# Giswa'mi Shru V •l/o!hal1lji v. Goswamini Shru .}[ahalaxmi B•lwji Maharaj

- **Citation:** [1962] 3 S.C.R. 653
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. Wanchoo, K. c. DAS GUPTA, J. c. SHAH, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/giswa-mi-shru-v-l-o-hal1lji-v-goswamini-shru-ahalaxmi-b-lwji-maharaj-2467
- **Pages:** 20

## Headnote

Occupancy Rights-Ryot in possession before permanent
Bettlement-Terms as to commencement of tenancy lost in antiquity-Presumption as lo melvaram and kudirnram.,--Right. of
ryots in Z•imindaries-Madras Estates Land Act, 1908 (Mad. 1
of 1908), s. 6.
The lands in question which were within the permanently
settled Zamindari in the then Presidency of Madras, belonged
to T who, during his lifetime, was cultivating the lands. He
died in 1885 leaving behind, inter alia, three daughters.
After the death of the three daughters, the last having died in
1935, the sons of one of them instituted a suit against the
descendants of the other two for partition and separate
possession of a third share, int,er alia in the lands in question
on the footing that T owned occupancy rights in the lands.
The suit was resisted on the plea that T had no proprietary
right in the. lands, that he was only an annual tenant of the
Zamindar, that after his death the lands were held on similar
tenure by different members by his family and that occupancy
rights were acquired by those members of his family who were
in possession of the lands when the Madras Estates Land Act,
1908, came into force in 1908. There was no evidence .to
sbow that the occupation of the lands by T commenced under
the Zamindar, nor was there any evidence as to the terms on
which he or his predecessors were inducted on the lands, the
commencement of the tenancy and the terms thereof being
lost in antiquity, but he and his descendants were proved to
have continued in possession of the lands uninterruptedly till
the enactment of the Madras Estates Land Act, 1908. ·
Iield, that in cases in which a ryot's holding ·is ·not
shown to have commenced oubsequent to the permanent settlement, the presumption is that Zamindar was only the holdet
1961
Giswa'mi
Shru V •l/o!hal1lji
v.
Goswamini
Shru .}[ahalaxmi
B•lwji Maharaj
Das Gupta J.
1161
Sepuml" 18.
1961
SUllkavilliSurattna
....
' ""·Oofi Salhii'llju
Shila J.
654
SUI!REill: OOVRT REPORTS
(19112]
.. · ...
of the mclvaram being the a3signec of the Government revenue,
and that rho kudivaram in the land belongc<l to the ryot who
\\·as entilll'd to ·continue in poso;ession as Ion·~ as he paid the
rent regularly; and that thi• principle was applicable equally
in a suit bct\vr.en persons claiming under the ryot as in a suit
against the rynt by the Zamindar.
Ca<e law relating to the rights of ryots in Zamindaries
in~theJMadras Presidency reviewed.
H.td, further, that Twas the holder of the occupancy
rights in the lands, that these rights devolved upon his
successors and that the
said occupancy rights '''ere not
acquired by virtue of the provisions of the Madras Estates
Land Act, 1908.
CrvIL APPELLATE JURISDICTIOJiO: Civil Appeal
No. 424 of 1958.
Appeal from the judgment and decree dated
...
April 25, 1950, of the llfadras High Court in A. S.
No. 67 of 1947.
K. Bhirnasankamrn and K. R. Chaudhuri. for
the a ppellantg.
3.
T. V. R. Tatachari, for respondents Nos. l to
P. Ram Reddy, for respondent Ko. 9.
Jf. R. Krishna Pill<1i for respomlont No. 24.
1961. Septemher 18.
Tho Judgment of the
Court was delivered by
SHAII, J.-Onc Thammiah had two· l!onsGangaraju and Ramayya-and four daughtcrs-,-
Ammanna, Sesbamma, Gangamma and Bhavamma,
of these, the two sons and the daughter Ammanna
died during Thammiah 's life time. Gangaraju left
him surviving his widow Chetamma and Ramayya
his· widow Vonkamma.
Arnmanna was survived
by her son Rudrayya, who was brought up by
Thammiah. Thammiah died in 1885, Soshamma in
1904, Gangamma in 19:l0 and Bhavamma in 1935.
After tho death of Bhavamma, Pnddarnju (hereinafter called the plaintiff}, son of Gnngamma filed
Suit No. 53 of I !J44 in the court of. the Subordinate
·•
• >--t.
·-
...
3 S.C.R.
SUPREME COuRT REPORTS
655
.Judge at Rajamundhry against the descendants of
Seshamma apd Ammanna for a decree for partition
and separate possession of a third share in 17 lands,
described in Schedule B to the plaint as "agricul·
tural land and ·m

## Text

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••
a S.CJi.
StlPR:lllME COURT R1ilPo:tt'l's
of the orthodox Dattak adoption or an affiliation
altogether different from Dattak adoption. We
therefore express no opinion on this question.
The appeal is dismissed with costs.
Appeal dismissed.
SUNKAVILLI SURANNA AND OTHERS
v.
GOLI SATHIRAJU AND OTHERS
(K. N. WANCHOO, K. c. DAS GUPTA, J. c. SHAH
and RAGHUBAR DAYAL, JJ.)
Occupancy Rights-Ryot in possession before permanent
Bettlement-Terms as to commencement of tenancy lost in antiquity-Presumption as lo melvaram and kudirnram.,--Right. of
ryots in Z•imindaries-Madras Estates Land Act, 1908 (Mad. 1
of 1908), s. 6.
The lands in question which were within the permanently
settled Zamindari in the then Presidency of Madras, belonged
to T who, during his lifetime, was cultivating the lands. He
died in 1885 leaving behind, inter alia, three daughters.
