Sidney Wadsworth, Officiating C.J.
1. These Letters Patent Appeals arise out of a decision of Shahabuddin, J., in a batch of second appeals concerning a number of plots situated in a large block of village site claimed to be the property of the minor plaintiff. The appellants are the defendants. One Sivanupandia Thevar,. who died in 1897 was the owner of an estate known as ' the Pannai estate ' which is alleged to comprise amongst other things the western portion of S. No. 340, which is part of the village site or gramanatham. He left three daughters, Muthammal, who died in 1924, Ponnammal who seems to have died before 1909 and Madipillai, Ammal who died in 1928. Ponnammal had a daughter who also died long ago leaving a son Murugiah Thevar. In 1927, there was a partition of the estate between Madipillai Ammal, Sangathal, the daughter of the deceased Muthammal, and Murugiah, the grandson of the deceased Ponnammal. By the partition arrangement the property with which we are now concerned was handed over to Murugiah Thevar. A curious factor in this case is that it was the practice of the ladies who, enjoyed this estate to give it on lease to a lessee called the kattukuthagaidar who will be referred to hereafter as the intermediate lessee. He paid a lump sum rent both for the privilege of cultivating the cultivable lands and also for the privilege of collecting the rents from the various house sites comprised in the village site number. But the occupants of, these house sites were given leases in the name of one or more of the actual proprietors so that they were not sub-lessees of the intermediate lessee who collected the rents. After this partition arrangement had been made, the surviving daughter of Sivanupandia Thevar, Madipillai Ammal adopted her daughter's son, the plaintiff, who was then a young child and after making this adoption she died sometime in 1928.
2. The legal position at the time of her death was that the property with which we are now concerned was held by Murugiah under a partition arrangement which was good so long as Madipillai Ammal was alive but would not bind the plaintiff as the reversioner of the estate of his adopted mother's father. It was however sometime before the plaintiff's protectors realised the necessity for taking action. Eventually the District Court appointed a guardian for the minor plaintiff and in 1932 a suit was filed against Murugiah and Sangathal, the daughter of the eldest sister Muthammal, claiming recovery of the estate. In this suit, the tenants of the house sites were not impleaded as parties, but the intermediate lessee was. The suit was decreed in 1935.
3. The facts vary slightly with reference to each of the properties covered by these various suits; but we do not think it necessary to set forth those details which have been fully stated in the judgment of the first appellate Court. It is sufficient to say that in all the appeals there was some sort of a document of lease from an estate ; but in two of the cases these leases were unregistered and in two other cases the leases were actually given in the time of Murugiah after the death of the plaintiff's adopted mother. But it would appear that all the properties with which we are concerned were originally held by somebody or other (not always a relative of the defendant concerned) under a tenancy created by the proprietor of the Pannai estate at some time before the trouble arose. Most of the registered leases expired long ago. It also seems to be established that Murugiah was in actual possession of the landlord's interest with reference to all these plots since the partition in 1927 even after the death of Madipillai Ammal in 1928, and that the intermediate lessee went on collecting the rents without recognising the plaintiff as the real owner of the estate. The rents seem to have been paid in nearly every case up to 1932, when the litigation started. There is ho positive evidence that the intermediate lessee was recognising Murugiah as his lessor, but the fact that when a fresh lease was executed by the intermediate lessee after the death of Madipillai Ammal, he executed it in favour of Murugiah, leads to the natural inference that he was recognising Murugiah as his landlord. The probability therefore seems to be that such rents as were paid after 1928 by the various tenants to the intermediate lessor were paid to him as the agent of Murugiah.
