1. This batch of second appeals arises' out of suits instituted by the respondent for ejecting certain tenants. The properties are situated in a village called Yanike-padu. In 1754 one Venkatarayanim Garu who is stated to have been the then Zamindar of Bezwada granted them as in am to one Chandra-sekhara Sastri, Ex. P. 1 and the in am was confirmed in 1865 during the enfranchisement proceeding's. The plaintiff is the successor-in-interest of the inamdar. The defendants are the tenants in possession of various parcels of land comprised in this inam.
2. The plaintiff sued to eject them and to recover mesne profits. The defendants resisted the suits on the ground that they had occupancy rights in the land and that therefore, they could not be evicted. They also pleaded that there was no notice to quit as required - by law and that, therefore, the suite were not maintainable. The learned District Munsif held that the defendants had not establishod occupancy rights and that, therefore, they were liable to be ejected. He also held that the plaintiff had sent registered notices to the defendants calling upon them to surrender possession and that the defendants .' had refused to receive them and that was sufficient notice. In the result the suits were decreed.
On appeal the learned Subordinate Judge held that under the grant Ex. P. l both kudiwaram and melwaram passed to the inamdar; that the defendant had not established any occupancy right and that, therefore, they were liable to be ejected. On the question of notice he held that there was no notice because the postal endorsement was not sufficient to establish refusal thereof by the defendants. But he held that as the lease deeds executed by the defendants contained a provision that they would surrender possession without notice they must be deemed to held on the same terms when they continued in possession after the expiry of the lease period and that therefore no notice was necessary. In the result he confirmed the decrees of the first Court.
Against that decision the defendants have preferred these second appeals. On the first question as to the right of the plaintiff to eject the defendants, it was contended by Mr. P. Somasundaram the learned advocate for the appellants that the findings of the Court below were substantially based on the decision in -- 'Venkateswariu v. Lakshmanna', AIR 1944 Mad 365 (A), and as that had been reversed in -- 'Lakshmanna v. Venkateswariu', AIR 1949 PC 278 (B), the lower Court should be directed to rehear the appeals and send revised findings in the light of the decision of the Privy Council. We do not consider it necessary to do so because we have the original grant before us and all the relevant materials necessary to come to a correct conclusion have been placed before us.
Exhibit P. 1 is the original grant of the year 1754 by K. Venkatarayanim Garu to Sri Chandra-sekhara Sastri. It runs as follows:
"Fasli 1164: For the purpose of your maintenance, I have as manyam given for you free in the name of Sitharama Jonnapalam (land) of the extent of one Khatti Kesarapalli Khathi.... in Venikipedu of Bezwada. So you may. getting the said land cultivated every year, enjoy the whole produce thereof from your son to grandson in succession and live happily blessing us."
This document is styled as Bhoodhana Dharma Sasana Patram and the word "Bhoodhana" is more consistent with the grant of the land than melwaram. The words "that the grantee is to get the land cultivated and enjoy the whole produce" clearly show that what is granted is both the warams. Ex. P. 4 is the confirmatory grant made by the succeeding Zamindar, Thirupathirayanim Garu. It sets out the prior grant and adds:
"So, you shall cultivate the said land and raise crops, therein every year and pay to the iwanam madas per year and happily enjoy the remaining produce from your son to the grandson and so in succession."
Exhibit P. 5 is the extract from the inam register. It refers to the original grant of 1754 and the confirmatory grant of 1795 and the inam is confirmed. In column 21 it is mentioned "since fasli 1210 the whole extent was left uncultivated for the last about 60 years". This is a very important circumstance showing that there could not have been occupancy tenants on the land. We have then Ex. P. 12 series which are lease deeds executed by various tenants in respect of several holdings. They cover the period of 1874 to 1936. They are for a period of three years and are renewed from time to time.
