1. These second appeals arise from eight suits tried together by the District Munsif of Sivaganga. Plaintiffs sued to have their title declared to the suit lands and for an injunction to restrain defendants from disturbing their possession and, in the alternative, for ejectment, if possession was found to be with the defendants, on the footing that they were their yearly tenants. Possession having been found to be with the defendants, the suits have been treated as purely ejectment suits. Defendants pleaded, among other things not material now, that they had the kudivaram or permanent occupancy rights in the lands and were not liable to be ejected. The District Munsif found the occupancy right proved in three suits and dismissed them but decreed the rest. On appeal, the learned Subordinate Judge held that the existence of occupancy rights in the tenants was proved in all the cases and dismissed all the suits. The appeal to us is by the plaintiffs who represent the landlord's interest.
2. The Subordinate Judge has found, on plaintiff's evidence, which he accepts on this point, that the village of Dappankanmoi where the suit lands are situated was, along with two other villages, granted on permanent cowle to one Srinivasa Iyengar, the predecessor-in-title of the plaintiffs, in 1802 by the then Zeminder of Sivaganga and that at the time of the grant the land was covered with forest. There could thus have been no tenants on the land at the time and the inference of the Subordinate Judge that the grant was of both the warams or of the whole interest in the land must be accepted, apart from any question of what the proper presumption is in such cases.
3. The permanent tenancy the defendants set up, if true, therefore, has arisen subsequent to the grant there is, however, nothing to prevent such a tenancy having been acquired by them by arrangement with, or by grant by, the landlord, or by prescription against him. Now, it is conceded for the plaintiffs that about half the lands in the village are lands held under permanent tenure, the other half being pannai lands, but they explain that this state of affairs was brought about by the landlord granting kudivaram rights to tenants in particular lands for consideration paid. This explanation has not been accepted by the Subordinate Judge, who thinks it more probable that the clearance of the forest and the conversion of the lands into cultivable lands were effected by the combined. labour of the landlord and the raiyats or partly by the one and partly by the other. But there is no direct evidence on that point or as to when and under what condition the defendant's ancestors, came into possession of the suit lands or under what terms they became tenants on them. The question whether they have permanent right or not has, therefore, to be decided on evidence as to the way in which the parties dealt with these lands.
3. The Subordinate Judge has entered into a long discussion as to the burden of proof and as to the presumption that arises in a case like this and has referred to a long catena of rulings on the point beginning from Krishnasami Pillai v. Varadaraja Ayyangar 2 Ind. Dec. 240 (F.B.). But we do not propose to follow him in this discussion, as the two Privy Council rulings in Suryanarayana v. Patanna 48 Ind. Cas. 689 : 1 U.P.L.R. (P.C.) 11 and Upadrashta Venkata Sastrulu v. Divi Seetharamudn 51 Ind. Cas. 304 as interpreted by the Full Bench of this Court in Muthu Goundan v. Perumal Iyen 63 Ind. Cas. 790 must be taken as settling the question, and showing that where the tenant sets, up a permanent right of occupancy, the; burden of proof is primarily on him. Burden of proof is, however, often of a shifting character and may change from one party to the other as facts are proved which render the case of one party more probable than that of the other. The burden in the present case was primarily no doubt on the tenants and the Subordinate Judge's view in paragraph 46 of the judgment that because the lands were originally part of the Sivaganga Zemindari there is, a presumption arising from that fact alone in favour of permanent tenancy does not seem to be correct, particularly as in this village half the lands are said to be pannai lands in which no permanent rights exist. But, as remarked by the Munsif, the question of burden of proof is not very material in this case as both sides adduced evidence and the conclusion as to the existence or the non-existence of permanent rights has to be arrived at on that evidence.
4. The Subordinate Judge has found in favour of the existence of such rights in all the defendants on a consideration of the evidence in this case. That finding, we think, is really a finding of fact which we must accept in second appeal, as we are not prepared to say that there is no evidence to support it. The finding, no doubt, is not based on direct evidence but on circumstances; nevertheless it is a finding of fact. According to his finding the defendants and their ancestors have been in possession of the lands ever since anything is known about them, certainly for over 40 years, paying only melvaram to the landlords and never any swamibogam. They were never evicted or even attempted to be evicted at any time. They have dealt with their kudivaram interest and in one instance, the sale was actually to one of the landlords: Exhibit II(a) 1889. What is most important of all, they seem to have asserted their right to kudivaram in a suit by the landlords ,so, nearly as 1871 and one of the landlords defendants in that suit seems to have admitted their claims, the others not denying it and again in 1879 their claim was once more asserted in suit to the knowledge of the landlords and yet no steps have been taken till now to dispute their claim. (See paragraph 46 of the Subordinate Judge's judgment).
5. These facts support the finding of the Subordinate Judge, but, even if they are held to be not sufficient by themselves for an affirmative finding of permanent rights in the defendants they are, we think, certainly sufficient to shift the burden of proof to the landlords and, in the absence of satisfactory evidence in support of the latter's case and of some reasonable explanation of their conduct, the finding must be for the defendants.
6. It was argued that the Subordinate Judge was influenced by his opinion in paragraph 46 of his judgment that there was a presumption of permanent; tenancy in defendant's favour in coming to his conclusion on the evidence and, therefore, his finding should not be accepted. We are unable to accept this contention, for, apart from any presumption, there is enough evidence, as pointed put above, to support his conclusion. The objection that the Subordinate Judge had not referred to the plaintiff's documents in detail seems also to be without force, as the registered documents are all of recent date and the unregistered ones are unreliable, as pointed out by the District Munsif.
7. The Subordinate Judge has gone further and held that the defendants have obtained permanent rights by prescription if they had not got them otherwise, as they have been in possession since 1871 till now asserting their right of kudivaram or permanent occupancy. We are not, however, prepared to follow him in this view, as the evidence indicates that the defendants or their ancestors were tenants of some sort even prior to 1871. If they were then permanent tenants, is their case is, they can get no further rights in law by their assertion, as they claimed only permanent tenancy by that assertion. If, on the other hand, we take it that they were yearly tenants they could not develop themselves into permanent tenants by mere length of occupation coupled with their assertion: See Seshamma Shettati v. Chickaya Hegade 25 M. 507 and Rajah of Venkatagiri v. Mukku Narsaya 7 Ind. Cas. 202. Their assertion and long subsequent occupation without any action on the part of the landlords to dispute their claim can only properly be treat d as evidence in support of their as case, was done by the Subordinate Judge in arriving at his finding of fact in defendants' favour.
8. The plea that defendants have obtained permanent rights in any event under the Estates Land Act was not raised in the Trial Court or in the grounds of appeal and it should not, therefore, have been allowed to be taken for the first time in the Appellate Court, as it involves a trial on facts.
9. Accepting, however, the conclusion of the Subordinate Judge that defendants have rights of permanent occupancy in the suit lands we dismiss all the second appeals with costs.