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Judgment
Venkataramana Rao, J.—This second appeal arises out of a suit in ejectment instituted by the trustee of Kumara Koil Sri Subramania
Swami temple in Ellinganaickenpatty village, Sattur taluk. The case for the plaiatiff is that the suit land forms part of an inam wherein the temple
owns both the warams, that the second defendant was in occupation thereof as a tenant at will, that in execution of a decree obtained by the first
defendant against the second defendant the first defendant purchased the said property and was in possession of the same. During the pendency of
the execution proceedings a claim was preferred on behalf of the temple alleging that the second defendant had no saleable interest therein and the
property belonged to the temple but the claim was dismissed. Hence the present suit was filed for a declaration of the temple''s right to the land and
for delivery of possession thereof. The defence is that the temple owned only the melwaram right and the kudiwaram right had always been in the
tenant of the inam lands and therefore was in the second defendant and that in any event the plaintiff was not entitled to eject the second defendant
and therefore the suit would not lie.
The main questions in dispute between the parties therefore are whether the plaint temple is the owner of both the warams and even assuming it
is, is the second defendant liable to be ejected therefrom. The learned District Munsiff dismissed the plaintiff''s suit holding against the temple on
both the questions but the learned Subordinate Judge reversed his decision. In my opinion, the learned Subordinate Judge misdirected himself on
questions of law bearing on the said issues in arriving at his conclusion and threw wrongly the onus on defendants 1 and 2. The learned
Subordinate Judge in paragraph 6 of his judgment states thus:
When once it is conceded that a tenant is a kudiwaramdar paying rent or melwaram to the melwaramdar, the relationship of landlord and tenant is
established between them and the burden of proving full occupancy rights will be upon the defendant.
Again in paragraph 7 of the judgment he remarks:
When once it is conceded that they are occupancy tenants, according to their view, the relationship of landlord and tenant is established and the
burden of proof is heavily upon the second defendant, and, after him, upon the first defendant, to prove such rights, second defendant and his
father, therefore, would have come into possession of the land only under a right derived from these trustees or their predecessors-in-title. They
are only tenants at will liable to be ejected at any moment by the trustees.
The learned Subordinate Judge purported to follow the decision in Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 which in a way
supports him. It seems to me the view of law enunciated above is fundamentally opposed to the conception underlying the system of tenure which
recognises kudiwaram and melwaram as distinct interests in land and is based on a misapprehension of some of the decisions of the Privy Council
referred to by both the learned Subordinate Judge and the, learned Judges in Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583. In (1897) 7
MLJ 251 , Subramania Aiyar, J., points out that there is no substantial analogy between an English tenant and an Indian ryot and that the English
rule embodied in Section 106 of the Transfer of Property Act should not be applied, and after citing the following passage from the. proceedings of
the Board of Revenue dated 5th January, 1818, regarding the nature of the rights of the ryots in the various parts of the Presidency, namely,
whether rendered in service, in money or in kind and whether paid to rajas, jagirdars, zamindars, poligars, mittadars, shrotriemdars, inamdars or to
Government officers, such as tahsildars, amildars, amins or thanadars, the payments which have always been made are universely deemed the dues
of Government"", observed thus:
To treat such a payment by cultivators to zamindars as ''rent'' in the strict sense of the term and to imply therefrom the relation of landlord and
tenant so as to let in the presumption of law that a tenancy in general is one from year to year, would be to introduce a mischievous fiction
destructive of the rights of great numbers of the cultivating classes in this province who, have held possession of their lands from generation to
generation.
AIR 1922 292 (Privy Council) approved this view and cited the above passage from the Board of Revenue proceedings at page 602 as laying
down correctly the place of the cultivating ryots in the agricultural economy of Southern India. Therefore the observations of Wallace, J., in
Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 ""that a kudiwaram holder is a co-owner with his landlord and is not a tenant is not one that
has been advanced or approved by any decision of the Privy Council"" is not strictly accurate in view of the observations of the Judicial Committee
in AIR 1922 292 (Privy Council) . When an inamdar comes to Court alleging that he is the owner of both the warams, no presumption can be
made that the grant was of both the warams and it is incumbent upon him to prove the affirmative of the issue. Even assuming that he establishes
that he is the owner of both the warams in order to sustain an action in ejectment, he must prove that, the defendant was let in under a terminable
tenancy which entitled him to eject him from the land. There is nothing in the decisions of the Privy Council laying down a different view. In
Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 Wallace, J., referring to AIR 1924 65 (Privy Council) and AIR 1922 292 (Privy Council)
observed thus:
It must be admitted that there is a difficulty in reconciling the two decisions which appear, if we may say so with respect, to speak also with diverse
voice on the question whether occupancy right can be obtained by adverse possession and prescription. But AIR 1924 65 (Privy Council) is the
latest decision and is binding on us and we cannot refuse to follow where it leads.
With great respect to the learned Judge AIR 1924 65 (Privy Council) does not enunciate any rule which is opposed to the conception which
underlies the relationship between a melwaramdar and a kudiwaramdar. In that case it will be seen that the tenants were let into possession under
Muchilikas which entitled the landlord to eject the tenants (p. 354). That the case proceeded upon this view is clear from the following passage in
the judgment of Sir John Edge:
In 1870, Sir C.H. Scotland, C.J., held that when a tenancy in the Presidency of Madras commenced under a terminable contract there was nothing
to prevent the landlord from ejecting the tenant at the end of the term from the lands which had been let to him (p. 354).
It was in relation to this conception of landlord and tenant that the learned Judge made the following observation a little lower down:
No tenant of lands in India can obtain any right to a permanent tenancy by prescription in them against his landlord from whom he holds the lands.