3. Prom 1890 they contain a provision that the tenants should surrender possession at the expiry of the stipulated period. The lease deeds executed in the year 1919 and thereafter also contain recitals that the tenants would not raise disputes, that they possessed no other right and that they would relinquish possession without further notice. Exhibit P. 3 series are dambalas directing the karnam and the kapu of the village to allow the grantee to harvest and take the produce. These are the material documents bearing on the question and on them it is impossible, in our opinion, to come to any other conclusion than that the grant was of both the warams and not merely melwaram. That is the conclusion to which the Courts below have come and we are in agreement with it.
4. Mr. P. Somasundaram the learned advocate for the appellants contends that on the facts above stated the plaintiff could not be held to be entitled to both the warams and he relied on the decisions in -- 'AIR 1949 PC 278 (B) and --'Seethayya v. Subramania Somayajulu', AIR 1929 PC 115 (C). In -- 'AIR 1949 PC 378 (B)', the original grant was not available. The question then arose as to whether the burden was on the plaintiff landlord to prove that he was the grantee of both the warams or on the tenants to show that they had occupancy rights. Then holding that the burden was on the landlord, the Privy Council observed that the facts established in that case did not shift the burden. On the other hand three facts were mentioned as supporting the case of the defendant, namely, (1) that the grant was to a non-resident Brahmin; (2) none but the members of the two families who constituted the entire body of the cultivating tenants had been in possession of such lands and (3) various partitions and consequent divisions of the property that had taken place had been recognised by the inamdar.
5. As already observed if we had not the original grant it might be a question as to whether the facts in this case are sufficient to shift the burden which the law casts on the plaintiff. But as it is Ex. P. 1 and P. 4 clearly show that the grant was of both the warams and the terms of the dambalas and the fact that there was no cultivation of the lands for a period of 60 years lend further support to this conclusion. In -- 'AIR 1929 PC 115 (C), a copy of the original grant was available. It was a grant of shrotrlam made by the Deshpandyas who were revenue officers under the paramount authority. The grantees were the residents of another village and the grant itself was of Moujee which was conceded to be a village in which there were peasant proprietors. On these features the Privy Council came to the conclusion that the grant was only of the melwaram. In this case it does not appear that the grantee was not a resident of the place. It is also found by the Courts below that the lease deeds are some of them in favour of the members of the Kamma families and others in favour of a Valsya family; and that sometimes they are in favour of strangers, even Mohammadans. The grant again was made not by a farmer of revenue but by the Zamindar and the language of the grant clearly and unmistakably shows that both the warams were granted. Some argument was sought to be addressed on the basis of a letter which is said to be "ma" occurring in Ex. P. 1 it being contended that it means Motiza. It was stated in -- 'AIR 1929 PC 115 (C)', that the use of the word Mouza was evidence of the existence of peasant proprietors. In -- 'Kondapa Naidu v. Mahalakshmamma', AIR 1933 Mad 194 (D), in answer to a similar contention it was observed that the significance of the letter "ma" as meaning existence of peasant proprietors was a matter of agreement in the Privy Council case; and that in the absence of such agreement no inference could be drawn from the use of the letter. A similar conclusion was reached by Lakshmana Rao and Horwill JJ. in -- 'Ramulu v. Venkata Suryanarayana Raju, AIR 1945 Mad 114 (E).
