John Wallis, C.J.
1. These are appeals from the decree of the Subordinate Judge of Tanjore in a suit brought by the plaintiff as trustee of a temple to eject the defendants from the lands in their possession in the village of Sellur on the ground that the lands are the properties of the temple. The Subordinate Judge after a very careful examination of the eivdence decreed the plaintiff's suit and the defendants have appealed. The case which is one of great importance to the parties was again very ably and elaborately argued before us for several days, and we reserved judgment. The first question for consideration is, is the village of Sellur an estate within the meaning of the Estates Land Act of 1908, as, if so, the defendants are entitled to occupancy rights under the Act and the jurisdiction of the civil courts in ejectment is taken away. This question is closely connected with the question whether the defendants are entitled to occupancy rights apart from the Act, because in conferring or recognizing occupancy right the legislature, speaking generally, has so far confined itself to cases where a presumption of occupancy right had been recognized by the courts before the passing of the Act. Curiously enough the majority of cases which came before the courts related to lands owned by temples like this or mutts in Tanjore, In all these cases the decision was against the existence of occupancy right except in Krishnasami v. Varadaraja (1882) 5 Mad. 345 and Chockalingam Pillai v. Mayandi Chettiar 6 M.L.J. 247 and the latter decision was reversed by the Privy Council in Mayandi Chettiar v. Chockalingam Pillai (1904) I.L.R. 27 M. 291. (P.C.). In the well-known Chockalingam's case (1871) 6 M.H.C.R. 164 certain observations of the learned Judges questioning the decision in Venkataramanier v. Ananda Chetty (1869) 5 M.H.C.R. 120 were thought to have gone far to negative the existence of occupancy rights in permanently settled estates, but the subsequent decisions in Appa Rau v. Subbanna I.L.R. (1889) M. 60 and Venkatanarsimha Naidu v. Dandamudi Kottayya I.L.R. (1897) M. 299 and Cheekati Zamindar v. Ranasooru Dhora I.L.R. (1899) M. 318 showed that this was not so, and recognized a presumption of occupancy right in Zamindari ryots on the ground that the Zemindars were largely in the position of assignees of land revenue, that the grants in their favour did not affect the ownership of the ryots in the soil, and that even as regards ryots admitted after the sunnads granted to the Zemindari proprietors under Regulation XXV of 1802, the presumption was that they had been admitted on the same terms as other ryots in the Zamindari, that is, with occupancy rights. On the other hand in Cheekati Zamindar v. Ranasooru Dhora I.L.R. (1899) M. 318 the latest and leading case on this subject, the learned Judges, Shephard and Subramania Aiyar, JJ., recognized that the presumption is the other way in cases where the landlord claiming to eject is not a mere assignee of land revenue, but is himself the owner of the soil--following the decision of Sir Arthur Collins, C.J. and Muthusami Aiyar, J, in Chidambara Pillai v. Thiruvengadathiengar (1887) 7 M.L.J. 1. The learned Judges held that ' the claim for an occupancy right as overriding the proprietor's right to cultivate his own land is of a special character and as such it is one which the party seeking to derogate from the ordinary incidents of property is bound to establish. Of course the appellants are entitled to the benefit of any presumption which may reasonably arise from the length of enjoyment, and other special circumstances of the case. The contention that mere length of enjoyment in the capacity of tenants or purakudies irrespective of other circumstances is prima facie proof of occupancy right cannot be supported.' Applying the principles laid down by the courts the legislature in the Act of 1908, has conferred occupancy rights on ryots in zemindaris except as to zemindari pannai lands which the zemindar cultivates as his own and except as regards lands which have never been in the hands of cultivators or have been relinquished and come within the definition of ' old waste.' The only villages outside such large estates that come under the operation of the Act and come within the definition of estate are villages ' of which the land revenue alone has been granted as inam to a person not owning the kudivaram thereof...or any separated part of such village.' If the inamdar or assignee in whole or in part of the Government revenue on the village, owns the kudivaram, that is to say, is also a land-owner in the village, the presumption against him does not arise, the Act is not made applicable to his case, and the question whether those holding under him have occupancy rights is left to be decided by the Court, the presumption being that they have not.
