Posted On by &filed under High Court, Madras High Court.

Madras High Court
Aiyanars And Kaniyala Swamigal … vs Periakaruppa Thevan And Ors. on 11 February, 1929
Equivalent citations: AIR 1929 Mad 617, 118 Ind Cas 279
Author: S Ayyangar


Srinivasa Ayyangar, J.

1. These Letters Patent Appeals have been preferred from the judgment of Phillips, J., sitting as a single Judge and against his decision allowing certain second appeals and restoring the decrees passed by the District Munsif who dismissed the plaintiffs’ suits. The plaintiffs are thus the appellants before us.

2. The first point taken on behalf of the appellants is that the learned Judge erred in considering that the burden of proof in the suits was wrongly laid on the defendants by the learned Subordinate Judge in the lower appellate Court. We have perused the judgment of the lower appellate Court carefully, and, though the Subordinate Judge at first begins by stating the question for determination correctly to be whether the grant by the Nawab of Walajah which was confirmed by the British Government includes both the melwaram and the kudivaram and by observing that there is no presumption either way in such cases, he later on proceeds to lay down 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 by the Nawab of Walajah in pre-British days. It is clear that in the nature of things it is impossible for the tenants to adduce any such evidence. We agree with Phillips, J., that the judgment of the learned Subordinate Judge in the lower appellate Court was vitiated by his having Wrongly cast the initial burden in that manner. If, as decided by their Lordships of the Judicial Committee in Sivaprakasa Pandara Sannadhi v. Veeramma Reddi A.I.R. 1922 P.C. 292, there is no presumption either way, the plaintiff has undoubtedly to begin by making out his own title to the reliefs claimed. If, however, he should succeed in establishing that the defendants have been holding the lands as his tenants, then undoubtedly as observed by their Lordships in Nainapillai Maracayar v. Ramanathan Chettiar A.I.R. 1924 P.C. 65, the burden of establishing the right of permanent occupancy will be on the defendants. Their Lordships observe at p. 344 (of 47 Mad.) as follows:

It cannot now be doubted that when a tenant of lands in India, in a suit by his landlord to eject him from them sets up a defance that he has a right of permanent tenancy in the lands, the onus of proving that he has such right is upon the tenant.

3. But before the burden can be so cast on the defendant-tenant it is clear that the legal relationship between the plaintiff and the defendants must be established to be that of landlord, and tenant, Such a legal relationship may be established or inferred in various ways, and it is not necessary now and here to discuss in the abstract any of the matters that have been argued before us as to whether the mere use of the expressions “kudiyaram” and “melvaram” are or are not sufficient to constitute such relationship. We are not satisfied that there is any proper finding in this case that the defendants have been holding the lands in question as tenants under or from the plaintiffs or any of their predecessors-in-interest. We, therefore, agree with Phillips, J., that it was necessary in these ca9es to have fresh findings on the questions of fact. But the learned Judge instead of remanding the cases to the lower appellate Court for fresh findings has purported to deal even with the issues of fact himself and it is not disputed before us that the learned Judge arrived at such findings without even affording an opportunity to the plaintiffs appellants before us to advance their arguments with regard to the same. On this ground alone it follows that the decrees passed by the learned Judge cannot be regarded as proper. But before we can finally decide the points that arise it is necessary that findings should be recorded by the lower appellate Court on the following two questions:

1. Whether the defendants have been holding the suit lands as tenants under or from the plaintiffs, or any of their predecessors-in-interest?

2. Whether the defendants have a right of permanent occupancy in respect of the suit lands?

4. Findings on the above issues will be arrived at by the lower appellate Court, namely, the 2nd Additional Subordinate Judge’s Court at Madura on the evidence already on record. Time for return of findings six weeks from the date of receipt of the order and ten days for objections. (After the findings on both the above questions were received, the case came up before their Lordships and the following judgment was delivered).

Wallace, J.