The observations to a similar effect on p. 344 must be understood likewise and in the earlier part of the judgment, it was pointed out that it was
not disputed that the defendants-were tenants of the temple, the landlord in that case. In Sri Sri Sri Krishna Chandra Gajapathi Narayana Deo
Maharajulugaru, Zamindar of Parlakimedi and Trustee of the Gods Sri Ramaswami and Sri Jagannadhaswami of Parlakimedi Vs. Yalla Ramayya
(dead) and Others, , Phillips and Madhavan Nair, JJ., examined the scope of the Privy Council decision in AIR 1924 65 (Privy Council) and
understood the said decision as not laying down any rule which is inconsistent with that laid down in AIR 1922 292 (Privy Council) . At page 514
Phillips, J., observed thus:
I had to consider this point, sitting as a single Judge, in Periakaruppa Thevan and Others Vs. Aiyanarsand Kaniyalaswamigal Kovil Devasthanam
of Koshadai and Others, and there I came to the conclusion that the decision in AIR 1924 65 (Privy Council) by which the burden of proving
occupancy right is thrown on the tenant is only applicable in cases where the inamdar is proved or admitted to be the owner of the land itself. A
closer scrutiny of the judgment in AIR 1924 65 (Privy Council) confirms me in this view.... The words ''tenant of lands'' must mean ''tenant of lands
belonging to his landlord'', that is to say, that the landlord has a right not merely to the melwaram but to the land itself.
Madhavan Nair, J., at pages 523 at 524 observes thus:
The dictum of the Privy Council as regards the burden of proof is based upon two decisions referred two by their Lordships.... The facts of these
cases and observations show that in both of them, as pointed out by my learned brother, it was either admitted or found as a fact that the tenants
had been let into possession by the landlord who was the absolute owner and that consequently when the tenant claimed to possess occupancy
right it was incumbent on him to prove it. When similar circumstances arose in AIR 1924 65 (Privy Council) their Lordships affirmed the same
principle.... When the landlord owns both the melwaram and the kudiwaram interests in the land and the tenant sets up occupancy rights in such
land, the burden of proving that he has such rights is on him. If the dictum referred to in AIR 1924 65 (Privy Council) is thus understood it is not
inconsistent with the decision in AIR 1922 292 (Privy Council) .
The learned Judges in Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 do not notice this decision at all. In Basiruddin Sarkar v.
Sahebulla Pramanik 32 C.W.N. 160 Mukerji, J. and Mallik, J., observed thus:
In an action in ejectment one of the things that the plaintiff must prove is his title to immediate possession. This is a proposition as old as the hills. In
a case where the defendants'' tenancy is admitted - an admission that involves the admission of the defendants'' right to be in possession - the
plaintiff must necessarily establish as to how he is entitled to possession; in other words, how the tenancy has come to an end.
After referring to the Privy Council decisions in AIR 1920 67 (Privy Council) and to AIR 1924 65 (Privy Council) they remarked thus:
In my opinion, the decisions of the Judicial Committee do not indicate that their Lordships ever intended to depart from these elementary rules. In
both the cases the plaintiff''s title to the lands was conceded, and notices by which the defendants'' tenancies were terminated were not disputed. In
neither case had any grant been alleged, asserted, or admitted on behalf of the plaintiff, but inasmuch as the defendants had been in occupation on
payment of rent, a tenancy from year to year terminable on notice was all that was conceded.
In Bollapragada Subbarayudu and Others Vs. Valluri Narasimha Rao, , their Lordships Spencer and Kumaraswami Sastri, JJ., after referring
to the Privy Council decision in AIR 1924 65 (Privy Council) laid down the law thus:
When a plaintiff seeks to eject a defendant from possession on the ground that the latter is his tenant whose tenancy has been terminated, he must
prove not only that the defendant is his tenant as alleged, if that is denied, but also his right to eject. In order to prove a right to eject, he must
necessarily show that the tenancy is a terminable one and has been validly terminated. This onus is unaffected by any defence of permanent rights
of occupancy that the defendant may set up but fails to prove.
The same view was enunciated by Spencer, J., in Subramania Aiyar alias Gurumurthi Aiyar Vs. Onnappa Goundan and Others, , when he
stated that the principle of the decision in Venkatacharlu v. Kandappa I.L.R.(1891) 15 Mad. 95 is unaffected by any decision of the Privy Council.
The learned Judges in Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 do not advert to either of the above cases. I respectfully agree with
the views expressed in these decisions, in regard to the inamdar''s right to eject and that of Phillips and Madhavan Nair, JJ., in regard to the scope
of the Privy Council decision in Zamindar of Sri Sri Sri Krishna Chandra Gajapathi Narayana Deo Maharajulugaru, Zamindar of Parlakimedi and
Trustee of the Gods Sri Ramaswami and Sri Jagannadhaswami of Parlakimedi Vs. Yalla Ramayya (dead) and Others, and prefer to follow them.
The judgment of the learned Subordinate Judge is therefore considerably vitiated by his wrong approach of the questions which he had to
decide. I have to set aside his findings and call for revised findings in the light of the remarks made in my judgment. The learned Subordinate Judge
is therefore directed to submit his revised findings on the evidence on record on the following questions:
(1) Whether the plaintiff is the owner of both the warams.
(2) Whether the second defendant has occupancy rights in the suit property.
(3) Whether the plaintiff h entitled to eject the second defendant from the land.
Time for the return of the findings is six weeks from the date of receipt of this order and objections ten days.
[In pursuance of the directions contained in the above order the Subordinate Judge of Ramnad submitted Findings.]
This second appeal coming on for final hearing after the return of the findings of the lower appellate Court upon the questions referred by this
Court for trial, the Court delivered the following
JUDGMRNT
I accept the finding, set aside the decree of the learned Subordinate Judge and restore that of the District Munsiff with costs throughout.