After the death of the three daughters, the last having died in
1935, the sons of one of them instituted a suit against the
descendants of the other two for partition and separate
possession of a third share, int,er alia in the lands in question
on the footing that T owned occupancy rights in the lands.
The suit was resisted on the plea that T had no proprietary
right in the. lands, that he was only an annual tenant of the
Zamindar, that after his death the lands were held on similar
tenure by different members by his family and that occupancy
rights were acquired by those members of his family who were
in possession of the lands when the Madras Estates Land Act,
1908, came into force in 1908. There was no evidence .to
sbow that the occupation of the lands by T commenced under
the Zamindar, nor was there any evidence as to the terms on
which he or his predecessors were inducted on the lands, the
commencement of the tenancy and the terms thereof being
lost in antiquity, but he and his descendants were proved to
have continued in possession of the lands uninterruptedly till
the enactment of the Madras Estates Land Act, 1908. ·
Iield, that in cases in which a ryot's holding ·is ·not
shown to have commenced oubsequent to the permanent settlement, the presumption is that Zamindar was only the holdet
1961
Giswa'mi
Shru V •l/o!hal1lji
v.
Goswamini
Shru .}[ahalaxmi
B•lwji Maharaj
Das Gupta J.
1161
Sepuml" 18.
1961
SUllkavilliSurattna
....
' ""·Oofi Salhii'llju
Shila J.
654
SUI!REill: OOVRT REPORTS
(19112]
.. · ...
of the mclvaram being the a3signec of the Government revenue,
and that rho kudivaram in the land belongc<l to the ryot who
\\·as entilll'd to ·continue in poso;ession as Ion·~ as he paid the
rent regularly; and that thi• principle was applicable equally
in a suit bct\vr.en persons claiming under the ryot as in a suit
against the rynt by the Zamindar.
Ca<e law relating to the rights of ryots in Zamindaries
in~theJMadras Presidency reviewed.
H.td, further, that Twas the holder of the occupancy
rights in the lands, that these rights devolved upon his
successors and that the
said occupancy rights '''ere not
acquired by virtue of the provisions of the Madras Estates
Land Act, 1908.
CrvIL APPELLATE JURISDICTIOJiO: Civil Appeal
No. 424 of 1958.
Appeal from the judgment and decree dated
...
April 25, 1950, of the llfadras High Court in A. S.
No. 67 of 1947.
K. Bhirnasankamrn and K. R. Chaudhuri. for
the a ppellantg.
3.
T. V. R. Tatachari, for respondents Nos. l to
P. Ram Reddy, for respondent Ko. 9.
Jf. R. Krishna Pill<1i for respomlont No. 24.
1961. Septemher 18.
Tho Judgment of the
Court was delivered by
SHAII, J.-Onc Thammiah had two· l!onsGangaraju and Ramayya-and four daughtcrs-,-
Ammanna, Sesbamma, Gangamma and Bhavamma,
of these, the two sons and the daughter Ammanna
died during Thammiah 's life time. Gangaraju left
him surviving his widow Chetamma and Ramayya
his· widow Vonkamma.
Arnmanna was survived
by her son Rudrayya, who was brought up by
Thammiah. Thammiah died in 1885, Soshamma in
1904, Gangamma in 19:l0 and Bhavamma in 1935.
After tho death of Bhavamma, Pnddarnju (hereinafter called the plaintiff}, son of Gnngamma filed
Suit No. 53 of I !J44 in the court of. the Subordinate
·•
• >--t.
·-
...
3 S.C.R.
SUPREME COuRT REPORTS
655
.Judge at Rajamundhry against the descendants of
Seshamma apd Ammanna for a decree for partition
and separate possession of a third share in 17 lands,
described in Schedule B to the plaint as "agricul·
tural land and ·measuring in the aggregate 51 acres
72 cents in Patta No. 12 in village Pandalpaka in
Pitbapur Zamindari" and in Schedule '0' described
as three houses with sites thereof in village Pandal·
paka. To this suit Jaggarayudu and Paddaraju,
sons of Venkataraju-brother of the plaintiff-were
impleaded as defendants 31 and 32.
The plaintiff
claimed that Thammiah owned occupancy rights
in the ryoti lands in the Pithapuram Zamindari
and that after Thammiah's death the lands were
managed with the permission of the plaintiff and
his brother Vcnkataraju, in the firnt instance, by
the two daughters-in-law of Thammiah-Chetamma
and Rammanna, son of Seshamma and their
"possession and management was on behalf of heirs
and persons entitled to maintenance out of the
estate" and that the right to sue for partition
accrued on the death of Bhavamma on March 18,
1935 .
The suit was resisted by the descendants of
Seshamma and Ammann a principally on the plea that
in the lands described in Schedule 'B' Thammiah had
not proprietary right and that occupancy right there·
in accrued to Rudrayya and Veeriah (husband of
Seshamma) by virtue of the Madras Estates Lands
Act, 1908. It was also pleaded that Thammiah
had made an oral will devising his estate in fav•mr
ofVeeriah~who w:is his illatom son·in-law--and
Rudrayya in equal shares. This plea about the oral
will was negatived by the Court of First Instance
and the High Court and need no longer be considered, because it is not canvassed before us in this
appeal. The trial Court held that Thammiah had
no proprietary interest in the lands in Schedule 'B'
and on that view decreed the plaintiff's claim for
partition of the homes and sites described in
Schedule 'C' only· and awarded a third share to him,
19111
Swikavilli Suranna
.v4 .. ,< __ -;
Ooii Sal~iraju
.
:...-....,.~-'
Shah J.
.JNI
SunAaBiJ/i Surann.a.
v.