5. This batch of appeals is based on a set of suits by the plaintiffs as trustees of temple inam lands to eject the defendants therefrom on the ground that they are yearly tenants under oral leases who had refused to surrender their holdings at the end of the lease period after notice to quit. The defence was that the defendants held a right of permanent occupancy in the holdings. The suit property, it may be observed, is not in an “estate” but in a ryotwari tract. The trial Court held on the main question, viz., whether the defendants had a right of permanent occupancy, that defendants had by long enjoyment acquired that right, presumably holding, but not finding, that such acquisition by prescription is possible. The lower appellate Court on appeal held that the kudivaram right was with the plaintiffs and reversed the original Court’s decree. On second appeal Phillips, J., held that the judgment of the lower appellate Court was vitiated by its having wrongly cast the burden of proof on the defendants, and he himself proceeded to come to findings of fact on the evidence before him. On these, he restored the decrees of the District Munsif. The Letters Patent Appeals were preferred against that decision to a Bench of this Court which held that the plaintiffs had not been afforded sufficient opportunity of presenting their case before the learned Judge and that Bench remanded the oases to the lower appellate Court for findings on two points, viz., whether the defendants have been holding the suit lands as tenants under or from the plaintiffs or any of their predecessors-in-interest, and secondly, whether the defendants have a right of permanent occupancy in respect of the suit lands. Findings on these have now been received and are in favour of the plaintiffs. The defendants attack the findings. We have heard arguments thereon and have now to decide the Letters Patent Appeals.

6. The most important issue between the parties is whether the kudivaram right is held by the plaintiffs or by the defendants. The plaintiffs are the hereditary pujaries of the Kaniyalaswami and Ayyanars temples in the villages of Kochchadai and Virattipattu, Madura Taluk, Madura District. In the present appeals we are concerned only with the minor inam lands about 7 acres of the’ Ayyanar temple in Kochchadai village. The plaintiff’s claim that the suit lands are manibam lands granted by the Carnatic Rajah for doing pujari service to the. temple. The defendants maintain that the manibam grant was of the melwaram only. They admit that they or their predecessors-in-title have been paying melwaram all along to the plaintiffs and their predecessors.

7. The frame of the issues which the Letters Patent Appeal Bench sent down for findings was based on the ruling of the Privy Council in Nainapillai Mara-cayar v. Ramanathan Chetti, a very similar case to the present, where at p. 344 (of 47 Mad.) their Lordships say:

It cannot now be doubted that when a tenant of lands in India, in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent tenancy in the lands, the onus of proving that he has such a right is upon the tenant.

8. That Bench did not then decide, but left if open for decision, whether the admitted relationship of melvaramdar and kudivaramdar was sufficient in itself to constitute the relationship of landlord and tenant. The contention that it is not has been raised before us now, but in a rather tentative fashion, by the defendants but we do not think that there is anything in the contention. The position that a kudivaram holder is a co-owner with his landlord and is not a tenant is not one that has been advanced or approved so far as we know by any decision of the Privy Council. The Privy Council case already referred to in Naina Pillai v. Ramanathan Chetty proceeds throughout on the footing that one who admits he is a kudivaramdar admits also that he is the tenant of his melvaram. In that case the defendants admitting that the melvaram rights were in the temple and claiming that the kudivaram rights were in themselves, did not dispute that they were tenants of the temple and their. Lordships clearly define the term “permanent occupancy” as the right of a tenant, remarking at p 344:

a permanent right of occupancy in land in India is a right, subject to certain conditions, of a tenant to hold the lands permanently which he occupies.

9. Phillips, J., was inclined to hold that if this is a correct inference, Naina Pillai v. Ramanathan Chetty is in conflict with the previous ruling of the Privy Council in Sivaprakasa Pandara Sannadhi v. Veeramma Reddi. 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 voices on the question whether occupancy right can be obtained by adverse possession’ and prescription. But the Naina Pillai v. Ramanathan Chetty is the latest decision and is binding on us and we cannot refuse to follow where it leads. It is true that it was held as a fact in Naina Pillai v. Ramanathan Chetty that at the time of the re-grant of the inam to the temple there was no proof of there being any tenant of land in the village who had a right of permanent occupancy but that again assumes that any such proof would still be proof of tenancy and would not be proof of no tenancy. The various Privy Council rulings under the Madras Estates Land Act have in our opinion invariably regarded the kudivaram ryots in an estate as tenants of the landholder. Even Sivaprakasa Pandara Sannadhi v. Veeramma Reddi, which was another case of land under a temple, while no doubt deciding that tenants can acquire occupancy right by prescription, itself describes the successful defendants even after such acquisition as “cultivating tenants”; and ‘there is no hint in it of an idea that on the acquisition of occupancy right, the tenancy ceases to be a tenancy. In any case, even if it be held that “tenant” does not cover one’ who is found to be cultivating under an overlord, unless the correct inference from the facts is that he was let into cultivation by that overlord, that inference will follow in this case as in Naina Pillai v. Ramanathan Chetty from the absence of any evidence that at the time of the grant of the inam there were any tenants of land of the inam who had any right of permanent occupancy. The lower appellate Court in its findings has come to the. conclusion on the first issue sent down that the defendants are tenants of the plaintiffs and in our opinion for reasons given that finding is not open to attack.

