The burden of proof under Section 3 (2) (d) of the Madras Estates Land Act, 1908, as amended in 1936, lies on the tenant to establish that the requirements of the section are satisfied.

( 1 ) THE Judgment of the Court was delivered by the Hon ble Mr. Justice satyanarayana Rao. This is a batch of three appeals arising out of a common judgment by which the suits were disposed of in the lower court. Appeal No. 342 of 1949 is an appeal against O. S. No. 2 of 1946, Appeal No. 551 of 1951 arises out of O. S. No. 37 of 1947 and Appeal No. 789 of 1950 arises out of O. S. No. 93 of 1947. The evidence being common, it was recorded in O. S. No. 2 of 1946, and the parties filed a joint memo to the effect that the evidence in that case might be treated as evidence in the other connected cases. The suit O, S. No. 2 of 1946 was the main suit and it was filed by the shrotriamdar for establishing that the defendants and the other tenants in occupation of the lands do not own occupancy rights. The suit O. S. No. 37 of 1947, out of which Appeal No. 551 of 1951 arises, was by the tenants for a declaration that they have occupancy rights in the lands in their possession. Under Order I Rule 8, C. P. G. , permission was obtained to institute the suit not only on behalf of themselves but also on behalf of all the tenants in the village in a representative capacity. In O. S. No. 93 of 1947, out of which appeal No. 789 of 1950 arises, the dispute was as between two rival tenants who were entitled to occupancy rights in a land of the extent of Ac. 1-90 cents. Ia all the suits the main question is whether the lands comprised in the Shrotriam grant form part of an estate within the meaning of Section 3 (2) (d)of the Estates Land Act, both before and after its amendment in 1936. There is also the further question that even if the suit lands do not constitute an estate , whether the tenants acquired occupancy rights in the lands and whether the plaintiff is entitled to the declaration that he is the owner of both the warams. As the plaintiff is suing for a declaration of his absolute ownership of the land, he has naturally to establish that contention. In appeal No. 342 of 1949 a further question is raised that the suit was not maintainable under Section 42 of the Specific Relief Act as the plaintiff, who sued for declaration, was in a position to claim a further relief namely possession of the lands and he did not claim that relief in this suit. There were also other issues in the case on which findings were recorded by the trial court but nothing was mentioned regarding those issues in the course of the arguments before us, The findings therefore on those issues must be accepted. Apart from the objection based on Section 42 of the Specific Relief Act, the main questions that require determination in these appeals are, firstly whether the lands are comprised in an estate under Sec. 3 (2) (d) of the Madras estates Lands Act, both before and after its amendment in 1936; secondly, even if it is not an estate, whether the plaintiffs are entitled to both the warams in the inam; thirdly, wheth the tenants are entitled to occupancy rights apart from the Estates Land Act. It may be mentioned that the claim for permanent rights of occupancy, apart from the Act, was based in the written statement on custom, lost grant and prescription. The learned trial judge negatived the claim based on prescription and grant. He also held that they had not established their rights on the basis of a lost grant. Though he found in paragraph 99 of the judgment that there was no oral or documentary evidence in the case in support of the custom, curiously he reached the conclusion that the tenants were entitled to occupancy rights by custom. In the arguments, however, before us, the learned Counsel for respondents did not seek to support the judgment on the basis of custom but rested his case on lost grant. It will therefore be necessary to examine the claim for occupancy rights, apart from the Act, whether it could be justified on the theory of lost grant. On the main question the findings of the learned Judge were against the plaintiffs. He further found that t

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