This is a consolidated appeal against a judgment and 13 orders dated 11th October 1927, of the High Court of Judicature at Madras, which set aside a judgment and 13 orders dated 9th August 1922 of the Court of the District Munsif of Tenali. The appellants are the respective defendants in 13 suits brought by the respondent to recover rent or damages for use and occupation of agricultural holdings in the respondent's enfranchised inam village of Siripuram, and the only question in the appeal is whether the jurisdiction of the ordinary civil Courts is excluded by virtue of S. 189, Madras Estates Land Act 1 of 1908. It is clear that, in the present case, the determination of that question will depend on whether the respondent's village is an "estate" as defined in S. 3 (2) of the Act. The District Munsif held that the village is an estate under the Act, and that he had no jurisdiction to try the suits. The High Court held a contrary view and remanded the suits to be tried by the District Munsif.
The suit village was originally within the ancient zamindari of Chilakalurpeta, which was held by the Manuru family under an imperial grant of 1707 from the Mogul Emperor Aurangzeb. In fasli 1219, i. e., the year 1810, the Raja of Chilakalurpeta granted the village of Siripuram in perpetuity as an Agraharam to one Vedala Rangacharlu, a Brahmin resident of another village called Peddavaram, on a shrotriyam of 80 pagodas (Rs. 320). In the lower Courts the respondent alleged two earlier grants of 1784 and 1799 - prior to the permanent settlement of 1802 - but these were rejected, and it may now be taken that the grant was in 1810.
In 1846 the zamindari of Chilakalurpeta was sold for arrears of revenue and was purchased by the Government. In 1861 the agraharam of Siripuram village was confirmed and enfranchised on a combined quit-rent of Rs. 361 by the Inam Commissioner. The interest of the Inamdar was subsequently purchased by Putcha Sitaramayya, the adoptive father of the respondent, and he created a trust in favour of the Sri Kasi Visweswara Annapurna Choultry at Bezwada in respect of a large portion of the lands in Siripuram Agraharam, constituting himself as the Dharmakarta of the charity, and providing for the hereditary Dharmakartaship in the family. After the death of Sitaramayya in 1908, his widow adopted the plaintiff as a son to her husband, and the respondent succeeded as the Dharmakarta of the Choultry. The respondent became a major in October 1918, and he instituted the present suits in 1920 and 1921, as Dharmakarta of the Choultry. The definition of "estate" for the purposes of the Madras Estates Land Act 1908 (Madras Act 1 of 1908) is to be found in S. 3 of the Act, which, so far as material, provides as follows:
"3. In this Act, unless there is something repugnant in the subject or context:
(2) "Estate" means: (a) any permanently settled estate or temporarily settled zamindari; (b) any portion of such permanently settled estate or temporarily settled zamindari which is separately registered in the office of the Collector; (d) 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 recognized by the British Government, or any separated part of such village; (e) any portion consisting of one or more villages of any of the estates specified above in Cls. (a), (b) and (c) which is held on a permanent under-tenure."
It is common ground that, if the village of Siripuram is an estate within the meaning of the statutory definition, the present suits lie within the jurisdiction of the Revenue Court under S. 189 of the Act, and that the original jurisdiction of the civil Courts is thereby excluded.
