CHANDRASEKHARASWAMI SIVA MATHA TEMPLE AT MARAMANGLAM, THROUGH ITS TRUSTEES MUTHUSAMI AYAR Vs. NAINAR AMMAL

JUDGEMENT

(1.) In this ease, the trustees of a temple in Tinnevelly District sued to eject the defendant from certain temple lands in her possession, alleging that she was a yearly tenant and that her tenancy was terminated by notice to quit. She pleaded in answer, inter alia, that she had a permanent occupancy right in the land and that plaintiffs were not entitled to eject her bat only to receive the thirvai due; she also pleaded a right of permanent tenancy acquired by adverse possession. The temple traced its title to an inam, grant by the Government in 1835. One of the questions in the case was whether the grant was only of the revenue payable to Government or of the land itself and as a result whether the Estates Land Act applied. The Munsif held that the grant was of the land itself and not of the revenue alone and that the Estates Land Act did not apply. He further held that the tenants in this and the connected suits were not shown to be yearly tenants liable to be ejected, or to have even been let into possession by the temple trusty that they and their predecessors in title were proved to have been in occupation of the land for nearly fifty years paying a uniform rate of rent, which never exceeded the assessment payable to the Government, that they were dealing with the land as their own, subject only to the payment of thirrai, to the knowledge of the trustees and were making transfers and that the trustees recognised those transactions, that in some instances the property devolved from father to son, that the circumstances proved pointed to a permanent right in the tenants and that there was no foundation for any presumption of yearly tenancy and that as the burden was on the plaintiffs to prove the yearly tenancy alleged by them and as they had failed to prove it, their suit for ejectment failed. On appeal, the District Judge held that the grant was of the revenue alone but confirmed the Munsif s decree. The teuatees appealed to the High Court in Second Appeal No. 2394 of 1913 and this Court held that what was granted was the land itself and remanded the appeal for fresh disposal. In doing so, they also came to a finding of fact that the lands, when granted, were unoccupied and stated that the occupancy rights, if any, must have been acquired since the grant. The District Judge has now found on the evidence all the facts except one relied upon by the Munsif for holding that plaintiffs failed to prove their case of yearly tenancy and that defendants have shown their tenancy to be permanent; and that fact is that the defendants were not in possession before the date of the grant which was concluded by the finding of the High Court; he, however, agreed with the Munsif that the burden was on the plaintiffs to prove the yearly tenancy and their right to eject and that it was not discharged and that the defendants had established their case of permanent tenancy; and he dismissed the appeal.

(2.) The plaintiffs have again appealed to this Court and Mr. Ramachandra Aiyar for them has contended before us that the burden of proof was on the defendants, that the finding as to defendants permanent occupancy was erroneous and that, if the burden was on his clients, they had proved the tenancy to be a yearly one.

(3.) The question of burden of proof in a case like this is a somewhat vexed question. It seems to us, however, that there need be no difficulty if the general principles of burden of proof in the Evidence Act are kept in view. Ordinarily, when a person seeks to eject another from possession on the ground that the latter is his tenant whose tenancy has been re-minded he must prove not only that the tenancy is as alleged, if that is denied, but alto his right to eject. In doing so, he must necessarily show that the tenancy is a terminable one and has been validly terminated. This burden is unaffected by any defence of permanent tenancy set up by the defendant but which i e has tailed to prove. Vide, Venkatacharlu v. Kanctappa 15 M. 95 : 5 Ind. Dec. (N.S.) 415. On the other hand, when the plaintiff has made out a prima facie case of a terminable tenancy and his right to eject, either by evidence as to the origin of the tenancy or from admissions of the tenant as to the character of his tenancy, either before or in the suit or by reliance on presumptions arising in his favour from other circumstances, and the tenant sets up in answer to it the existence of permanent rights in himself, the burden is on him to prove the special case thus set up. The many eases on the point will on examination be found to have proceeded on one or other of these rules. In one class of cases where the evidence showed that the tenant was, at one time either at the beginning of the tenancy or at some later period during the continuance of the tenancy, a temporary or terminable tenure holder, it was held that the tenant must prove that he had a permanent tenancy at the date of suit. The examples of these are Achayya v. Hanumantrayudu 14 M. 269 : 5 Ind. Dec. (N.S.) 189, where the landlord proved a lease from him to the tenant: Bangnsami Eeddi v. Gnana Sammantha Pandora Sannadhi 22 M 264 at p. 266 : 8 Ind. Dec. (N.S.) 188 where the admissions the tenants that they were ulvadai pura-kudis" was held to favour the contention that the tenancy was temporary": Marapu Tharalu v. Telukkula Neelakanta Behara 30 M 502 : 2 M.L.T. 470, where the Munsif had found on the evidence that the defendants were tenants from year to year and the High Court holding there was no necessary presumption of permanent occupancy in favour of tenants under inamdars held that the burden was on the tenants to prove the alleged occupancy right, and Naina Pillai v. Ramanathan Chettiar 41 Ind. Cas. 788 : 33 M.L.J. 84 at p. 95, where the tenancy was under muchilikas executed by some tenants on behalf of all. In some oases presumptions of fact have been raised in favour of the landlord or of the tenant from the conduct of the parties with reference to the land when there is no direct proof of the origin of the tenancy: periodical raising of the rent and periodical resumptions of land by the landlord, tenants submitting to them, have thus been held to raise a presumption in favour of the landlord, and against the tenant, that the tenancy was a terminable one. See Rajah rf Venkatagiri v. Mukku Narasaya 7 Ind. Cas. 202 : 37 M.1 : (1910) M.W.N. 369 : 8 M.L.T. 25. On the other hand, circumstances such as long continued occupation at a uniform rate of rent, dealings by the tenant to the knowledge of the landlord as if he had an alienable permanent tenure without objection, and devolution of property from father to son have been considered as indicating permanent tenancy. Where circumstances exist in any particular case, Some of them in favour of a presumption of a terminable tenancy and some in favour of that of a permanent tenancy, the Court which has to weigh the evidence must decide on which side the balance of evidence falls. In a third class of cases presumptions are raised in favour of the landlord or the tenant, as the case may be, from the situation and character of the lands themselves; for example lands in a zemindari are presumed to be held on permanent tenancy. See Cheekati Zamindar v. Ranasooru Dhora 33 M. 318 : 8 Ind. Dec. (N.S.) 624 That question is now regulated by the Estates Land Act. Again if the land is in a district or locality where the usual rule is permanent tenancy there will be a presumption in favour of it; and vice vrsa. Here again, if there are conflicting presumptions the Court consider, ing the facts must decide which presumption should prevail. It may also be stated that a tenant who comes into possession as a temporary tenure-holder cannot develop himself into a permanent tenant by mere length of occupation, vide the case cited as Rangasami Reddi v. Gnana (Sammantha Pandara Sannadhi 22 M 264 at p. 266 : 8 Ind. Dec. (N.S.) 188, or even by setting up a title as permanent tenant in himself, so long as the original tenancy has not been terminated by the landlord. See Rajah of Venkatagiri v. Mukku Narasaya 7 Ind. Cas. 202 : 37 M.1 : (1910) M.W.N. 369 : 8 M.L.T. 25.