1. The principal question is, are the defendants, appellants (tenants of the village of Santhaputhur), entitled to a right of permanent occupancy?
2. The ancestors of the defendants, and after them the defendants, have been in possession as cultivating raiyats since, at all events, 1827. See pymaish account, 18th May 1827.
3. In January 1830 a muchalka (exhibit A)was executed by the tenants of the village (ancestors of the defendants), agreeing to cultivate the lands and to pay the rents as therein reserved to the Collector on behalf of the temple.
4. In that muchalka no term is fixed for tenure, and the persons signing the muchalka are therein called purakudis.
5. Prima facie 'purakudis' are cultivators without occupancy rights. See the description given in Krishnasami v. Varadaraja I.L.R. 5 Mad. 345.
6. By muchalka A the parties signing agree to cultivate the wet and dry lands from Fasli 1830 as per pymaish Fasli 1826. The lands and the rates are specified and the period of payment and the whole kist and swamibogum (landlord's share). It is provided--' as we have thus agreed to pay, we will, as long as the lands are in our possession, pay the said instalments of kist and swamibogum.' It is provided that attachment is to be made if arrears accrue. Provision is made for higher rates on cultivation of betel, &c;, and for payment of tirva on cultivated waste and for payment of swatantrams (perquisites) to village servants and for sending men daily and fortnightly to festivals to carry articles, and that Government should remit on account of drought or flood.
7. There is nothing in that muchalka to lead to the conclusion that the cultivators were more than tenants from year to year.
8. In the year 1857, the Government delivered over to the predecessor of plaintiff all the rights to the temple and temple lands, including, of course the rights under the muchalka A. On the 7th of December 1857 a muchalka was executed by plaintiff's predecessor to the Collector.
9. In it there is a special clause that the plaintiff's predecessor should not eject any of the raiyats so long as they paid the kist properly payable by them. The plaintiffs, or those whom they represent, were not parties to the muchalka of 1857, and can derive no benefit from it. They could not enforce that clause.
10. In Chockalinga Pillai v. Vythealinga Pandara Sannady 6 M.H.C.R. 164 and in Krishnasami v. Varadaraja I.L.R. 5 Mad. 345 the muchalka to the Collector contained similar clauses, yet in each case it was not considered that such clause did not operate to give the right of permanent occupancy.
11. The defendants' ancestors and the defendants themselves have paid swamibogum to the temple and kist to Government from 1827.
12. During that period there was no large or substantial amount spent on reclamation, although it was so alleged. The evidence was insufficient to prove the allegation. No act is found to have been done in respect of the lands which would show a consciousness by the cultivators that they occupied on more than the ordinary terms of tenancy from fasli to fasli. The sale in 1880 by the eleventh and eighteenth defendants was after former suit commenced.
13. The tenants were bound to do service for the temple by assisting at the car procession to drag the car. But this obligation was part of their rent services.
14. If the cultivators are ejected by the plaintiff, they need not give their future service.
15. 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.
16. If the defendants rely on a right of occupancy created after that instrument, then it lies on them to prove the grant, oral or written, of such right or circumstances from which such grant could be legally presumed. There is no such grant either alleged to have been made nor are there any circumstances proved from which such a grant or right of occupancy could be presumed.
17. Whenever a tenant or raiyat gets possession of land for one year and continues in possession at the expiration of that year, he is, prima facie, held to so continue on the terms of his lease. Therefore the defendants must all be held to have continued by their ancestors or by themselves to hold each succeeding year on the terms of the muchalka of 1826. The result is that each of the cultivators is only tenant from year to year.
18. The case of Krishnasami v. Varadaraja I.L.R. 5 Mad. 345 is in its circumstances different from this. In that case there was no muchalka proved as here. There was an order passed by the Collector to allow the particular purakudi into possession to cultivate. Here the muchalka of 1826 is clearly only from year to year at the outside.
19. In that case the fourth defendant and all the. other defendants were members of one family. The plaintiff in that suit had previously brought a suit against the fourth defendant to eject him, and it was decided in that suit that the fourth defendant was entitled to a permanent right of occupation. As regards the fourth defendant, therefore, the plaintiff's right was at an end, being res judicata.
