Judgement

SHAH, J. : In these appeals a common question -whether a shrotriem grant of lands known as "Challayapalem shrotriem" formed an estate within the meaning of S. 3(2)(d) of the Madras Estates Land Act. 1908- arises. The Court of first instance on a review of the evidence was of the opinion that the grant was of the whole Chellayapalem village within the meaning of S. 3 (2)(d) of the Madras Estates Land Act, 1908, in force at the relevant time, and that the tenants held rights of occupancy in the lands held by them. The High Court of Madras disagreed with that view and held-that on the evidence it was not proved that the original grant was of a "whole village" or even of a "named village" within the meaning of S. 3(2)(d) of the Madras Estates Land Act, 1908 and the first Explanation thereto, and that the onus to prove that the grant was of a whole or of a named village being upon the tenants in occupation of the lands in dispute, the claim of the shrotrimdars must succeed. With certificates granted by the High Court, these three appeals have been preferred.

2. Suit No. 42 of 1942 was filed by certain tenants of lands in the Village Challayapalem, District Nellore, for a declaration that they hold occupancy rights in lands in their occupation and for an injunction restraining the shrotriemdars of the village from "interfering with their possession". The tenants claimed that "they and their ancestors" were in possession and enjoyment of the lands for many years and had been paying rent to the shrotriemdars, and were dealing with the lands as owners, that all transactions in the Challayapalem shrotriem were being on the footing that the village was an "estate" under the Madras Estates Land Act, 1908, and that in any event the tenant held permanent rights of occupancy in the lands acquired in virtue of the provisions of the Madras Estates Land (Amendment) Act, 1936. This suit was later numbered 37 of 1947.

3. The shrotriemdars filed suit No. 2 of 1946 against fifteen named defendants for a declaration that the tenants in occupation of the lands in the village did not hold permanent occupancy rights. Later, permission under O. 1, R. 8, Code of Civil Procedure to sue the named defendants as representing all the tenants in the lands of the shrotriem grant was obtained. In this suit the shrotriemdars did not claim any relief for possession: they merely sought to reserve liberty to institute separate proceedings in that behalf and claimed that they were entitled in enforcement of notices served upon ten out of the named defendants to call upon them to deliver possession of lands occupied by them.

4. There was one more suit No. 93 of 1947, which raised a dispute as to the right of occupancy in a small area of land admeasuring 1.90 acres. The plaintiff in the suit claimed that he had acquired the right of occupancy by purchase from the original tenant of the land. The fourth defendant in the suit who was the principal contesting party claimed that he was a grantee of occupancy rights from the shrotriemdar.

5. The three suits were tried together. The tenants claimed in the principal suit No. 2 of 1946 occupancy rights in the lands held by them, on three grounds :

(1) that the tenants of agricultural lands were, by immemorial custom of the locality in the Nellore District, occupancy tenants;

(2) that the tenants had acquired by prescription or by the doctrine of lost grant the rights of permanent occupancy and

(3) that the grant was of an estate within the meaning of S. 3(2)(d) of the Madras Estates Land Act, 1908, and the tenants of the lands in the estate were by virtue of S. 6 of the Act permanent occupancy tenants.

The trial Court relying upon the statement in Boswell s Manual of the Nellore District, that the "tenants * * * of Chellayapalem like their brothers in other villages of this District had right to occupy the land from generation to generation on payment of rent prescribed by custom", held that the tenants plea on the first hea