6. Mr. Somasundaram contended that the language of Ex. P. 10 being that the grantee is to get the lands cultivated, that is evidence that there were tenants on the land. He also referred to the fact that the dambalas were addressed to the karnam and kapus and he says that kapu here means the tenant on the land. In this context, kapu naturally would refer to village headmau. The words that the grantee should get the land cultivated is an indication that the grantee can make his own arrangements for cultivation which is rather inconsistent with the existence of tenants having occupancy rights on the land. Words similar to those used in Ex. P. 1 have been construed in this Court as conferring on the grantee full rights over the land. In --'AIR 1945 Mad 114 (E)', the grantee was exhorted to make the land bear fruit and enjoy the fruits thereof and it was held by Lakshmana Rao and Horwill JJ. that these words are inconsistent with only melwaram having been granted. They observe :
"The fact that the grantee was to make the land bear fruit and to enjoy the fruits thereof, suggests that he was to cultivate the lands himself or get them cultivated by others." In -- 'AIR 1933 Mad 194 (D)', the words of the grant were:
"You shall get the lands cultivated extensively year after year and make them yield, pay as aforesaid, the circar beriz year after year and enjoy the entire produce realised therefrom as long as the Sun and the Moon last from son to grandson and so on in succession and be happy." It was held by Madhavan Nair J. as he then was, that the grant comprised both the warams. He also observed:
"The expression 'you shall get the lands cultivated' does not necessarily show that the lands were already in the possession of the tenants and the grantee is to get them cultivated by them as contended for by Mr. Somayya. It is quite consistent with the meaning that it was tile entire village that was granted under the deed. The grantee being a Brahmin, who does not generally cultivate lands, the grantor may well say he should get the lands cultivated by them."
A ease which is near the present one is the decision reported in -- 'Venkatasastrulu v. Seetha-ramulu', AIR 1919 PC 111 (P). There, the grantee was to take the village as Sarva Agraharam and cultivate the lands and enjoy the produce. The dambalas also stated that the grantee was to reap and enjoy the produce. It was held on these facts that the grantee was entitled to both the warams. We accordingly agree with the Courts below that the grant comprised both the warams, that the defendants had not established any occupancy rights and that the plaintiff is entitled to eject them.
7. The next question that has to be determined is whether there was valid notice to quit under Section 106, T. P. Act. In May 1936 the defendant had executed lease deeds in favour of the plaintiff, Ex. P. 6 series and one of the terms was that at the expiry of the stipulated period the tenants should surrender possession to the landlord without the necessity of notice. The plaintiff issued registered notices to the tenants, Ex. P. 9 series on 1-1-1939. They were all refused. These notices were sent before the expiry of the period of three years mentioned in Ex. P. 6 series. The tenants continued in possession after the expiry of the period in May-1939. The plaintiff then sent a second set of notices by registered post on various dates in December 1940 and January 1941, Ex. P. 10 series. By these notices the plaintiff required the tenants to vacate the lands by 31-3-1941. These notices were served on some of the defendants and refused by others but all of them, gave a common reply to the plaintiff, Ex. P. 11 dated 6-1-1941 disputing the rights of the plaintiff and the validity of the notice. It may be mentioned that the leases are from fasli to fasli and the fasli would end by the 30th of June whereas under Ex. P. 10 series the defendant were called upon to surrender possession by 31-3-1941. Apprehending that Ex. P. 10 series might be held not to conform to the requirements of Section 106, T. P. Act, the plaintiff caused a fresh set of notices to be issued by his vakil and they are Ex. P. 7 series dated 24-12-1942. Two of the tenants were actually served but the notices issued to the other tenants came back with the postal endorsement that they had been refused. On these facts a contention has been raised that no valid notice to quit had been given and that the suits were accordingly not maintainable. Though the defendants pleaded in the written statements that they did not refuse the notice, in the box some of them admitted that they received notice; others did not give any evidence on the matter, while a few of them denied receipt. The learned District Munsif referred to the fact that two of the tenants were actually served in different places and found that on the probabilities notices must have been tendered to the other tenants and refused by them. He accordingly held that there was proper notice. On appeal the learned Subordinate Judge held that the postal endorsements were not evidence of refusal in the absence of evidence by postman and as the defendants had denied receipt of notice the plaintiff had not discharged the burden of proving notice under Section 106, T. P. Act.
8. Mr. M.S. Ramachandra Rao, the learned advocate for the respondents, contended that the postal endorsement was admissible as evidence of refusal by the tenants and as there was no reliable evidence on the side of the defendants that the endorsement was untrue it must be held that there was proper notice, and he cited a number of authorities in support of this position.
