1. This appeal arises out of a suit for ejectment filed by the inamdar of some 20 acres of land in the village of Lallagaruvu in the Kistna District against a large number of defendants who have resisted the suit on the ground that they have the right of permanent occupancy. The appeal has come to me under Clause 36, Letters Patent, and the following two questions have been formulated for my decision:
(1) Whether in a suit by a landholder of a minor inam to eject the tenants from the holding, the burden is on the plaintiff to make out at fight to evict by proving that the grant included bath the melwaram and the kudivaram interests or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease or whether the bur-den is on the tenants to prove that they have occupancy rights?
(2) Whichever way the burden lies, whether the burden has been discharged in the present case by the party on whom it lies?
The appellant who is the inamdar, contends that the burden lies upon the defendants, and relies upon the authority of the Privy Council in Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65. It will be necessary first to consider a number of decisions of the Privy, Council which are relevant in this connexion. The first of this is Suryanarayana v. Pattanna A.I.R. 1918 P.C. 169. The subject-matter of that case was an agraharam village. The ryots claimed rights of permanent occupancy under Section 3 (2), Madras Estates Land Act, contending that the grant to the agraharamdar was of the land revenue alone. They relied upon a presumption that such a grant was so restricted. The Privy Council held that no such presumption existed in law. This proposition was re-affirmed in Venkatasastrulu v. Seetharamudu A.I.R. 1919 P.C. 111., which also was concerned with the grant of an agraharam village. These two decisions were considered by a Full Bench of this High Court in Muthu Goundan v. Perumal Iyen A.I.R. 1921 Mad. 145, which held that 'although their Lordships of the Privy Council do not expressly lay down' in the two decisions 'that there is a presumption in law that in inam grants both the melwarana and kudiwaram are included, such an initial presumption is deducible from the grounds on which these judgments are based.' It was pointed by the Privy Council in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi A.I.R. 1922 P.C. 292 that this view was wrong and that each case must be dealt with upon its own facts, with special regard to the evidence and circumstances therein. I now come to Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65. That ease was a ease of a village granted to a Hindu temple. Paragraph 3 of the judgment on page 344 runs as follows:
The lands in respect of which a decree of ejectment has been made in each suit, are part of the village of Mangal in Tanjore, and are part of the endowed property of the temple. It is not disputed that the defendants were tenants of the temple lands to which the suits relate; nor is it now disputed that they received notices to quit. The defendants admit that the melvaram rights in the property in question are vested in the temple, but their case is that the kudivaram rights in that property are vested in them and never were vested in the temple, and they claim that they have permanent rights of occupancy in the lands under Section 6 of Madras Act, 1 of 1908, and also independently of that Act.
Then immediately follows this enunciation of the law as to burden of proof:
It cannot now be doubted that when a tenant of lands in India, in a suit by his landlord to eject him from them, sets up a defence, that he has a right of permanent tenancy in the lands, the onus of proving that he has such right is upon the tenant. In Secretary of State v. Luchmeswar Singh (1989) l6 Cal. 223, it was held that the onus of proving that they had a permanent right of occupancy in lands was upon the defendants, who alleged it as a defence to a suit by their landlord to eject them, and that proof of long occupation at a fixed rent did not satisfy that onus; and in Sethuratnam Aiyer v. Venkataehala Goundan A.I.R. 1920 P.C. 67 in a suit by their landlords for the ejectment of the defendants from lands, in a ryotwari District in Madras, the giving of notice to quit not being disputed, it was held that the onus of proving that the defendants had rights of permanent occupancy was upon them.
Paragraph 5 of the judgment then considers what a right of permanent occupancy is, and how it can be proved. In para. 6 their Lordships say that they
will first consider whether the defendants have proved that they have rights of permanent occupancy under Madras Act, 1 of 1908, and then whether they have proved that they have, otherwise than under that Act rights of permanent occupancy in the lands?
Their Lordships then proceed to discuss the evidence and to hold, (i) that the grant was of both melwaram and kudiwaram and therefore defendants could claim no right of permanent occupancy under the Act; and (ii) that they had failed to prove any such right otherwise. The final case dealing with an inam village is Sethuratnam Aiyer v. Venkataehala Goundan A.I.R. 1920 P.C. 67. In that case the ryots claimed the benefit of a presumption that the grant was of the land revenue alone, but the Privy Council referred to Suryanarayana v. Pattanna A.I.R. 1918 P.C. 169 as having laid it down that no such presumption existed in law, and proceeded to dispose of the case by holding that the burden lay upon the ryots to establish the terms of the grant, since it was they who challenged the jurisdiction of the civil Court. It will be noted that their Lordships do not reach this decision by applying the law as laid down in Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C 65 but I do not think Sethuratnam Aiyer v. Venkataehala Goundan A.I.R. 1920 P.C. 67 can in any way be held to impair the authority of Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65. The decision in Sethuratnam Aiyer v. Venkataehala Goundan A.I.R. 1920 P.C. 67 was against the ryots, and learned Counsel for the respondent were not called upon for any argument.
