1. The appellants, defendants, are the cultivating ryots of Periyakurvadi, a village in the District of Tanjore, and the respondents, plaintiffs, are trustees of Rajagopalaswami's temple at Mannargudi in the same District. It is admitted that the miras of the village is in the name of the temple and that the annual payment made by the appellants to the respondents is made both on account of the melvaram (Government share of the produce) and of mirasvaram (proprietor's share of the produce). The village in suit is not then of the class of villages in which the temple endowment is limited, to the melvaram right. It is also not disputed that Periyakuruvadi is a taraf or assessed village and that, although no assessment is now paid, it is be cause of the recent assignment of the revenue due on the village in lieu of the annual money allowance paid by Government to the temple. It is clear, therefore, that the village was not one originally granted as inam for the support of the temple. We must take it then to, be an ordinary taraf or assessed village registered in the Collector's books in the name of the temple as its proprietor or mirasidar.
2. The appellant's case was the temple was never entitled to, and that the trustees or panchayatdars never had actual possession of the Village and that the appellants had the kudikani or occupancy right from time immemorial. Ordinarily the mirasidar or proprietor in a taraf village has the right of cultivation also and he is therefore at liberty to arrange for it from time to time either by granting leases, of letting it to purakudies for varam or under what is usually called the pannai system by means of labourers who are paid wages in grain. The respondents stated in their plaint that appellants 1, 7, 9 and the fathers of 8 and 10 obtained a lease from the temple for 6 faslis from 1287 to 1292 on the 29th September 1877, that appellants 11 to 68 cultivated lands in the village together with 'the lessees, their relatives, and that, although the lease has expired, all the appellants wrongfully held over and declined to restore possession of the village. The plaint prayed for possession of 69 and odd velies of land together with their appurtenances, and for the recovery of Rupees 4,637-3-6, being the rent due for fasli1292 together with the sum of Rupees 30 which was said to be the value of produce realized by the appellants in fasli 1293. Apart from the occupancy light asserted by the appellants, they resisted the claim also on several other grounds, and the issues recorded for decision by the Subordinate Judge sufficiently indicate the several matters in contest in this suit. The Subordinate Judge found all the issues in favour of the respondents and decreed the claim. The appellants object to the decree on several grounds.
3. The first objection taken in appeal is that the onus of proving the occupancy right is not on the appellants as observed by the Subordinate Judge. Admittedly the village in suit is a taraf village of which the temple is the registered proprietor entitled both to the melvardm and the mirasvaram as against the appellants. This being so, the claim of an occupancy right as overriding the proprietor's right to cultivate his own land is of a special character, and as such it is one which the party, seeking to derogate from the ordinary incident of property, is bound to establish. Of course the appellants are entitled to the benefit of any presumption which may reasonably arise from the length of enjoyment and other special circumstances of the case. The contention that mere length of enjoyment in the capacity of tenants on purakudies irrespective of other circumstances is prima facie proof of occupancy right, cannot be supported. We shall consider hereafter whether the facts proved in this case give rise to any presumption in favour of the appellants, but we hold that the burden of proof was rightly cast on the appellants. Another objection taken in appeal is that the Sub-Judge is in error in holding that the appellants were not entitled to a notice to quit. The respondent's case was that the appellants got into, possession under document A which purports to be a lease for the term of 7 years and that during the lease, they allowed the rent to fall into arrears and that on its expiration they denied the lessor's reversion or right of possession. If the respondents' claim is well-founded and the appellants continued in possession after the term by their own wrong, they are clearly not entitled to a notice to quit.
4. The next objection to the decree appealed against is that the respondents had no cause of action as against those appellants who were not parties to the lease sued upon and that there was a mis-joinder of several causes of action. This contention is based on the assumption that those appellants are in possession of distinct portions of land in their own kudikani right and not, as alleged for the respondents, by reason of being let into possession by lessees as co-cultivators. But the Subordinate Judge has found in respondents' favour and in his view of the facts of the case, the decision is right.
