NADARSA ROWTHEN Vs. AMIRTHAM

JUDGEMENT

(1.) The District Judge is mistaken in supposing that if there was a tenancy from year to year it terminated on the death of Chidambaram. There is no finding in this case as to the nature and the term of the tenancy, and the decisions to which we have been referred do not determine the incident of this tenure. These incidents must, we think, be determined on evidence as to the custom of the locality, and we have therefore decided to call for findings on the following issues: 1. What are the incidents of kasavargam tenancy with special reference to the term of such tenancy ?

(2.) Did the defendants Nos. 1 and 2 or their predecessors refuse to perform services in accordance with the terms of the tenancy ?

(3.) Has the tenancy been determined, and, if so, how ? Fresh evidence may be taken of witnesses called by the parties and of such other witnesses as the District Judge may think fit to call. In compliance with the order contained in the above judgment, the District Judge of Tanjore submitted the following FINDING Ed:-The High Court has called for findings on the issues: (i) What are the incidents of Kasavargam tenancy with special reference to the term of the tenancy ? (ii) Did the defendants Nos. 1 and 2 or their predecessors refuse to perform services in accordance with the terms of the tenancy ? (iii) Has the tenancy been determined, and, if so, how? 2. Issue I.-The question raised by this issue is a large one, and one of some general importance throughout this district. The parties have therefore been afforded every reasonable facility for adducing all the available evidence, oral as well as documentary, on the point, and three large land-holders of the district have also been summoned and examined as witnesses for the court, and documents produced by them which have a bearing on the question have been filed as exhibits. There is therefore now on the record a considerable body of evidence from which to deduce a finding as to what are the more important general incidents of kasavargam tenancy : that is so far as the Tanjore district is concerned. The custom of kasavargam prevails in other districts as well (see the deposition of the first court witness) and the incidents of the tenancy may, and in all probability do, vary in different districts, but it is clear from the judgment of the High Court in which the findings are called for that it is only the custom as it obtains in this district that is to be taken into consideration, and it is on that footing that evidence has been let in at the hearing on remand. 3. The meaning of the term kasavargam or kasavargamdar is given in Wilson s Glossary (see page 583) as " traders and makers of canvas sacks, residing in a village, and claiming certain fees, and perquisites, having a proprietary right to their houses, but not to the ground on which they stand." The learned author does not appear to have been satisfied as to the etymology of the term, and it may therefore perhaps be presumed that his definition was based entirely on his own personal experience of the use of the term, or on the experience of other persons on whose information he considered it safe to rely. This may serve to explain why the definition which he adopted does not altogether apply to the term as used in this district. The latter portion of the definition alone seems to apply here. The oral evidence adduced in the present case shows that in this district, kasavargamdars have, as a rule, " a proprietary right to their houses, but not to the ground on which they stand." As regards this feature of kasavargam tenancy, there can, I think, be no doubt, It has been spoken to by several witnesses of large experience in the management of lands in this district, whose evidence appears to be thoroughly reliable. It is borne out by the entries in the paimash accounts, some of which have been filed as exhibits in this case (see exhibits Q.S and T) and it has been repeatedly recognised by the courts of the district, and by the High Court as one of the customary features of kasavargam tenancy as it prevails in this district; Vide Exhibits Z3, DD, GG, and HH, and the cases reported in I.L.R. 14 Madras 98, and 22 Madras 116. Exhibit EE may also be referred to. It is the decree in a case in which a mirasidar sued to recover a manaikat. The parties compromised, the defendant agreeing to vacate the manai on condition that the plaintiff should pay him compensation for the house he had erected on it. This was a kasavargam manaikat, and the terms of the compromise go to show that the parties recognised that the kasavargamdar had no proprietary right in the manaikat itself but only in the super structure which he had erected upon it. It is scarcely necessary to refer to any more evidence on the point, but mention may perhaps be made of Exhibits AA1 to AA8 and BB, Exhibits AA1 to AAS are rent-deeds which the first court witness has now taken from the tenants of Jus kasavargam manaikats instead of any longer relying on custom alone for determining the conditions of their tenancy. Exhibit BB is a similar deed executed in favour of the mirasidar by the occupant of a kasavargam carpenter s manaikat, who is the descendant of the Kasavargamdar mentioned in the paimash account (Exhibit CC). (Vide the evidence of plaintiffs 14th witness). All these documents set forth the fact that the manaikat is the property of the mirasidar. This then may be taken to be the fundamental principle of the tenancy : the site is the property of the landlord : the superstructure that of the tenant.