APPASWAMI MOITHAI RAO Vs. GOPALSWAMI CHETTY

JUDGEMENT

(1.) The simple question in these second appeals is whether the plaintiff is entitled to get the pagudi from the defendants. Various contentions were raised in the Courts below. The District Judge found that the plaintiff was a landholder within the meaning of that word as used in the Estates Land Act. Granting that the plaintiff is a land-holder, the question is whether he is entitled to get pagudi from the defendants.

(2.) The contention on behalf of the appellant is that the defendants are kasavargam tenants and therefore, they are bound to pay the pagudi to the plaintiff. In the first place the tenure known as kasavargam tenure has not been the subject of any decision. The incidents of such a tenure are not known though Sadasiva Iyer, J., in Naina Pillai Marakayar V/s. Bamanathan Chettiar (1917) 33 M.L.J. 84, thinks that kasavargam tenants are tenants newly introduced into a village by the land-holder for cultivation purposes on condition that they would give up their dwelling sites to the landholder when they ceased to do cultivation. With due respect to the learned Judge I am unable to accept this as the incident of kasavargam tenure.

(3.) The plaintiff relies upon a paimaish account in which the word kasavargam is used. That would not decide the point for the land in dispute was occupied for several generations as house site. I am informed that there are 700 houses in this village and all of them seem to be on the same kind of tenure as the defendants in the present suit. Whatever may be the nature of the kasavargam tenure the question is whether the plaintiff is entitled to get pagudi from the defendants. The Deputy Collector who tried the case thought that kasavargam tenure meant service tenure and the services having been dispensed with, the land-holder is entitled to money rent. There is no evidence as to the nature of the services and as to how long they were performed and when they ceased. There is no warrant for the assumption that money rent was imposed in lieu of services. Mr. Vinayaka Rao relied upon Ex. F as supporting his contention. Exhibit E is an agreement entered into between some of the persons who owned houses on the village site and the landholder. It is suggested by Mr. Vinayaka Rao that all persons who owned houses in the village were parties to the document. Granting that that was so, this document cannot be relied upon for the purpose of enforcing the present claim. Under that document the householders undertook to pay a number of cesses or honorary payments to the landlord. Under the present Estates Land Act such cesses and voluntary payments could not be enforced as rent. Apart from that the question is whether pagudi can be called rent. Rent is defined in the Estates Land Act as what is lawfully payable in money or in kind or in both to a landlord for the use or occupation of land in his estate for the purpose of agriculture and in other words whatever is payable on account of the use and enjoyment of land taken for cultivation. There is no evidence that these house sites were ever agricultural land. Mr. Vinayaka Rao's argument is, it must have been dry or punjah land and persons who owned houses must have built them on such dry land. There is no evidence that the sites of houses were raiyati land or were used for purposes of agriculture. The onus is upon the landholder to prove that his land was a raiyati land and that it was afterwards converted into house sites.