2. Now in this case it is absolutely clear, as found by the Subordinate Judge, that, as regards this village, the temple is not a mere assignee of land revenue but the owner of lands in the village. We cannot indeed tell the date at which it was founded or became so, but we know that temples in this part of India are not at all infrequently the mirasidars or hereditary owners of the cultivable lands in the village, and there is abundant evidence that this is so in the present case. It is sufficient to refer to the paimash register of 1829 in which the temple is described as having the ekabogam miras of the village, a term which is well understood as meaning the whole ownership of the mirasi right in the village as opposed to cases of palabogam where the ownership is divided among many. Further the parties to Exhibit E, through whom the plaintiff claims, undertake in that instrument to pay swamibogam and odavarams to the temple. These payments which are in the nature of rent and fees are payable to a mirasidar by those holding under him, and the fact that they were payable by those under whom the plaintiff claims shows that they held under the temple. The temple is then in the position of an ordinary ryot owning his holding subject to the payment of land revenue either to Government itself or, if the holding be situated in a zamindari to the zamindar as assignee of the Government demand. Now as regards such ryots whether they pay the revenue direct to Government or its assignees, the presumption in this Presidency as laid down in Chidambara Pillai v. Thiruvengadathiengar (1887) 7 M.L.J. 1 and recognised in Cheekati Zemindar v. Ranasooru Dhora I.L.R. (1899) M. 318 is against the existence of any occupancy rights in those holding under them and it is for those who set up such a right to prove it. This is the general law of the Presidency and the proper starting point from which to approach the question; but there are also, as I have already said, a long series of decisions as to these temple villages in Tanjore which have to be considered. They all recognize and enforce the presumption just referred to, but the result of course depended in each case on the materials put before the Court. All these temple villages in Tanjore have certain features in common. They were all managed from 1802 by the Collector on behalf of the temple until the East India Company in deference to certain religious bodies in England began to withdraw from management in the forties of last century. They were all included in the paimash or survey of Tanjore which, in this case, took place in 1829, They were also affected by the action taken by Mr. Kindersley, Collector of Tanjore, in 1830 and the following years in substituting money payments for the system till then prevailing of paying revenue in grain. As Collector he had to collect the revenue payable by the temples, and as Manager he had to collect the rents payable to them. In these circumstances he took the engagements or muchilikas which are a feature of all these cases except Krishnasami v. Varadaraja I.L.R. (1882) M. 345 by which the executants undertook to pay directly to the Collector in money not only the Government revenue payable by the temple but also the swamibogam or rent and other dues payable to the temple as landowner. Much depends on the proper inference to be drawn from the executiou of these documents. In the first case which came before the High Court in 1863, Alagaiya Thiruchittambala v. Saminada Pillai (1863) 1 M.H.C.R. 264 Scotland, C.J. and Holloway, J., stated that the question was whether ryots under the mirasidar have a title to the permanent occupancy of lands, subject to the payment of mirasidar's share, and observed that such a tenure for the most part depended on long established usage and custom which had to be proved. They were of opinion, however, that the mere existence of a muchilika, such as had been executed by the six ryots describing themselves as ulavadi kanikudi defining the terms of the ryots' holding, was opposed to the existence of an occupancy right; and they held that the terms of the particular muchilika by which the executants agreed to surrender the lands if any one offered more were absolutely inconsistent with it. In the case in Subupalayi Ammal v. Appakutti Aiyangar (1866) 3 M.H.C.R. 106 the muchilika seems to have been taken from a single ryot, the 1st defendant's father. The 1 st defendant claimed to be a perpetual lessee under it, and the Court rejected his contention on the construction of the muchilika which is not set out. In Chockalingam's case, (Chockalinga Pillai v. Vythiyalinga Pandara Sannady (1871) 6 M.H.C.R. 164 the defendant claimed to be a permanent lessee under an izara muchilika granted to him by Mr. Kindersley in 1837, and on the construction of the document the Court held that it evidenced a letting from year to year unless the defendant alleged and proved an established custom of permanent occupancy. The defendant was not precluded, they held, by the terms of the muchilika from alleging and proving such a custom but he had not done so and it could not be presumed. No muchilika was forthcoming in Krishnasami v. Varadaraja I.L.R. (1882) M. 34. We have next two judgments of the Court in the same appeal, one reported in Thiagaraja v. Gnanasambantha and Subramania v. Gnansambantha I.L.R. (1883) M. 374 and the other in Thiagaraja v. Giyana Sambhanda Pandara Sannadhi I.L.R. (1887) M. 77 where the case was reheard. Kernan, J's, judgment is in the same terms in both cases, but there is a concurring judgment by Kindersley, J., in the first case and by Brandt, J. in the second. As in Chockalingam's case an inference against the existence of occupancy right