Periakaruppa Thevan and Others vs Aiyanars and Others

Phillips, J.—In these appeals the question at issue is whether the plaintiffs, minor inamdars, are entitled to evict the defendants who are

cultivating their inam lands.

The lower Appellate Court has found that the tenants have not proved their occupancy-right, and that they have not subsequently acquired the

right of occupancy; and has accordingly decreed the suits in favour of the plaintiffs.

In these appeals it is contended that the lower Appellate Court has not considered the decision of the Privy Council in Chidambara Sivaprakasa

Pandara Sannadhigal v. Veerama Reddi 43 M.L.J. 640 : 37 C.L.J. 199 : 27 C.W.N. 245 : 49. I.A. 286 (P.C.). In that case it was finally laid

down that in considering the nature of an inam grant, namely, whether it was a grant of the melvaram only or a grant of both melvaram and

kudivaram, no presumption can be made in favour either of the grantee or of the cultivator. For a long period, this Court had held that there was a

presumption, especially in the case of Brahmins that the grant was only of the melvaram. This presumption was held to be wrong by the Privy

Council in Upadrashta Venkata Sastrulu v. Divi Setharamudu 10 L.W. 633 : 24 C.W.N. 120: 2 U.P.L.R. 16 (P.C) which says that each case

must be considered on its own facts. Subsequent to that decision a Full Bench of this Court in Muthu Goundan v. Perumal Iyer 13 L.W. 483 :

(1921) M.W.N. 263 : 29 M.L.T. 398 (F.B.) held that there was an. initial pre sumption in favour of the grant of both varams. In Chidambara

Sivaprakasa Pandara Sannadhigal v. Veerama Reddi 43 M.L.J. 640 : 37 C.L.J. 199 : 27 C.W.N. 245 : 49. I.A. 286 (P.C.) this judgment has

been referred to. It is pointed out by the learned Judges that the Full Bench decision is clearly in error and that there is no presumption one way or

the other. In the present case, therefore, it would appear, that in the absence of any presumption that plaintiffs own the kudivaram it is incumbent

on them to prove such right, which must be invoked to support their claim to eject defendants. The ordinary principle that a person suing in

ejectment must prove his right to eject will apply. Then learned Subordinate Judge has started his judgment with an assumption ""that the burden is

on the cultivating tenants to show that they and their predecessors-in-title have been in occupation of the identical lands from a date anterior to the

grant,"" Admittedly the grants to the plaintiffs predecessors were prior to the British rule and it would be extremely difficult for the defend ants to

prove that at the time of the grants their predecessors were actually in possession of the lands. It seems to me, therefore; that on the authority of

Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi 37 C.L.J. 199 : 27 C.W.N. 245 : 49. I.A. 286 (P.C.) the burden in the present

suit is on the plaintiffs to prove their right to eject.

It is, however, contended for the respondents that this principle laid down by the Privy Council in 1922 has been modified in 1923 by the

judgment in Nainapillai Marakayar v. Ramanathan Chettiar 46 M.L.J. 546 : 10 O. & A. L.R. 461 : 28 C.W.N. 809 : 511 A. 83 (P.C.) in which it

is stated:

It cannot now be doubted that when a tenant of lands in India, in a suit by his landlord to eject him from them, seta up a defence that he has a right

of permanent tenancy in the lands, the onus of proving that he has such right is upon the tenant.

It is contended that by reason of this dictum, the burden is upon the defendants to prove their occupancy right. The decision in Nainapillai

Marakayar v. Ramanathan Chettiar 10 O. & A. L.R. 461 : 28 C.W.N. 809 : 511 A. 83 (P.C.) is based upon two prior cases, Secretary of State

for India v. Luchmeswar Singh 5 Sar. P.C.J. 275 : 8 Ind. Dec. 147 (P.C) and Seturatnam Aiyer v. Venkatachala Goundan 56 Ind. Cas. 117 :

(1920) M.W.N. 61 : 22 Bom. L.R. 578 : 25 C.W.N.485 (F.C.). In both these cases it was either admitted, or found as a fact, that the tenants

had been let into possession by the landlord and that consequently when the tenant claimed to possess occupancy right, it was incumbent upon him

to prove it. I think the same principle has been repeated in Nainapillai Marakayar v. Ramanathan Chettiar (1924) M.W.N. 293 : 46 M.L.J. 546 :

10 O. & A. L.R. 461 : 511 A. 83 (P.C.). That case does not in any way modify the judgment of their Lordships delivered in the preceding year. In

Nainapillai Marakayar v. Ramanathan Chettiar 46 M.L.J. 546 : 28 C.W.N. 809 : 511 A. 83 (P.C.) it is stated that the lands in respect of which a

decree in ejectment has been made are part of the endowed property of the temple and that it is not disputed that the defendants were ''tenants'' of

the temple of lands to which the suit relates. It had been definitely found by the Subordinate Judge that the plaintiffs had both varams in the lands

and consequently, it was incumbent on the defendant to prove their occupancy right. If one were to interpret the judgment otherwise, it would

appear that Chidambara Sivaprakasa Pandara Sanndhigal v. Veerama Reddi 37 C.L.J. 199 : 27 C.W.N. 245 : 49. I.A. 286 (P.C.) and

Nainapillai Marakayar v. Ramanathan Chettiar (1924) M.W.N. 293 : 28 C.W.N. 809 : 511 A. 83 (P.C.) are in conflict, and inasmuch as the

judgment in the former is not referred to in the latter, I do not think that any such inference can be drawn, if the cases can be explained in any other

manner. As I have said above, the later case follows two/prior cases in which the land itself belonged to the plaintiff, and consequently I think that

in this last case also it must be deemed that the judgment is based on such an assumption. If I am correct in this, the present suits have to be

determined in accordance with the principle laid down in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi 43 M.L.J. 640 : 37

C.L.J. 199 : 27 C.W.N. 245 : 49. I.A. 286 (P.C.) and that is, that there is no presumption that the grantee of an inam is holder of both varams. In

this view it might be advisable to set aside the finding of the Subordinate Judge and ask for another finding; but inasmuch as the facts are all before

me, I do not think it is necessary. The District Munsif has dealt with the defendants'' evidence at considerable length and has found that the

defendants and their predecessors-in interest have been in ''possession'' of the suit lands at any rate from 1843 onwards and that they have been

disposing of their rights in those lands and dealing with them as if they had this right of occupancy. There is not a particle of evidence to show that

the origin al grantee was himself in occupation of the suit lands before the grant and the only available evidence as to the tenants in possession

shows that so far back as there is any record, the defendants'' and their predecessors have been cultivating the lands and dealing with them as if

they had this right of occupancy. The learned Subordinate Judge has riot refer red to any particular facts in favour of the plaintiffs beyond reciting

the history of land tenures in this Presidency and although that history is not inconsistent with the grant of the actual land to plaintiffs it does not

support such a grant to any greater extent than a grant of Melvadram Only. Each case has to be determined on the evidence given therein, in the

present cases the District Munsif is fight in holding that the plaintiffs have not proved their fight to eject.

The lower Appellate Court''s decrees are, therefore, set aside and the decrees of the District Munsif restored with costs both here and in the

lower Appellate Court.