivators and the jaghirdar as one of tenant and landlord. It is true that Ex. XVIII was passed in second appeal by a single Judge of this Court under Order XLI, Rule 1. Benson, J., observes:
'I think the District Judge is right. The payments are evidently made as rent for the occupation of land calculated at so much per head, instead of so much per acre, which is the ordinary way in most cases. The second appeal is dismissed'. That this is the true view of the revenue derived by the jaghirdar is also seen from the inam account, Ex. D and Register, Ex. C already referred to. In col. 3 of Ex. D we have. 'The tirva which is collected in respect of the punja land for 53 ploughs at Rs. 1-4 0 perplough is Rs. 66-4-0'. Then the poll-tax is referred to per head and both the items are to talled as Rs. 209 4-0 and referred to as the revenue. Though the revenue is described as poll-tax, it must be regarded as rent, this method of assessment being found convenient by the cultivators and the jaghirdar. Exhibit XVI was not referred to by the District Judge but was referred to by the District Munsif. It is the judgment in Second Appeals Nos. 2033 of 1910 and 260 and 261 of 1911. The suit was by the assignee of the Poligar for the enforcement of patta with certain restrictions relating to the cutting of trees and related also to the Ghinna Kalrayan Hills. This judgment also leads to the same conclusion as Ex. XVIII. In the face of Exs. XVI and XVIII it is difficult to say that there is no relationship of landlord and tenant between the Poligar and the defendants and the District Judge is wrong in saying that 'the ruling has no application where the poll tax is not the equivalent of rent.' He has started with the assumption that the poll tax is not the equivalent of rent, and having said this, was of opinion that Ex. XVIII has no application to the present case; but Ex. XVIII shows that the poll tax should be regarded as the equivalent of rent. Thus his judgment is vitiated by his misconstruction of Ex. XVIII.
10. We, therefore, start with the footing that the defendants are the tenants of the jaghirdar and we have to consider the question of right to the minor produce from this footing. The lower Appellate Court found on a discussion of the oral and documentary evidence that the Poligar is entitled to all the minor produce in the Palayam. In the form in which the Courts below discussed the question no doubt it is a question of fact; and if we are not satisfied with the findings of the lower Appellate Court we can only call for fresh findings. But as have already pointed out the findings are vitiated by the conclusion of the Courts below that there is no relationship of landlord and tenant between the Poligar and the cultivators. I have come to the conclusion that there is such a relationship and starting from that footing, if there is any question of fact to be found we have to call for a finding. But it seems to me that what remains is a pure question of law. Prima facie a tenant, whatever his status as a tenant may be, i.e., whether he is an occupancy tenant or a tenant from year to year or a tenant at will, is entitled to the produce of the land, included in the tenancy so long as the tenancy subsists. This is too elementary to need discussion. It is difficult to conceive what a tenancy is for, if the tenant is not to be entitled to the produce of the land. We are not concerned here with the right to cut trees, as to which the question may be a little more difficult. The suit before us relates only to the minor produce, viz., Murabolams, Muradu, Pungan, seed, Nux Vomica, Takarai seed, Seeran seed, Poochan seed, Konnai bark, Honey, Honey Wax, Sombai bark, Kapilipodi, Sural bark. In the case of such produce which, can be gathered from land, prima facie the tenant is entitled to it. Is there any reason why in this particular case the cultivating tenants are not entitled to it? If any question of usage or custom can arise in this case, it is the plaintiff who claims to be the lessee from the Poligar that has to show such usage or custom by which he and not the cultivating tenants are entitled to the minor produce of the land actually under the tenant. The District Munsif found that under the custom prevailing in the jaghir the first defendant is entitled to the minor hill produce. The District Judge also gave a similar finding. The fact, that before cultivating the Ponalkadu land formal permission of the jaghirdar is taken proves nothing, nor is there any question of acquiring prescriptive rights. Both the District Munsif and the District Judge rely on certain leases of certain minor produce. The District Munsif relied upon Exs. P and S which are dated 1866 and 1872 for the purpose of making out a usage extending over a considerable period of time. But these documents, Exs. P and S, are so perfectly general that it is impossible to infer any right to minor produce from them. Exhibit P is a lease for cutting teak wood, spokes for wheels and for felling Vengai and other trees produced within certain boundaries. It makes no reference to the minor produce at all. Similarly Ex. S refers to all kinda of trees inclusive of those of Galnut, Sural, save those of jack fruit and tamarind as grown on 'Pendakarainadu'. Here again, there is no specific reference to the minor produce. It is very difficult to see how these documents militate against the tenants' right to the minor produce. If these two are excluded, the documents relating to minor produce begin from Ex. Y dated 1890. But it is impossible to make out from the documents beginning from 1890 and ending with 1901 that an ancient, valid and binding usage is proved. We have got only four documents, Exs. Y, Y1 and M and N. Even these documents are general as r the area of the land covered by them. For instance Ex. Y refers to the produce in certain villages in Irugarainadu of Jagirmalai in Puduralailka. Particulars of villages are given; about 21 villages are enumerated. But it is possible that the minor produce covered by the lease related only to Alankadu i.e., the hills and the jungle outside the cultivated land (Olavakadu and Ponalkadu). Alankadu is so much more in extent than the cultivated land that it is scarcely worthwhile to specially mention Olavakadu and Ponalkadu for the purpose of exclusion. At any rate a document like this does not bind the cultivating tenant, nor can it prove who took the produce of the lands under an individual tenant. Similar remarks apply to Y(1), M and N. The oral evidence is useless as it was adduced to prove enjoyment in accordance with the documents. I have, therefore, come to the conclusion that it is impossible to find in the evidence anyusage by which the ordinary presumption of law entitling the tenant to enjoy the produce of his own land was displaced and the Poligar first defendant became entitled to collect all the minor produce even in lands under the tenants. Of course when I say that the tenants are actually entitled to minor produce on Ponalkadu, I refer to land which was actually under the cultivation of a tenant and therefore, which has not been abandoned. The moment a Ponalkadu land is abandoned, it is absorbed into the general Alankadu.
11. For all the above reasons, the plaintiff is not entitled to the declaration of his rights to the minor produce of Olavakadu lands and Ponalkadu lands during the time they retain that character. The plaintiff has given up his right to Natham. He is entitled only to a declaration in respect of the produce of Alankadu.
12. The decree is favour of the plaintiff will, therefore, be modified accordingly. The plaintiff will bear the costs of the appellants here and in the lower Appellate Court. In the first Court each party will bear their own costs as they put forward extravagant claims which they afterwards had to modify.
13. I agree with the order proposed by my learned brother but I prefer to reserve my opinion on the question whether the suit jaglrir is or is not an estate within the meaning of the Estates Land Act, as its determination is not necessary for the decision of this appeal which is based on the ordinary law of landlord and tenant.