JUDGMENT
Anantakrishna Ayyar, J.
1. On the allegation that the defendants were chalgeni tenants under the plaintiff and that the tenure had been determined by due notice to quit the plaintiff instituted the original suit to recover possession of the land with some profits. Both the lower Courts have dismissed the plaintiff’s suit. Hence, this second appeal has been preferred by the plaintiff.
2. The first point noted by the lower appellate Court for decision is: “Do the defendants hold the suit property on kayamgeni or chalgeni?” The finding upon this point is contained in paras. 8 and 9 of the lower appellate Court’s judgment. After noticing that the defendants had been paying only a uniform rent of Rs. 18 per annum, that in about 1902 or 1903 the defendants refused to pay increased rent, and that in about 1912 the defendants informed the plaintiff under Ex. O (reply notice) that they were holding the properties as kayamgeni tenants, the lower appellate Court proceeded to state as follows:
In these circumstances, it seems to me that a presumption has to be made in favour of the defendants that the tenure is kayamgeni or mulgeni : Kittu Kegadthi v. Channamma Shettathi [1907] 30 Mad. 528 and Raghavacharlu v. Secy. of State [1915] 28 I.C. 599.
3. The learned Counsel for the appellant relies upon the observations of their Lordships of the Privy Council in Nainapillai Marakayar v. Ramanathan Chettiar A.I.R. 1924 P.C. 65 that
the onus of proving that they had a permanent right of occupancy in lands was upon the defendant who alleged it as a defence to a suit by their landlord to eject them, and that proof of long occupation at a fixed rent did not satisfy that onus.
4. With reference to the Privy Council case quoted before him, this is what the learned Subordinate Judge observed:
But that was a case from the Tanjore District, in which the defendants claimed a permanent occupancy right. I do not think that the said ruling has application to the kayamgeni or mulgeni tenure, which is special to South Kanara. I think this Court is bound by the two rulings of the Madras High Court quoted above, which have special reference to such tenures, so long as they are not overruled.
5. The lower appellate Court therefore held that the defendants were kayamgeni tenants, and dismissed the plaintiff’s suit for possession.
6. The learned advocate for the appellant argued that the learned Subordinate Judge evidently thought that the decisions in Kittu Kegadthi v. Channamma Shettathi and Raghavacharulu v. Secy. of State decided a point of principle peculiar to the South Kanara District only, and that the decision of the Privy Council in the case reported in Nainapillai Marakayar v. Ramanathan Chettiar should not be taken to have any application to the South Kanara District, as the learned Subordinate Judge observed, ‘so long as the two Madras-decisions are not overruled,” The effect of the Privy Council decisions in Nainapillai Marakayar v. Ramanathan Chettiar on the two decisions of this Court referred to by the learned Subordinate Judge was pointed out by Krishnan, J., in S.A. No. 850 of 1921. After quoting the following passage from the judgment of their Lordships of the Privy Council in the case reported in Nainapillai Marakayar v. Ramanathan Chettiar, namely:
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, right is upon the tenant,
the learned Judge proceeded to observe as follows:
The question of the burden of proof in such cases has been considered by the Privy Council in two recent cases. Their Lordships have now laid down that where the relationship of landlord and tenant is admitted by a tenant, it is for the tenant if he sets up a permanent tenancy in his favour to prove that permanent tenancy. The old authorities cited by the District Judge cannot therefore be taken to be good law any longer as regards the question of the burden of proof. In this view I cannot accept the District Judge’s disposal of the case on the finding that the landlord has not proved that the tenancy of the defendant is under chalgeni lease. He must consider the whole of the evidence and come to a definite conclusion whether the defendant has established that his tenure is a kayamgeni tenure. I must call for a fresh finding on the evidence on record.
7. I have therefore a recent pronouncement by a learned Judge of this Court in a second appeal from South Kanara that the old authorities
cannot therefore be taken to be good law any longer as regards the question of burden of proof.
8. Similar view has also been expressed by Reilly, J., in S.A. No. 480 of 1924. This is what the learned Judge said:
The proposition, that in South Kanara. there is no presumption against a tenant having permanent occupancy right and no burden upon him to prove that right if he sets it up, can hardly be maintained after the decision of the Privy Council in Nainapillai Marakayar v. Ramanatham Chettiar which appears to me to be applicable to South Kanara as to other parts of India and has been applied to South Kanara in S.A. 850 of 1021.
9. It is therefore clear that the most (recent decisions of this Court relating to the South Kanara District have laid down that the ruling of the Privy Council in the case reported in Nainapillai Marakayar v. Ramanathan Chettiar should be as much applied to cases between landlord and tenant arising in South Kanara as elsewhere in the Presidency.