While the appellants had submitted in the Courts below contentions based on the other clauses above quoted, the argument before this Board was confined to Cl. (d), S. (3) (2), and the decision of this question mainly depends on whether the respondent is owner of the kudivaram right as well as of the melvaram right. It is not suggested that the respondent or his predecessors have acquired the kudivaram since the date of the grant of 1810, or that they already owned the kudivaram at the time of that grant, and it is therefore necessary to ascertain, if possible, whether the grant of 1810 Conveyed both Varams. The grant of 1810 has not been produced, and the extracts from the inam register of 1861 afford the only documentary evidence as to the nature of the grant. The appellants no longer maintain, as they did in the lower Courts that the description of the village as "seri" in the inam inquiry involves an inference that the tenants were then recognized as possessing jirayati rights. These extracts are not of assistance in determining whether the grant of 1810 conveyed the kudivaram right. As regards the other evidence, the learned Munsif found as follows:
" The grant of the agraharam was to nonresident Brahmins in Fasli 1219 (1810), and it was a grant by a zamindar of a village within his permanently settled zamindari. There were cultivating tenants in the village at the time of the grant, and it was even then a Seri village. The agraharamdars were only receiving rents as stated in Exs. A and AA, and they had no personal cultivation. The defendants in the cases already stated have been in possession of their respective lands for considerable periods of time. The leases obtained from some tenants, changes in tenantry with regard to some lands in the village and variations in rent have been taking place only since 1904. At about 1902 the tenants, or some of them, set up their rights to the soil and the agraharamdars left no stone unturned to resist what perhaps they believed to be an unjustifiable claim.''
The somewhat meagre result of the evidence may be completed by a passage from the judgment of Tiruvenkata Achariyar, J., in the High Court, as follows:
" The defendants say that they have been in uninterrupted enjoyment of their respective holdings, even from before the date of the grant, and they have been partitioning their lands and also disposing of them by sales and mortgages but they have not produced a single document either of partition or sale or mortgage. Those allegations rest only on their own bare statements, which are entitled to little weight."
This fact while it is hardly evidence of the terms of the grant is distinctly unfavourable to the appellants' case. Their Lordships are clearly of opinion that these findings of fact, apart from a presumption of fact which the appellants maintained to be applicable, as hereafter referred to, do not establish whether the grant of 1810 conveyed the kudivaram right or not.
But the appellants contended that the fact of there having been cultivating tenants in
the village prior to the grant of 1810, raised a presumption of fact that the zamindar had not the kudivaram right, and that accordingly the grant did not include that right. But in their Lordships' opinion, the existence of such a presumption was expressly negatived, and certain decisions of the High Court at Madras and the High Court at Bombay, which had given effect to such a presumption, were overruled by the decision of this Board in Suryanarayana v. Patanna (1). The appellants sought to rely on the subsequent decision of this Board in Seethayya v. Subramanya Somayujulu (2), but that case was decided on construction of the terms of the particular grant which were before the Board, and not on any presumption of fact. Indeed, it is expressly stated in the judgment that there is no presumption either way as to the inclusion or non-inclusion of the kudivaram right. It should be added that the appellants maintained that, in the absence of production of the grant of 1810 by the respondent, the Court should presume that the terms of the grant would negative the respondent's case, in view of S. 114, Evidence Act, Illus. (g), but it is sufficient to say that there is no evidence that the grant could be produced. The respondent's natural father stated in evidence that neither he nor the respondent had it, and he was not cross-examined on this point. Nor did the appellants seek to ascertain by discovery the existence or whereabouts of the grant.
The evidence being inconclusive as to whether the grant of 1810 conveyed the kudivaram right or not, it is necessary to consider upon which of the parties the burden of proof lies in regard to the question of jurisdiction. In their Lordships' opinion the statements in the plaint sufficiently comply with the provisions of O. 7, R. 1, sub-Cl. (f) and, that being so, their Lordships are clearly of opinion that the terms of S. 9, Civil PC, lay down a general rule in favour of the jurisdiction of the civil Court, and that the burden of proof is on the party who maintains an exception to the general rule. This is in conformity with the decision of the High Court at Madras in Jagannatha Charyulu v. Kutumbarayudu (3). Accordingly, their Lordships are of opinion that the appellants, on whom lay the burden of proof, have failed to prove that the grant of 1810 was of the melvaram only, and therefore have failed to prove that the inam is an "estate" within the definition of the Madras Estates Land Act, so as to oust the jurisdiction of the civil Court. Their Lordships will humbly advise His Majesty that the consolidated appeal should be dismissed with costs, and that the judgment and 13 orders of the High Court, dated 11th October 1927, should be affirmed.