Veeraswamy Mudali vs Palaniappan and Others

Napier, J.—The suit from which this second appeal arises was brought in the District Munsif''s Court of Karur, by the plaintiff to recover possession of certain lands in the possession of tenants. He had previously brought two suits in respect of the same property. The first suit had been dismissed for want of a notice to quit, the second suit had been dismissed for failure to give a proper notice to quit. It is admitted that in the second suit the Court found that the defendants had no per present suit, the plaintiff relied on favour and an issue was framed on that contention; but both the lower Court have paid very little attention to this question and seem hardly to have dealt with it; but the plaintiff is undoubtedly entitled to argue this question.

The two principal findings of the Lower Appellate Court were that the plaintiff had not proved that kudivram in him, and secondly, that even if he had so proved it, he had not proved that he had a right to evict. I fail to understand why, in view of the finding of the Lower Appellate Court as to the kudivaram, the District Judge did not order the plaint to be returned for presentation to a Revenue Court.

The question of res judicata has been argued at great length by Mr. Govindaraghava Aiyar for the plaintiff, but we eventually intimated our intention not to deal with this matter at the present stage. So I will leave that question for future decision, if necessary.

The question as to the kudivaram is dealt with by the District Judge in (paragraph 3 of his judgment. He states that the previous judgment relied on, by the plaintiff did express opinions in his favour and that these opinions were formed on the basis that the burden of proof was on the defendants. He then states the law as follows: "It is for the inamdar to show either that at the time of the grant he already was in occupation or that the land was waste, when the grant to him was made." and he concludes by saying, "I think that the District Munsif was right in holding that the plaintiff has not succeeded in establishing that the land itself forms the inam, attached to the office which he holds." There was undoubtedly abundant authority for this view at the time, that the District Judge pronounced his judgment. He has set out the cases on which he relies, the latest being Suryanarayana v. Patanna [1918] 41 Mad. 1012. It is not disputed before us that the decisions of the Privy Council reported in Suryanarayana v. Patanna [1918] 41 Mad. 1012 and Venkata Sastrulu v. Seetharamudu [1920] 43 Mad. 166, as explained by the Full Bench in the reference in S.A. No. 1878 of 1919 have laid down, that the burden of proof is on the tenant and not on the plaintiff. The District Judge is, no doubt familiar with these later decisions. Mr. Ramadoss for the respondents somewhat faintly contended that the old presumption still remained in the case of a service inam. The service inamdn this case was admittedly granted by a person styling himself a Chakravarthi or Emperor. The foundation of the doctrine as laid down by the Privy Council is that inams must be presumed to be of the land, as well as of a share in the revenue, and Mr. Ramadoss admitted that S.A. No. 1878 of 1919, to which the Full Bench applied this doctrine was a service inam. In that case it was a poojari service of a temple, whereas in this case it is drummer service. There is, therefore, nothing in this distinction, and was must, therefore, call on the District Judge to submit a revised finding on the first issue in the light of the above rulings and on the documentary evidence in the case, he having already found that the oral evidence on both sides is entitled to little weight. Mr. Govindaraghava Aiyar has asked us to allow him to prove certain documents, which he did not tender in this suit, as they had been rejected in the previous suit, his contention being that these documents are admissible to prove the nature of the possession. As, however, they were tendered as evidence of a specific lease and rightly rejected as such, I do not think, that they are admissible and see no reason to allow him to tender them in this suit.

Coming to the second point, Mr. Ramadoss has contended that, even, assuming the kudivaram, to have been in the plaintiff, he must still prove his right to eject and has relied on certain decisions of this Court. I desire to express my opinion definitely that, where, this defence is sought to be used to compel the landlord to prove affirmatively the nature of the tenant''s holding, it is no longer open to the defendant since the two decisions of the the Privy Council and that of the Full Bench above referred to. It is true that in none of these cases was the point specifically decided, the reason being, in my opinion, that, where the kudivaram interest has been shown to be in the landlord, it is no longer open to the defendant to call upon the plaintiff to prove that the tenant had not at the date of suit a permanent right of occupancy. The cases relied on by the learned District Judge on this point were those quoted by the District Munsif in paragraph 28 of his Judgment. They are Venkatacharlu v. Kandappa [1892] 15 Mad. 95, Veeranan Ambalam and Others and Peria Kampalam Ambalam and Others Vs. Annasawmi Aiyar by his mother and next friend Subba Lakshmammal and Another, and Venkata Mahalakshmamma v. Ramajogi [1893] 16 Mad. 271. In addition to these, Mr. Ramadas has relied on Krishnasami v. Varadaraja [1882] 5 Mad. 345, Varadaraja v. Dorasami [1893] 16 Mad. 131, Velappa Goundan v. Doraisami Iyer S.A. No. 469 of 1917, Veeranan Ambalam v. Annasami Aiyar (sic) Muthusawmi Aiyar v. Nainar Ammal [1918] 7 L.W. 194.