4. The suits in which the plaintiff claims to recover possession from all those various defendants were undoubtedly filed on the footing that the defendants held the properties as tenants holding over on the termination of teases granted by the estate of which the plaintiff was the proprietor. It is in fact difficult to establish this case, though it was found to have been established so far as most of the lands are concerned by the trial Court and the first appellate Court. If in fact Murugiah was denying the plaintiff's title and the defendants were after 1928 holding under Murugiah by paying rent to him through his agent and if from 1932 onwards they were paying rent to nobody at all, there is an obvious difficulty in holding that the defendants were tenants holding over on the termination of oral leases from the plaintiff or his predecessor. It is not as if the plaintiff is claiming as the successor of Murugiah. His claim is based on the assertion that Murugiah was after the death of the limited owner a trespasser ; and though no doubt by the success of the suit against Murugiah, the plaintiff would become entitled to evict any persons whom Murugiah had let into possession that would not be on the footing that he was their landlord but on the footing that their landlord was a person who had no title. We are therefore not convinced of the soundness of the view that all the leases, oral or otherwise, given by Murugiah must on or after the date of the plaintiff's decree be deemed to be leases given by the plaintiff.
5. It has been contended that if there was no tenancy relationship between the-plaintiff and the various defendants, the plaintiff's suits based as they were on an assertion of tenancy should have been dismissed. In fact, however, the defendants themselves put into issue the title of the plaintiff and claimed that they themselves-were not the tenants of any body, but had themselves acquired title by adverse possession and in each of the suits, the first issue was
Whether the plaintiff is the owner of the plaint third schedule property as alleged by him; or does it belong to the defendant as contended by him
Mr. Subba Rao for the appellants has relied on the decision in Balasidhantam v. Perumal Chetti : AIR1915Mad654 as authority for the view that when a suit was based on tenancy the Court cannot go into the defence based on denial of the plaintiff's title and give an adjudication thereon except for the purpose of deciding the question of tenancy. This argument is, however, based on an incorrect head note to the report; for what the learned Judges really held was that the Court need not go into the question of title. The decision in Gobindakumar Sur v. Mohinimohan Sen (1929) I.L.R. 57 Cal. 349 which follows Balasidhantam v. Perumal Chetti : AIR1915Mad654 seems also to proceed on the basis of the head-note and not on the basis of the actual decision. It was held by a Full Bench of the Allahabad High Court in Balamukund v. Dalu (1903) I.L.R. 25 All. 498 in a suit filed on the basis of an averment of tenancy which was not properly proved, that even though no issue was framed regarding title but the defendant had denied the plaintiff's title and had set up adverse possession and evidence was taken fully on both sides on the question of title, a decree based on the plaintiff's title could be given against the defendants. The plaintiff is in a stronger position here, for undoubtedly the main issue in each of these suits raises the question whether the plaintiff or the defendant had title to the lands in dispute. It might, no doubt, be undesirable to give a decree in such circumstances merely on a finding that the plaintiff was entitled to the property in cases where it was necessary for the plaintiff to establish possession within 12 years of a suit in order to get a decree on his title. But that difficulty does not arise here, for the plaintiff is claiming the property as the reversioner on the death of the limited owner in 1928 and he is still a minor. There can be no question therefore of his suit being barred provided that his title is established. We are therefore of opinion that notwithstanding the difficulty of establishing in every case the plaintiff's right to recover the property on the footing of the tenancy alleged, if his title is established, there is no reason why he should not get a decree on the finding of the first issue in each suit.
6. It has, however, been contended that the plaintiff's title was not established and that the finding of the Courts below upholding his title was wrong. The argument is that all these lands were plots situated within a large number which is registered in the revenue records as gramanatham poromboke and it is contended on the authority of the decision in Jayarama Naidu v. Secretary of State for India 1929 M.W.N. 143 that when there is a question of title to land registered as gramanatham poromboke, mere proof of occupation for a period of years less than 60 years would not be sufficient and it is necessary to establish either a grant from Government or occupation for a sufficient period to establish a prescriptive right against the Government. We are not in the present case concerned with a dispute between a private claimant to a village site on the one hand and the Government on the other, as in the decision just quoted. All the defendants have been paying rent at one time or another to a person purporting to be the agent of one or other member of the family claiming as the successor of Sivanupandia Thevar to whom the plaintiff is the reversioner. The defendants, however, have not paid rent to the plaintiff or acknowledged his title and if they can show that the plaintiff has not established his title and that the real owner is the Government the suits must fail. It seems to us that the plaintiff's title to the property has been sufficiently established. Not only have the plaintiff's predecessors been dealing with these lands for a long period of years by means of registered leases and otherwise, but both the village officers have given evidence that the lands in question are occupied gramanatham and do not form part of the land which is at the disposal of the Government. It is also established that when certain of the defendants applied to the Tahsildar for a grant of the lands in their occupation, the Tashildar refused to make the grant on the ground that the sites which they claim were already private property. On these materials-it is impossible to contend that the plaintiff's claim to title is bad because of any title inhering in the Government whose officers support the title of the plaintiff.