5. The substantial question then for decision is whether the appellants have occupancy right, and they relied in support of their claim on Exhibits XV, XII, XVI to XIX, I to XI, XIII and XIV and on oral evidence. Exhibit XV is a copy of the pymash or survey account prepared in 1839 and specifies among other things the rate of purakudivaram or cultivator's share payable in the village. It states 'Fixed quantity of varam payable to the kudikani purakudies of the said village is as per the karnam's account 30 out of 100 calums of kadappu paddy' and so forth. In specifying the several house-sites, it mentions the name of a purakudi with the additional words ' save so and so' in connection with each hut and its back-yard. It purports to be signed by village officers, by certain ryots and by Miras Karnam and Stanikam Rama Sastri and by Panchayat Periyadudi Eangamien. There is no specific evidence on the record to show that Rama Sastri and Rangamien were the servants or representatives of the temple at the time, and as observed by the Sub-Judge, the account was prepared by inferior revenue officials. The fact, however, that it comes from proper custody and that its accuracy has not since been challenged is in appellants' favour, but the weight due to it is not of itself considerable and must depend on the other evidence in the case. The entry as to the rate of varam purports to be taken from some karnam's account which is not in evidence, and although Exhibit XV is some evidence in appellants' favour, it is by no means conclusive.
6. Exhibit XII is a muchilika executed by the respondents to the late East India Company on 23rd August 1857 when the villages belonging to the temple were transferred by their management as trustees. In the 6th paragraph the trustees undertook 'to treat the purakudies properly without ejecting them so long as they regularly pay rent, and in no way to damage or diminish the right and independence of purakudies according to the custom of the District and of the Village.' This document is in favour of the appellants to the extent that it protects them against arbitrary or capricious ejectment, but it is against them in that it does not specifically refer to a hereditary right of occupancy or to kudikani right asgvesting in the ryots of the village.
7. Documents I, Ia, II to XI XIII and XIV evidence sales, mortgages and leases executed from time to time by the ryots of the village to one another and to strangers. They recite that the mtrakudus had a kudikani right and they were exeepstecd in 1848, 1850, 1859, 1860, 1864, 1872, 1876, 1880, and 1881. Though the trustees were no parties to them, they show that the ryots concluded those transactions openly in assertion of an occupancy right from 1848, and that they did so was presumably known to the trustees of the temple Exhibit XVI to XVIII are copies of judgments, dated 1878 and 1879, in regard to certain house sites in the village which are not now in suit and the respondents or their predecessors were not parties to them. Exhibit XVI which is copy of a plaint in Original Suit 327 of 1830 refers to kudikani right in connection with the house site mentioned in it.
8. Exhibit XIX is copy of decision in Calendar Case No. 29 of 1879 on the file of the 3rd Class Magistrate of Needamangalam, and the trustees were no' parties to it. It shows only that there was a dispute between a ryot named Kanala Pillai and them village purohit as to whether the parcel of land originally held as purohit mannyam was taken back by the ryots 5 years previously and another parcel given instead.
9. As to the oral evidence, the appellants examined 15 witnesses, of whom six are defendants either on the present suit or in the cognate suit No. 29. The evidence of the defendants is discredited by the Subordinate Judge as interested testimony. The 12th and 13th witnesses are the village purohit and carpenter, and they are under the appellants' influence. Of the other 7 witnesses, the 14th and 15th only proved documents I and Ia and VIII. The 1st'witness is a trustee of the temple and has held that position for 15 or 16 years. He denied of course the kudikani right set up by the appellants but admitted that the appellants have been ryots of the village during the time he has been a trustee, that the village is divided into 20 karais, that in the lease granted by trustees, the lands are not specified, their extent alone being : mentioned, that the lessees cultivated themselves some lands and that ' those defendants who were not parties to the lease cultivated some lands together with the lessees. He stated further that there were 9 topes is the village and they had always been in the enjoyment of the temple. The witness has 200 or 300 velies of land besides dealings to the extent of Rupees 20,000 or 30,000.
10. The 6th witness is a mirasidar of Vikravandiyam neigh-bouring village. He deposed that the appellants enjoyed lands separately for about 30 years, and proved Exhibit IX, He also spoke to kamyedu system or a periodic redistribution of lands among the ryots as obtaining in the village. The 7th witness is the karnam of Kuru-vadi and the 8th witness is the mirasidar of a neighbouring village. They deposed that the appellants had kudikani right, that they enjoyed lands separately, and that the karayedu system obtained in the village. The karnam referred to the survey account, and to sales and mortgages by ryots as his means of information. The 8th witness' father, it would seem, took a mortgage of the land cultivated by a ryot named Kattaperumal Pillai on the representation made by the mortgagor' that he had kudikani right.
11. The foregoing is the evidence on which the appellants relied. No doubt the pymash account, if it can be impliedly relied upon, favours their contention. Exhibit XII shows only an undertaking by the trustees not to eject them as long as they regularly paid rent, and does not refer to any special tenure in the village. The other exhibits prove that the appellants and their predecessors sold and mortgaged their land to others openly asserting that they had kudikani right from before 1848. Our attention is also drawn on their behalf to the fact that the leases granted by the trustees did not specify lands, that the ryots cultivated lands separately, and that on several occasions there was a redistribution of lands among the ryots.
