Frederick William Gentle, C.J.
1. This Letters Patent Appeal arises out of a suit in the Court of the District Munsiff of Repalle in which the plaintiff (respondent) claimed possession, rent and mesne profits in respect of two acres 59 cents of agricultural minor inam land from defendants 1, 2 and 3 (appellants 1, 2 and 3); no claim was made against defendant 4 (appellant 4) nor against defendants 5 and 6 (respondents 2 and 3); the last two named parties were joined, pro forma, as they were vendors of the land in suit to the plaintiff whose claim they supported. The learned District Munsiff dismissed the suit; an appeal by the plaintiff to the Court of the Subordinate Judge of Tenali was allowed; a second appeal by defendants 1 to 4 to this Court was dismissed by Chandrasekhara Aiyar, J., who, on the ground that difficult questions were involved, granted a certificate to prefer an appeal pursuant to the Letters Patent of the Court; upon that appeal coming before a Bench, reference was made to two decisions of this Court, each given by a Bench, in Zamindar of Parlakimedi v. Ramayya : (1926)51MLJ510 and Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 which, it was stated, are in conflict. The appeal has been posted before a Full Bench since it is convenient for all points arising in it to be heard at the same time.
2. The plaintiff's case was that the ancestors of defendants 5 and 6 were absolute proprietors of the inam land in suit, the grant in their favour, at a time immemorial, being of both the kudiwaram and the melwaram rights; by a deed of sale, dated 19th November, 1937, defendants 5 and 6 conveyed to the plaintiff those rights, together with the right to the rent in arrear due from the tenant or tenants; at the date of the sale the father of defendant 1 was the tenant, he was in arrear with the rent for the previous three years; after the purchase by the plaintiff, she let the land to the father, for fasli year 1346, that tenancy terminating by effluxion of time before the institution of the suit; the land was sold at a collusive Court auction to defendant 4 and the sale deed was later executed in favour and in the name of defendant 2 as purchaser; defendant 3 claimed to be the tenant of defendant 2; those transactions were not real or genuine ones and by them defendants 2 to 4 acquired no right to, or in the property in suit; defendants 2 and 3 were tres-passers upon the land. As against defendant 1 possession was claimed by virtue of the termination of the lease in his father's favour, by effluxion of time, together with rent unpaid for three years prior to the suit and, against defendants 2 and 3, as trespassers, for possession and mesne profits for a like period. No claim was made against defendant 4.
3. Defendants 1 to 4 each delivered a written statement but, at the trial and during the subsequent appeals, they united their causes, they were represented by the same advocate in the High Court, and they put forward a joint case, the substance of which was that the ancestors of defendants 5 and 6 were granted the melwaram right alone and not the kudiwaram right in the land, the latter right being granted to the predecessors of defendant 1; alternatively those predecessors acquired the kudiwaram right by prescription; whilst it was not in dispute that the father of defendant 1 and, later that defendant, were tenants of the land, the genuineness of the two leases pleaded in the plaint was denied; it was alleged that defendants 1 to 4 had permanent occupancy rights in the land; and neither defendants 5 and 6 nor the plaintiff had been in possession of the land within twelve years of the institution of the suit.
4. In their written statements defendants 2 and 4 alleged absolute rights to the land in suit by virtue of purchases by them from persons other than defendants 5 and 6 or the plaintiff and that leasing of the land by defendants 2 and 4 to defendant 3 afforded the last defendant a right to possession.
5. The learned District Munsiff of Repalle held that, the ancestors of defendants 5, and 6 owned the melwaram right alone, the kudiwaram right was enjoyed by others, who were represented in the suit by defendants 1 and 2; the leases pleaded in the plaint were negatived; and the plaintiff and his predecessors had not been in possession of the land within 12 years prior to the suit. On these findings the suit was dismissed.
6. On appeal by the plaintiff, the learned Subordinate Judge of Tenali reversed the decision of the learned District Munsiff. He found, as facts, that the inamdars (the ancestors of defendants 5 and 6) were the grantees of both warams; defendants 1 to 4 had no permanent occupancy right by virtue either of original grant or by subsequent acquisition; whilst the plaintiff failed to establish either of the two leases, pleaded in the plaint, nevertheless the leasing in favour of defendants 1 to 4 must be presumed to be yearly and they were liable to be evicted at the suit of the plaintiff; regarding the plea that the plaintiff and his predecessors in title had not been in possession for more than 12 years, since defendants 1 to 4 admitted that, at one time, they (evidently meaning the predecessors-in-title of those defendants) were tenants of the inamdars, thereafter they could not deny their landlords' title and claim absolute rights without first surrendering possession to the landlord and, in the circumstances and facts, the plaintiff had not been out of possession. Accordingly the learned Judge decreed the suit.