was raised from the existence of the muchilika, Both these decisions were approved of by the Privy Council in Mayandi Ghettiar v. Chockalingam Pillai I.L.R. (1904) M. 291. In Chidambara Pillai v. Thiruvengadathiengar (1887) 7 M.L.J. 1 there were a series of muchilikas beginning in 1841 in which the executants bound themselves to cultivate for fixed periods and then restore the lands. The muchilikas also contained other indications opposed to the existence of occupancy right. The learned Judges came to the conclusion that the five persons styling themselves purakudis who executed the first muchilika were not improbably cultivating purakudis, ' that they were expected to cultivate together with other purakudis in the village, that they were selected as executants of the lease probably because they were the leading men or chief purakudis in the village for the time being, and that the distribution of the cultivable area among themselves for purposes of cultivation was left to be adjusted by them at each lease or other interval of time'. I think that this is probably true of most of the other muchilikas produced in these cases. We have next the case in Chockalingam Pillai v. Mayandi Ghettiar I.L.R. (1896) M. 485 which was overruled by the Privy Council in Mayandi Ghettiar v. Chockalingam Pillai I.L.R. (1904) M. 291. In that case the High Court reversed the judgments of the two lower Courts in Second Appeal. The defendants in support of their claim produced two leases granted in 1813 which entitled the grantees to hold the lands permanently for all time to come by right of 'ulavadi kani,' and in the muchilikas subsequently executed by the defendants who claim under these leases they were described as ulavadai mirasidars. The Judicial Committee in their reversing judgment appear to have been of opinion that the leases of 1813 were of questionable validity and could not be relied on. On the other hand, they laid great stress on the fact that the dharkast or application pursuant to which the muchilika was taken by the Collector described the two applicants as purakudis of the assessed lands in the village owned by the temple, and on the facts that in it they undertook to pay the revenue for one year and asked that a dharkast izara for one year might be granted in their names. The inferences to be drawn from these facts were not counterbalanced in their Lordships' opinion by the fact that in the muchilika the two executants were styled ulavadai miras. On the materials before them and with reference to the observations of the Subordinate Judge, their Lordships treated the words ulavadai miras as of doubtful signification. Having regard to the further investigation which these tenures have received especially in the judgment of Spencer, J., in Chinnan v. Kondam Naidu (1915) 26 M.L.J. 169 and in the Chingleput Mirasi case, Seshala Chetty v. Chinnasami, I.L.R. (1916) M. 410. I have no doubt the word miras in this part of India implies some sort of hereditary right. All that their Lordships said about it came to this, that on the materials before them it was of doubtful signification, and that therefore the decision could not be rested on it. After referring with approval to the decisions in Chockalingam Pillai v. Vythiyalinga Pandara Sannady (1871) 6 M.H.C.R. 164 and Thiagaraja v. Giyana Sambanda Pandara Sannadhi I.L.R. (1887) M. 77 and distinguishing Krishnasami v. Varadaraja I.L.R. (1882) M. 345 their Lordships finally observed that the question must be decided on the contract sanctioned by the Collector, that is to say the muchilika. In the next ease, Mahomd Meera Lavvai Marakayar v. Ramalingam Pillai (1911) 1 M.W.N. 84 which came before Munro and Sankaran Nair, JJ., the learned Judges held it sufficient to say that appellants had not proved that they had permanent occupancy rights in the village and that it was not necessary to say that none of the tenants had it. As regards that particular village the question was again most elaborately considered by my learned brother sitting with Napier, J. in Naina Pillai Marakayar v. Ramanathan Chettiar : (1917)33MLJ84 and the same conclusion was come to.
3. The result is that in all these Tanjore temple villages which have come before the Court except one, occupancy right have been held not to exist, and in that case no muchilika taken by the Collector after 1830 was put in evidence. The onus is therefore very strong on the defendants to make out their case. The evidence has been so very fully analysed by the Subordinate Judge and now by my learned brother that it is unnecessary for me to say more than that I. agree generally with their conclusions.
[Then His Lordship discusses the evidence in the case.]
4. On the whole I do not think there is sufficient evidence in the present case to rebut the inference against occupancy right which according to so many decisions arises from the execution of the muchilika, Exhibit E, by the persons through whom the present defendants admittedly claim. If the defendants' predecessors had not occupancy rights in 1831, I do not think they can have acquired them since by reason of the fact that the trustees have raised no objection of late years to the transfer of the holdings by sale and mortgage. In Mayandi Ghettiar v. Chockalingam Pillai I.L.R. (1904) M. 291 the Judicial Committee question the right of temple trustees to confer permanent rights of occupancy by express grant, and I think they can still less be held to have done so by implication. It is of course very unfortunate that the temple authorities should have thought it necessary to enforce the claims of the temple by seeking to eject all the tenants in the village but this is not a matter which can affect our decision.
