Audi Thevan and Others vs Palani Thevan and Others

The case has been argued very elaborately by Mr. T. Rangachariar, who has subjected the Subordinate Judge''s judgment to a skilful and

minute criticism. The Subordinate Judge has really found two points against the plaintiffs and in favour of the defendants. He has found that the

plaintiffs have not shown that the defendants possession of the lands originated under their vendors, that the defendants have admittedly been in

possession for a very long time and that they have been paying a unifrom rent throughout. In those circumstances, he was of opinion that the onus

of proving that they had not a permanent right of occupancy was on the plaintiffs. We cannot say that he was not entitled to hold that the facts,

established, and admitted, shifted the onus on to the plaintiffs to prove that the defendants were only tenants-at-will or tenants from year to year.

His finding on the question of the defendant''s right of occupancy must therefore, be accepted.

The other finding that he has recorded is that the Kudivaram right in the land is in the defendants and that the defendants are really holding

directly under the zemindar of Sivaganga. Mr. Rangachariar succeeded in pointing out circumstances which appear to make the judgment

defective. We say ''appear'' because we have not heard the learned Counsel for the respondents. We do not, however, consider it necessary to

examine Mr. T. Rangachariar''s argument on this point, because the finding that the defendants have a right of occupancy is sufficient to dispose of

this case. It is immaterial for the purpose of this suit whether the defendants are bound to pay rent to the plaintiffs as holders of a patta under the

Sivaganga zemindar or to pay to the zemindar himself. It is also unnecessary to consider what the exact rate of rent payable by the defendants is.

One further point remains for consideration. The Subordinate Judge has found that the defendants have, if they were plaintiffs'' tenants, forfeited

their right by repudiating the title of the plaintiffs some time before the institution of this suit. But, in the view we take of this case, the question of

forfeiture does not arise. A tenant, in the strict sense of the word, that is, one who has been let into occupation of the land by another on a lease,

will, no doubt, forfeit his rights under the lease by repudiation of the landlord''s title; but, as stated already, there is nothing in this case to show that

the defendants were let into possession of the land by the plaintiffs'' predecessors-in-title. It has not been proved that they are holding under any

contract entered into with the plaintiffs or their predecessors-in-title. They are not lessees in the proper sense of the term. They are the owners of

an interest in the land, namely, the right of permanent occupancy. The plaintiffs, if they are the owners of the Kudivaram right under the zemindar of

Sivaganga, possess another interest in the land and would be entitled to recover a share of the income of the land from the defendants. In other

words, the plaintiffs and defendants possess different interests in the land. It is not shown that the defendants derived their interest from the

plaintiffs. No authority has been cited for the position that the owner of a subordinate interest would forfeit it by denying the title of the owner of a

superior interest. It is not contended that the plaintiffs themselves would forfeit their right by denying the title of the Sivaganga zemindar to the

melvaram of the land. We are of opinion that the denial of the plaintiffs'' right as pattadars under the zemindar did not work a forfeiture of the

defendants rights. We affirm the decree of the Subordinate Judge on the ground mentioned above without going into the question whether the

plaintiffs are entitled to the Kudivaram interest in the land under the Sivaganga zemindar. We dismiss the second appeals with costs.

The judgments in Second Appeals Nos. 269 to 271 follow.

The Civil Miscellaneous Petition Nos. 324 of 1911 is also dismissed.