G~i StU.hir•ju
'__,_
S"411J,
SUPR!<!ME couiit REPORTS
another third share to Ramanna and the remaining
third share collectively to defendants 31 and 32sous of Venkataraju.
In appeal, the High Court of Madras modified
tho decree of the trial court holding that in the
agricultural lands Thammiah had occupancy rights
which on his death devolved on his surviving
daughters, and directed that those lands be also
partitioned, and that a third share be awarded to
the plaintiff arnl a third share to defendants 31 and
32 together with mcsnc profits from March 18, 1935,
the date of Bhavamma's death. With certificat~
under Art. 133, this appeal is preferred by the
descendants of Scshamma and Ammanna.
The principal question which falls to be deter·
mined in this appeal is whether Thammiah had, as
claimed by the plaintiff, oecuprmcy rights in the
lands described in Schedule •B', or as the contesting
defendants contend, Thammiah was an annual
tenant of the zamindar and that after his death tho
lands were held on similar tenure by different
members of the family of Thammiah and that the
occupancy right was acquired by Rudrayya and
Veeriah by virtue of the Madras Estates Lands Act,
1908.
The lands are within a permanently settled
zamindari under l\Iadras Regulation XXY of 1802,
and it is common ground that Thammiah was culti·
vating the entire area of the lands during his life
;,ime. There is no ovidencc indicating that his
possession was ever disturbed during his J!fc.time.
There is again no evidence about the commencement of the occupation of Thammiah or his pre·
deceesors : commencement of their occupation is
therefore lost in antiquity. The lands are described
in the various documents, to which we will presently
refer, as "jeoroyat.i lands"', Thammiah a.s "jecroyati
ryot", and after hie cloath his daughters-in-law and
grandson Ra.manna were similarly described.
·
Three documentJ!-Exts. D-1, D-2 and D-3which catablish that Thammiah was cultivating the
landB throw important light on the problem under
•
., ...
\
f
3 S.C.R.
SUPREME COURT REPORTS
657
discussion. Exhibit D-1 is a muchilika dated July
1, 1883, executed by Thammiah in favour of the
zamindar. Exhibits D-2 and D-3 are similar
muchilikas dated respectively August 10, 1884,
and July 15, 1885.
Each of these muchilikas is in
respect of the seventeen pieces of lands described
in Schedule 'B' and the 'cist' settled is Rs. 419/8/-.
The terms of the three muchilikas are identical.
Thammiah is described in the muchilikas as "jeero·
yati ryot" and the lands are described as "jeoroyati
pampus". It is recited in the muchilikas "I have
executed and delivered this muchilika agreeing that
I should pay the said cist amount of Rs. 419/8/-
every fasli according to the instalments mentioned
hereunder to the Officials on your behalf and to
obtain rMeipts; .................. that during the last
year of the term, I should not raise gingelly or chiruveru crop on these pampus but that I should leave
sufficient land for purposes of garden cultivation
and seed beds; that I should not cut down any kind
of trees without your permission; that I should not
raise permanent gardens or construct houses on
these lands without your permission; that I should
not cause damage to these lands so as to make
them unfit for cultivation purposes; that if at the
end of the term you should lease out these pampus
to anyone, whom you like, for a cist amount
advantageous to you, I should not raise objection
thereto; that if you had leased out these lands to
other ryots
for
the
ensuing year
after the
expiry of the term, and if the said ryots should
carry
on necessary works
for
purposes
of
cultivation during the ensuing year by way of
ploughing seed-beds, sowing seeds and planting
tender sugarcane even before the expiry of this term,
I should leave sufficient land to them without raising any objection whatsoever." By the covenants
of the muchilikas Thammiah had undoubtedly undertaken not to raise certain crops, nor to cut trees,
nor to put up permanent constructions and had also
undertaken to give certain facilities to other tenants
1961
Sunkavilli Surttnna
v.
Goli Sathiraju
Shah].
1961
. -.,,J:aPilli S11Tonnt1
v.
Viii Snthiraj"
ShGhlJ.
658
SUPREME COURT REPORTS
[196~]
inducted in the lands by the zamindar. The evidence
docs not justify the inference that Thammiah was
inducted on tho land by Ext. D-1.
There is even no
evidence that the land was acquired from the
zaminder by the members of Thnmmiah's family or
that the ancestors of Thammiah were not on th11.
land before the zamindari rights accrued to the
zamindar. It is also not disputed that land in
zamind'lries
in
the
Madras
Presidcncv were
even held in occupancy
right by many ryots
before
the
Madras
Estates Lands Act, 1908,
was enacted. As observed in Venkata Nara.•imha
Naidu v. D-indamudi Kotayyo(') at 301 that "there
is absolutely no ground for laying down that the
rights of ryots in zamindaries invariably or even
generally had th•'ir origin in express or implied
granta made b:v the zamindar.
The view that in
the large major•tv of instances, it originated otherwise is tho one most in accord with the history of
agricultural land-holding in this country. For, in
the first place, sovereigns, ancient or modern, did
not here set up more than a right to a share of the
produce raised by raiyah in lands cultivated by
them, however much that share varied at different
times. And, in thE> language of tho Board of Revenue
which long after the Permanent Settlement Regulations wero passed, investigated and reported upon
the nature of the rights of ryots in the various pa.rte
of the Prosidencv, "whether rendered in service, in
money or in kind and whether paid to rajas, jagir<lars,
zamindars,
poligarn,
mutadars,
shroticmdars,
inam<lars or to Government officers, such as tehsildarn, amildars, amins or thannadars, tho paymrnts
which havo always been made are universally deemed
the duo of Government" ...... Therefore to treat such
a payment by cultivators to zamindars 11s 'ront' in
tho strict sense of the term and to imply therefrom
the relation of landlord and tenant so as to fot in
the preoumption of law that a tenancy ii! genera.IA
is one from year to year, would be to mtroduce
(I) (1897) [. L. R. 20 Mad.:299.
