1. The plaintiff as adinakartar (Tarn. A proprietor) and panchayattar (Court of arbitration) of a certain temple at Kandiyur has brought this suit on behalf of the temple to eject the defendants from certain lands in the village of Karuvur belonging to the temple, and for arrears of melvaram (the proportion of crop claimed by Government), and swamibhogam (the proprietor's or landlord's right). It was alleged in the plaint that, about forty years before, the defendants' ancestors, Maruthai Pillai and others, had executed a muchalka in favour of Government (who were then managing the affairs of the temple) undertaking to pay annually to the temple 285-6 kalams of paddy and Rs. 724-11-8 in cash; and also procure the persons necessary to carry things at the processions on festival days. But the defendants had allowed the payments to fall into arrears, and had not supplied men for the processions as agreed. In these circumstances it was alleged that, according to the muchalka, the managers of the temple might eject the tenants.
2. The defendants stated that the plaintiff was not the adinakartar of the temple; that, while the Government had the melvaram right, the mirasivaram and the kudivaram had belonged to their ancestors, who also were the sthani-kans (managers) of the temple; and that their ancestors had given the mirasi right to the temple, but had retained the permanent right of cultivation, which they and the defendant had enjoyed 'from the beginning '; and, therefore, they were not liable to be ejected. Moreover, the payments due to the temple had been duly paid and were not in arrears; and. the defendants themselves had been assisting at the processions on festival days. The claim for Fasli 1284 was barred by limitation, and, the claim having already been heard and determined, the suit was barred by Section 13 of the Code of Civil Procedure.
3. The Subordinate Judge found that, though there was no proof that the plaintiff was the adinakartar of the temple, yet, as he was admittedly the panchayattar of the temple, he was entitled to sue on behalf of the temple. He observed that the muchalka marked E showed that in 1857 these temple lands were delivered by the Revenue authorities to the plaintiff's natural father, Srinivasa Ayyangar, and to Kunja Pillai, son of Maruthai, brother of the first three defendants, grandfather of the fifth defendant, and uncle of the fourth and sixth defendants, who were the then panchayattars of the temple; that, before that transfer in 1829, the lands had been taken by two brahmans on a lease for four years; after which, in 1833, the Collector let the land to the defendants' ancestor, Maruthai Pillai, who was referred to in the paimaish account G as the cultivating parakudi ulavadai:1 It was admitted that the temple was entitled to the miras, and to the swami-bhogam. Kunja Pillai, relative of the defendants, had admitted in Suit No. 252 of 1858 that the village in question belonged to the temple, and that the cultivators were parakudis; and in his durkhast J the defendants' ancestor Maruthai had described himself as a parakudi.
4. The Subordinate Judge was, therefore, of opinion that the defendants had failed to establish their right of permanent occupancy. He therefore gave the plaintiff' a decree for the lands in question, except certain lands in the possession of the fourth defendant, the claim to which he held to be barred by the decision of the Sadr Court in the suit already mentioned. He decreed that the defendants be ejected from the other lands. He held that the payments claimed for Fasli 1284 were barred by limitation, but he decreed to the plaintiff' the mesne profits on account of Faslies 1285-6-7, the amount of which was to be ascertained in execution. He directed that the plaintiff should pay the cost of the fourth defendant; and that the other defendants should pay the proportionate costs of the plaintiff.
5. Against that decree both parties have appealed. The plaintiff contended that the decision of the Sadr Court had not determined the matter in issue, and, therefore, the present suit as against the fourth defendant was not barred.
