1. The plaintiff by the plaint filed in suit 258 of 1879, claims to have the proprietary right in land assessed at Us. 14-6-4 in varg No. 23 in Vakavadi village and sues to recover rent therefor from 1872 from the defendant, who is stated in the plaint to hold on chalgaini lease. He also sues to have a portion of the three vargs, viz., No. 2, No. 23, and No. 25 in the same village, and in the possession of the defendant, held at a rent of Rs. 14-6-4 per annum payable to Government, and 41/2 to 51/2 muras of rice to the Aneigadi Ganapathi Devastanam and 41 regulation muras to the plaintiff's mattam, delivered to him.
2. The suit for demarcation and delivery of portion of the three vargs in the defendants' possession to the plaintiffs is founded on the allegation that the varg No. 23 was demised to the defendants' ancestors very many years ago, and that they did not preserve the boundaries of that varg, but allowed them to be destroyed, so that the landlord's land, yarg No. 23, cannot be distinguished from varg Nos. 2 and 25.
3. The second, third and fourth defendants are ex parte. The first defendant denied the plaintiffs' proprietary right and the chalgaini lease, and alleged that the proprietary right is in him (first defendant). He did not claim to be a tenant on mulgaini tenure.
4. Both the Lower Courts found on very clear evidence that the plaintiffs are the proprietors of the varg No. 23, and that it was let to the defendants' ancestors at the rent above specified, and that such rents were paid by the first defendant down to 1872. The defendant admitted he was in possession of portion of varg No. 23, but both Courts found as a fact that the defendant is in possession of whole of varg No. 23.
5. The Munsif made a decree for three years' arrears of rent before suit, and refused to order delivery of any portion of the three vargs upon the ground that the plaintiff had not proved any chalgaini lease, or what part of those lands in possession of the first defendant included the lands of varg No. 23.
6. The Subordinate Judge, in appeal, affirmed the Munsif's decree as to the arrears of rent to be paid, but, in addition, held that the defendant as tenant was bound to preserve the boundaries and did not do so and he awarded that so much land as would pay the rents above mentioned out of the 115 plots of land, which constitutes the vargs two and twenty-three of the Vakavadi village, be delivered over to the second plaintiff. The quantities and qualities of the land directed to be delivered are set out by the Subordinate Judge in detail in his decree.
7. In second appeal several questions were raised, but the following only were pressed in argument:
First.--That, as the first defendant was tenant at all events on chalgaini lease, he was entitled to notice to quit.
But as the defendant denied his landlord's title, he was clearly not entitled to such notice. Defendant set Up title not subordinate to the plaintiff, but proprietary title, and he failed.
Second.--First defendant contended that it lay on the plaintiff to prove where the lands were which he sought to recover from the defendant and that the Subordinate Judge had wrongly thrown the burden of proof as to the boundary of the varg lands on the defendant.
8. However, the defendant, by reason of his relation of tenant, was bound to preserve the boundaries of the lands he so held as tenant and not to permit them to be destroyed; and especially so when he owned other lands adjoining those demised to him. He should not have permitted his own and his landlord's lands to have become so intermixed that the boundary of each could not be ascertained. The onus is rightly thrown on the tenant of distinguishing his own property. See notice to Wake v. Conyers 2 Tudor's L.C. p. 433.
9. In Attorney-General v. Fullerton 2 Vesey & B. 264, Lord Eldon says--'It has long been settled law and is not now to be unhinged that a tenant contracts, among other obligations resulting from the relation, to keep distinct from his own property during his tenancy and to leave clearly distinct at the end of it his landlord's property not in any way confounded with his own. Thi3 is, therefore, a common equity, that a tenant having put his landlord's property and his own together for his convenience in order to make the most of it during his tenancy is bound at the end of the term to render up specifically the landlord's land; and if he cannot, that a commission shall issue from a Court of Equity to ascertain what were the lands of the landlord.' He observes--' I am satisfied that there was no fraud intended.' He says then it is impossible for the plaintiff to go to any part of the land and say this is my land, and whose fault is that? The equity of the plaintiff is 'that unless the tenant can ascertain the land of the landlord, the latter shall have an equal quantity of the defendant's land; 'if he (the tenant) cannot point out the land and if it cannot be ascertained amicably, a commission must go to ascertain what land belongs to the charity (the landlord), and what does not.'
10. The rule laid down by Lord Eldon is one of equity and good conscience, and we think the Subordinate Judge was right in throwing on the defendant the onus of showing what lands were comprised in No. 23.
11. The rule is applicable whether the act of the tenant was merely negligent or not intentionally done, as will appear from the passages above cited from Lord Eldon's judgment. It also applies to those who claim under the tenant (2 Tudor's L. C, p. 433).
12. We think, however, that sufficient exertion has not been made to discover the boundaries and situation of the varg No. 23. If the boundaries of the varg No. 2 be examined and ascertained, the other lands (not being part of No. 2) and in possession of the defendant must apparently be land No. 23. We assume that varg No. 25 does not adjoin Nos. 2 or 23, as the Subordinate Judge treats two and twenty-three only as being contiguous. The village documents must show the measurements, especially old documents in the village or in the temple.
13. The tenant is clearly bound to show where his landlord's land was situated, and if he fails to do so, a part of the property with which it was mixed equal to its annual value should be set out and made over to the landlord. If the boundaries can be ascertained, there will be no further difficulty. If they cannot, it would be desirable to set out the land claimed in some particular direction, so that the different plots included in each description of land may lie together as far as practicable. This is a convenient mode of division, and it is the interest of both parties that it should be adopted in preference to setting out a part from each of the 115 plots as decreed by the Subordinate Judge. For this purpose, the Subordinate Judge should depute a Commissioner to ascertain by local enquiry, as far as practicable, the relative position of the two estates, and to suggest, with reference to the result of such enquiry and to the convenience of both parties, how lands of the description and value claimed by the plaintiff may be set out so that they may, as far as practicable, lie together as parts of one estate. This mode of division would probably produce a result in accordance with the original state of things.
14. We shall ask the Subordinate Judge to try the following issues upon the evidence already recorded and upon such further evidence as the parties may adduce and submit his finding thereon together with the evidence to this Court within six weeks from the date of receiving this order, when ten days will be allowed for filing objections.
(1) What are the boundaries of varg No. 23.
(2) Whether varg No. 23 is intermixed with any other and what land held by the defendant and not distinguishable therefrom; and if so, what portion of the lands by metes and bounds in defendant's possession ought properly and justly to be defined as the lands to be delivered to the plaintiff as and for his land.