RAMASAMI KAVUNDAN Vs. TIRUPATHI KAVUNDAN

JUDGEMENT

(1.) The appellant urged two distinct lines of argument before us, first, that the villages in which the suit property is situated are not an estate within the meaning of the Madras Estates Land Act, but that nevertheless the plaintiff had occupancy rights in their lands, and secondly, that the villages are an estate and the plaintiffs had occupancy rights in their lands before the Act came into force or at least obtained it by virtue of Section 6 of the Act.

(2.) As to the first line of argument, it appears to me that it has been raised in this form for the first time in this Letters Patent Appeal. 1 have no doubt that before the Trial Court and the Lower Appellate Court and at the hearing in second appeal the only case on which the plaintiffs took their stand was that the suit villages form an estate and on that case the defendant took up the position that they were not an estate. A few stray observations in the District Munsif's judgment do not persuade me to the contrary, and the Subordinate Judge's finding is perfectly clear, namely, that the plaintiffs have occupancy in an estate. There is no unambiguous indication that in either of the first two Courts the plaintiffs put forward any alternative case. I am clear that we should be wrong in permitting the plaintiffs to abandon their original case, adopt what was the defendant's plea and raise it for the first time in a Letters Patent Appeal. The discussion of the plaintiffs case in the first Courts is all on the assumption that the principles of the Madras Estates Land Act will apply to the plaint lands, and there is no discussion of the question whether, apart from that Act at all and on the assumption that the jagir is not an estate the plaintiffs possess occupancy rights in the plaint lands.

(3.) As to the second line of argument, Devadoss, J., has held that the jagir is not an estate within the meaning of the Madras Estates Land Act and therefore the plaintiffs on the case on which they came into Court must fail. Plaintiffs have not been able to persuade me that this decision is wrong so far as it lays down that the jagir is not an inam within the meaning of Section 3, Clause (2)(d) of the Act. The problem has two aspects, whether the jagir falls under Section 3, Clause(2)(c) of the Act or whether it falls under (2)(d). To take the latter aspect first, the only point in plaintiffs favour is that the grant, Exhibit A seems to speak of a "beriz" and "ryots" from which the plaintiffs would argue that there must have been occupancy rights at the time of the grant. As to this the plaintiffs have not chosen to file the original grant itself which is in Marathi. It is unsafe to base a decision on words merely used in a translation. On the other hand Exhibit A speaks of handing over the whole cultivated ayacut, poramboke and waste lands in the villages to the donee, and the Inam Commissioner further notes in Exhibit XIV that the jagirdar had to repair the tanks. It is difficult to hold that such language would have been used if the intention of the grantor was only to hand over the land revenue. Plaintiffs claim that they have erected pucca buildings on the suit land and have alienated portions from time to time. As to this I note no act of this sort prior to the passing of the Estates Land Act in 1908 is proved, so that no proof is afforded by these acts that the plaintiffs were ryots in possession when the Act came into force. The oral evidence as to long possession does not help much in view of the fact that in 1860 the Inam Commissioner remarked that there was no permanent cultivation in the villages. It is also a point against the plaintiffs contention that not a single patta or muchilika is produced from 1829, the date of the grant, up to date. It is incredible that if the plaintiffs were occupancy ryots prior to the passing of the Estates Land Act they would not possess some such document. I am, therefore, not prepared to differ from Devadoss, J., in holding that the plaint villages are not inam from which only the land revenue has been granted by the donor. The plaint jagir does not therefore come under Section 3, Clause (2)(d) of the Act.