12. We shall now turn to the evidence produced for the respondents. Documents A to Y, Y are relied on has showing that the appellants were termed purakudies, and the Subordinate Judge refers to this portion of the evidence in paragraph 22 of his judgment, and explains to what defendants they relate. Although the term purakudi is not, as observed for the respondents ordinarily applied to one who has an occupancy right, yet we are not prepared to accept it as conclusive on the point, and we may refer to the survey account in which the expressoin ' kudikani' is used in conjunction with the term purakudies if kudikani rights were also at times called purakudies.
13. The next group of documents on which reliance is placed for respondents consists of a series of leases commencing with J.J., the lease of 1841 and ending with the lease of fusli 1287 for 5 years. Of-these, Exhibits J J. R R and X are muchilikas executed, to Government during the period the village had been managed by officers of Government on behalf of the temple. Exhibit JJ was executed on the 1st October 1841 by five persons who designated themselves as purakudies residing in the village of PeriyakuruvadiThe executants admitted that the village belonged to the temple, and that both varams were due to it. The documents stated the extent of cultivable land as per Jamabandi dittam, the extent that was waste or was liable to be submerged and the amount realized as per the Jamabandi on settlement of the previous year. Then the executants undertook to pay the kist due to Government, Eupees 2,404 and to pay 670 kalams of paddy to the temple and to hold the land for five years subject to the payment of rent at the same rate and then restore it. They next engaged not to cultivate waste land without previous intimation to Government, and not to injure and cut down live trees or branches, nor to fell and carry away withered trees, and to pay on default four times the assessment in the one case and four times the value in the other. Exhibit RR is a similar agreement executed by five other persons who described themselves as purakudies residing in the village of Periyakuruvadi. It was a lease for 7 years and the rent payable to the temple was 805 calums of paddy besides Rupees 2,418 which the lessees undertook to pay direct as the assessment payable to Government. With refer ence to the cultivation of puramboke land, and as regards live trees and branches, and withered trees, this document contained provisions similar to those embodied in JJ.
14. Exhibit XX is another agreement executed for fasli 1256 by one Kamala Pillai and 9 others. The samibhogam or the landlord's share which they undertook to pay was 850 calums of paddy besides the kist due to Government of Rupees 2,417 1/2. As regards the cultivation of puramboke land, the protection of trees, and the appropriation of withered trees, it contained the same provisions thatdocuments JJ and R R contained.
15. These documents relate to the period when the village was under the management of Government, and their provisions may safely be taken to be bona fide. It is remarkable that there is no allusion in them, either direct or indirect, to any kudikani right though document JJ was executed very shortly after the paymashi They negative any right on the part of the ryots in regard to puramboke or to trees or to the nine topes which have admittedly been always in the enjoyment of the trustees. They show also that the rent payable varied from time to time and that it was not fixed in perpetuity. The stipulations in regard to trees and the cultivation of puramboke are not ordinarily inserted in farming leases, and convey the impression that the executants were regarded as cultivating purakudies rather than mere farmers of the landlord's right to rent for fixed periods. Seeing that the survey account XV indicates that there were about 65 ploughs and 69 purakudies in the village and that the extent of land under cultivation was over 69 velies, and seeing also that the documents rented out the whole cultivable area without further specification, it is not improbable that the lessees were themselves cultivating purakudies, that they were expected to cultivate together with other purakudies in the village, that they were selected as executants of the lease probably because they were the leading men or chief purakudies in the village for the time being and that the distribution of the cultivable area among themselves for purposes of cultivation was left to be adjusted by them at each lease or other intervals of time.
16. The next series of leases relied on for the respondents are leases granted in 1870 and they are referred to by the Subordinate Judge in para. 25 of his judgment. They show that the trustees departed from the previous practice of renting the whole cultivable area to a few chief purakudies and rented out specific number of karais to specific ryots or purakudies, and made the whole rent due in paddy and in cash payable direct to the temple. In these also there is no allusion to kudikani right. The last lease is document A on which the respondents brought the present suit. It exempted 3 velies and 13 mans of land already leased out to Kamala Pillai and purported to let the remainder of the cultivable area to 10 of the appellants for 7 years for a rent of 2,090 calums of paddy and Rupees 1,900 in cash. The ten lessees described themselves as purakudies residing in the village of Periyakuruvadi.
