Judgement

Appeal (No. 41 of 1946) from a judgment and decree of the High Court

Law Rep. 76 Ind. App. 202 ( 1948- 1949) Kumbham Lakshmanna V. Tangirala Venkateswarlu

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(September 28, 1943) which reversed a judgment and decree of the Subordinate Judge of Masulipatam (September 6, 1941) and allowed the plaintiffs (respondents) suit with costs.

The main question in this appeal was whether in a suit by a holder of a minor inam to eject the tenants from the holding, the burden was on the plaintiff to make out a right to evict by proving that the grant included both the melvaram and the kudivaram interests, or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease, or whether the burden was on the tenants to prove that they had occupancy rights.

The trial court held that the burden lay on the plaintiff to make out a right to evict the tenants, while the High Court held that the burden of proof lay on the tenants to prove that they had occupancy rights.

The facts appear from the judgment of the Judicial Committee.

1949. Feb. 23, Mar. 1, 2, 8, 10. Jayakar and L. E. H. Fellows for the appellants (the tenants). The original grant is lost, and this is a case in which there is an inam grant of which the terms are unknown or uncertain, and in which the tenants have been in occupation immemorially, or for a very long time, paying melvaram or rent to the inamdar, but the origin and terms of the tenancy are not known. [Reference was made to Seethayya v. Somayajulu (( 1929) L. R. 56 I. A. 146.).] The evidence establishes that the appellants have been in possession of the suit lands from time immemorial, and in the absence of any binding leases or other documents to show how they went into possession there is a presumption that they have occupancy rights. It is for the respondent to prove that the various kaths, or leases, which were executed by the tenants, who were illiterate, were explained to them, and in the absence of such proof they are not binding on them Kwamin Bassayin v. Bendentu II (( 1937) A. I.

R. (P. C.) 274.). One inference from the documents is that there must have been partition of the suit lands by the tenants which was not objected to by the respondents predecessor. In an action to eject a tenant the burden is on the plaintiff to show that he has a right to evict by proving that the grant consisted of both the varams Appa Rau v. Subbanna (( 1889) I. L. R. 13 M. 60, 64.); Venkatacharlu v. Kandappa (( 1891) I. L. R. 15 M. 95). The real point is whether Nainapillai Marakayar v. Ramanathan Chettiar (( 1923) L. R. 51 I. A. 83, 89.), in which it was said that "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 right is upon the tenant," has overruled Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi (( 1922) L. R. 49 I. A. 286.), which held that each case must be dealt with on its facts, which meant that the burden lay on the plaintiff to prove his case. It is submitted that " tenant " as referred to in Nainapillais case (3) was used in a restrictive sense of a tenant holding under a landlord who held both varams. There is no mention of Chidambaras case (( 1922) L. R. 49 I.

A. 286.) in the judgment in Nainapillai*s case (3). If the view in Zamindar of Parlakimedi v. Ramayya (( 1926) 51 Mad. L. J. 510.) is correct, as I submit it is, then Nainapillai’s case (3) cannot be accepted, and if that is so, the judgment of King J. in the present case, which is entirely based on Nainapillais case (3) cannot stand. [Reference was also made to Suryanarayana v. Patanna (( 1918)

L. K. 45 I. A. 209.) ; Upadrashta Venkata Sastrulu v. Divi Seetharamudu (( 1919) L. R. 46 I.A. 123.) ; Seturatnam Aiyar v. Venkatachala Gounden (( 1919) L. R. 47 I. A. 76.) ; Subramanya Chettiar v. Subramanya Mudaliyar (( 1929) L. R. 56