....
3 8.C.R.
SUPREME COURT REPORTS
659
,,- a mischievous fiction
destructive of the rights
01 i;reat numbers of the cultivating classes in this
province who have held possession of their lands for
generations and generations." It was also observed
' '
in that case (at p. 303), "It thus seem unquestionable that prima f acie a zamindar and a raiyat are
holders of the melvaram and kudivaram rights,
~ __,
respectively. When, therefore, the former sues to
eject the latter, it is difficult to see why the defendant in such a case should be treated otherwise
-
than defendants in possession are generally treated,
by being ~ailed upon, in the first instance, to prove
that they have a right to continue in possession."
The right to occupy land under the revenue system
prevailing in Madras may arise by reason of the
,._. customs in the district in which they are situate.
In any event, there is no presumption that the
holder of the land under a zamindar is a tenant at
will. In each case the rights of the ryot have to be
ascertained in the light of the facts proved.
In Appa Rau v. Subbanna ('), Muttusami Ayyar
and Wilkinson, JJ., were called upon to consider
whether a zamindari ryot could mortgage his interest
/
.. in his holding. It was observed in that case that
"According to the course of decisions, therefore, in
this presidency the landlord may determine the
tenancy if there is a contract, express or implied,
_.. by exercising his will in accordance with his obligations; that there is no presumption in favour of a
tenancy at will; that an occupancy right may exist
•
I
I
r
-1· by customs; that a pattadar or raiyat in a mitta is
tintitled to continue in possession so long as he
regularly pays rent and has a saleable interest, and
that by reason of special oircumstances in evidence
the onus of proof may be shifted, even in regard to
a permanent occupancy right, from the tenant to
the landlord." The court also observed that it would
be "monstrous to hold that every tenant in a
.r -.i:amindari is presumably a tenant at will''.
(I) ( 1889) I. L. R. 13 Mad. 60.
1961
Sunk•Pilli SurPonn
v.
Qoli Sotkfrajn
ShahJ.
1961
Sunkm·-![, S:,rmma
v
(;o/i Sathir11Ju
Shah ].
(1fi0
SUPRE:IIE COURT REPORTS
rrntl2J
[n Vwcata .l!a./i11l<.1l!shmamma v. lfomajogi ('),
a zaminrlar ;;crw<l a notice upon thr rlcfon<lant, who
was a cultivating ryot in the zaminrlari calling upon
him to deliver possession of his holding, and on
default of complia11ce sued to evid him from his
holding.
The <kfon<lant plearle<l that he and his
anc-estors had bce11 "jiroyati ryots" of the holding
from timeH immemorial.
Accor1ling to the High
Conrt, the Z;tmin<lar having faile<l tn provl.' that the
ryot's tenancy had commPnce1l nn<lcr the zamin<lar
or his ancestors, the suit shoulrl be dismissNl.
Tho
court obsen·e<l that "in cases in which the raiyat.~'
holding is not shown to have commence<! subsequent
to the permanent Rcttlcm<·nt, and whl'n upon the
c\·i1lenee it is possibly as ancient as the zamindari
itsdf, the prin1·iplc laid tlown with reference to
tenancies which a<lmittedly commenced un<lcr the
zaminclar" had no application, •111!
tlu~t "in such
cast•s it is not umcasonablc to hold that the onuR
of showing that the tcnar:cy commenced under the
plaintiff or hi8 ancestors rests on the zaminclar, and
thl\t until he 8hows it, tbc zamindar may be fairly
presumed to have !wen the as8ignec of Government
n·wnue, anc! the tenant liable to pay n fair rent and
Pntitled to continue in possC'ssion as long a8 he
rei:;11larly pays rent.
-
....
In l'c!lk<1t1& .Y<1rnsimlu1 N11idu '. Dandamudi
-
l\11f11yya('), which wu h:w" alrca1ly referred, it was
h"!1l that a ryot in a permanently settled estate is
pri ma fatie not a mere tenant from year to year .,
hut the own('}' of tlw kuclh·aram right in the land
he cultivate•, and in a suit in ejectment, the
zaminclar "is to prove that the kndivaram right in
the disputl'd land subsequently passed to the deft.11dant or some perHon throu}!h whom he claims under
circumstances which give the plaintiff the right to
eject." The Court obscn·etl thnt there is no substantial analogy between an English tenant and an -- ..,.
Indiau ryot for the right of ryots came into existence
11111892: !. L. R. 16 Mad. 271.
(2l (18J7) l.L.R. 20 Mad. 299.
3 S.C.R.
SUPREME COURT REPORTS
661
,.,-
mostly, not under any letting by the Government
of the day or its assignees, the zamindars, but
independently of them, according to the Indian
traditions such right were generally acquired by
cultivators entering upon land, improving .it and
making it productive. After referring to the judgment of Turner, C. J., and Muttusami Ayyar, J., in
~ 'I'
Siva Submmanya v. The Secretary of State for India(')
that the Hindu jurisprudence rested private property
on occupation as owner, and to Secretary of State v.
-
Vira Rayan(') that
the right to the
possession
of lands acquired by the first person who makes a
beneficial use of the soil, it was observed that the
well-known division in the Madras Presidency of
'•
,,,
the great interests in land under two main heads of
the melvaram interest and the kudivaram interest
made the holder of the kudivaram right, far from
being a tenant of the holder of the melvaram right,
a co-owner with him.
