1. The plaintiffs, on behalf of the Tiruvangatt Devasam, sued to recover four pieces of land with arrears of rent. They alleged that those lands had been let to Eravattu Keshava Poduval, the third defendant's late husband, the younger brother of the second defendant, and the uncle of the first defendant, in September or October 1865. The plaintiffs produced a marupattam or counterpart of a lease, alleging that it was executed by that lessee, but that document was objected to on the ground that it had not been registered. Plaintiffs alleged entry under the marupattam by him, and then by his brother, and then by third defendant. The third defendant, who is the present appellant, denied the genuineness of the marrupattam, and stated that the senior male member of- the family at the date of the marupattam was not Keshava Poduval who was said to have executed it, but one Vikrama Poduval. As to the land No. 3, the third defendant stated that the devasam had only a koovam right to receive rent. And as to the other lands, she admitted that the devasam had the jenm right; but she denied that she was liable to be ejected, and stated that the plaint lands had been granted long ago by the devasam to the Mutta Poduval Sthanam of her tarwad which had an equal interest with the plaintiffs in the devasam and which was entitled to receive 1,716 1/2 seers of paddy from these lands, paying any surplus profits to the devasam; that she had continued to pay such surplus to the devasam until 1878, when the plaintiffs objected to the deductions made and refused to receive the surplus profits of the lands.
2. The Subordinate Judge gave the plaintiffs a decree for possession of the lands with arrears of rent and interest; but allowed the third defendant's tarwad to deduct 400 dangalis of paddy, to which he held that they were entitled. The plaintiffs appealed against that deduction and the third defendant appealed against the other part of the decree.
3. As to the right to recover possession of the lands, the Subordinate Judge was of opinion that the jenm right was in the devasam, while third defendant had failed to prove the alleged permanent right of her tarwad; and in that opinion the District Judge appears to have concurred. The District Judge, however, accepted the third defendant's contention as to the rate of rent payable, and reduced it to 900 seers per annum for three years.
4. It is not disputed that the marupattam cannot be received in evidence as a document affecting the land. But it has been argued that we may look at it for the purpose of ascertaining the terms on which the third defendant held over, after the period of that lease had expired. It is, however, impossible to know that the term of the lease to which the marupattam relates has expired, or even to know that there ever was such a lease without using the marupattam as a document affecting the land, or as evidence of a transaction affecting the property: G. Lee Morris v. Sapamtheetha Pillay 6 M.H.C.R. 45 Somu Gurukkal v. Rangammal 7 M.H.C.R. 13. The plaintiffs' case, therefore, must rest, not on the marupattam, but on the admissions made by the third defendant.
5. In Malabar the jenmi is not often in actual possession of the lands; and long tenures, whether by way of mortgage or lease for a term renewable or permanent, are so common, that it would be impossible to maintain as a proposition of general application that the jenmi is at liberty to eject at his pleasure a family of tenants who have been in possession for many years.
6. In the present case the tarwad of the first three defendants has held possession for many years, paying rent to the devasam; and they do not admit the plaintiffs' right to eject them, but on the contrary the third defendant claims that their tarwad enjoys a grant of certain emoluments from the temple, the value of which, she says, they are entitled to deduct from the net profits, paying only the balance to the devasam.
7. We are of opinion that in these circumstances it was for the plaintiffs to prove that they had a right to eject the defendants and this they have not done. They have not proved the marupattam under which or the lease which they say the defendants held. As to the amount of rent awarded by the District Judge upon the third defendant's admission, the decree of the District Court is confirmed: Unicha Kandyil Kunhi Kutti Nair v. Valia Pidigail Kunhamed Kutty Maraccar 4 M.H.C.R. 359. As to the plaintiffs' claim to recover possession of the lands, the suit is dismissed.
8. Plaintiff's and third defendant have each succeeded in part and failed in part; there will be no costs of this appeal.
9. The decree will be, that the decree of the Lower Appellate Court, dated ' 23rd March 1882, so far as it directs that the third defendant do pay to the plaintiff arrears to the date of the plaint at 900 seers of paddy per annum for three years equal to 2,700 at 70 rupees per 1,000 seers equal to Rs. 189 and interest at 20 per cent. in paddy to be calculated for the decree from the date of each year accruing, and so far as it leaves plaintiff to sue for future rent, be confirmed, and that the said decree and the decree of the Lower Court awarding possession of the lands to the plaintiff be reversed, and ate to that claim this suit be dismissed, and that each party do abide their costs of this suit and appeal throughout.
10. The plaintiffs' objection is dismissed with costs.