7. As previously stated, an appeal by defendants 1 to 4, by way of a second appeal, to this Court, was dismissed by Chandrasekhara Aiyar, J. This Letters Patent Appeal is preferred by defendants 1 to 4 against the decision of the learned Judge.
8. As already pointed out, no relief was sought in the plaint against defendant 4 and, whilst the learned Subordinate Judge's judgment directs, simply, that the suit be decreed nevertheless the formal decree directs defendant 4, as well as defendants 1 to 3, to put the plaintiff in possession of the land in suit; but, as with the latter three defendants, there is no decree against defendant 4 for Rs. 252 ' past profits for the past three years.' The absence of any relief having been sought in the plaint against defendant 4 evidently escaped notice during the hearing before the learned Subordinate Judge and before Chandrasekhara Aiyar, J., and no point was made before us in that connection; throughout, it would appear, that no distinction was sought to be made between the positions of defendants 1, 2, 3 and 4.
9. Since the appeal to this Court from the learned Subordinate Judge was by way of second appeal, pursuant to Order 41, Civil Procedure Code, the findings of fact must be accepted. Since there was evidence supporting those findings, Mr. Raghava Rao for defendants 1 to 4 (appellants) sought to challenge the finding, that the defendants 1 to 4 had failed to prove permanent occupancy rights either by original grant or by subsequent acquisition, on the ground that the learned Judge took an erroneous view of the law leading to his disablement from weighing evenly the evidence. He cited in support of his argument, the decision by the Board in The Official Assignee of the Estate of Cheah Soo Tuan v. Khoo Saw Cheow (1930) 60 M.L.J. 210 There, it was observed at pages 212 and 213 of the report that
The trial Judge had taken an erroneous view as to the law in regard to onus. His mind was coloured by that view, and he was thereby disabled from weighing evenly the evidence.
10. Expressing inability to contend that the learned Subordinate Judge's mind was ' coloured ' by an erroneous view of the law, that contention was not pursued.
11. There are findings in fact that the predecessors of defendant 1 were not granted a permanent occupancy right in the lands in suit and that they acquired no such right by prescription, subsequent to the grant. In light of the latter finding it is unnecessary to consider whether, upon the question of the acquisition of prescriptive right of occupancy, there is conflict and, if so, its extent, in two decisions by the Board which are found in Sivaprakasa Pandara Sannadhigal v. Veerama Reddi and Nainapillai Marakayar v. Ramanathan Chettiar .
12. There are some matters arising in the appeal relating to defendants 2 to 4 which are different from those relating to defendant 1 and with which it is convenient first to deal. The claim for possession against defendants 2 and 3 was as trespassers by virtue of the plaintiff's paramount title. Their answer to the claim was (a) purchase by defendants 2 and 4 from persons other than defendants 5 and 6, their predecessor or successor in title, and the leasing of the land to defendant 3, and (b) permanent occupancy right in the land with defendant 1.
13. As to (a) since defendants 5 and 6, through their ancestors, were full proprietors of the land and they owned all the rights in it, the vendors of defendants 2 and 4 had no right or title which they could convey and those defendants acquired none by their purchase and the lease to defendant 3 could confer no right upon him.
14. As to (b) assuming, however, that the vendors to defendants 2 and 4 were predecessors of defendant 1, the positions of defendants 1 to 4 were in pan materia; that aspect will be examined later, as also will the contention that the plaintiff and defendants 5 and 6 were not in possession of the land within 12 years of the institution of the suit. Incidentally it is to be observed, according to the pleas raised by defendants 1 and 2, and by defendant 4 who adopted the written statement of defendant 1, that the share of the father of defendant 1, was only one-fourth of the two acres 59 cents of the land in suit.
15. Now as to the questions which form the main substance of the argument for defendants 1 to 4, and which occasioned the reference of this appeal to a Full Bench. They arise in this way. Indubitably, the predecessors of defendant 1, from whom any right, title or interest which he possessed in the land was derived, were tenants of defendants 5 and 6 and their ancestors. According to the judgment of the learned Subordinate Judge, there was an admission of the existence of a tenancy. Even in the absence of such admission, it must be conceded, by virtue of the claim to a permanent occupancy or kudiwaram right. The owner of a kudiwaram right is the tenant of the owner of the melwaram right, using the words ' landlord ' and ' tenant ' in their widest sense. In Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 Wallace, J., observed at page 588 that:
The position that a kudiwaram holder is a co-owner with his landlord and is not a tenant is not one that has been advanced or approved so far as we know, by any decision of the Privy Council. The Privy Council case, already referred to, in Nainapillai Marakayar v. Ramanathan Chettiar2, proceeds throughout on the footing that one who admits he is a kudiwaramdar admits also that he is the tenant of his melwaramdar.