5. I agree with the orders proposed by my learned brother as regards all these cases.
Sadasiva Aiyar, J.
6. These three appeals have arisen out of the same suit, Original Suit No. 4 of 1913 on the file of the Temporary Subordinate Judge's Court of Tanjore. The appellants are the important defendants in the suit. In Appeal No. 228 of 1916 which is the principal of the three appeals, the 43rd defendant is the 1st appellant. There are four other appellants in that appeal, namely, defendants Nos. 44, 137, 138 and 139 in the suit, but their only ground of appeal, is that they should have been exonerated from all liability to the plaintiff as from the beginning they repudiated all interest in or possession of any of the properties in dispute. The plaintiff who brought the suit in April 1910 in the Negapatam Sub-Court (from which Court it was transferred to the Temporary Subordinate Judge's Court of Tanjore) is the trustee of the famous and ancient Sri Navaneetha Iswaraswami temple situated in the village of Sikkil near Negapatam. The temple owns lands in several villages. This suit was brought for recovery of lands, house sites and houses situated in the village of Sellur, the defendants being alleged to be tenants from year to year who refused to vacate their holdings after proper notices to quit had been given.
7. 157 defendants were impleaded at first and with the legal representatives of defendants who died during the pendency of the suit, the last number of the defendants became 176.
8. The most important question in this suit is whether the tenants have got occupancy rights in the cultivable lands in the village in their respective holdings. The other minor questions need not be referred to at present as a detailing of them will unnecessarily distract the attention from the main issue and the conclusions in respect of several of them depend upon the decision on the main issue.
9. The principal question is covered by the first three issues framed in the suit which are as follows:
1. Is the plaint temple the absolute proprietor of the entire village of Sellur
2. Are the defendants tenants from year to year and is the plaintiff entitled to eject them ?
3. Are all or any of the defendants entitled to a right of permanent occupancy by prescription or otherwise?
10. The temple's right to and in the whole village of Sellur had its origin in such remote times that no grant or title-deed is forthcoming. The earliest document Exhibit ZZ in March of the year 1806 contains accounts showing that the temple harvested the produce of the lands in the village, allowed the temporary cultivators (called purakudis) the waram due for their labour at varying rates for the lands in the southern half and in the northern half of the village and retained the balance. (The word 'kudivaram' means strictly the share given to or retained by the actual cultivator or 'kudi'. The right of permanent occupancy, if it belongs to the 'kudi' is sometimes known in the Zemindari and Inam tracts as 'kuclivaram right,' but the mere receipt of kudivaram by a tenant does not of course show he has the 'kudivaram right' in the larger sense, that is, that he has permanent occupancy right in the lands in his holding. Sometimes the kudivaram right is shortly spoken of as ''kudivaram' and this occasionally leads to confusion.) [His Lordship then examines the evidence in the case.]
11. We now come to the undisputed important paimash account of 1816 which has not been marked as one single exhibit, but portions of which have been marked in a confusing manner as Exhibits H, HI, XI and XI (a). This paimash account almost conclusively shows that the plaint temple was in 1816 (and had been before that) the sole proprietor of the actual soil of all the lands in the village of Sellur. The temple was paying nelkuthagai (paddy revenue) to the Government and the village in question was known as the nelkuthagai village belonging to Sikkil Navaneetha Iswarasawmi temple. The, lands, house-sites and every bit of soil in the village are mentioned as belonging to the big temple with its two sub-temples of Kailasanathaswami and Ananthanarayana Perumal to which two sub-temples, small areas had been given by the bigger temple as sarvamaniyam. The whole area of the village is stated to be in the enjoyment of these ' three individuals,' that is, the three temples.