I will deal with these in order. Krishnasawmy v. Varadaraja [1882] 5 Mad. 345 has in my opinion, been much misunderstood. It was not a decision of a Full Bench on a reference but was a decision in an appeal on the facts of the particular case. The plaintiff''s claim rested on an alleged muchilika executed by the tenants to Government as trustee for the temple. The defendants contended that they had previously owned the mirasi right to the land but had resigned that to the temple, retaining in themselves the permanent right of cultivation, which they had enjoyed from the beginning. Kindersley. J, decided that they had never relinquished the permanent right in themselves and that the evidence tendered to support that contention was, that the tenure was permanent. Turner, C.J., and Muthusami Aiyar, J. say as follows-

Without attempting to define what period of occupation should confer the right of occupancy--a matter which can now only be dealt with by legislation--we consider ourselves at liberty to say that an occupation of upwards of 70 years is sufficient, under the circumstances of this case, to throw, upon those who seek to disturb it, the burden of showing that the tenancy was not accompanied with a right of occupancy, and that the plaintiff has not succeeded in doing so.

The words "under the circumstances of the case" have reference to an earlier passage in the judgment which is as follows:

When there is so much evidence to show that, by the custom of the country and of the district in which the lands in suit are situated, permanent cultivators are entitled to permanent occupancy we do not see how this privilege can be refused to the defendants, whose (sic) have (sic) the lands they now hold, for at least 70 years.

This is obviously a decision on the particular facts of the case, one of the important features of which is the contention of the defendants, that the whole right in the lands was at onetime vested in them and was only acquired by the temple by relinquishment from them. It is of no use to the defendants in a case where the kudivaram right is in the landlord.

The next case is Venkatacharlu v. Kandappa [1892] 15 Mad. 95. In that case the plaintiff, an inamdar, sued to eject the defendant from certain lands. The judgment is very short and is as follows:

On the findings, of both Court it must be taken that the only facts, proved are, that the plaintiff is the Inamdar of the village, that Defendant and his father have been in occupation of the lands for 40 or 50 years as tenants.

It is clear, therefore, that there was; no evidence let in to show that the kudivaram was in the plaintiff and the decision is, therefore, of no value whatsoever.

Varadaraja v. Dorasami [1893] 16 Mad. 131, was a suit in ejectment, the land in., question being the property of the temple of which the plaintiff was the trustee; The whole question turned on the terms, on which the defendants had been let into possession in 1832, by takids and a muchilika executed by the defendants'' ancestor. The judgment states the question in the following, words, "was that muchilika of a permanent character?" and concludes as follows:

We are of opinion that there is evidence from which it can be legally inferred that the lease of 1832 was a permanent lease, and, that being, so, the plaintiff''s suit must fail.

This again is a decision on the construction of the particular document and is of no assistance to us in the disposal of this case.

The next case is Vencata Mahalakshmamma v. Ramajogi [1893] 16 Mad. 271 which was referred to by the District Munsif and relied on by the District Judge. This was not an inam case at all, but a suit by a zamindarini in ejectment against a ryot. The judgment contains the following passage:

The District Judge held that, as between the zamindar and the ryot the former was merely the assignee of land revenue, whilst the latter was prima facie the owner of the soil. * * * For the appellant it is contended, that it was for the ryot to establish his occupancy right.

