JUDGMENT
Tyabji, J.
1. This appeal arises out of a suit in which the plaintiffs claim possession of certain lands on the basis of a cowle, Exhibit B, granted to them or to their pre-decessor-in-title–whom. I shall include in the term “plaintiffs”–on the 1.6th July, 1883, by one P. Venkatappayya who was then owner of the land. The 1st, 2nd and 3rd defendants contend that they are entitled to continue in possession of the land.
2. The first contention of the defendants before us was that the cowle, Exhibit B, was in fact benami, that the person who, in accordance with the true intent and purpose of Exhibit B, had in fact the right to the possession of the lands was Chinna Subbayya, the father of 1st, 2nd and 3rd defendants, and that after him the 1st, 2nd and 3rd defendants were so entitled. That contention has not found favour with the lower Court : and on the evidence adduced before us, it seems to me to be impossible to come to any other conclusion. For it is admitted that the defendants (in which term I include the 1st, 2nd and 3rd defendants and their pre-decessor-in-title, Chinna Subbayya, their father) have been paying rent at the rate of Rs. 30 to the plaintiffs. It was contended before us that the Rs. 30 that has been so paid should not be taken as payment of rent. It is difficult to understand how else this sum was paid to the plaintiffs : and I have no hesitation in coming to the same conclusion as the learned Judge, namely, that the sum of Rs. 30 was in fact paid as rent and in accordance with the terms agreed upon between the plaintiffs and the defendants when the plaintiffs became entitled to’ possession of the property, and that the cowle, Exhibit B, was not a benami transaction.
3. Another ground, upon which the appellants rely before us in that assuming that the plaintiffs had any right to eject’ the defendants, that right is barred by limitation. For it is contended that the right to eject the defendants arose, if at all, when Exhibit B was executed, that was about 30 years ago : and it not having been exercised till now it is argued that the suit for ejection is barred. But the right to eject on the facts alleged and proved by the plaintiffs arose only when the defendants claimed to be in possession of the land without the permission of the plaintiffs, The plaintiffs say (and, an I have said, in my opinion, that allegation was rightly considered to be proved by the lower Courts) that the defendants have been in possession of the land with the permission of the plaintiffs as their tenants and that until quite recently, the defendants have been paying to the plaintiffs rent for being permitted to be so in possession. The suit was, therefore, in my opinion, rightly held not to be barred.
4. The third point with which 1. shall deal is whether the plaintiffs cannot succeed because there has been no notice to quit. The plaintiffs admit that they did not give any notice to quit, but they rely on the Transfer of Property Act, Section 311, clause g (2), and contend that there was a renunciation on the part of the defendants of their character as lessees by the fact that they set up a title in a third person, and that such renunciation is evidenced by Exhibits C,C., which are the pleadings in the previous litigation between the parties. In those proceedings the present defendants claimed that the plaintiffs had no right under the cowle, Exhibit B, contending that Exhibit B was in truth in favour of the defendants and not (as it purported on its face to be) in favour of the plaintiffs. As the plaintiffs derived their title from Exhibit B the denial by the defendants that the plaintiffs were entitled to any rights on their own behalf under the terms of Exhibit B, meant the denial of plaintiffs’ title on the part of the defendants. I, therefore, come to the conclusion that the learned Judge was right in holding that no notice to quit was necessary and the terms of Section 311 of the Transfer of Property Act were satisfied by the facts of this case.
5. Finally–and this is the only point in the case about which I Lave felt any doubt–
it was argued on behalf of the appellants that on all the facts found, it has not been shown that the plaintiffs are entitled to eject the defendants. It was argued on the authority of Veeranan Ambalam v. Annaswami Iyer 12 Ind. Cas. 1 : 21 M.L.J. 845 : 10 M.L.T. 185 : (1911) M.W.N. 162. Venkatacharlu v. Kandappa 15 M. 95. and Appa Bau v. Subbanna 13 M. 60. that it is for the plaintiff to affirmatively establish that he has a right to eject. The result of these authorities seems to be
(1) that in the case of zamindari lands there is a presumption (which presumption may, however, be rebutted by evidence in any particular case) that the zamindar, though he may be spoken of as the landlord, has not the whole ownership of the land but only a limited interest in it : that interest is originally derived from the zamindar having been the collector of the revenue : it does not make him the absolute owner of the land, but the ownership is divided so to say between him and the actual occupant of the land.
(2) Secondly, in the case of lands other than zamindari lands also the authorities seem to establish that there may be circumstances from which it may appear that the person in actual possession of the land has a right to continue in possession which cannot be terminated so long as the tenant continues to do that which he has been doing in the past, in other words, that the relationship between the actual holder of the land- and the person claiming to be the absolute owner of the land is a relationship fixed in perpetuity so that neither party can alter the tenure of the land without the consent of the other : the relationship so existing may not be exactly the relationship existing between the zamindar and a person having the occupancy right over the land in question.
6. The defendants claim that the present case falls under the second head to which I have just referred. Their contention is that on the facts as they appear on a consideration of all the evidence the presumption to which I have referred must operate and that presumption not having been rebutted by any sufficient evidence adduced by (he plaintiffs, in the result we must hold that the defendants have some such indefeasible right as I have just referred to. It seems to me, however, that the contentions of the parties and the facts admitted on the pleadings leave no room for our coining to the conclusion to which the defendants now desire us to come. For both parties claim under Venkatappayya by virtue of the cowle, Exhibit 13, and the question on which they have been at issue is who was entitled under that cowle. It is not alleged by the defendants, and it was not their case, that irrespective of Exhibit B and anterior to it there were certain rights vested in the defendants which could not be altered by any dealings with the property purporting to be made by Venkatappayya in favour of the plaintiffs or any other person : that is the only basis on which this contention can be put forward. But assuming that the defendants can be allowed now to contend that they had certain indefeasible rights in themselves and that they cannot be ejected from these lands so long as they continue to pay a certain sum to Venkatappayya and the persons deriving title from him I can only say that on the evidence that is adduced before us, and on the facts relied upon by the defendants themselves, it seems extremely unlikely that they should have had any such right. That contention seems to me to be quite inconsistent with the case with which both parties came into Court and with the case of the defendants themselves. The case of Veeranan Ambalam Annaswami Iyer 12 Ind. Cas. 1 : 21 M.L.J. 845 : 10 M.L.T. 185 : (1911) M.W.N. 162. Venkatacharlu v. Kandappa 15 M. 95. is strongly relied upon by the appellants. In that case the tenants had been in possession for about a hundred years and they had purported to deal with the property in a manner which furnished indications that they had certain indefeasible rights in the land. It is under such circumstances, it seems to me, that the presumption arises, or as 1 should prefer to say the inference may legitimately be drawn, that the tenant is entitled to continue in possession for all time on the same terms on which it is shown that he has been holding possession in the past : for, from the long continued possession and from dealings in the past, the most natural inference is that the tenants had some such indefeasible rights. That presumption cannot be raised on the facts alleged by the defendants and on the contentions contained in their written statement. The presumption cannot be raised indiscriminately and irrespective of the particular circumstances in every case where the relationship of landlord and tenant is established. For these reasons, I consider that this appeal-should be dismissed with costs.
Spencer, J.
7. I concur.