16. In the decision of the Judicial Committee, cited by Wallace, J., it was observed by their Lordships at page 344 of the report that:
A permanent right of occupancy in land in India is a right, subject to certain conditions, of a tenant to hold the land permanently which he occupies.
17. The correctness of the first part of the observation of Wallace, J., above quoted, regarding the absence of approval by the Privy Council of the position as co-owner, and not as tenant, of a kudiwaramdar, was stated by Venkataramana Rao, J., at page 892 in Lakshmana Reddiar v. Ellinganaickenpatti Kumara Koil : AIR1938Mad576 to be strictly not accurate in view of the observations by the Judicial Committee in Sivaprakasa Pandara Sannadhi v. Veerama Reddi . Evidently the learned Judge was referring to the quotation, with approval of it, by the Judicial Committee at page 602 of the judgment, of part of the proceedings of the Board of Revenue of Fort St. George, Madras, dated 5th January, 1818, regarding the place of the cultivating ryots in the economy of southern India. Earlier, at page 891 in his judgment in Lakshmana Reddi's case : AIR1938Mad576 Venkataramana Rao, J., quoted from the observations of the judgment in Venkata Narasimha Naidu v. Dandamudi Kotayya : (1897)7MLJ251 relating to part of the same proceedings of the Board of Revenue which states that:
To treat such a payment by cultivators to zamindars as ' rent' in the strict sense of the term and to imply therefrom the relation of landlord and tenant, so as to let in the presumption of law that a tenancy in general is one from year to year would be to introduce a mischievous fiction destructive of the rights of great numbers of the cultivating classes in this province who have held possession of their lands from generation to generation.
18. The learned Judge adds that Sivaprakasa Pandora Sannadhi v. Veerama Reddi approved of that view and had cited the above passage as laying down correctly the place of the cultivating ryots. With very respect to the learned Judge the observations in Venkata Subba Naidu's case : (1897)7MLJ251 relating to part of the proceedings of the Board of Revenue, are not quoted in the judgment of the Judicial Committee and the Board did not express approval of this; the approval expressed related to another passage. In addition to Nainapillai Marakayar v. Ramanathan Chettiar the Privy Council have dealt with the relationship of a kudiwaramdar and a melwaramdar as one of landlord and tenant in other decisions, vide Sivaprakasa Pandora Sannadhi v. Veerama Reddi . There is nothing which warrants criticism of the correctness of the obser-vation by Wallace, J., above quoted, nor to throw doubt upon the position of landlord and tenant as existing between separate holders of rights to the two warams. The observations in Nainapillai Marakayar v. Ramanathan Chettiar which are quoted by Wallace, J., and are set out above, speak of a permanent occupancy right being that of a tenant which, necessarily involves a landlord and a tenancy under him; no authority has been cited, apart from the observation by Venkataramana Rao, J., which lends support to a contrary view or that the position is that of co-owners. When a defence of permanent occupancy right is raised to a claim for possession, there is, necessarily, an admission of a tenancy between the parties since a claim to such right could not and would not be made, save upon the basis of the position of landlord and tenant being in existence. I agree, respectfully, with the observations of Wallace, J., at page 588 in Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583.
19. The finding by the learned District Munsiff negativing the two leases of the land, pleaded in the plaint, to the father of defendant 1 (a) by defendants 5 and 6 prior to the plaintiff purchasing the property and (b) in June 1937 by the plaintiff for one year, was not disturbed by the learned Subordinate Judge; therefore that finding stands. That finding does not affect the position of landlord and tenant, which existed, save that the nature and tenure of the tenancy remains to be ascertained.
20. In this connection learned Counsel for defendants 1 to 4, having pointed out that the plaintiff had failed to establish the leases of the land in suit which were pleaded in the plaint, more particularly the lease in June, 1937, contended that having failed in those respects and thereby the nature of the actual tenancy being undetermined she had failed to establish her case and was, in consequence, not entitled to an order for possession. At the same time, the learned Counsel expressly disclaimed that any point was made that; upon establishment of a terminable tenancy, due determination of it had not been effected.