•
In Gheekati Zam·indar v. Ranasooru Dhora and
others('), Shephard, J., observed at p. 322, "Many
of the occupants of zamindari lands are not tenants
in the proper sense of the word, and the fair presumption is that, when new occupants are admitted
to the enjoyment
of waste or abandoned lands,
the intention is that they should enjoy on the same
terms as those under which the prior occupants of
zamindari lands held. It is open to the zamindar
to rebut the presumption. He may show as was
J
shown in Achayya v. Ht1numantrayudu (') that the
i.rsual condition of things does not prevail in his estate
or he may adduce evidence as to the particular
contract made between him and his tenant. In
other words, he may show that the terms of the
contract were different from those which ordinarily
prevail between a zamindar and the occupant of
zamindari lands." Subrahmania Ayyar, J. observed,
_,_ -.... "Practically the whole of the agr.icultural land there
(1) (1885) I.L.R. 9 Mad. 285.
(2\ (1885)1.L.R. 9 Mad. 175.
(3) (1899) !. L. R. 23 Mad. 318.
(4) (:891) I. L. R. 14 Mad. 269.
1961
Sunkarilli Surnnn(t
v.
-Coli Salhiraju
Shah j.
1161
$..U.Uli SuraMO
v.
C.Zi Satliiraju
SW J.
662
SUPREME COURT REPORTS
(1962]
is not cultivated by persons who merely hire it for a
limited time. The raiyats most generally hold by
no derivative tenure. And even where the right to
cultivate passes to them from zamindars tho payment mado by them, in the absence of a contract,
is regulated by custom in the last resort, as provid -
ed in s. 11 of the Rent R-0covery Act. Tho raiyats
a.re generally entitled .to hold the lands for a nn· " •
limited time, that is as long as they wish to retain
it subject to the ·performance of tho obligations
incident to the tenure. Nor can it be said that this
is true only in regard to so much of the land in tho
hands or the raiyats as cannot be shown to have
been obtained by them from zamindars. For in
the case of lands which have boen relinquished
.·,
by the former occupa.nta or which have been lying
waste from time immemorial, they too, whon takon
up by a raiyat, aro treated exactly on tho same
footing as land into tho possession of which it is
notishown that the ra.iyat was let in by a zamindar,
and the raiyat holds poSBession of them for an indefinite period".
In Kumbham Lakshnumna and others. v. Tanjirala Venkateswarlu and Others ('), the Judicial Com-
•
mittee of the Privy Council held that in a suit to
eject the tenant of an inamdar from
his holding
the burden is on the plaintiff to make out a right
to evict by proving that the grant included both
tho melvaram and the kudivaram intorosts, or
that tho tenants or their predecessors were let •
into DORRllRBion by the inamdar under a t-0rminablo
lease. The dispute in that case was between
inamdars and a tenant and had to be decidod by
the Civil Court, for having regard to the dcfu1ition
in s. 3(2) ( d) of the Madras Estates Land Act,
1908, the Act did not apply t-0 inamdars. By s. 6
of the Act it having boon providod that "every
ryot now in pOllsession or who aha.~!
herea.ft~r ~
admitted by a landholder to possession of ryot1 land
situated in the estate of such landholder shall have
a permanent right of occupancy in his holding,"
(I) (1949) L. R. 7' I. A.' 202.
•
3 S.C.R.
SUPREME COURT REPORTS
all tenants in possession of land at the date on
which the Act came into operation, were declared to
be holders of permanent occupancy rights, but the
Act did not justify the inference that the holders
prior to that date did not and could not hold occupancy rights. The Privy Council was of the view
that in any action by an. inamdar to evict his
tenants. and by a zamindar prior to 1908 to evict
his raiyats from their holdings, the burden was
on the plaintiff to make out the right to evict
by proving that the
grant included both the
melvaram and the kudivaram interests
or that
the holders of land or their predecessors were
let into possession by the inamdar or the zamindar
under a terminable lease. The Privy Council judgment, therefore, recorded its approval to the view
expressed in the earlier cases to which we have
referred.
But counsel for the respondents contended
that this was not a suit between a zamindar and a
ryot and the rule as to the onus of proof in a
suit as between a zamindar and a ryot did not
apply where the suit was filed by a person like
the plaintiff claiming a share in the occupancy right
in land in possession of the defendants, and unless
the
plaintiff establishes affirmatively that the
common ancestor was before 1908 in possession as
an occupancy tenant, his suit must fail.
We do
not think that this is a permissible approach. The
presumption which arises in a suit by a zamindar
against a ryot for possession of the letter's holding,
rests not on the narrow ground of burden that
whoever alleges title and
claims relief
on
that footing must establish it ; the presumption has
its roots in the system of land tenure and in cus·
tom of the area in which the lands are situate,
and applies in a suit between persons claiming
under the ryot, as well as in a suit against the
ryot by the zamindar.
Counsel for the re pondent relied upon certain
eiroum1tanees which appeared from the evidence
1961
Sunkavilli Suranna
v.
Coli Sathitaju
Shah].
lMI
Sun.ktuilli SurOnM
V.
Goli Sathiraju
66!
SUPREME COURT REPORTS
[HJ62l
as lending supp0rt to the plea of the contestinp: •
dcfenrlauts that tlw
lan<ls were
not held
by
Thammiah)n occupancy right. Reliance was placed
upon the covenant in Exts. D-1, D·2 and D-3 that
the zamindar may on the expiry of the year of tho
m11chilika, let out the lands to any tenant at "cist''
advantageous to the zamindar. "rt is true that in
Exts. D-1, D-2 and D-3 it is recited that if ;it tlw
end of the terms of the muchilika the z1imi11dar
should lease out the lam! t-0 anv one for a "cist"
advantageous to him, Thammiah· would not object
thl'rcto, and he further
agreed that he would
leave sufficient Jami; without raising any objection,
for the ryot to carry out the necessary work for
cultivation rluring the ensuring year.