6. The other defendants appealed on the ground that they had a permanent tenure, and were not liable to be ejected.
7. With regard to the appeal No. 79 preferred by the plaintiff, I am of opinion that the late Sadr Court have decided in favour of the permanent tenure claimed by the fourth defendant's father, Sola Perumal Pillai, in Special Appeal 649 of 1860, which arose out of the Suit 252 of 1858 already mentioned. That suit was brought by Srinivasa Ayyangar and Kunja Pillai, the newly-appointed panchayattars of the temple, to eject Sola Perumal Pillai and other raiyats from the temple lands. Sola Perumal pleaded a right of permanent occupancy. The Sadr Court observed in effect that there was nothing to show that, if the swamibhogam had not been paid, the Collector 'would have ventured on the extreme measure' of ousting the defendants, 'who had been in undisturbed possession for more than half a century.' Nor had the raiyats acknowledged that the wardens of the pagoda had any higher powers than the Collector had before he transferred the temple to them. The learned Judges of the Sadr Court then proceeded to remark that the right of the wardens of the temple to the swamibhogam had not been disputed. But that if it had been disputed they might, under the regulations, have sought the assistance of the Revenue authorities without attempting to shake the long-established right of cultivation clearly vested in the defendants.' And in the result the suit was dismissed with costs.
8. I am of opinion that that decision finally determined that the wardens or panchayattars of the temple were not entitled to eject the fourth defendant's father and the other defendants, because the Court found that those defendants had a permanent right of occupancy. Hence, this question as between the present plaintiff suing on behalf of the pagoda and the fourth defendant is res judicata, and the plaintiff's appeal should, I think, be dismissed with costs.
9. As to the appeal preferred by all the defendants except the fourth defendant, it appears that the plaintiff has brought this suit upon a muchalka which he has not been able to produce, and the execution of which is not proved. Neither is there any proof of the document marked J.2 But if it be genuine, it is an offer for a permanent tenure. And in the Exhibit F the Collector in 1833 authorizes the Tahsildar to take a muchalka from Marimuthoo Pillai who appears to be identical with Maruthai, because he had been cultivating the land for a long time. The fourth defendant in his evidence says that Maruthai was a brother of his grandfather. All the defendants belong to one family, and their tenure has one and the same origin. The Sadr Court have held that the fourth defendant and his father before him had been in 1861 in possession for more than half a century, and the testimony of the fourth and fifth witnesses for the defendants is that they and Maruthai before them had been in possession for fifty or sixty years.
10. On the other hand, the documents A and B3 are not proved; and they are but feebly supported by the testimony of the plaintiff's third witness, a servant of the pagoda.
11. The Exhibit E is the muchalka given by the wardens of the pagoda when they took over the management from the Collector. It does not affect the rights of the defendants.
12. The Subordinate Judge has relied very much on the circumstances that Maruthai Pillai was described in the paimaish accounts as cultivating parakudi ulavadai; and that in the muchalka J Maruthai described himself as a parakudi. Now assuming those documents to be admissible in evidence, I think it unsafe to base my judgment upon the rights of the parties upon the meaning of a single word, which may not have the same meaning at all times and in all places. But the term parakudi has often been used as the correlative of mirasidar. It is a part of the defendants' case that they have long ago relinquished their mirasi rights in favour of the temple : and, if after that relinquishment their ancestor described himself as a parakudi, it does not follow that he intended thereby to acknowledge himself a tenant from year to year. Indeed, the document J is in terms a proposal for a permanent tenure.
13. It appears to me that the evidence tends to support the contention of the defendants that their tenure is permanent, and that they are not liable to be ejected by the plaintiff; and there is hardly any evidence to the contrary. It has not been proved that any arrears of payments were due to the temple. I would, therefore, reverse the decree of the Subordinate Court.
Charles A. Turner, Kt., C.J. (Muttusami Ayyar, J., concurring).
14. The miras of the village of Karuvur is admittedly the property of the Harasabhavmochana Perumal Pagoda at Kandiyur.
15. The plaintiff, who is the trustee of the temple lands, alleging that the defendants held the lands under an engagement made with the Collector about forty years before suit, claimed to eject them for remaining in possession after the service of notice to quit.
