SUBRAMANIA KARAYALAM Vs. VMSIVASUBRAMANIA PILLAI

JUDGEMENT

(1.) 31 of the 112 defendants impleaded in the suit in the Lower Court have preferred this appeal. The 1 plaintiff who died after the institution of the suit was the trustee of the famous Siva temple at Tinnevelly. The 2nd plaintiff obtained a lease from him of the plaint lands for a term of 9 years under the lease deeds, ihe first lease term beginning in fasli 1319.

(2.) The only question in this case is whether the defendants have got a right of occupancy in the plaint lands. The lands are mainly ryotwari lands and the temple has got a ryotwari pattah in respect of the lands. When tenants claim a right of occupancy in such lands, they ought to prove that right by strong evidence, the burden of proof lying heavily on them-The observations in Veeranau Ambalam Peria Karuppan Ambalam, V/s. Annaswami Iyer (1911) 21 M.L.J. 845 and Venkatachala Goundan V/s. Rangaratnam Iyer (1913) 24 M.L.J. 571 that even a ryotwari pattadar when he sues as plaintiff and seeks to eject his tenants should prove his title to eject, that is, should establish that his tenants have no occupancy rights cannot be now accepted as good law. Those observations were not followed in Ananthapadmanabha Pillai v. Gopalakrishna Iyer (1915) M.W.N. 277 by my learned brother and Seshagiri Aiyar, JJ. and by my learned brother and myself in Aiyappa Naicker V/s. Thirumalaiappa Mudaliar (1919) 37 M.L.J. 238. The matter is now concluded by the decision of their Lordships in Sethuratnatn Aiyar V/s. Venkatachela Gounden (1920) 39 M.L.J. (P.C.) which decision has been considered and construed, and I need not add, followed by the Chief Justice and myself in Appeal No. 139 of 1919. The Subordinate Judge has given good reasons in paragraph 26 of his judgment for his conclusion that the appellants have wholly failed to discharge the burden of proof which lay upon them. I might add that I do not agree with his observations in favour of the defendants found in paragraph 23 of his judgment that the term Swamibhogam implies that the person who is entitled to receive swamibhogam is not the owner of the kudivaram interest. On the other hand, the term usually implies that the ownership in the soil does vest in the person who is entitled to swamibhogam. Two of the defendants other than the appellants have themselves given evidence as P.Ws. 14 and 15 which favours the plaintiff's case. I would therefore dismiss the appeal with costs. Napier, J.

(3.) I agree.