YENAMANDRA GANAPATI RAO Vs. DULLA SATTAMMA

JUDGEMENT

(1.) The original suit from which this second appeal arises is a suit to eject a tenant of what is called dumbala inam land. The real point for decision is whether the civil Court has jurisdiction to entertain the suit. The first Court held that it had not and dismissed the suit. The lower appellate Court agreed that the civil Court is not the proper forum, but held and rightly held that the District Munsif should not have dismissed the suit but should have returned the plaint and he decreed accordingly. The plaintiff has appealed contending that the civil Court has jurisdiction.

(2.) It is admitted that the land is ryoti land and that the defendant was let into possession by the plaintiff in 1908 and was in possession after the coming into force of the Madras Estates Land Act. Prima facie by force of Section 6 of that Act the defendant would have acquired occupancy right i? the plaintiff was the landholder. But the plaintiff contends that he himself was then and is now the ryot holding the occupancy right, that the inam grant was of the melwaram only at a time when his ancestors already held the kudivaram right, and that, therefore, he does not by force of the grant lose the kudivaram right. He claims, therefore, that the defendant was only a tenant of the kudivaram holder (himself) and that Section 6 does not entitle the defendant to oust the plaintiff from his kudivaram right.

(3.) The contention on which the plaintiff founded his case in the lower Courts was that the inam was a pre-settlement one. Both the lower Courts concurred in the finding that it was a post-settlement inam and they are supported by the Re-cord-of-Rights, Ex. 7. Defeated on that point the plaintiff in this Court has raised for the first time the plea that the inam grant was of the melwaram only to a kudivaram holder and contends that the onus is on the defendant to show that that view is wrong This is a convenient position for him inasmuch as there is now no evidence available as to the terms of the actual grant; but his position seems to me untenable. There is no presumption in the plaintiff's favour that the grant was as he says, and there is no evidence about it. The plaintiff, therefore, has to prove that the inam grantee held the kudivaram right and he has adduced no evidence that he did. A contention of this kind should obviously have been put forward from the beginning as part of the plaintiff's case. He is relying on it here for two purposes: first to show that the jurisdiction of the civil Court is not ousted; and second, to show that the defendant has not acquired occupancy right. There were issues taken on both points and the present contention was not put forward on those issues. It was not set out in the plaint and certainly is not inherent, as had been argued, in the word " dumbala " as defined in; Wilson's Glossary in MacLean's Manual. The present suit has been twice before the trial Court and twice before the lower appellate Court and not until now has this contention been raised. I am not prepared to allow the plaintiff to take it here. It is a question of fact and not of law and should have been pleaded as such in the plaint.