16. The defendants maintained that the village was originally the property of one of their ancestors who was a manager of the temple, and that, on his endowing the temple with the miras he reserved to himself the right of occupancy as cultivator. They also alleged that the revenue and proprietary dues had been fixed in perpetuity.
17. No evidence has been produced in this suit to prove the original ownership of the defendants' ancestor. In a former suit in 1858 a patta was produced and apparently accepted by the Court as genuine which showed that in 1806 Annaya Pillai, who, it is said, was an ancescor of the defendants, was manager of the temple property and occupied as cultivator the lands in Karuvur. In a paimaish account of 1827 the pagoda is entered as mirasidar, and Maruthai Pillai, the defendants' ancestor, as parakudi ulavadai.
18. When the management of the temple lands was exercised by the Collector, it appears to have been customary to provide for the realization of the Government revenue and proprietary dues of the temple by issuing leases to persons who undertook to cultivate or get the lands cultivated and to make collections from the raiyats.
19. In 1829 the Collector issued a lease of this description in respect of the lands in suit to two Ayyangar brahmans. Although the counterpart, the only document produced, and probably the only document executed, contains terms which might warrant the conclusion it was the counterpart of a lease to a cultivator, the evidence shows that the Ayyangars were not the actual cultivators and that the lease was regarded as a farming lease.
20. The engagement was taken for a period of four years only. It contains the following conditions: 'We bind ourselves to pay for the malvaram on wet crops *** according to the price adopted for fixing the permanent Taram assessment, viz., at 3 1/8 fanams per kalam. Whether the price rises above or falls below that rate, the profit or loss so accruing shall be ours only, and the Government has nothing to do with it. As the permanent Taram is to be adopted from the current Fasli 1238, and we have agreed to it, we bind ourselves to continue to pay to the Government the Taram assessment fixed on the several numbers of our fields.' These conditions may be thus explained: the rate for dry land was a money rate and required no adjustment; the rate for wet land was a grain rate; and the value of the grain varying in each year, it was arranged that an average price should be accepted as the Taram assessment to enure during the term of the lease, so that the sum payable by the lessees should be a sum ascertained or capable of ascertainment by mere computation and without inquiry into prices.
21. In 1833 the lease to the Ayyangars expired, and Maruthai Pillai sent in a durkhast rnuchalka for the village, Exhibit J. In this document, which is dated July 30th, 1833, he describes himself as a parakudi and engages to pay a consolidated sum of Rs. 818-l-6 1/2 for the proprietary dues and revenue. Although the authenticity of the document is disputed by the defendants, it was produced from proper custody. It was forwarded from the Collector's Office on the requisition of the Sub-Judge; and it is not probable that, if the pagoda trustees could have secured the introduction into the Collector's record-room of a forged document, they would have concocted one with the term 'permanently' in it, which has afforded ground for an argument, not devoid of weight, antagonistic to the claim advanced in the interests of the pagoda in this and in previous litigation. We entertain no doubt the document is authentic.
22. It appears from the diary of sanads issued to the Tahsildar of the taluk that a report had been submitted by that officer to the Collector probably with the durkhast muchalka in which he represented that Marimuthu Pillai (a clerical error for Maruthai Pillai) had been cultivating for a long time in the village as a parakudi, and that there was no other parakudi, and he requested permission to make over the izara4 to him. On the 13th September 1833 the Collector passed orders on this report that if there were no other parakudis the Tahsildar should take from Marimuthu Pillai a muchalka in the prescribed form stating therein that Swamy-bhogam should be given in the shape of paddy and submit the same with the security taken from him. This order suggests a doubt whether the engagement Exhibit J was eventually accepted. The Collector authorized the acceptance of an engagement only in the prescribed form and reserving a grain rent; but it may be that it was reported that the swamibhogam had, as appears from the engagement of the Ayyangars. theretofore, been consolidated in a money rent, and that the Collector did not insist on the execution of another engagement. No other is forthcoming, and the Collector's orders were so far carried out that Maruthai Pillai and no other person appears to have held the farm until 1849 when the father of the fourth defendant established by suit his right as a brother of Maruthai Pillar's to a one-fourth share in whatever interest Maruthai Pillai had in the village and was placed in possession.
