1. These second appeals arise out of a batch of suits filed to recover damages for use and occupation in respect of the two villages of Kadiyam and Jogurapad in the Godavari District. The Courts below gave decrees in favour of plaintiff and the defendants file these appeals.
2. The two villages though situate within the ambit of the zemindari of Pittapore had a history of their own apart from the zemindari. They were granted in Fasli 1148 (or 1748) by or on behalf of Asoof Jah alias Nizumulmulk, the first Nizam of Hyderabad. They were regarded as excluded from the assets of the zemindari at the time of the Permanent Settlement in 1802 and continued to be held by the grantee's successors as inam. In 1856, they were resumed by the Government for reasons not clear but not material. Thus, they did not get the benefit of the inam Settlement in 1862 but continued to be held by the grantees on ryotwari tenure. The defendants or their predecessors were the tenants of the villages. In 1900, the assessment payable to Government was enhanced as a result of the re-survey and re-settlement in which the plaintiffs were regarded as the pattadars of the villages. No rents were admittedly collected from the tenants from 1906 to 1910. In 1910, notices to quit were issued to the tenants but in vain. In 1917 the present suits were filed for damages for use and occupation on the footing that the defendants were holding over and are trespassers in law.
3. The defendants pleaded that they had permanent occupancy rights, that they were not trespassers and, therefore, are not liable to pay damages (as opposed to rent). They also pleaded that, as they did not pay rents for 19 years, the suits are barred by limitation. They admitted the payment of assessment due to Government. This must be presumably on behalf of the pattadar.
4. On second appeal, objection has been taken by the respondent, that, in some of the second appeals--those in which the value did not exceed Rs. 500--no second appeals lie. It is unnecessary to decide the point, though we think the objection is well-founded. It is admitted that the objection cannot apply to all the cases and the merits must be gone into.
5. The only point practically argued in the second appeals is that the trial of the suits relating to Jagurupad has been seriously prejudiced by their being consolidated with the suits relating to Kadiyam, that there is substantial difference between the two villages in the matter of the relations between the landlord and tenants and the Courts below were prejudiced by the facts relating to Kadiam which, it is admitted, are more favourable to the landlord in certain respects. We say this is the only point argued, for, all other points discussed in argument are subsidiary to and illustrative of this. As to Kadiam, no doubt the appellants argued that they have acquired a title by adverse possession but we do not think this argument is tenable in view of the points taken up in the written statements. The suit relating to Jagurupad are three in number and their second appeals are S.A. Nos. 593, 596 and 597, and the Vakil for the appellants has strenuously argued that these second appeals should be sent back for fresh findings. Before this point is dealt with it will be convenient to state the fact and findings about both the villages and dispose of the other second appeals.
6. The Courts below held that, as the suit villages are ryotwari villages, the burden of making out occupancy rights lay on the appellants relying on Seturathan Iyer v. Venkatachala Goundan 56 Ind. Cas. 117 : (1920) M.W.N. 61 : 27 M.L.T. 102 : 11 L.W. 399 : 38 M.L.J. 476 : 22 Bom. L.R. 578 : 18 A.L.J. 707 : 25 C.W.N. 485 : 47 I.A. 76 . In this connection Naina Pillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : 47 M.P 337 : A.I.R. (1924) (P.C.) 65 : 19 L.W. 259 : 22 A.L.J. 130 : 34 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 O. & A.L.R. 464 : 28 C.W.N. 809 : 51 I.A. 83 : L.R. 5 A. (P.C.) 33 may also be mentioned as laying down (page 344 Page of 47 M.-[Ed]): '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 rights is upon the tenant'.