12. The only ' mirasi' right recognised in any others is in 7 dwellings of tenants, other tenants' houses being 38 in number and occupied by purakkudis (7), kasavargam holders (service tenure) (10) and adimais (slaves or serfs) (21). Then we come to another set of undisputedly genuine documents marked Exhibits F, F1, F4, F5, F13 and F14. The earliest of them is dated 30th October 1820 and the latest is dated in January 1825. It is well known that these and other famous temples in Tanjore were managed by the Collector on behalf of Government for about half a century from about the beginning of the 19th century. The Collectors found that it was very difficult to make the cultivators (mostly fugitive) to properly cultivate the lands. So in 1820, the then Collector of Tanjore thought it best in the interest of the temples to obtain proposals from intending lessees for short periods of one to five years and to let the whole cultivable area in each temple village to that intending lessee who offers the highest rent (paddy for nanja lands and cash for punja lands), it being the successful offerer's look-out to bring cultivators upon the lands and to bring as much extent as he could under cultivation. Such leases are known as ' proposal' leases. Exhibits F(1) and F(13) relate to the Izara muchilika executed by one Chockalingam Pillai taking up the lands in this plaint (Sellur) village and another temple village (Abhishekakattalai) under the Collector from 1st July 1820 to 30th June 1823, that is for three years. Exhibit F(1) clearly shows that the actual cultivators were only purakudis that is, cultivators who had no definite term of incumbency and were entitled only to purakudiwaram to be paid by the lessee out of the gross produce, that the lands themselves were let and that the mirasi or occupation right in the lands belonged to the temple, the paddy revenue due to Government being the real melvaram. The mirasidar when he cultivated through either his pannai or adimai (slave or serf) cultivators takes the whole produce minus the Government paddy revenue, paying wages to his pannaiyals and serfs. If he leases them to several purakudies or to the proposal-lessee, what he gets from the lessee may be loosely called ' melvaram ', the proposal-lessee taking the kudivaram. In the case of the proposal-lessee again as between himself and the purakudis, what he retains will be again ' melvaram ' and what the purakudies are given will be the ' Kudivaram.' But as I said, such loose language leads to confusion and in the old documents, 'melvaram' is used usually for the Government paddy revenue and purakudivaram is used for the purakudi cultivators' share given to them out of harvested produce, what the temple mirasidar obtains being known as swamibhogam (a very important term) to which thunduvaram is attached in some cases.
13. The next document is Exhibit F(4). This is one of the proposals or offers made for the plaint Sellur village and the other Abhishekakattalai Village in September 1823 by one of the intending proposal-lessees. This is for only one year. This proposer's proposal seems to have been accepted also for the three succeeding Faslis 1234 to 1236, that is, July 1824 to June 1827 (See Exhibit F) because he agreed to pay 3,850 kalams of paddy rent per year instead of 3,750 kalams which prevailed in the preceding 4 years. These documents which had effect between 1820 and 1827 for 7 years clearly establish the temple's proprie-tory kudivaram right in the village lands and the fact that its lessees were changed even during this short period. See also Exhibit YY(1), account of the receipts and disbursements of the temple in the last year of the proposal-lease period. Then the lands were again taken up by the temple under amani system and Exhibit N, is the account of the year 1827--28. This account shows that the entire gross produce was harvested by the temple, purakudivaram being paid out of it to the actual cultivators under the temple.
14. We now come to an important document of 1828--29 which is the paimash chittah of the Sellur village prepared in that year. This document again, like the paimash of 1816, has been exhibited not as one document, but as several documents, namely, H(2), WWW series (5 in number), XI (b), XLVIII series (10 in number), LXXXIV and LXXVII. This paimash account was laboriously prepared, though not by the higher grade Revenue Officers. Such an account, it is well known, while fairly reliable as regards the numbers, extents and character of the lands as mentioned in it and as regards broad statements as to rights, is also found to contain statements based on the allegations of interested and ignorant residents of the village and such statements are of very little value especially when there has been no subsequent revision or check by an officer of one of the higher Revenue grades. (See observations in the judgment in a similar case Naina Pillai Marakayar v. Ramanathan Chettiar : (1917)33MLJ84 . There are even statements of a somewhat (what I may call) absurd character found in such preliminary paimash accounts. In the present case for instance, while Exhibits H2, WWW and in fact every portion of this paimash chitta account of 1829 acknowledges the temple to be the sole ekabhogam mirasidar entitled to the full occupancy and cultivation right in the whole of the village lands, we find in Exhibit XI(b) (See page 438 of the printed documents papers) that 11 persons are described as ulavadai kani mirasi tenants (under the ekabhogam mirasidar) of the village nanjah lands and one of these 11 persons is stated to be the temple itself, that is, the temple is a tenant of land under itself, which is absurd. Again the very next sentence in this Exhibit XI(b) is inconsistent with any kudivaram or occupancy right in all but the temple, because it says that the custom in the village is that only purakudivaram is entered in the Devasthanam accounts as given to tenants and that, because the Government gets its revenue in paddy, there is no mirasivaram in the village. This sentence clearly means that the mirasidar temple takes the whole produce under its kudivaram or direct cultivation right and gives out of it to the purakudi tenants the share due to them for the labour of cultivation.