23. In 1857 the Collector transferred the trusteeship of the temple lands to the plaintiff's father and Kunja Pillai, a brother of the defendants 1, 2, 3.
24. On this occasion the new trustees entered into an engagement with the Collector, Exhibit E, respecting the management of the temple estates. The lands now in suit are described in this instrument as nunja, punja, &c.;, leased out for paddy in the village of Karuvur.
25. The new trustees bound themselves to observe the agreements made between the izaradars and the Government to allow the parakudis the rights and swatantrams5 according to the custom of each village and not to remove the said raiyats so long as they continued to pay the rent payable by them. They also agreed, if the Government introduced any changes respecting the revenue or other arrangements in villages directly under the Government, to introduce the same changes into the villages made over to them if the Government desired them to do so.
26. In 1858 the managers sued the fourth defendant, his father, and brother to eject them for non-payment of rent. They pleaded a right to hold under the engagement made by Maruthai Pillai at a fixed rent and in perpetuity and questioned the right of the then plaintiffs to eject them.
27. Neither Exhibit J nor any muchalka taken under the order, Exhibit F, was produced in that suit. The Court of First Instance and the lower Appellate Court found that the then defendants had no right of occupancy. On appeal, the Sadr Court held that, as the cultivators had been in possession for more than fifty years, the trustees were not entitled to disturb by ejectment 'the long established right of possession clearly vested in them,' but should have proceeded to recover arrears by process in the Revenue Courts.
28. On these facts we are unable to hold that the defendants have any right to resist ejectment from the rights created by the engagement entered into in 1833. It was obviously the intention of the Collector to place Maruthai Pillai in the same position in virtue of that instrument as had been occupied by the Ayyangars, and according to the defendants' contention the Ayyangars had been mere farmers of the melvaram and swamibhogam and not cultivators.
29. It has never been the law in any part of India of which we have experience that a mere farmer of revenue or proprietary right acquires a right of occupancy, and the term permanently in the engagement, Exhibit J, which document the defendants repudiate, appears from a corresponding expression in the lease to the Ayyangars to have meant nothing more than a commutation of the revenue and proprietary share payable in kind into a money rate permanent for the duration of the engagement.
30. We may here notice the ruling of this Court in Chockalinga Pillai v. Vithealinga Pandarasannadi 6 M.H.C.R. 164 a ruling which has been much misunderstood. In that case an engagement for payment of revenue and swamibhogam had been taken from the then defendant's predecessor in title in terms closely resembling the engagement taken from the Ayyangars. The instrument was expressed to be an izara muchalka. The term izara may doubtless be used, as is the term Thika in Upper India, to denote any lease. In Wilson's Glossary it is defined as a lease or farm of land held at a defined rent or revenue whether from Government direct or from an intermediate prayer of Government revenue. It is ordinarily not to be confounded with the term patta which is especially applied to describe the lease granted to a cultivator and, in this Presidency, the revenue engagement of a raiyat. The izara in its special signification is a lease of the rights of the Government or of the intermediate proprietor between the Government and the cultivator.
31. Whatever may have been the real nature of the contract in Chocka-lingam Pillai's case, and it seems probable it was a farming lease, all that the Court held in that case was that, when a tenancy rests on contract only, the duration of the tenancy is regulated by the terms of the contract express or implied, and that neither the Rent Act nor the Regulations operate to extend its duration. Mr. Justice HOLLOWAY pointedly observes the tenancy commenced under the agreement. The Chief Justice admits that a right to hold so long as the rent stipulated was paid might have been made an available defence to suit by proof of established custom supporting it,' but that the existence of such a custom had not even been asserted in the case.