But such a
"
co\·enant is by itsc If not sufficient to justify the
"'
inference that the ryot's tenure wall precarious. It
appca rs that sinct• the dl'cision ef tho Madras High
Court in Chockalingc1 I'illi \'. Vythealinga Pundara
Sumuuly (')that neither the rent lteeovC'ry Act, nor
the regulations operatt'd to <'Xtcnd a tcnan<'y hoyond
the period secured by tho
express or implied
terms of the
contract cn•:iting it, the zamin-
<lars
were
accustomed
to
take
muchilik:L
or other writings from their ryots
ndn1 itting,
notwithstanding the t1ue nature of thPir rights,
that their tenure was restricted or precarious. In
J'enwta J/.1ltc1fokshmamma v. Uamajogi ('),in dealing with a muchilika <•XCcuted by a ryot for a
period of one year only, l\Iuttusami Ayyar J.,
obHerved, "Neither a patta nor a muchalka granted
•
or executed unrlcr Act VIII of 1865 during the
eontinnuuce of the holding is conclusive cvidcnco
tlmt the holding is :i tenancy from year to year.
A pa.tta or muchalka is ordinarily nothing more
than a record of what the tenant has to pay for a
particular year with reference to the pro-existing
relation of lancllord and tenant. The fact cannot also
be lost sight of that tho zamindar is .•!ways a man ...,,...
of education, status and influence and often exercises
.
(I} (18711 6 M. H. C.R. 164.
121
11892! I. L. R. 16 Mad. 271.
-
Ct'
..
,..._,
•. -f3 S.C.R.
SUPREME COURT REPORTS
665
revenue power and control over the village records.
On the other hand, the raiyats are illiterate persons
and it would be easy enough to get them sign
anything as long as there is no attempt to interfere
with their actual occupation and enjoyment of tho
land." It would be unre::tsonablc, therefore, to
attach any undue importan8e to the rc"itals of the
nature contained in Exts. D-1, D-2 and D-3.
The
Privy Council in Kumbham Lakshmamma's case (1)
referred to tb.e practice among zamindars of taking
muchilikas from ryots negativing the existence of
the occupancy rights as being prevalent and to the
judicial recognition of such a practice in Peravali
Kotayya v. Pnnopalli
Ramakrishnayya (
2
)
and
Zamindar of Chellapalli v. Rajt!lapati Somayyci (').
The Judicial Committee referred w~th approval to
the ob~ervations of Wallis, C.J., in the latter case to
the effect : "In this connection it is to be borne in
mind that numerous instances have come before
the courts in which subsequent to the decision of
the Chokalinga's case(') (1871) zamindars succeeded
in inserting in pattas and muchilikas terms negativ·
ing
the
existence of occupancy right", and
pointed out that they could not neglect the conside·
ration that a ryot so long as he is not evicted,
might be prepared to sign anything and that the
evidential value of such
a
contract
should
be judged accordingly. It is true that if there were
some reliable or substantial evidence to show that
the tenancy had commenoad after the zamindari
rights accrued or that otherwise the tenant's right
was restricted, the value to bo attached to the recitals of the nature set out may be greater ; but there
are no (lircumstances in this case lending strength
to the recitals contained in Exts. D-1, D·2 and
D-3.
After the death of Thammiah, muchilikas
were obtained and pattas granted by the zamindar
not in favour of the daughters of Thammiah, who
were under the Hindu Law his heirs, but in favour
(II
(1949) L. R. 76. LA. 202.
(2)
[1937]2 Mad. L. J. 573.
(3)
(1914) 27 Mad .. L. J; 718.
(41
(1871) 6 M. H. C.R. 164.
1961
Su,,kavilli Suranna
'.
G uli SathiraJu
Shah].
JP61
tvd:at:ilii S11ro.n11tt
v.
Coli Scthiraju
Shah J
666
SUPREME COl"RT REPORTS
[lr62J
of his daughters·in.law, in the first instance, and
thereafter, in favour of one of the daughters-in-law
and Ramanna, grandson
of Thammiah. These
documents arc Exts. D-4, D-G, D-G (a), D-6 and
D-8. Ext l'-4 is a muc-hilika executed on August 15,
1891 by \'enkamma and Chetamma, daughters-inlaw of Tbammiah. Ext. D-ii is another muchilika
executed on August, lG, 1893 by Venkamma. and
Chetamma. Each of these mnchilikas is for period of
one year. Ext. D-5 (a) isa patta executed on October
IO, 1893 by the zamindar corresponding to muchilika Ext. D-5. Ex. D·6 is a patta executed on
May 21,
1904, by the zamindar in
favour of
Chetemma. and Rama.nna-minor by his
guardian
Vecriah-and there is Ext. D-8 which is a patta
dated January 16, 1906 also in favour of Chetamma
and Ramanna.
A lI these rnuchilikas and pattas
related to the same seventeen pieces of land which
were originally in tiic possession of Thammiah,
and the
covenants thereof aro identical. It is
true that in respect of the first two rnuchilikas the
ryots were Chetamma and Vcnkamma, and in
:Exts. D-6 and D-8; the ryots were Chetamma and
Ramanna. Counsel for the defendants asks us to
infer from Exts. D-4 to D-8 that tho zamindar had
at the end of the year for which tho muchilikas or
pattas were cxccut~d exercised his right of eviction and had taken possession of the lands and had
given them to other persons of his own choice.
