1. The suit from which this second appeal arises was brought in the District Munsif's Court of Karur, by the plaintiff to recover possession of certain lands in the possession of tenants. He had previously brought two suits in respect of the same property. The first suit had been dismissed for want of a notice to quit, the second suit had been dismissed for failure to give a proper notice to quit. It is admitted that in the second suit the Court found that the defendants had no per present suit, the plaintiff relied on favour and an issue was framed on that contention; but both the lower Court have paid very little attention to this question and seem hardly to have dealt with it; but the plaintiff is undoubtedly entitled to argue this question.
2. The two principal findings of the Lower Appellate Court were that the plaintiff had not proved that kudivram in him, and secondly, that even if he had so proved it, he had not proved that he had a right to evict. I fail to understand why, in view of the finding of the Lower Appellate Court as to the kudivaram, the District Judge did not order the plaint to be returned for presentation to a Revenue Court.
3. The question of res judicata has been argued at great length by Mr. Govindaraghava Aiyar for the plaintiff, but we eventually intimated our intention not to deal with this matter at the present stage. So I will leave that question for future decision, if necessary.
4. The question as to the kudivaram is dealt with by the District Judge in (paragraph 3 of his judgment. He states that the previous judgment relied on, by the plaintiff did express opinions in his favour and that these opinions were formed on the basis that the burden of proof was on the defendants. He then states the law as follows: 'It is for the inamdar to show either that at the time of the grant he already was in occupation or that the land was waste, when the grant to him was made.' and he concludes by saying, 'I think that the District Munsif was right in holding that the plaintiff has not succeeded in establishing that the land itself forms the inam, attached to the office which he holds.' There was undoubtedly abundant authority for this view at the time, that the District Judge pronounced his judgment. He has set out the cases on which he relies, the latest being Suryanarayana v. Patanna  41 Mad. 1012. It is not disputed before us that the decisions of the Privy Council reported in Suryanarayana v. Patanna  41 Mad. 1012 and Venkata Sastrulu v. Seetharamudu  43 Mad. 166, as explained by the Full Bench in the reference in S.A. No. 1878 of 1919 have laid down, that the burden of proof is on the tenant and not on the plaintiff. The District Judge is, no doubt familiar with these later decisions. Mr. Ramadoss for the respondents somewhat faintly contended that the old presumption still remained in the case of a service inam. The service inamdn this case was admittedly granted by a person styling himself a Chakravarthi or Emperor. The foundation of the doctrine as laid down by the Privy Council is that inams must be presumed to be of the land, as well as of a share in the revenue, and Mr. Ramadoss admitted that S.A. No. 1878 of 1919, to which the Full Bench applied this doctrine was a service inam. In that case it was a poojari service of a temple, whereas in this case it is drummer service. There is, therefore, nothing in this distinction, and was must, therefore, call on the District Judge to submit a revised finding on the first issue in the light of the above rulings and on the documentary evidence in the case, he having already found that the oral evidence on both sides is entitled to little weight. Mr. Govindaraghava Aiyar has asked us to allow him to prove certain documents, which he did not tender in this suit, as they had been rejected in the previous suit, his contention being that these documents are admissible to prove the nature of the possession. As, however, they were tendered as evidence of a specific lease and rightly rejected as such, I do not think, that they are admissible and see no reason to allow him to tender them in this suit.
5. Coming to the second point, Mr. Ramadoss has contended that, even, assuming the kudivaram, to have been in the plaintiff, he must still prove his right to eject and has relied on certain decisions of this Court. I desire to express my opinion definitely that, where, this defence is sought to be used to compel the landlord to prove affirmatively the nature of the tenant's holding, it is no longer open to the defendant since the two decisions of the the Privy Council and that of the Full Bench above referred to. It is true that in none of these cases was the point specifically decided, the reason being, in my opinion, that, where the kudivaram interest has been shown to be in the landlord, it is no longer open to the defendant to call upon the plaintiff to prove that the tenant had not at the date of suit a permanent right of occupancy. The cases relied on by the learned District Judge on this point were those quoted by the District Munsif in paragraph 28 of his Judgment. They are Venkatacharlu v. Kandappa  15 Mad. 95, Veeranan Ambalam v. Annasami Aiyar : (1911)21MLJ845 and Venkata Mahalakshmamma v. Ramajogi  16 Mad. 271. In addition to these, Mr. Ramadas has relied on Krishnasami v. Varadaraja  5 Mad. 345, Varadaraja v. Dorasami  16 Mad. 131, Velappa Goundan v. Doraisami Iyer S.A. No. 469 of 1917, Veeranan Ambalam v. Annasami Aiyar (sic) Muthusawmi Aiyar v. Nainar Ammal  7 L.W. 194.