32. This ruling does not then, as it has been supposed to do, derogate from any customary right : it left those rights untouched, and Mr. Justice Holloway added, as we believe rightly, that the customary law was unaffected by the Regulations.
33. But while we are in accord with the ruling before mentioned as to any right created by the contract of 1833, we have to determine whether the defendants have not as they assert a right of permanent occupancy independent of that contract; and although they may have failed to establish that the right originated in the manner alleged by them, viz., by a reservation on the grant of the endowment, it may be that the facts established justify the recognition of a permanent right of occupancy existing in them in virtue of customary law. It cannot be disputed that their ancestors were the only cultivating tenants in the village from 1829; and in the suit brought by the Temple Trustees in 1858, it was found that their occupancy extended back at least to the year 1806 when Annaya Pillai was the tenant.
34. The circumstance that Annaya Pillai was also an agent of the temple and that members of the family have from time to time enjoyed the office of trustee establishes nothing more than the existence of a connection between the family of the defendants and the temple for a long series of years.
35. The right claimed by the defendants must then rest on customary law.
36. The circumstances of the several provinces of the peninsula and, indeed, of districts within provinces have so greatly varied that it would be unreasonable to expect to find now-a-days uniformity in the customary law regulating the relations of landlord and tenant, if at any time it existed.
37. Conquest abrogated or destroyed the rights of the several classes interested in the soil. Local conditions exposed some village communities to, while they protected others from, frequent and violent revolutions. The courage or supposed sanctity of a class here and there secured them peculiar privileges.. The exactions of arbitrary rulers, or the oppression of officials uncontrolled by effective checks left to recognized rights nothing more than a bare recognition. Such causes could not but result in a very considerable variety in the condition of the cultivating classes. They perhaps owe it to the circumstance that the wealth of India lay in the fertility of her soil, and that without cultivators domains were valueless, that they succeeded in preserving any trace of rights. Nevertheless, some have survived. Speaking generally, although the share left to the cultivator varied greatly, the rate was not competitive but regulated by . the custom whether of the village or the taluk.
38. Two classes of cultivators were recognized, the one permanently resident in the village, the other migratory or resident outside it. A cultivator of the former class is in Upper India known as maurusi asami--hereditary cultivator; in Madras, as ulkudi--a cultivator in the village. A cultivator of the other class is known in Upper India as a paikhast--a cultivator residing in the vicinity,, and in Madras as a payirkudi or parakudi--a cultivator of the crop, or one not permanently settled in the village.
39. But inasmuch as a parakudi might by permanent residence acquire the status of an ulkudi, we find the term ulparakudi used to denote a resident cultivator and the term parakudi applied loosely to cultivators of both classes.
40. What length of time was required to effect this change in the status of the cultivator has never been accurately ascertained. In Upper India it was assumed to be twelve years, a term adopted possibly from the limitation law, and it may be that the superior right was acquired not by prescription but by residence coupled with an avowed intention that it should be permanent and by the acceptance of the tenant by the landholder on the footing of a permanent tenant.
41. The difference of status between the two classes did not always exhibit itself in the payment by the resident raiyats of more favourable rates of rent.. The better lands would be first taken up by the residents. Additional inducement in the shape of a lower rate was necessary to attract the non-resident to the village.
42. The important distinction between the two classes consisted in this--that as a rule the resident raiyats enjoyed a greater security of tenure.
43. The common law of India appears to have recognized in the resident cultivator the right to an allotment of land in the village, but not always of the same lands.
44. In some villages different classes of cultivators raised different kinds of crops, and to avoid exhaustion of the soil holdings were periodically re-allotted. Generally, however, the resident cultivator held the same lands, and his family, as of right, inherited his interest.
45. His right rarely extended to a power of sale, though this was not altogether unknown where the cultivator had by the expenditure of his own capital made important improvements on his holding.
46. Nor was the paikhast in all cases devoid of a permanent interest in his holding. This was sometimes conceded to him as an inducement to break up jungle.