10. That being so, the defendants by their admission that they pay melwaram to the plaintiffs admit that they are tenants of the plaintiffs. On that relationship the plaintiffs have a prima facie’ right to eject them, and, as the Privy Council had laid down, the onus there-fore rests on the defendants to show that they possess such right of occupancy in their holdings as will prevail against the plaintiff’s prima facie right to eject. The lower appellate Court has found that the defendants have not discharged that onus and has held that they have no occupancy rights. This is a finding of fact not open to be traversed in a Letters Patent Appeal from a second appeal unless it is based on an error of law or a fundamental misunderstanding of the case or a perverse misappreciation of the evidence or on no evidence at all. The main ground of attack on it before us is that the Subordinate Judge’s argument is inadequate, as he merely infers the absence of occupancy right from his conclusion that the inam grant included the kudivaram also, and that he has misunderstood the scope of the plaintiff’s documents and unduly depreciated those of the defendants. (Here the judgment considers evidence and concludes). We can, therefore see no ground for not accepting the other finding of fact by the Subordinate Judge that the occupancy right is with the plaintiffs.

11. The next point urged is that even on that footing the suit ought to have been dismissed because the defendants had no legal notice to quit. It is argued that from the facts found this Court is bound to draw at least an inference that the defendants were tenants from year to year who are entitled in law to reasonable notice to quit. The actual notice given by Ex. 1, series on 10th July 1915 was three days, on the footing of an oral lease for one year. This point was not argued before the Bench at the first hearing of these Letters Patent Appeals and was not included in the order of remand for findings. We therefore have to go back now to the judgments of the first Court and of the lower appellate Court. The defendants put forward in their pleadings only one case, viz., that of occupancy right, and no alternative case of a lease from year to year requiring notice, although they added as part of their case that the notice given was not valid. The plaintiffs put forward alternative cases, viz., an oral lease for one year and that they were in any case entitled to eject as being the holders of both varams. The third issue which raised the question of notice to quit must be taken to have been raised on the pleadings and on this issue the District Munsif held that for -the purpose of the suit based on title there was no valid notice to quit. He gives no reasons for holding that the notice given is not valid and does not decide whether or not it was reasonable. The lower appellate Court held that no notice was at all necessary, apparently because it held that the oral lease was proved and that defendant’s denial of the plaintiffs’ title in a previous set of suits rendered the issue of a notice to quit unnecessary. Clearly the Courts of fact had not then so far given any proper finding as to whether the notice was reasonable or not. In the appeal petition before this Court in second appeal it was urged that the lower appellate Court erred in holding that no notice was necessary but the point does not seem to have been argued before Phillips J. When the Letters Patent Appeal Bench first heard the appeal, the point was certainly not mentioned. Therefore if the question of the reasonableness of the notice is a question of fact, we have not got any findings of the lower Courts there-on nor would we at this late stage be disposed to call for such findings. It is a matter which ought to have been raised specifically in the lower Courts or at the latest when the Letters Patent Appeal Bench was sending the case down for findings on the other points of fact. It is urged by the defendants, however, that the point is a pure point of law and that therefore we may now record a finding on it ourselves. It is difficult to see how it can be deemed to be a pure point of law. Let us take it for purposes of argument that the legal presumption is, in the absence of findings to the contrary, that a tenancy is from year to year : see Veerasami Mudali v. Palaniappan A.I.R. 1924 Mad. 626, which in fact is what the learned Subordinate Judge on remand has himself held in the course of his judgment, though to draw this presumption in the present case is to presume in favour of the defendants what they never contended for themselves. Let us also take it for purposes of argument that a mere disclaimer in a written statement in the suit under trial is not sufficient to absolve the landlord from the necessity of giving reasonable notice to quit: see Chinna Narayudu v. Harischendra Deo [1904] 27 Mad. 23 Vithu v. Dhoni [1891] 15 Bom. 407 and Rama Ranahhod v. Abdul Rahim A.I.R. 1921 Bom. 395. But the present case is not a case in which no notice was given, and the question to be decided is reduced to whether the notice given was reasonable or not. There can be no doubt that this is a question of fact to be decided on the circumstances of each case. If, for example, the defendants had not repudiated the plaintiffs’ title in their written statements in the present suits, it may be held that notice of less than a month given after the end of the fasli is not reasonable : see Pranambal Achee v. Palaniappa Mudaliar [1893] 3 M.L.J. 222. On the other hand, it might be correct to hold that a notice which does not ask the tenant to quit at the end of the year is reasonable : see Gangadaran Pattar v. Manavikraman [1917] 6 M.L.W. 491 and Jaru Pujari v. Somkakhe A.I.R. 1925 Mad. 316, or it may be correct to hold the contrary: see Hemangini Chowdrani v. Sri Govinda Chowdharri [1902] 29 Cal. 203. In Peria Karuppan v. Subramanian Chetti [1908] 31 Mad. 261 a Bench of this Court decided that 15 days’ notice to a cultivating tenant in the middle of the cultivating season is not sufficient. In that case, the tenant had not until the suit denied the plaintiff’s title as his landlord. It cannot be maintained that this decision lays down or intended to lay down an invariable proposition of law. In the case in Vithu v. Dhoni the law, viz. Section 84, Bombay Land Revenue Code, was definitely violated by the short time given in the notice to quit.