9. In -- 'Jogendro Chunder v. Dwaraka Nath', 15 Cal 681 (G), a notice to quit was sent by registered letter and was returned with the postal endorsement of refusal. In holding that this was sufficient the learned Judges observed: "Upon the case cited before us -- 'Lootf Ali v. Pearee Mohan', 16 WR 223 (H) and -- 'Papillon v. Brunton', (1860) 5 H & N 518 (I), and having regard also to Section 16, 111(b), Evidence Act, we think that only a captious doubt could lead us to regard that service as insufficient."
In -- 'Durgaoath v. Rajendra Nath', 17 Cal WN 1073 (J), another Bench of the Calcutta High Court followed the decision in -- '15 Cal 681 (G), and held that service was sufficiently proved by the production of the postal endorsement. In --'Gobinda Chandra v. Dwarakanath', AIR 1915 Cal 313 (K), yet another Bench of the Calcutta High Court expressed the opinion that the endorsement was not admissible to prove the tender to or refusal by the defendants.
10. The decision in -- '17 Cal WN 1073 (J)', does not appear to have been brought to the notice of that Court. In -- 'Girish Chandra v. Kishore Mohan', AIR 1920 Cal 287 (2) (L), the decision in -- 'AIR 1915 Cal 313 (K)', was treated as one on the facts of that case and it was held that the production of the postal endorsement would be sufficient proof.
11. The learned Judges observed: "It is trifling with the facts of this case to come to the conclusion that proper service of the notice through the post office has not been made. Each case must stand on Its own facts."
In -- 'Hari Pada v. Joy Gopal, 39 Cal WN 934 (M), it was held that if the registered letter was returned as refused that in itself, until explained is 'prima facie good evidence that the addressee had an opportunity of accepting it. All these authorities were reviewed in a case reported in -- 'Nirmala Bala v. Provot Kumar', 52 Cal WN 659 (N). The observations in -- 'AIR 1915 Cal 313 (K)', were regarded as opposed to the weight of authority and it was held that the postal endorsement would be evidence of tender and refusal though it was open to the defendant to rebut It.
'Sheir Afsal v. Mohanlal', AIR 1926 Lah 520 (O), is another authority for the position that the endorsement would be admissible evidence.
12 In -- 'Bachchalal v. Laehman', AIR 1938 All 388 (P), it was pointed out that by reason of the amendment of Transfer of Property Act by Act 20 of 1929 it was sufficient if the landlord sent a notice by post to the party, that under Section 27, General Clauses Act service should be deemed to have been effected if it was sent by registered post properly addressed and that accordingly even if there was no evidence to show who wrote the word "refused" there was sufficient proof in law of service of notice.
13. Mr. P. Somasundaram, the learned advocate for the appellants relies on the following observations occurring in -- 'Vaman v. Khanderao', AIR 1935 Bom 247 at P. 251 (Q): "In the case of defendants 4 and 5 a registered letter containing the notice was sent to them duly addressed and service is alleged to have been refused. In fact the refusal was not proved, as the postman who took the letter and brought it back was not called."
Then the learned Judge goes on to observe that even if it was proved that the letter was tendered and refused that would not be notice of the contents of the letter. With great respect we are unable to agree with these observations. We think that the postal endorsement is admissible evidence even if the postman is not examined and that unless rebutted it would be sufficient notice under Section Section 106, T. P. Act. Turning to the facts of this case the addresses of the tenants were admitted to be correct; two of the addressees I were actually served and some of the defendants did not in their evidence even deny the tender of notice to them.
14. The learned District Munsif did not believe the evidence on the side of the defendants about the non-tender of notice and the judgment of the Court below does not proceed on the footing that this evidence is reliable. It only holds as a matter of law that without the evidence of the postman the endorsement should not be treated as evidence. We are accordingly of opinion that there has been proper notice to the defendants and that, therefore, their contention that the suit is not maintainable for want of notice should be rejected.
