Judgment

MAHAJAN J. : This appeal arises in the following. circumstances: Under a muchilika dated 1-8-1945 the respondent took on lease from the appellant the land in suit for a period of three years on the fixed rental mentioned therein. The lease expired on 30-6-1948. Before the expiry of the three years period the respondent filed Summary Suit No. 87 of 1948 in the revenue Court for grant of a patta in respect of the suit land on the allegation that he had acquired permanent rights of occupancy against the landholder. It was alleged that the land had not been surrendered to the landholder on the expiry of the lease. During the pendency of this summary suit, on 4-8-1948 the plaintiff-appellant filed the suit, out of which this appeal arises in the Court of the Subordinate Judge, tanjore, for a permanent injunction restraining the defendant from interfering with the appellant s possession of the land in suit.

It was alleged that the plaintiff had entered into possession of the suit properties after the expiry of the lease, and part of the land had actually been brought under cultivation, that the respondent-defendant was threatening to take forcible possession of the properties which he had no right in law to do. In the written statement the respondent pleaded that in spite of the clause in the muchilika by which the lessee had undertaken to surrender possession of the leased lands by 30-6-1948 he was entitled to continue in possession and management thereof with a right of permanent occupancy therein. He claimed to have become entitled to a permanent right of occupancy by virtue of the provisions of S. 6, Madras Estates Land Act (I of 1908). It was contended that the suit land was and is an "estate" within the meaning of S. 3 (2) (d) of the Act is amended by Act 18 of 1936 and was within the ambit of S. 6 of the Act. A number of issues were framed in the case. Issue 1 was in these terms:

"Whether the suit lands are ryoti lands in a whole inam village, and whether first defendant has acquired occupancy rights thereon."

By consent of parties it was decided that the question involved in the issue whether the suit land is an estate as defined in the Madras Estates Land Act be tried as a preliminary issue.

2. The Subordinate Judge held that the suit land did not constitute an estate as defined in S. 3 (2) (d), Madras Estates Land Act. On a petition for revision presented to the High Court it was held that the suit land did constitute an estate within the meaning of the Act. As a result of this decision the High Court directed the return of the plaint with a direction that it be presented to the proper Court which had jurisdiction to hear it. An application was made for an amendment of the order and praying that the suit be remanded to the Subordinate Judge for trial of the remaining portion of issue 1 and issues 2 to 5. By an order dated 28-7-1950 passed on this application by the High Court the plaintiff s suit was dismissed in toto . The High Court by its order dated 13-9-1950, however, granted a certificate under Art. 133 of the Constitution for appeal to this Court.

3. The relevant portion of S. 3. sub-cl. 2 defining "estate" is in the following terms:

"(2) Estate means-

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(d) any inam village of which the grant has been made, confirmed or recognized by the British Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees.

Explanation 1: Where a grant as an inam is expressed to be of a named village, the area which forms the subject-matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name which have already been granted on service or other tenure or been reserved for communal purposes.

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The question for decision is whether the grant in this case to the predecessor in interest of the appellant was of a whole i