17. Our attention was called also to document C in the cognate case, Original Suit No. 29 of 1884. It purports to be a copy of the survey account relating to Muvanur Shrotriem village of which the ryots have admittedly an occupancy right and the document states distinctly that such right exists.
18. another document on which reliance was placed for the respondents Exhibit UU. It is a security bond executed by 18 purakudies on the 21st September 1849 guaranteeing the payment of rent by the persons who executed RR. In describing the houses which they owned in the village and offered as security, they excluded the house sites and offered the superstructure alone as security. It is not explained why they did so if, as is now asserted for the appellants, they had a kudikani right in the whole village.
19. As to the respondents' oral evidence, the Subordinate Judge attached no weight to it and it is not pressed upon our attention in appeal.
20. On comparing the evidence on both sides, we are of opinion that the Subordinate Judge is right in declining to attach weight to the entry in the Survey account XV. The entry was apparently taken from some Karnam's account which is not before us and it refers to the kudikani right not directly, as is the case in C in Original Suit No. 24 of 1884, but incidentally by describing the purakudies as kudikani purakudies. The weight due to it is very much lowered by the absence of all allusion to an occupancy right in any one of the series of leases granted from 1841 to 1877. The right, if any, does not admittedly extend to the nine topes in the village and it is not satisfactorily explained why, if there was occupancy right in regard to the village generally, it does not extend to the topes also. Again Exhibit UU shows that the ryots who owned houses in the village had no property in their sites and the absence of such property is incompatible with the existence of a hereditary right of occupancy Further the provisions which the several leases contain with reference to the cultivation of puramboke, the protection of trees and the appropriation of trees seem to indicate that this kudikani right if, any did not extend to other than land under actual cultivation and this is not ordinarily the case where ryots have kudikani right to the village as contradistinguished from a perpetual lease granted with reference to a specific area. It is not the appellants' case that they or their ancestors had a perpetual lease from the temple.
21. Furthermore the provision is Exhibit JJ against arbitrary eviction so long as the purakudies pay rent regularly is inconsistent with the idea that they had an independent occupancy right. It shows on the other hand that so long as officers of Government managed the village, they did not arbitrarily or capriciously eject the ryots and that, when they transferred the village to the trustees' they obtained an undertaking from them to treat the cultivators in the same way. Seeing that the officers of Government had managed the temple villages for many years prior to 1857, it is not improbable that the consideration shown by them to purakudies as an incident of good management and the length of time for which the purakudies cultivated, inspired them with a belief that they were not liable to be ejected as long as they were punctual in the payment of rent. This may account for sales and mortgages by the appellants and their predecessors accompanied with an assertion of kudikani right which may loosely be used to indicate a permanent tenure of some kind or other.
22. It may be that the trustees took no notice of what the purakudies did as they undertook not to interfere with their occupation so long as they regularly paid rent. As to the suggestion made for the appellants that the leases were farming leases, we are not prepared to accede to it. They appear to be cultivation leases granted to the chiof men among purakudies in order that they might together with the other purakudies of the village, cultivate and fulfil their obligations under the lease. The non-specification of lands in the leases, the fact that each of the appellants cultivated separately and that there was an occasional re-distribution of lands held by the purakudies are referable to the conventional mode of leasing to chief men among the purakudies leaving it to them to select others who are to cultivate with them and to distribute the portions to be cultivated by each as may be arranged between them. As the rent is in arrear and as the appellants have set up a kudikani right which they did not passes we cannot say that they can insist on the undertaking contained in JJ, even if it is valid as against the temple.
23. As to the appellants' contention that an occupancy right must be presumed in the circumstances of the case, we are unable to uphold it. There is no evidence of immemorial occupation as in the case of Krishnaswamy v. Varadaraja and Varadaraja v. Venkatachala I.L.R. (1882) M. 345. Nor are the leases for terminable periods mere farming leases and the circumstance of their having been granted to a few chief purakudies is referable to the mode in use of granting leases under what was known as the joint Ijara system or letting practically to the ryots of the village on the responsibility of the chief men. Again, sales and mortgages concluded from 1848 on the basis of a kudikani right may be the result of the practice introduced by officers of Government of forbearing to eject the purakudies except for arrears of rent. We accept, therefore the finding of the Subordinate Judge that the appellants have failed to establish the kudikani or the occupancy right set up by them.
24. The decision of the Subordinate Judge on the other issues in this case is not seriously contested in appeal.
25. We confirm the decree of the Subordinate Court and dismiss this appeal with costs.