15. These findings are sufficient to dispose of these appeals but certain points arising out of the judgment of the Court below have been fully argued before us and we shall express our opinion thereon. The Subordinate Judge having held that there was no notice to the defendants terminating the tenancy as required under Section 106 of the Transfer of Property Act decided in favour of the plaintiff on the ground that no notice to quit was necessary. The ground of this decision was that in the lease deeds executed by the tenants, Ex. P. 6 series, there was a term that they should surrender possession at the end of the period without notice, that when the defendants continued in possession after the termination of the period they must be deemed to be tenants under Section 116, T. P. Act holding over on the same terms I and that therefore, no notice terminating the leases was necessary. Mr. P. Somasundaram the learned advocate for the appellants argues that Section 116 will apply only to terms such as rate of rent but not to stipulations about notice in relation to termination of the tenancy. He relies on the decision in -- 'Dasarathi Kumsr v. Sarat .Chandra', AIR 1934 Cal 135 (R), in support of this position. That case in turn follows the principles laid down in -- "Troilokyanath v. Saratchandra', 32 Cal 123 (S), and holds that the agreement to the contrary in Section 116 "must mean an agreement as to the terms of the holding over", and not to the terms of notice. In --'Gnana Desika Pillai v. Bhoopalarayar', AIR 1934 Mad 458 (T), Sundaram Chetty and Pandrang Row JJ. approved of the decision in -- 'AIR 1934 Cal 135 (R)', and observed as follows: "On the other hand the true test is whether, this cause can Really be deemed to be any part of the terms which constituted the transaction of the lease itself. In a recent decision reported in -- 'AIR 1934 Cal 135 (R)', it was hold that a stipulation in the original lease that, at the expiration of the term, the lessee should give up possession without notice, could not be imported into the new tenancy created by holding over and the acceptance of rent. The principle of that decision is in consonance with the view we have expressed."
In -- 'S. A. No. 2124 of 1945' and '2125 of 1945' and 'C. R. P. Nos. 138 to 140 of 1946 (U)', Horwill J. had to deal with this very question as to whether the terms contained in the expired lease could be imported under Section 116 when the tenant holds over. He observed: "It is argued that a tenant holding over continues to hold the land under the same terms as in the original lease, and that therefore, for subsequent years, as well as for the year of the lease, no notice was necessary. This agreement, however, is not properly speaking a term of the lease; and so does not dispense with the necessity of giving notice if the tenant is allowed to hold over."
There is thus ample authority in support of the position contended for by the appellants. As against this Mr. M.S. Ramachandra Rao the learned advocate for the respondents relied on the decisions in -- 'Moos a Kutty v. Rovilakath Thekke', AIR 1928 Mad 687 (V); -- 'Kelu v. Ammal Kutti', 1910 Mad WN 794 (W) and -- 'Badal v. Ram Barosa', AIR 1938 All 649 (X). In -- 'AIR 1928 Mad (387 (V)', the facts were that there was an oral lease for a term and one of the conditions was that the land demised should be surrendered whenever required. It was held that Where a tenancy was for a period and it expired by efflux of time there was no need to give notice and that Section 106, T. P. Act applied only to tenants from year to year or tenants at will. This decision is no authority that in the case of a tenant holding over stipulations as to notice in the original lease become applicable under Section 116, T. P. Act. The decision in -- '1910 Mad WN 794 (W), is again not one under Section 116, T. P. Act. The Judgment is very brief and is contained in one sentence-
"Seeing that in Ex. A there is an express provision to surrender on demand we think there is a contract to the contrary within the meaning of Section 106, T. P. Act."