2. After the decision of the Privy Council in Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65 has been published the question of burden of proof first came before a Bench of this High Court in Zamindar of Parlakimedi v. Ramayya : AIR1927Mad10 . There the inamdar claimed that the grant to him consisted of both warams, and he relied upon 47 Mad. 3371 as throwing the burden of proving that they had occupancy rights upon the ryots. It was held by both learned Judges (Phillips and Madhavan Nair JJ.) in separate judgments that that was not the effect of Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65. They considered that if such were its effect, then 47 Mad. 3371 is wholly inconsistent with and must be taken to have overruled Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi A.I.R. 1922 P.C. 292, and such a result, they held, would be impossible unless expressly formulated. The proposition in Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65 as to burden of proof was therefore held to be limited to cases in which the right of the landlord to 'the land itself,' i. e., to both warams was admitted or proved. In Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65, as already indicated in this judgment, the result of the discussion of the evidence was to show that the landlord was the owner of both warams. In Aiyanars v. Periakaruppan Thevan : AIR1929Mad617 however a case decided three years later, and without reference to Zamindar of Parlakimedi v. Ramayya : AIR1927Mad10 another Bench of this Court (Odgers and Wallace JJ.) took a different view. They were inclined to hold, though without any detailed discussion, that it was not easy to reconcile 47 Mad. 3371 with Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi A.I.R. 1922 P.C. 292 but considered that 47 Mad. 3371 being later in point of time was binding upon them. In Jagannadha Pillai v. Ramanathan Chettiar 1938 M.W.N. 1284, Pandrang Row and Venkataramana Rao JJ. hold that the burden in a case such as this rests upon the inamdar and say that 'there is nothing in the Privy Council decisions which militates against this view,' but this decision on the question of the burden of proof seems to have been an unnecessary one for the disposal of the appeal before them, and there is no discussion of Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65.
3. Now the question for me to decide is whether Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65 is binding upon this Court in the present case or not. Mr. Govindarajachari in a very able argument for the appellant contends that, whatever may be the practical difficulties involved in applying one or other of the two Privy Council decisions, there is no fundamental inconsistency between them. Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65 deals with the wider issue raised by a claim to rights of permanent occupancy; Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi A.I.R. 1922 P.C. 292 deals with the narrower issue of the establishment of such rights by proof of one particular fact, viz., the subject-matter of the original grant to the inamdar. The two issues may sometimes in practice be co-extensive, but they are not necessarily so, as it is always open to a ryot to prove, if he can, that he has acquired a right of permanent occupancy otherwise than by proving that his landlord had no original title to the kudiwaram. I see no reason why this argument should not be accepted.
4. From the view of Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65 taken by the learned Judges in Zamindar of Parlakimedi v. Ramayya : AIR1927Mad10 I must express my most respectful dissent. Prom the way in which the judgment in Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65 is constructed, and from the manner in which the paragraphs follow each other it seems to my mind beyond dispute that their Lordships have dealt with the whole of the evidence from the point of view of the necessity for the ryots positively to prove their claims to occupancy rights. Their Lordships state on p. 344 as a matter not disputed that the ryots were tenants of the temple. They admitted that the temple had the melwaram rights, and claimed the kudiwaram rights for themselves. Immediately after the statement of the issue in the case comes the broad and general proposition that a 'tenant of lands in India' must prove a right of permanent tenancy which he claims. No doubt their Lordships go on to cite in support of this proposition two previous decisions of the Privy Council which are distinguishable from the case of an inam grant before them, but in their para. 6 they do state, most definitely, that they will consider whether the defendants have proved that they have rights of permanent occupancy under the Madras Estates Land Act, which can mean on the facts of that case only whether they have proved that the lands which they were cultivating were part of an estate, which again can mean only whether in those lands the melwaram alone was granted to the inamdar. If their Lordships meant the doctrine as to burden of proof which they laid down in their para. 4 to apply only to eases where the landlord's title to both varams was already admitted or proved, then that paragraph was bound logically to come not before but after the decision of their Lordships on the evidence as to the terms of the grant. Whether Naina Pillai v. Ramanathan Chettiar A.I.R. 1924 P.C. 65 be held in consistent with earlier Privy Council decisions or not, I cannot resist the conclusion that the proposition of law in para. 4 is a general proposition of law which must be applied to a case such as the one now before me. The juxtaposition of paras. 3 and 4, and the language of the sixth show clearly that a tenant who admits a melwaram right in his landlord and claims an occupancy right in himself, must prove that right and that the Privy Council has not excluded such a tenant from the expression 'tenant of lands in India.' I hold accordingly on the first of the points for my decision that the burden in the present case lay upon the defendants.
5. The second point now requires no more than a very brief discussion. It is common ground in this case that on the evidence adduced the defendants have failed to discharge the burden, and both the learned Judges who have heard the appeal agree that this is so. I accordingly find formally that the defendants have failed to discharge the burden which lay upon them. In the result this appeal must be allowed, and the appellant be granted a decree as prayed for with costs throughout.