1. The plaintiff, the Poligar of Chettedi, is the appellant before us. His claim in this suit was for a declaration that the kanoha lands described in the plaint belong to him and for a perpetual injunction restraining the defendants from grazing cattle or trespassing thereon, or, in the alternative, for possession in case the defendants or any of them should claim to be in possession of the lands. The defendants set up in defence that they had an occupancy right in respect of the lands, that it was a customary right that was possessed by them of grazing cattle there on payment of Rs. 170 per fasli and that they further had the right of taking brushwood, etc., from the lands and also of cultivating portions of the lands. It must be observed that the judgment of the learned Subordinate Judge is very unsatisfactory. He held that there was a customary right in the defendants to graze the cattle there on payment of Rs. 170 per annum and awarding to the plaintiff the rent in respect of two faslis dismissed the plaintiff's suit in other respects. The so-called customary right set up by the defendants appears on examination to be based merely on user of the lands for purposes of grazing from the year 1912, paying to the plaintiff a sum of Rs. 170 per annum. Before that it is clear that the rent collected by the plaintiff from the tenants for purposes of pasture was about Rs. 114. It is difficult to imagine how any customary right or even a prescriptive right came to be acquired or established by the use of these lands for purposes of pasture with the permission of the plaintiff during the years since 1912. The documents that have been filed in the case leave no doubt whatever as to the real rights of the parties. In Ex. V (a), which is an account kept by the plaintiff in respect of these pasture lands, it is clear that small sums of money at so much per head of cattle appear to have been 'Collected by the landlord for the grant of permission to the tenants to graze their cattle there. In Ex. N, the written statement filed by these very tenants in O.S. No. 285 of 1911, the tenant? admitted that the cultivation of the small pieces of land comprised within the kancha lands was discontinued for 45 years or so. Ex. Q is a sample of the kararnama entered into between the plaintiff and the defendants from the year 1912. We find there that such kararnamas were entered into between the tenants and the landlord, and for the purpose of getting the permission of the landlord for grazing cattle, applications, it is clear, were made by tenants and darkhjasts were issued: In Ex. B, for instance, we find that the tenants
pray that the landlord may grant the said field to the tenants for fasli 1326 for a reasonable amount after inspecting the grass now grown and obtaining a kararnama.
2. Exhibit C is another kararnama and there is a provision there for delivery of possession of the kanchas being given to the landlord at the end of the fasli. All these documents clearly show that during the whole period under reference the tenants used always to apply to the landlord formally for permission to graze the cattle and such permission was granted on terms agreed to between the landlord and the tenants. How, in these circumstances, any right in the defendants would come to be recognized, or how any customary right to graze cattle in these kanchalands on payment of a customary rent of Rs. 170 can be established, it is impossible to conceive. No doubt such a right can be established by proper evidence if it is made out that from time immemorial the tenants have enjoyed it as of right and if from the circumstances it could be gathered that the right was enjoyed by them customarily or might be due to a lost grant. But in a case of this sort, where the rent has been increased within living memory, really within a few years, and where on every occasion on which the landlord grants permission to the tenants to graze the cattle they have had to apply for it and obtain such permission, it is impossible to find any right in the defendants as established. The learned Subordinate Judge has found that the land belongs to the plaintiff. If so, the burden of establishing that the defendants have any right of easement or any other right in respect of the lands lies heavily on them, and on the materials before us it is impossible to hold that they have made out any such right. The lower Court was, therefore, clearly wrong in dismissing the plaintiff's action.
3. It is unfortunate that the proposals for compromising the differences in this litigation should have fallen through. But as the parties have not been able to settle there seems to be no other course open than to declare that the plaintiff is entitled to the perpetual injunction asked for. The dismissal of the plaintiff's suit must be set aside and a perpetual injunction granted against the defendants restraining them from grazing cattle, cultivating or taking brushwood, etc., without the permission of the landlord. If, however, the defendants or any of them should set up any claim to be in possession of any portion of the land which is the subject-matter of this suit, the plaintiff would also be entitled to have them ejected from such portions there in execution of the decree. The money decree granted by the lower Court to the plaintiff will stand and Mr. Varadachariar, on behalf of the plaintiff-appellant has not argued that it should be increased.
4. The order for costs made by the lower Court is also set aside and the plaintiff will have his costs throughout.