The Court then proceeded to consider the facts of the case and held that there was nothing to show that the zamindar had let the ryot into possession. The Court then decided as follows

It may be that the ryot was in possession when the zamindary itself was created, or that the zamindar, as pointed out by the Judge, was a mere farmer of the revenue. In such cases, it is not unreasonable to hold that the onus of showing that the tenancy commenced under the plaintiff or his ancestors rests on the zamindar, and that until he shows it, the zamindar may be fairly presumed to hare been the assignee of Government revenue.

This proposition has repeatedly been laid down by this Court with regard to zamindary tenants, but has no bearing at all on cases where the kudivaram interest is in the landlord.

Veeranan Ambalam and Others and Peria Kampalam Ambalam and Others Vs. Annasawmi Aiyar by his mother and next friend Subba Lakshmammal and Another, , also relied on, by the District Judge was a suit by a Government ryotwari holder to eject his tenants who had been in possession for over 100 years. The Court held, that it lay upon him to show that the tenancy was one from year to year. This decision is, however, directly opposed to the recent ruling of the Privy Council in Seturatnam Aiyar v. Venkatachala Goundan [1920] 43 Mad. 567, in which their Lordships held that, in a suit brought by a Government pattadar against the respondents after due service of notice to quit, the onus was on the tenants to prove the existence of their right of permanent, occupancy. Assuming that the position of a ryotwari pattadar is analogous to that of an inamdar owning the kudivaram interest, this decision of their Lordships directly negatives the view held by the District Judge.

There remain the cases in Muthusawmi Aiyar v. Nainar Ammal [1918] 7 L.W. 194 and Velappa Goundan v. Doraisami Iyer [1917] S.A. No. 469 of 1917. In the former case the plaintiff, the trustee of a temple, under an inam granted by Government in 1865, sued to eject the defendant from certain temple lands. The case was remanded by the High Court on two findings, one was that what was granted was the land itself, and the other was that the lands were unoccupied at the time of the grant, and occupancy rights if any, must have been acquired since the grant. The Bench decided that, on the facts of the case, there was no ground for holding that the primary burden of proof, which was on the landholder, to prove the tenancy alleged by him and his right to eject had been discharged. Their Lordships were obviously influenced by the decision in Suryanarayana v. Patanna [1915] 38 Mad. 608, to which they referred which has been reversed by the Privy Council. In my opinion, the decision can no longer be said to be good law, unless it is to be supported entirely by the facts of the case. In Velappa Goundan v. Doraisami Iyer [1917] S.A. No. 469 of 1917, the same view was taken and the same observations apply. Against the view that burden lies on the plaintiff, there is first the presumption of a tenancy from year to year in leases governed by the Transfer of Property Act. Admittedly, the Transfer of Property Act does not apply, and I myself have always objected to analogies drawn from this chapter, preferring to follow English law where applicable, but other Judges of this Court have laid down that it is proper to apply such analogies. Mr. Govindaraghava Aiyar has, however, drawn our attention to a case, prior to the Transfer of Property Act, in Endar Lalla v. Lallu Hari 7 B.H.C.A.C. 111. In that case, the plaintiffs instituted a suit to recover possession of certain lands. The defendants, relying on long possession, at an invariable rent, contended that the burden of proof lay on the plaintiffs to establish their right to eject. The Bench laid down the proposition:

In all ordinary cases the presumption of law is that a tenant is a tenant from year to year, unless a larger right can be shown, by the evidence of a lease or agreement to that effect. * * * The presumption being, that a tenant is a tenant from year to year, no length of possession by itself can confer a perpetual lease. Once a tenant, always a tenant, is the rule; and, unless there is evidence of a lease, the proprietor can oust after due notice.

