1. The suit out of which this second appeal arises was instituted by the plaintiff for ejecting the first and second defendants from certain lauds of which they were in possession. The plaintiff alleges that the defendants are tenants at will or tenants from year to year, and that the tenancy was determined by notice to quit. The lands are held on ryotwari tenure under Government, and the plaintiff is admittedly the pattadar. On the other hand it is admitted that the defendants and their predecessors have been in possession for a very long time - about 100 years. The plaintiff produced no evidence to show that he let the defendants into possession of the lands, or any other evidence of a contract of tenancy entered into at any particular time. His case is that he is the kudivaramdar of the lauds and that the defendants are his tenants.
2. The defendants allege, on the other hand, in their written statement, that they are persons entitled to hold the lands permanently; that they have been in enjoyment for a long time, and that they are the kudivaramdars, the plaintiff being entitled only to melwaram.
3. The District Munsif dismissed the suit. He held that the plaintiff must be taken to be the kudivaramdar as the Government patta was in his name. But he was of opinion that the plaintiff had not proved any right to eject the defendants who, in his opinion, must be taken to be permanent lessees of the lands.
4. On appeal the District Judge reversed the judgment and passed a decree ejecting the defendants from the lands excepting a small portion. The judgment of the lower appellate court proceeds entirely on the ground that the plaintiff being the pattadar was the owner of the kudivaram suit, and such being the case, it must be presumed that the defendants are tenants from year to year and therefore liable to be ejected. He says : 'In Government ryotwari villages the State is in the position of melwaramdar and the pattadar in that of kudivaramdar.' He does not find that the defendants' predecessors ever entered into occupation of the laud under the plaintiff's predecessors. The position taken up by him practically is that any ryot cultivating ryotwari lands of which he is not the pattadar and paying a portion of the produce of the land to the pattadar must be held to be a tenant from year to year, unless he proves a contract entitling him to any higher status, even though the pattadar is unable to show on what terms the ryot entered on possession.
5. We are of opinion that such a broad proposition cannot be supported. It may be assumed that the pattadar is the owner of the kudivaram right, as opposed to the melwaram right which is vested in Government. But there is no foundation for the assumption that a ryot who is not the kudivaramdar in the technical sense of that word, cannot be a person having a right of occupancy over the land. The District Judge infers from Exs. A and A that the defendant's possession began subsequent to 1805 as the land was entered as waste in those documents. Assuming the inference to be correct there is no evidence that the defendant's possession commenced under the plaintiff. The earliest patta produced by the plaintiff is dated 1855. There is no evidence to show that defendants' possession was subsequent to that year. It was held by this court in Venkata Charlu v. Kandappa I.L.R. (1891) M. 95 where the ryots had been in occupation for about fifty years and there was no evidence as to the terms of their holding, that the plaintiff in that suit was not entitled to a decree for ejectment. A person suing in ejectment must, at any rate, prove, in the first instance, that the defendant came into possession under a contract of tenancy, before he could claim to eject, the latter. Even where a tenancy is proved, the court is not bound to presume that it is one from year to year and to throw the onus of disproving it on the tenant. As pointed out in Checkata Zemindar v. Ranasoor Dhora I.L.R. (1899) M. 318 by Sheppard J. at page 321 : 'The Legislature has been careful to save tenancies for agricultural purposes from the immediate operation of Section 106 of the Transfer of Property Act.' Whether a presumption of tenancy from year to year will be drawn in any particular case will depend on the length of possession of the tenant, the presence or absence of variation in the rate of rent, the manner in which the tenant has been dealing with the land and other circumstances in the case. The defendants in this case have admittedly been in possession for a long time. It is not stated that the rent paid has been uniform, but the District Judge expresses no opinion on the question. The documentary evidence on the defendants' side shows that they have been dealing with the land as their own. The District Judge having made the presumption that the defendants are tenants from year to year observes that these documents are not sufficient to rebut that presumption. But if the presumption referred to in Section 106 of the Transfer of Property Act is inapplicable these dealings might be quite sufficient to induce the court not to make any presumption of tenancy from year to year. Having regard to the fact that the right in land is often shared in this country among several persons, the mere fact of the payment of a share of the produce by the cultivating ryot to the puttadar is not sufficient to prove that the defendant is the pattadar's tenant in the strict legal acceptation of that term.
6. We are of opinion that the judgment of the District Judge is vitiated by legal misconceptions. This observation would equally apply to the judgment of the Munsif who speaks of the defendants as permanent lessees. There is some evidence on record of ejectment of other ryots in the same village by plaintiff, but the District Judge does not refer to it and it does not appear whether any facts have been proved which would render that circumstance admissible in evidence against defendants.
7. We must set aside the judgment of the District Judge and remand the appeal to him for fresh disposal with reference to the above observations. In the circumstances we think that both parties should be at liberty to adduce fresh evidence if so advised. The costs of this appeal will abide the result.