20. As regards the other defendants, it was held the adjudication in the former suit, in which their relation succeeded in respect of a right claimed by them, the same as the fourth defendant claimed, and the fact that there was no muchalka produced, and the deed of transfer by the Collector to plaintiff (in terms the same as the transfer in this case) and long possession paying rent, were circumstances which created such evidence of right of occupancy as to throw on the plaintiff the onus of proving that such defendants other than the fourth defendant were not entitled to such occupancy right.
21. I think that the defendants are not entitled to the occupancy right which they claim; and, inasmuch as due notice to quit was given, the plaintiff is entitled to maintain the ejectment.
22. The tenants of property held under a mutt are not entitled to the protection of the Bent Act, as the plaintiff is not a landholder within the meaning of the Act, and the defendants, however willing they may be to pay an increased rent, cannot have such rent fixed under the Bent Act.
23. There has been no misjoinder of defendants as they all derived jointly under the muchalka of 1830 under which the kist and swamibogum were reserved in fixed rates at total amounts specified.
24. For convenience sake each head of a family holding separate part of the demised land has had the kist and swamibogum fixed and the amount has been paid separately by him. The tenants arranged the holding amongst themselves and there was not a separate demise of each particular lot to the separate holder.
25. Four of the defendants, viz., the eleventh and the eighteenth, nineteenth and twenty-first sold their holdings to the ninety-eighth and ninety-ninth defendants respectively, and should not have been made parties to this suit. As regards them, this suit should, I think, be dismissed. And inasmuch as the plaintiff insisted on retaining them as defendants after their written statements alleged that they parted with their interest, I think the plaintiff should pay their costs.
26. As regards the rent due, we are not able to say that the plaintiff satisfactorily proved how much rent is due. The books of the temple and accounts have not been sent up.
27. Moreover, we think, that when the plaintiff has for so long a period received swamibogum from the several tenants separately, an account should be taken by the Subordinate Judge of the sum due by each tenant, and that the decree should be modified by directing each tenant to pay the rent due by him.
28. The twentieth defendant died before this suit was filed. He is named a defendant in error.
29. The defendants, except Nos. 11, 18, 19, 20, and 21, should pay the costs of this appeal.
30. Appeal No. 107 of 1882 : This is a suit similar in its facts and circumstances to appeal No. 106 to eject the tenants of the village of Kelavelu, and, therefore, the judgment in No. 106 applies to this suit.
31. The thirty-sixth and thirty-seventh defendants sold part of their lands to the eighty-seventh defendant and the rest of their holding to Nataraja Padayachi before the suit was filed and were not then in possession of the lands. This suit is to be dismissed as against the thirty-sixth and thirty-seventh defendants with costs.
32. The defendants in this Court, except the thirty-sixth and thirty-seventh defendants, are to pay the plaintiff's costs of this appeal.
33. The plaintiff, as sole adinam trustee of the temple of Vithyanatha Swami, at Vallur in Shiyali Taluk, has brought the two suits, out of which these appeals have arisen to eject the defendants, who are cultivating raiyats, from the lands of two villages, which admittedly belong to the temple; and to recover arrears of swamibogum alleged to be due to the temple. The first suit (106) relates to the lands of the villages of Santhaputhur; and the second suit (107) relates to the lands of Kelavelu.
34. The defendants pleaded in the first place that the suit in each case was bad for misjoinder of many defendants, each of whom paid his swamibogum separately, and who ought to have been separately sued.
35. In the first suit (106) the eleventh defendant alleged that he had sold his interest to one Marimuttu Padayachi; and the eighteenth, nineteenth and twenty-first defendants stated that they had sold their interest to Mannaru Padayachi. The twentieth defendant is said to have died. In the second suit the thirty-sixth and thirty-seventh defendants stated that they had sold their interest to Nataraja Padayachi and to Sornam. In each of these cases the vendees were joined as defendants to this suit. One Chinnasami Nayak was also added as defendant to the second suit. The thirty-eight and fifty-fourth defendants are dead and the suit was withdrawn as against some others. The defendants chiefly insisted that they had a permanent right of occupancy; that they had been in possession of the lands for a very long time and had improved them at a great expense; and they were not liable to be ejected. They further stated that very little of the swamibogum was in arrears, and that when it was tendered, the plaintiff refused to receive it.