Thiagaraja v. Giyana Sambandha Pandara Sannadhi [1888] 11 Mad. 77, was a suit by the trustee of a temple to eject the defendants from the lands in the Tillage. The defendants had admittedly been in possession of the lands in question since 1827, which was 50 years before the date of the suit. In 1830, they had executed a muchilika for the lands to Government, as trustee of the temple describing themselves as puracudis and agreeing to cultivate the lands, no term being fixed for the holding. The Bench decided that it lay upon the defendants to show that they had any higher right than that of cultivating tenants from year to year. According to English law, where the ownership of the lands is found to be in the landlord, a presumption arises that tenants in possession are tenants from year to year, and it rests upon them to prove that the lease is either for a term, or otherwise inconsistent with the plaintiff''s right to eject. It is, of course, conceded that with regard to zamindars, the presumption being that they are only farmers of revenue, it rests on them to show that they let the tenant into possession. But in the case of an inam of the land, as in the case of the ryotwari pattadars, I am clear that the burden of proof, that the tenancy was a permanent one, rests on the tenant, and, if he is unable satisfactorily to discharge that proof, he can be ejected on proper notice to quit Mr. Govindaraghava Aiyar has urged that a permanent right of occupancy is akin to an alienation and, as such, incompatible with a service tenure. He points out that Clause 16 of Section 3 of the Madras Estates Land Act removes lands held on service tenure from the category of ryoti lands, but this is done for the purpose of preventing a service-holder from claiming to be a ryot within Clause 15. He relies on Upendra Nath Hazra v. Rant Nath Chowdry [1906] 33 Cal. 630; in which the Bench held, following an earlier decision of the same Court, that tenants of ghatwali service lands could not acquire permanent right of occupancy, the foundation of the doctrine being that it is inconsistent with the incidents of such tenure. Speaking for myself, whatever may be the case of ghatwali service, I can see nothing inconsistent. Admittedly the acquisition of such permanent rights would not prevent the resumption of the inams, if the services were not rendered, and I cannot see why the payment of a fixed rent on a perpetual tenure to a service-holder has a more serious effect on the discharge-of his duties as a drummer in a temple. Midnapore Zamindari Co. Ltd. v. Appayasami Naicker [1918] 41 Mad. 749, laid down what is undisputed law that lands held on service tenure cannot be alienated, beyond the lifetime of the holder for the time being the principle being to allow such alienation would divert the lands or their proceeds from the intended purpose; but a permanent lease No. more diverts the land than does an ordinary tenancy from year to year, and there is no authority in this Court for such a proposition. I am not, therefore, prepared to hold that permanent rights of occupancy cannot be acquired in a temple service inam.

In the result, I would hold that, where the kudivaram is found to be in the holder of a service inam, the burden lies on the tenant to prove that his holding is other than that of a tenant from year to year, and, if he is not able to establish this, he is liable to ejectment on proof of a proper notice to quit. In this view, we must call upon the District Judge for a revised finding on the second issue in the light of the above observations. Time for submission of findings one month after re opening of the District Court and It days for objections.

Odgers, J.

The questions arising in this appeal have been dealt with at length by my learned brother and I shall content myself with adding only a few words. As to the question of kudivaram, since the Privy Council decisions in Suryanarayana v. Patanna [1918] 41 Mad. 1012 and Venkata Sastrulu v. Seetharamudu [1920] 43 Mad. 166 and the explanation of them contained in the Full Bench judgment of this Court in S.A. No. 1878 of 1919, there is no room for doubt that the onus of proving a permanent occupancy right is oh the tenant. The present case cannot in this respect be distinguished from the case before the Full Bench, and in my opinion that is conclusive of this matter.

It was, however, contended that in spite of this, the onus was still on the plaintiff to establish his right to eject the tenant: in other words, it was contended that in spite of the decisions above referred to, the plaintiff was still to prove the nature of his tenant''s holding. The cases relied on by the respondents have been elaborately reviewed by my learned brother, and I do not propose to examine them again. I agree with the conclusions he has drawn as the result of his examination. There is a clear presumption in the Full Bench ruling in favour of the inamdar''s right to both varams. It may be weak or strong, but whichever it is, it must be displaced by evidence on the part of the tenant. It is therefore clear that while this presumption exists, in favour of the inamdar, it is no concern of his, to give evidence as to the nature of his tenant''s holding, unless and until the presumption in his favour has been displaced by evidence offered by the tenant, and the onus consequently shifted on the landlord by reason of his tenant''s evidence. It therefore seems to me, that the cases quoted for the respondents to the effect that there is still an onus on the plaintiff-landlord are no longer law.