21. The argument was that when in a claim for possession, the defendant's sole answer is one of permanent occupancy right, the burden of proof in that respect being upon the defendant and in which he fails, nevertheless, the burden remains upon the landlord to establish a right to eject and the failure by the tenant to make out a plea of occupancy right does not, by itself, entitle the landlord to an order; he must prove the tenancy and show it was a terminable one. Venkatacharlu v. Kandappa I.L.R. (1891) Mad. 95 and the observation of Muthuswami Aiyar, J., at pages 64 and 65 in Appa Rau v. Subbanna I.L.R.(1889) Mad. 60 were cited in support of the proposition. Also, reliance was particularly placed upon the' observation of Spencer, J., at page 561 in Subbarayudu v. Narasimha Rao : (1924)47MLJ558 where he said that:
When a plaintiff seeks to eject a defendant from possession on the ground that the latter is his tenant whose tenancy has been terminated, he must prove not only that the defendant is his tenant alleged, if that is denied, but also his right to eject. In order to prove a right to eject he must necessarily show that the tenancy is a terminable' one and has been validly terminated.
22. In light of the concession made by Mr. Raghava Rao determination of the tenancy, when its terminable nature is ascertained, does not arise.
23. In Sethuratnam Iyer v. Venkatachala Goundan Sir Lawrence Jenkins, in delivering the judgment of the Board, observed at page 576 that
The plaintiff's title was conceded, and the notice by which he purported to terminate the defendant's tenancy was not disputed. It was also admitted that the defendants held under, if not from, the plaintiff. To resist the plaintiff's claim the defendants set up a permanent tenancy or an occupancy right in themselves. If this was not established then the defendants must fail....The burden of proof as to it lay on them.
24. There, the occupancy right was held to have been proved, so the plaintiffs failed to obtain an order for possession. But, although that observation was made in a case where, by reason of a concession or an admission, no consideration arose beyond the question whether the tenants were entitled to occupancy rights, it is explicitly laid down that the burden is upon the tenant to establish an occupancy right when it is pleaded as an answer to a claim to possession by a landlord. Another decision of the judicial Committee, to a like effect, is found in Nainapillai Marakayar v. Ramanathan Ckettiar . Mr. Raghava Rao sought to confine the principle to a case when the landlord has, himself, put the tenant into possession and he referred to an observation by Madhavan Nair, J., at page 524 in Zamindar of Parlakimedi v. Ramayya : (1926)51MLJ510 where reference is made to two decisions of the Board in Secretary of State for India in Council v. Luchmeswar Singh and Sethuratnam Iyer's case regarding the burden of proof of occupancy rights in an action for possession; the learned Judge then points out that in each of those two cases, the tenants had been let into possession by the landlord.
25. In the several decisions by the Judicial Committee, where it was laid down that the burden is upon the tenant to prove an alleged occupancy right, it is not stated that that principle is confined to the instance mentioned by Madhavan Nair, J. It has been laid down in clear and unambiguous language: Nainapillai's case5 says:
It cannot now be doubted, that when a tenant of lands in India, sets up a defence, of a right of permanent occupancy, to a claim by his landlord to eject him, the onus is upon the tenant to prove he has such right,
26. However, in the present case, all the evidence being before the learned Subordinate Judge he found, as a fact, that defendant 1 and his predecessors had not a right of permanent occupancy and that finding cannot be challenged and it stands.
27. The conflict between the decisions in Zamindar of Parlakimedi v. Ramayya : (1926)51MLJ510 and Aiyanars v. Periakaruppa Thevan (1929) 30 L.W. 583 is that in a suit where the plaintiff claims possession against which the defendant asserts a permanent occupancy right, the former decision held that upon the failure to establish the right, the plaintiff still had to prove that the letting was a terminable one and that it had been determined; whereas the latter decision took the contrary view, holding that, upon failure by the defendant to establish the right asserted, thereupon the plaintiff was entitled to a decree in ejectment. In Venkateswarlu v. Lakshmana (1944) 1 M.L.J. 160 Horwill, J., following the Zamindar of Parlakimedi's case : (1926)51MLJ510 took the view that the burden still remained upon the landlord of proving his right to evict but Krishnaswami Aiyangar, J., expressed the opposite opinion and preferred the decision in Aiyanars case (1929) 30 L.W. 583; by reason of the difference in the views of those two learned Judges, the matter was referred to King, J., who discussed the relevant authorities and expressed the opinion that when a tenant admits the melwaram right is vested in the landlord but claims that the occupancy right is vested in him, he must prove that right in order to defeat the claim for possession by the plaintiff, who is not required to establish the tenancy is terminable and that it has been determined.
