Interference with the concurrent findings in second appeal.

The appellants in the Second Appeal filed the suit for injunction on the ground that they are cultivating tenants of the first defendant-respondent, under Madras Act XXV of 1955 as amended by Act XIV of 1956. and as such they are entitled to remain in possession of the suit properties. The plea of the first defendant is that the plaintiff committed default in payment of rent for fasli 1366 and did not have the means to pay the same when a demand was made by him for arrears of rent and so the first plaintiff surrendered possession of the leasehold lands on 20th April, 1957. Though the suit lands included S. No. 189/2 and S. No. 201/1, the plea of the first defendant is that they do not belong to him and this plea has been accepted by the Courts below and there is no dispute about it. The Courts below have referred to the remaining lands alone as the suit lands. Ever since the alleged surrender, the first defendant claims to have been cultivating the suit lands as pannai lands with the help of the second defendant in whose favour he has executed a power of attorney. Defendants 2 and 3 supported the claim of the first defendant and denied having interfered with the possession of the suit lands claimed by the plaintiffs. The trial Court accepted the truth of the surrender put forward by the first defendant. But, on appeal, the learned District Judge reversed the finding of the trial Court. This Court, in Second Appeal No. 985 of 1960, remanded the appeal as it was not satisfied with the finding of the lower appellate Court negativing the truth of the oral surrender. The subsequent District Judge who tried the appeal accepted the truth of the surrender and hence the plaintiffs have preferred this Second Appeal.

Sri G. Ramaswami, learned Advocate for the appellants, relied on several facts to show that the surrender pleaded by the first defendant could not be true. If we were dealing with this matter as a trial Court, or as the first appellate Court, we would have great hesitation in accepting the truth of the surrender. The burden of proof is on the first defendant to prove the truth of the surrender. Having regard to the provisions of the Cultivating Tenants Protection Act, it is difficult to believe that the first plaintiff as a tenant would have voluntarily surrendered his leasehold interest, particularly when, the extent of the lands comprised in the lease is 32 acres 93 cents. The first defendant came forward with a plea that the plaintiffs owed arrears of rent to the extent of Rs. 5,000. He filed O. S. No. 128 of 1957, in the District Munsif’s Court, Tiruvaiyaru, to recover the said arrears of rent, but it was decreed only for a sum of Rs. 2,405. According to the first defendant, he went from Madras to Thanjavur and met the first plaintiff there on 20th April, 1957 and asked him to pay the arrears of rent of Rs. 5,000 within one week, that the first plaintiff asked for remission, that he refused to give any remission and that thereupon the first plaintiff stated that he was not willing to be a tenant. This is the surrender put forward by the first defendant. In O. S. No. 128 of 1957 on the file of the District Munsif’s Court, Thiruvaiyaru, to recover arrears of rent, the present first defendant gave evidence that he met the first plaintiff herein only on 19th April, 1957. But in his evidence in this suit he would state that by mistake he gave the date as 19th April, 1957 in the rent suit. The finding of the learned District Judge is that the date of surrender, 20th April, 1957, mentioned in the notice Exhibit A-6 must be correct as it was made when the fact was fresh in the memory of the first defendant. The first defendant is an Advocate. The reasons given by the learned District Judge in paragraph 8 of his judgment are hardly convincing. Thus there is no meaning in the learned District Judge saying that if really the first defendant had met the plaintiff on 19th April, 1957 and had not met him subsequently and