Judgement

Appeal (No. 10 of 1927) from a decree of the High Court (October 15, 1924) varying a decree of the Subordinate Judge of Tinnevelly.

The first respondent was the owner by purchase of the pattadar rights in an undivided moiety of certain lands in a village in the Madras Presidency. He brought the present suit claiming a partition. The appellants were, or claimed through, persons who since 1857 or earlier had been in possession. By

Law Rep. 56 Ind. App. 248 ( 1928- 1929) Subramanya Chettiar V. Subramanya Mudaliyar

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their written statement they alleged that as to part of the land they had a permanent right of occupancy, and that consequently it should be excluded from the partition. The question upon the present appeal was whether the appellants had the right they claimed.

The facts of the case appear from the judgment of the Judicial Committee.

The High Court (Wallis C.J. and Sadasiva Ayyar J.) held that the burden of proof was upon the appellants and that they had not discharged it. The decree of the Subordinate Judge was varied accordingly.

1929. March 7, 8. Dunne K.C. and E. B. Raikes for the appellants.

De Gruyther K.C. and Dube for the first respondent.

March 19. The judgment of their Lordships was delivered by

LORD SALVESEN. This is an appeal from a judgment and decree dated October 15, 1920, of the High Court of Judicature at Madras, which varied a judgment and decree dated December 21, 1917, of the Subordinate Judge of Tinnevelly.

The appellants were defendants in a suit which was raised at the instance of the plaintiff-respondent for a partition of his one-half share of certain lands situate in what is called the chinna pannai division of the village of Ayyanarkulam in the Tinnevelly district. By alienations and purchases which are not now disputed, the first respondent is the owner of a one-half share of the chinna pannai, and the ryotwari settlement having been made by the Government with his predecessors in title, he is at present ryotwari pattadar of one-half undivided share of this estate. The earliest document of title is dated 1857 and refers back to a state of possession in 1851, but it is probable that the settlement took place at an earlier date. Even at that time the land was described as belonging to three classes rain-fed lands, dry lands, and lands which were then irrigated by means of wells but had been formerly dry ; and the wells were at least of two classes, samudayam wells—that is, wells common to the three pannais, of which the respondent now holds one-half share of the chinna pannai and other wells, some of which are probably named after persons through whom the appellants claim, and may be assumed to have been sunk by the cultivating occupiers. It appears also that palmyra trees had been planted, some by the owners and some by the cultivators. It is these lands, irrigated by wells, and the palmyras or garden lands, which alone are in dispute in the present suit, which is one for partition between the appellants and the said respondent of the properties comprised within the chinna pannai above referred to.

In the statement made on their behalf, the appellants admitted that the respondents predecessors in title had been regularly receiving tirwa swamibhogan for his share of the lands. Tirwa is the share of the rents payable to Government, and swamibhogan the revenue derived from the tenants or occupiers over and above what was necessary to pay the tax. In statement No. 11 they raised no objection to a division being effected in respect of the dry and rain-fed lands specified in schedule No. 3, but they maintained that the well irrigated lands and palmyras should be excluded from the partition on the ground that they had acquired permanent rights of occupancy in the same, subject to the payment of a fixed rate of Rs.4-6-0 for punjas lands irrigated with water obtained from old wells, and Rs.2-3-0 per acre for punjas lands irrigated with water from new wells and pies four per palmyra. Some o