28. Now returning to the present case when the property in suit is agricultural land and was let for that purpose, Section 106 of the Transfer of Property Act provides that in the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural purposes shall be deemed to be a lease from year to year terminable by six months' notice expiring at the end of the year of the tenancy. Whilst that section does not apply to leases for agricultural purpose, by virtue of Section 117 of the Act, nevertheless, it has been observed and laid down in a series of decisions of this Court that the rules in Section 106 and in the other sections (Sections 105 to 116) in Chapter V of the Act are founded upon reason and equity; they are the principles of English law and should be adopted as statement of the law in India applicable to agricultural leases. (Vide Vasudevan Nambudiripad v. Valia Chathu Achan : (1900)10MLJ321 Gangamma v. Bommakka I.L.R.(1909) Mad. 253 Appa Rao v. Subbanna I.L.R.(1889) Mad. 60 Nanjappa Goundan v. Rangaswami Goundan : AIR1940Mad410 and Thirumalreddi Inna, Reddi v. Gade Gopireddi : AIR1943Mad311 . The first of those decisions was pronounced by a Full Bench, the second and third by Benches and the last two are each decisions by single Judges. Applying these principles to the present case, it follows that the tenancy was one from year to year and was a terminable one. Since no point is taken that, the tenancy being terminable it was not duly determined, it is manifest that the plaintiff was, in fact, entitled to an order for ejectment at the date when the suit was instituted. There-fore consideration of the conflict between the Zamindar of Parlakimedi's2, and Aiyanars'3, cases is not pertinent in the present instance, whichever may be the correct view, and the question does not arise whether, in the absence of termination of the terminable tenancy, the plaintiff would have been entitled to the relief which she claimed.
29. Lastly, there remains to be considered the plea that the plaintiff and his prede-cessors were not in possession of the land within 12 years of the institution of the suit, whereby the plaintiff is prevented from obtaining an order for possession. Mr. Raghava Rao disclaimed that any right, title or interest is asserted by virtue of adverse possession of the property, which was alleged in the written statements.
30. Admittedly the position of landlord and tenant existed, and it has been ascertained that the tenancy was one from year to year.
31. The contention of want of possession is based solely upon non-payment of rent. In Jagdeo Narain Singh v. Baldeo Singh it was observed in the judgment of their Lordships of the Privy Council, at page 52, that
Mere non-payment of rent or discontinuance of payment of rent has not, by itself, been held in India to create adverse possession.
32. In the second edition of ' the Transfer of Property Act ' by the late Sir Dinshaw Mullah it is stated, at page 578, that,
When once the relationship of landlord and tenant is established, mere non-payment of rent, is not enough to prove that the relationship has ceased;
a number of authorities are cited to support the statement including Tiruchurna Perumal Nadar v. Sanguvien I.L.R.(1861) Mad. 118 and Jalasutram Lakshminarayana v. Bommadevara Venkata Narasimha Naidu (1905) 16 M.L.J. 35 : I.L.R. Mad. 42 which bear out the proposition. In Bilas Kunwar v. Desraj Ranjit Singh (1915) 29 M.L.J. 335 : 1915 L.R. 4 IndAp 202 : I.L.R. 37 All. 557 (P.C.) the Board observed at page 567 that,
A tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord.
33. A landlord can recover arrears of rent which have fallen due within three years of suit but he cannot enforce, by action, payment of anterior arrears; in case of non-payment for 12 years, no suit lies for rent unpaid during the first nine of those years. By withholding payment of rent, a tenant cannot place himself, in effect, in the position of a third party and assert that the relationship of landlord and tenant has thereby terminated and he has converted his occupation from a lawful one into an unlawful one so that, at the expiration of 12 years, the landlord is prevented from recovering possession of the land demised. So far as the Limitation Act is concerned, the failure by a tenant to pay rent is merely non-payment but has no consequence other than as above stated.
34. In my opinion, for the reasons given, this appeal fails. Although no relief was sought against defendant 4, throughout he has associated himself with defendants 1 to 3 and was included in issue 6 in the trial Court as to the title of all those defendants; further he was a purchaser of part of the property in suit. In light of those circumstances the plaint will be amended so as to include him in the claim for possession and the formal decree in the Subordinate Judge's Court will remain. The plaint will be returned to the plaintiff to effect that amendment. Towards the close of his argument Mr. P. Somasundaram, for the plaintiff-respondent, stated that since his client has now obtained possession of the land in suit, an order for possession against defendant 1 has become unnecessary, but, nevertheless, I think that the order would stand; if the plaintiff does not wish, or has no need, to enforce it, he need not do so. The plaintiff is entitled to his costs from defendants 1 to 4, Rs. 150.
Patanjali Sastri, J.
35. I agree.
36. I agree.