6. I will deal with these in order. Krishnasawmy v. Varadaraja  5 Mad. 345 has in my opinion, been much misunderstood. It was not a decision of a Full Bench on a reference but was a decision in an appeal on the facts of the particular case. The plaintiff's claim rested on an alleged muchilika executed by the tenants to Government as trustee for the temple. The defendants contended that they had previously owned the mirasi right to the land but had resigned that to the temple, retaining in themselves the permanent right of cultivation, which they had enjoyed from the beginning. Kindersley. J, decided that they had never relinquished the permanent right in themselves and that the evidence tendered to support that contention was, that the tenure was permanent. Turner, C.J., and Muthusami Aiyar, J. say as follows-
Without attempting to define what period of occupation should confer the right of occupancy--a matter which can now only be dealt with by legislation--we consider ourselves at liberty to say that an occupation of upwards of 70 years is sufficient, under the circumstances of this case, to throw, upon those who seek to disturb it, the burden of showing that the tenancy was not accompanied with a right of occupancy, and that the plaintiff has not succeeded in doing so.7. The words 'under the circumstances of the case' have reference to an earlier passage in the judgment which is as follows:
When there is so much evidence to show that, by the custom of the country and of the district in which the lands in suit are situated, permanent cultivators are entitled to permanent occupancy we do not see how this privilege can be refused to the defendants, whose (sic) have (sic) the lands they now hold, for at least 70 years.8. This is obviously a decision on the particular facts of the case, one of the important features of which is the contention of the defendants, that the whole right in the lands was at onetime vested in them and was only acquired by the temple by relinquishment from them. It is of no use to the defendants in a case where the kudivaram right is in the landlord.
9. The next case is Venkatacharlu v. Kandappa  15 Mad. 95. In that case the plaintiff, an inamdar, sued to eject the defendant from certain lands. The judgment is very short and is as follows:
On the findings, of both Court it must be taken that the only facts, proved are, that the plaintiff is the Inamdar of the village, that Defendant and his father have been in occupation of the lands for 40 or 50 years as tenants.10. It is clear, therefore, that there was; no evidence let in to show that the kudivaram was in the plaintiff and the decision is, therefore, of no value whatsoever.
11. Varadaraja v. Dorasami  16 Mad. 131, was a suit in ejectment, the land in., question being the property of the temple of which the plaintiff was the trustee; The whole question turned on the terms, on which the defendants had been let into possession in 1832, by takids and a muchilika executed by the defendants' ancestor. The judgment states the question in the following, words, 'was that muchilika of a permanent character?' and concludes as follows:
We are of opinion that there is evidence from which it can be legally inferred that the lease of 1832 was a permanent lease, and, that being, so, the plaintiff's suit must fail.12. This again is a decision on the construction of the particular document and is of no assistance to us in the disposal of this case.
13. The next case is Vencata Mahalakshmamma v. Ramajogi  16 Mad. 271 which was referred to by the District Munsif and relied on by the District Judge. This was not an inam case at all, but a suit by a zamindarini in ejectment against a ryot. The judgment contains the following passage:
The District Judge held that, as between the zamindar and the ryot the former was merely the assignee of land revenue, whilst the latter was prima facie the owner of the soil. * * * For the appellant it is contended, that it was for the ryot to establish his occupancy right.14. The Court then proceeded to consider the facts of the case and held that there was nothing to show that the zamindar had let the ryot into possession. The Court then decided as follows
It may be that the ryot was in possession when the zamindary itself was created, or that the zamindar, as pointed out by the Judge, was a mere farmer of the revenue. In such cases, it is not unreasonable to hold that the onus of showing that the tenancy commenced under the plaintiff or his ancestors rests on the zamindar, and that until he shows it, the zamindar may be fairly presumed to hare been the assignee of Government revenue.15. This proposition has repeatedly been laid down by this Court with regard to zamindary tenants, but has no bearing at all on cases where the kudivaram interest is in the landlord.
16. Veeranan Ambalam v. Annasami Iyer : (1911)21MLJ845 , also relied on, by the District Judge was a suit by a Government ryotwari holder to eject his tenants who had been in possession for over 100 years. The Court held, that it lay upon him to show that the tenancy was one from year to year. This decision is, however, directly opposed to the recent ruling of the Privy Council in Seturatnam Aiyar v. Venkatachala Goundan  43 Mad. 567, in which their Lordships held that, in a suit brought by a Government pattadar against the respondents after due service of notice to quit, the onus was on the tenants to prove the existence of their right of permanent, occupancy. Assuming that the position of a ryotwari pattadar is analogous to that of an inamdar owning the kudivaram interest, this decision of their Lordships directly negatives the view held by the District Judge.