47. The report of Mr. Place on the Jaghir, 1799, recognizess the distinction between the two classes. He compared the former to English copyholders and asserted they could not be forced away from the village, and that the mira-idars must assign lands to them. Mirasi Papers, pp. 46, 59.
48. In 1805, Mr. Harris reported that the parakudis of Tanjore were the owners of all the cattle, the seed, and the implements of husbandry, and that the mirasidars relinquished their lands to them, but at a high rent. Mirasi Papers, p. 86.
49. Colonel Blackburn, misled by the original signification of the term, dissented from Mr. Harris' view, and regarded parakudis as foreign labourers. He, however, admitted there were many mirasis on which one or more families of parakudis had served the mirasidar and his ancestors for many generations. Ibid pp. 93, 94.
50. Mr. Wallace in the same year reported the existence in Tanjore of two classes of parakudis, of which one, by cultivating the lands from generation to generation, had acquired by prescription and tacit acknowledgment a right to continue in the management thereof, which the mirasidars never thought of disputing. Ibid. 96.
51. Many other passages might be cited from the collection of papers on mirasi right to prove that cultivators with rights of occupancy were found at the commencement of the century in many districts in this Presidency. Reference may also be made to Mr. A. D. Campbell's paper and the extracts from the fifth report of the select Committee which are reprinted in the Zamindary Settlement of Bengal, Vol. I, pp. 172-175.
52. When there is so much evidence to show that, by the custom of the country and of the district in which the lands in suit are situated, permanent cultivators are entitled to permanent occupancy, we do not see how this privilege can be refused to the defendants, whose ancestors have cultivated the lands they now hold for at least seventy years.
53. Although Marathai Pillai was recorded in the paimaish as a parakudi ulavadi, and the term does not necessarily imply a right of occupancy, he was recognized as the long resident cultivator by the Tahsildar, and on that ground his application for the izara was supported. We entertain no doubt that the Collector regarded him as an hereditary raiyat, and we do not consider that in recognizing the custom which entitled the raiyat to that status the Collector exceeded his powers.
54. The defendants may have no right to insist on the performance by the temple trustees of the engagement into which they entered with the Collector but they may at least appeal to it as evidence that the Collector regarded the raiyats in possession as raiyats with rights of occupancy.
55. The decision of the Court of Appeal that the tenure of the fourth defendant was in virtue of a clearly-established right of occupancy appears to conclude the case as far as the rights of that defendant are concerned, and is evidence against the temple trustees of the rights inherent in the other members of the family.
56. Without attempting to define what period of occupation should confer a right of occupancy--a matter which can now only be dealt with by legislation--we consider ourselves at liberty to say that  an occupation for upwards of seventy years is sufficient, under the circumstances of this case, to throw upon those who seek to disturb it the burden of showing that the tenancy was not accompanied with a right of occupancy, and that the plaintiff has not succeeded in doing so. The defendants are entitled to possession so long as they pay the customary rent.
57. We affirm then the decree in so far as it puts an end to the contract of 1833; but we reverse it in so far as it orders the ejectment of the defendants from the lauds cultivated by them and in so far as it awards mesne profits; and we direct each party to bear his own costs in both Courts.
1Parakudi: Temporary tenant whose tenure may be converted into that of ulkudi, or permanent occupancy, by agreement with the mirasidar or by possession undisturbed fop several generations. Ellis' Mirasi Right, p. 37 (Wilson).
Ulavadai: Act of ploughing; right to cultivate lands.
2 Copy of muchalka executed by defendants' ancestors, 30th July, 1833.
3 Copy of muchalka executed by plaintiff's ancestors to Sirkar, 29th June 1829, and patta granted by Sirkar.
4 A lease or farm of land held at a defined rent or revenue from Government or intermediate payer of public revenue. (Wilson.)
5. Perquisite ox fee claimable by a proprietor from a hereditary cultivator. (Wilson.)