I will deal with only one other point, namely, as to the allegation that a permanent right of occupancy, practically amounts to an alienation and therefore in the case of an inam grant would be illegal. We were referred to two cases, Vencateswara Yettiapah Naicker v. Alagoo Moottoo Servagaren [1859-61] 8 M.I.A. 327 and Kshetrabaro Bissoyi v. Sobhanapuram Harikristna Naidu [1910] 33 Mad. 340. In Vencateswara Yettiapah Naicker v. Alagoo Moottoo Servagaren [1859] 8 M.I.A. 327 it was held that a perpetual lease was not within the mischief of the provisions of Madras Regulation 25 of 1802 as it was not, "a sale, gift, or transfer" of the whole or any portion of the Zamindari in question. In Kshetrabaro Bissoyi v. Sobhanapuram Harikrishna Naidu [1910] 33 Mad. 340, it was held that a grant of a permanent lease was not a transfer of ownership and was not therefore an alienation. The estate in that case was a service-inam. The case in Midnapore Zamindari Co. Ltd. v. Appayasami Naicker [1918] 41 Mad. 749 simply lays down, that land held on service tenure are inalienable, beyond the life time of the holder, i.e., that he cannot make a valid transfer of the ownership to last beyond that time. The case in Upendra Nath Hazra v. Ram Nath Chowdry [1906] 33 Cal. 630 held that tenants of ghatwali service lands could not acquire permanent rights of occupancy, as the latter were inconsistent with such a tenure. I am not prepared to say that this ruling is, in fact inconsistent with the cases in Vencateswara Yettiapah Naicker v. Alagoo Moottoo Servagaren [1859] 8 M.I.A. 327 and in Kshetrabaro Bissoyi v. Sobhanapuram Harikristna Naidu [1910] 33 Mad. 340 quoted above, as it is clear that whatever may be the incidents of ghatwali tenure, the inam could undoubtedly ''be resumed, if the services were not performed. If this case is in fact inconsistent with the Madras case, then I am bound to say that I prefer to abide by the latter ruling.

I agree with the conclusions at which my learned brother has arrived and I also agree with him, as to the findings to be returned by the District Judge.

[This Second Appeal came on for hearing on receipt of findings before their Lordships, Ay ling and Odgers, JJ.].

JUDGMENT

Ayling, J.

In my opinion no good ground is shown for refusing to accept the District Judge''s finding on the first issue referred to him, "that the tharam theerva and not the land itself belongs to the plaintiff as inam."

This would be a good defence to the present suit, but we have still to consider the third issue which runs thus:

Is the defence barred as res judicata by the decision in O.S. No. 994 of 1907 and the appeal thereon?

O.S. No. 994 of 1907 and the suit out of which the present appeal arises were admittedly between the same parties, or their representatives in interest, and were brought to obtain exactly the same relief in respect of the same land. In each, the present plaintiff-appellant sued to recover possession of the suit-land from the defendants, as forming the inam to which he was entitled, and in each the same defence was raised that the inam comprised not the land, but the assessment on it. In O.S. No. 994 of 1907, the District Munsif decided this point embodied in issue 1, as well as others, with which we are now not concerned, in plaintiff''s favour, and gave him a decree as sued for. The District Judge in A.S. No. 90 of 1910 confirmed this finding, but allowed the defendants to raise a fresh defence that the suit was premature, for want of notice to quit. This he decided in defendants'' favour and accordingly directed that the suit should be dismissed. But he added: "As the plaintiff succeeded on the main contention and failed on a point taken only in appeal, it will be equitable to direct each party to bear part of the costs. The appeal is allowed. The lower Court''s order that defendants should bear all the costs in that Court will stand." In so far as the District Judge''s finding on issue 1 was liable to appeal (i.e., in so far as it involved any question of law), it was open to appeal to this Court: for, although plaintiff''s suit bad been dismissed, this finding was made explicitly the ground for directing defendants to bear all the costs in the first Court. No appeal however was filed by defendants.

The district Judge''s determination of the issue must therefore be regarded as final: and it seems to me that every word of Section 11 of the CPC applies, and that the decision operates as res judicata. It is argued that the determination of the issue was unnecessary. But the order awarding" plaintiff his costs in the first Court, which is expressly based upon it, is as much a part of the decree as the order dismissing plaintiff''s prayer for possession. The District Judge, in effect, decided all the points in dispute, and found that the plaintiff was entitled to recover possession of the land, conditionally on his giving defendants a proper notice to quit. Defendants are not entitled to re-agitate the points then decided against them.