We do not consider that this can be taken to be as authority for the position contended for by the respondents. Reliance was also placed upon some observations in -- 'AIR 1938 All 649 (X)'. In that case there was a notice to quit and the question was as to when the tenancy must be deemed to have commenced under Section 118. It was held that as the original tenancy commenced on the 24th October for purposes of Section 116 the tenancy by holding over must also be held to have commenced on 24th October. Some of the observations in that case are in wide terms but in our opinion having regard to the authorities referred to above, it must be held that terms as to notice contained in an expired lease should not be held to be terms of the lease arising by holding over under Section 116.
16. Mr. Ramachandra Bao argued that even if notice was necessary for ejecting a tenant holding over and even if it is to be held that service of Ex. P. 7 series on the defendants is not established, the notices, Ex. P. 10 series most of which were served on the tenants and to which all of them sent a reply Ex. P. 11 dated 6-1-1941 must be held to bo sufficient. His contention is that as the defendants are tenants of agricultural lands Section 106 does not in terms apply and that the requirements of law are satisfied if in fact there is reasonable notice.
17. Under Ex. P. 10 series the defendants were called upon to surrender possession on 31-3-1941. Though the fasli would end on the 30th of June harvesting would have been completed by 31-3-1941 and the land would lie fallow till the end of June.
18. It is only thereafter that agricultural operations would commence. Accordingly for practical purposes it will make no difference whether the tenants were called upon to surrender possession on 31-3-1941 or 30-6-1941. It is, therefore, argued, that the notices Ex. P. 10 series were reasonable notices and that on that alone the plaintiff would be entitled to eject the defendants. Under Section 117, Transfer of Property Act the provisions as to notice contained in Section 106 are not 'proprio vigore' applicable to agricultural leases. It has been held in -- 'Krishna Shetti v. Gilbert Pinto', AIR 1919 Mad 12 (Y), that though Sections 105 to 116 are not applicable as such to agricultural leases they would be binding as rules of justice, equity and good conscience. It was held in --'Jaru Pujari v. Somakke', AIR 1925 Mad 346 (Z), that where notice to quit with reference to agricultural leases was reasonable and in accordance with the custom of the country it was valid though the notice did not require the tenant to surrender possession exactly at the end of the year. In -- 'Narayana Nayar v. Kunhan Mannadiar', AIR 1949 Mad 127 (Zl), a Bench of this Court to which one of us was a party after referring to the case in -- 'AIR 1939 Mad 12 (Y), observed:
"One of the principles which the Pull Bench decision of this Court cited above laid down should have application in respect of an agricultural lease, is that the lease must be determined by some prescribed notice or at any rate, by reasonable notice; that is to say a notice giving a reasonable time to the tenant to vacate his holding."
In -- 'Pratap Narain Deo v. Harihara Singh', 30 Cal 927 (Z2), Jenkins C. J. and Mookerjee J. held that in agricultural leases it was sufficient that the notice was a reasonable one, that it need not determine the tenancy at the end of the year and that whether it is reasonable or not must be determined with reference to all the circumstances. This statement of law was adopted and followed in -- 'Ratneswar Das v. Sree Kamal Deb Adikar', AIR 1921 Cal 126 (Z3). In - Nabin chaudra v. Ramesh Chandra', AIR 1933 Cal 745 (Z4). it was again held on a review of the authorities that in case of agricultural tenancies it ' was sufficient if there was reasonable notice. We are of opinion that in this case there was reasonable notice and that on this ground also the plaintiff is entitled to succeed. The result then is that the decisions of the lower Court are correct and these second appeals must be dismissed with costs.
19. C. M. A. No. 197 of 1947: In this appeal the learned Subordinate Judge had remanded the case for fresh evidence being taken on the question as to whether there was tender of notice to the tenant. The defendant has preferred this appeal challenging the correctness of the finding of the learned Subordinate Judge that the plaintiff was- grantee of both the warams under Ex. P. 1. On our conclusion that under Ex. P. 1 the plaintiff was entitled to both the warams, this appeal also fails and must be dismissed with costs.