LAWS(PVC)-1925-4-188

PERIAKARUPPA THEVAN Vs. AIYANARSAND KANIYALASWAMIGAL KOVIL DEVASTHANAM OF KOSHADAI, THROUGH ITS DHARMAKARTHAS AND POOJA MIRAS HOLDERS

Decided On April 16, 1925
PERIAKARUPPA THEVAN Appellant
V/S
AIYANARSAND KANIYALASWAMIGAL KOVIL DEVASTHANAM OF KOSHADAI, THROUGH ITS DHARMAKARTHAS AND POOJA MIRAS HOLDERS Respondents

JUDGEMENT

(1.) In these appeals the question at issue is whether the plaintiffs, minor inamdars, are entitled to evict the defendants who are cultivating their inam lands.

(2.) The Lower Appellate Court has found that the tenants have not proved their occupancy right, and that they have not subsequently acquired the right of occupancy ; and has accordingly decreed the suits in favour of the plaintiffs.

(3.) In these appeals it is contended that the Lower Appellate Court has not considered the decision of the Privy Council in Sivaprakasa Pandara Sannadhi v. Veeramma Reddi (1922) ILR 45 M 586 : 43 MLJ 640 (PC). In that case it was finally laid down that in considering the nature of an inam grant, namely whether it was a grant of the meivaram only or a grant of both melvaram and kudivaram, no presumption can be made in favour either of the grantee or of the cultivator. For a long period this Court had held that there was a presumption, especially in the case of Brahmins, that the grant was only of the melvaram. This presumption was held to be wrong by the Privy Council in Venkata Sastrulu V/s. Seetharamudu (1919) ILR 43 M 166 : 37 MLJ 42 (PC). which says that each case must be considered on its own facts. Subsequent to that decision a Full Bench of this Court in Muthu Goundan V/s. Perumai Aiyan (1921) ILR 44 M 588 : 40 MLJ 429 (FB). held that there was an initial presumption in favour of the grant of both varams. In Sivaprakasa Pandara Sannadhi V/s. Veeramma Reddi (1922) ILR 45 M 586 : 43 MLJ 640 (PC). this judgment has been referred to. It is pointed out by the learned Judges that the Full Bench decision is clearly in error and that there is no presumption one way or the other. In the present case therefore it would appear that in the absence of any presumption that plaintiffs own the kudivaram it is incumbent on them to prove such right, which must be invoked to support their claim to eject defendants. The ordinary principle that a person suing in ejectment must prove his right to eject will apply. The learned Subordinate Judge has started his judgment with an assumption " 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 the date anterior to the grant. Admittedly the grants to the plaintiffs predecessors were prior to the British rule and it would be extremely difficult for the defendants to prove that at the time of the grants their predecessors were actually in possession of the lands. It seems to me therefore that on the authority of Sivaprakasa Pandara Sannadhi V/s. Veeramma Reddi (1922) ILR 45 M 586 : 43 MLJ 640 (PC). the burden in the present suits is on the plaintiffs to prove their right to eject.