7. This is not denied for the appellants. The Courts below found that Kadiam lands were being held under muchilikas for terms of years, X series of 1875, N series of 1886, M series of 1891. The last set of muchilikas covered the period terminating with June 1896. In all these muchilikas, the tenants undertook to surrender the lands at the end of the term and must, therefore, be considered as re-admitted as tenants under the next succeeding set of muchilikas. They also found that there was constant change of tenants in the village of Kadiam and that there were also enhancements of rents. The District Munsif found that rents continued to be paid by the tenants after 1896 upto 1906, in respect of both the villages. But the Subordinate Judge found that the payment of rent has been practically proved up to 1900 only. We allowed reference to the documents and evidence in detail to see if there is any mis construction of a document or a mis-statement of fact by the lower Appellate Court. But none has been established. The tenants latterly began to alienate the holdings but it was found these were all after 1900. They are sixteen in number for Kadiam and of the years 1902-1906 except one in 1912. As to Jugurupad, they were five in number and are of the years 1902, 1905-1907. Some improvements said to have been effected by the tenants were also stated and considered by the Courts below. After stating the facts common to all the cases, the District Munsif stated the facts proved in respect of each case separately and the Subordinate Judge has not re-stated them as it would be only a repetition. On the facts summarised as above, they found that no rights of occupancy have been made out by the ryots. The Vakil for the appellants argued that the facts are similar to those in Seturathan Iyer v. Venkatachala Goundan 56 Ind. Cas. 117 : (1920) M.W.N. 61 : 27 M.L.T. 102 : 11 L.W. 399 : 38 M.L.J. 476 : 22 Bom. L.R. 578 : 18 A.L.J. 707 : 25 C.W.N. 485 : 47 I.A. 76 more particularly in Jugurupad. We do not agree with him. In that case there were 43 alienations found ranging from 1859 to 1896--as opposed to the much smaller number in the present cases which are all after 1903--when the Government enhanced the assessment and consequently the landlord neglected the collection of rents. The Courts below have considered all the circumstances that may be relied on in favour of the tenants and have come to a conclusion on a question of fact with which there is not the faintest shadow of justification for interference. In particular the effect of the muchilikas of Kadiam containing a clause that the tenant shall surrender at the end of the term may be stated--a fact totally absent in Seturathan Iyer v. Venkatachala Goundan 56 Ind. Cas. 117 : (1920) M.W.N. 61 : 27 M.L.T. 102 : 11 L.W. 399 : 38 M.L.J. 476 : 22 Bom. L.R. 578 : 18 A.L.J. 707 : 25 C.W.N. 485 : 47 I.A. 76. In Suryanaryana v. Patanna 48 Ind. Cas. 689 : 45 I.A. 209 : 25 M.L.T. 30 : (1918) M.W.N. 859 : 23 C.W.N. 273 : 9 L.W. 126 : 29 C.L.J. 153 : 1 U.P.L.R. (P.C.) 11 : 36 M.L.T. 585 : 21 Bom. L.R. 547 : (1919) M.W.N. 463 Sir John Edge stated (at page 1016 Pages of 41 M.-[Ed.]): 'By these documents of tenancy the defendants or their predecessors-in-title agreed with the inamdars to quit possession of their holdings on the determination of the term for which the lands were let to them, and without claiming any jerayati right in the lands'. (at page 1021 Page of 43 M.--[Ed.]) 'By the muchilikas which were executed by the defendants respectively or their predecessors-in-title the term for which the lands were let to them was specified; it was admitted that they held no jerayati rights and they agreed to quit the lands at the end of their term... it has been proved that, when these tenancy agreements were entered into and the defendants or their predecessors-in-title were let into possession under them, any of the lands were, or had been, held by a ryot with a permanent right of occupancy'. In Upadraishta Venkata Sastrulu v. Divi Setharomudu 51 Ind. Cas. 304 : 46 I.A. 123 : 17 A.L.J. 725 : 37 M.L.J. 42 : 21 Bom. L.E. 925 : 26 M.L.T. 175 : 30 C.L.J. 441 : 10 L.W. 633 : 24 C.W.N. 129 : 2 U.P.L.R. Viscount Cave observed (page (sic) these agreements contained a (sic) by the tenant to the effect that except the right of cultivating the land for a year under the agreement he had no other right whatever thereto and accordingly that he agreed to the landlord (the plaintiff) taking possession of the land at the end of the year of tenancy without any relinquishment by the tenant. Page 173 Page of 43 M.