10. The learned advocate for the respondent however argued that one might as well ignore the last few sentences in para. 8 of the learned Subordinate Judge’s judgment; and he further contended that the learned Subordinate Judge had mentioned circumstances from which it was open to him to come to the conclusion that the defendants had proved mulgeni right set up by them. The circumstances mentioned by him, namely, possession by the defendants for about 70 years at a uniform rent of Rs. 18 per annum, their setting” up of such rights in 1902, and in 1912, to the knowledge of the landlord (he submitted), are relevant in considering whether kayamgeni right has been proved or not. He also drew my attention to one or two unreported cases where Courts have based their findings in favour of kayamgeni rights on circumstances similar to those that appear in the evidence in the present case. But as the learned advocate for the respondent himself rightly observed, the whole thing is mainly a finding of fact with which the High Court has no jurisdiction ordinarily to interfere in second appeal, unless the judgment discloses any line of argument which cannot be sustained in law. But I am unable to agree with the learned advocate for the respondent that the last few sentences in para; 8 of the lower appellate Court’s judgment could be discarded altogether. On the other hand it seems to me that having those facts before him, the learned Subordinate Judge thought that it was not necessary for him to appreciate their evidentiary value having regard to the circumstances of the case, because two decisions of this Court laid down that the presumption was that the defendant under such circumstances should be taken to hold as kayamgeni tenant. No doubt, if the weight of those decisions had not been shaken by the subsequent Privy Council decision, no legal flaw could be found with the reasoning and finding of the learned Subordinate Judge. Having regard to the ruling of the Privy Council in the case reported in Nainapillai Marakayar v. Ramanathan Chettiar I think that the learned Subordinate Judge’s judgment is vitiated by the error into which he fell, when he thought that the Privy Council ruling did not apply to South Kanara, and consequently his finding could not be accepted in the circumstances.
11. Following the procedure adopted by Krishnan, J., in the case cited, I think that the proper thing for me to do is to draw the attention of the learned Subordinate Judge as to the state of the law at present and leave him, as the appellate authority on facts, to come to a conclusion on the question. I therefore call upon the lower appellate Court to record a revised finding on the first point raised by him, namely:
Do the defendants hold the suit property on ‘kayamgeni or chalgeni’ on the evidence on record-?
12. The finding will be submitted in six weeks and ten days will be allowed for filing objections.
13. I may note that it has not been argued before me that, if otherwise the defendants had not been able to prove mulgeni right, the landlord’s right to eject them has become barred by virtue of adverse possession. The decision of the Privy Council in Nainapillai. Marakayar v. Ramanathan Chettiar and Madhavrao Waman v. Raghunath Venkatesh A.I.R. 1923 I.C. 205 are clear to the effect that when a person has once become a tenant under a landlord, he could not by merely denying the rights of the landlord convert his possession, permissive as it was originally, into adverse, against the landlord.
14. In compliance with the order contained in the above judgment, the Subordinate Judge of South Kanara submitted the following:
15. Finding.-The High Court has called upon me to submit a finding on the following issue:
Do the defendants hold the suit property on kayamgeni or chalgeni?
16. I am further directed to record the finding on the evidence already on record.
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17. These circumstances indicate rather conclusively that the defendants’ plea that they are kayamgeni tenants is true and I find accordingly.
18. This second appeal coming on for hearing after the return of the said finding the Court delivered the following:
19. I called upon the Subordinate Judge to submit a finding on the question whether the defendants hold the suit property on kayamgeni or chalgeni, on the evidence on record. The present learned Subordinate Judge has found that the defendant’s plea that they are kayamgeni tenants is true. The learned advocate for the plaintiff-appellant has filed objections to this finding. He contended that the facts proved do not support the defendants’ plea that they are kayamgeni tenants. Possession for a long period and payment of a uniform rate of rent might not by themselves be enough to prove that the defendants are kayamgeni tenants and not liable to be ejected: Subramania Chettiar v. Subramania Mudaliar A.I.R. 1929 P.C. 156. In the present case however the judgment of the first Subordinate Judge and the finding submitted by the present Subordinate Judge refer to some other facts from which, I think, it was legally open to the present learned Subordinate Judge to come to the finding that the defendants’ plea that they are kayamgeni tenants has been proved. The question is not what exactly I would be inclined to find myself on the facts and the circumstances of this case, but whether there are circumstances from which it was open in law to the lower appellate Court to base its finding. On the whole I have come to the conclusion that the finding must be accepted in second appeal. The result is that the second appeal is dismissed with costs.