17. There remain the cases in Muthusawmi Aiyar v. Nainar Ammal  7 L.W. 194 and Velappa Goundan v. Doraisami Iyer  S.A. No. 469 of 1917. In the former case the plaintiff, the trustee of a temple, under an inam granted by Government in 1865, sued to eject the defendant from certain temple lands. The case was remanded by the High Court on two findings, one was that what was granted was the land itself, and the other was that the lands were unoccupied at the time of the grant, and occupancy rights if any, must have been acquired since the grant. The Bench decided that, on the facts of the case, there was no ground for holding that the primary burden of proof, which was on the landholder, to prove the tenancy alleged by him and his right to eject had been discharged. Their Lordships were obviously influenced by the decision in Suryanarayana v. Patanna  38 Mad. 608, to which they referred which has been reversed by the Privy Council. In my opinion, the decision can no longer be said to be good law, unless it is to be supported entirely by the facts of the case. In Velappa Goundan v. Doraisami Iyer  S.A. No. 469 of 1917, the same view was taken and the same observations apply. Against the view that burden lies on the plaintiff, there is first the presumption of a tenancy from year to year in leases governed by the Transfer of Property Act. Admittedly, the Transfer of Property Act does not apply, and I myself have always objected to analogies drawn from this chapter, preferring to follow English law where applicable, but other Judges of this Court have laid down that it is proper to apply such analogies. Mr. Govindaraghava Aiyar has, however, drawn our attention to a case, prior to the Transfer of Property Act, in Endar Lalla v. Lallu Hari 7 B.H.C.A.C. 111. In that case, the plaintiffs instituted a suit to recover possession of certain lands. The defendants, relying on long possession, at an invariable rent, contended that the burden of proof lay on the plaintiffs to establish their right to eject. The Bench laid down the proposition:
In all ordinary cases the presumption of law is that a tenant is a tenant from year to year, unless a larger right can be shown, by the evidence of a lease or agreement to that effect. * * * The presumption being, that a tenant is a tenant from year to year, no length of possession by itself can confer a perpetual lease. Once a tenant, always a tenant, is the rule; and, unless there is evidence of a lease, the proprietor can oust after due notice.18. Thiagaraja v. Giyana Sambandha Pandara Sannadhi  11 Mad. 77, was a suit by the trustee of a temple to eject the defendants from the lands in the Tillage. The defendants had admittedly been in possession of the lands in question since 1827, which was 50 years before the date of the suit. In 1830, they had executed a muchilika for the lands to Government, as trustee of the temple describing themselves as puracudis and agreeing to cultivate the lands, no term being fixed for the holding. The Bench decided that it lay upon the defendants to show that they had any higher right than that of cultivating tenants from year to year. According to English law, where the ownership of the lands is found to be in the landlord, a presumption arises that tenants in possession are tenants from year to year, and it rests upon them to prove that the lease is either for a term, or otherwise inconsistent with the plaintiff's right to eject. It is, of course, conceded that with regard to zamindars, the presumption being that they are only farmers of revenue, it rests on them to show that they let the tenant into possession. But in the case of an inam of the land, as in the case of the ryotwari pattadars, I am clear that the burden of proof, that the tenancy was a permanent one, rests on the tenant, and, if he is unable satisfactorily to discharge that proof, he can be ejected on proper notice to quit Mr. Govindaraghava Aiyar has urged that a permanent right of occupancy is akin to an alienation and, as such, incompatible with a service tenure. He points out that Clause 16 of Section 3 of the Madras Estates Land Act removes lands held on service tenure from the category of ryoti lands, but this is done for the purpose of preventing a service-holder from claiming to be a ryot within Clause 15. He relies on Upendra Nath Hazra v. Rant Nath Chowdry  33 Cal. 630; in which the Bench held, following an earlier decision of the same Court, that tenants of ghatwali service lands could not acquire permanent right of occupancy, the foundation of the doctrine being that it is inconsistent with the incidents of such tenure. Speaking for myself, whatever may be the case of ghatwali service, I can see nothing inconsistent. Admittedly the acquisition of such permanent rights would not prevent the resumption of the inams, if the services were not rendered, and I cannot see why the payment of a fixed rent on a perpetual tenure to a service-holder has a more serious effect on the discharge-of his duties as a drummer in a temple. Midnapore Zamindari Co. Ltd. v. Appayasami Naicker  41 Mad. 749, laid down what is undisputed law that lands held on service tenure cannot be alienated, beyond the lifetime of the holder for the time being the principle being to allow such alienation would divert the lands or their proceeds from the intended purpose; but a permanent lease No. more diverts the land than does an ordinary tenancy from year to year, and there is no authority in this Court for such a proposition. I am not, therefore, prepared to hold that permanent rights of occupancy cannot be acquired in a temple service inam.