7. We do not think it necessary to dwell at length on the argument that when the only document of lease is an unregistered document which cannot be effective to create a tenancy the inference from the payment of rent should not be that the occupant is a tenant but that he is a mere licensee. The argument is based on a decision of single Judge of the Allahabad High Court in Anand Sarup v. Taiyab Hasan : AIR1943All279 . It seems to run contrary to the reasoning of the Bench decision of this Court in Manickam Pillai v. Ratnasami Nadar : (1917)33MLJ684 . Moreover in the view that we take that the plaintiff is entitled to succeed on his title, the question really becomes immaterial.
8. The appellants have contended that if they are to be evicted, they are entitled to the value of the improvements which they have made to the property. It has been argued that the decision of Ramesam and Jackson, JJ., in Subbarao v. Veeranjaneyaswami : AIR1930Mad298 has extended the principle of Section 51 of the Transfer of Property Act to permanent leases and if it is sufficient in order to establish a claim under this section for the transferee to show that he is a lessee who did not expect to be evicted, then all these defendants would be entitled to recover the value of the houses which they have built. In Shumnmugha Desikar v. Ananthakrishnaswami Naidu 1938 M.W.N. 1236 one of us had occasion to consider the decision in Subbarao v. Veeranjaneyaswami : AIR1930Mad298 the authorities upon which it is based and certain other Bench decisions of this Court which seem to sound in a different direction. We do not think it necessary for the purposes of the present case to go into the question whether the decision in Subbarao v. Veeranjaneyaswami : AIR1930Mad298 has not extended Section 51 of the Transfer of Property Act, rather further than is justified by the words of the section. It is sufficient for the purposes of the present case to say that in none of these suits is there anything in the nature of a perpetual lease or an absolute title which would provide a foundation for a claim under Section 51 nor are there any facts upon which any equitable estoppel could be put. The appellants have, therefore, no claim to compensation for improvements.
9. Lastly the appellants have put forward a, contention which has not been raised in the pleadings and does not appear to have been argued in the trial Court or in the lower appellate Court, though we are told that it was mentioned before Shahabuddin, J. That contention is based on the words of the various rental agreements. In Ex. P-41, one of these agreements the relevant words are:
If after the expiry of the above stipulated period it is necessary that you should have the site, I shall remove my superstructure or I shall receive the value thereof and leave the site.
Similar words are found in Ex. P-28 where the words have been translated:
I shall deliver the above site either by removing the superstructure herein or by receiving its value.
10. The contention is that these and similar words in other agreements give the option to the tenant to claim either the value of the superstructure or the materials thereof and that the lessor is obliged to pay the value if the tenant wants it. It seems to us that the clause on which reliance is placed is at the best ambiguous. There are no words which definitely place an obligation upon the lessor to pay at the option of the tenant. Moreover, the enforcement of this option, if it exists, depends on the subsistence of the tenancy and the appellants have been strenuously urging with a certain amount of success that there was no tenancy on the strength of which they could be evicted. Seeing that our decision is based not on the proof of a subsisting tenancy but on the proof of a subsisting title, the question does not really arise.
11. In the result, we dismiss the appeals with costs--advocates' fee Rs. 20 in each case.