But it is difficult to draw that inference in the
absence.:.. of any reliable evidence that the zamindar
had evicted ryots who had executed the muchilikas
and.had then inducted fresh ryots on the land. The
reason why'/Vonkamma was omitted after 1893
from.the muchilikae and pattas of the land and in
her~ place Ramanna was substituted will be presentlyLmentioned. After tho death of Thammiah, hi1
rights in.the land would undoubtedly devolve by
the law of inheritance upon his survivingdau~~ters
with limitoo interest. But the fact that mueh1hka.a
wore taken from persons who were strictly not
heirs acoording to Hindu law, but wer• 1till
'· .
,.,
-----·
_..,...-
--
-
3 S.C.R.
SUPREME COURT REPORTS
667
representatives of the family, will not ·justify an
inference that the right of the original ryots were
extinguishe<l and fresh rights in fM·our of persons
who exec•1ted muchilikas were created. The two
daughters-in-law--Chetamma and Venkamm:t-after
the death of Thammiah, continued to .live in the
family house together with Seshamma, Veerayya
and Rudriah, and it is not unlikely that the zamindar regarded the two daughters-in-law as representatives of tho family and took muchilikas from
them. There is no warrant for the inforence that
they wer•> inducted on the land in inqependent right
by the za.mindar and not -as reprepentativ'es of the
descendants of Thammiah. The learned Judges of
the High Court observed that "in 1895 (when
Ext. D-4 was executed) in country parts likePandalpaka, it is too much to assume such a souud knowledge of Hiedu law.
Besides, Venkn.mma and
Chetamma were, admittedly, living a.long with
Veeriah
and
Rudrnyya
and
Ramanna and
Bhavamma
during
Thammiah's life-time, and
cont;inued to live in that same house after his
death ... So, we have no doubt that t;he Maharaja of
Pittapur, the zamindar, never intended :in the least
to take away the B Schedule lands from '.I'ammayya's
heirs and given· them to Venkamma and Chittemn:.a
who were not heirs and we hold that he renewed
the patta in favour of these two widows, as they
were con:iiderad by him to be representing Tammayya's estate, being his widowed daughters-inlaw." In our view, this in the circumstances of the
case, is a correct inference.
-
·
It appears that after 1895 there arose disputes
between Veeriah and VenJi:amma-and it was
arranged to provide maintenance to Venkamma out
of the e11tate of Thammiah. -Ext. P.l dated May
16, 1899 records the terms on which maintenance
was granted. This document has a very important
bearing on the quei;tion which falls to be decided
in this appeal. It is recited in Ext. P-1 that all
ihe propertiell of Tha.=ia.h had devolved, after
Sunkavilli Surarma
v.
l Coli Sdthiraju
Shah].
1961
--i
S;mJ.aril/i Sur•rmo
v.
c.1i Sothiro.;u
Shah].
6G8
SUPREME COURT REPORTS
[196~J
his dflath upon his "dowhitras" (da1Jghter's sons),
Rudriah and Ramanna anrl that the two "dowhi·
tras'' w<'re bound to maintain th•' widowed <laugh·
t.f'fs.in·law-Chetamma and Ycnkamrn11, and that
accordingly they were being maintained, but a
\'cnkamma was unwillingto live in tho family
house, it was dceiclrrl to give her for
rnaint~nance
expcnsl's Rs. 25 and 240 kunchams of white paddy
per year besides •~ house for residence.
This deed
recites that out of tho estate of Thammiah the two
widows-Chctarnma and Venkamma were in fact
Lein!! maintained, that the estate was inherito l by
Hudriah and Ramanna, and recognises the right of
the widows to rccei\•e maintenance out of the
estate. Then' is no evidence on the record that
besirles the lands mentionccl in Schedule 'Il' thoro
was <\llY other agricultural land of whichThammiah
was possessed and which had devolved upon
Rudriah and Ramanna. It is adrnittcdly out of tho
property of Thammiah which had devoh·erl upon
f{udriah and Ram.anna that maintenance was
agreed to he given, and if Thammiah was not posses·
eed of '.l"Y property other than the Jands in Sche·
dule 'B·, Ext. P.l must lend strong support to the
inferenc" that the lands in Schedule 'B' were
regarded at the dat.e of the maintenance deed as
belonging to the estate of Thammiah out of which
V cnkamma was entitled to maintenance. The
&esumption that the proprrt.y had devolved upon
Rudria.h and Ramanna is evidently not true. So
long as the daughte_r~ or any of them were alive,
they were, according to the Hindu law applicable
to the :Madras Presidency, owners, though for their
lifo·time only, of the estate left by Thammia.h.
Ext. P-1 docs therefore land support to the oa.sc of
the plaintiff that the property was regarded as
belonging to the family in which all persons who
were living in the house of Thammiah, including
the ,two daughters·in·law
had interest. After
maintenance was provided to Venkamma hy Ext. P-1
her name was omitted from the. muchilikas and
.the pattas subsequently executed. Pattas D-G and
..
-'- ·•
---
3 S.C.R.
SUPREME COURT REPORTS
66\J
D-8 are as we have already stated, in faV"our of
Chetamma and Ramanna.
It is true that rent was enhanced by the
zamindar from time to time under the muchilikas.
