1. In these appeals the question at issue is whether the plaintiffs, minor inamdars, are entitled to evict the defendants who are cultivating their inam lands.
2. The Lower Appellate Court has found that the tenants have not proved their occupancy right, and that they have not subsequently acquired the right of occupancy ; and has accordingly decreed the suits in favour of the plaintiffs.
3. In these appeals it is contended that the Lower Appellate Court has not considered the decision of the Privy Council in Sivaprakasa Pandara Sannadhi v. Veeramma Reddi ILR (1922) M 586. In that case it was finally laid down that in considering the nature of an inam grant, namely whether it was a grant of the meivaram only or a grant of both melvaram and kudivaram, no presumption can be made in favour either of the grantee or of the cultivator. For a long period this Court had held that there was a presumption, especially in the case of Brahmins, that the grant was only of the melvaram. This presumption was held to be wrong by the Privy Council in Venkata Sastrulu v. Seetharamudu ILR (1919) M 166. which says that each case must be considered on its own facts. Subsequent to that decision a Full Bench of this Court in Muthu Goundan v. Perumai Aiyan ILR (1921) M 588. held that there was an initial presumption in favour of the grant of both varams. In Sivaprakasa Pandara Sannadhi v. Veeramma Reddi ILR (1922) M 586. this judgment has been referred to. It is pointed out by the learned Judges that the Full Bench decision is clearly in error and that there is no presumption one way or the other. In the present case therefore it would appear that in the absence of any presumption that plaintiffs own the kudivaram it is incumbent on them to prove such right, which must be invoked to support their claim to eject defendants. The ordinary principle that a person suing in ejectment must prove his right to eject will apply. The learned Subordinate Judge has started his judgment with an assumption ' that the burden is on the cultivating tenants to show that they and their predecessors-in-title have been in occupation of the identical lands from the date anterior to the grant.'' Admittedly the grants to the plaintiffs' predecessors were prior to the British rule and it would be extremely difficult for the defendants to prove that at the time of the grants their predecessors were actually in possession of the lands. It seems to me therefore that on the authority of Sivaprakasa Pandara Sannadhi v. Veeramma Reddi ILR (1922) M 586. the burden in the present suits is on the plaintiffs to prove their right to eject.
4. It is, however, contended for the respondents that this principle laid down by the Privy Council in 1922 has been modified in 1923 by the judgment in Nainapillai Marakayar v. Ramanadhan Chettiar ILR (1923) M 337 : 46 MLJ 546. in which it is stated:
It cannot now be doubted that when a tenant of lands in India, in a suit by his landlord to eject him from them, sets up a defence that he has a right of permanent tenancy in the lands, the onus of proving that he has such right is upon the tenant.
5. It is contended that by reason of this dictum the burden is upon the defendants to prove their occupancy rights. The decision in Nainapillai Marakayar v. Ramanadhan Chettiar ILR (1923) M 337. is based upon two prior cases The Secretary of State for India in Council v. Luchmeswar Singh ILR (1888) C 223 and Sethuratnam Aiyar v. Venkatachala Goundan ILR (1919) M 567. In both these cases it was either admitted, or found as a fact, that the tenants had been let into possession by the landlord and that consequently when the tenant claimed to possess occupancy right, it was incumbent upon him to prove it. I think that the same principle has been repeated in Nainapillai Marakayar v. Ramanadhan Chettiar ILR (1923) M 337. That 'case does not in any way modify the judgment of their Lordships delivered in the preceding year. In Nainapillai Marakayar v. Ramanadhan Chettiar ILR (1923) M 337 it is stated that the ' lands ' in respect of which a decree of ejectment has been made are part of the endowed property of the temple and that it is not disputed that the defendants were ' tenants ' of the temple lands to which the suits relate. It had been definitely found by the Subordinate Judge that the plaintiffs had both varams in the lands and consequently it was incumbent on the defendants to prove their occupancy right. If one were to interpret the judgment otherwise, it would appear that Sivaprakasa Pandara Sannadhi v. Veeramma Reddi ILR (1922) M 586 and Nainapillai Marakayar v. Ramanadhan Chettiar ILR (1923) M 337 are in conflict, and, inasmuch as the judgment in the former is not referred to in the latter, I do not think that any such inference can be drawn if the cases can be explained in any other manner. As I have said above, the latter case follows two prior cases in which the land itself belonged to the plaintiff, and consequently I think that in this last case also it must be deemed that the judgment is based on such an assumption. If I am correct in this, the present suits have to be determined in accordance with the principle laid down in Sivaprakasa Pandara Sannadhi v. Veeramma Reddi ILR (1922) M 586 and that is, that there is no presumption that the grantee of an inam is holder of both varams. In this view it might be advisable to set aside the finding of the Subordinate Judge and ask for another finding ; but inasmuch as the facts are all before me, I do not think it is necessary. The District Munsif has dealt with the defendants' evidence at considerable length and has found that the defendants and their predecessors-in-interest have been in possession of the suit lands at any rate from 1843 onwards and that they have been disposing of their rights in those lands and dealing with them as if they had this right of occupancy. There is not a particle of evidence to show that the original grantee was himself in occupation of the suit lands before the grant and the only available evidence as to the tenants in possession shows that so far back as there is any record, the defendants and their predecessors have been cultivating the lands and dealing with them as if they had this right of occupancy. The learned Subordinate Judge has not referred to any particular facts in favour of the plaintiffs beyond reciting the history of land tenures in this Presidency and, although that history is not inconsistent with the grant of the actual land to plaintiffs., it does not support such a grant to any greater extent than a grant of melvaram only. Each case has to be determined on the evidence given therein. In the present case the District Munsif is right in holding that the plaintiffs have not proved their right to eject.
6. The Lower Appellate Court's decrees are therefore set aside and the decree of the District Munsif restored with costs both here and in the Lower Appellate Court.