19. In the result, I would hold that, where the kudivaram is found to be in the holder of a service inam, the burden lies on the tenant to prove that his holding is other than that of a tenant from year to year, and, if he is not able to establish this, he is liable to ejectment on proof of a proper notice to quit. In this view, we must call upon the District Judge for a revised finding on the second issue in the light of the above observations. Time for submission of findings one month after re opening of the District Court and It days for objections.
20. The questions arising in this appeal have been dealt with at length by my learned brother and I shall content myself with adding only a few words. As to the question of kudivaram, since the Privy Council decisions in Suryanarayana v. Patanna  41 Mad. 1012 and Venkata Sastrulu v. Seetharamudu  43 Mad. 166 and the explanation of them contained in the Full Bench judgment of this Court in S.A. No. 1878 of 1919, there is no room for doubt that the onus of proving a permanent occupancy right is oh the tenant. The present case cannot in this respect be distinguished from the case before the Full Bench, and in my opinion that is conclusive of this matter.
21. It was, however, contended that in spite of this, the onus was still on the plaintiff to establish his right to eject the tenant: in other words, it was contended that in spite of the decisions above referred to, the plaintiff was still to prove the nature of his tenant's holding. The cases relied on by the respondents have been elaborately reviewed by my learned brother, and I do not propose to examine them again. I agree with the conclusions he has drawn as the result of his examination. There is a clear presumption in the Full Bench ruling in favour of the inamdar's right to both varams. It may be weak or strong, but whichever it is, it must be displaced by evidence on the part of the tenant. It is therefore clear that while this presumption exists, in favour of the inamdar, it is no concern of his, to give evidence as to the nature of his tenant's holding, unless and until the presumption in his favour has been displaced by evidence offered by the tenant, and the onus consequently shifted on the landlord by reason of his tenant's evidence. It therefore seems to me, that the cases quoted for the respondents to the effect that there is still an onus on the plaintiff-landlord are no longer law.
22. I will deal with only one other point, namely, as to the allegation that a permanent right of occupancy, practically amounts to an alienation and therefore in the case of an inam grant would be illegal. We were referred to two cases, Vencateswara Yettiapah Naicker v. Alagoo Moottoo Servagaren [1859-61] 8 M.I.A. 327 and Kshetrabaro Bissoyi v. Sobhanapuram Harikristna Naidu  33 Mad. 340. In Vencateswara Yettiapah Naicker v. Alagoo Moottoo Servagaren  8 M.I.A. 327 it was held that a perpetual lease was not within the mischief of the provisions of Madras Regulation 25 of 1802 as it was not, 'a sale, gift, or transfer' of the whole or any portion of the Zamindari in question. In Kshetrabaro Bissoyi v. Sobhanapuram Harikrishna Naidu  33 Mad. 340, it was held that a grant of a permanent lease was not a transfer of ownership and was not therefore an alienation. The estate in that case was a service-inam. The case in Midnapore Zamindari Co. Ltd. v. Appayasami Naicker  41 Mad. 749 simply lays down, that land held on service tenure are inalienable, beyond the life time of the holder, i.e., that he cannot make a valid transfer of the ownership to last beyond that time. The case in Upendra Nath Hazra v. Ram Nath Chowdry  33 Cal. 630 held that tenants of ghatwali service lands could not acquire permanent rights of occupancy, as the latter were inconsistent with such a tenure. I am not prepared to say that this ruling is, in fact inconsistent with the cases in Vencateswara Yettiapah Naicker v. Alagoo Moottoo Servagaren  8 M.I.A. 327 and in Kshetrabaro Bissoyi v. Sobhanapuram Harikristna Naidu  33 Mad. 340 quoted above, as it is clear that whatever may be the incidents of ghatwali tenure, the inam could undoubtedly 'be resumed, if the services were not performed. If this case is in fact inconsistent with the Madras case, then I am bound to say that I prefer to abide by the latter ruling.
23. I agree with the conclusions at which my learned brother has arrived and I also agree with him, as to the findings to be returned by the District Judge.
[This Second Appeal came on for hearing on receipt of findings before their Lordships, Ay ling and Odgers, JJ.].