I hold therefore that the decision in the appeal from O.S. No. 994 of 1907 operates as res judicata.

In this view, plaintiff would be entitled to a decree as sued for, but before passing such a decree we must call for a finding from the Lower Appellate Court on issue 4 Finding will be submitted within a month from this date; and 7 days will be allowed for filing objections.

Odgers, J.

I would accept the findings of the District Judge that the tharam theerva and not the land itself belongs to the plaintiff.

The question (which was net decided when the second appeal was before Napier, J. and myself) remains as to whether the matter is res judicata, by reason of the decree in O.S. No. No 994 of 1907, whereby it was declared that plaintiff as inamdar was entitled to the plaint land together with costs of the suit, but that plaintiff''s suit was dismissed, inasmuch as the notice to quit given by him was irregular (cf. District Munsif''s Judgment Ex. O, paragraph 30, confirmed by the District Judge, Ex. O 1, paragraph 5). It is to be noted that the question of notice to quit did not find a place in. the issues and was only raised before the District Judge, The point is whether this issue as to plaintiff''s title has been heard and finally decided under the provisions of Section 11, Civil Procedure Code. The defendants got a decree in their favour on the question of notice and it is contended that no adverse finding in the suit could operate as res juiicata against them. In Muthu Pillai v. Veda Viyasa Chariar [1920] 12 L.W. 277, a somewhat similar case, it was held (1) the question of title was directly and substantially in issue in the prior suit, (2) that in order to constitute res judicata the finding in the prior suit need not form the basis of the decree in that suit, and (3) that the finding in the previous suit did operate as res judicata in the present suit. It was also held in Ramakrishna Naidu v. Krishnasami Naidu [1919] 9 L.W. 180, that it was not necessary that the decision of the issue should have been the basis of the decree. On the other hand, it is contended that the decision is not final and was not necessary for the disposal of the suit, as held in Kelu Nambiar v. Chathu Nambiar [1919] 9 L.W. 84, to which my learned brother was a party There, the decision was not the basis of the decree, which was given in spite of it, and it was held that in such cases, the matter cannot be said to have been substantially in issue. Here, the plaintiff''s title was the first issue in the case and a decision was given upon it, by both Courts. It was not until the appeal that the point of the notice to quit was taken and decided against the plaintiff. Moreover the defendants might have appealed against the decree, in so far as costs were awarded against them, which award was expressly made on the ground that the finding as to title was against them. This is as much a part of the decree as anything else.

It is further contended that the latest adjudication should be taken as superseding the notice and therefore the District Munsif''s Judgment in O.S. No. 331 of 1912 (Ex. P), dated 5th June 1913, in which he dismissed the suit for want of a valid notice, to quit should be taken as the final decision. There, the question of notice to quit, was directly raised by the issues and it was the only issue decided by the District Munsif. The plaintiff''s title did not therefore come up for decision and it cannot be said to be a later adjudication on that point at all.

In Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee [1886] 13 Cal. 17, relied on for respondents, a landlord had brought a, suit in ejectmant against his tenant, who pleaded no notice to quit and permanent tenure. The suit was dismissed on the first ground, the Court also holding that the tenure was not permanent. In a subsequent suit for ejectment, between the same parties, in respect of the same holding the tenant pleaded the tenure was permanent and plaintiff was estopped by conduct from pleading that it was not. The lower Court held in defendant''s favour on the second point and dismissed the suit. The High Court in appeal held that previous decision was not res judicata, on the ground that the decree dismissing the suit was not based on the finding adverse to the defendant. The Court however held "that if they came to an opposite conclusion, the issue then decided was not an issue regarding estoppel by conduct" It is to be noted that defendant appealed against the decree in the former suit to High Court but that appeal was dismissed on the ground that he could have no appeal as the only decree passed was one dismissing the suit. That seems to me to differentiate the case and also the fact that the view of the High Court on this, point is put forward somewhat tentatively, with practically no reasons assigned and the learned Judges support their decision by an alternative.