12. Whether the notice given in ‘the present case was reasonable or not appears to us therefore a pure ‘question of fact. We find that it was not put in issue directly and we have no findings of the Courts of fact on the point. It might be that, having regard to the fact that in previous suits in 1915 two years before the present suits which the plaintiffs withdrew because of an objection regarding non-joinder-defendants had denied their title to eject, the Courts of fact might hold that the very brief period given in the notice to quit was reasonable. I myself am not prepared here either to remand the case for another finding of fact’ when the defendants could have asked for a finding at the time of remand by the Letters Patent Appeal Bench or to decide as a point of law that the notice given was unreasonable especially now that so much time has elapsed within which the plaintiffs-might, if the defendants had raised the point earlier, have withdrawn their suits and given longer notices to quit. I would therefore accept the findings that the plaintiffs have a right to eject the defendants. We allow the appeal, set aside the judgment of the learned Judge and restore the decree of the Subordinate Judge with costs to the plaintiffs in all Courts.

Odgers, J.

13. I entirely agree with the judgment that has just now been pronounced by my learned brother. On the question of notice this case does not fall under the provisions of the Transfer of Property Act in this respect and all that is necessary is a reasonable notice to the tenants who have been found to be not tenants from year to year but tenants for a year. The learned Subordinate Judge-in the first instance found that no notice-to quit was necessary at all and that the defendants had denied the title of the plaintiffs which was not disputed before him in the written statement filed in the prior cases in which the suits were withdrawn. I am of opinion that not only was no case of a tenancy from year to year set up in the lower Courts but that no question of insufficiency of notice was set up either. The latter question was not raised before the learned Judge (Phillips, J.) from whose decision these Letters Patent Appeals are taken on before Wallace and Srinivasa Iyengar, JJ. I do not regard it as a pure question of law which can be raised for the first time before us sitting in Letters Patent Appeal. This case has had a very long history and has been before numerous Courts and it is in my opinion inadvisable to allow it to be raised at this stage. If I am called upon to decide the matter as a question of fact, which I would naturally decline to do in second appeal, I should be inclined to hold that the defendants have had ample notice of the plaintiffs’ intention to terminate their tenancy.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

109 queries in 0.175 seconds.