36. The judgment of the Subordinate Judge was substantially the same in both suits. In each case he found that the suit was not bad for misjoinder, because all the defendants claimed under one or two persons in each case, who had executed a muchalka in January 1830, consenting to hold the lands upon certain terms. The Subordinate Judge decided that the defendants had made no substantial improvements, and had no permanent right of occupancy, but' were tenants from year to year. He therefore decreed that the defendants should be ejected from the lands in question in each suit; that the plaintiff' should be placed in possession, with mesne profits, and arrears of rent, and costs of the suit; such mesne profits, arrears of rent, and costs to be paid by all the defendants in the first suit, and by certain specified defendants in the second suit.
37. The objection of misjoinder, though mentioned at the hearing, was not one of the original grounds of appeal. It is sufficient to say that, as all the defendants in each case claim by inheritance or by purchase or otherwise under one and the same person, or under one or two persons, who executed the muchalka in each case in January 1830, the plaintiff had a common cause of action against the defendants in each case and was not obliged to sue them separately. Hence the objection of misjoinder on the ground of separate payment of swamibogum by the several defendants cannot be allowed.
38. The principal question raised by these appeals is, whether the defendants had a right of permanent occupancy, or whether they were merely tenants from year to year.
39. Defendants rely very much on their possession of the lands by themselves, or by those under whom they claim, from the 1st of January 1830, if not from a still earlier date. But mere length of tenure for any period will not give a right of permanent occupancy to a raiyat who has been let in as a tenant from year to year. Sir Colley Scotland in Chookalinga Pillai v. Vythealinga Pundara Sannadhi 6 M.H.C.R. 171 admitted that the decision in Venkatramanier v. Ananda Chetty 5 M.H.C.R. 122 had gone too far in laying down too broadly a pattadar's right of occupation, and it was admitted by the present Chief Justice I.L.R. 5 Mad. 357 that the period of occupation which should confer upon the raiyat a permanent tenure, could only be settled by legislation. In the case of Krishnasami v. Varadaraja I.L.R. 5 Mad. 345 there were other circumstances, besides mere length of tenure, which justified the Court in throwing the burden of proof upon the plaintiff and among other circumstances was a decision of the Sadr Court in 1861 recognizing a permanent title in the fourth defendant to whom all the other defendants were related. In the present case no such circumstances are found, and it may be observed that no custom in the defendant's favour has either been alleged or proved.
40. The muchalkas of the 1st January 1830 do not tend to show that the title of those who executed them was permanent. On the contrary there are some expressions which favour a contrary supposition, and if there are expressions which indicate an intention that the occupation should be for more than one fasli, they are (as Sir Colley Scotland said of similar expressions in a muchalka in Chockalingam Pillai's case) 6 M.H.C.R. 171 indefinite as to any period of time except that of the fasli and clearly therefore did not bind the will of either party beyond the currency of each fasli, while the tenancy remained undetermined. The defendants say that their tenancy was not created by this muchalka; but that it existed before that as a right of permanent occupancy. The defendant's predecessors in title may have been in possession before 1830. But if they had a permanent right of occupancy, they would probably have taken care to have that right expressly recognised in the muchalkas of 1830. At present the permanency of their title before 1830 has not been proved.
41. In the muchalka executed in favour of Government by the plaintiff's predecessor on the 7th December 1857, he promised to respect the rights and privileges of the purakudis according to the customs of the respective villages, and of the country; and that, as long as they should pay the kist properly, he would not eject them. But he did not thereby admit that the raiyats had any permanent right in the soil, or that the swamibogum was to be the same for all ages. The passage in question amounts to title more than an engagement to respect the rights of the raiyats, whatever those rights might be.
42. In the result it appears to me that the defendants have not shown that they had any higher title than that of cultivating tenants from year to year. That being their tenure, the plaintiff was at liberty (as decided in Chockalingam Pillai's case) to enhance the rent and after due notice to eject the defendants at the end of the fasli for non-payment. Notice has now been given, and the decision of the Subordinate Judge as to the ejectment of the defendants must be upheld.
43. I agree that the evidence as to the alleged improvements is unsatisfactory, and nothing can be allowed to the defendants on that account.
44. I agree that the suit 106 as against the eleventh and the eighteenth defendants and his son and brother, the nineteenth and twenty-first defendants, who had sold their lands, should be dismissed with costs. I would make the same order as to the thirty-sixth and thirty-seventh defendants in Suit 107.
45. I agree also that the Subordinate Judge should be directed to inquire how much is due from each of the defendants, and that on receipt of his return the decree should direct each tenant to pay the swamibogum due by him.
46. The defendants, except those as to whom the suit has been dismissed or withdrawn, or who have died, must pay all the plaintiff's costs.