A case in the Privy Council, Mianapur Zamindari Co. Ltd. v. Naresh Narayan Roy [1921] 48 Cal. 460 is also cited by Mr. Ramadas for respondent. There in 1877, a zamindar sued for possession and the tenants pleaded occupancy-rights and prematurity, as no attempts had been made to settle a fresh rent. The Court dismissed the suit holding that there was no occupancy right but the suit was premature. The zamindar appealed to the High Court and the tenants filed a cross-appeal to the finding that they had no occupancy-right. The High Court affirmed the decree on the ground that the suit was premature and also on the cross appeal affirmed the finding that there was no occupancy-right. Their Lordships found that this would not support an actual plea of res judicata, as the defendants having succeeded on the plea of prematurity had no occasion to go further as to the finding against them, a finding which it was their duty to displace and which duty they had not been able to perform. This appeal''s to me to be distinguishable from the case before us.

As already observed, the point of notice was not taken before the District Munsif at all. The question of title was raised as the first issue before the District Munsif, and the learned District Judge begins his Judgment by saying that the decision turns mainly on the question whether the defendants who occupy it possess occupancy-right in the land. This is discussed through three pages of print. On the question of notice, the District Judge called for a finding, on the return of which he dismissed plaintiff''s suit for prematurity but ordered that the District Munsif''s order, giving plaintiff all the costs in his Court, should stand ,and that as regards the District Court the plaintiff was to bear his own and defendants costs, where he had failed. No appeal was filed to tie High Court; the decree of the District Judge therefore became final.

This order as to costs against the defendants appears to me to effect a radical distinction between this case and those cited above for the respondents; and the costs were awarded on the ground that the question of title had been found in plaintiff''s favour. I therefore agree that the matter is covered by Section 11, Civil Procedure Code, and tie respondents are not entitled to have the matter reopened. I also agree with the order proposed, as to issue 4.

[In compliance with the order contained in the above judgment the District Judge of. Trichinopoly submitted the finding that the plaintiff was entitled to mesne-profits at the rate of Rs. 136 a year, from April, 1914, up to the date of delivery of possession, as claimed in the plaint]

[This Second Appeal came on for hearing before their Lordships Krishanan and Venkatasubba Rao, JJ.]

JUDGMENT

We are unable to understand the reasoning of the learned District Judge, in arriving at his finding, and we are therefore unable to accept it even though it is one of fact. We would call upon him to submit a revised finding on the issue in question. We think the parties may be allowed an opportunity to adduce fresh evidence on the point, as the evidence on the record seems to be too meagre to arrive at a satisfactory finding. Finding will be submitted in two-months, and 7 days will be allowed for filing objections.

[In compliance with the order, contained in the above judgment, the District Judge of Trichinopoly submitted the finding that for the 12 years for which mesne profits, were claimed in the suit, the defendants had to pay plaintiff Rs. 1,380.]

[This Second Appeal came on for hearing on the 22nd day of March, 1923, before their Lordships, Krishnara and Venkatasubba Rao, JJ.]

JUDGMENT

We regret we are again unable to accept the finding as to the mesne profits, by the learned District Judge. All the documentary evidence which the Judge himself has set out would make out the mesne profits to be much smaller than what has been found. The learned Judge has relied on the evidence of P.W. 2, but the evidence a set out by him, is that of P.W. 1. The learned Judge has not indicated why he rejects the inference from the documents, which are usually more reliable than the oral evidence. We must request the Lower Court to submit a further revised finding on the point; this time it will be on the evidence already on the record. Finding will be submitted in eight weeks. Ten days are allowed for filing objections to the finding.

[In compliance with the order contained in the above judgment, the District Judge of Trichinopoly submitted the following revised finding that Rs. 23 a year was the amount awardable as mesne profits.]

[This Second Appeal came for final hearing after the return of the revised finding before their Lordships Krishnan and Venkatasubba Rao, JJ.]

JUDGMENT

We accept the finding that the mesne profits should be awarded at Rs. 23 a year. The result is that the Second Appeal is allowed, and the plaintiff''s suit for possession is decreed with mesne profits, at the rate above-stated for three years before suit and till the delivery of possession, or for three years, whichever is earlier, from the date of this sdecree.

The parties will pay and receive proportionate costs throughout.