15. Guarding ourselves then from giving too much weight to the inconsistent and contradictory statements sometimes found here and there in this paimash account of 1829 (it seems not to have been checked by any higher revenue officer), the statements in this paimash account clearly indicate that the kudivaram right belonged to the temple alone as ekabhogam mirasidar.
16. Then we come to the last set of the really important documents in this case, namely, Exhibits E.F.19, F 20, XIII series, F2 and F3. We have seen that the proposal-leases came to an end in 1828 and that the village lauds were again harvested by the temple Manager, the Collector, on the amani system. The then Collector, Mr. Kindersley, in the year 1830, desired to substitute money payments on what was known as a 'permanent commutation' rate, that is, commutation as regards the value of the paddy revenue payable by the temples. (' The word permanent' in some of these documents denotes only the permanency of the commutation rate at which the paddy grain due to the Government as melvaram revenue was permanently settled. See at the end of Exhibit E, where the temple lessees consent to the following provisions. 'As for the nanjah melvaram in respect of the said village, we shall pay theervai according to the price permanently settled at 3 9/16 pons per kalam. Whether the price becomes more or less than that price, the profits or loss must go to us and not to the Government.') Mr. Kindersley also dropped the original pannai, purakudi and adimai cultivation systems and the intermediate 'proposal' system and let the entire cultivable lands in each temple village on what has become familiar, as the ' tharam faisal muchilika' system to one or more lessees, such lessees (where there were several) being usually the prominent, influential and representative persons among the numerous cultivators in the village. Many of these 'tharam faisal muchilikas' have come in several cases before this Court. The important operative clauses in them have always been substantially the same. The applications to the Collector by the intending lessees in respect of these 'tharam faisal muchilikas' have slightly differed, in language, some of the applicants describing themselves as purakudies alone, some as kudimiras, some as purakudimiras, some as ulavadai puraku-dimiras and some (as in this case) ulavadai kudikanimiras. Some applications mentioned only one fasli, and others mentioned indefinite periods and so on, but the muchilikas in which the applications culminated, and which were finally accepted by the Collector and were executed by the lessees, contained almost the same terms. In this plaint village of Sellur, the 'tharam faisal muchilika' executed to the Collector is Exhibit E. It was executed on 6th February 1831 by seven persons, two of them Brahmins (including a Brahmin lady), three of them Pillais and two of some other caste. In the body of the document, the male Brahmin executant describes himself as purakudi Samu Iyer One. other executant describes himself as ulavadai Kanimiras Arunachellam Pillai. Another executant Suppa Pillai signs at the end as purakudi Suppa Pillai. But all of them jointly execute Exhibit E, agreeing to be jointly liable under it in identical terms. The document begins by describing the nanjah and punjah lands which these have jointly agreed to accept from the temple for the purpose of cultivation from the current fasli. They agree to pay the melvaram theervai due to the Government (the Collector, who obtained Exhibit E. being both the Government Agent and the temple Manager) in cash instead of grain, though the said theervai was directly due by the lessor (the temple) to the Government. They further agree to pay the equivalent price of the paddy grain besides the punjah cash rent due to the temple as swamibhogam (soil proprietor's dues, see Wilson's Glossary). Then, they say that they will pay the rents as agreed upon as long as the lands are in their possession. There are also provisions for paying additional revenue to Government when garden crops such as betel, tobacco, plantain, onions, garlic etc., are cultivated, besides an additional thunduvaram (of the same nature as swamibogam or soil proprietor's share) to the temple. Provision is again made when waste lands are cultivated newly for paying additional theervai and swamibhogam to the Government and the temple respectively. They are also to supply kudimaramath labour for repairs etc., besides men for carrying the temple paraphernalia in times of festivals and so on.