-[Ed.], 'When the defendants were admitted as tenants, they severally declared (as stated above) that they had no right of occupancy except such as was given to them by the tenancy agreements'. In Naina Pillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : A.I.R. (1924) (P.C.) 65 : 19 L.W. 259 : 22 A.L.J. 130 : 34 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 O. & A.L.R. 464 : 28 C.W.N. 809 : 51 I.A. 83; L.R. 5 A. (P.C.) 33 it was observed at page 354 Page of 47 M.-[Ed.]: 'In 1831, some of the tenants of the temple's endowed lands, apparently all of them, agreed amongst themselves to cultivate jointly the endowed lands of which they were tenants, and they executed and delivered to the Collector, who was then the manager of the temple and its endowments, a muchilika by which they took the endowed lands for a term from Fasli 1241. That muchilika is absolutely inconsistent with any of the tenants having then any right of permanent occupancy in any of the endowed lands of the temple and with their believing that they had any right of permanent occupancy in any of the temple's lands. In 1870 Sir C.H. Scotland, C.J., held that when a tenancy in the Presidency of Madras commenced under a terminable contract there was nothing to prevent the landlord from ejecting the tenant at the end of the term from the lands which had been let to him', thus approving of Chockalinga Pillai v. Vythealinga Pundara Sunnady 6 M.H.C.R. 164 which is thus still good law except where abrogated by Legislature (I of 1908) as to lands in estates.
8. We are of opinion the appellants have no case as to Kadiyam lands and the Kadiyam appeals fail and are dismissed with costs.
9. It is argued as to Jugurepad that the facts are different that there were no term muchilikas, that there was only one muchilika (R) in 1864, that a summary suit against the tenants in 1869 for acceptance of a tendered muchilika failed as is seen in (Exs. F and IV). These facts have been stated by the Courts below who also find that, nevertheless the tenants continued to pay rents till 1900, that there were enhancements in 1883, that the original two families who held in 1864 became three families in 1869. In 1874, another family was added (Ex. 21) and a fifth family (Ganesula) has since been added. The District Munsif recorded all the evidence in one suit on the agreement of the parties, though later on it was objected to. In his judgment (para. 24) he says 'In addition to what has been discussed above, I consider it proper to examine in detail the facts relating to each case to afford no room to suppose that the case of any individual defendant is prejudiced by joint trial'. In para. 43, he states the facts relating to Jugurepad separately. The Subordinate Judge takes up Jugurepad separately in para. 19 and states all its facts separately until towards the end of the paragraph where the facts common to both the villages were re-stated for Jugureped. In para. 20 the alienations have been separately grouped for both the villages. In para. 21, the improvements were stated and the only evidence expressly referred to related to Jugurepad and it was held that the building of small cattle sheds and granaries cannot be accepted as acts indicative of rights of permanent occupancy. It seems to us that not only all facts and circumstances in favour of the tenants have been stated and considered by the Courts below but every possible effort has been made to make it clear that the facts of the two villages have been kept separate in their minds. It is impossible to hold that the defendants suffered the smallest prejudice by the joint trial. It is true that, in Jagurepad, there are no term muchilikas, the changes of tenants are fewer. But the tenants have not shown that new tenants came in as alienees of former tenants and not as new admissions by the landlord. We may observe that the case of Bhadrayya v. Venkataratnam 11 Ind. Cas. 515 : 21 M.L.J. 803 : 10 M.L.T. 54 cannot be regarded as good law after Naina Pillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : 47 M.P 337 : A.I.R. (1924) P.C. 65 : 19 L.W. 259 : 22 A.L.J. 130 : 34 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 O. & A.L.R. 464 : 28 C.W.N. 809 : 51 I.A. 83; L.R. 5 A. (P.C.) 33 It is also true that there is only one enhancement. In our opinion these facts are enough to negative occupancy rights but if we can conceive that other Judges may come to a different opinion if sitting as Judges of fact, still there is no justification for interference with the findings of the lower Appellate Court in second appeal. We are also of opinion, the Jugurepad second appeals also fail and are dismissed with costs.