V PONNIAH NADAN Vs. TNDEIVANAI AMMAL

JUDGEMENT

(1.) The question is whether the compensation awarded under the Land Acquisition Act for certain lands in a village in Tinnevelly should be apportioned between the pattadvar a registered holder, which in this case is a temple, and the ryots under it on the basis that the ryots have occupancy rights in the lands, a claim which the District Judge has rejected. The Fifth Report speaks of a practice in Tinnevelly under which land, which had been under cultivation by the mirasidars or hereditary owners and had afterwards been left uncultivated by them, was cultivated by others who paid them 13 p. c. of the produce as Swami Bogam and divided the rest between the Government and themselves. There was a somewhat similar usage in Chinglepet. Mr. Venkatrama Sastriar for the respondent in this case, says that it has not been proved that these lands were cultivated by the tenants in this way.

(2.) All that we know is that in 1817 a pious founder acquired at a revenue sale a five-sixths interest in the lands in this village, and that he acquired the remaining one-sixth under Exhibit JJ. Exhibit JJ is a sale of the one-sixth share of the land, and does not refer to the existence of any persons on the land in the enjoyment of occupancy right. As regards the remaining 5/5th also, the presumption would appear to be that at the revenue sale what was purchased was the land. It may be that some, at any rate, of the predecessors of those tenants were on the land at that date but of that there is no evidence. Exhibit CC-1839 is an order of the Board of Revenue to the Collector to resume the villages owing to diversion of the revenues to private purposes. It probably meant that the Collector was to manage under Regulation VII of 1817. Exhibit DD of 1S42 orders the villages to. be handed over to the founder s son who is to make arrangements to " manage the cultivation" and other business. Mr. Venkatrama Sastri relies strongly on this expression as negativing the existence of hereditary cultivators and showing that the trustee on behalf of the temple had the right to cultivate the land himself, If so, this would be against the claim to occupancy right. Exhibit FF is a cadjan muchilika executed by the tenants in 1856 in which they acknowledge they have received an Adaolai or lease from the temple. If they do not observe its terms they are to be liable to eviction. They are to wait on the trustee every three years and to receive an adaolai like the one that had been granted to them, and in default were to abide his pleasure. This document does not seem to be conclusive either way, and was found not to have been proved by Mr. Goldie, the District judge in the appeal referred to below. Exhibt GG of October 1857 and the following documents show that there was a dispute as to the proper entries to be made in the village accounts, Till 1856, the patta had been in the name of the temple and the names of the cultivators had been shown as in actual enjoyment but apparently without reference to separate plots, As he considered the cultivators had only the tight of cultivation, the Kurnam in the new accounts had not entered their names. The trustee was anxious that his name should be entered, but the Collector s assistant thought it better that he should be shown as being in enjoyment as Hukdar. Exhibit GG1, the register of personal complaints of 17-1-1859, shows that in that year the cultivators complained that, "though the village had all along belonged only to the ryots" it had been registered in the name of the trustee. The order refused to cancel the right of the Hukdar in the patta or to register them as in enjoyment and referred them to a civil suit. Exhibit HH is a rnzinamah setting forth a complaint made by the Hukdar s lessee against the ryots which was settled in the lessee s favour.

(3.) Exhibit 2 dated 12?10?1859 shows that the Hukdar filed a revenue suit against the tenants to enforce the acceptance of adaolais which was dismissed by the acting Collector for default. At the same time he passed an order with reference to the ryot s claim to be entered as in enjoyment. They had admitted that the lands were the property of the pagoda, but objected to the entry of the Hukdar as in enjoyment. The Collector observed that the entry of his name in the column of remarks tended to create disputes and mislead the authorities to the possible prejudice of the ryots rights in the soil. He accordingly directed the trustees name to be struck out and the names of the ryots entered. For arrears of revenue the ryots crops were not to be liable but the land. This order was apparently confirmed by the Collector, and thereupon the Hukdar filed O. Section 28 of 1859 in the Tinnevelly Munsiff s Court. The plaint Exhibit A. alleges in paragraph 4 that prior to 1856 the Hukdar had been in the habit of leasing the village to defendants 2,5,18,43 and 46 who were cultivators in the village, and that these lessees let out the land to the other defendants for cultivation and cultivated it. It was very common for the landlord to arrange with a few leading villagers for the cultivation of the village and leave them to make their own arrangements with the other villagers and as pointed out in Chidambaram Pillai v. Thiruvengadathiengar (1896) 7 M.L.J. 1 this if established, would negative the existance of occupancy right. The plaint also relied on Exhibit FF in the present suit, the muchilika executed on 25 11-1856 by 33 defendants said to be the leading villagers, and alleged that, the 7th defendant had refused to execute the muchilika and induced the other tenants not to pay their rents. Several of the defendants asserted that the lands had been re-claimed by them, and alleged that the temple was only entitled to the swamibhogam. 71 defendants admittedt he plaintiff s claim. The Principal Munsiff gave judgment for the plaintiff. The District Judge confirmed the decree as regards the 71 who had admitted the plaintiff s claim but reversed it for misjoinder as regards the other defendants. Exhibit A 4 of 12-6-1861. 88 of the other defendants then compromised the case in the District Court, Exhibit B to B 4 series, to avoid the expense of suits on the terms of accepting thedecree of the Munsiff s Court directing them to surrender possession. 28 defendants held out and after decrees had been passed against them by the Munsiff succeeded in getting those decrees reversed by the District Court in A.S. No. 110 of 1864. Exhibit V dated 2-2-1865, and the connected suits which were confirmed on Second Appeal by the High Court. The District Judge in Exhibit V gave reasons for not accepting the genuineness of Exhibit FF already referred to, and stated that the plaintiff s own witnesses admitted that the defendant had been in possession of the lands in suit for neraly 20 years and of the house for over 30 years, and considering the defendants had proved that the disputed lands had been in his and his family s undisturbed possession for a very long period and that his tenancy was a permanent tenapcy dismissed the plaintiff s suit in ejectment. It had been previously ruled by Scotland and Holloway, JJ., in Alagaiya Tiruchithambala v. Saminatha Pillai (1863) 1 M. H. C. R. 264 that the question whether ryots under the mirasidar have a title to the permanent occupancy of lands subject to the payment of the mirasidar s share for the most part depended on established usage and custom which had to be proved. The High Court in the Second Appeals apparently accepted the findings of the District Judge that it had been proved in this case. We next come to O. S. No. 31. of 1884 on the file of the Subordinate Court of Tinnevelly, another suit for ejectment and other similar suits. In his judgment H 2 dated 17-12-1885 the Subordinate Judge gave judgment for the plaintiff on the ground that the defendant s father had admitted the plaintiff s right in the suit of 1859.