17. As I pointed out, none of the executants of the muchilika claims a higher right in any portion of th lands than any of ihe other executants. I have dealt in my judgment in Naina Pillai Marakayar v. Ramanathan Chettiar (1917) 38 M.L.J. 84 the Mangal case with the uniform interpretation which has been placed upon these 'tharam faisal muchilikas' by this High Court from Chockalinga Pillai v. Vythialinga Pandara Sannady (1871) 6 M.H.C.R 164 namely, that the lessees who execute those muchilikas and agree to cultivate lands under them do so on a terminable tenure and cannot claim a permanent right of occupancy. It is contended that the executants could not be held to have agreed to relinquish their then existing permanent right of occupancy by executing this muchilika, assuming that they had such a permanent right on the date of its execution. I shall shortly state three considerations which refute this argument:
18. Firstly, the burden of proving that on the date of this muchilika of 1831, the executants had a permanent right of occupancy lies very heavily on them and on those claiming under them. (The contesting defendants have clearly admitted in thia case that they claimed only under the executants of these muchilikas). It is not contended that in all the lands of the village taken together the executants had a joint permanent occupancy right. That the temple was cultivating at least about one-third of the lands through pannai purakudies then is admitted, the paimash of 1829, as I said already, making the statement that as regards those lands, the temple was its own ulavadai kudikani tenant. It is also admitted that these Brahmins and Pillais (who executed Exhibit E,) and numerous other tenants cultivated distinct plots in the village separately and not jointly. The permanent occupancy right was in fact claimed only for those who are described in the paimash of 1829 as ulavadai kudikani mirasidars and not for the numerous persons described as purakudies etc, Mr. T.R. Venkatarama Sastri for the 43rd defendant even argued strenuously that the occupancy right could not be claimed for the lands in the vadapathi (northern half) portion of the village lands but only for the lands in the thenpathi (southern half) portion in the holding of his client, the two halves being separated by a common irrigation channel. That the descriptions given of themselves by these tenants are of little value has been held in almost all the cases Mere assertion by a tenant, especially where his landlord is a temple whose trustee cannot give an occupancy right without breach of trust, would not derogate from the plain rights of the temple. See Satya Sri v. Kartik (1912) 15 C.L.J 227 and Maharanee Shibessouree Debia v. Mothooranath Acharjo (1869) 13 M.I.A. 270. In Chidambara Pillai v. Thiruvengadathiengar (1887) 7 M.L.J. 1 followed in this respect even in Cheekati Zamindar v. Ranasooru Dhora I.L.R. (1899) M. 318 the presumption against the existence of occupancy rights in a tenant, holding under a person who himself owns the kudivaram proprietory right in the soil is stated to be a strong presumption. In the present case, except the vague description of some cultivating tenants in the paimash of 1829 as ulavadi kudikani mirasidars and the fact recorded in that paimash account that some lands in the possession of one of these tenants were mortgaged to the temple and to another person (even assuming such statements to be true and even assuming that the mortgage was in 1811 under (Exhibit XLVI) there is no other evidence to support the contention that in 1831, any cultivable lands, much less all the cultivable lands in the village, were held under permanent occupancy right, whereas the overwhelming probabilities are against the validity of that contention.
19. In the second place, I think, considering the influenca of the old East India Company's Collectors and even of he Subordinate Revenue Officers, the executants of the muchilika Exhibit E who represented all the cultivating tenants, must be deemed to have agreed thereafter not to claim any larger interest (assuming that they had any such plausible claims before that) when they accepted the lands for cultivation under the terms of Exhibit E than was expressly reserved to them thereunder. It seems difficult to hold that persons intending to claim varying rights (some superior and some inferior, the superior rights again to be attached to some only of the lands and the inferior rights to other lands) would jointly execute the same muchilika clubbing all the cultivable lands together and agreeing to hold them on. the same terms (with further provisions for cultivating additional lands not then held by any of them and so on) unless as decided in some of the cases on similar facts, they intended that the newly created leasehold rights under the 'tharam faisal muchilika' should supersede the vague and varying old rights, if any. The permanent right, alleged to have already existed, is again claimed not under any perpetual lease granted with reference to any specific area, but because the tenants were ulavadai kudikani mirasidars of the entire village lands. The arguments at page 9 of the case Chidambara Pillai v. Thiruvengadathiengar (1887) 7 M.L.J. 1 on this point are very instructive. 'Further, the provisions which the seveal leases contain with reference to the cultivation of poramboke, the protection of trees and the appropriation of trees seem to indicate that this kudikani right, if any, did not extend to other than land under actual cultivation and this is not ordinarily the case where ryots have kudikani right to the village as contradistinguished from a perpetual lease granted with reference to a specific area, It is not the appellants' case that they or their ancestors had a perpetual lease from the temple.' In Thiagaraja v. Giyana Samhanda Pandara Sannadhi I.L.R (1887) M. 77 Kernan, J., says at page 79 'it is contended that long possession is evidence of right of occupancy. But when the right of possession or right to continue in possession is proved, as in this case, to have arisen under a written instrument which does not provide for right of permanent occupancy, then the right to possession must prima facie follow the terms of the instrument in the absence of any subsequent agreement.' In that case, the defendants had been in possession since, at all events, 1827 (see page 78), that is, before the date of the muchilika of 1830 which gave them the right to continue in possession under certain definite terms. The learned Judge, as I said above, held that the right to so continue must be governed by the terms of the 'tharam faisal muchilika' and not by any prior circumstance. Even when there was a regular perpetual lease granted to a tenant in 1820, it was held by the first two Courts in the case decided in Mayandi Chettiar v. Chockalingam Pillai I.L.R. (1904) M. 291 that by applying for a fresh grant and executing a 'tharam faisal muchilika' in 1832 'the tenant had either given up or had lost all his right to the perpetual lease granted to him by the temple authorities and that all he and his successors have to. depend upon is the fresh contract made with the Collector in 1832 under which no permanent right of occupancy was conferred.' This conclusion was approved of by their Lordships of the Privy Council.