During the life-time of Thammiah the annual rent
was Rs. 419-8-0 and it remained unchanged, but
after his death the rent, even though the area of
the land continued to be the same, was enhanced
to Rs. 481-8-0 under Ext. D-4. There is some error
in totalling np the amount of rent, but the enhancement of rent by Rs. 52 is substantially the result
of alteration of rent of Sr. No. 315. Originally the
rent of Sr. No. 315 Was Rs. 20-3-9: it 'lvas enhanced
to Rs. 81-3-9. Under Ext. D-5 the rent is Rs. 537
(it should have been Rs. 4 73), but that again, is
the result of some error in totalling, the only
enhancement being in respect of No. 358 which was
increased from Rs. 5 to Rs. 6-8-0. In Ext, D-6 of
the year 1904 the rent of this land was enhanced to
Rs. 60-8-0 and rent in respect of Sr. No. 315 was
enhanced to Rs. 91-3-9. The High Court has held
that this enhancement of rent of the two lands Nos.
315 and 358 was presumably because the lands
were irrigated, and, having regard to the circumstances, we think the inference of the High Court is
correct. Enhancement of rent of the lands from
time to time does not land support to the inference
that fresh pattas and muchilikas were not in recognition of the previous rights. It is pertinent to
note t-hat in the records of the zamindar all the
muchilikas in · respect of the lands bore No. 12,
during the life time of Thammiah and after his
death thev bore No. 23. The circumstance that the
same. area of land remained in the occupation
continuously of the family of Thammiah under
Exts. D-1 to D-8 for a period exceeding 25 years
also lends support to the plea of the plaintiff. It
is true that by his notice Ext. D-7 the zamindar
called upon Ramanna and Chetamma to vacate the
kumatam (which term is translated by the learned
counsel for the respondent as 'home.farm') lands of
the extent of 51 acres 72 cents. But by the year
1961
Sunkavilli Suranna
v.
Go!i Sathiraju
Shah J.
1961·
S.,.luilli s.,..,...
v.
Gg/i Satltirt1Jtt
SW.].
670
SuPREME COURT REPORTS
[1962)
1905 it waa well-known that 1egi3lation of the
nature, wh icb was ultimately enacted as the Madras
Est.au' Land Act, 1908, was on the legislative anvil
and n<> rcl'anco can be placed upon the statements
made in th9 notice which docs not appear to have
been follo11.·ed by proceedingB, for en for< emc'lt of
the claim to po~scssion. It is ocmmon ~r Jund that
on Januar." 16, 1906, the zarnindar issued in favour
of Chctamma and Ilamanna a patta in respect of
the same lands for an annual rental of R~. 5i8-4-0,
rent havin~ been. enh&nced in respect of Sr. No. 46
and 358 or.ly.
The]High Court placed ekong reliance upon
the circum:itancea that in all the muchilikas and
patta~ the land~ were described as "jcroyati lands"
nnd the tenants were described as "joroyati ryots".,
The High Court obs('rved that "jeroyati ryot" was
a well-known t~·rm indicating prima facie possession of occupancy rights. However, the state of
the authorities in the Madra~ High Court to which
cur at.ten ti on has been invited does not j11stify us
in expn,ssing any definite opinion on that plea. In
Zamindar of Bodokimidy v. Badankayala Bhimayya(' ),
Curgenven. J .. held that the phrase 'on jiri.yati
tenure' is onl.v used where occupancy rights exist.
But b<>yoncl the bare statement in the judgn,cnt
that "tho phrasl)" on jirayati tenure "being, so far
11s my <>XpHienre goee, only used where C•ccupancy
rights exist", there is no further elaboration in the
judgment.
In (!t-aturi) L1ngayya Ayy11varu v.
Eandula &'angiah ('),Wallace, J., without referring
to the o>arlier judgmPnt of Curgonven, J., observed
that the te~-m "jeroyatidar" did not imply that, the
executant was an occupancy ryut. Herc also
no reasons appear to have L1·.en given in support of
the view. IuDadamudy Tatayya v.Kelachiria. Venkatas·ubbarayya Sast-i ('), D~vadoss, J., in th.c course
of hearing ;m appeal cal1cd for a findmg irom the
(I) A.1.R. 927 Mad. 76.
12) A.l.R. 1928 Mad. 58.
(~) A.l.R. 1928 Mad. 786.
.. •
1·.:
\ .. ,
·--
.
i
-r
,.'.
.3 .S.C.R.
SUPREME COURT REPORT$
671
trial Court as to the meaning of the word "jeroyati" as used in the Vuyynr Zamindari a~rl a~~~
the meanin()' of the expression "savaram Jeroy1t1
used in doc~ments in that estate. The Subordinate
Judge recorded evidence on the question referr.ed
to him, and observed after referring to Brown's
Di"tionary and Wilson's Glossary, that tho word
"jeroyiti land" may mean "cultivable or arable
land", but it was only the context that must decide
whioh meaning was to be given to the word.
He also
observed that the word "jeroyiti" especially when
prefixed to the word "right" or hakku had come to
mean "rights of ocaupancy". This report oft.he
Subordinate Judge, it appeMs, was accepted by the
High Court. These are the only decisions of the .
Madras High Court to whioh our attention was
invited. The task of this Court, in ascertaining
the special meaning which an expression used in
the revenue administration and by the residents of
4 certain area has acquired, is indeed difficult. If
the expression "jeerayot" is a local variation
of "Zeerait" used in the revenue administration,
especially in
Northern
India.
it may mean
"assessed" land, or "agricultural" land. On the
materials placed, we are unable to express any
definite opinion on thi1 pa.rt ef thit ease of the
plaintiff.
To summarise, there is no evidence to show
t.Jiat occupa.tion of the Janda by Th'lmmiah commenc-
,;d under the zamindar ; and there is no evidence
as to the terms on which Thammiah or his predecesw,rs were inducted on tho lands : the oommencet•lent of the tenancy and the terms thereof are lost in
antiquity, but Thammiah and his descendants are
proved to h11ve continued in possession of land
uninterruptedly till the enactment of the Madras
Estates Land Act, 1908. In the light of the pre-
. _ .