JUDGMENT
1. These second appeals were presented against decrees of the District Court of Kistna reversing the decrees of the District Munsif of Gudivada and dismissing the suits which were instituted by the plaintiffs, some of the Agraharamdars of Paidi Mukkala in the Nuzvid Zamindary, for the ejectment of the defendants, some of the ryots in occupation of lands in the Agraharam. The plaintiffs’ case is that the defendants are mere temporary tenants having no permanent occupancy rights in the land and that they refused to quit their holdings on notice given to them terminating their tenancy. The defendant’s contention is that they are entitled to permanent occupancy rights and that the plaintiffs have no power to eject. They also allege that the Agraharam is an ‘estate’ as defined in Section 3 of ths Madras Estates Land Act and that a suit to eject them would not therefore lie in the Civil Court but was cognizable solely by a Revenue Court according to the provisions of the Act.
2. The District Munsif held that the Agraharam was not an estate as defined in the Act and that the ryots had no occupancy right in their holdings, and passed decrees in ejectment.
3. On appeal the District Judge, while agreeing in the Munsifi’s finding that the defendants had no occupancy right apart from the provisions of the Madras Estates Land Act, held that the agraharam in question fell within Clause (e), sub. Section 2 of Section 3 and was, therefore, an estate and that the ryots, therefore, acquired occupancy rights by virtue of the provisions of Section 6(1) as amended by Section 3 of the Amending Act IV of 1909.
4. The first question for decision by this Court is whether the Judge’s view that the agraharam is an estate within Clause (e) of the definition is correct.
5. The Respondents also contend that, even if it is not included within clause (e), it would fall within clause (d). We are clearly of opinion that clause (e) does not take in this agraharam. That clause refers to ” any portion of one or more Villages of any of the estates specified in clause (a), (b) and (c) which is held on a permanent under tenure.” Clauses (a), (b) and (c) refer to (a) any permanently settled estate or temporarily settled Zamindary, (6) any portion of such permanently settled estate or temporarily settled Zamindari which is separately registered in the office of the Collector and (c) any unsettled palayam or jaghir. The respondents’ argument is that the agraharam is a village in a portion of the Nuzvid Zamindary separately registered in the office of the Collector and that it is held on a permanent under tenure. The agraharam was originally granted as ‘ Surva Agraharam,’ that is one free from the payment of any quit-rent by a Nuzvid Zamindar so long ago as 1692. Later on, a Kattubadi of 25 pagodas a year was imposed on it which was subsequently raised to 50 and finally to 100 pagodas a year. All this took place before the permanent settlement of the Nuzvid Zamindary. At the settlement the village was treated as Lakhiraj and excluded from the assets of the Zamindary for the purpose of fixing the assessment payable by the Zamindar, the Kattubadi of 100 pagodas being alone included in those assets. The Judge is wrong in supposing that after its exclusion from the Zamindary at the settlement the agraharam remained a part of the Zamindary, as one of the Villages comprised in it. Any ownership on the part of the Nuzvid Zamindar over the Village ceased at the settlement. His interest in it was confined to the right to receive 100 pagodas a year. This right is not one of ownership but merely a benefit to arise out of the land, the ownership itself being vested in the agraharamdars subject to the right to resumption vested in the Government. The Government enfranchised the agraharam afterwards at the Inam settlement. The agraharamdars do not now hold the Village on an under-tenure under the Zamindar. This Court held in Section A. 1166 of 1911 that an inam excluded at the permanent settlement from the assets of the Zemindar as Lakiraj land ceases to be the property of the Zemindar by such exclusion. The agraharam, therefore, cannot be regarded as an estate coming within Clause (e) of Sub-sec. 2 of Section 3. With regard to Clause (d), it refers to 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 confirmed or recognized by the British Government, or any separate part of such Village. In this case the grant of the Village has been confirmed by the British Government. The question is ‘ Is it one of which the land revenue alone has been granted in inam to a person not owning the kudivaram thereof? The Respondent’s contention is that it is, and on this ground they say first, that the Civil Court has no jurisdiction to entertain the suit, secondly, that the plaintiffs have no right to eject them. With respect to the first contention, the District Judge held that the rule being that a Civil Court has jurisdiction to try all suits of a civil nature, excepting suits of which its cognizance is either expressly or impliedly barred, the onus of proving any facts which would oust the jurisdiction of the Munsif’s Court lay on the defendants. In this view he is supported by the judgment of this Court in Indety Ghinna Nagadu v. Potu Konchi Venhatasubbayya (1910) M.W.N.639. We see no reason for differing from that decision. But Mr. Ramadoss for the respondents contends that, even if this be so, for the determination of the question whether the plaintiffs are entitled to eject the defendants the onus must be held to lie on them of proving that they are entitled to both the warams. It is no doubt true that the plaintiffs are bound to prove that they have a right to eject the defendants. For this purpose they must show that the defendants have no occupancy rights. It is argued that they can do this only by showing either that the defendant’s holdings are the Agraharam-dars’ Kamatham land, or that the kudivaram in the Agraharam belonged to the Agraharamdars themselves at the time of the grant, that in the former case the suit would not be entertainable by a Civil Court and in the latter case they must take on themselves the onus of showing that the kudivaram was vested’in the Agraharamdars at the time of the grant, though, with respect to the question of the absence of the jurisdiction in the Civil Court in consequence of the Agraharam being an estate, the onus might be on the ryots to prove that the Agraharamdars were not kudi-varamdars at the time of the grant of the inam. In consequence of the right to pass decrees for ejectment, according as the land is in an estate or not being vested in different tribunals, an anomaly seems apparently to exist in the onus being placed on different parties in the same suit for the purpose of deciding the question of jurisdiction and’for deciding the question of the landlord’s right to eject. The anomaly might perhaps be avoided if it could be presumed, until the contrary is shown, that the grantee of an inam was not the owner of the kudivaram at the time of the grant. But it is not easy to hold that such a presumption is justifiable.
6. In this case, however, we are of opinion that on the facts found the Agraharamdars must be taken to have been entitled to the kudivaram at the time of the inam grant. Both the Lower Courts have found,that for the past 40 or 53 years both the melwaram and kudivaram in the plaint lands have been in the enjoyment of the Agraharamdars. The defendants own 1st witness stated in his deposition that the ancestors of the defendants settled in the agraharam only 50 years before the suit when the entire land in the place was apparently at the absolute disposal of the Agraharamdars. There is no evidence that the whole land was not at their disposal at any prior time. The present Agraharamdars themselves are purchasers of the rights of the original Agraharamdars. It is not reasonable, in the circumstances to expect them to produce evidence of the enjoyment of the kudivaram right by their predecessors-in-title more than 200 years before the date of the suit. We see no reason, therefore, for not accepting the concurrent finding of the courts below, that both the kudivaram and melwaram rights have always belonged to the plaintiffs and their predecessors-in-title and that the plaintiffs are entitled to eject the defendants.
7. The result is that we must reverse the decrees of the lower appellate court in each case and restore the decree of the District Munsif with costs here and in the lower appellate court.