20. Thirdly, the areas of the holdings after the date of this 'tharam faisal muchilika' Exhibit E of 1831 do not correspond to the areas mentioned in the paimash of 1829, Exhibit XI(b). In Exhibit XI(b) for instance Appasami Appa is alleged to be the tenant of 2 velis plus 7 velis 5 mahs, total 9 1/4 velis. But ha is content to hold after the date of Exhibit E, 2 valis 2 mahs and 65 gulis (see Exhibit F 20) and is described in Exhibit F 20 as a mere purakudi, while in the paimash account he is one of the elevan ulavadai kudikani mirasidars. The learned Subordinate Judge has also shown how the descriptions as regards both the lands and the tenants mentioned in the paimash of 1829 are full of inconsistencies and contradictions, adopting the statement prepared by the plaintiff's vakil in the lower court from the records. (See paragraph 104 of the Subordinate Judge's judgment and the statement marked A appended to that judgment).
21. Another contention was that the conduct of the temple trustees in standing by when the tenants were alienating by sale and mortgage and subdividing their holdings conferred a right of permanent occupancy on the tenants by estoppel or by prescription. I have nothing to add to what I said to a similar contention in the case in Naina Pillai Marakayar v. Ramanathan Chettiar : (1917)33MLJ84 and I must, therefore, reject the contention. As Muthusawmi Aiyar, J., said in the case in Chidambara Pillai v. Thiruvengadathiengar (1887) 7 M.L.J. 1 'Seeing that the officers of Government had managed the temple villages for many years prior to 1857, it is not improbable that the consideration shown by them to purakudies as an incident of good management and the length of time for which the purakudies cultivated, inspired them with a belief that they were not liable to be ejected as long as they were punctual in the payment of rent. This may account for sales and mortgages by the appellants and their predecessors accompanied with an assertion of kudikani right which may loosely be used to indicate a permanent tenure of some kind or other. It may be that the trustees took no notice of what the purakudies did as they undertook (with the Collector) not to interfere with their occupation so long as they regularly paid rent.' I shall, therefore, not refer in detail to the numerous documents on the defendants' side subsequent to 1831 ranging from 183a (see Exhibit LXXXVII) to January 1910. (see Exhibit IV, dated about 3 months before suit) indicating voluntary and involuntary alienations of the holdings and the recognition of the alienees as tenants by the temple.
22. In the result, I agree with the conclusions of the Subordinate Judge on the principal three issues. The Appeal No. 228 of 1916 therefore substantially fails except in two particulars, (1) the defendants Nos. 44, 137, 138 and 139 will be exonerated from the plaintiff's claim as they disclaimed all interest in the lands, and (2) the mesne profits awarded would be separately assessed against the 43rd defendant as regards the lands in his possession. In other respects, the appeal is dismissed, the 43rd defendant paying proportionate costs to the plaintiff in both courts on the value of the relief decreed against him.
[With slight modifications which are not material to this report, the other two appeals were also dismissed.]
23. Lastly, there are the Memoranda of Cross Objections filed by the plaintiff as regards the house-sites and houses in the possession of the defendants. These properties are clearly not included in the 'tharam faisal muchilika,' Exhibit E, and the plaintiff has not shown any title to eject the defendants from the house-sites and houses. The other contentions except interest on mesne profits in the Memoranda of Cross Objections are not pressed. The Memoranda are therefore dismissed with costs except as regards interest on mesne profits which will be allowed at 6 per cent. per annum from date of plaint.