Madhavan Nair, J.
1. The plaintiffs are the appellants. They are the izaradars of the suit village under a permanent lease from the zamindar of Kangundi : see; Ex. E. The defendants are raiyats in occupation of the lands. The present suit has been filed by the plaintiffs for rent under Section 77(1) of Act 1 of 1908. ! The plaint contains no detailed statement of the claim of the plaintiffs, It simply asks for recovery of rent at a certain rate. The contention of the defendants is that the lands are held rent free. It would seem that the lands were originally granted to the father and uncle of defendants 1 and 2. It is not clear what the conditions of the grant were. The first Court held that * the claim of the plaintiff was barred by res judicata and dismissed the suit. Two appeals were filed against the first 'Court's decree viz., A.S. No. 199 and 211. A.S. 211 related to one item only. In A.S. No. 199 there were four items of land. The learned District Judge hold that the decision of the first Court that the plaintiff's claim is barred by res judicata cannot be upheld in so far as it related to the one item which was the subject matter of A.S. No. 211 and that the same was the case with regard to items 1 and 2 of the other appeal; but with regard to items 3 and 4 he held that the claim was barred by res judicata. On the merits with regard to all the items he held that the plaintiffs did not succeed in making out a case for levy of rent, his opinion being that the lands were being held rent free. The evidence showed that for over 60 years the defendants and their predecessors in title were holding the lands paying no rent. It also showed that there was litigation concerning the right of the predecessors in title of the defendants to enjoy certain lands rent free, that this litigation had been going on for 60 or 70 years and the defendants seem to have successfully resisted the Izaradar's claim for rent. On these grounds the learned Judge held that the plea that the lands were held rent free was.-made out. Two second appeals have been filed by the plaintiffs in this Court, S.A. No. 1447 gainst A.S. No. 211 and S.A. No. 1448 gainst A.S. No. 199.
2. Mr. Venkatachari on behalf of the appellants contends that as the plaintiffs now hold the lands from the zamindar they are entitled to ask for rent from the defendants under CI. 3 of Section 26, '.Mutates Land Act, which says that except as provided by Sub-section (1) no rate of rent at which land may have been granted by a landholder shall be binding upon the person entitled to the rent after the lifetime of the landholder if such rate is lower than the lawful rate payable by the raiyat before the date of the grant upon the land or upon land of similar description and with similar advantages in the neighbourhood. The burden of proving the conditions mentioned in this provision lies on the zamindar. He has to prove that before the date of the grant under which the ^defendants hold the lands there was a higher rate of rent payable by the raiyat upon his land or upon land of similar description and with similar advantages in the neighbourhood. If he succeeds in discharging the burden imposed upon him by CI. 3, then the raiyat if he wants to claim exemption should rely upon the provisions of sub CI. 1 of Section 26. This has been clearly laid down to be the law in Para Dekhan v. Raghupathi Ayyar 1923 Mad 306, and this decision has been followed in Second Appeals Nos. 1267 and 1292 of 1931.
2. The first objection to the argument of the counsel is that this plea which depends for its decision on a question of fact was not raised in the lower Court at all. It is for the first time raised in this Court. This Court therefore is not in a position to deal with the plea in its detail. As I have already said, the zamindar has to prove that at the date of the grant to the defendants there was a higher rate of rent payable upon' the lands. This has to be proved by evidence. If the question was properly raised in the lower Court there would have been no difficulty in the matter. But says Mr. Venkatachari that the evidence such as it is shows that there must have been rent paid at some time because one of the witnesses D.W. 1 says:
Wears not paying rent for the suit lands because it was to be adjusted for our portion of the izara amount.
2. It is argued therefore that the land, was assessed to rent, that some rent was being paid by the predecessors of the defendants when the land was granted to them because it was adjusted later on, and since they now pay no rent, a higher rate of rent was payable at the time of the grant. This argument appears to be plausible, but another witness D.W. 2 says 'I do not know why the rent was not paid.' The reason given by the first witness apparently does not appeal to this witness because he says that he does not know why the rent was not paid. The evidence being thus conflicting it is difficult to accept the contention of the appellant's learned Counsel and to apply the provisions of Sub-clause 3 of Section 26. If the case of the plaintiffs was made to depend upon Sub-clause 3k of Section 26, they should have raised the point clearly before the lower Court and obtained a decision on it. As that has not been done, I do not think it is open to them to raise the point now as I find that there is no satisfactory evidence on record to give effect to their plea. In this connexion I may also point out that in the previous litigation between the parties this claim that the zamindar is entitled to levy a rent under Sub-clause 3 was never raised. So far as the records go it is for the first time raised here in second appeal. In these circumstances I must dispose of these second appeals on the finding recorded by the learned District Judge, that finding being that for a considerable number of years the lands were being held by the defendants and their predecessors rent free. How they came to be held rent free we do not know. Nor does the evidence put before the Court definitely help us in arriving at that conclusion.
3. It has been laid down in various decisions which it is not necessary to refer to that in these circumstances a lawful origin for the right claimed by the defendants can be presumed by the Courts. In a decision in Kiran Chandra Roy v. Srimath Chakravarth 1927 Cal 210 it was held by the Judges with respect to a zamindari that a person who claims to hold as a tenant, land within the ambit of the zamindari, can prove his right to hold without payment of rent if there is no grant in support of the right claimed by long and continued possession in assertion of the right, it being a well settled principle of law that the right should be presumed to have had a legal origin if such a legal origin was possible. On this principle I think it may well be held that the defendants are entitled to hold the lands in question rent free and the plaintiff's suit therefore was rightly dismissed by the lower Courts. In this view it is not necessary to deal with the question of res judicata raised and dealt with in the lower Courts' judgments. It follows that both the second appeals must be dismissed with costs.