Rajamannar, C.J. - I think it is better that this case goes before a Full Bench for an authoritive decision on the question of burden of proof.

Several petitions are being filed under Article 226 of the Constitution for the issue of writs of certiorari to quash the orders of the Estates Abolition Tribunals in appeal against the orders of Settlement Officers declaring particular inams to be, or not to be, inam estates under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. In several of these cases, the original grants are not forthcoming and one is practically left with the entries in the Inam Fair Register. It is frequently in controversy whether an inam is a grant of a whole village comprised in the category mentioned in section 3, clause (2) (d) of the Madras Estates Land Act, read with Explanation (1). In most of the cases we find from the entries in the Inam Fair Register that there are minor inams within the ambit of the village and there are inam title deeds separately covering the major grant and the minor grants. Almost invariably there is no direct evidence of the date of the grant of the minor inams and often even the date of the major grant is not known. The case before us is typical. The extract from the Inam Fair Register shows that the date of the major grant is not known; no sanad was apparently available even at the time of the inam settlement. Likewise, the dates of the minor inams are also not known. All that we know is that at the time of the inam settlement, out of the total gudicut of 255. 76 acres, the minor inams covered an extent of 22. 28 acres. This is the total area of three minor inams ; one of them is in favour of the major grantee, viz., Varadarajaswami, another is in favour of another deity Thimmarajaswami and the third is a darmadhayam in favour of a poojari. It was not disputed before Rajagopala Ayyangar, J., that the major grant was a grant of a named village. The question is, were the minor inams already granted by the time the grant of the named village was made. The direct evidence on this point is nil. In such circumstances the burden of proof assumes great importance.

The Supreme Court decision in The District Board, Tanjore v. Moor Mohamed1, clearly proceed on the assumption that the burden of proving that certain lands constitute an “estate” is upon the party who sets up that contention. Indeed, Mahajan, J., (as he then was) who delivered the leading judgment recorded a concession made by Mr. Somayya, learned counsel for the respondent, that the burden was upon the party who pleaded that the lands constituted an “estate”. Chandrasekhara Aiyar, J., was apparently prepared to hold, apart from the concession, that the burden was on the tenant to establish that what was originally granted was an estate.

In Ramanathan Chettiar v. State of Madras2, a Bench of this Court to which both of us were parties, placed the onus in the same way on the party putting forward the case that the grant was an “estate”, following this ruling of the Supreme Court, in a case which arose under the Madras Estates (Abolition and Conversion into Ryotwari) Act. The result of this was that the tenant had to establish that the minor grants were made before the date of the major grant. In the judgment now under appeal, Rajagopala Ayyangar, J., has observed that he is not very clear that the burden is upon the tenant to prove that the minor grants were anterior to the major grant, though he was prepared to hold that even if the burden lay on the tenant, the burden had been discharged.

I think there should be a further consideration as to the burden of proof in cases arising under the Madras Estates (Abolition and Conversion into Ryotwari) Act, for the following reasons. The Supreme Court decision was given in a case which arose out of an ordinary suit filed in a civil Court by the landlord for an injunction restraining the tenant from disturbing his possession. In that suit, the tenant pleaded occupanc

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