1. The plaintiff as the Manager of a Kattalai or service foundation connected with Nelliappa Swami temple in the town of Tinnevelly, sues the committee of a college there for a declaration that the kattalai is entitled to payment of annual rent at Rs. 8-14-0 in respect of 88 cents of land which is in the possession of the committee and on a portion of which they have erected buildings appertaining to the college, as well as for the recovery of 3 years' arrears. The kattalai is admittedly entitled to an inam in the locality mentioned in the plaint, the income thereof being liable to be devoted to the upkeep of the services in the temple. In the extract from the Inam Regiater embodying the results of the enquiry by the lnam Commissioner in 1865, as well as in the title-deed granted in pur-suance of that enquiry, the Inam is described as one of land, 2 acres and 23 cents in extent. The actual occupation of the said land has been with tenants and it is to the melwaram right alone that the kattalai claims to be entitled. That the 88 cents in respect of which the claim for rent is made is part of the 2 acres and 23 cents is beyond dispute. Nevertheless the plaintiff's claim was dismissed by both the Lower Courts. One and perhaps the chief ground taken by the District Munsif was that though the 88 cents were purchased by the committee from the tenant who had been paying rent to the Kattalai, yet the land having been held by the committee since its purchase about the year 1863 up to the date of the suit without payment of rent, the plaintiff's claim was unsustainable. Non-payment of rent for a long period would be material evidence against the plaintiff had there been any dispute as to whether the 88 cents formed part of the 2 acres and 23 cents described in the documents already referred to. That not being the case, the circumstance in question cannot by itself be an answer to the plaintiff's claim, if that be not barred by limitation and is otherwise sustainable. The article of the Limitation Act applicable is Article 131, but there was no averment or proof on behalf of the defendants that any demand for rent had been made and refused 12 years prior to the date of the suit.
2. The other ground taken by the District Munsif, which is what forms the sole basis of the District Judge's conclusion on appeal, has reference to certain trees which formed a tope or grove on the land in question up to about the year 1871 or so. Both the Dis-trict Munsif and the District Judge hold that the ' tope' constituted the Inam--a form of expression conveying no very precise meaning--the foundation for which is the use of the phrase ' tope inam' in the Inam Register as well as in the title-deed. In thus making that expression, the sole criterion as to what the Inam consisted of, the lower Courts practically ignore entries in the Inam Register which throw real light on the nature of the inam. Those in columns 3, 4 and 5 expressly treat as Inam the whole of the 2 acres and 23 cents, on portions only of which the trees stood and so much thereof as was used for rice cultivation is shown in column 12 as Inam subject to payment of one-quarter assessment to Government, the remaining three-fourths of the assessment being due to the Inamdar. The explanation for the inam being referred to as ' tope' inam, most probably is that when the inam was originally granted the land was entirely covered by trees and did not admit of other cultivation and therefore was spoken of as ' tope' as contradistinguished from ' wet' or ' dry,' with reference to the cultivaton usually followed in the matter. Or perhaps it may be that the system of assessment followed in the case of this Inam included, according to the practice which had prevailed prior to the year 1853 in Government villages, the imposition of an assessment on fruit-bearing trees as well. That the Inam consisted not only of such tree-tax, (if the latter be the real explanation) but also of tax on land on which no trees were growing and on which other cultivation was carried on, is clear from the imposition of the one-quarter wet assessment already referred to. Now if by the statement that the Inam consisted of tope only was meant that the right to the tree-tax alone was assigned as Inam, it would follow that where the trees ceased to exist the Inam became extinct. In this view as admittedly the trees were cut down with the consent of the Inamdar about the year 1871, the consequence would be that the Government would thereafter have been entitled to treat the 2 acres and odd us altogether free from any claim on the part of the kattalai and was having become ryotwary land subject to payment of land revenue. But of course that view has not been taken or suggested by any of the parties concerned, including the Government who have continued to acknowledge the 2 acres and 23 cents as the permanent Inam of the kattalai subject to the payment of Rs. 2 8-0, the quit-rent fixed by the Inam Commission when the Inam was confirmed and the Sannad granted.
3. If follows, therefore, that the defendants as parties in possession of part of what was assigned as Inam to the kattalai, are liable to pay the proportionate rent. No serious question having been raised in the Courts below as to the amount thereof we must reverse the decree of the lower Courts and grant the declaration prayed for and also award the arrears claimed with interest at six per cent from the date of plaint up to date of payment with costs throughout.